COURT OF APPEALS

DECISION

DATED AND FILED

December 16, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1802 Cir. Ct. No. 2008FA304

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN RE THE MARRIAGE OF:

JAMES T. MURPHY,

 PETITIONER-RESPONDENT-CROSS-APPELLANT,

 V.

NANCY C. HOLLAND,

 RESPONDENT-APPELLANT-CROSS-RESPONDENT.

APPEAL and CROSS-APPEAL from a judgment and an order of 

the circuit court for Dane County: JULIE GENOVESE, Judge. Affirmed in part; 

reversed in part and cause remanded with instructions.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

¶1 GRAHAM, J. When James Murphy and Nancy Holland divorced in 

2010, Holland was awarded indefinite spousal maintenance as a percentage of 
No. 2020AP1802

2

Murphy’s income. Holland appeals a subsequent judgment of the circuit court, 

entered in 2020, that granted Murphy’s motion to terminate maintenance. She

argues that the court erred when it determined that there had been a substantial 

change in the parties’ financial circumstances and, further, that the court’s 

decision to terminate maintenance constituted an erroneous exercise of discretion. 

We conclude that the court did not erroneously terminate maintenance.

¶2 Murphy cross-appeals the provision of the circuit court’s 2020 

judgment and a subsequent order requiring him to pay a portion of Holland’s 

attorney fees. We reject the majority of Murphy’s arguments. However, as 

explained below, we conclude that the court did not make one finding necessary to 

support a fee award under WIS. STAT. § 767.241(1)(a) (2019-20).

1

¶3 Accordingly, we reverse the portions of the 2020 judgment and the 

subsequent order pertaining to the attorney fee award, affirm all other aspects of 

the judgment and order, and remand to the circuit court for further consideration of 

the attorney fee issue and to make any findings necessary to support its decision.

BACKGROUND

¶4 The circuit court proceedings leading to this appeal were factintensive and prolonged. We limit our focus to the facts that are pertinent to the 

parties’ arguments on appeal. When possible, we recite the facts as they were 

stated in circuit court and arbitration orders, and we supplement the facts from

other sources in the record as needed.

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP1802

3

¶5 Murphy and Holland were divorced in 2010 after a thirty-year

marriage. At the time of the divorce, Murphy was fifty-four years old and Holland 

was fifty-five. Murphy worked as an emergency room physician for multiple 

employers in different states, and his income fluctuated from month to month. 

Holland was a stay-at-home mother and homemaker.

¶6 In the months leading up to the 2010 judgment of divorce, the parties 

agreed that Murphy would pay indefinite spousal maintenance to Holland.

However, they disagreed on the amount of the maintenance payments and other 

matters, such as how the parties’ substantial marital debt would be paid. The 

parties stipulated that they would resolve these and other contested matters

through binding arbitration.

¶7 As relevant here, the arbitrator developed a plan for the parties to 

pay off the marital debt, and also determined the amount of maintenance and a 

system by which it would be paid. Specifically, the arbitrator ordered that, after 

paying marital debt, Murphy would pay half of his gross income to Holland (after 

it was adjusted for any income imputed to Holland). The arbitrator also ordered 

annual “true-ups” prepared by the parties’ accountant to ensure that the proper 

amount was paid to Holland each year. These provisions were incorporated into 

the 2010 divorce judgment, which also provided that disputes over the calculation 

or modification of maintenance would be submitted to binding arbitration.

¶8 In 2012, after Holland alleged that Murphy was hiding income, the 

parties once again engaged in binding arbitration with the same arbitrator. The 

arbitrator determined that Murphy had underpaid his maintenance obligation and 

ordered him to pay arrearages. The arbitrator also modified the system for paying 

maintenance and marital debts. Moving forward, Murphy would deposit all 
No. 2020AP1802

4

paychecks into a joint account, over which Holland would have exclusive control. 

Holland would pay both parties’ marital debts from this account, and then, after 

making adjustments for her imputed earnings, she would divide the remaining 

funds equally between herself and Murphy. The annual true-ups would continue. 

The arbitrator ordered Murphy to adjust his tax withholding to maximize the funds

deposited into the joint account, and ordered Holland to use her best efforts “to 

manage bill payments in a manner that leaves sufficient funds for each party’s 

daily personal and business activities.” These changes were memorialized in an 

amended arbitration award, which we refer to as the “2012 arbitration award.”

¶9 The parties continued to have conflicts over maintenance and 

arrearages. In August 2014, Holland sought and obtained contempt sanctions on 

the grounds that Murphy had failed to make arrearage payments ordered by the 

arbitrator and had stopped depositing his paychecks into the joint account.

¶10 Then, in December 2015, Murphy sought to modify or terminate 

maintenance based on, among other things, changes in his income and 

employment and the recent loss of his Medicare billing privileges as a physician.

2

Murphy emailed the arbitrator, indicating that he could not pay the cost of 

arbitration, and the arbitrator, in turn, withdrew from participation and referred the 

matter back to the circuit court. During the proceedings that followed, Murphy 

also sought to reduce the arrearages he owed based on alleged miscalculations by 

the accountant who conducted the annual true-ups. Holland responded by seeking 

contempt sanctions on grounds that Murphy had failed to pay maintenance 

 

2

 It appears that Murphy initially lost his Medicare billing privileges in 2015, that he 

regained his privileges at some point during the trial, and that he lost his privileges again in 

December 2020, shortly after the court issued the 2020 judgment.
No. 2020AP1802

5

arrearages and was hiding income. Murphy filed his own contempt motions, 

alleging that Holland was willfully managing the joint account in a way that 

deprived him of the use of any income. By the time the proceedings were over, 

multiple contempt motions had been filed by both parties.

¶11 Starting in March 2017, the circuit court commenced what ended up 

being an eight-day trial spanning several years. The issues set for trial were the 

parties’ competing contempt motions, their dispute over the amount of

maintenance arrearages, and Murphy’s motion to modify or terminate 

maintenance.

¶12 After four days of trial in March and April 2017, the trial was 

postponed for more than two years due to uncertainty regarding Murphy’s 

continued employment and expected income. During this time, the circuit court 

held numerous status conferences and hearings to address issues related to the 

parties’ financial circumstances and Murphy’s fluctuations in income. Following 

a status conference, the court entered what we refer to as the “May 2018 order.” 

In the May 2018 order, the court anticipated that the trial would resume and, at 

Murphy’s request, the court addressed his “maintenance obligations in the 

interim.” The court ordered that, given his “changed employment circumstances,”

Murphy would pay Holland “a set amount of $10,000 each month in maintenance 

payments effective [on a date certain] and continuing until the next hearing.”

¶13 The circuit court held the final four days of trial in July 2019. 

During this phase of the trial, the parties entered into stipulations resolving the 

amount of Murphy’s maintenance arrearages and the contempt motions. The 

parties stipulated that Murphy owed Holland $285,148.50 in arrearages, and that 

he would pay an additional $100,000 toward Holland’s attorney fees to “purge his 
No. 2020AP1802

6

contempt.” The parties represented that the stipulations resolved all contempt 

motions filed by both parties. As a result of the stipulations, the only remaining 

issues for trial were how Murphy was going to pay his arrearages and whether 

maintenance should be modified or terminated.

¶14 Following the final day of trial, but before the circuit court entered 

its final judgment, Murphy began working for another healthcare provider and his 

income increased significantly. The court held a status conference on October 25, 

2019, and, at Holland’s request, it entered a second interim order. This order, 

which we refer to as the “October 2019 order,”3increased the monthly 

maintenance payments from $10,000 to $15,000 and ordered Murphy to liquidate 

certain accounts to pay down his arrearages.

