author:
N. PATRICK CROOKS, J.
      LOUIS B. BUTLER, JR., J.

text:
    Bryan Baumeister, Robin Baumeister, Jeffrey Brown and Stacy Brown, Plaintiffs-Appellants-Petitioners, Heritage Mutual Insurance Company, Subrogated-Plaintiff, v. Automated Products, Inc., Defendant, Edward A. Solner AIA d/b/a Solner and Associates, Defendant-Respondent-Petitioner.
    Supreme Court

      No. 02-1003.

      Oral argument September 10, 2004.

    Decided December 15, 2004.

    2004 WI 148
    (Also reported in 690 N.W.2d 1.)

      For the plaintiffs-appellants-petitioners there were briefs by Christopher D. Stombaugh, Sheila Stuart Kelley and Kopp, McKichan, Geyer, Skemp & Stom-baugh, LLP, Platteville, and oral argument by Christopher D. Stombaugh.

    For the defendant-respondent-petitioner there were briefs by Anthony R. Varda and DeWitt Ross & Stevens, S.C., Madison, and oral argument by Anthony R. Varda.

    An amicus curiae brief was filed by Lynn R. Laufen-berg and Laufenberg & Hoefle, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Laywers, and oral argument by Lynn R. Laufenberg.

   N. PATRICK CROOKS, J.

¶ 1. This case is before the court on two petitions seeking review of an unpublished decision of the court of appeals, Baumeister v. Automated Products, Inc., No. 02-1003, unpublished slip. op. (Wis. Ct. App. Nov. 20, 2003). The first petition, filed by Bryan Baumeister, Robin Baumeister, Jeffrey Brown, and Stacy Brown (Baumeister and Brown), requests review of a portion of the court of appeals' decision which affirmed the entry of summary judgment in favor of the defendant, Edward Solner (Solner). Solner filed the second petition and asks this court to overturn the portion of the court of appeals' decision that denied his motion for costs, fees, and reasonable attorney fees.

¶ 2. We affirm the court of appeals and hold that summary judgment was appropriately granted in favor of Solner. We find that there were no genuine issues of material fact presented by Baumeister and Brown to rebut the affidavits presented, and, thus, the prima facie case established, by Solner. We further hold that the court of appeals was correct when it denied Solner's motion for costs, fees, and reasonable attorney fees, pursuant to Wis. Stat. § (Rule) 809.25(3) (2001-02). In order to succeed on this motion, Solner needed to establish that the entire appeal of the order for summary judgment lacked arguable merit. We * conclude that Baumeister and Brown's claim that Solner breached his duty of care had arguable merit, and, therefore, cannot be construed as frivolous.

h — I

¶ 3. On November 12, 1994, Holy Trinity Lutheran Church (Holy Trinity) retained Edward Solner, an architect licensed in Wisconsin, to design its new church. Solner entered into a contract with Holy Trinity pursuant to the Standard Form of Agreement Between Owner and Architect, ALA Document B141 (1987 ed.), which contained the language from Sections 2.6.5 and 2.6.6. Holy Trinity had the option to extend Solner's project responsibilities beyond the services listed in the contract, but chose not to do so.

¶ 4. Holy Trinity hired Roberts Construction Associates, Inc. (Roberts), as the general contractor, pursuant to a Standard Form of Agreement Between Owner and Contractor, AIA Document A101 and 201 (1987 ed.). This contract specified, among other things, that both Roberts and its subcontractors must follow certain requirements related to truss installation: (1) comply with recommendations of TPI (Truss Plate Institute) design specifications for metal plate connected wood trusses and the State of Wisconsin Code requirements; and (2) install materials and systems in accordance with manufacturers' instructions and approved submittals.

¶ 5. Solner completed his plans of the new church and then designed "contract specifications" for the wood trusses to be placed above the main assembly area. Meanwhile, Roberts hired Automated Products, Inc. (Automated) to provide the fabricated wood trusses. An engineer from Automated, Gary Korpela, designed the trusses and their layout to meet the "contract specifications." Automated then shipped the trusses to the construction site and attached instructions: "The Builder shall be responsible for proper truss handling and bracing. A guide for the qualified Builder may be but is not limited to: 'Handling and Erecting Wood Trusses' by TPI, Inc."

¶ 6. Baumeister and Brown were construction workers on the site. They were employed by Diamond Builders, a subcontractor of Roberts. On October 16, 1997, Baumeister and Brown were seriously injured during the erection of the wood trusses. It has been established that the TPI guidelines were not followed during the installation of the trusses.

¶ 7. The insurance company for Holy Trinity, General Casualty Company, subsequently brought a subrogation claim against Diamond Builders in September, 1999. General Casualty sought to recover the cost of the collapsed trusses and the cost for the cleanup, which it had paid to Holy Trinity after the accident. The complaint alleged negligent installation of temporary bracing of the wood trusses.

¶ 8. Baumeister and Brown moved to intervene pursuant to Wis. Stat. § 803.09(1). On August 14, 2000, the circuit court issued an order permitting intervention. Baumeister and Brown then filed a cross-complaint against Solner and the truss manufacturer, Automated. Among other things, they claimed that their injuries were caused by the negligence of Solner. Solner filed a motion for summary judgment on April 16, 2001. The circuit court denied the motion. On November 27, 2001, Solner filed a motion to vacate and a motion for reconsideration. The circuit court heard oral arguments and granted Solner's motion for summary judgment. The Dane County Circuit Court, Judge Richard J. Callaway presiding, determined that Baumeister and Brown had failed to follow the TPI guidelines, and that Solner had no duty to supervise the installation of the trusses at the construction site. As a result, the circuit court ordered that all claims against Solner were dismissed. Solner then filed a motion for attorney fees. He claimed that Baumeister and Brown failed to make an adequate investigation and maintained a frivolous action. The case was appealed before the circuit court ruled on that issue.

¶ 9. The court of appeals unanimously affirmed the circuit court's grant of summary judgment. Judge Lundsten, writing for the majority on that matter, held that Baumeister and Brown were unable to show that Solner's duty of care included supervising personally the construction site, assuring safe construction, or providing safe temporary truss bracing instructions. Moreover, the court of appeals found that Baumeister and Brown would not have been able to satisfy the causation requirement for a claim of negligence, since they, themselves, did not follow the TPI guidelines and, thus, could not show that Solner was negligent in directing that those guidelines be followed. Such alleged negligence could not, therefore, have been a substantial factor in producing their injuries. Baumeis-ter, No. 02-1003, unpublished slip, op., ¶ 32.

¶ 10. The issue of the frivolous appeal resulted in a split decision. Judge Deininger wrote a concurrence joined by Judge Vergeront. The majority of the court of appeals concluded that Solner was not entitled to costs, fees, and reasonable attorney fees under Wis. Stat. § (Rule) 809.25(3). It further held that, in order to grant a motion under § (Rule) 809.25(3), the entire appeal must be frivolous, and that not all of the arguments raised on appeal here were completely void of arguable merit.

¶ 11. We first address whether summary judgment was appropriately granted. Although benefiting by the review of the circuit court and the court of appeals, we review an order for summary judgment de novo, applying the same standards as used by those courts. Conley Publ'g Group v. Journal Communications, 2003 WI 119, ¶ 13, 265 Wis. 2d 128, 665 N.W.2d 879. We will affirm a grant of summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). "[T]he mero existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." City of Elkhorn v. 211 Centralia Corp., 2004 WI App 139, ¶ 18, 275 Wis. 2d 584, 685 N.W.2d 874, (citing Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991).

¶ 12. The first step of the methodology is to determine whether the pleadings set forth a claim for relief. Trinity Evangelical v. Tower Ins. Co., 2003 WI 46, ¶ 32, 261 Wis. 2d 333, 661 N.W.2d 789. If a claim for relief is stated, then examination is made of the moving party's affidavits and other proof to determine whether a prima facie case for summary judgment has been established. Peninsular Carpets, Inc. v. Bradley Homes, Inc., 58 Wis. 2d 405, 410-11, 206 N.W.2d 408 (1973). If a moving party has established a prima facie case, the opposing party must then establish that there are disputed material facts, or undisputed material facts from which reasonable alternative inferences could be drawn, that entitle such a party to a trial. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980).

