author: NETTESHEIM, EJ.

text:
    Joseph J. Jares, III, M.D. and Susan M. Jares, Plaintiffs, v. Peter F. Ullrich, M.D. and Cari Ullrich, M.D., Defendants-Appellants, Chubb Indemnity Insurance Company, Intervening Defendant-Respondent.

    Court of Appeals

      No. 02-3100.

      Submitted on briefs May 8, 2003.

      Decided June 25, 2003.

    2003 WI App 156
    (Also reported in 667 N.W.2d 843.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Philip A. Munroe of Di Renzo and Bomier of Neenah.
    On behalf of the intervening defendant-respondent, the cause was submitted on the brief of Frederick J.

      Strampe and Matthew R. McClean of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee.
    Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 10-1-03.

   NETTESHEIM, EJ.

¶ 1. By declaratory judgment, the trial court ruled that Chubb Indemnity Insurance Company (Chubb) did not have a duty to defend its insureds, Feter E Ullrich and Cari Ullrich, against the negligent misrepresentation allegations set out in a complaint filed by Joseph J. Jares, III and Susan M. Jares. The Jareses' complaint alleged that a residence they purchased from the Ullrichs was infested with raccoons, other animals, and animal debris, and that the Ullrichs had negligently failed to disclose the condition. The trial court determined that Chubb did not have a duty to defend the Ullrichs because the Jareses complaint did not establish a causation nexus between the alleged negligent misrepresentation and the Jareses alleged damage. The Ullrichs appeal.

¶ 2. We reverse. We hold that the Jareses' complaint sufficiently alleges a causation nexus pursuant to Smith v. Katz, 226 Wis. 2d 798, 817, 595 N.W.2d 345 (1999) (Smith 17). We also reject Chubb's further argument that the Jareses' complaint does not allege "property damage" within the meaning of the Chubb policy. We hold that the complaint's allegation of loss of use of the property constitutes "property damage" under the policy. We reverse the judgment and remand for further proceedings.

BACKGROUND

¶ 3. Because this case was decided on the basis of the Jareses' complaint against the Ullrichs, we take the facts alleged therein as true and undisputed. On February 20, 2000, in preparation for the sale of their residence, the Ullrichs executed a Real Estate Condition Report. While the report made representations about specific potential defects, it did not expressly address any defects regarding animal infestation. However, the report concluded with a general representation by the Ullrichs that there were no "other defects affecting the property." On or about July 31, 2000, the Jareses purchased the residence from the Ullrichs. In connection with the sale, the Ullrichs provided the Jareses with the report. When the Jareses moved into the home following the closing, they discovered that portions of the residence were "infested with raccoons and other animals, dead animal bodies, their nests, feces, urine, and other matter in the walls and underneath the floors."

¶ 4. The Jareses' complaint further alleges that the Ullrichs negligently failed to disclose this defect on the Real Estate Condition Report and that the Jareses justifiably relied on the representations regarding the condition of the premises. As to damages, the Jareses alleged that they incurred costs for the repair and restoration of the property as well as loss of use of the property due to their inability to occupy the property for over two months. The Jareses sought compensatory damages for these losses plus their attorney fees.

¶ 5. The Ullrichs tendered the defense of the Jareses1 complaint to their insurer, Chubb. In response, Chubb filed a motion to intervene in order to raise a coverage defense. In the meantime, Chubb asked the trial court to stay the proceedings and to bifurcate the coverage issue from the underlying action. The trial court granted Chubb's intervention requests.

¶ 6. Chubb then filed a motion for judgment on the pleadings pursuant to Wis. Stat. § 802.06(3) (2001-02) seeking a declaratory judgment that its policy did not provide coverage for the claims alleged by the Jareses. In support, Chubb made two arguments. First, Chubb argued that the Jareses' complaint failed to allege property damage within the meaning of the policy. Alternatively, Chubb argued that even if the complaint did allege property damage, it failed to demonstrate a nexus between the alleged misrepresentation and such damage. In response, the Ullrichs argued that the Jareses' complaint specifically recited that the Jare-ses had been unable to occupy the property, an allegation that constituted "loss of use" of the property, a species of property damage covered by the Chubb policy. As to the "lack of nexus" argument, the Ullrichs pointed to the Jareses' allegation that it was the Ullrichs' misrepresentation of the animal infestation that induced them to purchase the property.

¶ 7. Following briefing by both parties and a motion hearing on September 11, 2002, the trial court granted Chubb's motion for declaratory judgment. Citing to Smith II, the court agreed with Chubb's alternative argument that there was no "causation nexus" between the negligent misrepresentation and the raccoon infestation. As a result, the court concluded that Chubb had no duty to defend the Ullrichs against the Jareses' allegations. Given that ruling, the trial court did not reach the issue of property damage. The Ull-richs appeal.

STANDARD OF REVIEW

¶ 8. A judgment on the pleadings is essentially a summary judgment minus affidavits and other supporting documents. We first examine the complaint to determine whether a claim has been stated. If so, we then look to the responsive pleading to ascertain whether a material factual issue exists. Whether judgment on the pleadings should be granted is a question of law that we review do novo. Freedom from Religion Found., Inc. v. Thompson, 164 Wis. 2d 736, 741, 476 N.W.2d 318 (Ct. App. 1991).

¶ 9. In addition, an insurance agreement functions as a contract between the insured and the insurer. Smith II, 226 Wis. 2d at 806. Therefore, "[interpretation of insurance policies is governed by the same rules of construction that apply to other contracts." Id. (citation omitted). The interpretation of an insurance contract presents a question of law that we review de novo. Id. at 805. When reviewing an insurance contract it is important to bear in mind that "a contract of insurance is not to be rewritten by the court to bind an insurer to a risk which the insurer did not contemplate and for which it has not been paid." Id. at 807 (citation omitted).

THE LAW OF DUTY TO DEFEND

¶ 10. In Smith II, the supreme court set out the legal test for determining an insurer's duty to defend:

An insurer's duty to defend its insured is determined by comparing the allegations of the complaint to the terms of the insurance policy. In other words, "[t]he duty to defend is triggered by the allegations contained within the four corners of the complaint." The duty to defend focuses on the nature of the claim and has nothing to do with the merits of the claim. As a result, the insurer may have no duty to defend a claim that ultimately proves meritorious against the insured because there is no coverage for that claim. Conversely, the insurer may have a clear duty to defend a claim that is utterly specious because, if it were meritorious, it would be covered. The insurer's duty arises when the allegations in the complaint coincide with the coverage provided by the policy.

Id. at 806-07 (citations omitted; emphasis added).

THE CHUBB POLICYITHE JAMESES' COMPLAINT

¶ 11. Since an insurer's duty to defend is measured by comparing the policy provisions against the allegations of the complaint, we set out the relevant portions of the Chubb policy and the Jareses' complaint.

¶ 12. The "Personal Liability Coverage" provisions of the Chubb policy provide in relevant part:

We cover damages a covered person is legally obligated to pay for personal injury or property damage which take place anytime during the policy period and are caused by an occurrence ....
"Property damage" means physical injury to or destruction of tangible property, including loss of its use ....
Defense coverages
We will defend a covered person against any suit seeking covered damages for personal injury or property damage.

¶ 13. The relevant allegations of the Jareses' complaint are the following:

5. That upon moving into the residence after the closing the [Jareses] first discovered that portions of the residence were infested with raccoons and other animals, dead animal bodies, their nests, feces, urine, and other matter in the walls and underneath the floors (hereinafter referred to as the raccoon infestation).
6. That the [Ullrichs] were aware of, or should have been aware of, the said raccoon infestation, and negligently failed to disclose said raccoon infestation to the [Jareses] on [the Real Estate Condition Report], or otherwise.
7. That the failure to disclose the said raccoon infestation by the [Ullrichs] was done to induce the [Jareses] into purchasing the premises.
8. That the [Jareses] justifiably, to their damage, relied upon the misrepresentation of the condition of the premises made by the [Ullrichs] on [the Real Estate Condition Report] and by the [Ullrichs'] failure to disclose the said raccoon infestation to the [Jareses].
9. That as a direct and proximate result of the said misrepresentation by the [Ullrichs] and the raccoon infestation of the premises the [Jareses] were unable to occupy the premises for a period of over 2 months, incurring relocation and additional living expenses totalling $9,441.99.
10. That further, as a direct and proximate result of the said misrepresentation by the [Ullrichs] and the raccoon infestation the [Jareses] incurred repair and restoration costs of $57,216.66 to remove the raccoons, their nests, urine, feces and other matter and to repair and restore the premises to the condition the premises were represented to be in by the [Ullrichs].

ANALYSIS

1. Property Damage

¶ 14.. We begin our discussion by addressing the issue not addressed by the trial court — whether the Jareses' complaint sufficiently alleges "property damage" within the meaning of the Chubb policy. As noted, the policy defines "property damage" as "physical injury to or destruction of tangible property, including loss of its use." The Ullrichs contend that the Jareses' allegation that they were unable to occupy the property for two months constitutes loss of use of the property, which is a form of "property damage" recognized by the Chubb policy.

¶ 15. Chubb responds that the loss of use of the property must be accompanied by "physical injury to or destruction of tangible property," per the phrase immediately preceding the policy's reference to "loss of use." Since loss of use does not represent physical injury to or destruction of the property, Chubb reasons that the Jareses' complaint fails to allege property damage and there is no coverage. However, Chubb's analysis of the Jareses' complaint is too narrow. Chubb overlooks that besides alleging loss of use, the Jareses' complaint also alleges that the Jareses incurred repair and restoration costs. This latter allegation clearly implies that the residence was damaged, thus satisfying the "physical injury to . . . tangible property" component of "property damage" in the Chubb policy.