¶15 The parties submitted proposed findings of fact and conclusions of 

law. Then, in September 2020, the circuit court issued its findings of fact, 

conclusions of law, and judgment, which we refer to as the “2020 judgment.” In 

the 2020 judgment, the court determined that there had been a substantial change 

of circumstances warranting a termination of maintenance. Although Murphy had 

asked the court to terminate his maintenance obligation retroactively as of 

January 2016, the court determined that maintenance should instead be terminated

in October 2020 when Murphy turned sixty-five. In broad strokes, the court 

determined that: both parties were at retirement age; the system set up by the 

arbitrator had proven to be unworkable; Holland had received substantial 

 

3

 Throughout their briefing, the parties refer to the circuit court’s oral decision in 

October 2019. The court did not enter any written order memorializing its decision until 

December 2019, but, following the parties’ lead, we use the date of the court’s oral decision when 

referring to this event.
No. 2020AP1802

7

maintenance payments over the past ten years and could be self-supporting once 

Murphy paid the arrearages that he currently owed; Murphy’s assets had been 

drained; and Murphy could not continue to pay maintenance and at the same time 

meet his needs and save for retirement.

¶16 At the same time, the circuit court determined that Holland’s

“substantial” attorney fees would “likely eat away at her ability to live,” and that it 

was reasonable for Murphy to contribute toward the payment of those fees. 

Therefore, the court’s 2020 judgment invited the parties’ submissions on the 

amount of fees it should order Murphy to pay. After considering those 

submissions, the court issued an order requiring Murphy to contribute a total of 

$102,505 payable directly to Holland’s attorneys over two years.

¶17 We provide additional background about the arguments and

evidence introduced during the circuit court proceedings, the stipulations resolving 

the contempt sanctions, and the court’s reasoning regarding termination of 

maintenance and attorney fees as needed below.

DISCUSSION

¶18 As stated above, Holland appeals the 2020 judgment terminating

maintenance, and Murphy cross-appeals the provision in the judgment and 

subsequent order requiring him to contribute to Holland’s attorney fees beyond the 

amount he agreed to pay to purge his contempt. We address the appeal and crossappeal in turn.

I. Holland’s Appeal Regarding Maintenance

¶19 We begin by setting forth principles regarding maintenance and 

motions to modify maintenance. There are two distinct but related objectives to 
No. 2020AP1802

8

maintenance—support and fairness. LaRocque v. LaRocque, 139 Wis. 2d 23, 

32-33, 406 N.W.2d 736 (1987). A maintenance award should “support the 

recipient spouse in accordance with the parties’ needs and earning capacities ....” 

Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶29, 269 Wis. 2d 598, 676 N.W.2d 

452. It should also result in “a fair and equitable financial arrangement between 

parties.” Id. Generally speaking, maintenance is not meant as a permanent

annuity. Hefty v. Hefty, 172 Wis. 2d 124, 138, 493 N.W.2d 33 (1992). The goal 

is for both parties to maintain, when possible, a standard of living reasonably 

comparable to the one the parties enjoyed “‘in the years immediately before the 

divorce and could anticipate enjoying if they were to stay married.’” Id. at 134 

(emphasis omitted) (citing LaRocque, 139 Wis. 2d at 36).

¶20 At the time of a divorce, the circuit court must determine whether to 

order maintenance payments in any amount, and, if so, it must choose between a 

limited-term or indefinite maintenance and set the amount. In making these 

determinations, the court considers a non-exhaustive list of factors enumerated in 

WIS. STAT. § 767.56(1c)4in light of the dual objectives of support and fairness. 

See LaRocque, 139 Wis. 2d at 32-33.

 

4

 WISCONSIN STAT. § 767.56(1c) states that, in a divorce judgment, “the court may grant 

an order requiring maintenance payments to either party for a limited or indefinite length of time 

... after considering all of the following” factors summarized here: (a) the length of the marriage; 

(b) each party’s age and physical and emotional health; (c) the division of property made under 

WIS. STAT. § 767.61; (d) each party’s educational level at the time of marriage and at the time the 

action is commenced; (e) the earning capacity of the party seeking maintenance; (f) the feasibility 

that the party seeking maintenance can become self-supporting at a standard of living reasonably 

comparable to that enjoyed during the marriage and, if so, the length of time necessary to achieve 

this goal; (g) the tax consequences to each party; (h) any mutual agreement made by the parties 

before or during the marriage; (i) the contribution by one party to the education, training, or 

increased earning power of the other; and (j) such other factors as the court may in each 

individual case determine to be relevant.

(continued)
No. 2020AP1802

9

¶21 Once maintenance is ordered, the circuit court may modify the order 

pursuant to WIS. STAT. § 767.59(1c). A party seeking a modification must

“demonstrate that there has been a substantial change in circumstances warranting 

the proposed modification.” Rohde-Giovanni, 269 Wis. 2d 598, ¶30.

¶22 When evaluating a modification motion, the circuit court first 

considers the threshold question of whether the party seeking the modification has 

proven a substantial change in circumstances. Id. The “focus” of this inquiry 

should be on “any financial changes the parties have experienced.” Id.; see also

Gerrits v. Gerrits, 167 Wis. 2d 429, 437, 482 N.W.2d 134 (Ct. App. 1992). “[F]or 

purposes of evaluating a substantial change in the parties’ financial circumstances 

... the appropriate comparison is to the set of facts that existed at the time of the 

most recent maintenance order, whether that is the original divorce judgment or a 

previous modification order.” Kenyon v. Kenyon, 2004 WI 147, ¶27, 277 Wis. 2d 

47, 690 N.W.2d 251.

¶23 If the circuit court finds that there has been a substantial change in

circumstances, it must then determine whether and how maintenance should be 

modified. See id., ¶3. In making this decision, the court “reconsiders the 

[statutory] factors used to arrive at the initial maintenance award” and the “dual 

maintenance objectives of support and fairness.”

5

Id., ¶¶13, 39; see also Rohde-

 

WISCONSIN STAT. § 767.56(1c) has been renumbered from its previous designation as 

WIS. STAT. § 767.26. See 2005 Wisconsin Act 443, § 110. Earlier cases make reference to these 

same factors as the § 767.26 factors. See, e.g., Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶13, 

269 Wis. 2d 598, 676 N.W.2d 452 (citing § 767.26 (1999-2000)).

5

 As the Rohde-Giovanni court noted, “the correct test regarding modification of 

maintenance should consider fairness to both of the parties under all of the circumstances, not 

whether it is unjust or inequitable to alter the original maintenance award.” Rohde-Giovanni, 

269 Wis. 2d 598, ¶32.
No. 2020AP1802

10

Giovanni, 269 Wis. 2d 598, ¶¶28-29; Vander Perren v. Vander Perren, 105 Wis.

2d 219, 230, 313 N.W.2d 813 (1982) (determining that an order terminating 

maintenance was arbitrary because the circuit court did not consider the statutory 

factors). In its analysis, the circuit court needs to take into account only those 

statutory factors that are relevant to the facts presented. DeLaMatter v. 

DeLaMatter, 151 Wis. 2d 576, 586, 445 N.W.2d 676 (Ct. App. 1989).

¶24 We begin our analysis by resolving the parties’ dispute over the 

applicable standard of review. We then turn to Holland’s arguments that there had 

been no substantial change in the parties’ circumstances, and that the circuit court 

should not have terminated maintenance.

A. Standard of Review

¶25 Holland cites Murray v. Murray for the proposition that the 

existence of a substantial change in circumstances is an issue of law reviewed de 

novo. See Murray v. Murray, 231 Wis. 2d 71, 77, 604 N.W.2d 912 (Ct. App.

1999). That may have been a correct statement of the law when Murray was 

decided. However, our supreme court has since clarified that we review a circuit 

court’s determination that there has been a substantial change in circumstances for 

an erroneous exercise of discretion. Rohde-Giovanni, 269 Wis. 2d 598, ¶17; see 

also Cashin v. Cashin, 2004 WI App 92, ¶44, 273 Wis. 2d 754, 681 N.W.2d 255 

(explaining that Rohde-Giovanni changed the standard of review). This same 

standard is applied when reviewing the circuit court’s ultimate decision to modify 

or terminate a previous maintenance award based on the statutory factors and dual 

objectives of maintenance. See Cashin, 273 Wis. 2d 754, ¶¶42-44. “A circuit 

court erroneously exercises its discretion when it fails to consider relevant factors, 

bases its award on factual errors, makes an error of law, or grants an excessive or 
No. 2020AP1802

11

inadequate award.” Rohde-Giovanni, 269 Wis. 2d 598, ¶18. A purported error of 

law by the circuit court in determining maintenance is reviewed de novo. Id., ¶19.