¶ 13. Baumeister and Brown's principal summary judgment argument in opposition to the motion is that there exist genuine issues of material fact concerning Solner's duty. They claim that the circuit court failed to address properly evidence that created a common-law duty based on foreseeability. In making the argument, Baumeister and Brown rely almost exclusively on this court's recent decision in Alvarado v. Sersch, 2003 WI 55, 262 Wis. 2d 74, 662 N.W2d 350. That case held: "a duty to use ordinary care is established whenever it is foreseeable that a person's act or failure to act might cause harm to some other person." Id., ¶ 14 (citation omitted). Baumeister and Brown argue that this principle, applied to the facts of this case, results in a duty that was breached by Solner, because he should have foreseen that the trusses would not have been installed properly. They allege that because Solner gave instructions to the general contractor, Roberts, that workers should follow the guidelines of TPI, but did not give more adequate instructions to the workers, themselves, he should have known that the workers would be in danger. As a result, they contend that the architect breached his duty to provide some form of warning.

¶ 14. In support of this position, Baumeister and Brown rely on the affidavits of Professor Kenneth E. Buttry. They offer statements to rebut the affidavits submitted by Solner and another architect, which declare that, under the contracts involved here, Solner did not breach his duty as an architect to design, approve, or inspect the temporary bracing, nor did he breach any duty to investigate or personally supervise truss installation. Specifically, Buttry claims that Solner was responsible for providing truss bracing instructions. He stated in his affidavit: "Given the architect's superior knowledge and skill he should have supplied the contractor and its employees with the required instructions on bracing as noted in the Automated Products Attachments...." He also maintained that the necessary amount of bracing would not be within the common experience of construction workers without guidance from either Solner or Automated.

¶ 15. Baumeister and Brown's next argument is that the court incorrectly ruled on Solner's contractual responsibility to prepare specific bracing instructions. They allege that Automated's instructions clearly stated that the temporary bracing instructions were Solner's responsibility. Baumeister and Brown claim that because Solner did not provide temporary bracing instructions, he is liable for breach of contract. In addition, they claim that because Solner admitted in his affidavit that he did not see the instructions during construction, a breach of his common-law duty is presumed.

¶ 16. Baumeister and Brown also contend, in their briefs, that Solner, personally, had a duty, which was breached, to supervise truss installation. Although their attorney did not rely on this claim during oral arguments, they maintain that Solner was in breach of the Wisconsin Administrative Code. Specifically, Baumeister and Brown attack Solner for ignoring Wis. Admin. Code §§ ILHR 50.07(2)(a) and 50.10 (Sept., 2000). Section ILHR 50.10 states: "All constructions or installations under s. ILHR 50.07(2) and (3) shall be supervised by a Wisconsin registered architect or engineer. ... The person responsible for supervision shall also be responsible for the construction and installation being in substantial compliance with the approved plans and specifications." The Code goes on to define "supervision of construction," in Wis. Admin. Code § ILHR 50.10(1), as "reasonable on-the-site observations to determine that the construction is in substantial compliance with approved plans and specifications." Baumeister and Brown argue that Solner's on-site observations were not sufficient, and that an analysis of these obligations under the Administrative Code should be left to the trier-of-fact.

¶ 17. Baumeister and Brown also assert that the issue of causation should also be left for a jury. They buttress this argument with a claimed presumption that in cases where there are inadequate warnings, causation is presumed, relying on Tanner v. Shoupe, 228 Wis. 2d 357, 380, 596 N.W.2d 805 (Ct. App. 1999). It should be noted that their argument is not really about inadequate warnings, but about no warnings, and either wrong or inadequate instructions.

¶ 18. We agree with the conclusion of the court of appeals that Solner, in that regard, did not breach his duty to use the standard of care ordinarily exercised by an architect. Baumeister and Brown's reliance on Alvarado is misplaced. They assert that Solner's "superior knowledge" created a duty to provide adequate instructions to them, because the omission of such instructions resulted in an unreasonable risk of injury or damage to the workers. The court of appeals rejected this argument. It stated that "superior knowledge alone does not create liability." Baumeister, No. 02-1003, unpublished slip, op., ¶ 23.

¶ 19. Although Baumeister and Brown alleged that an architect who designs or specifies a building component has a professional duty, which was breached, to ensure that safe installation instructions for that particular component are provided, the court of appeals noted that they presented no expert testimony in support of that allegation. Id. In his affidavit, Buttry did not assert directly, or through a recitation of his qualifications, that he was qualified to give an opinion as an expert on the professional responsibility of an architect.

¶ 20. Solner asserted in his affidavit that, in the usual situation, the contractor would hire a truss manufacturer to provide necessary trusses and its engineer would assure that the trusses met the design specifications. In his professional opinion as an architect, Solner stated that he "had a right to reasonably rely upon the professional certification of Mr. Korpela as to the structural accuracy of the trusses he had designed and [he] had no obligation to redesign those trusses or inspect and verify the trusses, as built, to determine if they complied with his design." Based on what was presented, we agree with the court of appeals that Solner had no reason to foresee any installation problems.

¶ 21. Solner also had no contractual duty, which was breached, in regard to the installation of the truss bracing. An inspection of the contract and review of the truss manufacturer's instructions -demonstrate that Baumeister and Brown's argument is flawed. Under the terms of the AIA contract, Solner is relieved of liability with regards to "construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work." AIA Section 2.6.6. Architect Lee Madden confirmed this in his affidavit. He stated: "Under AIA contracts, the architect is not responsible for, nor does he control, the methodology and techniques chosen by the contractor to construction [sic] a building, including the use of temporary bracing while erecting trusses."

¶ 22. As for the argument that Automated's instructions bind Solner, since the instructions read, "both temporary and permanent bracing are required and their design is the responsibility of the project architect or engineer," the court of appeals disposed of it convincingly:

First, nothing in the truss manufacturer's instructions "explicitly" states that "Solner" is responsible.
Second, Baumeister and Brown do not even attempt to explain why a directive from the truss manufacturer could impose a contractual duty on the building architect.
Third, the manufacturer's instructions do not say that the architect of the building is responsible for providing temporary truss bracing ■ instructions. Rather, the manufacturer's instructions read: "both temporary and permanent bracing are required and their design is the responsibility of the project architect or engineer." Baumeister and Brown do not provide any basis on which to conclude that Solner was the "project architect" within the meaning of the manufacturer's instructions. Certainly Solner was the architect who designed the church, but does that make him the "project architect" within the moaning of the instructions? Baumeister and Brown provide no answer.
Fourth, the manufacturer's instructions put responsibility on the "project architect or engineer." Baumeister and Brown do not explain why, with respect to this particular project, it is the project architect and not the project engineer who was responsible.

Baumeister, No. 02-1003, unpublished slip op., ¶¶ 15-18. The holding of the court of appeals is consistent with our decision in Vonasek v. Hirsch and Stevens, Inc., 65 Wis. 2d 1, 221 N.W.2d 815 (1974). In that case, a general contractor brought a claim against an architect to recover for damages from a building that collapsed. The contractor alleged that the architect had supplied defective plans and specifications, and that his supervision of the project was inadequate. We concluded that the architect's contract with the owner did not require the architect to specify procedures or to supervise the work of the contractor. "To hold otherwise would make the architect a general safety supervisor at the site, a job which would require his continuous presence in disregard of the express language of his contract." Id. at 11-12.

¶ 23. Baumeister and Brown also failed to demonstrate that there was a breach of a duty by Solner, personally, to supervise the construction site. The duty listed in the Wisconsin Administrative Code ensures that the construction complies with the approved plans and specifications. Wis. Admin. Code § ILHR 50.10. Solner acknowledged this duty in his affidavit: "Under the Wisconsin Administrative Code, I would have been responsible to inspect the final bracing and connections of wood trusses to make sure they were properly made in conformance with the code." Solner argues that this responsibility to inspect and approve the building was not required until the building was completed. Baumeister and Brown do not present any basis for their alternate interpretation of this code section.

¶ 24. The court of appeals also acknowledged that Baumeister and Brown "have a causation problem" in regard to the assertion that Solner was negligent when he required that the TPI instructions be followed. Baumeister, No. 02-1003, unpublished slip, op., ¶ 32. In Wisconsin, the test for causation is whether the conduct at issue was a "substantial factor" in producing plaintiffs injury. Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 306, 550 N.W.2d 103 (1996). Here, Baumeister and Brown present nothing to support the claim that Solner's actions concerning the TPI bracing instructions played a role in creating their injuries. In commenting on the fact that the instructions from Solner to the contractor, Roberts, directed that TPI guidelines be followed, while not providing correct or more adequate instructions to the workers or their employer, the court of appeals noted: "Since Baumeister and Brown did not follow the Truss Plate Institute guidelines, they cannot show that a directive that the guidelines be followed was a substantial factor in producing their injuries." Baumeister, No. 02-1003, unpublished slip, op., ¶ 32. Considering the test for the granting of a summary judgment motion, the affidavits and attachments presented, and the arguments of counsel, we conclude that Solner established an unrebutted prima facie case that there were no genuine issues of material fact, and, therefore, that the granting of the motion was appropriate.

