author: NETTESHEIM, J.

text:
    Robert A. Benkoski, Plaintiff-Respondent, v. Mark A. Flood, Defendant-Appellant, Kathleen M. Flood, Defendant.
    Court of Appeals

      No. 00-1250.

      Submitted on briefs November 22, 2000.

    Decided March 7, 2001.

    2001 WI App 84
    (Also reported in 626 N.W.2d 851.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul W. Rosenfeldt of Edgarton, St. Peter, Petak, Massey & Bullón of Fond du Lac.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David Goluba of Ripon.
    Before Brown, P.J., Nettesheim and Snyder, JJ.
   NETTESHEIM, J.

¶ 1. This case makes its second appearance in the court of appeals. This court previously determined that Wis. Stat. § 710.15 (1999-2000) and Wis. Admin. Code ch. ATCP 125 applied to the contractual relationship between Mark A. Flood, the owner of a mobile home park, and Robert A. Benkoski, the owner of certain mobile homes located in the park. See Benkoski v. Flood, 229 Wis. 2d 377, 387-92, 599 N.W.2d 885 (Ct. App. 1999) (Benkoski I). We further held that Flood had violated Wis. Stat. § 710.15(4) and Wis. Admin. Code §§ ATCP 125.06 and 125.09 by requiring Benkoski to remove his mobile homes when sold. Benkoski I, 229 Wis. 2d at 393. We remanded for a trial to determine Benkoski's damages pursuant to Wis. Stat. § 100.20(5). Benkoski I, 229 Wis. 2d at 393.

¶ 2. Following the bench trial on remand, the trial court awarded pecuniary damages, attorney fees and costs to Benkoski. Flood appeals, raising the following issues: (1) the trial court erroneously applied the ordinary civil burden of proof; (2) under any burden of proof standard, the evidence is insufficient to support the finding that Benkoski had entered into an agreement to sell his mobile home; (3) the trial court erroneously calculated Benkoski's damages; and (4) the trial court erroneously awarded Benkoski attorney fees for his defense of Flood's counterclaim. We reject all of Flood's arguments. We affirm the judgment.

FACTS

¶ 3. A complete recitation of the underlying facts to this dispute has already been set forth in our prior decision. See id. at 380-83. For purposes of this decision, we need only restate that Flood leased lots in his mobile home park to Benkoski, who in turn rented his mobile homes on the lots to third parties. The lease between Flood and Benkoski provided that Benkoski could not sublet the sites unless prior approval had been granted by Flood. Later, Flood imposed an additional condition requiring that any purchaser of a mobile home owned by Benkoski would have to remove the home at the end of the lease. When Benkoski attempted to sell one of the mobile homes, Flood refused to approve the application for tenancy because Benkoski would not agree to the removal condition. Id. at 380. As noted, we previously held that Flood's actions violated the administrative code which forbids a mobile home park operator from placing unreasonable restrictions on the sale of a mobile home located in the park. Id. at 391-92.

¶ 4. In keeping with our remand, the trial court conducted a trial on damages. The court found that Flood's actions thwarted a potential sale by Benkoski of one of his mobile homes to Kenneth and Linda Long-sine for $6500. After invoking the double damages provision of WlS. Stat. § 100.20(5), the court fixed Benkoski's pecuniary loss arising out of the lost sale at $10,240. Following a later hearing on attorney fees, the court awarded Benkoski $51,262.51 in attorney fees and $1329.60 in costs.

¶ 5. Flood moved for reconsideration. He challenged (1) the trial court's application of the ordinary burden of proof in this case versus the middle burden for which he had argued; (2) the trial court's doubling of the lost sale price prior to deducting the fair market value of the mobile home; and (3) the trial court's failure to offset the stream of rental income produced by the mobile home after the lost sale.

¶ 6. Following a hearing, the trial court denied the reconsideration motion. The court held that the supreme court's decision in Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650, 529 N.W.2d 905 (1995), supported its determination that the ordinary civil burden of proof applied to this case. The court further held that doubling of the lost sale price was appropriate in light of similarities between this type of case and Lemon Law and landlord/tenant cases. In addition, the court held that the rental income after the lost sale was not relevant to the issue of Benkoski's pecuniary loss.

DISCUSSION

¶ 7. While Flood's appellate brief breaks out into many issues and subissues, we see four issues: (1) the proper burden of proof, (2) whether the evidence showed an agreement between Benkoski and the Long-sines for the sale of the mobile home, (3) the proper calculation of damages, and (4) the proper award of attorney fees.

¶ 8. We begin with a discussion of our standards of review. The determination of the appropriate burden of proof required by Wis. Stat. § 100.20(5) presents a question of statutory interpretation. Carlson, 190 Wis. 2d at 658. The same standard applies to Flood's challenge to the trial court's calculation of damages since that argument rests on the meaning of "pecuniary loss" as that term is used in the statute. We interpret the statute independent of the trial court's interpretation. Id. Nonetheless, we benefit from the analysis performed by the trial court. Id. "The principal objective of statutory interpretation is to ascertain and give effect to the intent of the legislature." Id. We ascertain that intent by examining the language of the statute and the scope, history, context, subject matter and purpose of the statute. Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996). We are also aware that remedial statutes should be liberally construed to suppress the mischief and advance the remedy that the statute intended to afford. Id.

¶ 9. Flood's challenge to the trial court's finding that Benkoski and the Longsines reached an agreement for the sale, of the mobile home requires that we apply the clearly erroneous standard of review. See Wis. Stat. § 805.17(2).

¶ 10. Finally, appellate review of an award of attorney fees is limited to whether the trial court properly exercised its discretion. Hughes, 197 Wis. 2d at 987. Such discretion is properly exercised if the court "employs a logical rationale based on the appropriate legal principles and facts of record." Id. (citation omitted).

1. Burden of Proof

¶ 11. Flood contends that the appropriate burden of proof to apply in calculating damages under WlS. Stat. § 100.20(5) is the middle burden — the clear and convincing evidence standard. See Wis JI — CIVIL 205. Benkoski, on the other hand, argues that the trial court was correct in applying the ordinary civil burden — the reasonable certainty by the greater weight of the credible evidence standard. See Wis JI — Civil 200.

¶ 12. Flood offers two arguments in support of the middle burden of proof. First, he argues that his conduct is subject to criminal penalties and, as such, State v. Fonk's Mobile Home Park and Sales, Inc., 133 Wis. 2d 287, 395 N.W.2d 786 (Ct. App. 1986), holds that the middle burden of proof applies.

¶ 13. We disagree that Fonk's controls this issue. There, the State brought a civil action against a mobile home park operator for violating Wis. Admin. Code § AT CP 125.07 by unreasonably restricting its tenants' resale of mobile homes. See Fonk's, 133 Wis. 2d at 290-91. The trial court found that Fonk's had violated the administrative code and issued an injunction. See id. at 291. One of the issues on appeal was whether the State had satisfied its burden of proof. Both the State and Fonk's agreed that the middle burden of proof applied because the conduct involved was subject to criminal penalties. We also agreed. Id. at 301 & n.7.

¶ 14. However, in Carlson, our supreme court distanced itself from our burden of proof statement in Fonk's. The Carlson court stated, "The question of the appropriate standard of proof was not, however, at issue in Fonk's; the parties in Fonk's had agreed that the middle burden applied." Carlson, 190 Wis. 2d at 659 n.7. Thus, Carlson observed that there were no published Wisconsin cases that addressed the applicability of the middle burden of proof to a private, civil cause of action. Id. at 658 n.7. Carlson went on to hold that the ordinary burden of proof applies to cases under Wis. Stat. ch. 133 — the "Little Sherman" Antitrust Act — notwithstanding its provision for treble damages and possible criminal penalties. See Carlson, 190 Wis. 2d at 667-68.

¶ 15. Although Carlson was an antitrust case and this is an unfair trade practices case, we conclude that Carlson represents the appropriate framework for our burden of proof analysis. In deciding that the ordinary burden of proof applied, the Carlson court noted the remedial aspects of the antitrust law. The court held that application of the lower burden advanced the legislative purpose of the Wisconsin antitrust law and comported with the Wisconsin tradition of adhering to interpretations of the federal antitrust law on which our state antitrust law is based. Id. at 662. The court noted that the purpose of the antitrust statute was to prevent restraint of free competition that harms the public, to prevent monopolies, and to generally encourage free competition. Id. Toward that end, the legislature determined that private, civil suits are an important method of enforcing the antitrust statute because it was filled with incentives for private litigants: tolling of the statute of limitations, as well as the awarding of costs and attorney fees. Id. at 663. With such incentives in place, private parties serve as "private attorney generals" that supplement the limited resources of the state in enforcing the law. Id. at 663-64.

¶ 16. WISCONSIN Stat. § 100.20 is similarly remedial. The statute addresses methods of competition and trade practices. Subsection (5), which provides for double damages together with attorney fees and costs, supplies the teeth to the unfair trade practice regulations promulgated under subsec. (2) of the statute. Wis consin Admin. Code ch. ATCP 125, which governs mobile home parks, was created pursuant to this authority. In our earlier decision, we held that Flood's policy mandating the removal of Benkoski's mobile homes upon resale violated §§ ATCP 125.06 and 125.09. See Benkoski I, 229 Wis. 2d at 393. This violation of ch. ATCP 125 entitled Benkoski to damages under § 100.20(5).

