Patricia A. Johnson v. Michael R. Masters

2013 WI 43SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1240
COMPLETE TITLE:
In re the marriage of:
Patricia A. Johnson, p/k/a Patricia Masters,
Petitioner-Appellant,
v.
Michael R. Masters,
Respondent-Respondent.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: May 17, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 7, 2012
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Kathryn W. Foster
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
BRADLEY, J., ABRAHAMSON, C.J., concur. (Opinion
filed.) ZIEGLER, ROGGENSACK, GABLEMAN concur.
(Opinion filed.)
DISSENTED: PROSSER, J., dissents. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant, there was a brief (in court
of appeals) by Joseph F. Owens and Law Offices of Joseph F.
Owens, New Berlin, and Debra K. Riedel and Law Offices of Debra
K. Riedel, New Berlin, and a reply brief to the Supreme Court by
Joseph Owens and Debra K. Riedel. Oral argument by Joseph F.
Owens.
For the respondent-respondent, there was a brief by Erik I.
Colque and Colque Law, LLC, Waukesha, and oral argument by Erik
I. Colque.
2013 WI 43NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1240
(L.C. No. 1988FA73)
STATE OF WISCONSIN : IN SUPREME COURT
Patricia A. Johnson,
Petitioner–Appellant
FILED
v. MAY 17, 2013
Michael R. Masters, Diane M. Fremgen
Clerk of Supreme Court
Respondent–Respondent
APPEAL from an order of the Circuit Court for Waukesha
County, Kathryn W. Foster, Judge. Reversed and cause remanded.
¶1 N. PATRICK CROOKS, J. This case is before the court
on certification from the court of appeals pursuant to Wis.
Stat. § 809.61 (2009-10). It concerns a dispute over the
enforceability of a pension award in a divorce judgment. The
specific question we address is whether the circuit court erred
when it denied Patricia Johnson's motion for the entry of a
qualified domestic relations order (QDRO) on the grounds that
the motion was barred by Wis. Stat. § 893.40, a statute of
No. 2011AP1240
repose,1 which states that "action upon a judgment or
decree . . . shall be commenced within 20 years after the
judgment or decree is entered or be barred." Johnson had filed
a motion on September 13, 2010, seeking to compel Michael
Masters to provide pension information so that the necessary
QDRO could be prepared and his Wisconsin Retirement System (WRS)
pension could be divided in accordance with the judgment of
divorce. The judgment in the divorce had been filed more than 20
years before, on July 20, 1989. With regard to the pension
benefits, the judgment had awarded Johnson half of the value
accrued during the span of the marriage and stated that a QDRO
"shall be submitted to secure these rights."
¶2 This court has upheld the application of Wis. Stat.
§ 893.40 in a family law context.2 We see no evidence for the
argument that the legislature intended for family law judgments
to be categorically exempted from its application though we
recognize the realities of family court judgments and see some
1
We address the question as presented in the certification
by the court of appeals and as briefed by the parties. We do
not attempt to answer questions not raised by the certification.
2
That case involved an action by the State to enforce
payment of child support that had been ordered in a divorce
judgment. We held that Wis. Stat. § 893.40 governed the case.
We said, "[U]nder the statute, an action brought to enforce a
child support judgment must be commenced within 20 years of the
date when the judgment is entered. The period of limitation
begins to run upon entry of judgment, irrespective of whether
any payment under that judgment has been missed." Hamilton v.
Hamilton, 2003 WI 50, ¶4, 261 Wis. 2d 458, 661 N.W.2d 832.
2
No. 2011AP1240
evidence that this court has made certain accommodations for the
ongoing obligations that are common in that area. There is a
twist in this case, however, that we consider dispositive of the
question, and that is the fact that even though the 1989
judgment required the filing of a QDRO, the WRS was not
authorized under statute to accept a QDRO related to this
divorce until May 2, 1998.