B. Substantial Change in Circumstances

¶26 Having clarified the proper standard of review, we turn to Holland’s 

arguments that the circuit court erred when it determined that Murphy satisfied his 

burden to prove a substantial change in circumstances. We reject each of these

arguments for reasons we now explain.

¶27 Holland argues that the circuit court erred when it considered 

whether circumstances had substantially changed since the date of the divorce. 

She contends that the proper point of comparison was October 2019 because the 

court’s October 2019 order was “the most recent maintenance modification” order. 

According to Holland, the court “converted maintenance from a percentage ... to a 

fixed payment” of $10,000 in May 2018, and then in October 2019, the court

again modified the amount of maintenance to $15,000. Relying on Kenyon, 277 

Wis. 2d 47, she contends that the court was limited to considering whether

circumstances had changed since October 2019. We reject this argument for two 

reasons, either of which is sufficient to resolve this issue.

¶28 First, Holland forfeited this argument by not timely raising it during 

the circuit court proceedings, and we discern no good reason to overlook her 

forfeiture in this case. Holland did not argue at any time prior to the issuance of 

the 2020 judgment that the court was limited to considering financial changes 

since the last interim order. The closest she came to this topic was when she 

asserted the following in her proposed findings of fact and conclusions of law: 

“Whether the analysis compares the parties today to the parties at the time of the 

divorce, or October 25, 2019, when maintenance was last adjusted, Dr. Murphy 
No. 2020AP1802

12

has failed to meet his burden to show a substantial change in his income or plans 

for future employment.” Holland did not advance the argument that the court was 

limited to considering financial changes since October 25, 2019, until after the 

court issued the 2020 judgment, which contained its analysis of changes that had 

occurred since the divorce.

6

¶29 As a general matter, an issue must be properly “raised in the circuit

court to be eligible for review upon appeal.” Schinner v. Schinner, 143 Wis. 2d 

81, 94 n.5, 420 N.W.2d 381 (Ct. App. 1988). The forfeiture rule exists in large 

part so that courts and litigants “have notice of the disputed issues as well as a fair 

opportunity to prepare and address them in a way that most efficiently uses 

judicial resources.” State v. Agnello, 226 Wis. 2d 164, 173, 593 N.W.2d 427 

(1999). The forfeiture rule also prevents “sandbagging” errors—that is, “failing to 

object to an error for strategic reasons and later claiming that the error is grounds 

for reversal.” State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 

727. Without the forfeiture rule, attorneys “might be induced to build in an error 

to ensure access to the appellate court,” notwithstanding their failure to raise the 

issue at trial. Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). As 

stated above, Holland did not raise this argument in her pre-judgment submission.

She advanced it only after the court issued an adverse decision, when she was 

preparing to appeal. The policies underlying the forfeiture rule support its 

application here.

 

6

 Specifically, Holland first raised the argument in a motion for reconsideration of the 

2020 judgment, and then in a motion to stay that judgment.
No. 2020AP1802

13

¶30 Second, even if Holland had not forfeited the argument, we would

conclude that the rule from Kenyon did not limit the circuit court’s consideration 

to financial changes that occurred after the October 2019 order. In Kenyon, there 

had been a previous proceeding in which the circuit court entered a final order 

modifying maintenance, and a party sought a subsequent modification in a second 

proceeding. Kenyon, 277 Wis. 2d 47, ¶¶16-17. In such cases, our supreme court 

explained, “it would be inappropriate to use the facts surrounding the original 

divorce judgment as a baseline for an evaluation of any subsequent substantial 

change” because the court “already found the parties’ original financial 

circumstances to be substantially changed in the first modification proceeding.” 

Id., ¶16. The Kenyon court further explained that, “at a second modification 

proceeding, the operative maintenance award from which relief is sought is 

embodied in the ... latest modification order, which ... was necessarily based on a 

finding of substantial change in circumstances from those existent at the time of 

the original divorce judgment.” Id., ¶17. Plainly, the rule from Kenyon is aimed 

at preventing the relitigation of facts and issues determined in “previous

proceedings.” Id., ¶2.

¶31 Here, by contrast, neither the May 2018 order nor the October 2019 

order constituted a decision in a “previous proceeding” that there had been a 

substantial change in circumstances warranting a modification. Instead, the parties 

requested these interim orders in this proceeding regarding the then-pending 

motions, at a time when the issues raised by Murphy’s motion to modify

maintenance were live and subject to ongoing litigation.

7 As the circuit court later 

 

7

 The May 2018 order was requested by Murphy and the October 2019 order was 

requested by Holland. Neither party challenged the circuit court’s authority to enter the interim 

orders or its exercise of discretion in doing so. See WIS. STAT. § 767.225(1)(d) (providing the 

(continued)
No. 2020AP1802

14

explained, both interim orders had been stop-gap measures that attempted to 

ensure “that the status quo was maintained” until the trial was over and the court 

could issue a decision on Murphy’s motion.

8 When the court issued the October 

2019 order, it unequivocally stated that the order was “a short-term thing,” and 

that it was not making any final adjudication of what maintenance should be. 

Neither of the orders reflected a finding that there has been a substantial change in 

circumstances warranting a modification, and neither order purported to alter the 

arbitrator’s decision that Holland was entitled to half of the parties’ gross income. 

Indeed, as Holland herself asserts in her appellate briefing, the “system” set up by 

the arbitrator to ensure an equal division of income was repeatedly modified 

following the divorce, but “the overall equal division of marital income continued 

from the time of the divorce until the [2020 judgment].” (Emphasis added.)

¶32 Based on the forfeiture rule and our consideration of the merits, we 

reject Holland’s Kenyon-based argument. We conclude that, in issuing the 2020 

 

court in “an action affecting the family” with the authority to temporarily require one spouse to 

pay for the “just and reasonable” maintenance of the other spouse “during the pendency of the 

action”).

8

 The circuit court’s explanation is well supported by the record. When the court entered 

the May 2018 order, it explained that it did not “want to have to be dealing with” the parties’ 

accounting arguments “every time [Murphy’s] income fluctuates,” that the “cleanest thing to do” 

was to order a set amount per month, and that “that’s what we’ll do until we can sort out all the 

figures.” The court set that amount at $10,000.

Then, during a status conference on October 25, 2019, Holland asked for this amount to 

be increased. At that time, her attorney correctly noted the following: that, despite the May 2018 

order, “the original [arbitration award] stands”; that it had been “adjusted” in May 2018 based on 

Murphy’s “substantial reduction in income and loss of jobs”; and that the intent of the May 2018 

order had been to “split[] the income equally.” Holland’s attorney argued that $10,000 had been 

“half of the income” when the May 2018 order was entered, but that Holland should not be “stuck 

with” $10,000 per month after Murphy’s income increased, and that Murphy’s payments to 

Holland should be increased “to put him at 50/50.” The circuit court accepted this position, and it 

entered the October 2019 order that Holland relies on in this appeal.
No. 2020AP1802

15

judgment, the circuit court properly considered whether there had been a 

substantial change in circumstances since the time of the divorce.

¶33 Holland next argues that, even if the circuit court properly 

considered whether the parties’ circumstances had changed since the divorce, the 

court erred as a matter of law because the changes it considered were 

“foreseeable” at the time of the divorce and were not financial in nature. See

Rosplock v. Rosplock, 217 Wis. 2d 22, 35-36, 577 N.W.2d 32 (1998) (concluding

that rental income derived from a new investment property did not constitute a

substantial change in circumstances because the parties “envisioned” that both 

spouses would invest funds obtained in the property division at the time of the 

divorce); Jantzen v. Jantzen, 2007 WI App 171, ¶¶15, 17, 21-22, 304 Wis. 2d 

449, 737 N.W.2d 5 (concluding that the circuit court erred in terminating a 

limited-term maintenance award based on the aging of the parties, the termination 

of child support payments, and other circumstances “anticipated” at the time of the 

divorce).