¶ 17. The purposes and policies underlying Wis. Stat. § 100.20(5) are very much like those underlying the Wisconsin antitrust law as discussed in Carlson. In Shands v. Castrovinci, 115 Wis. 2d 352, 340 N.W.2d 506 (1983), our supreme court laid out these policies. First, the awarding of double damages and attorney fees encourages those injured by unfair trade practices in violation of the administrative regulations to bring forward their causes of action. Id. at 358. Second, the statutory remedies encourage individuals to act as "private attorney generals" in enforcing their rights, with the aggregate effect of these individual actions operating to enforce the public's rights. Id. Third, the statutory remedies deter impermissible conduct that violates administrative regulations because they subject the violator to double damages, attorney fees and costs. Id. Fourth, private actions augment enforcement of the administrative regulations by the department of justice, which has insufficient resources to prosecute all violations. Id. at 358-59. The application of the ordinary civil burden of proof fosters these policies.

¶ 18. As his second argument in support of the middle burden of proof, Flood relies on the law of punitive damages, likening those damages to the multiple damages authorized by Wis. Stat. § 100.20(5). Flood argues, "[T]here is indeed a long line of Wisconsin cases which strongly suggest that the middle burden of proof is to be applied in multiple damages cases regardless of whether conduct that is subject to criminal penalties is involved." Flood claims that Carlson recognizes as much. We disagree. In fact, Carlson is to the contrary because it explicitly recognizes that there are important distinctions between common law punitive damages—which traditionally call for the higher, middle burden of proof, see Carlson, 190 Wis. 2d at 659—and statutory multiple damages. Id. at 660 n.9. Thus, Flood's reliance on the punitive damages cases is misplaced. We agree with the trial court that the ordinary burden of proof is the proper standard to apply as it best advances the remedial purposes of the statute.

2. Sufficiency of the Evidence

¶ 19. Next, Flood argues that Benkoski failed to meet the burden of proof under any standard. Specifically, Flood argues that the evidence does not establish an agreement between Benkoski and the Longsines for the sale of Benkoski's mobile home. On this point, each party is able to point to certain evidence supporting their competing positions. This necessitated that the trial court engage in fact-finding. As such, we will affirm the trial court's findings unless clearly erroneous. See Wis. Stat. § 805.17(2).

¶ 20. The key pieces of evidence on this issue are the various documents memorializing the agreement between Benkoski and the Longsines and the testimony of Linda Longsine. At trial, Benkoski submitted a copy of the application for tenancy signed by him and the Longsines, which was submitted to Flood for his approval. In addition to personal information about the prospective tenants, the document lists an agreed upon sale price of $6500 for the mobile home, which was to be financed by Benkoski. The record also contains copies of two receipts issued by Benkoski to the Longsines. The first one is in the amount of $50 and indicates that the payment was a partial down payment on the purchase of the mobile home. The second one is for $950 and indicates that the payment was in part for rent, in part a security deposit and in part for a credit report, with the balance to be applied toward the purchase price. A cover letter was also submitted to Flood with the application for tenancy that states that the Longsines were purchasing the mobile home in question, and that they were "interested in completing this deal as soon as they receive confirmation from [Flood]." Flood's response was to reject the Longsines' application for tenancy and reiterate his policy that Benkoski's mobile homes would have to be removed from his park upon their next sale.

¶ 21. The nature of the agreement between the Longsines and Benkoski became a little more uncertain following Linda Longsine's testimony at trial. Flood argues that in order for Benkoski to satisfy his burden of proof, he had to show that "but for the Floods' refusal to process the Longsines' Application for Tenancy, the Longsines would have purchased the mobile home." Flood believes that Linda's testimony concerning "her readiness and willingness to purchase the mobile home was equivocal at best." Flood supports this with portions of Linda's testimony on cross-examination where she said that Benkoski offered several occupancy options and that she chose the "rent-to-own" option. However, she also said that she did not think this arrangement obligated her to purchase the mobile home. Flood further cites to portions of Linda's testimony stating that she and her family continued to rent Benkoski's mobile home for a period of nine months, but moved out to purchase a different mobile home because Benkoski was slow to respond to complaints about the home and it was too small for her family.

¶ 22. The trial court also questioned Linda about her understanding of the agreement, which elicited the following testimony:

Q In your mind, on the 3rd of January of '95 when you signed the [application for tenancy], did you have an understanding of what you would have been purchasing and for how much
A Yes.
Q —if anything? What?
A We would have been purchasing — we would have purchased this mobile home for the price that he has, $6,500.
Q And what was that contingent upon, if anything?
A Can you rephrase that?
Q Okay. You were going to do that if what happened?
A If he could get Flood to approve us, but Flood had told us — or had said that we would have to move the mobile home out.

¶ 23. Ultimately, the trial court concluded that an agreement to purchase the mobile home existed, that the agreement was subject to Flood's approval of the application for tenancy, and that but for Flood's denial of the application, the Longsines would have purchased Benkoski's mobile home for $6500. The court also viewed the money paid by the Longsines to Benkoski as part performance on the deal. It is for these reasons that the court believed the Longsines were "ready, willing and able buyer[s] to purchase the home at that time . . . prior to Flood's . . . refusal to accept the application." While it is true that the Long-sines later changed their minds about purchasing the mobile home because they became unhappy with the size and condition of the home, the evidence supports the trial court's implicit determination that had Flood approved the application for tenancy, the deal would have closed. The trial court's finding that Benkoski and the Longsines reached an agreement for the sale of the mobile home was not clearly erroneous.

3. Calculation of Damages

¶ 24. Flood challenges the trial court's calculation of damages. Flood's first argument focuses on the meaning of "pecuniary loss" as used in WlS. STAT. § 100.20(5), and how that term bears upon the methodology intended by the legislature in calculating damages under that section. As stated earlier, this issue presents a question of statutory interpretation that we review de novo.

¶ 25. Flood argues that the trial court erred in doubling Benkoski's loss from the lost mobile home sale prior to subtracting the fair market value of the mobile home. Borrowing from Lemon Law and landlord/tenant law, the court determined that Benkoski's initial damages were $6500 for the purchase price he was to receive and $120 in advertising costs. The court then doubled that amount to $13,240. Thereafter, the court deducted the fair market value of the mobile home — $3000—to produce a net recovery to Benkoski of $10,240.

¶ 26. Flood contends that the trial court should have subtracted the fair market value of the mobile home from the sum of the purchase price and advertising expenses prior to applying the damage multiplier in WlS. Stat. § 100.20(5). Instead of the trial court's analogy to Lemon Law and landlord/tenant law, Flood argues for a contract law "benefit-of-the-bargain" approach.

¶ 27. But the supreme court rejected an argument similar to Flood's in Hughes, a Lemon Law case. There, Chrysler argued that pecuniary loss should be limited to out-of-pocket expenses rather than the full purchase price of the car. See Hughes, 197 Wis. 2d at 978. Instead, the supreme court concluded that the legislature intended to include the purchase price in pecuniary damages under the Lemon Law. Id. at 982. The court based its holding on the following factors: (1) it would provide consumers with remedies that are meaningfully better than those afforded by statute prior to enactment of the Lemon Law; (2) doubling the purchase price as damages would provide more incentive for manufacturers to resolve disputes more quickly, without litigation; and (3) recovery would be large enough to give vehicle owners incentive to bring suit. Id. at 983.

¶ 28. The court of appeals has also rejected a similar argument in Moonlight v. Boyce, 125 Wis. 2d 298, 372 N.W.2d 479 (Ct. App. 1985). Moonlight is particularly instructive because it involves landlord/tenant regulations with violations subject to the penalties set out in Wis. Stat. § 100.20(5) — the same remedies afforded in this case. In Moonlight, the landlord argued that there were no pecuniary damages arising out of the tenant's improperly withheld security deposit because the landlord's counterclaim award for damage to the property exceeded the amount of the security deposit. See Moonlight, 125 Wis. 2d at 303. This court concluded, however, that once an administrative code violation was found, the tenant suffers a pecuniary loss under § 100.20(5) in the amount of the security deposit, regardless of the amount of damages the landlord may recover on a counterclaim. Moonlight, 125 Wis. 2d at 305-06. We based this holding on the purposes of the administrative code provisions, § 100.20(5) and the policy interests discussed in Shands. See Moonlight, 125 Wisi 2d at 306. As such, we held that the tenant was entitled to the remedies' of § 100.20(5), including double the amount of the pecuniary loss. Moonlight, 125 Wis. 2d at 306.

¶ 29. Moreover, Flood's proposed methodology would create a scenario counter to that envisioned by the legislature when it created this remedial statute. As Benkoski points out, in the average case, an injured party would rarely be able to negotiate a price greater than market value for his or her property. In such a case, an injured party would be remediless because he or she would still have his or her property — thus zeroing out the amount of pecuniary loss prior to applying the damage multiplier. Flood's approach does not promote the purposes and objectives that lie behind the legislature's creation of the damage multiplier provision in Wis. Stat. § 100.20(5). Thus, we agree with the trial court's method of calculating damages because it furthers the statutory objectives behind § 100.20(5). We hold that the trial court properly doubled Benkoski's lost sale price and advertising expense prior to subtracting the fair market value of the mobile home that Benkoski retained.