I — I HH

¶ 25. We next address Solner's motion to declare the appeal frivolous, in accordance with Wis. Stat. § (Rule) 809.25(3). When, as here, the facts have been established, we review a claim of frivolousness de novo. Tennyson v. Sch. Dist. of Menomonie Area, 232 Wis. 2d 267, 288, 606 N.W.2d 594 (Ct. App. 1999); see also Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 236, 517 N.W.2d 658 (1994). In order to impose sanctions, the court must find that "[t]he party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." Wis. Stat. § (Rule) 809.25(3)(c)2. Consequently, when a motion is made to declare an appeal frivolous, we will resolve all doubt in favor of finding the claim nonfrivolous. In re Estate of Bilsie, 100 Wis. 2d 342, 350, 302 N.W.2d 508 (Ct. App. 1981).

¶ 26. Frivolous action claims and frivolous appeals present a serious cause for concern. We have found this to be "an especially delicate area since it is here that ingenuity, foresightedness and competency of the bar must be encouraged and not stifled." Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). Thus, in Wisconsin, the court of appeals has not assessed costs, fees, and reasonable attorney fees under Wis. Stat. § (Rule) 809.25(3), unless the entire appeal is frivolous. A frivolous argument in a brief is not enough to find the appeal frivolous. In re Carpenter v. Mumaw, 230 Wis. 2d 384, 398, 602 N.W.2d 536 (Ct. App. 1999). This interpretation by the court is consistent with the following decisions: Manor Enterprises v. Vivid, Inc., 228 Wis. 2d 382, 403, 596 N.W.2d 828 (Ct. App. 1999) ("we may not award fees under § 809.25(3)(a), Stats., unless the entire appeal is frivolous."); Tennyson, 232 Wis. 2d at 290. (" '[W]e may not award fees under § 809.25(3)(a), Stats., unless the entire appeal is frivolous.'" (citations omitted) (emphasis omitted)); Chase Lumber & Fuel Co. v. Chase, 228 Wis. 2d 179, 210 n.12, 596 N.W.2d 840 (Ct. App. 1999) ("We note that Rule 809.25(3), Stats., does not allow us to find that individual arguments in a. brief are frivolous." (citation omitted)); Nichols v. Bennett, 190 Wis. 2d 360, 365 n.2, 526 N.W.2d 831 (Ct. App. 1994) ("Rule 809.25(3) Stats., does not allow us to find that individual arguments in a brief are frivolous."). We uphold this approach, since the court of appeals has applied § (Rule) 809.25(3) correctly. The statute specifically authorizes sanctions only upon a determination that the "appeal or cross-appeal" was frivolous. There is nothing in the language of § (Rule) 809.25(3) that allows a court to determine that an appeal is frivolous, merely because an individual claim or defense is frivolous, and nothing has persuaded us to apply the statute in such a manner.

¶ 27. Solner argues that this interpretation of the frivolous appeals statute will lead to illogical results. He contends that because causation is a determinative factor in a negligence analysis, if causation cannot be established, that the entire appeal should be found to be frivolous. This argument is flawed. We need to find each of their arguments frivolous, under Wis. Stat. § (Rule) 809.25(3)(a), in order to find the entire appeal frivolous. Tennyson, 232 Wis. 2d at 290. The causation issue that Solner alleges to be frivolous is one element of Baumeister and Brown's negligence claim against him and concerns his requirement that the TPI bracing instructions be followed.

¶ 28. The court of appeals' majority was correct in determining that not all of the arguments made by Baumeister and Brown were lacking in arguable merit. Legitimate issues were raised concerning whether Sol-ner breached his duty of care as an architect. Although the argument was unsuccessful,- we do not find it to have been frivolous. See Stern, 185 Wis. 2d at 235. This court does not look at "whether one can prevail on his claim, but whether the claim is so indefensible that the party or his attorney should have known it to be frivolous." Juneau County v. Courthouse Employees, 216 Wis. 2d 284, 295-96, 576 N.W.2d 565 (1997) (citation omitted). In analyzing frivolous action claims under Wis. Stat. § 814.025, doubts should be resolved in favor of finding a claim nonfrivolous, unless the claim was brought solely for purposes such as harassment or malicious injury, or without any reasonable basis in law or equity. The same basic approach should be applied where there is a claim of a frivolous appeal under Wis. Stat. § (Rule) 809.25(3).

¶ 29. Judge Lundsten concluded in his dissent that Baumeister and Brown should have been sanctioned for filing a frivolous appeal. He agreed that under Wis. Stat. § (Rule) 809.25(3), the appellate court would have to conclude that the entire appeal was frivolous in order to impose costs, fees, and reasonable attorneys fees, but he determined that this was such a case. He concluded the entire appeal was frivolous, since a reasonable attorney would have known that an appeal based on the Buttry affidavits would be without merit. Moreover, he asserted that Baumeister and Brown presented nothing new on appeal to demonstrate the existence of a genuine issue of material fact. Baumeister, No. 02-1003, unpublished slip, op., ¶ 35.

¶ 30. We conclude, as did the court of appeals' majority, that it was not frivolous for Baumeister and Brown's attorney to rely on Buttry's affidavit concerning Solner's duty of care related to truss bracing. As stated above, the Buttry affidavit raises an issue as to whether Solner breached the duty of care that he owed to Baumeister and Brown. Professor Buttry stated: "it is the responsibility of the building designer, Mr. Solner, to detail the truss/wall connection." He also stated that the workers should have been warned, because of the unusual design specifications. We are satisfied that a reasonable attorney could find this to be a basis for an appeal, one that is not frivolous under all the circumstances.

¶ 31. Lastly, we decline, as urged by Solner, to overrule the court of appeals' holding in Leske v. Leske, 185 Wis. 2d 628, 517 N.W.2d 538 (Ct. App. 1994). In Leske, the defendant counterclaimed for costs and attorney fees under Wis. Stat. § 814.025, after the circuit court granted him partial summary judgment. The court of appeals reviewed the summary judgment ruling while the counterclaim under § 814.025 was still pending in the circuit court. The court of appeals concluded that "the pendency of a claim for attorney's fees under a specific fee-shifting statute does not render a judgment or order nonfinal, provided that the judgment or order disposes of all of the substantive causes of action between the parties." Id. at 633; see also Harder v. Pfitzinger, 2004 WI 102, 274 Wis. 2d 324, 682 N.W.2d 398. Solner argues that appeals should never be accepted until the circuit court has determined whether to assess costs and reasonable attorney fees. Specifically, he contends that this rule both deprives an appellate court of the circuit court's decision on frivolousness, and results in multiple appeals.

¶ 32. We encourage a party alleging a frivolous claim to move the appellate court to stay the appeal, and retain jurisdiction while the case is remanded for a circuit court ruling on the frivolousness issue. If a party chooses to appeal the circuit court's frivolousness ruling, the appellate court can then combine the initial appeal on the merits with the appeal of the decision of the circuit court on frivolousness.

IV

¶ 33. In sum, we conclude that the summary-judgment motion of Solner was properly granted. There were no genuine issues of material fact presented by Baumeister and Brown to rebut the affidavits and attachments filed, and, thus, the prima facie case established, on behalf of Solner, that supported Solner's position that Solner breached no duty of care.

¶ 34. We also conclude that Baumeister and Brown's appeal was not frivolous under Wis. Stat. § (Rule) 809.25(3). In order to be awarded costs, fees, and reasonable attorney fees, the moving party must prove that the entire appeal presented was frivolous. If an argument advanced has arguable merit, then the appeal is not frivolous. In this case, Baumeister and Brown presented a meritorious argument concerning whether there was a breach of Solner's duty of care. While finding that this argument was not frivolous under § (Rule) 809.25(3), and that, therefore, the entire appeal was not frivolous, we wish to emphasize that it is important to preserve the opportunity for attorneys to represent the interests of their clients zealously, so that there might be good faith development of the law. Stern, 185 Wis. 2d at 235.