¶ 16. We recognize that in Smith II, the supreme court stated that, in most instances, misrepresentations and omissions will not produce property damage as defined in insurance policies. Smith II, 226 Wis. 2d at 816-17. However, in the same breath, the court acknowledged that this rule was not absolute and that a complaint making "some reference to loss of use" could suffice as an allegation of "property damage." Id. at 817. Here, the Jareses' complaint alleges an inability to occupy the property. That allegation is tantamount to a claim of loss of use. And since the complaint can fairly be read to imply that the residence was damaged by the animal infestation, we hold that the complaint sufficiently alleges "property damage" within the meaning of the Chubb policy.

¶ 17. The parties also debate as to whether the Jareses' complaint seeks damages for economic loss which would be precluded in this tort action. See Bay Breeze Condo. Ass'n, Inc. v. Norco Windows, Inc., 2002 WI App 205, ¶ 9, 257 Wis. 2d 511, 651 N.W.2d 738; see also Smith II, 226 Wis. 2d at 812-13. But the issue at this early juncture of the proceedings is whether Chubb has a duty to defend the Ullrichs. The issue is not whether the Jareses' claimed damages are barred by the economic loss doctrine. As noted, the legal test for determining an insurer's duty to defend is very narrow. We simply compare the allegations of the underlying complaint against the terms of the insurance policy. Smith II, 226 Wis. 2d at 806-07. We hold that the Jareses' complaint survives that process on the question of property damage.

¶ 18. If, in fact, the Jareses' damage claims are barred by the economic loss doctrine, then it is for Chubb to raise that defense not by denying coverage, but rather by asserting it on behalf of the Ullrichs. As noted in Smith II, an insurer might well have a duty to defend a specious claim. Id. at 807.

2. Causation

¶ 19. Next we address whether the Jareses' complaint sufficiently alleges a causation nexus. Relying on Smith II, the trial court ruled that the complaint did not establish such a nexus. In determining whether property damage was caused by an occurrence, a reviewing court must look at the alleged misconduct and determine whether a "causation nexus" exists between the alleged misconduct and the damage claimed. Id. at 823. Without a "causation nexus," the alleged occurrence cannot cause property damage. Id.

¶ 20. The facts of Smith II reveal the following. The Smiths purchased a lot in July 1991 but did not discover underground springs on the lot until they prepared for construction in March 1993. Id. at 801. When their builder, Paul Katz, began to construct the foundation of the house, the foundation hole filled with water, causing the concrete foundation to collapse three or four times during construction. Id. The Smiths filed suit against the seller alleging breach of warranty, intentional misrepresentation, strict responsibility misrepresentation and negligent misrepresentation. Id.

¶ 21. In addressing causation, the supreme court held that there were several reasons why the seller's misrepresentations did not cause physical injury to the Smiths' property. Id. at 823. First, the court noted that the Smiths' purchased the property in July 1991 but there was no physical injury to the property until after March 1993. Second, the court noted:

In the interim, ownership and control of the vacant lot had changed hands. The Smiths not only decided to build a house but also decided where on the lot the house should be located. They selected Paul Katz and Robert Reisinger to assist them. Someone other than [the seller] decided to continue building the house in the same spot even after its concrete foundation collapsed three or four times.

Id. Third, the court noted that the Smiths' additional allegations of negligence against the builder, Katz, and Reisinger provided evidence that the seller's misrepresentations did not cause the property damage. Id. The court concluded that "negligent misrepresentations do not cause ground water pressure or cracks in concrete foundations" and "there have been too many 'interruptions' between the 'occurrence' and the 'property damage' — too many decisions and actions by other people — to show an unbroken chain of causation under the policies." Id. at 824.

¶ 22. Chubb likens this case to Smith II, reasoning that just as negligent misrepresentations do not cause groundwater pressure, so also negligent misrepresentations do not cause animal infestation. At first blush, this is a tempting argument. But a closer examination of Smith II demonstrates that Chubb's reasoning does not hold up. Although the supreme court in Smith II determined that there was not a sufficient nexus under the facts of that case, the court clearly-allowed that in another case under different facts, the nexus requirement could be satisfied. The court cited with approval to the following passage from the court of appeals decision in Welter v. Singer, 126 Wis. 2d 242, 250, 376 N.W2d 84 (Ct. App. 1985):

The Wisconsin Supreme Court, in Olsen v. Moore, [56 Wis. 2d 340, 202 N.W.2d 236 (1972)] Joined the majority of jurisdictions by adopting the "cause" analysis. That is, where a single, uninterrupted cause results in all of the injuries and damage, there is but one "accident" or "occurrence." If the cause is interrupted or replaced by another cause, the chain of causation is broken and there has been more than one accident or occurrence.

Smith II, 226 Wis. 2d at 824.

¶ 23. Here, the facts bearing on causation alleged in the Jareses' complaint are markedly different from those in Smith II. First, the Jareses discovered the property damage soon after closing on the residence. Second, the Ullrichs remained in full ownership and control of the property. Third, the residence already existed. Fourth, the Jareses have not alleged any intervening negligent acts by or against any third parties. Moreover, the Jareses' complaint specifically alleges "[t]hat as a direct and proximate result of the said misrepresentation by the [Ullrichs] and the raccoon infestation of the premises the [Jareses] were unable to occupy the premises for a period of over 2 months . . . ."

¶ 24. In examining the allegations of a complaint in relation to the terms of an insurance policy, we liberally construe those allegations and assume all reasonable inferences. Id., 226 Wis. 2d at 815. Under this favorable test and under the test for a "single, uninterrupted" chain of events producing "but one accident" or "occurrence" as set out in Welter and Smith II, we conclude that the Jareses' complaint sufficiently alleged a nexus between the alleged misrepresentation and the ensuing loss.

¶ 25. In reaching our decision, we acknowledge that prior to Smith II Wisconsin law had not recognized that a misrepresentation about a defect in property could cause property damage. Rather, cases had held that it is the defect, not the misrepresentation, that causes the property damage. See Smith II, 226 Wis. 2d at 816-17, Benjamin v. Dohm, 189 Wis. 2d 352, 359, 525 N.W.2d 371 (Ct. App. 1994). However, the Smith II court clarified:

We are not saying that strict responsibility misrepresentations or negligent misrepresentations can never cause "property damage" as defined in the policies, particularly when "property damage" can include "loss of use of tangible property that is not physically injured." But we recognize that the majority view in the cases is that misrepresentations and omissions do not produce "property damage" as defined in insurance policies. They produce economic damage.
Given this well established law, a complaint claiming strict responsibility misrepresentation or negligent misrepresentation must contain some statement about physical injury to tangible property, some reference to loss of use, or some demand for relief beyond money damages if the complaint is to satisfy the requirement that "property damage" be alleged within the four corners of the complaint.

Smith II, 226 Wis. 2d at 816-17 (second emphasis added; citations and footnotes omitted). The supreme court's language allows that an artfully drafted corn-plaint can provide for coverage. As noted, the Jareses' complaint alleges that the Ullrichs' misrepresentations resulted in the loss of use of the property. We hold that this is a sufficient allegation of the causation nexus under Smith II.

¶ 26. We also reject Chubb's contention that the Jareses' complaint fails to link the Ullrichs' misrepresentation and the animal infestation. Chubb points to the following language in the Jareses' complaint: "That as a direct and proximate result of the said misrepresentation by the [Ullriehs] and the raccoon infestation of the premises the [Jareses] were unable to occupy the premises ... (Emphasis added.) Chubb argues that this language alleges two causes of action — the misrepresentation and the infestation — but does not link the two. We decline to read the complaint so narrowly.

¶ 27. Pursuant to Wis. Stat. § 802.06(6), pleadings are to be liberally construed with a view toward substantial justice to the parties. Likewise, in examining the allegations of a complaint in relation to the terms of a disputed insurance policy, we liberally construe the allegations and assume all reasonable inferences. Smith II, 226 Wis. 2d at 815. Chubb's reading of the Jareses' complaint is contorted and hypertechnical. A fair reading of the allegation is that the misrepresentation about the animal infestation caused the damage.

CONCLUSION

¶ 28. We conclude that the Jareses' complaint sufficiently alleged both "property damage" within the meaning of the Chubb policy and a "causation nexus" between the alleged misrepresentation and the claimed damage. We therefore conclude that Chubb has a duty to defend the Ullriehs. We reverse the judgment and remand for further proceedings.

By the Court. — Judgment reversed and cause remanded.

       1n an earlier decision in the same case, the supreme court concluded that the defendant's insurance policy in the record did not cover the period in which'the alleged property damage occurred. Smith v. Katz, 218 Wis. 2d 442, 578 N.W.2d 202 (1998). When the record was amended to include a policy covering a later period, the supreme court granted the defendant's motion for reconsideration. See Smith v. Katz, 226 Wis. 2d 798, 804, 595 N.W2d 345 (1999) (Smith II).

       All references to the Wisconsin Statutes are to the 2001-02 version.

       The complaint says that the "defendants" relied upon this misrepresentation. That obviously is a misnomer. The complaint should have said that the "plaintiffs" relied upon the misrepresentation.