¶34 To support her argument that the circuit court based its substantial 

change decision on foreseeable circumstances, Holland focuses on one specific 

paragraph in the 2020 judgment, which states:

I conclude that there has been a substantial change 

of circumstances warranting the termination of 

maintenance. Dr. Murphy will be 65 years old. He should 

not be required to work multiple full-time jobs to support 

Ms. Holland, who is living the retired life in a beautiful 

Mexican condominium. The children are grown and the 

parties have virtually reduced all of the debt from the 

marriage, save some modest [educational] loans.
No. 2020AP1802

16

According to Holland, “[t]he parties and their children aging were undoubtedly 

foreseen at the time of divorce,” and the reduction of the marital debts was a 

foreseeable direct result of the 2010 and 2012 arbitration orders.

¶35 We agree with Holland that at least two considerations noted in this 

paragraph were foreseeable at the time of the divorce—that Murphy would age 

and the children would age. However, the circuit court issued a sixteen-page 

decision, which makes multiple findings of fact that compared the parties’

financial circumstances at the time of the divorce with their circumstances at the 

time of the 2020 judgment. In addition, even if a circuit court’s exercise of 

discretion is inadequately expressed, we will generally search the record for 

reasons to sustain the court’s discretionary decision. See Schauer v. DeNeveu 

Homeowners Ass’n, 194 Wis. 2d 62, 71, 533 N.W.2d 470 (1995). Here, when we

examine the 2020 judgment in its entirety together with the record, we find ample 

reasons to sustain the court’s decision, as we now explain.

¶36 First, Murphy’s 2015 motion and supplemental motions to modify 

maintenance alleged several changes in his circumstances. One notable alleged 

change was that Murphy lost his Medicare billing privileges. As a result he lost 

his primary source of income and his medical license was revoked in at least one 

state. Although some fluctuations in income were foreseeable given Murphy’s

line of work, his on-and-off difficulties with his billing privileges and licensure 

and resulting reduction of income was an unforeseen change in his financial 

circumstances.

¶37 Second, the circuit court’s findings of fact demonstrate that both

parties experienced substantial and unforeseeable changes in their assets since the 

divorce. For Murphy’s part, he had accrued significant debts that encumbered his 
No. 2020AP1802

17

limited assets—largely due to his unwise investment choices. The court found 

that, as a result of his poor financial decision making, the “unworkability” of the 

system set up by the arbitrator, and the fact that Holland’s allocation of money 

from the joint account was “not properly audited,” Murphy “found himself in 

endless loops of arrearages from faulty data over which he had no control.” By 

2020, he had been required to transfer all but one of his retirement accounts to 

Holland to satisfy his maintenance arrearages. For Holland’s part, she had

acquired hundreds of thousands of dollars in assets from Murphy’s retirement 

funds—a result that was not foreseeable at the time of divorce. Based on our 

review of the record, the court’s findings about unforeseeable shifts in the parties’

retirement savings are not clearly erroneous.

¶38 For these reasons, we reject Holland’s argument that the parties 

could have reasonably foreseen the changes in their financial circumstances when

the divorce judgment was entered. We conclude that the circuit court did not err 

when it relied on these unforeseeable changes to determine that there had been a 

substantial change in circumstances.

¶39 We now briefly address two arguments that Holland makes about 

substantial changes in circumstances that we have not already directly addressed 

in our discussion above. Holland argues that there was no substantial change in 

circumstances because Murphy’s annual income at the time of the 2020 judgment 

was $560,000—the same as when the circuit court issued the October 2019 order,

and higher than what it was at the time of the divorce. This argument is not 

persuasive because it is founded on a myopic focus on income as the sole measure 

of a party’s financial circumstances. Even if Holland is correct that Murphy’s 

income was higher when the court made its determinations in 2020 than it was 

when they were divorced, the parties’ relative savings are also a pertinent aspect of 
No. 2020AP1802

18

their financial circumstances. Here, as discussed above, the court based its 

substantial change decision on a comprehensive review of the parties’ income,

savings, and other considerations, and its decision was reasonable under the 

circumstances.

¶40 Holland also argues that Murphy was himself to blame for many of 

his financial woes—that he squandered his income on penny stocks when he 

should have been using it to pay maintenance, resulting in the “endless loops of 

arrearages,” and that his loss of retirement accounts to Holland “reflects his 

repeated violations of his obligations” under the 2010 divorce judgment and the 

2012 arbitration award. According to Holland, a “loss of assets due to 

contemptuous conduct cannot justify a termination of maintenance.”

¶41 To the extent that Holland intends to argue that Murphy’s loss of 

assets cannot constitute a substantial change in circumstances as a matter of law, 

we reject that argument. Holland’s characterization of the underlying facts is not 

fully consistent with the circuit court’s findings of fact, which, again, are not 

clearly erroneous. And above all else, Holland cites no legal authority to support 

the proposition that courts are obligated to consider who is at fault for a party’s 

reduced financial circumstances as the determinative factor when deciding 

whether there has been a substantial change of circumstances. Instead, her 

argument appears to be more appropriately aimed at the court’s discretionary 

determinations regarding the support and fairness objective of maintenance, which 

we discuss below.

¶42 For all of these reasons, we conclude that the circuit court did not 

erroneously exercise its discretion when it determined that there was a substantial 

change in circumstances.
No. 2020AP1802

19

C. Warranting Termination of Maintenance

¶43 As discussed above, once the circuit court determines that there has 

been a substantial change in circumstances, it then considers whether that change 

warrants modification or termination of maintenance. When making this 

determination, the circuit court “reconsiders” the factors enumerated in WIS. STAT.

§ 767.56(1c) and the dual support and fairness objectives of maintenance. 

Kenyon, 277 Wis. 2d 47, ¶¶13, 39.

¶44 Here, the circuit court addressed each of the WIS. STAT. § 767.56(1c)

factors in support of its decision to terminate maintenance,

9

and it also made other

findings that it determined were relevant to the parties’ circumstances and the dual

objectives of maintenance. See § 767.56(1c)(j) (permitting the court to consider

“such other factors as the court may in each individual case determine to be 

relevant”). We now recount a few of the court’s findings, which provide 

reasonable support for its decision.

¶45 The circuit court found that almost all of the parties’ marital debts 

had been paid. At the same time, however, the court found that the parties were

 

9

 Applying the WIS. STAT. § 767.56(1c) factors to the evidence presented, the circuit 

court here made the following specific findings that we now summarize: (a) the parties had a 

long-term marriage; (b) both were at or near retirement age and in good health; (c) initially, the 

marital assets were equally divided, but both parties dissipated those assets; Holland had been

living a lavish lifestyle and had not kept up with her tax obligations and Murphy repeatedly made 

bad investments; (d) both parties were well-educated; (e) in spite of Holland’s education, she 

never tried to find employment after the divorce; as of 2020, both parties were at retirement age 

so it was reasonable that they could choose not to work; (f) neither party was able to maintain the 

standard of living at which they lived during the marriage; (g) any maintenance and any interest 

thereon was deductible to Murphy and includible to Holland; (h) neither party raised any 

evidence related to any mutual agreement made before or during the marriage; (i) the evidence 

showed that Murphy paid his own way through medical school; however, given Murphy’s 

rigorous hours, Holland contributed to his earning ability by taking care of the children and the 

home.
No. 2020AP1802

20

unable to maintain the standard of living they had during their marriage. That 

standard had been “built on a house of cards” and had been unsustainable postdivorce. Following the divorce, Murphy continued to squander money through 

bad investments, and Holland lived beyond her means and failed to keep up with 

her own debts and taxes.

¶46 Regarding the system set up by the arbitrator, the circuit court found 

that it had proven to be unworkable. It was unworkable in part because it was too 

complicated, in part because it had not been properly audited, and in part because 

both parties struggled to manage their finances.