By the Court. — The decision of the court of appeals is affirmed.

¶ 35. JON E WILCOX, J., did not participate.

LOUIS B. BUTLER, JR., J.

¶ 36. {concurring). I join the decision and mandate of the court. While I would prefer a rule that would require claims for attorney's fees to be disposed of before a judgment or order becomes final, this court's decision today is consistent with its ruling last term in Harder v. Pfitzinger, 2004 WI 102, 274 Wis. 2d 324, 682 N.W.2d 398. Moreover, the court provides a framework that would allow the parties to litigate frivolous claims and then consolidate the appeals. Majority op., ¶ 31.1 see no reason to abandon the precedent established in Leske v. Leske, 185 Wis. 2d 628, 517 N.W.2d 538 (Ct. App. 1994) and Harder at this time. See Johnson Controls, Inc. v. Employers Ins., 2003 WI 108, ¶¶ 98-99, 264 Wis. 2d 60, 665 N.W.2d 257. I therefore concur.

       Unless otherwise indicated, all references to Wisconsin Statutes are to the 2001-02 edition.
      Wisconsin Stat. § (Rule) 809.25(3) provides, in relevant part:
      (a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees, and reasonable attorney fees under this section. ...
      (c) In order to find an appeal or cross-appeal to be frivolous under par. (a), the court must find one or more of the following:
      (1) The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
      (2) The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

       Section 2.6.5 provides:
      The Architect shall visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect in writing to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of on-site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall endeavor to guard the Owner against defects and deficiencies in the Work. (More extensive site representation may be agreed to as an Additional Service, as described in Paragraph 3.2.)

       Section 2.6.6 states in part:
      The Architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility under the Contract for Construction. The Architect shall not be responsible for the Contractor's . .. failure to carry out the Work in accordance with the Contract Documents. The Architect shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work.

       When construction resumed, the trusses were installed according to TPI recommendations. That installation was without incident.

       As repeated by the court of appeals, the test of negligence in Wisconsin requires: "(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995) (citation omitted).

       The court of appeals correctly points out that the circuit court held that two of Buttry's affidavits were untimely under Wis. Stat. § 802.08(2). Because Baumeister and Brown make no argument that the circuit court misused its discretion in disregarding two of the three affidavits, we do not consider them. Baumeister v. Automated Products, Inc., No. 02-1003, unpublished slip op., ¶ 30 n.7 (Wis. Ct. App. Nov. 20, 2003). The court of appeals went on to observe that even if the two late affidavits were considered, those affidavits did not clarify the factual assumptions made by Buttry. Id.

       The directions from Automated read: "Both temporary and permanent bracing are required and their design is the responsibility of the project architect or engineer."

       "During the course of litigation, I have seen documents purportedly supplied by Automated Products, Inc. with the trusses suggesting that the building designer have some role in the design of temporary bracing but no such document was never [sic] given to me during the course of construction by Automated Products, Inc., the contractor, the owner, or anybody else involved."

       The attorney for Baumeister and Brown stated at oral argument: "We don't believe it was a duty of supervision. This was not necessarily strictly a construction site supervision. This is an anomaly."

       The court of appeals cited affidavits from Solner and architect Lee Madden, and held that Solner did not breach a professional duty to provide safe temporary truss bracing instructions. Baumeister, No. 02-1003, unpublished slip, op., ¶ 28. Baumeister and Brown seemed to distance themselves from this argument in their briefs to this court by stating: "This is not an issue of the standard of care of an architect," but there is no question that their pleadings, their briefs, and Buttry's affidavit submitted to the circuit court in opposition to summary judgment, all raise the claim of a breach of Solner's' professional duties as an architect.

       In his affidavit, Solner stated: "In the usual and customary fashion followed in the State of Wisconsin, the building contractor hires a truss manufacturer to provide trusses, and the truss manufacturer's engineer engineers those trusses to fit the design and meet the design specifications for the load, pitch, slope, etc."

       Vonasek's Owner-Architect contract provided in relevant part:
      "3.4.3 [The Architect] will make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if the work is proceeding in accordance with the Contract Documents. He will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work and he will not be responsible for the Contractors' failure to carry out the construction work in accordance with Contract Documents."

        Vonasek v. Hirsch and Stevens, Inc., 65 Wis. 2d 1, 11, 221 N.W.2d 815 (1974) (emphasis omitted).

       Even though Wis. Stat. § (Rule) 809.25(3) was cited in relevant part at footnote 1, it is important to emphasize here that subsection (a) explicitly requires that either the "appeal or cross-appeal" be frivolous. There is no mention of individual elements or arguments. Subsection (a) states, in relevant part: "If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees, and reasonable attorney fees under this subsection."

       The case was taken to the court of appeals before the circuit court ruled on Solner's motion for a frivolous claim, pursuant to Wis. Stat. § 802.05.


source: Caselaw Access Project

author: JON E WILCOX, J.

license: Public Domain

text:
    In re the Marriage of: Julie A. Kenyon, Joint-Petitioner-Appellant-Petitioner, v. Ralph C. Kenyon, Joint-Petitioner-Respondent.
    Supreme Court

      No. 02-3041.

      Oral argument October 6, 2004.

    Decided December 15, 2004.

    2004 WI 147
    (Also reported in 690 N.W.2d 251.)

      For the joint-petitioner-appellant-petitioner there was a brief by Earl H. Munson and Boardman, Suhr, Curry & Field, LLP, Madison, and oral argument by Earl H. Munson, Jr.

    For the joint-petitioner-respondent there was a brief (in the court of appeals) by Charles Schutze and Schutze Law Office, Sun Prairie, and oral argument by Charles J. Schutze.

   JON E WILCOX, J.

¶ 1. This is a review of an unpublished court of appeals decision, Kenyon v. Kenyon, No. 02-3041, unpublished slip op. at 1 (Wis. Ct. App. Nov. 26, 2003), which affirmed an order of the Circuit Court for Dane County, Moria Krueger, Judge, that denied Julie Kenyon's motion to increase a maintenance award.

¶ 2. We hold that for purposes of evaluating a substantial change in the parties' financial circumstances during a maintenance modification proceeding, the appropriate comparison is to the set of facts that existed at the time of the most recent maintenance order, whether that is the original divorce judgment or a previous modification order. At the hearing, the circuit court should adhere to the findings of fact made in the previous proceeding and may not retry the issues decided in that proceeding. It should compare the facts regarding the parties' current financial status with those surrounding the previous order in determining whether the movant has established the requisite substantial change in circumstances so as to warrant modification of the maintenance award. Further, once a party has demonstrated the requisite substantial change in financial circumstances, the circuit court is not bound by either issue preclusion or claim preclusion to reinstate the amount of maintenance established in the original judgment of divorce, especially when the judgment of divorce has been previously revised by an order modifying maintenance payments.

¶ 3. However, we conclude that the circuit court in this case applied the wrong legal standard in rendering its decision because it focused chiefly on Julie Kenyon's need for maintenance at her present standard of living and whether it would be inequitable to force Ralph Kenyon to pay additional maintenance for an indefinite period. Last term, in Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶ 31, 269 Wis. 2d 598, 676 N.W.2d 452, we clarified that once a substantial change in the parties1 financial circumstances is demonstrated, the circuit court must consider the dual maintenance objectives of support and fairness when modifying a maintenance award. Here, in conformity with the controlling precedent at the time, the circuit court did not consider the fairness objective in relation to both parties. Therefore, we reverse the decision of the court of appeals and remand for a new hearing under the appropriate standard.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4. The facts are undisputed. Ralph and Julie Kenyon were married on March 25, 1977. Both parties had been previously married and divorced. The Kenyons received a judgment of divorce on June 30, 1993. The divorce decree awarded an equal division of property. Mr. Kenyon was awarded the family residence and was ordered to make the mortgage payment and other related payments for the residence. In addition, Mr. Kenyon was ordered to obtain refinancing and compensate Ms. Kenyon $14,690 for her interest in the marital estate. The circuit court also ordered maintenance of an indefinite term to be paid by Mr. Kenyon in the amount of $866.66 per month. In its findings of fact, the circuit court noted that Ms. Kenyon possessed extreme physical disabilities and that there was "no basis upon which to find an earning capacity." The court noted that she was unemployed but was attending a technical school in pursuit of a degree in graphic arts. Thus, the circuit court ordered a mandatory review "as to the amount and continuation of maintenance" in September 1995, stating "[i]t is anticipated by the Court that maintenance shall be paid until approximately the end of summer, 1995, when it is expected that Ms. Kenyon will have completed school and have secured employment."