       Chubb also cites to Benjamin v. Dohm, 189 Wis. 2d 352, 525 N.W2d 371 (Ct. App. 1994), and Qualman v. Bruckmoser, 163 Wis. 2d 361, 471 N.W.2d 282 (Ct. App. 1991), in support of its argument that no causation nexus is established by the Jareses1 complaint. Both cases hold that allegations of pecuniary loss resulting from structural damage do not constitute "property damage" under the kind of policy language at issue in this case. Benjamin, 189 Wis. 2d at 361; Qualman, 163 Wis. 2d at 366. Both cases also hold in dicta that even if an allegation of pecuniary loss included a claim for loss of use thereby resulting in "property damage," coverage still would not exist since it was the structural defect, not the misrepresentation, that caused the damage. Benjamin, 189 Wis. 2d at 362-63; Qualman, 163 Wis. 2d at 367-68.
      We do not see these two cases as controlling in the instant case. First, as noted, the statements regarding the effect of an allegation of loss of use were dicta. Moreover, it is not clear from the text of the two cases whether the complaints expressly alleged that the misrepresentations induced the purchasers to buy. Here, the Jareses' complaint expressly alleges that the Ullrichs' misrepresentation was made to induce the Jareses to purchase the property and that the misrepresentation directly and proximately caused the Jareses to lose the use of the property. Again, our duty to defend analysis is limited to a comparison of the language of the complaint against the language of the policy. Smith II, 226 Wis. 2d at 806-07. Here, we have an express allegation that the Jareses lost the use of damaged property — the very scenario calling for coverage under the Chubb policy.


source: Caselaw Access Project

author: LUNDSTEN, J. ROGGENSACK, J.

license: Public Domain

text:
    In re the Marriage of: Linda Rohde-Giovanni p/k/a Linda Susan Baumgart, Petitioner-Appellant, v. Paul Albert Baumgart, Respondent-Respondent.
    Court of Appeals

      No. 01-3014.

      Submitted on briefs August 9, 2002.

      Decided June 26, 2003.

    2003 WI App 136
    (Also reported in 667 N.W.2d 718.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Linda Roberson and Megan A. Senatori of Balisle & Roberson, S.C., Madison.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Stephen C. Beilke and Suzanne Lee oí Murphy & Desmond, S.C., Madison.
    Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review granted 10-1-03.

   LUNDSTEN, J.

¶ 1. Linda Rohde-Giovanni appeals an order of the circuit court converting her maintenance award from an indefinite term award to a limited term award expiring December 2003. Linda argues that the circuit court's decision to terminate her maintenance as of December 2003 was error because the court: (1) erroneously found that Linda could live at the marital standard of living without maintenance based in part on the court's failure to consider the expense Linda was incurring for an adult child's higher education when calculating Linda's current standard of living; (2) failed to properly apply the "fairness" objective of maintenance; and (3) erroneously converted Linda's maintenance to limited term maintenance without adequately evaluating the applicable legal test. We disagree with these arguments and affirm.

Background

¶ 2. Linda Rohde-Giovanni and Paul Baumgart were divorced on August 27, 1992, after nineteen years of marriage. As part of the judgment of divorce, the parties agreed to joint custody and shared physical placement of their three minor children. The original divorce order required Paul to make child support payments with a schedule for support reduction as each child reached age eighteen. Linda and Paul's youngest child turns eighteen in June 2003. In addition, Paul was required to make maintenance payments to Linda in the amount of $950 per month for an indefinite period of time.

¶ 3. On May 31, 2001, Paul moved to terminate or reduce the maintenance award to Linda. In response, Linda moved to increase the maintenance award. The court held a hearing on the parties' motions and the parties presented evidence of their financial circumstances at the time of the divorce, currently, and in the interim. At the time of the divorce, Linda was a student pursuing her master's degree in education and working part-time as a group counselor. Since the divorce, Linda has received her master's degree, is working as a teacher, and “continues to work part-time as a group counselor.

¶ 4. At the time of the hearing, the parties had one minor child, age sixteen. Linda has an approximate current yearly income of $61,000. Paul remarried and currently earns approximately $105,000 per year. After finding that there had been a substantial change in the parties' financial circumstances, the circuit court converted the maintenance award from an indefinite award to a limited term award, ordering Paul to continue paying $950 a month in maintenance to Linda until December 2003.

Discussion

¶ 5. Linda contends that the circuit court's order, that maintenance payments will end December 2003, is improper because the parties' circumstances have not sufficiently changed to justify termination of her maintenance award. Whether there has been a substantial change of circumstances sufficient to warrant a modification of maintenance presents a mixed question of fact and law. Benn v. Benn, 230 Wis. 2d 301, 307, 602 N.W2d 65 (Ct. App. 1999). "A circuit court's findings of fact regarding what changes have occurred in the circumstances of two parties will not be disturbed unless they are clearly erroneous. However, the question of whether those changes are substantial is a question of law which we review de novo." Id. (citations omitted). Where there has been a substantial change in circumstances, the subsequent decision whether to modify or terminate a maintenance award is within the discretion of the circuit court. See Murray v. Murray, 231 Wis. 2d 71, 77-78, 604 N.W2d 912 (Ct. App. 1999); Plonka v. Plonka, 177 Wis. 2d 196, 200, 501 N.W.2d 871 (Ct. App. 1993).

We will uphold a trial court's exercise of discretion when the record shows that the court employed a process of reasoning in which the facts and applicable law are considered in arriving at a conclusion based on logic and founded on proper legal standards. We will generally look for reasons to sustain a trial court's discretionary decision.

Murray, 231 Wis. 2d at 78 (citations omitted).

¶ 6. We must first consider whether a substantial change in circumstances occurred. "A court may modify maintenance only 'upon a positive showing of a change of circumstances, which must be 'substantial' and 'relate to a change in the financial circumstances of the parties.'" Wettstaedt v. Wettstaedt, 2001WI App 94, ¶ 6, 242 Wis. 2d 709, 625 N.W2d 900 (quoting Johnson v. Johnson, 217 Wis. 2d 124, 127, 576 N.W2d 585 (Ct. App. 1998) (Johnson I)).

¶ 7. Linda cites to cases suggesting that a substantial change in circumstances cannot exist independent of a finding that the change also warrants modification of the maintenance award. See Johnson v. Johnson, 225 Wis. 2d 513, 515 n.2, 593 N.W.2d 827 (Ct. App. 1999) (<Johnson II) ("In a postdivorce modification petition, the threshold issue is 'whether the parties met their burden of establishing a substantial change in circumstances after the divorce warranting a modification of maintenance.'" (quoting Johnson I, 217 Wis. 2d at 128)). To the extent Linda disputes Paul's statement that "the threshold test for determining whether modification of maintenance is warranted is simply whether the parties met their burden of establishing a substantial change in circumstances after the divorce," we agree with Linda; this is not an accurate statement of law. However, courts do treat the question (Is there a substantial change in circumstances?) as a threshold issue and then go on to consider whether such a change warrants modification of the maintenance award. See Murray, 231 Wis. 2d at 77-78; Johnson I, 217 Wis. 2d at 127; Gerrits v. Gerrits, 167 Wis. 2d 429, 437-39, 482 N.W2d 134 (Ct. App. 1992). In any event, elsewhere in her briefing Linda admits that a substantial change in circumstances has occurred.

¶ 8. The parties disagree as to whether the substantial change that has occurred warrants the modifi cation ordered by the circuit court. "When modifying maintenance awards, the circuit court must consider the same factors governing the original determination of maintenance set forth in sec. 767.26, Stats." Poindexter v. Poindexter, 142 Wis. 2d 517, 531, 419 N.W.2d 223 (1988). The circuit court does not have to consider all of these statutory factors, but must "consider those factors which are relevant to the case." See id. at 532. These statutory factors "are designed to further two distinct but related objectives in the award of maintenance: to support the recipient spouse in accordance with the needs and earning capacities of the parties (the support objective) and to ensure a fair and equitable financial arrangement between the parties in each individual case (the fairness objective)." LaRocque v. LaRocque, 139 Wis. 2d 23, 33, 406 N.W.2d 736 (1987).

¶ 9. Paul argues that LaRocque'& "fairness objective" does not apply to postdivorce modifications of maintenance awards. Paul finds support in Johnson I, 217 Wis. 2d 124, which states that the fairness objective "does not apply to a postdivorce situation." Id. at 128. However, in Johnson I we did not address whether the fairness objective applied to the circuit court's modification of a maintenance award. Rather, we spoke in the context of setting forth the threshold inquiry in a decision whether to modify a maintenance award, that is, whether there has been a substantial change in circumstances after the divorce warranting maintenance modification. See Johnson II, 225 Wis. 2d at 515 n.2.

¶ 10. Moreover, the "fairness objective" is a broad "umbrella." Hubert v. Hubert, 159 Wis. 2d 803, 821, 465 N.W.2d 252 (Ct. App. 1990). The phrase, as applied to maintenance, has its genesis in LaRocque, where the term is simply used to explain that the statutory factors in Wis. Stat. § 767.26 are "designed to further" the two related objectives of maintenance: the support objective and the fairness objective (ensuring "a fair and equitable financial arrangement between the parties in each individual case"). LaRocque, 139 Wis. 2d at 32-33. Once a court has determined that a maintenance award must be reassessed because of a substantial change in circumstances, it is nonsensical to assert that the fairness objective does not apply.

A. Whether the Circuit Court Correctly Determined That Linda Could Attain Her Marital Standard of Living Without Maintenance Payments

1. Whether the Circuit Court Determined that Linda Could Attain her Marital Standard of Living

¶ 11. As a threshold matter, Linda argues that the circuit court did not make a finding that she could attain the marital standard of living. However, a fair reading of the court's comments reveals that it did make this finding. The circuit court stated: "I think if you tighten up your budget[,] . . . you would be living reasonably comparable to that enjoyed during the marriage." The only reasonable reading of these words is that the court believed Linda would be living at the marital standard of living when her maintenance award terminated.

2. The Consideration of Linda's Payments for Her Adult Child's Higher Education Expenses

¶ 12. Linda next argues that the circuit court erred by not including her contributions to her adult child's higher education expenses in its assessment of her current standard of living. Linda contends that "it was an expectation of the marriage that the parties would financially contribute to their children's educations" and, thus, expenses for her adult child's higher education should be considered in determining whether Linda could attain her marital standard of living. In Linda's view, expenses for higher education should be treated the same as other discretionary expenses that have been incorporated into calculations of the marital standard of living, such as money for substantial savings accounts, see Hubert, 159 Wis. 2d at 818, 820-21, vacations or hobbies, see Johnson II, 225 Wis. 2d at 518, or charitable contributions, see Hefty v. Hefty, 172 Wis. 2d 124, 137, 493 N.W.2d 33 (1992).