¶ 30. Flood's final argument regarding calculation of damages is that the evidence does not support any claim for damages because Benkoski continued to derive financial benefit from the stream of rental income that the mobile home produced after the lost sale. Flood develops this argument by piecing together Benkoski's rents and expenses, and comparing them to what Benkoski would have made through the sale of the mobile home. But Flood offers no authority for this novel method of calculating pecuniary loss under Wis. Stat. § 100.20(5). Instead, we agree with the trial court's analysis:

[Benkoski] attempted to sell the mobile home ... he had an offer and it was frustrated, so, therefore, I felt that was the truest measure of damages at that snapshot in time as to say when . . . the violation of law occurred according to the Court of Appeals. He attempted to sell a mobile home and he couldn't and that was the best measure of what his loss was at that particular time. What might have happened in the future, I think, would be speculation on my part from either the income approach or from any other approach of how he might have invested that money from the sale of the mobile home.

¶ 31. Harkening back to our repeated emphasis on the statutory objectives behind WlS. STAT. § 100.20(5), we hold that the trial court's answer to this argument was the proper one. Adoption of Flood's proposal would only serve to penalize mobile home owners who are able to turn a profit through rental activities despite a park owner's violation of the statutes and administrative regulations. Such a result would not further the statutory objectives we have recited.

¶ 32. Although this is not a contract case, we find additional support for our holding in the law of contracts. Flood's unfair trade practices thwarting Benkoski's potential sale caused damages akin to those caused by a breach of contract. WISCONSIN JI — CIVIL 3735, entitled "Damages: Loss of Expectation" states,

[t]he measure of damages for a breach of contract is the amount which will compensate the plaintiff for the loss suffered because of the breach. A party who is injured should, as far as it is possible to do by monetary award, be placed in the position in which he or she would have been had the contract been performed.

We conclude that the "pecuniary loss" concept set out in WlS. Stat. § 100.20(5) is similar to this concept of damages set out in the law of contracts. We hold that the trial court was correct in limiting its consideration of damages to those existing at the time of the rejected application for tenancy.

4. Attorney Fees

¶ 33. Flood argues that the trial court erred in awarding Benkoski attorney fees incurred in defense of his counterclaim. As stated earlier, our review of this question is limited to whether the circuit court properly exercised its discretion. Hughes, 197 Wis. 2d at 987. Flood bases his argument upon this court's decision in Paulik v. Coombs, 120 Wis. 2d 431, 355 N.W.2d 357 (Ct. App. 1984), which the trial court found inapposite. Flood contends that the trial court erroneously distinguished Paulik.

¶ 34. Paulik involved a landlord/tenant dispute where the landlord was guilty of violations of the administrative code, but was successful on a counterclaim producing damages that exceeded the tenants' statutory damages under Wis. Stat. § 100.20(5). See Paulik, 120 Wis. 2d at 435. In keeping with § 100.20(5), we held that the tenants were entitled to double damages and reasonable attorney fees even though they were unsuccessful in defending against the landlord's counterclaim. Paulik, 120 Wis. 2d at 438. We remanded the matter to the trial court for a determination of the tenants' reasonable attorney fees. Id. at 438-39. We held that "[t]he determination of attorneys fees under sec. 110.20(5), Stats., however, should not include those incurred in defending against Coombs' counterclaim." Paulik, 120 Wis. 2d at 439 n.5. Flood seizes on this language in support of his argument that Benkoski's attorney fees award should not have included fees expended in defending on Flood's counterclaim.

¶ 35. Flood places too general a reading on Pau-lik. There, the tenant's claim was based on the landlord's failure to provide the requisite written statement accounting for the retention of a security deposit. Id. at 434 n.3. None of those facts was directly related to the landlord's counterclaim for rents and damages. In our case, however, Flood's counterclaim was premised on Benkoski's alleged failure to remove the mobile home units when they became vacant. This, of course, was also the very crux of Benkoski's claims that Flood had committed an unfair trade practice under Wis. Stat. § 710.15(3)(b) and (4) and Wis. Admin. Code § ATCP 125.06(l)(a). See Benkoski I, 229 Wis. 2d at 381. As such, these competing claims were inextricably caught up with each other.

¶ 36. In its thorough and well-reasoned decision, the trial court made the same observation:

In order for the plaintiff to prosecute this claim effectively and prevail on his own original complaint, he needed to defeat both the seventh affirmative defense as well as the defendant's counterclaim. Both claims were inextricably intertwined with the prosecution of the plaintiffs claim and for those reasons I will deny no attorney's fees to the plaintiff for defense of the counterclaim.

¶ 37. We conclude that the trial court did not erroneously exercise its discretion in awarding Benkoski his attorney fees incurred in defense of Flood's counterclaim.

¶ 38. As a final matter, we address Benkoski's request for attorney fees incurred on appeal. This question was answered by our supreme court in Shands when it held that a plaintiff who recovers attorney fees at the trial court level shall recover further attorney fees incurred on a successful defense of the award on appeal. See Shands, 115 Wis. 2d at 359. Therefore, we hold that Benkoski is entitled to his appellate attorney fees and remand this case to the trial court for such a determination.

CONCLUSION

¶ 39. We hold that the ordinary, civil burden of proof applies to actions for damages occasioned by violations of Wis. Admin. Code ch. ATCP 125 and that the trial court was not clearly erroneous in concluding that Benkoski had satisfied this burden. We hold that the trial court properly doubled Benkoski's pecuniary losses prior to offsetting this amount by the fair market value of the mobile home still in his possession. We hold that the evidence supports the damage award. We hold that the trial court properly exercised its discretion in awarding Benkoski attorney fees incurred in defense of Flood's counterclaim because the claims were inextricably intertwined. Finally, we hold that Benkoski is entitled to his attorney fees incurred on this appeal and we remand to the trial court for a determination on that matter.

By the Court. — Judgment affirmed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       The relevant paragraphs of Wis. Stat. § 100.20 read as follows:
      100.20 Methods of competition and trade practices. (1) Methods of competition in business and trade practices in business shall be fair. Unfair methods of competition in business and unfair trade practices in business are hereby prohibited.
      (2)(a) The department, after public hearing, may issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair. The department, after public hearing, may issue general orders prescribing methods of competition in business or trade practices in business which are determined by the department to be fair.
      (5) Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.

       One of Flood's arguments for distinguishing Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650, 529 N.W.2d 905 (1995), is that we owe no deference to federal antitrust law in this case because this is not an antitrust case. While this is true, we believe that the core idea from Carlson is that we apply the ordinary burden of proof when it advances the legislature's purpose in enacting a law.

       In support, Flood cites to the comment that follows WlS JI — CIVIL 2780, which is entitled "Intentional Interference With Contractual Relationship." The comment cites to section 774A of the Restatement (Second) of Torts saying that "[d]amages may include . . . pecuniary loss of benefits of the contract." Wis JI—Civil 2780.

       The trial court also addressed the stream of income argument as well. The court found that even if it employed the stream of income approach advanced by Flood, the amount of profit through renting the mobile home would have been very small after offsetting the expenses required to maintain the property. This was prior to considering labor that Benkoski supplied for repairs and improvements or assessment of his customary management fee.


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin ex rel. Norman Numrich and Ralph Kling, Petitioners-Appellants, v. City of Mequon Board of Zoning Appeals, Respondent-Respondent.

    Court of Appeals

      No. 00-1643.

      Submitted on briefs January 26, 2001.

    Decided March 7, 2001.

    2001 WI App 88
    (Also reported in 626 N.W.2d 366.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of T. Michael Schober of Schober, Schober & Mitchell, S.C. of New Berlin.
    On behalf of the respondent-respondent, the cause was submitted on the brief of John L. DeStefanis of Fuchs, Snow, DeStefanis, S.C., Mequon City Attorney.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   NETTESHEIM, J.

¶ 1. Norman Numrich and Ralph Kling (the owners) appeal from a circuit court judgment dismissing their writ of certiorari petition. The trial court dismissed the petition after it upheld the decision of the City of Mequon Board of Zoning Appeals (Board) denying the owners' applications for conditional use permits to construct a wind energy system on their separate properties. Because the Board proceeded upon an incorrect theory of the law, we reverse the circuit court order. We remand the matter to the circuit court with instructions to remand to the Board so that it may further consider the conditional use applications under the correct law.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts and history of this case are not in dispute. The owners each own adjacent one-acre residential lots in the City of Mequon. They each wished to construct a "wind energy system" on their respective lots. Wisconsin Stat. § 66,032(l)(m) (1997-98) defines a "wind energy system" as "equipment that converts and then stores or transfers energy from the wind into usable forms of energy." To that end, the owners applied for conditional use permits for construction of the systems. The applications were referred to the city's planning commission. Following a public hearing, the planning commission unanimously voted to deny the applications.

¶ 3. The owners appealed to the Board which conducted a contested case hearing at which both proponents and opponents of the applications testified. The evidence established that the wind energy systems consisted of an eighty-foot tower, topped by a generator and transmission turned by three fifteen-foot blades, resulting in a total height of ninety-five feet. The tower would rest on a triangular base anchored by three footings with a diameter of two feet and a depth of eight feet. The length of each side of the base would be ten percent of the height of the tower.