¶ 5. A maintenance modification hearing was held on November 21, 1995. While the circuit court noted that Ms. Kenyon did not complete school and was not self-supporting as hoped, it nevertheless found a change in circumstances in that she was now steadily employed on a part-time basis making floral arrangements. The circuit court found that Ms. Kenyon received steady income from Social Security and her part-time job. Specifically, the court found that Ms. Kenyon was receiving $448 per month in disability payments from Social Security and was earning $563 per month as a result of her part-time job, which she worked 20 hours per week. Thus, the circuit court found "that a reduction in maintenance is appropriate and that the reduction should be such that the wife has some incentive to increase her earned income from whatever sources she is capable." The circuit court therefore ordered that maintenance be reduced by $500 a month and that Mr. Kenyon pay maintenance at a rate of $366 a month.

¶ 6. On April 11, 2002, Ms. Kenyon filed amotion to increase maintenance. In her motion, she stated that her medical condition had substantially deteriorated to such an extent that she was "totally incapacitated and unemployable by any definition." A hearing on the motion was held on July 18, 2002. While the circuit court found a substantial change in circumstances because Ms. Kenyon was no longer able to work due to her disability, the court nevertheless concluded that modification of the maintenance award was not warranted. The circuit court concluded that Ms. Kenyon was able to live a very modest lifestyle within her limited means and therefore did not need an increase in maintenance. The circuit court also expressed its opinion that Ms. Kenyon needed to start trying to generate money and stated that it had never intended for Mr. Kenyon to be her primary source of income for the rest of her life.

¶ 7. Thus, on August 11, 2002, the circuit court entered an order denying Ms. Kenyon's motion to increase maintenance. The court of appeals affirmed, concluding that the circuit court did not erroneously exercise its discretion. Kenyon, No. 02-3041, unpublished slip op. at 3.

¶ 8. On review before this court, Ms. Kenyon, relying on Miner v. Miner, 10 Wis. 2d 438, 441, 103 N.W.2d 4 (1960), contends that the circuit court was required, as a matter of law, to reinstate the amount of maintenance established in the original divorce decree. She argues that when parties' financial circumstances are essentially the same as those at the time of the original divorce decree, the original maintenance order controls by virtue of issue preclusion or claim preclusion. Thus, Ms. Kenyon asserts that the original judgment of divorce is the baseline from which all changed circumstances must be evaluated and that because the parties' financial circumstances now are essentially the same as they were at the time of divorce, she is automatically entitled to the level of maintenance established by the divorce decree. Further, Ms. Kenyon argues that the circuit court erroneously exercised its discretion because its order forces her to survive at a subsistence level while allowing Mr. Kenyon to preserve the marital standard of living, contrary to LaRocque v. LaRocque, 139 Wis. 2d 23, 35, 406 N.W.2d 736 (1987). Ms. Kenyon states that a maintenance modification decision should not be based on whether the payee is able to live parsimoniously on a modest level of income.

¶ 9. In contrast, Mr. Kenyon argues that the circuit court was not obligated, as a matter of law, to restore maintenance to the level established in the divorce decree because the standard for reviewing post-judgment maintenance is not the same as the standard used to derive the initial award of maintenance. According to Mr. Kenyon, under Johnson v. Johnson, 217 Wis. 2d 124, 127-28, 576 N.W.2d 585 (Ct. App. 1998), the LaRocque "fairness" standard does not apply to modification decisions. Further, Mr. Kenyon argues that although there was a change in circumstances in that Ms. Kenyon was no longer able to work, this change did not warrant an increase in maintenance because it did not affect her income level, due to the fact that she was able to decrease her expenses. Mr. Kenyon contends that this court should not reverse the circuit court's decision because the result in this case complied with the applicable law and is one at which a reasonable court could arrive.

II. STANDARD OF REVIEW

¶ 10. A circuit court decision to modify maintenance is reviewed under the erroneous exercise of discretion standard. Rohde-Giovanni, 269 Wis. 2d 598, ¶ 17. "A circuit court engages in an erroneous exercise of discretion when it fails to consider relevant factors, bases its award on factual errors, makes an error of law, or grants an excessive or inadequate award." Id., ¶ 18. However, when reviewing a circuit court's exercise of discretion, we review issues of law de novo. Id., ¶ 19.

¶ 11. Whether claim preclusion applies to a particular factual scenario is a question of law subject to de novo review by this court. N. States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995). In addition, the threshold inquiry in determining the applicability of issue preclusion is whether there is an identity of issues in the two actions. State v. Miller, 2004 WI App 117, ¶ 20, 274 Wis. 2d 471, 683 N.W.2d 485. This presents a question of law because it requires the application of a legal standard to undisputed facts. Id. (citing Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 224, 594 N.W.2d 370 (1999)).

III. ANALYSIS

¶ 12. Pursuant to Wis. Stat. § 767.26 (2001-02), a circuit court may, as part of any judgment of divorce, order either party to pay maintenance for a limited or indefinite time after considering the applicable statutory factors. Following a judgment of divorce, a circuit court may "revise and alter such judgment or order respecting the amount of such maintenance ...Wis. Stat. § 767.32(l)(a). However, ”[i]n order to modify a maintenance award, the party seeking modification must demonstrate that there has been a substantial change in circumstances warranting the proposed modification." Rohde-Giovanni, 269 Wis. 2d 598, ¶ 30. Yet, "[a]s a general rule, maintenance is always subject to modification upon a showing of the requisite change in circumstances." Nichols v. Nichols, 162 Wis. 2d 96, 103, 469 N.W.2d 619 (1991).

¶ 13. The "change in circumstances regarding the need for maintenance payments must relate to a change in the financial circumstances of the parties." Van Gorder v. Van Gorder, 110 Wis. 2d 188, 195, 327 N.W.2d 674 (1983). When considering a request for maintenance modification under § 767.32(l)(a), the circuit court must reconsider the factors used to arrive at the initial maintenance award under § 767.26. Poindexter v. Poindexter, 142 Wis. 2d 517, 531, 419 N.W.2d 223 (1988). See also Vander Perren v. Vander Perren, 105 Wis. 2d 219, 230, 313 N.W.2d 813 (1982) (finding an order terminating maintenance was arbitrary because the circuit court did not consider the factors listed in § 767.26).

¶ 14. Ms. Kenyon argues the circuit court was required to compare the parties' financial circumstances at the time of the modification hearing to those in existence at the time of the divorce and was obligated, under either the doctrine of issue preclusion or claim preclusion, to provide an award of maintenance equal to that established in the original divorce judgment. According to Ms. Kenyon, such a result is required because the parties' financial circumstances are now the same as they were at the time of the original divorce proceeding and the divorce judgment controls the amount of maintenance under these circumstances. We reject this argument for several reasons.

¶ 15. First, we decline to accept the premise that the appropriate point for factual comparison regarding the parties' financial circumstances at the time of a second maintenance modification hearing is the original divorce proceeding. In Rohde-Giovanni, 269 Wis. 2d 598, ¶¶ 33-34, we recognized that during a modification proceeding following a judgment of divorce, the circuit court must compare the facts as they existed at the time of the divorce with the current facts in light of the substantial change in circumstances. However, the present case is distinguishable from Rohde-Giovanni in that here the circuit court had, prior to the current motion for maintenance modification, previously entered an order modifying the maintenance award established in the divorce judgment.

¶ 16. When the circuit court has previously entered an order modifying maintenance, it would be inappropriate to use the facts surrounding the original divorce judgment as a baseline for an evaluation of any subsequent substantial change in the parties' circumstances because the circuit court has already found the parties' original financial circumstances to be substantially changed in the first modification proceeding. The original divorce judgment, having been "revised" or "altered" by virtue of the first modification order, Wis. Stat. § 767.32(l)(a), is not even in effect at the time of the second modification hearing. Pursuant to Wis. Stat. § 767.32(2w), "[a] revision of a judgment or order with respect to ... maintenance payments has the effect of modifying the original judgment or order with respect to such payments to the extent of the revision from the date on which the order revising such payments is effective." As such, once a maintenance award is modified, the revision is incorporated into the judgment of divorce, replaces the original maintenance award from the date of revision, and has the full force and effect as the original maintenance award.