¶ 13. Linda points to the following evidence to support her argument that the parties agreed to and expected to pay for higher education expenses: (1) Linda's testimony that paying for their children's higher education was an ethic that the parties shared; (2) Linda's testimony that both parties are highly educated and that Linda believed it was her moral obligation to contribute to her children's higher education expenses; (3) Linda's testimony that she and Paul had discussed supporting their adult children while the children were in school; (4) Linda's testimony that the parties "would help [the children] in whatever way [they] could to launch them as adults"; and (5) Paul's child support proposal at the time of the divorce that recommended funds be set aside for the children's higher education.

¶ 14. Part of Linda's argument fails because it is contrary to a factual finding made by the circuit court. The court found that, during the marriage, the parties never agreed to pay for their adult children's higher education. Linda has not demonstrated that this finding is clearly erroneous and, therefore, Linda may not rely on the existence of such an agreement as a factual predicate.

¶ 15. Moreover, the situation before us differs from the savings, vacations, hobbies, and charitable contributions cases that Linda relies on. Unlike those cases, there is no evidence that Linda and Paul engaged in saving for college during their marriage. Thus, the limited question before us is whether funding an adult child's post-high school education, where there has been no agreement to do so and where there had been no savings for this purpose during the marriage, is an appropriate factor in setting maintenance.

¶ 16. It is undisputed that the circuit court does not have the power to require Paul to fund his child's higher education once the child reaches the age of majority and graduates from high school. See Resong v. Vier, 157 Wis. 2d 382, 389, 459 N.W.2d 591 (Ct. App. 1990) ("[A] court cannot order support payments after the child has reached the age of majority. . . ."). Although case law suggests that trusts may be established for minor children's higher education costs, see Hubert, 159 Wis. 2d at 817, "any payments to a trust must be made from child support payments paid while the child is still a minor." Mary L.O. v. Tommy R.B., 199 Wis. 2d 186, 201, 544 N.W.2d 417 (1996).

¶ 17. We conclude that it would be incongruous to allow maintenance for the purpose of providing the payee spouse with money to pay for the education of an adult child when the child support statutes prohibit such payments as child support. The effect of adopting Linda's position would be to render the child support statute prohibition on such payments meaningless. See Cepukenas v. Cepukenas, 221 Wis. 2d 166, 175, 584 N.W2d 227 (Ct. App. 1998) ("We must construe statutes so as to not render them meaningless."). Accordingly, we affirm the circuit court's refusal to include higher education expenses for an adult child as part of Linda's current reasonable expenses warranting continued maintenance.

3. Whether the Circuit Court's Findings on Linda's Ability to Live at Her Marital Standard of Living Were Clearly Erroneous

¶ 18. Apart from the arguments addressed above, Linda asserts the circuit court erroneously found she could attain the marital standard of living by the time the maintenance term ended. As stated above, the circuit court found that Linda would be self-supporting at the termination of her maintenance. Accordingly, we review the record in the light most favorable to the circuit court's finding to determine whether that finding is clearly erroneous. See Columbia Stamping & Mfg. Co. v. Reich, 28 Wis. 2d 297, 301, 137 N.W2d 45 (1965) ("The evidence must be viewed from the standpoint most favorable to the findings of the trial court."). When we undertake to determine whether a finding is clearly erroneous, rejection is not warranted merely because there is evidence in the record to support a contrary finding. Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). The contrary evidence, rather, must constitute the great weight and clear preponderance of the evidence. Id. at 643-44.

¶ 19. Linda argues that the record demonstrates that she is not living at the marital standard of living. For example, Linda asserts that she was required to liquidate retirement assets to pay for routine living expenses; she could not afford basic repairs to her home; she has to work two jobs in detriment to her health; and she cannot meet her monthly budget. However, the record does not demonstrate that the circuit court's finding was clearly erroneous.

¶ 20. At the hearing, the circuit court received the following evidence regarding Linda's current standard of living and her standard of living prior to the divorce. Linda testified that her food, clothing, and entertainment budgets were all "much less" than they had been during the marriage. Linda testified the house she lives in, the same house Linda and Paul occupied during their marriage, is in a "deteriorated" condition. She said the foundation is cracked, the windows are leaky, the stove and water softener do not work, and the siding is rusting. Linda also testified that, at the time of the divorce, there was only one mortgagé on the house and she now has four mortgages on the house. The parties stipulated that Linda's house has an assessed value of $130,000 and her mortgages total $86,000, although at the hearing Linda testified that the house's actual assessed value was $114,700. The parties also stipulated that, at the time of divorce, Linda's mortgage payment was $690 per month and if she consolidates her current mortgages her monthly payment will be $1,100. However, there is no detailed information about the house's value and mortgage prior to the divorce, making it impossible for the circuit court to make debt and equity comparisons.

¶ 21. During their marriage, Linda and Paul took three trips to Europe, as well as trips to San Francisco, New York, and several trips to Seattle. In the two years prior to the maintenance modification hearing, Linda traveled to the Virgin Islands and to Seattle, as well as a trip to Door County. At the initial divorce hearing in 1992, Linda drove a 1990 minivan. At the 2001 hearing on maintenance modification, Linda owned a 1998 minivan. During the marriage, Linda had savings of $29,809; at the hearing, Linda reported current savings of $94,877, as well as $33,535 in retirement assets.

¶ 22. Since the divorce, Linda has liquidated a comparatively small amount of her assets to pay for legal expenses and living expenses. Linda works a part-time job in addition to her regular teaching position. During the marriage, with four children living at home, Linda did not work outside the home until she took a part-time position two years before the divorce. Linda testified that she currently suffers from health problems and is "exhausted" from working two jobs. Linda pays for her adult son's books and tuition at Madison Area Technical College, as well as for some of his other expenses, including his car. Linda currently budgets $936 per month to pay for her adult son's expenses. The parties stipulated that the cost of living has increased by 26.33% since the time of the divorce.

¶ 23. The circuit court commented that if Linda "tighten[ed] up [her] budget," referring to her expenses for her adult son's tuition and living expenses, she would be living at the marital standard. We cannot say that this finding is clearly erroneous. So far as the record discloses, it was reasonable for the circuit court to find that Linda drives a comparable car, takes comparable vacations, and lives in a comparable house. Although Linda testified that the house needs repairs, the hearing testimony did not provide the circuit court with specific information allowing comparison. For example, there is no evidence of the house's condition at the time of divorce, and there is insufficient evidence of the cost of currently needed repairs to permit an assessment of how such costs would affect Linda's monthly budget. Linda's debt has increased, but at the same time her savings have increased, despite losing money in the recent stock market downturn. There is no comparison evidence of the couple's debt level during marriage. Although Linda claims that her budgets for food, clothing, and entertainment are "much less" than before her divorce, she does not specify the disparity, and it is unclear whether her budget for such items is less because over $900 of her monthly budget is used to support her adult son.

¶ 24. Linda also contends that the circuit court ignored evidence that she was forced to work two jobs in detriment to her health. However, we find no indication that the circuit court ignored this evidence. The circuit court need not comment on every piece of evidence in the record. Moreover, apart from Linda's vague statement that working two jobs was against her doctor's advice, there is no evidence that Linda's health affected her ability to support herself. And, there was no testimony that Linda worked less in the home during the marriage than she now works outside the home.

¶ 25. Therefore, we conclude that the circuit court's finding that Linda could attain the marital standard of living by December 2003 was not clearly erroneous.

B. The Fairness Objective

¶ 26. Linda separately argues that reversal is required because the circuit court failed to properly apply the "fairness objective" of maintenance. Linda's "fairness objective" argument has three components.

¶ 27. Linda contends that the circuit court improperly considered Paul's reduced standard of living immediately after the divorce. Linda bases her argument on the circuit court's comments that immediately after the divorce Paul lived in a less desirable part of town and at a reduced standard of living. However, even assuming that the reduced standard of living experienced by Paul immediately after the divorce is irrelevant for purposes of deciding whether Paul should continue to pay maintenance, no fair reading of the record supports the inference that the circuit court relied on this consideration. The circuit court's comments were made in the context of recounting the events that occurred in this case, including the fact that Linda received the marital home as part of the divorce decree. There is no suggestion that the court relied on this factor when deciding to terminate maintenance.

¶ 28. Also under the rubric of "the fairness objective," Linda asserts the circuit court erred by failing to consider the standard of living the parties could have anticipated enjoying if they had stayed married. For legal support, Linda relies on Hefty, where this court held that a circuit court addressing maintenance should consider not only the standard of living experienced during marriage, but also any improved standard of living the parties could reasonably have anticipated if they had stayed married. Hefty, 172 Wis. 2d at 134. However, we do not address the application of Hefty to this case because Linda's argument lacks factual development. Neither in the circuit court nor in this court does Linda develop factually the standard of living she could have reasonably anticipated if she and Paul had remained married.

¶ 29. Finally, Linda argues that the fairness objective is a stand-alone consideration that applies regardless whether the payee spouse is self-supporting at the marital standard of living and, therefore, the circuit court erred by not looking at Paul's higher standard of living, even if Linda could attain the marital standard of living by the end-date of maintenance. The best authority Linda provides for this argument is language in Hefty. However, Hefty simply defines "marital standard" to include "the lifestyle that the parties could anticipate enjoying if they stayed married." Id. at 134. Linda does not provide authority, and we do not find any, for the proposition that fundamental fairness requires a circuit court to consider ordering continued maintenance when the payee spouse is living at or above the marital standard. See Johnson II, 225 Wis. 2d at 519 ("A payee spouse is not entitled to maintenance allowing a lifestyle above and beyond the predivorce standard of living."); Gerrits, 167 Wis. 2d at 442-43 (vacating award based on payor's ability to pay and remanding case for redetermination of the amount necessary to maintain payee spouse at the marital standard); Harris v. Harris, 141 Wis. 2d 569, 579, 415 N.W.2d 586 (Ct. App. 1987) (noting that circuit court correctly concluded that payee spouse was not entitled to more maintenance simply because payor spouse can afford to pay more). More specifically, Linda has not provided authority, and we find none, for the proposition that the fairness objective requires increased or continued maintenance owing to the fact that the payor spouse enjoys a higher standard of living relative to the marital standard, where the payee spouse is able to live at or above the marital standard without maintenance payments.