¶ 4. Following the hearing, the owners' attorney and the city attorney submitted written memorandum to the Board. The owners argued that the restrictions placed on local regulations of wind energy systems set out in WlS. Stat. § 66.031 required the Board to grant the conditional use permits. The city attorney advised the Board that the permit process for a wind energy system set out in Wis. Stat. § 66.032(3) and the city's conditional use ordinance served to broaden the inquiry beyond the restrictions set out in § 66.031.

¶ 5. The Board upheld the planning commission's denial of the conditional use applications. The Board's "Findings, Conclusions and Decision" stated, in relevant part:

30. It is significant to note that none of the neighbors of Messrs. Numrich and Kling testified in support of the windmill towers. This would indicate to [the Board] that there is overwhelming opposition among the neighbors to the tower.
31. This in turn is compelling evidence of a negative impact of the proposed windmill towers on the neighboring properties which derives from the fact that the homeowners in proximity to the proposed towers are convinced that their quality of life will be negatively impacted, and in turn, their property values negatively affected.
33. The City has a great interest in maintaining the property values of its housing stock, in order to foster its desirability as a residential community, in order to protect its tax base and revenues, and in order to promote high value and quality of life of its neighborhoods.
34. The approval of these conditional use applications would be contrary to these legitimate governmental interests. It would also be detrimental to the health and safety of the neighborhood and its residents in several respects: physical safety and well being due to threat of a tower or any other component falling and from noise, and in regard to the harmonious character of the neighborhood, its quality of life, and its property values.
35. . Further [the Board] concludes that the issuance of the conditional use permits would unreasonably interfere with the orderly land use and development plans of the City due to disharmony of the proposed towers with the residential character of the neighborhood.
36. [The Board] concludes that the Planning Commission acted in accordance with §§ 66.031(1) and (3) and 66.032 (5)(a)l. and 3., Wisconsin Statutes, in denying conditional use permits for these proposed windmill tower facilities.

¶ 6. By petition for a writ of certiorari, the owners appealed to the circuit court. As they did before the Board, the parties again debated whether WlS. Stat. §66.031 limited the inquiry or whether WlS. STAT. § 66.032 and the city's zoning and conditional use powers broaden the inquiry. In ,a written decision, the circuit court stated, "Although both sides have argued the applicability of Wisconsin Statute 66.032, it would appear this matter really turns on whether or not the Board, in denying the permit, proceeded on an incorrect theory of the law as set forth in Wisconsin Statute 66.031." Although limiting the inquiry in keeping with the argument of the owners, the court nonetheless concluded that the evidence supported the Board's decision to reject the owners' appeals. The owners further appeal to us.

STANDARD OF REVIEW

¶ 7. On certiorari review, we review the agency determination, not the circuit court ruling. Antisdel v. City of Oak Creek, 2000 WI 35, ¶ 13, 234 Wis. 2d 154, 609 N.W.2d 464. We limit our inquiry to whether the Board: (1) acted within its jurisdiction; (2) proceeded on a correct theory of the law; (3) was arbitrary, oppressive or unreasonable; or (4) might have reasonably made the order or finding that it did based on the evidence. Id. The dispute in this case turns on the second factor: whether the Board proceeded on a correct theory of the law.

DISCUSSION

1. The Statutory Scheme

¶ 8. On appeal, the parties continue their statutory debate. The owners contend that the Board proceeded on an incorrect theory of the law when it considered WlS. STAT. § 66.032 in conjunction with WlS. Stat. § 66.031 in rejecting their appeals. Instead, the owners argue that the Board should have limited its consideration to the factors set out in § 66.031. The city contends that § 66.032, in conjunction with the city's zoning and conditional use powers, served to broaden the inquiry beyond the restrictions set out in § 66.031.

¶ 9. We begin our discussion by setting out the statutory scheme of WlS. Stat. §§ 66.031 and 66.032. Section 66.031 states:

Regulation of solar and wind energy systems. No county, city, town or village may place any restriction, either directly or in effect, on the installation or use of a solar energy system ... or a wind energy system . . . unless the restriction satisfies one of the following conditions:
(1) Serves to preserve or protect the public health or safety.
(2) Does not significantly increase the cost of the system or significantly decrease its efficiency.
(3) Allows for an alternative system of comparable cost and efficiency.

¶ 10. This statute is followed by Wis. Stat. § 66.032, entitled "Solar and wind access permits." We will not set out this lengthy statute verbatim. Instead, we summarize the relevant portions. The statute authorizes municipal permits for solar and wind energy systems. Id. at para. (1)(i). A municipality "may adopt an ordinance with any provision it deems necessary for granting a permit," including standards for granting a permit. Id. at subsec. (2). An owner who has installed or intends to install an energy system may apply for a permit. Id. at para. (3)(a). If the application is satisfactorily completed, the applicant must provide notice "to the owner of any property which the applicant proposes to be restricted by the permit." Id. at para. (3)(b). Among other things, the notice must state that the permit, if granted, "may affect the rights of the notified owner to develop his or her property and to plant vegetation." Id. at subd. (3)(b)3. In addition, the notice must advise that the notified owner may request a hearing. Id. at subd. (3)(b)5. The municipality may also request a hearing. Id. at subsec. (4).

¶ 11. Whether or not a hearing occurs, the municipality shall grant the permit if: (1) the energy system will not unreasonably interfere with the orderly land use and development plans of the municipality, (2) no person who has present plans to build a structure that would impermissibly interfere with the energy system has expended more than $500 or otherwise made substantial progress toward planning or constructing such a structure, and (3) the benefits to the applicant and the public will exceed any burdens. Id. at para. (5)(a). The municipality may place additional conditions on the grant of a permit to minimize possible future interference with the system from nearby property or to minimize any other burden placed on any person affected by the permit grant. Id. at para. (5)(b).

¶ 12. If the permit is granted, the municipality must prepare a notice reciting the requisite information for recording purposes under WlS. STAT. § 706.05(2)(c) (1999-2000) regarding the applicant's property and any restricted property. This notice must indicate that the restricted property may not be developed or vegetation planted so as to create an "impermissible interference" with the energy system. Wis. Stat. § 66.032(6)(a). The applicant must record the notice with the register of deeds. Id. at para. (6)(b).

¶ 13. Once the notice is recorded, the statute provides remedies to the owner of the energy system against any person who uses or owns restricted property contrary to the permit. These remedies include damages, costs, reasonable attorney fees, and injunc-tive relief. Id. at paras. (7)(a) and (b).

¶ 14. Finally, the statute says, "This section may not be construed to require that an owner obtain a permit prior to installing a solar collector or wind energy system." Id. at para. (12)(a).

¶ 15. We draw the following conclusions from the statutory scheme created by WlS. STAT. §§ 66.031 and 66.032. First, the owner of an energy system does not need a permit under § 66.032 to construct such a system. Therefore, barring any other enforceable municipal restrictions, an owner may construct such a system without prior municipal approval. In fact, § 66.032(3) envisions that such a system might already be in place when an application for a permit is made.

¶ 16. Second, unlike most land use regulations that require a permit and which are designed to protect the public and nearby property owners by placing restrictions on the permitee, WlS. STAT. § 66.032 operates largely in the reverse. It serves to benefit and protect the owner of a solar or wind energy system permit by restricting users or owners of nearby property from creating an "impermissible interference" with the energy system. If a permit is granted and the notice against nearby restricted property is recorded, the owner of the energy system has legal remedies against a user or owner of nearby restricted property who has created an "impermissible interference."

¶ 17. Third, Wis. STAT. § 66.031 represents a legislative restriction on the ability of local governments to regulate solar and wind energy systems. Local restrictions are permitted only if they serve the public health or safety, do not significantly increase the cost or decrease the efficiency of the system, or allow for an alternative system of comparable cost and efficiency. Beyond those, no other restrictions are allowed. The statute is not trumped, qualified or limited by § 66.032 or by a municipality's zoning and conditional use powers.

¶ 18. The statutory scheme we have described is reflected in the legislative history of these statutes. When enacting the original versions of Wis. STAT. §§ 66.031 and 66.032, the legislature expressed concern about the diminishing supplies of nonrenewable energy resources, and it observed that renewable energy systems could address this concern. Laws of 1981, ch. 354, § l. To encourage the use of renewable sources of energy, the legislature resolved to remove legal impediments to such systems by:

codifying the right of individuals to negotiate and establish renewable energy resource easements, by clarifying the authority of, and encouraging, local governments to employ existing land use powers for protecting access rights to the wind and sun, by creating a procedure for issuance of solar access permits to owners and builders of active and passive solar energy systems and by encouraging local governments to grant special exceptions and variances for renewable energy resource systems.

Id. at para. (2)(b).

¶ 19. With this legislative scheme and these legislative purposes in mind, we turn to the appellate issue.

2. Review of the Decision of the Zoning Board of Appeals

¶ 20. The city's zoning ordinance does not specifically refer to solar or wind energy systems in those express terms. However, § 3.07(6)(d) of the Mequon Zoning Code enumerates conditional uses permitted in the owners' zoning district. These conditional uses include "[plublic and or private utility, transmission and distribution lines, poles, and other accessories...." Mequon Zoning Code § 3.07(6)(d)3. Accordingly, the owners applied for conditional use permits.

¶ 21. However, it is clear from the record that the owners were not seeking the permits envisioned by WlS. Stat. § 66.032. We say this because the owners consistently argued throughout all levels of the proceedings (planning commission, board of zoning appeals, and the circuit court) that the city could only impose restrictions consistent with those set out in WlS. Stat. § 66.031. This was in sharp contrast to the equally consistent argument of the city that § 66.032 and the city's zoning and conditional use powers served to broaden the scope of the inquiry beyond the limited restrictions set out in § 66.031.