¶ 17. Thus, at a second modification hearing, the operative maintenance award from which relief is sought is embodied in the circuit court's latest modification order, which order was necessarily based on a finding of a substantial change in circumstances from those existent at the time of the original divorce judgment. See Rohde-Giovanni, 269 Wis. 2d 598, ¶ 30. It therefore follows that when a party asserts a substantial change in financial circumstances in a second modification proceeding, the "change" that is asserted is a change from those circumstances that necessitated the first modification order. Automatically reverting back to the facts at the time of the original divorce as the starting point for comparison in such circumstances would be entirely illogical and contrary to § 767.32(2w) because the original maintenance award is no longer part of the judgment at the time of the second proceeding.

¶ 18. In addition, ignoring the facts that were found at the first modification hearing would be contrary to Wis. Stat. § 767.26(10), which requires a court, when setting a maintenance award, to consider any other factors that are "relevant" in each case. This court has previously ruled that when setting a maintenance award, the circuit court should examine "all of the circumstances" surrounding the recipient's financial status. Van Gorder, 110 Wis. 2d at 198. A previous modification order and the parties' circumstances surrounding such order are certainly relevant factors at a subsequent modification hearing.

¶ 19. In Harris v. Harris, 141 Wis. 2d 569, 576-77, 415 N.W.2d 586 (Ct. App. 1987), the court of appeals came to a contrary conclusion, determining, after brief discussion, that the circuit court should compare the parties' financial circumstances at the time of a second modification hearing with those existing at the time of the original divorce. The Harris court relied on a passage from Van Gorder, discussing the purpose of maintenance, which supposedly "suggested" such a rule. Harris, 141 Wis. 2d at 576-77.

¶ 20. However, the sole issue in Van Gorder was "whether continuous cohabitation of a divorced person with another person is sufficient ground alone for the termination of maintenance payments... ." Van Gorder, 110 Wis. 2d at 190. There is nothing in Van Gorder that directly or indirectly "suggests" an answer to the question presented here and in Harris. Additionally, while the court of appeals in Harris did briefly mention § 767.32(1)(a), it merely commented that the statute was "broad." Harris, 141 Wis. 2d at 576. The Harris court never considered that § 767.32(1)(a) allows a circuit court to "revise" or "alter" a judgment; nor did it consider that under § 767.32(2w), a revised maintenance award modifies the original divorce judgment with respect to such payments. As such, we are not persuaded by the court of appeals' decision in Harris on this point.

¶ 21. Therefore, we conclude that during a second maintenance modification proceeding, the appropriate comparison regarding any change in the parties' financial circumstances is to the set of facts that existed at the time of the most recent maintenance order, whether such order is contained in the original divorce judgment or was entered as part of a subsequent maintenance modification proceeding. In addition, we reject the argument that once the circuit court has found a substantial change in the parties' financial circumstances, either issue preclusion or claim preclusion may require the circuit court to reinstate the amount of maintenance established in the original divorce decree.

¶ 22. Issue preclusion, formerly referred to as collateral estoppel, "refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action." N. States Power Co., 189 Wis. 2d at 550. As noted supra, the threshold inquiry in determining the applicability of issue preclusion is whether there is an identity of issues in the two actions. Miller, 274 Wis. 2d 471, ¶ 20. Under the doctrine of claim preclusion, formerly known as res judicata, a final judgment in an action is conclusive between the parties or their privies in all subsequent actions or proceedings in relation to all matters that were or could have been litigated in the former proceeding. N. States Power Co., 189 Wis. 2d at 550.

¶ 23. We conclude that neither doctrine is applicable to a maintenance modification proceeding after a circuit court has found the parties' financial circumstances to be substantially changed, especially when the judgment of divorce has been revised by a previous order modifying maintenance payments. Simply stated, once a party has demonstrated the requisite substantial change in circumstances since the time of the operative maintenance award, a maintenance modification proceeding does not present the same issues or claims that were originally litigated during the divorce proceeding. As this court has previously stated,

"The [circuit] court's power to modify the provisions of the judgment of divorce is not the power to grant a new trial or to re-try the issues determined by the original hearing, but only to adapt the decree to some distinct and definite change in the financial circumstances of the parties ...."

Van Gorder, 110 Wis. 2d at 195 (quoting Thies v. MacDonald, 51 Wis. 2d 296, 302, 187 N.W.2d 186 (1971)).

¶ 24. Ms. Kenyon is correct that we did state in Miner, 10 Wis. 2d at 441, that "[w]hen a court in a divorce action awards alimony, it is based upon the circumstances of the parties at the time of the judgment and is normally considered res adjudicata as to that situation." (Emphasis added.) However, she misconstrues this statement when she argues that the initial amount of a maintenance award may be binding at a subsequent modification proceeding. The quoted material from Miner simply explained that a judgment of divorce should not be modified unless "there is a substantial or material change in the circumstances of the parties which would justify such modification." Id. We reiterated this point last term in Rohde-Giovanni, when we stated: "More specifically, the circuit court deciding the modification motion may not modify a maintenance award based solely on the fact that, had the parties been before it for their divorce action, that court would have decided the matter differently." Rohde-Giovanni, 269 Wis. 2d 598, ¶ 34.

¶ 25. Thus, properly understood, Miner merely reiterates the long-standing rule that the circuit court must find a substantial change in the parties' financial circumstances before it can modify a maintenance award. In other words, Miner, 10 Wis. 2d at 441, simply provides that a judgment of divorce, including the maintenance award contained therein, is a final judgment that precludes relitigation of the issues and claims presented at the divorce proceeding. However, in Van Gorder, 110 Wis. 2d at 195, we recognized that once a party has shown the requisite change in circumstances, a circuit court's subsequent decision to modify the maintenance award does not represent a relitigation of the issues or claims presented during the original divorce proceeding. Once a circuit court has determined that there exists a substantial change in the parties' financial circumstances, the decision to modify the maintenance award is committed to the sound discretion of the circuit court. Rohde-Giovanni, 269 Wis. 2d 598, ¶ 17. Thus, Miner does not address the appropriate level at which maintenance should be set once the circuit court has found a substantial change in the parties' financial circumstances.

¶ 26. In addition, the amount of maintenance established in the original divorce decree cannot be binding following a subsequent order modifying maintenance because, as discussed supra, under § 767.32(2w), an order modifying maintenance revises the judgment of divorce with respect to maintenance payments. Pursuant to § 767.32(2w), an order modifying maintenance revises the original judgment of divorce to the extent of such modification on the date the modification becomes effective. Thus, at a second modification hearing, the amount of maintenance established in the original divorce decree, having been revised to the extent of the first modification order, is no longer part of the judgment of divorce and can have no preclusive effect.

¶ 27. Therefore, we conclude that for purposes of evaluating a substantial change in the parties' financial circumstances in a maintenance modification proceeding, the appropriate comparison is to the set of facts that existed at the time of the most recent maintenance order, whether that is the original divorce judgment or a previous modification order. At the hearing, the circuit court should adhere to the findings of fact made in the previous proceeding and may not retry the issues decided in that proceeding. See Rhode-Giovanni, 269 Wis. 2d 598, ¶¶ 33-34. It should compare the facts regarding the parties' current financial status with those surrounding the previous order in determining whether the movant has established the requisite substantial change in circumstances, such that modification of the maintenance award is warranted. See id., ¶ 34. In so holding, we withdraw any language from Harris, 141 Wis. 2d at 576-77, suggesting the contrary. Further, once a party has demonstrated the requisite substantial change in financial circumstances, the circuit court is not bound by either issue preclusion or claim preclusion to reinstate the amount of maintenance established in the original judgment of divorce, especially when the judgment of divorce has been previously revised by an order modifying maintenance payments.

¶ 28. We now address what standards the circuit court must apply in determining the level of maintenance once it has found a substantial change in the parties' financial circumstances. We have previously stated:

The payment of maintenance is not to be viewed as a permanent annuity. Rather, such payment is designed to maintain a party at an appropriate standard of living, under the facts and circumstances of the individual case, until the party exercising reasonable diligence has reached a level of income where maintenance is no longer necessary.

Vander Perren, 105 Wis. 2d at 230. The "appropriate standard" is "a standard of living reasonably comparable to that enjoyed during the marriage." Id. at 228 (emphasis omitted). "In other words, the goal of maintenance is to provide support at pre-divorce standards, and this goal may require that the recipient spouse be awarded maintenance above bare subsistence needs." LaRocque, 139 Wis. 2d at 35.