¶3 In order to interpret the relevant statutes to avoid
"absurd or unreasonable results,"3 and in order to "constru[e]
each in a manner that serves its purpose"4 as we are bound to do,
we hold that Johnson's motion is not barred by the operation of
Wis. Stat. § 893.40. The judgment contained a provision that
required the filing of a QDRO with the WRS, and it was not until
1998 that legislation authorized WRS to accept such orders for
marriages such as this one that were terminated in 1989. It
would be absurd and unreasonable to construe the statute of
repose in such a way that it would begin to run at the time of a
judgment with regard to a provision that assigned Masters'
interest contrary to existing law, which was and continued for
the next nine years to be that WRS pension interests were not
assignable.5 Construing the statute as starting to run as to the
3
State ex rel. Kalal v. Circuit Court for Dane County, 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
4
State v. Szulczewski, 216 Wis. 2d 495, 503, 574 N.W.2d 660(1998).
5
Wis. Stat. § 40.08(1)(1987-88), in effect at the time of
the 1989 divorce judgment, stated:
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No. 2011AP1240
pension provision at the point when the provision was no longer
contrary to law is a way to retain the statute's limiting
function "in a manner that serves its purpose." Under the
circumstances present in this case6 where a statute precludes a
provision in a judgment, the statute of repose cannot begin to
run as to that provision until the legislature changes the law
such that the provision can be carried out. In this case, that
change went into effect on May 2, 1998, and the statute of
repose will bar actions on such a provision only after May 1,
2018. We therefore reverse the order of the circuit court and
remand for further proceedings consistent with this opinion.
BACKGROUND
¶4 The circuit court's order that we review denied
Johnson's motion for the entry of a QDRO and granted Masters'
motion to dismiss based on Wis. Stat. § 893.40. The QDRO that
Johnson sought from the Waukesha County Circuit Court, the
Honorable Kathryn W. Foster presiding, is an order that would
authorize the administrator of Masters' pension plan, the
Wisconsin Retirement System, to assign Johnson a portion of his
The benefits payable to, or other rights and interests
of, any member, beneficiary or distributee of any
estate under any of the benefit plans administered by
the department . . . shall not be assignable, either
in law or equity, or be subject to execution, levy,
attachment, garnishment or other legal process except
as specifically provided in this section.
6
We address the question as presented in the certification
by the court of appeals and as briefed by the parties. We do
not attempt to answer questions not raised by the certification.
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No. 2011AP1240
pension benefits, in accordance with the divorce judgment. It
is important to provide a brief explanation of what a QDRO is
and why there was no authority for the WRS to accept one when
Johnson and Masters divorced in 1989.
¶5 QDROs are defined by the Employee Retirement Income
Security Act (ERISA), the federal law that governs private
sector pension plans. "The primary objective of ERISA is to
protect employees from the mismanagement of funds set aside to
finance employee benefits and pensions by establishing a
comprehensive regulatory scheme that required employers to
fulfill certain reporting, disclosure and fiduciary duties."
Aurora Med. Group v. DWD, 2000 WI 70, ¶16, 236 Wis. 2d 1, 612
N.W.2d 646 (citations omitted). Federal law generally prohibits
assigning pension benefits; however, it provides a mechanism in
QDROs to assign pension benefits under certain circumstances:
[T]he anti-alienation provision in [the Employee Retirement
Income Security Act] precludes assignment of the pension
benefits [without] a valid QDRO. See 29 U.S.C. § 1056(d)(1)
("[e]ach pension plan shall provide that benefits provided
under the plan may not be assigned or alienated"). ERISA's
prohibition on the assignment or alienation of pension
benefits has been strictly enforced. A QDRO is an express
exception to ERISA's anti-alienation provision. See ERISA
§ 1056(d)(3)(B)(i)(I). . . . 29 U.S.C. § 1056(d)(3)(B)(i)
defines a “qualified domestic relations order” as a
domestic relations order
(I) which creates or recognizes the existence of an
alternate payee's right to, or assigns to an
alternate payee the right to, receive all or a
portion of the benefits payable with respect to
a participant under a plan, and
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No. 2011AP1240
(II) with respect to which the requirements of
subparagraphs (C) and (D) are met....
In re Gendreau, 191 B.R. 798, 801-02 (B.A.P. 9th Cir. 1995)
aff'd, 122 F.3d 815 (9th Cir. 1997) (citations omitted). "A
qualified domestic relations order permits payment of benefits
of qualified private retirement plans to one other than the
employee spouse. Such a recipient is denominated an 'alternate
payee,' which includes a nonemployee spouse." Schinner v.