¶47 Additionally, the circuit court found that Holland’s total control over 

Murphy’s finances and the failures of the annual “true-up” process resulted in 

Murphy “not receiving much of the money that he earned working thousands of 

hours every year.” More specifically, Murphy found himself in “endless loops of 

arrearages,” the result of which made his income insufficient to meet his living 

expenses, much less to allow him to save for future events. In 2015, for example, 

if Murphy had fully paid his maintenance obligations and arrearages, the court 

found he would only have $22,798 in net disposable income for the year.10 This 

 

10

 Holland disputes this calculation as the product of “mathematical errors” by the circuit 

court, but we are not persuaded that the court’s finding is clearly erroneous. Specifically, Holland 

argues that the court “double counted” $44,253 that Murphy used to pay Holland’s share of 

marital debts, and that $62,100 of the amount were arrearages that Murphy ultimately paid 

through a transfer of assets rather than income. We have reviewed the record items Holland cites, 

and it is not clear that they support Holland’s assertion of error, mathematical or otherwise. In his 

response brief, Murphy provides a detailed counterargument regarding these line items, and 

Holland does not address Murphy’s counterargument or the purportedly erroneous calculations in 

any way in her reply brief. Accordingly, we deem her argument on that point conceded. See

United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 

(appellant’s failure to respond in reply brief to an argument made in response brief may be taken 

as a concession).
No. 2020AP1802

21

amount would have been almost entirely absorbed by the mortgage payment on his 

Door County house, and he would have had only $1,510 to cover “all other living 

expenses not controlled by Ms. Holland.”

¶48 The circuit court found that Holland had received “substantial”

maintenance from Murphy since the parties divorced in 2010.

11 Additionally, as 

discussed above, a number of retirement accounts that had been awarded to 

Murphy in the divorce were later transferred to Holland, and Holland had received

“other financial benefits” from Murphy as well.

12 Holland had purchased a “highend” condominium in Mexico, where she was living “the retired life.” Although 

she had already spent many of the funds she had received from Murphy,

13 she had 

$600,000 in retirement savings and would soon be eligible to receive social 

security income of at least $1,400 per month. The court determined that, after 

Murphy paid the additional $385,148.50 in arrearages that the parties stipulated he 

 

11

 The circuit court calculated the total amount of maintenance payments through 2019 

as $1,689,434. Holland asserts that the correct calculation is $1,409,632. According to Holland, 

the $234,244 difference was classified as maintenance on her taxes, but in fact it was a payment 

by Murphy representing Holland’s share of the parties’ marital debts. We assume without 

deciding that Holland’s description of this item is correct but, even so, Holland has not shown 

that she was prejudiced by the court’s calculation of total maintenance payments. That is, we are 

not persuaded that the court’s outcome would have been any different had it determined that 

Holland received a total of $1,409,632 rather than $1,689,434 in maintenance payments since 

2010. See WIS. STAT. § 805.18(2); Martindale v. Rupp, 2011 WI 113, ¶32, 246 Wis. 2d 67, 629 

N.W.2d 698 (reversal may be unwarranted unless there is a reasonable possibility that an error 

contributed to the outcome of the proceeding).

12 The circuit court calculated the value of the other financial benefits (not including the 

retirement accounts) as $373,562. Holland does not challenge this finding.

13

 Holland takes issue with the circuit court’s description of her lifestyle as “lavish.” She 

asserts that, “[w]hen compared to Dr. Murphy’s spending, the facts at trial show that 

Ms. Holland’s spending was not ‘lavish.’” Whether or not that comparison is apt, we agree with 

Holland it is ultimately Holland’s decision how best to use her income. Nevertheless, we 

conclude that the court did not err when it stated that some of her financial problems could be 

alleviated if she scaled back on her expenditures. See Rohde-Giovanni, 269 Wis. 2d 598, ¶43.
No. 2020AP1802

22

owed, Holland “should be able to be self-supporting” with the social security 

income, the retirement funds, an anticipated inheritance from her mother,14 and her 

lower cost of living in Mexico.

¶49 Meanwhile, the circuit court found that, despite working multiple 

full-time jobs, Murphy had “very limited assets.” The court found that he was 

unable to save for his future retirement and pay maintenance at the same time. 

The court concluded that, under the circumstances, Murphy “should not be 

required to work multiple full-time jobs” to support Ms. Holland. After his 

maintenance obligations were terminated, Murphy would have the option to 

continue to work multiple jobs to build up funds for retirement, or to reduce his 

hours if he chose to do so.

¶50 Having carefully reviewed the record, we conclude that the circuit 

court did not erroneously exercise its discretion by terminating maintenance when 

Murphy turned sixty-five. As discussed above, the court considered all of the 

statutory factors that it determined to be relevant and made the above findings of 

fact, which are not clearly erroneous. The court considered Holland’s need for

support when it considered her ability to be self-supporting. It considered fairness

to both parties when it considered their contributions to the marriage, their relative 

 

14

 Holland argues that the circuit court erred in taking into account her expectation that 

she would be a beneficiary of her mother’s estate at some point in the future. Yet, the case 

Holland cites in support of her argument is inapt. See Selchert v. Selchert, 90 Wis. 2d 1, 15, 280 

N.W.2d 293 (Ct. App. 1979) (explaining that, in the context of property division, an expectation 

that a party would receive a future inheritance was “too remote for consideration”). She argues 

that there was no testimony in the record to support the court’s finding, but Murphy’s response 

brief cites to such testimony. And again, even if we were to assume that the circuit court should 

not have considered Holland’s potential inheritance when she found that Holland would be able 

to support herself, we are not persuaded that the court would have reached any different outcome 

had it not considered Holland’s own testimony on that point. See WIS. STAT. § 805.18(2); 

Martindale, 246 Wis. 2d 67, ¶32.
No. 2020AP1802

23

savings, and the unfairness of forcing Murphy, through an unworkable system, to 

continue to generate income in an attempt to maintain the unsustainable standard

of living that the parties enjoyed during the marriage. Thus, the decision reached 

was a result of “‘a rational mental process by which the facts of record and law 

relied upon are stated and are considered together for the purpose of achieving a 

reasoned and reasonable determination.’” Rohde-Giovanni, 269 Wis. 2d 598, ¶18 

(quoted source omitted).

¶51 We now address Holland’s arguments to the contrary that are not 

already addressed above. Holland argues that the circuit court did not determine 

that she “could be self-supporting at the marital standard of living” without 

maintenance. Yet, as our supreme court has clarified, this standard is more 

properly stated as “the lifestyle that the parties enjoyed in the years immediately 

before the divorce and could anticipate enjoying if they were to stay married.” 

Hefty, 172 Wis. 2d at 134 (emphasis in original) (citing LaRocque, 139 Wis. 2d at 

36). Here, as discussed above, the circuit court determined that the marital 

standard of living had been built on a house of cards and that neither party could 

sustain that standard of living post-divorce. We discern no error of law or fact and 

no erroneous exercise of discretion.

¶52 Holland also argues that the circuit court erred when it allowed 

Murphy, through his motion to modify maintenance, to relitigate issues that he 

could have but did not challenge through judicial review of the 2010 and 2012 

arbitration awards. According to Holland, because the arbitrator ordered 

maintenance based on a percentage of the parties’ total income, the “system” set 

up by the arbitrator would accommodate ups and downs in income without the 

need for further review. She contends that the court improperly allowed and relied 

on testimony about “the history of the marriage, the relative contributions of the 
No. 2020AP1802

24

parties to the marriage,” and other issues that were “previously litigated at the time 

of the divorce.” As a result, Holland asserts, the court “essentially allowed” 

Murphy to “retry the basis of the original indefinite maintenance award, the equal 

division of all income, and the process established by the arbitrator” to ensure that 

Murphy’s “income was accounted for and the substantial marital debts were paid.”

¶53 We reject this argument for at least two reasons. First, Holland did 

not object to any such evidence on those grounds during the trial.15 State v. 

Mercado, 2021 WI 2, ¶36, 395 Wis. 2d 296, 953 N.W.2d 337 (citing WIS. STAT.