¶ 29. In Rohde-Giovanni, we noted the dual objectives of maintenance are: 1) support of the recipient spouse "in accordance with the needs and earning capacities of both the recipient spouse and the payor spouse" and 2) "a fair and equitable financial arrangement between the parties." Rohde-Giovanni, 269 Wis. 2d 598, ¶ 29. We clarified that the fairness objective applies both at the original divorce proceeding and at any subsequent modification hearings. We stated:

[A] court reviewing a previous award of maintenance must not solely limit its inquiry to the support objective. The objective of fairness also must be considered, even in postdivorce proceedings. Fairness must be considered with respect to the situations of both parties in determining whether maintenance should be continued indefinitely, continued for a limited amount of time, reduced, or terminated.

Id., ¶ 31.

¶ 30. In so ruling, we withdrew language from Johnson, 217 Wis. 2d at 128, that held to the contrary. Rohde-Giovanni, 269 Wis. 2d 598, ¶ 31. We emphasized that "the correct test regarding modification of maintenance should consider fairness to both of the parties under all of the circumstances, not whether it is unjust or inequitable to alter the original maintenance award." Id., ¶ 32.

¶ 31. In the present case, the circuit court found a substantial change in the parties' financial circumstances since the previous hearing because Ms. Kenyon was no longer employed as a result of her disability. The circuit court noted that Ms. Kenyon's disability had become worse since the time of the original divorce decree. However, the circuit court stated that while the initial maintenance decision was proper, "Mr. Kenyon is probably going to be on the hook forever. And I don't think anybody really wanted that to happen."

¶ 32. The circuit court noted that there were "some very, very compelling considerations on each side." The court emphasized that it was aware that as a result other disability, Ms. Kenyon was living a hard life and was forced to make tough decisions regarding her own care. The court noted that Ms. Kenyon faced the hard choice of taking medication to bring her pain to bearable levels and maintaining some level of activity. However, the circuit court stated, "at some point, looking to Mr. Kenyon as the answer to all of this really isn't right." The court stated that it was time for Ms. Kenyon to start thinking about generating some income.

¶ 33. Regarding the appropriate level of maintenance, the circuit court reasoned:

I'm not seeing a great need for more maintenance. Now, would I want to live on the amount of money that Ms. Kenyon is living on? No. Is she in any way asking that Mr. Kenyon support some kind of high life? No.
I think she's amazingly penurious and I'm very impressed by her ability to function on such minimum amounts of money. But under the order that was in place and even given the admitted fact that Mr. Kenyon was not paying maintenance for quite a period of time, no debts are listed. There's no showing that Ms. Kenyon needs more money to maintain herself at this relatively modest level of living.

¶ 34. The circuit court ultimately concluded that an increase in maintenance was not warranted:

Her health situation appears to have deteriorated but she is getting benefits. I don't see that Mr. Kenyon is making all that much more money then he was making at the time. And again, I think there has to be some pressure placed, which is difficult to do for a person in Ms. Kenyon's condition, but I think just about every time I have come back to look at the case, Ms. Kenyon's focus has been restricted to her health situation and not towards any efforts she could make toward improving her financial situation.
And it never was my intention to put Mr. Kenyon on the hook for being a primary source of income or life support for Ms. Kenyon. So while I find a change in circumstances, I am having trouble finding the need, especially in light of Ms. Kenyon's own expert telling me that he believes it is possible that some part-time, even homework, work at home, could occur.
. . . I'm just not seeing the need to increase the maintenance beyond its current amount and so I do deny the motion to increase maintenance and continue the maintenance at the level it currently is.

¶ 35. When rendering its decision, the circuit court did not have the benefit of our recent decision in Rohde-Giovanni. Under the previous standard for maintenance modification, a circuit court could modify a maintenance award if, after finding a substantial change in the parties' financial circumstances, it found that "it would be unjust or inequitable to strictly hold either party to the judgment." Miner, 10 Wis. 2d at 441-42. Furthermore, under Johnson, 217 Wis. 2d at 128, a circuit court was precluded from considering the fairness objective when deciding whether to modify a maintenance award. Here, it is apparent that the circuit court was proceeding under this older standard. The circuit court focused almost exclusively on Ms. Kenyon's need for additional maintenance at her current standard of living and, in compliance with Miner and Johnson, whether it would be inequitable to force Mr. Kenyon to pay additional maintenance for an indefinite period. The circuit court did not consider the fairness objective in relation to both parties when determining whether to modify the maintenance award.

¶ 36. Mr. Kenyon attempts to recast the circuit court's decision in light of the standards established in Rohde-Giovanni. However, it is clear that the circuit court proceeded under an incorrect standard of law, and we simply do not know how the circuit court would have determined the matter had it applied the correct standard, as set forth in Rohde-Giovanni. Thus, because the circuit court applied an incorrect standard of law, we conclude that it erroneously exercised its discretion in denying Ms. Kenyon's motion to increase maintenance. On remand, the circuit court must reconsider the matter in light of our decision in Rohde-Giovanni.

¶ 37. We reiterate that while maintenance is not meant as a lifetime annuity, the goal of maintenance is to allow the parties to maintain a standard of living reasonably comparable to that enjoyed during the marriage. Vander Perren, 105 Wis. 2d at 228, 230. When setting the amount of maintenance or considering a motion to modify a maintenance award, the circuit court should consider the support objective "in accordance with the needs and earning capacities of both the recipient spouse and the payor spouse." Rohde-Giovanni, 269 Wis. 2d 598, ¶ 29. In addition, the court must consider "fairness to both of the parties under all of the circumstances, not whether it is unjust or inequitable to alter the original maintenance award." Id., ¶ 32.

IV CONCLUSION

¶ 38. We hold that for purposes of evaluating a substantial change in the parties' financial circumstances during a maintenance modification proceeding, the appropriate comparison is to the set of facts that existed at the time of the most recent maintenance order, whether that is the original divorce judgment or a previous modification order. At the hearing, the circuit court should adhere to the findings of fact made in the previous proceeding and may not retry the issues decided in that proceeding. It should compare the facts regarding the parties' current financial status with those surrounding the previous order in determining whether the movant has established the requisite substantial change in circumstances, such that modification of the maintenance award is warranted. Further, once a party has demonstrated the requisite substantial change in financial circumstances, the circuit court is not hound by either issue preclusion or claim preclusion to reinstate the amount of maintenance established in the original judgment of divorce, especially when the judgment of divorce has been previously revised by an order modifying maintenance payments.

¶ 39. In addition, we conclude that the circuit court applied the wrong legal standard when it denied Ms. Kenyon's motion because its decision focused chiefly on Ms. Kenyon's need for maintenance at her present standard of living and whether it would be inequitable to force Mr. Kenyon to pay additional maintenance for an indefinite period. In Rohde-Giovanni, 269 Wis. 2d 598, ¶ 31, we clarified that once a substantial change in the parties' financial circumstances is demonstrated, the circuit court must consider the dual maintenance objectives of support and fairness when modifying a maintenance award. Here, in conformity with the controlling precedent at the time, the circuit court did not consider the fairness objective in relation to both parties.

¶ 40. Therefore, we reverse the decision of the court of appeals and remand for a new hearing under the appropriate legal standard. On remand, the circuit court should, pursuant to Rohde-Giovanni, consider the support of the recipient spouse "in accordance with the needs and earning capacities of both the recipient spouse and the payor spouse[,]" and should consider "[f] airness ... with respect to the situations of both parties" in deciding whether the maintenance award should be modified. Id., ¶¶ 29, 31.

By the Court. — The decision of the court of appeals is reversed and remanded.

¶ 41. SHIRLEY S. ABRAHAMSON, C.J., did not participate.

       Shortly after briefing was completed, this court decided Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶ 31, 269 Wis. 2d 598, 676 N.W.2d 452, which abrogated the portion of Johnson v. Johnson, 217 Wis. 2d 124, 576 N.W.2d 585 (Ct. App. 1998), upon which Mr. Kenyon relied in his brief.

       All subsequent references to the Wisconsin Statutes are to the 2000-01 version unless otherwise indicated.

       The factors a circuit court must consider in setting a maintenance award are:
      (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.
      Wis. Stat. § 767.26.