Schinner, 143 Wis. 2d 81, 86 n.1, 420 N.W.2d 381 (Ct. App. 1988)
(citations omitted).
¶6 ERISA does not apply to government retirement plans
such as the WRS, see 29 U.S.C.A. § 1003(b)(1), and the Wisconsin
statutes that governed those plans initially made no provision
for QDROs. In Lindsey v. Lindsey, the court of appeals
described an early unsuccessful attempt to pass legislation
authorizing the Wisconsin Retirement System to accept QDROs:
1985 Assembly Bill 689 was a proposal to create a procedure
whereby a participant's accumulated rights and benefits
under the Wisconsin Retirement System could be made the
subject of a "qualified domestic relations order." See
Analysis by the Legislative Reference Bureau to 1985
Assembly Bill 689. The fiscal note to this proposed
legislation observed that "[t]he statutes governing the
Wisconsin Retirement System (WRS) do not provide a
mechanism for dividing rights and benefits under the system
to comply with a court order." "The purpose of this bill is
to provide a mechanism for the division of WRS benefits
pursuant to a qualified domestic relations order issued by
a court in a manner similar to that established by Federal
law for private sector pension plans." Report of Joint
Survey Committee on Retirement Systems for 1985 Assembly
Bill 689 (emphasis added). This proposed legislation failed
to pass the Assembly.
6
No. 2011AP1240
Lindsey v. Lindsey, 140 Wis. 2d 684, 694 n.8, 412 N.W.2d 132(Ct. App. 1987). The state of the law in Wisconsin in 1989 was
that benefits, rights and interests of any WRS member "shall not
be assignable, either in law or equity, or be subject to
execution, levy, attachment, garnishment or other legal process
except as specifically provided in this section[,]" and no
provisions were included for QDROs. Wis. Stat. § 40.08(1)
(1987-88). That remained the law until the passage of 1989 Wis.
Act 218, which authorized WRS to accept QDROs beginning April
28, 1990, but did not apply retroactively to divorces occurring
prior to the new statute's effective date, which was April 28,
1990. It was not until May 2, 1998, that WRS was authorized by
1997 Wis. Act 125 to accept QDROs related to divorces that
became effective between January 1, 1982, and April 28, 1990.
In part, 1997 Wis. Act 125 stated,
40.08(1m)(k) of the statutes is created to read: . . . [A]
court may revise or modify a judgment or order specified
under subd. 1. for participants whose marriages were
terminated by a court on or after January 1, 1982, and
before April 28, 1990, but only with respect to providing
for payment in accordance with a qualified domestic
relations order of benefits under the Wisconsin retirement
system that are already divided under the judgment or
order.
1997 Wis. Act 125, § 5. That authorization closed a gap that
had been created by the earlier legislation authorizing WRS to
accept QDROs but failing to state clearly that it applied
retroactively to divorces that became final after January 1,
1982 and before April 28, 1990.
7
No. 2011AP1240
¶7 The final judgment in Johnson and Masters' divorce was
entered on July 20, 1989, so it fell into the category of
divorces that were covered by the change in the law that took
effect in 1998 with regard to QDROs. The judgment stated that
the Marital Agreement between the parties was appended to the
judgment and was "approved as reasonable" and was incorporated
into the judgment of the circuit court. The Marital Agreement
included the following provisions:
V. Property Division – Pension
The Petitioner shall be awarded [half] of the value of
the Respondent's Wisconsin Retirement System benefits
accrued from date of marriage thr[ough] the date of
divorce. A QDRO shall be submitted to secure these
rights.
. . .
X. Execution of documents
Now or in the future, upon demand, the parties agree
to execute and deliver any and all documents which may
be necessary to carry out the terms and conditions of
this marital agreement.
. . .
XII. Divesting of property rights
Except as otherwise provided for in this marital
agreement, each party shall be divested of and each
party waives, renounces and gives up pursuant to Wis.
Stats. § 861.07, all right, title and interest in and
to the property awarded to the other. All property and
money received and retained by the parties shall be
the separate property of the respective parties, free
and clear of any right, title, interest or claim of
the other party, and each party shall have the right
to deal with and dispose of his or her separate
property as fully and effectively as if the parties
had never been married.