¶ 22. The Board's decision adopted the city attorney's interpretation of the statutes. As a result, the Board premised its denial of the conditional use applications on both Wis. Stat. §§ 66.031 and 66.032. "[The Board] concludes that the Planning Commission acted in accordance with §§ 66.031(1) and (3) and 66.032(5)(a)1. and 3., Wisconsin Statutes, in denying conditional use permits for these proposed windmill tower facilities." The factual determinations made by the Board bear out that § 66.032 played a prominent role in the Board's decision to reject the conditional use permits. The Board alluded to the negative impact of the energy systems on the property values of neighboring properties and on the aesthetics of the neighborhood. These considerations fall within the purview of § 66.032(5)(a) which permits the Board to weigh the relative burdens and benefits of the energy system. The Board also determined that granting the permits would "unreasonably interfere with the orderly land use and development plans of the City." This consideration squarely falls under § 66.032(5)(a)l (A permit shall be granted if the municipality determines that "[t]he granting of a permit will not unreasonably interfere with the orderly land use and development plans of the municipality."). In addition, the Board rested its denial on the public safety concerns set out in § 66.031(1) when it said, "It would also be detrimental to the health and safety of the neighborhood and its residents in several respects: physical safety and well being due to threat of a tower or any other component falling and from noise."

¶ 23. We conclude that the Board erred by factoring WlS. Stat. § 66.032 into its determination. As we have noted, the owners were not seeking permits under § 66.032. To the contrary, they continuously argued against the application of § 66.032. Instead, they were seeking conditional use permits. Because WlS. STAT. §66.031 places limitations on the authority of local governments to regulate wind energy systems, the Board's reliance on § 66.032 or its traditional zoning and conditional use powers was misplaced. Instead, the Board was duty bound to confine its consideration of the conditional use applications in light of the restrictions placed on local regulations pursuant to § 66.031. Therefore, the Board proceeded on an incorrect theory of the law.

¶ 24. That leaves us with the question of whether we should follow the lead of the circuit court by eliminating Wis. Stat. § 66.032 from our judicial review and tailoring the Board's decision to only those factors that are relevant under WlS. Stat. § 66.031. We decline to follow the circuit court's lead given the facts of this case. We think the better procedure is to remand this case to the circuit court with directions to remand the matter to the Board for further consideration of the issue in light of our holding. See State ex rel. Covenant Harbor Bible Camp v. Steinke, 7 Wis. 2d 275, 285, 96 N.W.2d 356 (1959). We do this for two reasons. First, we cannot know for certain the extent to which the Board's incorrect consideration of irrelevant factors under § 66.032 and conditional use ordinances may have colored the Board's consideration of relevant factors under § 66.031. Second, the legislature has prescribed that it is the municipality, not the circuit court or this court, which is the principal decision-maker on matters of conditional use. Given the unique history of this case, we conclude, in fairness to all the parties and the public, that the Board should be permitted to revisit this matter under a correct theory of the law.

CONCLUSION

¶ 25. We conclude that the Board proceeded on an incorrect theory of the law when rejecting the owners' applications for the conditional use permits. We reverse the circuit court order upholding the Board's ruling. We remand this matter to the circuit court with directions to further remand the matter to the Board which shall reconsider the conditional use applications in light of the express restrictions placed on local regulation of wind energy systems imposed by WlS. STAT. § 66.031.

By the Court. — Judgment reversed and cause remanded with directions.

       The current statutes in WlS. Stat. ch. 66 that address and regulate wind energy systems are numbered differently than those in effect at the time of the proceedings in this case. In addition, the language of some of the current statutes in ch. 66 is different from the prior statutes. This decision will cite to and quote the ch. 66 statutes as they existed at the time of the proceedings in this case. All references in this opinion to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       Wisconsin Stat. § 66.032(1)(f) defines an "impermissible interference" as:
      the blockage of wind from a wind energy system or solar energy from a collector surface or proposed collector surface for which a permit has been granted under this section during a collector use period if such blockage is by any structure or vegetation on property, an owner of which was notified under sub. (3)(b).
      The statute goes on to exclude certain conditions as an "impermissible interference." Id. at subds. (1)(f)1 — 3.

       This original legislation addressed only solar energy systems. The statute was later amended to include wind energy systems. 1993 Wis. Act 414, § 17. We view the original purposes of the legislation to apply to wind, as well as solar, energy systems.

       Thus, we reject the city's argument that the owners consented to the Board exercising its jurisdiction under Wis. Stat. § 66.032. As early as the planning commission hearing, the owners, both in their oral and written presentations, focused squarely on the limited authority of the city to regulate a wind energy system under Wis. Stat. § 66.031. And they pursued this theory of the case throughout the remainder of the proceedings at all levels.


author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Timothy P. Koenck, Defendant-Appellant.

    Court of Appeals

      No. 00-2684-CR.

      Submitted on briefs January 26, 2001.

    Decided March 7, 2001.

    2001 WI App 93
    (Also reported in 626 N.W.2d 359.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Lew A. Wasserman of Kies & Wasserman of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer E. Nashold, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review denied.

   SNYDER, J.

¶ 1. Timothy P. Koenck appeals from the trial court's order denying his motion to dismiss the criminal complaint filed against him. Koenck makes several arguments in support of his claim that charges against him alleging child enticement, in violation of Wis. Stat. § 948.07 (1997-98), must be dismissed. We affirm the trial court's order.

FACTS

¶ 2. On July 7, 2000, Special Agent Robin Broeske of the Wisconsin Department of Justice, Division of Criminal Investigation (DCI), had contact with an individual identified as Nancy A.C. Nancy was a forty-six-year-old private citizen, Pennsylvania resident and co-founder of a group called Internetwatch; Internetwatch is described as an organization that monitors the internet, mostly for child pornography. Nancy created profiles of young girls and communicated with individuals on the internet using these fictitious profiles. Nancy turned inappropriate responses over to law enforcement for investigation.

¶ 3. In December 1999, Nancy created a profile of twin girls, "Teddie" and "Georgie," who were almost twelve years old. Nancy then communicated with Koenck, and thereafter saved all of the communications between Koenck and "Teddie" and "Georgie." In some of the communications, Koenck expressed an interest in having sexual intercourse and contact with "Teddie" and "Georgie." Eventually, Nancy informed Koenck, a resident of the state of Iowa, that "Teddie" and "Georgie" would be coming to Wisconsin in July 2000, staying with a relative in Waukesha county. Nancy informed authorities that Koenck had "immediately expressed an interest in coming to Wisconsin to meet" with "Teddie" and "Georgie." According to Nancy, Koenck expressed an interest in marrying "Teddie" and possibly adopting both "Teddie" and "Georgie."

¶ 4. Special agent Broeske examined various chat log documents provided by Nancy and specifically noted that the screen name used by Nancy was "ted-die_bear_ll" and that "Teddie" had been corresponding with someone using the screen name "dirtboy69." Internet provider Yahoo indicated that the screen name "dirtboy69" belonged to Koenck's account. According to Broeske, during a June 29,2000 electronic conversation, "dirtboy69" specifically wrote that he had rented a hotel room in Waukesha county in order to have "various types" of sexual intercourse and contact with both "Teddie" and "Georgie."

¶ 5. On July 3, 2000, Broeske, with the assistance of a DCI intern and another person, placed a phone call to Koenck's residence in Algona, Iowa. The intern and the other person, posing as "Teddie" and "Georgie," confirmed with Koenck their plans for July 6 and 7, 2000, in Wisconsin. Koenck again expressed an interest in performing "acts of sexual gratification" on both "Teddie" and "Georgie." Koenck provided a phone number for the Courtyard by Marriott hotel, indicating he would be staying there after traveling to Wisconsin from Iowa to meet the twins. On July 7, 2000, the DCI intern and the other person called Koenck's hotel and made arrangements for a meeting between Koenck and "Teddie" and "Georgie" at a McDonald's restaurant located at 300 North Moorland Road in Brookfield, Wisconsin.

¶ 6. Agents, having set up surveillance on Koenck's car, watched him enter his car shortly after 12:00 p.m. and drive to the vicinity of the above-named McDonald's. Koenck parked his vehicle in the parking lot of a neighboring bank, exited and began walking towards the McDonald's, at which point he was arrested by the Brookfield police department. Koenck admitted that he had traveled from Iowa to Waukesha to meet with "Teddie" and "Georgie," whom he believed to be twelve years old and whom he had met on the internet. Koenck further stated that he intended to have intercourse with both "Teddie" and "Georgie."

¶ 7. On July 10, 2000, Koenck was charged with two counts of violating Wis. Stat. § 948.07(1). The charging portion of the complaint alleges, in two identical paragraphs, that

[o]n or about July 7, 2000, in the area of 300 North Moorland Road, City of Brookfield, Waukesha County, Wisconsin, the defendant, Timothy Peter Koenck, did: with the intent to have sexual contact or sexual intercourse with a child, in violation of Section 948.02, Wisconsin Statutes, attempt to cause any child who has not attained the age of 18 to go into any vehicle, building, room or secluded place, contrary to Section 948.07(1), Wisconsin Statutes.