C. Whether the Circuit Court Erred By Not Considering the Appropriate Factors Before Converting the Award From an Indefinite Award to a Limited Term Award

¶ 30. Linda argues that the circuit court committed an error of law by converting "the indefinite term award to a limited term award without evaluating whether [Linda] met the qualifications for limited term maintenance." When a circuit court decides whether to grant limited term maintenance, the circuit court must consider these three factors:

(1) " 'the ability of the recipient spouse to become self-supporting by the end of the maintenance period at a standard of living reasonably similar to that enjoyed before divorce'
(2) " 'the ability of the payor spouse to continue the obligation of support for an indefinite time' and
(3) " 'the need for the court to continue jurisdiction regarding maintenance.'"

Bentz v. Bentz, 148 Wis. 2d 400, 406, 435 N.W.2d 293 (Ct. App. 1988) (quoting LaRocque, 139 Wis. 2d at 41).

¶ 31. Regarding the second factor, Linda argues that the circuit court failed to adequately consider Paul's ability to continue to pay maintenance because the court did not take Paul's current wife's income into consideration or the fact that Paul would have increased disposable income at the end of the maintenance period because he would no longer be paying child support. However, all of Linda's arguments in this regard are based on the assumption that she would not be living at the marital standard at the conclusion of the maintenance period.

¶ 32. Although we assume without deciding that the factors listed in Bentz apply to the conversion of an indefinite award to a limited term award, we need not determine whether the circuit court considered all of the factors because, as explained above, the court found that Linda would be self-supporting at the marital standard at the end of the maintenance period and, under that circumstance, it was within the court's discretion to terminate maintenance. See Bentz, 148 Wis. 2d at 406-07 (considering only circuit court's finding that payee spouse would become self-supporting at marital standard); see also Murray, 231 Wis. 2d at 83 ("[J]ust because the payor has achieved a position that enables him or her to live a richer lifestyle than that enjoyed during the marriage does not mean that the payee may share this lifestyle as well through maintenance.").

Conclusion

¶ 33. For all of the reasons discussed above, we conclude that the circuit court's decision to terminate maintenance was an appropriate exercise of discretion.

By the Court. — Order affirmed.

ROGGENSACK, J.

¶ 34. (dissenting). As I read the circuit court's discussion that led to its order terminating maintenance, as well as the majority opinion of this court, a question nagged at me: What change in circumstances makes it unjust or inequitable to Paul to continue maintenance? Because the majority opinion does not address this question, which is a legal issue and is dispositive of this appeal, I respectfully dissent.

Standard of Review.

¶ 35. Whether there has been a substantial change in circumstances is a mixed question of fact and law. Rosplock v. Rosplock, 217 Wis. 2d 22, 32-33, 577 N.W.2d 32, 37 (Ct. App. 1998). The circuit court's findings of historic fact will not be overturned unless they are clearly erroneous. Id. at 33, 577 N.W.2d at 37. We review de novo whether a substantial change in circumstances has occurred. Id. A substantial change in circumstances sufficient to change an award for indefinite maintenance set out in a divorce judgment should be a change that causes it to be " 'unjust or inequitable to strictly hold either party to the judgment.'" See id. (citation omitted).

Maintenance Termination.

¶ 36. Whether the facts presented show a change in circumstances warranting a termination of indefinite maintenance depends on the court's findings in support of the original order and whether circumstances have occurred since that time that would make it unfair or unjust to Paul to continue maintenance. See id. The majority opinion affirms the termination of maintenance without addressing this issue, which I conclude is required under Rosplock and LaRocque v. LaRocque, 139 Wis. 2d 23, 40, 406 N.W.2d 736, 743 (1987). In evaluating the termination of indefinite maintenance, we must begin with the circumstances as found at the time of divorce. Wis. Stat. § 767.32(1) (2001-02).

1. Divorce Judgment.

¶ 37. The circuit court that conducted the trial on the issue of maintenance when the divorce was granted made the following findings that are relevant to our review of the subsequent order terminating an award for indefinite maintenance: (1) During the nineteen-year marriage, Linda was primarily responsible for the care of the four children. (2) Paul provided financial support for the family, as he pursued his career development. (3) Indefinite term maintenance was appropriate because "[t]he time that Ms. Baumgart spent between the birth of Mariah in 1979 and April 1990 taking care of home and children, permanently [affected] her ability to generate the sort of earning capacity that Mr. Baumgart was free to generate." Findings of Fact, ¶ 33 (emphasis added). (4) It was anticipated that Linda would return to school as her child-care responsibilities lessened and that she could earn $40,000 per year from full-time employment after completing her education. (5) "[H]er earnings alone are unlikely to leave her self supporting to the degree that would permit her to live in a manner reasonably comparable to that enjoyed during the marriage now or in the future." Id., ¶ 36 (emphasis added). (6) Paul earned $7,700 per month and Linda earned $734 per month. The court ordered Paul to pay $950 per month as maintenance and $1,890 per month as child support.

2. Motion to Terminate Indefinite Maintenance.

¶ 38. When the circuit court heard Paul's motion to terminate maintenance, Paul had gross earnings of $8,333 per month and Linda had gross earnings of $4,834, a significant difference despite Linda's efforts at increasing her earning capacity. In addition, Paul's child support obligation of $1,890 per month was terminating; he had married a woman who earned $6,333 per month and her income covered half of his household expenses. Linda continued to maintain a household for their children, even though all would soon be legally adults.

¶ 39. In affirming the termination of indefinite maintenance, the majority opinion focuses primarily on two facts: (1) Linda has increased her earnings since divorce and (2) Linda uses some of her income to help support their children who are older than eighteen years of age. The first factor, her increased earnings, cannot support the legal conclusion of a substantial change in circumstances sufficient to terminate maintenance. The divorce court, in its findings of fact, took into account her anticipated increase in earnings when it ordered indefinite term maintenance, rather than limited term maintenance. This is not a case where Linda achieved financial growth in an unexpected amount.

¶ 40. The second factor regards how Linda spends the money available to her and has nothing to do with whether the continuation of maintenance is unjust or inequitable to Paul. Maintenance, unlike child support, is a payment that carries no directive on how the recipient spouse is to use it. However, the majority opinion equates the financial assistance Linda gives to the parties' adult children with ordering Paul to pay child support for them. This view has no basis in law, and the majority's reliance on Resong v. Vier, 157 Wis. 2d 382, 459 N.W2d 591 (Ct. App. 1990), is misplaced.

¶ 41. Resong addressed child support payments where the recipient had erroneously been ordered to place part of each child support payment in savings for the child's education after the child reached the age of majority. Id. at 391, 459 N.W.2d at 594. It had nothing to do with the choices a payee may make in regard to maintenance payments received. Furthermore, while the majority's reasoning may be understandable for a recipient spouse who has no income, it can have no validity for Linda, who works both a full-time and a part-time job for the money that her household requires. Therefore, if she chooses to help their children rather than spending $500 per month on clothes as Paul says he does, that certainly is not unjust or inequitable to Paul.

¶ 42. Furthermore, it appears that the court gave little or no weight to Linda's contribution to raising the parties' children for nine years after the marriage ended, while Paul continued to pursue his career both in and out of the state. That Paul contributed to them in a financial manner and with parenting when he was within the state is undisputed, but the court gave him a good deal of credit for that. However, Linda's service contributions are every bit as valuable as Paul's financial contribution, though much harder to value in a dollars and cents perspective. See LaRocque, 139 Wis. 2d at 38, 406 N.W.2d at 742. There is unfairness to Linda in the lack of value placed on her continued commitment to the family, and the failure to recognize that but for her twenty-nine year commitment to caring for the parties' children, it may have been she who had an earning capacity of $106,000 per year, rather than Paul.

¶ 43. And finally, this is not a case where the modest amount of maintenance paid, when compared with Paul's earnings and expenses, is a financial hardship on him. Accordingly, because the majority opinion does not recognize that while there have been many changes in circumstances that have affected Paul and Linda since their divorce, they were anticipated by the circuit court at the time of divorce and none are of a type that cause the continued payment of maintenance to be unjust or inequitable to Paul, I conclude there has been no substantial change in circumstances sufficient to terminate maintenance. Therefore, I respectfully dissent.