§ 901.03(1) for the proposition that parties must preserve evidentiary objections 

for purposes of appeal). Second, we disagree with the central premise of 

Holland’s argument—that the termination of maintenance amounts to a 

“relitigation” of issues decided in the original divorce judgment and the 2012 

arbitration award. As the case law explains, “maintenance is always subject to 

modification upon a showing of the requisite change in circumstances.” Nichols 

v. Nichols, 162 Wis. 2d 96, 103, 469 N.W.2d 619 (1991); see also Hefty, 172 Wis. 

2d at 138 (explaining that an award of indefinite maintenance at a percentage basis

“is not necessarily permanent” and may be adjusted as the circumstances warrant). 

Indeed, if maintenance has not been previously modified, the court must consider 

the facts at the time of the divorce to determine whether modification is warranted 

based on a change of circumstances since the divorce. Here, the circuit court’s

determinations—that there had been a substantial change in circumstances and that 

the changed circumstances warranted modification—were founded on post-

 

15

 To the contrary, Holland solicited testimony about the history of the marriage and the 

relative contributions of the parties and included pages of facts about those topics in her proposed 

findings of fact and conclusions of law.
No. 2020AP1802

25

divorce events and did not constitute a relitigation of issues decided during the 

divorce.

¶54 Holland also argues that the circuit court erred by terminating

Murphy’s requirement to pay maintenance at age sixty-five because he does not 

have a present plan to retire. Contrary to Holland’s suggestion, the court’s 

decision to terminate maintenance was not based on Murphy’s “hypothetical 

retirement.” It was instead based on the court’s consideration of the WIS. STAT.

§ 767.56(1c) factors and the dual objectives of maintenance. Holland does not cite 

any legal principle that prevented the court from considering Murphy’s need to 

save for a future retirement as part of its reconsideration of the statutory factors

and objectives of maintenance.

¶55 Finally, Holland argues that, “[i]n trying to be fair to Dr. Murphy’s 

retirement needs, the circuit court failed to consider fairness to Mrs. Holland.” 

Holland contends that the evidence shows that Murphy was a principal architect of 

both parties’ financial problems. She further contends that a significant cause of

Murphy’s dwindling retirement savings was that he had been ordered to transfer

retirement accounts to Holland to satisfy substantial maintenance arrearages and 

contempt orders. She asserts that “[t]here is no Wisconsin case law which 

supports a termination of an indefinite maintenance award” on the basis that “a 

contemnor needs to save money to replace assets lost due to his noncompliance 

with court orders.” She further argues that, having shared in “the debt incurred to 

cover Dr. Murphy’s marital waste,” she should “continue to share in [his] 

earnings,” which reflect her significant “contributions to his earning capacity.” 

Holland cites several cases which stand for the general proposition that a court 

must be fair to both parties and not leave one party with a windfall while the other
No. 2020AP1802

26

party is forced to live well below the previous marital standard of living they once 

enjoyed.

¶56 Regardless of the merits of Holland’s arguments about fairness, she

advanced these same arguments during the circuit court proceedings and the court 

ultimately rejected them. The circuit court, not this court, is in the best position to 

weigh competing considerations about support and fairness, and the court did so 

here after an exhaustive eight-day trial. Holland has not identified any legal error

in the court’s reasoning, nor has she persuaded us that the court erroneously 

exercised its discretion. See Rohde-Giovanni v. Baumgart, 2003 WI App 136, ¶7 

n.1, 266 Wis. 2d 339, 667 N.W.2d 718, affirmed by Rohde-Giovanni, 269 Wis. 2d 

598 (discussing the standard of review of maintenance decisions).

¶57 To the extent that Holland makes any other arguments that we have 

not explicitly addressed, we reject them under our standard of review. Boiled 

down, Holland’s arguments reflect her dissatisfaction with the circuit court’s 

determinations as to the weight and credibility of the evidence and the court’s 

balancing of the WIS. STAT. § 767.56(1c) factors in light of the support and 

fairness objectives of maintenance. Holland’s dissatisfaction with the court’s 

decision is not grounds for this court to overturn it as an erroneous exercise of 

discretion.

¶58 For all the above reasons, we conclude that the circuit court did not 

erroneously exercise its discretion when it terminated maintenance.

II. Murphy’s Cross-Appeal Regarding Attorney Fees

¶59 In his cross-appeal, Murphy asserts that the circuit court erred when 

it ordered him to contribute $102,505 toward Holland’s attorney fees in addition to 
No. 2020AP1802

27

the $100,000 in fees he agreed to pay to purge his contempt. In most matters, 

Wisconsin follows the “American Rule,” and parties are responsible for paying 

their own attorney fees. See Estate of Kriefall v. Sizzler USA Franchise, Inc., 

2012 WI 70, ¶72, 342 Wis. 2d 29, 816 N.W.2d 853. However, WIS. STAT.

§ 767.241(1)(a) provides broad authority for attorney fee awards in actions 

affecting the family. Pursuant to that statute, a circuit court can, “after considering 

the financial resources of both parties,” order either party “to pay a reasonable 

amount for the cost to the other party of maintaining or responding to an action 

affecting the family and for attorney fees.” A circuit court may also award 

attorney fees in a family law action based on the doctrine of “overtrial.” 

Ondrasek v. Ondrasek, 126 Wis. 2d 469, 484, 377 N.W.2d 190 (Ct. App. 1985).

¶60 We review a circuit court’s attorney fee award for an erroneous

exercise of discretion. Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 747, 

349 N.W.2d 661 (1984). We do not substitute our judgment for that of the circuit 

court but instead examine the record in assessing whether the court’s 

determination is based on the appropriate legal principles and the facts of record. 

See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 987-88, 542 N.W.2d 148 

(1996).

¶61 Before addressing Murphy’s arguments, we provide additional 

background that is relevant to the cross-appeal. As stated above, Holland and 

Murphy both sought contempt sanctions against each other for allegedly violating 

arbitration and circuit court orders related to maintenance. For her part, Holland 

filed several motions for contempt, each one requesting “the costs and fees [she] 

incurred due to [Murphy’s] contempt.”
No. 2020AP1802

28

¶62 Then, on July 9, 2019, during the sixth day of the trial, the parties

informed the circuit court that they had entered into an agreement resolving the 

contempt motions. As Holland’s counsel explained on the record, the parties 

stipulated that Murphy was in contempt and, further, that he could purge his

contempt, in part, by paying $100,000 of Holland’s attorney fees:

[T]he parties stipulate that Dr. Murphy is in contempt [as to 

certain maintenance and arrearage payments]. The parties 

stipulate that $100,000 is added to the [total arrearage 

amount stipulated to by the parties,] bringing that total to

$385,148.50, and that $100,000 is for attorney fees and it is 

not taxable to [Holland] or deductible to Dr. Murphy. 

Accordingly, all other claims to attorney fees by both 

parties are dropped ....

....

We also agreed that with respect to the contempt, 

the sole remedy for the contempt is the $100,000 that’s 

being added to the arrearage. There is no request for jail 

time, there is no request for any other sanction. The only 

sanction is the $100,000 and that’s it. So basically, it’s a 

contempt and he purges the contempt by adding it to the 

arrearage and that resolves it.

The parties’ agreement was later memorialized in a written stipulation. That 

agreement provided, in pertinent part, that “[a]ll pending contempt motions are 

resolved,” and that “[a]ll outstanding but unresolved claims for attorney’s fees are 

resolved and fully incorporated into [the new arrearage balance].”

¶63 Months later, after the trial was over, the parties submitted proposed 

findings of fact and conclusions of law. In her post-trial submission, Holland did 

not ask the circuit court to order Murphy to pay additional fees for his 

“contemptuous conduct.” She did, however, argue that she had incurred 

significant legal fees as a result of Murphy’s “overtrial” and “unreasonable use of 

the legal process,” and she asked the court to take those fees into account when 
No. 2020AP1802

29

determining how the arrearage would be paid and “the term of maintenance going 

forward.”