On July 31, 2000, Koenck filed a motion to dismiss the complaint. On September 25, 2000, the court denied this motion. On October 25, 2000, Koenck filed a petition for leave to appeal the circuit court's nonfinal order. We granted leave to appeal on one issue: whether in a prosecution under § 948.07 the charges must be dismissed because the State cannot prove that the victim had not attained the age of eighteen.

DISCUSSION

¶ 8. The issue before us, the analysis of WlS. STAT. § 948.07, entails the interpretation of a statute, a question of law which we review de novo. State v. Church, 223 Wis. 2d 641, 649, 589 N.W.2d 638 (Ct. App. 1998), review dismissed, 236 Wis. 2d 755, 613 N.W.2d 848 (Wis. July 11, 2000) (No. 97-3140-CR); State v. Briggs, 218 Wis. 2d 61, 65, 579 N.W.2d 783 (Ct. App. 1998).

¶ 9. Wisconsin Stat. § 948.07 prohibits child enticement and states:

Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony:
(1) Having sexual contact or sexual intercourse with the child....
(2) Causing the child to engage in prostitution.
(3) Exposing a sex organ to the child or causing the child to expose a sex organ ....
(4) Taking a picture or making an audio recording of the child engaging in sexually explicit conduct.
(5) Causing bodily or mental harm to the child.
(6) Giving or selling to the child a controlled substance or controlled substance analog ....

Section 948.07 prohibits individuals from causing or attempting to cause a child to go to a secluded place in order to facilitate some illegal conduct; its aim is to address the social evil of removing children from the protection of the general public. State v. DeRango, 229 Wis. 2d 1, 16, 599 N.W.2d 27 (Ct. App. 1999) (DeRango I), aff'd, State v. DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833 (DeRango II). We have recently articulated the purpose of the child enticement statute:

[EJnticement of a child is "a social evil in and of itself regardless of the specific sexual motive which causes the defendant to act." The gravamen of the crime is not the commission of an enumerated act, but succeeding in getting a child to enter a place with intent to commit such a crime.

DeRango I, 229 Wis. 2d at 15 (citations omitted).

¶ 10. Koenck makes several arguments in favor of dismissing the criminal complaint. He first argues that pursuant to DeRango, the State must prove that an actual child, not an agent posing as a child, was the intended victim. Koenck misunderstands the holding of DeRango.

¶ 11. The DeRango defendant telephoned a fifteen-year-old girl and offered her $300 to perform a strip tease and other sexual acts on video. DeRango II, 2000 WI 89 at ¶ 1. DeRango was charged with and convicted of one count of child enticement and one count of attempted child sexual exploitation. Id. DeR-ango challenged the convictions on jury unanimity, multiplicity and sufficiency of the evidence grounds. Id. We affirmed the convictions, as did the Wisconsin Supreme Court. Id. at ¶¶ 1,11.

¶ 12. Contrary to Koenck's assertions, DeRango never addressed the issue of whether an actual child, as opposed to a fictional child, must be the intended victim.

¶ 13. Koenck also argues that DeRango firmly established that the attempted and completed crimes of child enticement were merged into one statute; under DeRango, Koenck argues, the elements of both crimes are identical and thus the crime of attempted child enticement no longer exists. Again, Koenck misconstrues the holding of DeRango.

¶ 14. Nowhere in DeRango I did we, or the Wisconsin Supreme Court in DeRango II, state that the crime of attempted child enticement was nonexistent. In fact, our DeRango decision, the one cited by Koenck, makes clear that WlS. Stat. § 948.07 includes both the attempted and the completed crime. DeRango I, 229 Wis. 2d at 29. We stated:

Because the statute as written includes the attempted as well as the completed act, it already contemplates a lesser included offense. Both child enticement and attempted child enticement are subject to the same penalty ....

Id.

¶ 15. Again, Wis. Stat. § 948.07 states:

Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony:
(1) Having sexual contact or sexual intercourse with the child....
(2) Causing the child to engage in prostitution.
(3) Exposing a sex organ to the child or causing the child to expose a sex organ ....
(4) Taking a picture or making an audio recording of the child engaging in sexually explicit conduct.
(5) Causing bodily or mental harm to the child.
(6) Giving or selling to the child a controlled substance or controlled substance analog....

The child enticement statute requires proof that the defendant caused a child to go into a vehicle, building, room or secluded place with any one of the six enumerated intents or attempted to cause a child to go into a vehicle, building, room or secluded place with any one of the six enumerated intents. Thus, § 948.07 delineates one crime, the crime of child enticement, with alternate modes of commission. DeRango II, 2000 WI 89 at ¶¶ 17, 22.

¶ 16. This reading is consistent with prior interpretations of child enticement, all of which have concluded that the actual act of or attempted act of enticement is itself prohibited child enticement. Id. at ¶ 18; see also Church, 223 Wis. 2d at 664 ("The crime of enticement is completed . . . when a person causes, or attempts to cause, a child to go to a secluded place . . . .").

¶ 17. The jury instruction notes for a WlS. Stat. § 948.07 violation also refute Koenck's argument that the crime of attempted child enticement does not exist in Wisconsin. The jury instructions for § 948.07 state that "[i]f an attempt case is charged, it may be advisable to define 'attempt' for the jury"; proposed jury instructions for attempted child enticement are then provided. WlS JI — CRIMINAL 2134. Thus, child enticement is one crime with alternate means of commission.

¶ 18. Koenck further argues that the maxim that impossibility is not a defense to an attempt charge, as articulated in State v. Kordas, 191 Wis. 2d 124, 129, 528 N.W.2d 483 (Ct. App. 1995), does not apply to WlS. STAT. ch. 948 crimes. Koenck cites no authority or legislative history for this assertion, and, in fact, legislative history and related statutes belie his contention.

¶ 19. Wisconsin Stat. § 948.07 was created by 1987 Wis. Act 332, a comprehensive revision of state laws relating to crimes against children. Church, 223 Wis. 2d at 661. The previous child enticement statute, WlS. Stat. § 944.12 (1985-86), stated:

Enticing a child for immoral purposes. Any person 18 years of age or over, who, with intent to commit a crime against sexual morality, persuades or entices any child under 18 years of age into any vehicle, building, room or secluded place is guilty of a Class C felony.

Section 944.12 (1985-86) was repealed and § 948.07 created by 1987 Wis. Act 332, §§ 42 and 55. Section 948.07 retained the title "child enticement" and broadened the scope of the offense. State v. Irish, 210 Wis. 2d 107, 111, 565 N.W.2d 161 (Ct. App. 1997). Legislative comment to the creation of § 948.07 explains the changes and states, in relevant part:

1. Deletes the words "persuades or entices" contained in the current child enticement statute [s.944.12] and, instead, characterizes the crime of child enticement as "causing or attempting to cause" a child to go into any vehicle, building, room or secluded place with the intent to' commit a criminal act or acts. The substitution of "causes" for "persuades or entices", eliminates as an element of the crime the state of mind of the child being enticed. The language "attempts to cause" is added to further clarify that the crime of child enticement includes the attempted act of enticement, consistent with s. 939.32(1)(d), as created by this bill.

1987 Wis. Act 332, § 55 (emphasis added).

¶ 20. Wisconsin Stat. § 939.32 addresses attempt crimes and states, in part:

(1) Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195 or 943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; except:
(d) Whoever attempts to commit a crime under s. 948.07 is subject to the penalty provided in that section for the completed act.

Section 939.32(1)(d). As noted above, § 939.32(1)(d) was created by the same act as Wis. STAT. § 948.07. 1987 Wis. Act 332, § 24. Legislative comment to the creation of § 939.32(l)(d) states:

Creates a new exception to the current provision that attempted criminal acts are punishable by a fine or imprisonment not to exceed one-half the maximum penalty for the completed act. Under the bill, both the act of attempted child enticement and the completed act of child enticement are Class C felonies.

1987 Wis. Act 332, § 24. Reading §§ 948.07 and 939.32(l)(d) together, it is clear that the legislature, by enclosing the attempted and completed act in the same statute, did not intend to eliminate the crime of attempted child enticement, but determined that the attempted act of child enticement was as egregious as the completed act and thus each warranted the same penalty. Contrary to Koenck's assertions, merging the completed and the attempted crime into one statute does not render the principles of attempt inapplicable. The reference in § 939.32(l)(d) to § 948.07 indicates that the principles of attempt apply to § 948.07 violations.

¶ 21. If statutory language is unambiguous, we are restricted to its plain meaning. State v. Cvorovic, 158 Wis. 2d 630, 633, 462 N.W.2d 897 (Ct. App. 1990). Wisconsin Stat. § 939.32(1) and (2) states in plain terms which offenses may be prosecuted as attempt crimes, Cvorovic, 158 Wis. 2d at 633, and Wis. Stat. § 948.07 is one of those crimes. Sec. 939.32(1)(d).

¶ 22. In terms just as plain, WlS. STAT. § 939.32(3) defines the word "attempt." Cvorovic, 158 Wis. 2d at 633. Section 939.32(3) states:

An attempt to commit a crime requires that the actor have an intent to perform certain acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

¶ 23. Koenck argues that the legislature intended that the act of attempted child enticement, like all WlS. Stat. ch. 948 crimes, requires the presence of an actual child, as defined by WlS. STAT. § 948.01(1) and not a fictional child. Again, Koenck cites no legislative history or legal authority for this proposition, and his argument ignores the principles behind attempt crimes.