       Similarly, the dissent asserts that we apply the wrong test for determining whether there has been a "change in circumstances warranting a termination of indefinite maintenance." Dissent at ¶ 36. The dissent, relying on Rosplock v. Rosplock, 217 Wis. 2d 22, 33, 577 N.W2d 32 (Ct. App. 1998), asserts that this inquiry "depends on the court's findings in support of the original order and whether circumstances have occurred since that time that would make it unfair or unjust to Paul to continue maintenance." Dissent at ¶ 36. The dissent cites Rosplock for the proposition that a "change in circumstances" must be such that it would be "unjust" to hold the payor of maintenance to continued payments. Dissent at ¶ 36. However, this formulation of the question is both inaccurate and so broadly stated as to provide no real standard at all.
      First, the part of Rosplock relied on by the dissent does not purport to set forth a comprehensive test for the existence of a "substantial change in circumstances," much less one covering when such a change warrants a change in or termination of maintenance. Indeed, Rosplock itself only addresses the change in circumstances needed to support consideration of modifying a.stipulated limited term maintenance. See Rosplock, 217 Wis. 2d at 32 n.6, 33. Rosplock, in turn, relies on Fobes v. Fobes, 124 Wis. 2d 72, 81, 368 N.W.2d 643 (1985), also a stipulated limited term maintenance case. See Fobes, 124 Wis. 2d at 81 ("Where the payments are according to stipulation, 'the substantial or material change in the circumstances should be such that it would be unjust or inequitable to strictly hold either party to the judgment.1" (quoting Moore v. Moore, 89 Wis. 2d 665, 669, 278 N.W2d 881 (1979) (citations omitted)). The origin of these cases is Miner v. Miner, 10 Wis. 2d 438, 103 N.W2d 4 (1960), which arose in the context of a stipulated agreement: "[W]here the judgment incorporates the provisions of an agreement of the parties in reference to alimony... the substantial or material change in the circumstances should be such that it would be unjust or inequitable to strictly hold either party to the judgment." Id. at 441-42; see also Van Gorder v. Van Gorder, 110 Wis. 2d 188, 195, 327 N.W.2d 674 (1983); Moore, 89 Wis. 2d at 669; Murray v. Murray, 231 Wis. 2d 71, 74, 77, 604 N.W2d 912 (Ct. App. 1999). Thus, the dissent uproots language in Rosplock and plants it in a different context.
      The threshold "substantial change in circumstances" test we apply here to an indefinite term maintenance order is the one set forth in a long line of cases including Wettstaedt v. Wettstaedt, 2001 WI App 94, ¶ 6, 242 Wis. 2d 709, 625 N.W.2d 900; Benn v. Benn, 230 Wis. 2d 301, 308-09, 602 N.W.2d 65 (Ct. App. 1999); Johnson v. Johnson, 217 Wis. 2d 124, 127, 576 N.W.2d 585 (Ct. App. 1998) (Johnson I); Haeuser v. Haeuser, 200 Wis. 2d 750, 764, 548 N.W.2d 535 (Ct. App. 1996); and Gerrits v. Gerrits, 167 Wis. 2d 429, 437, 482 N.W.2d 134 (Ct. App. 1992). As we explained in Gerrits:

      The general rule is that maintenance will be changed only upon "a positive showing of a change of circumstances." The change must be "substantial," and it "must relate to a change in the financial circumstances of the parties."
      [The payor spouse] does not dispute the general rule. Instead, he points to [Harris v. Harris, 141 Wis. 2d 569, 415 N.W.2d 586 (Ct. App. 1987)] as "distinctly Molding] that [the payee's] 'need'... is the threshold factor for postjudgment maintenance modifications." [The payor spouse] bases that assertion — and his argument — on the following statement in Harris: "[The husband] does not argue that he cannot pay more, and the trial court correctly concluded that [the wife] is not entitled to more maintenance simply because [the husband] can pay it." Id., 141 Wis. 2d at 579, 415 N.W2d at 591.
      [The payor spouse] reads Harris too narrowly. The case does not, as [the payor spouse] suggests, establish a bright-line requirement that any adjustment of maintenance is conditioned upon a showing of increased need on the payee's part. Rather, it discusses and continues the traditional rules governing maintenance — that its object, either when initially ordered or later revised, is to maintain the payee spouse in the financial situation enjoyed during the marriage.

      Maintenance is grounded in spousal support obligations long recognized in the law: "the obligation of the supporting spouse to support the other ... in the manner to which that spouse was accustomed during the marriage." . . . And in Harris — a case, like this one, seeking modification of maintenance — we said that "[t]he purpose of any maintenance adjustment is to fulfill the objective of the original judgment, which is to maintain the dependent spouse at the standard of living enjoyed during the marriage."

        Gerrits, 167 Wis. 2d at 437-38 (citations omitted; emphasis added). Thus, Gerrits makes it clear that the dissent employs the wrong test to this non-stipulation/indefinite-term maintenance situation.
      At the same time, we acknowledge that the case law on maintenance is not a paragon of clarity and we do not claim to have set forth a comprehensive road map for circuit courts faced with a motion to terminate or reduce maintenance in circumstances comparable to those in this case. If a clear guide exists in the case law, we were not able to discern it. Rather, we have taken the law provided by the parties, supplemented by substantial research of our own, and addressed individual arguments made by Linda challenging the decision of the circuit court. We do not say we would have reached the same decision as the circuit court. Rather, we conclude that Linda has not identified any legal error, wé find no legal error, and we do not find a misuse of discretion.
      Finally, it is curious that the dissent concludes that because the judge who issued the initial maintenance award anticipated that Linda's earnings would increase, the fact that Linda's earnings did increase "cannot support the legal conclusion of a substantial change in circumstances sufficient to terminate maintenance." Dissent at ¶ 39. We question whether such predictions are relevant to our de novo determination of whether a substantial change in circumstances has occurred. See Benn, 230 Wis. 2d at 307. Moreover, using this prediction to thwart an adjustment to or the termination of maintenance in this case is odd because the same judge who initially ordered maintenance and anticipated that Linda's income would increase likewise anticipated that such changes might justify a future modification. The judge stated: "[My] analysis becomes outdated once [Linda] earns in accordance with her capacity with completion of her education, and once the child support figures change."

       WISCONSIN Stat. § 767.26 (1999-2000) provides:
      Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under s. 767.02(l)(g) or (j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:
      (1) The length of the marriage.
      (2) The age and physical and emotional health of the parties.
      (3) The division of property made under s. 767.255.

        (4) The' educational level of each party at the time of marriage and at the time the action is commenced.
      (5) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
      (6) 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.
      (7) The tax consequences to each party.
      (8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
      (9) The contribution by one party to the education, training or increased earning power of the other.
      (10) Such other factors as the court may in each individual case determine to be relevant.
      All further references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Relying on Hubert v. Hubert, 159 Wis. 2d 803, 465 N.W.2d 252 (Ct. App. 1990), Johnson I inexplicably asserts that the "fairness objective" is a "factor focusing on noneconomic contributions made by the spouses 'during the marriage.'" Johnson I, 217 Wis. 2d at 128 (citations omitted). Johnson /'s reliance on Hubert for this proposition is misplaced. Hubert merely states that the "fairness objective is much broader, it brings under its umbrella all of the noneconomic contributions [of a spouse] made during the marriage." Hubert, 159 Wis. 2d at 821. And, as explained above, any assertion that the "fairness objective" focuses on noneconomic contributions of a spouse during marriage is contrary to the broad definition given the term in LaRocque v. LaRocque, 139 Wis. 2d 23, 33, 406 N.W2d 736 (1987).

       Linda also argues that both parties submitted budgets listing support for adult children as an expense, including Paul's budgets for June and July 2001. However, Paul's testimony demonstrates that his June and July 2001 budgets included both his and his current spouse's expenses. Paul's revised budget, listing only his expenses, did not include an expense for the support of adult children.

       We acknowledge that our conclusion presents a curious juxtaposition with maintenance payments for hobbies, vacations, and charitable contributions. But we cannot conclude that the legislative scheme is absurd and, in any event, Linda does not make that argument. We only know that when the legislature focused its attention on child support (the topic here), it determined that child support payments are limited only to benefit children who are "less than 18 years old, or . .. less than 19 years old if the child" is pursuing a high school degree or its equivalent. Wis. Stat. § 767.25(4).

       Although not disputed or addressed by Linda or Paul, we observe that a party seeking a modification of a maintenance award bears a threshold burden: proving the existence of a substantial change in circumstances. Haeuser, 200 Wis. 2d at 764. Further, the parties do not discuss the evidentiary burden after one party has made this threshold showing. In this case, by the time of the hearing both parties were seeking a change in the maintenance award (Paul sought termination and Linda sought an increase) and both parties presented evidence. Our comments that the evidence does not support certain arguments made by Linda, such as her assertion that her house needed more repairs or that she was in poorer health than at the time of the divorce, are not meant to suggest that Linda had a burden to produce evidence and failed to do so. Rather, we are only saying that the record does not support certain arguments by Linda. Linda does not phrase her arguments in terms of burden of proof and has not suggested, for example, that Paul failed to meet his burden to prove that the home's current condition and Linda's current health are comparable to what they were at the time of the divorce. To repeat, we have not addressed this burden issue because the parties have not briefed it.

       The majority opinion ignores Paul's increase in income and marked decrease in expenses, as did the circuit court.


author: DEININGER, J.

text:
    Epic Staff Management, Inc., and Continental Casualty Co., Plaintiffs-Appellants, v. Labor and Industry Review Commission, Defendant-Respondent, Porfirio Viveros, Defendant, Steelwind Industries, Inc., and Travelers Indemnity Co., Defendants-Respondents.
    Court of Appeals

      No. 02-2310.

      Submitted on briefs February 7, 2003.

      Decided June 26, 2003.

    2003 WI App 143
    (Also reported in 667 N.W.2d 765.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Christopher T. Kolb of Hailing & Cayo, S.C., Milwaukee.
    On behalf of the defendant-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of Lowell E. Nass, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendants-respondents, Steelwind Industries and Travelers Indemnity Co., the cause was submitted on the brief of John A. Griner IV of Law Offices of Catherine A. Thomas, Brookfield.
    Before Roggensack, Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Steelwind Industries, Inc., a steel fabricator, contracted with Epic Staff Management, Inc., for Epic to provide Steelwind with various human resource services, including the provision of worker's compensation insurance. Epic and its worker's compensation insurer, Continental Casualty Co., appeal a circuit court order that affirmed a determination by the Labor and Industry Review Commission that Epic and its carrier are responsible for worker's compensation benefits arising from an injury sustained by a worker at the Steelwind plant.