       Neither party discussed or cited Harris v. Harris, 141 Wis. 2d 569, 415 N.W.2d 586 (Ct. App. 1987), as it relates to this issue.


author: PER CURIAM. SHIRLEY S. ABRAHAMSON, C.J.

text:
    In the Matter of a John Doe Proceeding Commenced by Affidavit Dated July 25, 2001: Custodian of Records for the Legislative Technology Services Bureau, Petitioner, v. State of Wisconsin and the Honorable Sarah B. O'Brien, presiding, Respondents.
    Supreme Court

      No. 02-3063-W.

      Decided December 15, 2004.

    2004 WI 149
    (Also reported in 689 N.W.2d 908.)
   PER CURIAM.

¶ 1. The State has moved for reconsideration of portions of our opinion in the above-captioned matter. Attention has been called to our application and construction of Wis. Stat. § 968.135 (2001-02) during the John Doe proceeding and to our application of Fourth Amendment principles to the subpoena that was before us. In response to the motion, as clarification of our discussion of § 968.135, we withdraw paragraphs 53-55 from the opinion issued June 9, 2004 and in their place substitute paragraphs 53-55 below.

¶ 53 Because a John Doe proceeding is a criminal investigative tool, Unnamed Person No. 1, 260 Wis. 2d 653, ¶ 22, we turn to Wis. Stat. § 968.135, entitled "Subpoena for documents." Section 968.135 requires a showing of probable cause to believe that the documents sought by the subpoena duces tecum will produce evidence relevant to potentially criminal activity. While this probable cause determination differs from the purpose for which a John Doe proceeding is commenced, that is, to decide whether there is probable cause to believe that a crime actually has been committed and who committed it, see Reimann, 214 Wis. 2d at 621, 624, the question remains how the probable cause required by § 968.135 may be shown in a John Doe proceeding.
¶ 54 In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the United States Supreme Court explained that probable cause, as literally required in the case of a warrant, is shown in the context of a subpoena duces tecum if: (1) the investigation is for a lawfully authorized purpose and (2) the documents requested are relevant to the inquiry. See Walling, 327 U.S. at 209; see also Washington, 83 Wis. 2d at 841. In the case of a John Doe proceeding, the proceeding is lawfully authorized if the judge determines that the complainant makes a threshold showing sufficient to establish that the complainant has an objectively reasonable belief that a crime has been committed. Reimann, 214 Wis. 2d at 623. With this judicial determination, any document requested, in order to be relevant to the inquiry, must focus on the factual assertions made to the judge at the commencement of the proceeding. See Walling, 327 U.S. at 209; Washington, 83 Wis. 2d at 841. The necessary link between the documents requested and the suspected criminal activity under investigation is thus shown, affording probable cause to believe that the documents sought will produce evidence relevant to potentially criminal activity, as required by Wis. Stat. § 968.135.
¶ 55 Accordingly, we conclude that any subsequent subpoena duces tecum issued in this John Doe proceeding satisfies the requirements of Wis. Stat. §§ 968.26 and 968.135 and the constitutional concerns regarding an overly broad subpoena explained above, when the affidavit submitted to request the subpoena for documents: (1) limits the requested data to the subject matter described in the John Doe petition, Reimann, 214 Wis. 2d at 622; (2) shows that the data requested is relevant to the subject matter of the John Doe proceeding, Washington, 83 Wis. 2d at 843; (3) specifies the data requested with reasonable particularity, Walling, 327 U.S. at 209; Hale, 201 U.S. at 77; and (4) covers a reasonable period of time, Washington, 83 Wis. 2d at 844. Additionally, all of the communications to the John Doe judge must be made a part of the record. See id. at 824-25.

¶ 2. The motion for reconsideration is denied without costs.

¶ 3. LOUIS B. BUTLER, JR., J., did not participate.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 4. (dissenting). The State, supported by an amicus brief filed by the Wisconsin District Attorneys Association, does not ask the court to change its ultimate conclusions of law or its mandate. Rather, the State and amicus argue that in the court's discussion of subpoenas duces tecum, the reference to the Fourth Amendment and the reference to the probable cause language of Wis. Stat. § 968.135 should be removed. In the alternative, the State and the District Attorneys Association ask for at least an opportunity to brief the applicability of the Fourth Amendment and § 968.135 to John Doe subpoenas.

¶ 5. Neither the Fourth Amendment nor Wis. Stat. § 968.135 was argued or briefed by the parties. Nevertheless the court's decision gratuitously opined on these issues. Maybe something was in the air, or water, but on several occasions in the spring of 2004 this court played the roles of both counsel and court and ignored the usual and uncontroversial appellate practice of requesting supplemental briefs.

¶ 6. The court should grant the State's reasonable requests: Delete the unnecessary references to the Fourth Amendment and Wis. Stat. § 968.135 or order briefs on these issues. I do not join the majority's rewriting of the opinion. The majority merely continues on an erroneous path, compounding the harm that results from an unwise practice of constructing opinions without giving the parties the opportunity to brief the issues. This erroneous appellate practice results, as one might expect, in erroneous and confusing substantive law in the present case.

¶ 7. Fourth Amendment. The State agrees with the court's decision that a John Doe subpoena duces tecum cannot he unreasonably overbroad. The State argues that relying on Fourth Amendment jurisprudence for this proposition, rather than relying on State v. Washington, is unnecessary and raises significant questions about the petitioner's standing to assert someone else's Fourth Amendment rights. I agree. The overbreadth issue should be decided on non-constitutional grounds. If the court is to rely on the Fourth Amendment, the petitioner's standing becomes an open, unanswered question.

¶ 8. Wisconsin Stat. § 968.135. The State persuasively argues on the basis of the plain language of Wis. Stat. § 968.135 and the legislative history that the probable cause standard in § 968.135 does not apply to a John Doe subpoena duces tecum. Equally important, applying a probable cause standard to a John Doe subpoena just doesn't make sense. A probable cause requirement frustrates the core purpose of a John Doe proceeding, namely to determine whether probable cause exists to believe a crime has been committed.

¶ 9. The rewrite stubbornly continues to rely on Wis. Stat. § 968.135 and now defines "probable cause" as used in § 968.135 without analyzing the State's argument and without the benefit of briefs. As I have previously written, "probable cause" has many meanings, depending on the particular proceeding. The rewrite, however, gives the words "probable cause" a peculiar, unexpected meaning, significantly different from its meaning in other proceedings. Moreover, the result of the rewrite is that under the same statute, oné definition of "probable cause" arises for purposes of John Doe proceedings and apparently another definition of "probable cause" arises for other proceedings. Such a statutory interpretation is contrary to commonly understood rules of statutory interpretation.

¶ 10. As a result of its stubborn and erroneous reliance on Wis. Stat. § 968.135, the rewrite insists on a probable cause standard, but winds up defining the probable cause standard as relevance. It would have been simpler, as the State requested, to delete the reference to probable cause and § 968.135 and adhere to the relevancy test for subpoenas duces tecum as clearly adopted in State v. Washington. The Washington court stated quite simply: "The John Doe judge, and the court ordering production of the documents, have to determine whether the documents sought are relevant to the topic of inquiry. The test is whether the information sought is in some manner connected with the suspected criminal activity under investigation." Approaching the issue relying on the precedent of Washington allows the court to avoid a contortionist position of bending § 968.135 and itself out of all recognizable shape.

¶ 11. For the reasons set forth, I do not join the rewrite.

¶ 12. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

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

       Wisconsin Stat. § 968.135 provides in relevant part:
      Upon the request of the . .. district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2).

        See Maurin v. Hall, 2004 WI 129, ¶¶ 4-8, 276 Wis. 2d 18, 688 N.W.2d 655 (Abrahamson, C.J., dissenting on reconsideration); Beecher v. LIRC, 2004 WI 131, ¶¶ 3-8, 276 Wis. 2d 21, 688 N.W.2d 654 (Abrahamson, C.J., dissenting on reconsideration).

        State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (1978).

        See County of Jefferson v. Renz, 231 Wis. 2d 293, 317-27, 603 N.W.2d 541 (1999) (Abrahamson, C.J., concurring).

        See, e.g., State v. Charles, 180 Wis. 2d 155, 159-60, 509 N.W.2d 85 (Ct. App. 1993) ("[T]he rule of statutory construction! 1 [is] that words or phrases appearing in the same statute shall be given the same meaning." (citation omitted)).

        Washington, 83 Wis. 2d at 843.