¶ 24. Our supreme court has instructed that attempt requires (1) intent to commit a specific crime and (2) evidence that the accused has committed sufficient acts to "demonstrate unequivocally that it was improbable the accused would desist of his or her own free will. The intervention of another person or some other extraneous factor that prevents the accused from completing the crime is not an element of the crime of attempt." State v. Stewart, 143 Wis. 2d 28, 31, 420 N.W.2d 44 (1988). An attempt is complete when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his or her control or one unknown to him or her. Boyles v. State, 46 Wis. 2d 473, 476, 175 N.W.2d 277 (1970).

¶ 25. Wisconsin Stat. § 939.32 requires that the person have the requisite criminal intent and that he or she perform "acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed the intent and would commit the crime except for the intervention of another person or some other extraneous factor." Berry v. State, 90 Wis. 2d 316, 326, 280 N.W.2d 204 (1979) (citation omitted).

¶ 26. The Wisconsin Supreme Court has further explained:

The purpose of the language in sec. 939.32(3) relating to intervention of another person and extraneous factor is to denote that the actor must have gone far enough toward completion of the crime to make it improbable that he would change his mind and desist. The conduct element of sec. 939.32(3) is satisfied when the accused engages in conduct which demonstrates that only a circumstance beyond the accused's control would prevent the crime, whether or not such a circumstance actually occurs. An attempt occurs when the accused's acts move beyond the incubation period for the crime, that is, the time during which the accused has formed an intent to commit the crime but has not committed enough acts and may still change his mind and desist. In other words the statute requires a judgment in each case that the accused has committed sufficient acts that it is unlikely that he would have voluntarily desisted from commission of the crime.

Stewart, 143 Wis. 2d at 41-42.

¶ 27. Here, Koenck communicated via the internet with "Teddie" and "Georgie," persons he believed to be twelve-year-old girls. During these communications, Koenck expressed a desire to have sexual intercourse with "Teddie" and "Georgie." When "Ted-die" and "Georgie" informed Koenck of their plans to visit Wisconsin, Koenck immediately expressed an interest in meeting them. He made reservations at an area hotel. He arranged to meet "Teddie" and "Georgie." He drove from his home in Iowa, checked into a hotel and then traveled to the prearranged meeting place in order to meet "Teddie" and "Georgie." Koenck admitted that he intended to have sex with both "Teddie" and "Georgie."

¶ 28. Within the contemplation of WlS. STAT. § 948.07, an attempt is complete when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his or her control or one unknown to him or her. Huebner v. State, 33 Wis. 2d 505, 520, 147 N.W.2d 646 (1967). We conclude that the fictitiousness of the girls constituted an extraneous factor beyond Koenck's control that prevented him from successfully enticing a child for the express purpose of sexual intercourse or contact. Id. at 520-21. Koenck did everything necessary to insure the commission of the crime intended, and his conduct is not excused because of the fortuitous circumstance rendering it impossible to effectuate the intended result. State v. Damms, 9 Wis. 2d 183, 191, 100 N.W.2d 592 (1960).

CONCLUSION

¶ 29. We affirm the order of the circuit court. We reject Koenck's arguments that attempted child enticement no longer exists under Wisconsin law. WISCONSIN STAT. § 948.07 delineates one crime, the crime of child enticement, with alternate modes of commission, one of which is an attempt to cause a child to go into a vehicle, building, room or secluded place. The principles of attempt, as set forth in WlS. Stat. § 939.32(3), also apply. The fictitiousness of the girls constitutes an extraneous factor beyond Koenck's control that prevented successful enticement while not excusing the attempt to entice.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       "Child" is defined in Wis. Stat. § 948.01(1) as "a person who has not attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated a state or federal criminal law, 'child' does not include a person who has attained the age of 17 years."


author: DEININGER, J.

text:
    In re the Marriage of: Diane M. Wettstaedt, Petitioner-Appellant, v. Gary E. Wettstaedt, Respondent-Respondent.
    Court of Appeals

      No. 00-3061.

      Submitted on briefs February 5, 2001.

    Decided March 8, 2001.

    2001 WI App 94
    (Also reported in 625 N.W.2d 900.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of John A. Baxter and Eric D. Reinicke of Karrmann, Buggs & Baxter, Platteville.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Kristina Cervera Garcia of John T. Fields & Associates, Brookfield.

      Before Dykman, P.J., Vergeront and Deininger, JJ.

      Petition to review denied.

   DEININGER, J.

¶ 1. Diane Wettstaedt appeals an order which reduces the amount of maintenance her former husband must pay to her by the amount of pension benefits she receives under a Qualified Domestic Relations Order (QDRO) entered at the time of the divorce. She claims the trial court erred in reducing the amount of Gary Wettstaedt's maintenance obligation because her receipt of pension benefits does not constitute a substantial change in circumstances, and because the trial court's order results in the impermissible "double-counting" of the pension benefits as both an asset for property division and as income for the maintenance determination. We disagree and conclude the trial court did not erroneously exercise its discretion in modifying the maintenance obligation in light of Diane's receipt of pension benefits under the QDRO.

BACKGROUND

¶ 2. The Wettstaedts married in 1970 and divorced in 1998. Under the terms of their divorce judgment, Gary pays Diane maintenance in the amount of $279.10 per week, or approximately $1,200 per month. In June 2000, Gary moved for an order modifying the amount of maintenance, citing a change in his financial circumstances and his desire to retire soon after his retirement eligibility date in October 2000.

¶ 3. At the hearing on his motion, Gary testified that he would turn fifty-five in September and would be eligible to draw a retirement pension from his employer of thirty years commencing the following month. Out of a total pension benefit of $2,055 per month, Diane would receive $864 pursuant to a QDRO entered at the time of the divorce. If Gary retired in October 2000, he would receive the remaining $1,191 per month, plus an "early retirement supplement" of $310 per month until he turned sixty-two, and Diane would receive a $212 supplement in addition to her QDRO benefit.

¶ 4. The trial court found that Gary had not established that "early retirement was a medical necessity," and that a voluntary decision by him to retire at fifty-five "would not justify eliminating the maintenance award." The court concluded, however, that the vesting of the parties' pension benefits and Gary's impending retirement constituted a change in circumstances, and that reducing Gary’s maintenance obligation by the amount of monthly pension benefits Diane would receive did not represent impermissible "double-counting." Accordingly, it ordered that Gary's "maintenance obligation shall be and hereby is reduced by the amount of pension benefits, including supplemental benefits, received" by Diane. Because it also acknowledged that the order "could be viewed as contrary to the 'double-counting' cases" cited in its decision, the court enjoined Gary "from taking any action in connection with his employment, in reliance on this decision, until the time for appeal has expired."

¶ 5. Diane appeals the order reducing maintenance by the amount of pension benefits she receives. The parties agreed to submit this as an "expedited appeal" under Wis. Stat. Rule 809.17 (1999-2000). Although, following conference, we ordered the appeal removed from the expedited appeals program, we have advanced its submission and disposition in light of the trial court's injunction. See Wis. Stat. Rule 809.20.

ANALYSIS

¶ 6. A decision to modify a maintenance award is committed to the discretion of the circuit court, and we will not disturb it unless the court has erroneously exercised its discretion. Seidlitz v. Seidlitz, 217 Wis. 2d 82, 86, 578 N.W.2d 638 (Ct. App. 1998). 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." Johnson v. Johnson, 217 Wis. 2d 124, 127, 576 N.W.2d 585 (Ct. App. 1998).

¶ 7. We must first inquire, therefore, whether the trial court erred in finding that Gary's impending retirement, and Diane's receipt of pension benefits under the QDRO, constitute a substantial change in the parties' financial circumstances. At the time of divorce, Gary was earning approximately $5,000 per month in gross salary as an industrial engineering manager, and Diane grossed some $1,500 per month from her employment. Gary testified that upon retiring, his only income would be the $1,500 per month in regular and supplemental pension benefits from his former employer. Diane, upon Gary's retirement, will receive $1,076 per month in pension benefits, which, of course, she was not receiving at the time the divorce judgment was entered in March 1998.

¶ 8. We conclude that the trial court did not err in determining that the significant change in both parties' incomes occasioned by Gary's retirement represents a substantial change in each of their financial circumstances. We concur with the trial judge's assessment that, when his predecessor entered the order for $1,200 per month in maintenance, he

was aware that at some point [Gary] would be retiring from his employment and maintenance would have to be adjusted accordingly. By equally dividing [Gary's] pension benefits through a Qualified Domestic Relations Order, [the prior judge] was able to insure that each party would enjoy a comparable level of post-retirement income.

¶ 9. We next address Diane's contention that the trial court erroneously exercised its discretion in modifying maintenance because it impermissibly "double-counted" the pension benefits Diane receives under the QDRO when it considered the benefits as income to her for purposes of determining maintenance. See Kronforst v. Kronforst, 21 Wis. 2d 54, 63-64, 123 N.W.2d 528 (1963). We conclude the court did not "double-count" the pension benefit. (Thus, we do not address whether "double-counting" on the present facts would be a proper exercise of discretion. See Cook v. Cook, 208 Wis. 2d 166, 179-80 ¶¶ 29-30, 560 N.W.2d 246 (1997) (noting that the Kronforst "double-counting" rule is not absolute or inflexible).)