¶ 2. Epic claims that because its contract with Steelwind ended on a date prior to the worker's injury, Epic was not the employer responsible for his worker's compensation benefits. Epic also claims that the commission incorrectly concluded that Epic meets the definition of a "temporary help agency" under Wis. Stat. § 102.01(2)(f) (2001-02).

¶ 3. We conclude the commission did not err in determining that Epic is the employer responsible for providing worker's compensation benefits to the injured worker. We also conclude that the commission's statement that Epic is a "temporary help agency" was not necessary to its determination of the responsible employer. Accordingly, we direct that the discussion of Epic's status as a "temporary help agency" under Wis. Stat. §§ 102.01(2)(f) and 102.04(2m) be stricken from the circuit court and commission orders. So modified, we affirm.

BACKGROUND

¶ 4. Steelwind is a steel fabricator specializing in the construction of large castings and structural steel components. Epic refers to itself as a "professional employer organization" that contracts with businesses to provide various human resource services. Epic and its clients typically divide employer rights and responsibilities as follows: Epic assumes responsibility for paying and reporting wages, providing health benefits, and procuring worker's compensation insurance for worksite employees, while Epic's clients (such as Steel-wind) supervise, direct, and control the day-to-day worksite activities. Epic fulfills its obligations with funds provided by the client and it charges a fee for its services.

¶ 5. In January 1999, Epic contracted with Steel-wind to, among other things, pay "taxes and wages," procure health benefits, and "secure and maintain Workers' Compensation coverage" for Steelwind's workforce. At the start of the contract, Epic hired Steelwind's production workforce and formally became the workers' employer for payroll, tax and insurance purposes. Steelwind provided Epic with the funds necessary to issue payroll checks to workers and to pay the various insurance premiums when due. Steelwind also paid Epic a fee for fulfilling these and other services rendered under the contract.

¶ 6. The term of the contract was one year, ending on December 31, 1999. The contract provided it would automatically renew for an additional one-year term in the absence of a termination notice given by either party not later than thirty days prior to the expiration of the first one-year term.

¶ 7. By late 1999, Steelwind was dissatisfied with its arrangement with Epic and wanted to terminate the contract. Steelwind retained a worker's compensation insurer to assume the coverage previously obtained through Epic, with coverage effective December 31, 1999. Steelwind did not, however, provide Epic with the thirty-day termination notice required by contract. Thus, in December 1999 and January 2000, Steelwind and Epic discussed the possibility of terminating the contract through a separate agreement.

¶ 8. On January 10, 2000, a worker at the Steel-wind plant was injured while performing his job duties. Two days later, Epic and Steelwind reached an agreement to terminate their contract. Among other things, the parties agreed that the termination of their contract would be effective as of December 31, 1999. The agreement did not, however, specifically address responsibility for the injuries sustained by the worker at the Steelwind plant two days earlier.

¶ 9. The injured worker filed a worker's compensation claim and Steelwind's insurer paid all benefits due. Steelwind and its insurer then filed a hearing application with the Department of Workforce Development, seeking reimbursement from Epic on the grounds that the injured worker was Epic's employee, not Steelwind's, at the time of the injury. An administrative law judge agreed with Steelwind, determining that because the initial agreement between Steelwind and Epic was still in effect on the injury date, Epic was the employer responsible for worker's compensation benefits. The administrative law judge did not give effect to the parties' agreement to backdate the termination of their contract to December 31,1999, ten days prior to the accident. He concluded that it "would clearly be contrary to public policy to have agreements terminated retroactively to avoid liability."

¶ 10. The administrative law judge ordered Epic and its insurer to reimburse Steelwind's insurer for the worker's compensation benefits paid to date. Epic appealed the decision to the Labor and Industry Review Commission. The commission framed the "dispositive question" before it as "what effect should [it] give the retroactive termination" of the parties' contract. The commission resolved this question by analyzing Wis. Stat. § 102.03(1). The commission concluded as follows:

Under Wis. Stat. § 102.03(1) an employer is liable where, at the time of the injury, the employer and employee are subject to Wis. Stat. ch. 102. The time of the injury in this case was January 10, 2000. On that date, the [parties' contract] had not yet been cancelled and remained in effect. On that date, Epic was the subject employer vis-a-vis the [injured worker],

¶ 11. Based on this conclusion, the commission determined that "[f]or the purposes of the authority of the department and this commission under Wis. Stat. ch. 102," Epic was the "employer at the time of the injury" and therefore is "the liable employer" for worker's compensation benefits. The commission thus determined that the parties' January 12th retroactive termination agreement could not serve to relieve Epic of its obligations as an employer under ch. 102 for the January 10th injury. It commented, however, that "Epic may be able to rely on [the January 12th retroactive termination agreement] to obtain contribution from Steelwind in an action in equity or . . . contract."

¶ 12. Epic sought judicial review of the commission's decision and order. The circuit court affirmed the commission's decision, concluding that Epic was the "liable party" because "at the time of [the] injury, the contract was not cancelled." Epic appeals the circuit court's order. Steelwind and the commission respond, both asserting the correctness of the circuit court and commission orders.

ANALYSIS

¶ 13. We review the commission's factual findings and legal conclusions, not those of the circuit court. Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 930, 541 N.W.2d 241 (Ct. App. 1995). Whether Epic is responsible for worker's compensation benefits under Wis. Stat. ch. 102 is a mixed question of law and fact. See id. at 931. Because the parties do not contest the material facts on appeal, our review is limited to the commission's application of the worker's compensation statutes to these facts, which presents a question of law. See id.

¶ 14. Through various concessions, the parties have narrowed the scope of this appeal to a single question. The parties agree that: (1) the injured worker is entitled to worker's compensation benefits; (2) Epic was the employer responsible for worker's compensation benefits for the duration of the parties' January 1, 1999 contract; and (3) the parties did not agree to terminate the contract until after the injury occurred. The only issue in dispute is whether the commission must honor the parties' retroactive termination agreement when determining the responsible employer for purposes of Wis. Stat. ch. 102.

¶ 15. As we have described, the commission decided it need not and should not give retroactive effect to the termination agreement, concluding instead that the parties' rights and responsibilities under the worker's compensation act became fixed when the injury occurred, regardless of any post-injury agreements to the contrary. This is a legal conclusion, and when reviewing the commission's conclusion of law,

[w]e apply a sliding scale of deference that is contingent upon the level of [the commission's] experience, technical competence and specialized knowledge. The greatest level of deference requires that we give great weight to [the commission's] legal conclusion[] if it is a question that it routinely resolves. The next level of deference provides that if [the commission's] decision is very nearly one of first impression, we must give due weight to that decision. Finally, we owe no deference to [the commission] and will conduct a de novo review if it is clear from the lack of precedent that the case is one of first impression and [the commission's] special expertise and experience [are] no greater than ours.

Bretl v. LIRC, 204 Wis. 2d 93, 104-05, 553 N.W.2d 550 (Ct. App. 1996) (citations omitted).

¶ 16. The parties dispute the level of deference we should grant to the commission's conclusion. Steelwind and the commission assert that we owe great weight deference to the commission's decision because the legislature has charged the commission "with determining disputed compensation claims and as such has developed expertise in the area." Epic counters that de novo review is appropriate because this case involves a question of "first impression," one which Epic nonetheless acknowledges involves an issue of "public policy."

¶ 17. We conclude that the commission's decision should be accorded, at a minimum, due weight deference. We agree with Epic that it does not appear the commission has had previous occasion to apply Wis. Stat. § 102.03(1) to an attempted retroactive alteration of an employment relationship. We conclude, however, that the public policy implications of the commission's ruling weigh in favor of our according it at least due weight deference. An agency's ruling is entitled to judicial deference when the agency is called upon to make "significant policy judgments relating to the implementation and administration" of a statute it is charged with administering. Dodgeland Educ. Ass'n v. WERC, 2000 WI App 260, ¶ 27, 240 Wis. 2d 287, 623 N.W.2d 159, aff'd, 2002 WI 22, 250 Wis. 2d 357, 639 N.W2d 733; see also West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 12, 357 N.W2d 534 (1984) ("Where a legal question is intertwined with .. . value or policy determinations ... a court should defer to the agency which has primary responsibility for determination of fact and policy.").

¶ 18. Moreover, we note that when an agency has "developed broad expertise in [an] area," and the application of a statute to particular facts "implicates value and policy judgments," the agency's lack of "particular expertise on the question presented" does not prevent our according it due weight deference. Telemark Dev., Inc. v. DOR, 218 Wis. 2d 809, 821, 581 N.W2d 585 (Ct. App. 1998). We conclude that is the case here. See, e.g., Begel v. LIRC, 2001 WI App 134, ¶ 8, 246 Wis. 2d 345, 631 N.W.2d 220 ("LIRC has administered the worker's compensation statutes for more than eighty years and, as a consequence, it has developed considerable expertise."). Accordingly, we accord the commission's present determination due weight deference.

¶ 19. Under due weight deference, "a court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available." UFE Inc. v. LIRC, 201 Wis. 2d 274, 286-87, 548 N.W.2d 57 (1996). An interpretation of a statute is reasonable if it is consistent with "the language of the statute, arguably relevant case law, and colorable claims as to the legislative purpose and intent behind" the statutory scheme at issue. Dodgeland Educ. Ass'n, 240 Wis. 2d 287, ¶ 24. We conclude that the commission's interpretation of Wis. Stat. § 102.03(1) meets this standard. We also conclude that Epic's desired contrary interpretation is not more reasonable.

¶ 20. First, the commission's decision is consistent with the plain language of Wis. Stat. § 102.03(1). Section 102.03(1) provides that worker's compensation liability "shall exist" if "at the time of the injury," the employer and employee are subject to the worker's compensation act, and if "at the time of the injury" the employee is performing his job duties. Because § 102.03(1) provides that liability under Wis. Stat. ch. 102 is determined by the circumstances existing "at the time- of the injury," the commission reasonably con-eluded that the parties' rights and responsibilities under the worker's compensation act should also be conclusively established at the time of the injury.

