Analysis: Brandau v. Brandau

Facts: Wife stayed home raising children for most of the marriage, and has significant health issues. Husband asks the trial judge to impute income to her, but the judge declines. Husband appeals.

Issue: If a party can work, is it appropriate to impute income even if they did not work for most of the marriage?

Ruling: No. Nothing requires an imputation of income with a stay-at-home spouse..

Comment: Just as in custody cases, the history leading up to the day in court is a factor in the judicial outcome. Here, the Court of Appeals declares that nothing requires someone who did not work outside the home during the marriage to go out and get a job after the marriage is over. In other words, a judge cannot “infer” that a party has income when they continue the same choice they made in the past – and stay home.

This case involved a “discretionary” decision by the trial judge (not to impute income to the wife). I like to think of it in terms of airplane flight paths. The “aircraft” is the conduct of the trial and the decision reached. The edges of the “flight path” are defined by statute and case law. The trial transcript is like a flight data recorder being presented to the Court of Appeals.

Now here is the rule: If a matter in Circuit Court stays within its “flight path”, then an appeals court is not going to make any changes. In other words, if your appellate argument is that your flight should have been a little higher or lower, your appeal will not succeed.

In my professional opinion, Brandau and a significant number of other cases should not have been appealed. Maybe it is the quantity of insignificant appeals -- like airplanes within their flight path -- that results in our appellate court labeling them “unpublished”.