¶ 10. The divorce judgment provided for an equal division of the parties' marital estate, with each party receiving one-half the net proceeds from the sale of their residence and $73,590 in other assets, after a balancing payment from Gary to Diane. The value of Gary's pension, however, was not included in the division. In place of values under both the "Husband" and "Wife" columns of the property division balance sheet was inserted "1/2 QDRO." Thus, Diane did not "give up" other property in exchange for her interest in the pension, and Gary did not receive other property as an offset to Diane's future right to share in his pension.

¶ 11. The division of Gary's pension by QDRO at the time of the parties' divorce is thus in sharp contrast to the treatment of the pensions at issue in most "double-counting" cases. In Kronforst, the value of the husband's interest in his employer's "profit-sharing trust" was included in the assets awarded to him in an approximately equal division of the parties' property. The supreme court concluded that, in awarding maintenance to the wife, the trial court had improperly considered the fact that the husband's income " 'will be increased through payments from the Pension Sharing Trust.'" Kronforst, 21 Wis. 2d at 63. The court then set out the reasoning which has underpinned the application of the "double-counting" rule ever since:

Thus the trial court not only included the profit-sharing trust asset as part of the net estate awarded defendant on division, but also included it as income in determining the amount of permanent alimony. This clearly constituted error. We view the matter no differently than if the $9,749 had constituted cash in a bank deposit standing in defendant's name. Such an asset cannot be included as a principal asset in making division of the estate and then also as an income item to be considered in awarding alimony.

Id. at 63-64.

¶ 12. This court recently applied the rule in Seidlitz, where (as in Kronforst) one party was awarded the entire interest in a pension as part of the property division. See Seidlitz, 217 Wis. 2d at 84 ("As part of the equal property division, [wife] was awarded the homestead, a rental property and [husbandj's pension fund."). We rejected the husband's claim that, in deciding whether to grant his motion to terminate maintenance upon his retirement, the trial court should have considered the wife's income from the pension she was awarded in the property division. We noted that the Kronforst rule against "double-counting" was "not absolute," id. at 90 (citing Cook v. Cook, 208 Wis. 2d 166, 180, 560 N.W.2d 246 (1997)), but that the trial court's decision to exclude the wife's payments from the pension from consideration in the maintenance determination was "supported by case law." Id. at 91. We endorsed the trial court's conclusion that it "cannot count it [the pension] for property division and then also count it as an income stream for maintenance," noting that "a spouse should not be forced to invade the property division in order to live while the other does not." Id. at 91 — 92 (citation omitted).

¶ 13. Here, as we have discussed, Diane is not being "forced to invade" property awarded to her in the property division, while Gary is not. Diane did not give up her interest in other property in order to share in the pension, and Gary did not receive other property to offset the pension interest Diane obtained under the QDRO. Rather, both parties preserved a right to share in the future pension payments, according to a division of their interests as of the date of the divorce. Thus, the "counting" of the pension payments in determining whether maintenance should be modified is the first time the pension is being counted — not the second. Just as Diane's receipt of pension payments is an appropriate consideration in determining her present financial circumstances, so is Gary's receipt of his pension benefits in determining his. For example, if after Gary retires from his present employer, he obtains other employment or becomes self-employed, a court could properly consider both his earnings and his $1,500 monthly pension benefit in assessing his income for maintenance purposes.

¶ 14. In short, we conclude that the trial court's order to modify maintenance by allowing an offset for Diane's newly commenced pension payments was a proper exercise of discretion. The court noted that Gary had not shown that his retirement at age fifty-five was medically necessary, and by entering the order it did, it ensured that Diane would not be adversely affected by Gary's voluntary decision to retire — she would still receive some $1,200 per month from the pension and maintenance.

¶ 15. Finally, we note that among the "doublecounting" cases cited by Diane and the trial court is our decision in Kennedy v. Kennedy, 145 Wis. 2d 219, 426 N.W.2d 85 (Ct. App. 1988). Both parties in Kennedy had pension plans from their respective long-term employers, and we noted that the trial court had "divided the marital estate equally. The court divided the pension plans giving each party an interest in the other's pension plan." Id. at 221. The husband appealed the property division and maintenance award ordered in the divorce judgment, asserting "that the immediate value of [wifejs interest in his pension under the domestic relations order 'should be factored into the equation for either property division and/or maintenance.'" Id. at 224. We affirmed the property division, concluding there was no "unfairness" in dividing the parties' pension benefits by a QDRO: "Once the trial court elects to use a domestic relations order for this purpose, the present value of the parties' interest in each others' benefits is thereafter irrelevant to the property division." Id. at 225. Our present analysis is entirely consistent with this part of our discussion in Kennedy.

¶ 16. Our treatment of the maintenance issue in Kennedy was not nearly so straightforward, however. First, we explained early in the opinion that we were reversing the trial court's order for maintenance of $100 per week because "we are left with the nagging question-why $100 per week for an indefinite term is a proper maintenance award under [the maintenance statute] and the facts and circumstances of this case." Id. at 223. Because we reversed the maintenance order at the payer's request, and because we were critical of the trial court's "mechanistic approach" of "simply . . . attempting to equalize the post-divorce income between the parties," it can be assumed that we deemed the award too high for the facts and circumstances presented.

¶ 17. When we returned to the maintenance issue later in the opinion, however, we rejected the husband's "contention that the payments to [wife] from his pension benefits must be 'factored into the equation' in deciding [wife]'s maintenance claim." Id. at 227. Perhaps because the wife was immediately eligible to draw benefits while the husband was not (unless he retired, which there was no indication he intended to do), we said:

Whether or not the periodic distributions to [wife] of her interest in [husbandj's pension benefits under the domestic relations order are income for purposes of taxation, those distributions are, in actuality, payment to her of a part of her share of the marital estate. As such, those payments are not income to her in determining the maintenance issues.
[Wife] should not be obliged to invade or exhaust her property division to support herself if [husbandj's income is sufficient to provide her with maintenance meeting the LaRocque objectives of support and fairness.

Id. at 226-27.

¶ 18. One obvious distinction between the present facts and those in Kennedy is that, given Gary's retirement, both Gary and Diane will be drawing on their respective pension benefits from Gary's employer. That is, if either is "invad[ing] or exhaust[ing his or] her property division," id., both are. Another, closely related, distinguishing fact is that Gary will clearly not be able to keep paying maintenance at the previously ordered level after he retires, if his only income is his pension and some interest on investments, as he testified.

¶ 19. We recognize, however, that the order under review does not require Gary to retire — it simply permits him to do so by reducing his maintenance obligation by the amount of pension income Diane receives under the QDRO. Our affirming the present order might be viewed as in conflict with some of our discussion in Kennedy, quoted above. Nonetheless, we are not persuaded that Kennedy precludes our present holding. Ther'e, we rejected only a contention that certain pension payments "must be factored into" the maintenance equation, id. at 227 (emphasis added), which is quite different from a conclusion that they may never be.

¶ 20. Our present holding is simply this: When an employee-spouse's pension is divided by QDRO, and no value is assigned to either spouse's interest to be offset by other property awarded in the property division, a family court is not prohibited by the "double-counting" rule from considering pension distributions in determining maintenance. We concluded in Pelot v. Pelot, 116 Wis. 2d 339, 343, 342 N.W.2d 64 (Ct. App. 1983) that "[i]f the present value [of a pension] is included in the estate, then the pension payments themselves are not counted as income for purposes of fixing maintenance when the divorce is granted." Our present holding is simply the corollary—if the present value of a pension is not included in the marital estate for property division purposes, such as when a pension is divided by QDRO as in this case, then the pension payments may be counted as income for purposes of fixing maintenance.

CONCLUSION

¶ 21. For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

       "A qualified domestic relations order permits payment of benefits of qualified private retirement plans to one other than the employee spouse." Schinner v. Schinner, 143 Wis. 2d 81, 86 n.1, 420 N.W.2d 381 (Ct. App. 1988).

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Gary's 1999 income tax return, introduced as an exhibit at the hearing on his motion, indicates that Gary also receives about $200 per month in interest income.

       By contrast, values for a "Mutual of Am." pension and "TDA," which were apparently benefits from Diane's employer, were included under the "Wife" column, and were thus "counted against" Diane in the property division, in that Gary received other assets to offset their value. Distributions from these accounts are not at issue in this appeal. We observe, however, that in Pelot v. Pelot, 116 Wis. 2d 339, 346, 342 N.W.2d 64 (Ct. App. 1983), we concluded that where "[t]he full value of every asset assigned to each spouse is credited against that spouse's percentage share in the marital estate," a party assigned an interest in a pension plan "should receive the full value of his pension plan . . . before his pension benefits can be considered income" for maintenance purposes.

       According to his testimony at the motion hearing, Gary intends to live exclusively on his pension income following retirement. If Diane continues to work and earn at her previous income level, she will be receiving considerably more monthly income than Gary will following his retirement. (Diane's monthly income would be $2,576, while Gary's would be $1,500 - $1,700. See footnote 3, above.) Gary might therefore argue that he should be relieved of any obligation to pay maintenance. Gary has not cross-appealed the court's order which modified maintenance rather than terminating it, however. In any event, as discussed in the text, we conclude that the decision to not relieve Gary of his obligation to provide the additional amount needed to maintain the previously ordered level of maintenance does not represent an erroneous exercise of discretion.