¶ 21. Second, the commission's decision is consistent with closely related case law. Wisconsin courts have long held that the parties' rights and responsibilities become fixed under the worker's compensation act on "the date when the employee is disabled from rendering further service." Employers Mut. Liab. Ins. Co. v. McCormick, 195 Wis. 410, 414, 217 N.W. 738 (1928). The worker in McCormick contracted tuberculosis as a result of his employment and eventually became totally disabled due to the disease. Id. at 415. During the period of the worker's employment (and the gradual onset of his disease), his employer had three different worker's compensation insurers. The question before the supreme court was which of the three insurers was responsible for worker's compensation benefits. Id. at 411.

¶ 22. Pointing to provisions in the worker's compensation act that required various events to occur within a certain number of days from the injury date, the court noted that the legislature "framed" the provisions of the act "with the thought that there would always be a definite date — that of the accident — which would be the basis for determining liability." Id. at 414. Consistent with this legislative intent and the need to avoid making the act too "difficult to administer," the court held that "[t]he company that had insured the compensation liability at the time disability occurred is the one that must pay the compensation awarded." Id. at 414-15. We view the commission's decision as being consistent with the bright line rule of McCormick that fixes an insurer's liability under the worker's compensation act on the date of an injury or disability.

¶ 23. Finally, the commission's decision is consistent with the legislative intent behind the worker's compensation act. The "basic purpose" of the worker's compensation act "is to provide prompt justice for injured workers and to prevent, as far as possible, the delays that might arise from protracted litigation. The proceedings should be as simple and as speedy as possible." Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 738, 469 N.W2d 203 (Ct. App. 1991) (citation omitted). The commission could reasonably conclude that allowing parties to retroactively alter employment relationships that existed on the date of a compensable injury would conflict with the goals of promptness, certainty and efficiency in compensating injured workers.

¶ 24. We therefore conclude that the commission's interpretation of Wis. Stat. § 102.03(1) is reasonable because it is consistent with the statute's language, relevant case law, and the legislative purpose behind the statute. We therefore turn to a consideration of Epic's proffered interpretation that Wis. Stat. ch. 102 does not prevent employers from entering into post-injury agreements shifting responsibility for worker's compensation payments. We may adopt Epic's interpretation only if we conclude it is more reasonable than the commission's. CenturyTel of Midwest-Kendall, Inc. v. PSC, 2002 WI App 236, ¶ 18, 257 Wis. 2d 837, 653 N.W.2d 130, review dismissed, 2003 WI 1, 258 Wis. 2d 111, 655 N.W.2d 130 (Wis. Nov. 12, 2002) (No. 02-0053).

¶ 25. Epic claims that its interpretation is the more reasonable one because the commission's decision thwarts Epic's "fundamental" right to contract with others. We disagree. The scope of the commission's decision is limited to the determination of the parties' rights and responsibilities under the worker's compensation act. The commission specifically noted in its decision that "Epic may be able to rely" on its contract termination agreement "to obtain contribution from Steelwind in an action in equity or on the contract itself."

¶ 26. Epic argues, however, that it cannot seek alternative relief from Steelwind because the commission mistakenly said in its decision that Epic comes "within the definition of a 'temporary help agency' in Wis. Stat. § 102.01(2)(f) because Epic leased or placed its employees with Steelwind." Epic directs our attention to Wis. Stat. § 102.04(2m), which provides that a temporary help agency "may not seek or receive reimbursement from another employer for any payments" of compensation made to an injured employee. Epic is understandably concerned that if the commission's conclusion that it is a "temporary help agency" is permitted to stand, the doctrine of issue preclusion and the language of § 102.04(2m) may prevent it from obtaining the very relief from Steelwind that the commission suggested Epic was entitled to pursue.

¶ 27. Wisconsin Stat. § 102.01(2)© defines a "temporary help agency" as "an employer who places its employee with or leases its employees to another employer who controls the employee's work activities and compensates the first employer for the employee's services, regardless of the duration of the services." Epic claims that it did not lease or place its employees with Steelwind. Rather, it asserts that, at the start of the parties' contract, Epic hired Steelwind's employees. Thus, in Epic's view, it did not lease employees to Steelwind but simply assumed certain employer responsibilities for Steelwind's existing workforce.

¶ 28. We also note that it could be argued that Steelwind did not compensate Epic for the services provided by Epic employees, another element of the definition under Wis. Stat. § 102.01(2)©. The compensation Steelwind paid to Epic was ostensibly for the human resources services Epic provided. The language of the parties' contract supports this view ("EPIC is strictly in the business of managing certain aspects of human resources for [Steelwind]"), as does the testimony of Steelwind's president:

We entered in a contract. . . for EPIC Staff Management to kick over employment, Human Resource, [and] OSHA [Occupational Safety and Health Act] compliance for all employees of Steelwind effective January 1st of '99.
. . . [A]t the time I signed the agreement, [Epic] had several HR people, several OSHA compliance people on staff, very knowledgeable.
I had anticipated at that time that we would go from employing probably 40 people up to approximately 150 people, and I felt that we were not in a position that we could handle the OSHA compliance, handle the HR issues, so we elected to pay EPIC Staff Management six percent of payroll to handle all of these items.

¶ 29. Epic did not dispute before the commission that it was liable as the employer of Steelwind's workforce for the payment of worker's compensation benefits to employees for as long as its contract with Steelwind remained in effect. That is, had the worker been injured on December 30, 1999, instead of on January 10, 2000, the instant dispute would not have materialized. The only question the commission was asked to decide was whether the January 12th agreement between Epic and Steelwind terminated Epic's obligations as an employer under Wis. Stat. ch. 102 as of December 31,1999. It was not necessary, therefore, for the commission to decide whether Epic met the statutory definition of a "temporary help agency." Epic acknowledged its status as the injured worker's one-time employer for purposes of ch. 102, claiming only that its employer status terminated as of a date prior to the injury.

¶ 30. Because the commission's conclusion that Epic is a "temporary help agency" under Wis. Stat. § 102.01 (2) (f) was not necessary to its determination, and because the commission plainly contemplated that Epic should not be precluded from pursuing Steelwind for reimbursement for the benefits at issue, we modify the circuit court and commission decisions by striking all discussion of and references to "temporary help agency" and Wis. Stat. §§ 102.01(2)(f) and 102.04(2m). Thus, should Epic elect to pursue Steelwind for reimbursement under its termination agreement of January 12, 2000, a court will not be precluded from considering anew the impact (if any) of §§ 102.01(2)(f) and 102.04(2m) on Epic's ability to recover.

CONCLUSION

¶ 31. For the reasons discussed above, we modify the appealed circuit court order, as well as the commission decision under review, in the manner specified in the preceding paragraph. So modified, we affirm.

By the Court. — Order modified and, as modified, affirmed.

       Epic and its insurer filed a joint brief, as did Steelwind and its insurer, Travelers Indemnity Co. We refer to the parties as "Epic" and "Steelwind," respectively. The caption also includes the injured worker, Porfirio Viveros, as a defendant. There is no dispute that Mr. Viveros is entitled to worker's compensation benefits from either Epic or Steelwind, and he has not participated in this appeal.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 102.03(1) states in relevant part:
      (1) Liability under this chapter shall exist against an employer only where the following conditions concur:
      (a) Where the employee sustains an injury.
      (b) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.
      (c) 1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.

       Because we conclude that the commission's decision is affirmable under the due weight standard of review, we need not decide whether the commission's decision might be entitled to great weight deference, as both Steelwind and the commission contend. See CenturyTel of Midwest-Kendall, Inc. v. PSC, 2002 WI App 236, ¶ 18, 257 Wis. 2d 837, 653 N.W2d 130, review dismissed, 2003 WI 1, 258 Wis. 2d 111, 655 N.W2d 130 (Wis. Nov. 12, 2002) (No. 02-0053).

       We cited McCormick in North River Insurance Co. v. Manpower Temporary Services, 212 Wis. 2d 63, 74, 568 N.W2d 15 (Ct. App. 1997). In North River, an employee of a temporary services company experienced wrist pain while working at a factory. Id. at 66. The employee eventually terminated his temporary employment status with the company and became an employee of the factory. Id. Within the first few days of work as a factory employee, the employee's pain became too severe for him to perform his duties. Id. at 66-67. We concluded that the factory was liable for worker's compensation benefits, despite the fact that it had employed the worker for only a few days, because it was his employer at the time the disability occurred. Id. at 73-74.

       Epic hired the injured worker at some time after the contract start date, but it appears from the record that the hiring decision was Steelwind's and that Epic provided human resource services for the employee as it did for all of Steelwind's workforce under the parties' contract.

       Because the commission's decision stands without reliance on Wis. Stat. § 102.01(2)(f), it is likewise unnecessary for this court to decide whether Epic is a "temporary help agency." We note that the supreme court has considered the purpose and scope of the "temporary help agency" definition adopted by the legislature in 1981. See Gansch v. Nekoosa Papers, Inc., 158 Wis. 2d 743, 463 N.W.2d 682 (1990). The court explained that the definition in § 102.01(2)(f), together with Wis. Stat. § 102.29(6) (barring employees of temporary help agencies from suing lessee-employers in tort for injuries submitted as worker's compensation claims), was a "legislative response" intended to clarify and simplify "the determination of whether a temporary employee injured in the workplace may maintain a tort action against the temporary employer." Id. at 751-52. The court concluded that the definition is not limited "to an employer who is in the business of placing its employees with another employer," id. at 748-49, and that an equipment-lessor was a "temporary help agency" when it leased a bulldozer and its operator to a paper mill for use at the mill and received compensation from the mill for the operator's services, id. at 752-55.