¶64 When the circuit court issued the 2020 judgment terminating

maintenance, the court also determined that it would order Murphy to make an 

additional contribution toward Holland’s attorney fees. Specifically, the court 

determined that Murphy’s unreliability with respect to maintenance payments 

caused the “multiple court hearings and the termination of the arbitrator,” and that

“the legal fees incurred by Holland are substantial and will likely eat away at her 

ability to live.” The court ordered Holland to “submit an accounting of fees 

incurred not covered by the contempt stipulation” and indicated that it would

determine an amount that Murphy would have to pay directly to Holland’s 

attorney each month.

¶65 Holland then submitted an itemized statement of her attorney fees. 

Her submission purported to separate the fees that had been related to contempt 

issues from those that had not, and requested approximately $218,000 in “Fees and 

Costs not related to Contempt” that Holland had incurred since January 1, 2015.

After both parties submitted additional briefing, the circuit court explicitly found 

that Holland’s attorney fees were reasonable. Nevertheless, the court explained 

that, at the time it ordered attorney fees “as part of the judgment,” it had 

“envisioned” that the fee award would cover only those fees incurred after the 

parties’ July 9, 2019 stipulation. According to the court’s calculations, Holland 

had incurred $102,505 in fees after July 9, 2019, and it ordered Murphy to pay that 

amount. Although Murphy challenges the court’s authority to enter the award and 

its exercise of discretion in doing so, neither party challenges the court’s 

calculation.
No. 2020AP1802

30

¶66 We pause to observe that the circuit court did not expressly state 

whether it was awarding the fees pursuant to its authority under WIS. STAT.

§ 767.241 or as a sanction for overtrial. On appeal, the parties disagree about the 

basis for the court’s award. Although we proceed with the assumption that the 

court made the fee award under § 767.241, we now briefly address Holland’s 

arguments about overtrial.

¶67 Holland asserts that the circuit court awarded fees based on 

Murphy’s overtrial. If accurate, this assertion would be significant. This is 

because, when awarding fees under § 767.241(1)(a), a circuit court must consider 

and make findings about the reasonableness of the fee, the receiving party’s need 

for contribution, and the paying party’s ability to pay. Johnson v. Johnson, 199 

Wis. 2d 367, 377, 545 N.W.2d 239 (Ct. App. 1996). By contrast, when awarding 

fees based on overtrial, a circuit court is not required to consider the respective 

parties’ need or ability to pay. See Ondrasek, 126 Wis. 2d at 484.

¶68 Here, upon our review of the record, we cannot conclude that the 

circuit court based its fee award on the overtrial doctrine. Although Holland 

mentioned overtrial in her post-trial submissions, the court did not expressly 

invoke that doctrine in its judgment and subsequent order. Nor did it make 

findings that would be required to support an award based on overtrial. See id.

(providing that the overtrial doctrine may be invoked in family law cases when 

one party’s unreasonable approach to litigation causes the other party to incur 

extra and unnecessary fees). The court mentioned that Murphy had been 

“unreliable” with respect to maintenance payments, but it did not discuss his 

approach to litigation.
No. 2020AP1802

31

¶69 We now turn to Murphy’s primary arguments regarding the 

application of WIS. STAT. § 767.241. Murphy contends that the circuit court’s 

order was contrary to the parties’ July 9, 2019 stipulation. He also contends that 

the court did not make findings necessary to justify its order, and that the findings 

it did make were clearly erroneous. We address these arguments in turn.

A. The Stipulation

¶70 Murphy argues that the circuit court was without legal authority to 

award additional fees beyond the $100,000 in fees agreed to in the July 9, 2019 

stipulation. He contends that, in resolving “all” claims for attorney fees, the 

stipulation at issue unambiguously divested the court of its broad authority under 

WIS. STAT. § 767.241(1)(a) to require Murphy to pay any additional amount of 

Holland’s attorney fees. The meaning of a stipulation is generally a question of 

law reviewed de novo. Jalovec v. Jalovec, 2007 WI App 206, ¶10, 305 Wis. 2d 

467, 739 N.W.2d 834.

¶71 Attorney fees are a type of remedy available for contempt of court. 

Benn v. Benn, 230 Wis. 2d 301, 311, 602 N.W.2d 65 (Ct. App. 1999). The 

stipulation at issue in this case resolved the parties’ competing contempt motions, 

and also addressed “all outstanding but unresolved claims for attorney’s fees.” 

(Emphasis added.) The circuit court interpreted this language to mean that all 

claims for fees incurred as of the date the parties entered this stipulation were 

resolved,

16 but not that the court was precluded from requiring Murphy to pay fees 

 

16

 Holland does not appeal the fee award and, therefore, she has not preserved any 

challenge to the circuit court’s decision not to award any attorney fees that she had incurred up 

through July 9, 2019.
No. 2020AP1802

32

that Holland incurred after that date. We agree with this interpretation. In the 

context of debts, the word “outstanding” is commonly understood to mean debts 

that have already been incurred—that is, those debts that “continue[]” to exist and 

remain “unpaid.” Outstanding, https://www.meriam-webster.com/dictionary/

outstanding (last visited Nov. 30, 2021). We therefore agree that the stipulation

resolving “all outstanding but unresolved claims for attorney’s fees” did not 

prevent the court from entering a fee award under § 767.241(1)(a).

¶72 Murphy cites Ceria M. Travis Academy v. Evers, 2016 WI App 86, 

¶18, 372 Wis. 2d 423, 887 N.W.2d 904, for the proposition that parties to litigation

can, by stipulation, curtail the circuit court’s statutory authority. We have no 

reason to disagree with this general proposition, but we conclude that it does not 

apply here. To the extent that the parties intended to curtail the court’s authority 

under WIS. STAT. § 767.241(1)(a), we would expect them to have used explicit

language that unambiguously expressed that intent. As discussed above, the 

parties did not do so when they entered the stipulation at issue in this case. 

Therefore, Murphy’s reliance on Ceria M. Travis Academy is inapt.

B. The Court’s Exercise of Discretion Under WIS. STAT. § 767.241(1)(a)

¶73 We now address Murphy’s argument that the circuit court 

erroneously exercised its discretion. As stated above, when awarding fees under 

WIS. STAT. § 767.241(1)(a), a court must consider the reasonableness of the fee,

the receiving party’s need for contribution, and the paying party’s ability to pay. 

Johnson, 199 Wis. 2d at 377.

¶74 Here, the circuit court reviewed an itemized billing statement and

expressly found that the fees charged by Holland’s attorneys were “reasonable.” 

Again, we review this determination for erroneous exercise of discretion. 
No. 2020AP1802

33

Standard Theatres, Inc., 118 Wis. 2d at 747. We give deference to the circuit 

court’s decision because it witnessed first-hand the quality of the service rendered 

by counsel and is familiar with local billing norms. Id.; see also Tesch v. Tesch, 

63 Wis. 2d 320, 334-35, 217 N.W.2d 647 (1974).

17

¶75 Murphy makes various assertions in support of his argument that the 

fees charged by Holland’s attorneys were unreasonable, but none are persuasive. 

Among other things, Murphy takes issue with Holland’s use of a “team of 

pedigreed attorneys,” the billing rate charged by the lead attorney and associates 

on Holland’s case, and the amount of detail provided in the billing descriptions, 

and he asserts that the total bill “shock[s] the conscious.” However, the circuit 

court, having observed the eight days of trial, multiple status conferences between 

trial dates, and the parties’ respective approaches to litigation, was not persuaded 

by Murphy’s arguments. The court’s determination that Holland’s attorney fees 

were reasonable is supported by the lengthy and fact-intensive proceedings in this 

case as well as the billing information provided to the court. Murphy may 

disagree with the court’s determination and Holland’s approach to litigation, but

those are not valid reasons to upset the court’s exercise of discretion in awarding

additional attorney fees.

 

17

 On appeal, Murphy argues that appellate courts are in “as good a position as the trial 

court to assess the reasonableness of the fees” and therefore should not give deference to a circuit 

court’s reasonableness determination. To be sure, some earlier cases suggested that, as part of its 

inherent supervisory power over the practice of law, our supreme court “may independently 

review the reasonableness of an attorney fee award.” First Wis. Nat. Bank v. Nicolaou, 113 Wis. 

2d 524, 537, 335 N.W.2d 390, 396 (1983); see also Herro, McAndrews & Porter, S.C. v. 

Gerhardt, 62 Wis. 2d 179, 184, 214 N.W.2d 401 (1974); Theuerkauf v. Schnellbaecher, 64 Wis. 

2d 79, 93, 218 N.W.2d 295 (1974); Thuot v. Fasting, 260 Wis. 79, 86, 49 N.W.2d 906 (1951); 

Touchett v. E Z Paintr Corp., 14 Wis. 2d 479, 488, 111 N.W.2d 419 (1961). However, this is no 

longer the law. In Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 747, 349 N.W.2d 661 

(1984), our supreme court clarified that the correct standard of review is erroneous exercise of 

discretion.
No. 2020AP1802

34

¶76 Murphy directs us to Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 

WI 112, ¶25, 275 Wis. 2d 1, 683 N.W.2d 58, which identifies factors that guide 

circuit courts in assessing the reasonableness of attorney fees. See also WIS.

STAT. § 814.045.18 Although it may have been better practice for the court to

explain its reasonableness determination with specific reference to these factors,

we are nevertheless satisfied that the court appropriately exercised its discretion in 

determining that the fees charged by Holland’s attorneys were reasonable.

¶77 As noted above, in addition to making a reasonableness

determination, the circuit court must also consider the needs of the party receiving 

the attorney fee award and the other party’s ability to pay. Balaam v. Balaam, 52 

Wis. 2d 20, 31-32, 187 N.W.2d 867 (1971) (explaining that an award of attorney 

fees under WIS. STAT. § 767.225 is not warranted if “the [receiving party] is able 

to pay [their] own attorney out of income or assets,” or if “the [paying party] does 

not have the ability to pay”). The needs of the payee are ordinarily determined by 

 

18

 The factors set forth in Kolupar are summarized as: (1) the time and labor required, 

the novelty and difficulty of the questions involved, and the skill requisite to perform the legal 

service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular 

employment will preclude other employment by the lawyer; (3) the fee customarily charged in the 

locality for similar legal services; (4) the amount involved and the results obtained; (5) the time 

limitations imposed by the client or by the circumstances; (6) the nature and length of the 

professional relationship with the client; (7) the experience, reputation, and ability of the lawyer 

or lawyers performing the services; and (8) whether the fee is fixed or contingent. Kolupar v. 

Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶25, 275 Wis. 2d 1, 683 N.W.2d 58. We note that 

the standard stated in Kolupar has been changed by statute. WISCONSIN STAT. § 814.045(1), 

enacted in 2011, says that “in any action involving the award of attorney fees ... or involving a 

dispute or the reasonableness of attorney fees, the court shall, in determining whether to award 

attorney fees and in determining whether the attorney fees are reasonable,” consider a list of 

fifteen factors, which are similar to but not identical to the factors noted in Kolupar.

To the extent that Murphy argues that it was unreasonable for the circuit court to award 

Holland attorney fees because Murphy was the prevailing party, we expressly reject that 

argument. WISCONSIN STAT. § 767.241 provides that a fee award may be made “to either party,” 

and does not limit the court’s authority to award fees only to those parties that have prevailed.
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the receiving party’s assets and income, earning capacity, age, health, special 

needs and the special needs of the children, if any, and their customary station in 

life. Hirth v. Hirth, 48 Wis. 2d 491, 180 N.W.2d 601 (1970). The ability of the 

other spouse to pay is usually determined by their income, assets, debts, age, and 

health. Id.

¶78 In this case, the circuit court expressly determined that Holland had 

a need for Murphy to contribute toward her attorney fees. As the court explained, 

“the legal fees incurred by Holland are substantial and will likely eat away at her 

ability to live.” Despite Murphy’s assertions to the contrary, the obvious 

interpretation of this finding is that, now that maintenance has been terminated, 

Holland would be at risk of not being able to support her living expenses if she

had to use her savings to pay all of her “substantial” attorney fees.

¶79 To the extent that Murphy is arguing that the record does not support

this finding or that it contradicts other parts of the circuit court’s judgment, we 

disagree. We are satisfied that the court considered Holland’s age, health, prior 

income, assets, earning capacity, and “customary station in life” before ordering

Murphy to pay a portion of her attorney fees. Indeed, the court made findings on 

those subjects in other sections in the 2020 judgment and, as stated above, the 

court’s findings in its written judgment are supported by the record. We conclude 

that the circuit court did not err when it determined that Holland needed assistance 

paying her attorney fees.

¶80 By contrast, the circuit court did not make any express finding 

regarding Murphy’s ability to contribute toward Holland’s attorney fees. “Failure 

by the [circuit] court to make specific findings of fact is not necessarily reversible 

error.” Jacobson v. American Tool Companies, Inc., 222 Wis. 2d 384, 394-95, 
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36

588 N.W.2d 67 (Ct. App. 1998) (citing Hochgurtel v. San Felippo, 78 Wis. 2d 70, 

86, 253 N.W.2d 526 (1977)). On the contrary, “[w]e assume the court implicitly 

made those findings necessary to support its decision, and we accept those implicit

findings if they are supported by the record.” Avon v. Oliver, 2002 WI App 97, 

¶23, 253 Wis. 2d 647, 644 N.W.2d 260. When a court fails to expressly make a 

necessary finding, we will affirm the court’s decision if the necessary findings are

clearly supported by the record, reverse the court’s decision if a necessary finding 

is not so supported, or remand to the court to make additional findings. Jacobson, 

222 Wis. 2d at 394-95 (citing Chuck Wagon Catering, Inc. v. Raduege, 88 Wis.

2d 740, 749, 277 N.W.2d 787 (1979)).

¶81 Here, it is not evident from the circuit court’s decision that it actually 

considered Murphy’s ability to pay. Moreover, there is some tension—at least on 

the surface—between the findings the court made in support of its decision to 

terminate maintenance and a hypothetical finding that Murphy had the ability to 

contribute $102,505 toward Holland’s attorney fees. As discussed above, the 

court determined that, despite annual income of $560,000 at the time of the 

divorce, Murphy had “very limited assets” which were encumbered by significant 

debts, and that he would be unable to save for retirement and, at the same time, 

continue to make maintenance payments. Moreover, shortly after the court issued 

the 2020 judgment but before the court issued its subsequent order on fees, 

Murphy represented that he had once again lost his Medicare billing privileges, 

which may have affected his ability to generate income.

¶82 In so stating, we do not suggest that the circuit court could not have 

reasonably determined that Murphy did have an ability to pay. Nor do we suggest 

that the court could not do so on remand. We merely conclude that, under the 

circumstances, absent any express finding from the court, and given the potential 
No. 2020AP1802

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tension with the findings that the court did make, we are unable to conclude that 

the circuit court implicitly found that Murphy had an ability to pay.

¶83 For all of these reasons, we reverse the portions of the 2020 

judgment and the subsequent order pertaining to the attorney fee award and 

remand to the circuit court for further consideration of the attorney fee issue. In 

the interest of assisting the court in streamlining the proceedings on remand, we 

offer the following guidance. Nothing in this opinion should be read to preclude 

the court from awarding $102,505 (or another amount) in attorney fees. Nor 

should this opinion be read to circumscribe the court’s authority to conduct further 

proceedings as it may see fit to resolve the attorney fee issue. Instead, the court 

may consider whether, in its judgment, it would be appropriate to take new 

evidence or to decide this issue based on evidence and submissions that are 

already in the record, taking argument from the parties on this point as it 

determines is appropriate.19

CONCLUSION

¶84 In sum, we reverse the portions of the circuit court’s 2020 judgment 

and the subsequent order pertaining to the attorney fee award and remand to the 

circuit court for further consideration of the attorney fee issue and to make any 

findings necessary to support its decision. All other aspects of the circuit court’s 

judgment and order are affirmed.

 

19

 To the extent that either party attempts to make any other arguments on appeal, we 

reject them as undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. 

App. 1992).
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By the Court.—Judgment and order affirmed in part; reversed in part

and cause remanded with instructions.

Not recommended for publication in the official reports.