8
No. 2011AP1240
XIII. Mutual releases
Neither party may, at any time hereafter, sue the
other, or his or her heirs, personal representatives
or assigns, for the purpose of enforcing any or all of
the rights relinquished and/or waived under this
marital agreement. Both parties also agree that in the
event any suit shall be commenced, this release, when
pleaded, shall be and constitute a complete defense to
any such claim or suit so instituted by either party.
. . .
XX. Survival of marital agreement after judgment
Both parties agree that certain paragraphs of this
marital agreement shall survive the subsequent
judgment of divorce and shall have independent legal
significance. This marital agreement is a l[e]gally
binding contract, entered into for good and valuable
consideration. In the future, either party may enforce
this specific marital agreement in this or any other
court of competent jurisdiction.
¶8 In April 2009, nearly 20 years after the divorce was
final, Masters retired from his job as a school janitor. It is
undisputed that Masters did not notify Johnson that he was
retiring. According to an undisputed affidavit in the record,
Johnson learned in March 2010 that Masters had retired. On
March 3, 2010, Johnson filed a form QDRO that was signed by the
circuit court on March 5, 2010, and vacated by stipulation of
the parties 24 days later when it was discovered that it
contained an error. Johnson then retained new counsel and took
steps to obtain a valuation of the pension and draft a QDRO to
obtain her portion of the pension.
¶9 When WRS notified Johnson that Masters' authorization
was required in order to disclose the pension value information,
she sought his authorization. On September 7, 2010, Johnson
9
No. 2011AP1240
received notification that Masters would not provide the
necessary authorization. Johnson then filed a motion on
September 12, 2010, for orders to require Masters to release his
pension information. At a hearing before a court commissioner,
Masters was ordered to sign the authorization. He then moved
for a hearing de novo in the circuit court.
¶10 In the circuit court, Masters moved to dismiss the
motion on the grounds that Johnson's motion was barred by Wis.
Stat. § 893.40 because it states that action must be commenced
within 20 years after "the judgment or decree is entered," and
it includes no exemptions for family law judgments. In the
alternative, he argued that the doctrine of laches barred
Johnson's claim because her delay in seeking the QDRO was
unreasonable and prejudiced him. Johnson argued that the
statute of repose could not operate as a bar to her motion in
light of Wis. Stat. § 767.01, in Ch. 767, Actions Affecting the
Family, which states that "circuit courts . . . have authority
to do all acts and things necessary and proper in those actions
and to carry their orders and judgments into execution as
prescribed in this chapter." Alternatively, Johnson argued that
the doctrines of unclean hands and equitable estoppel precluded
Masters' statute of repose defense.7 The circuit court held two
hearings on the matter, and the parties briefed the issues
extensively.
7
The parties' briefs to the circuit court contained other
arguments that are not recited here because they were not
pursued on appeal.
10
No. 2011AP1240
¶11 The circuit court granted Masters' motion to dismiss
based on Wis. Stat. § 893.40, and it denied his motion to
dismiss based on the doctrine of laches. It denied Johnson's
motion for the entry of a QDRO. In ruling from the bench, the
circuit court stated:
The, quote, cause of action, the ability to obtain a
QDRO, was not directly triggered by the actual
retirement of Mr. Masters. It was, in fact, a result
of a 1989 divorce decree and after the passage of the
Wisconsin Act of 125 in 1997 was subject to be
executed from that time going forward, not contingent
on the retirement date of Mr. Masters.8
¶12 Johnson appealed the denial of her motion.9 The court
of appeals certified the case to this court, and we accepted
certification.
DISCUSSION
¶13 The question presented by this case is how the statute
that requires "action upon a judgment or decree" to be
"commenced within 20 years" applies to a judgment containing a
provision that cannot be performed under existing law at the
time of judgment. It is a question of statutory interpretation,
a question of law that this court reviews de novo. Teschendorf
8
The circuit court also stated that the doctrine of laches
would favor the petitioner's position except that it "runs full
face into the stone wall in the form of the statute of repose."
The circuit court expressed its belief that the result was
inequitable: "I frankly hope I am wrong [if the case is
appealed] because I do believe my decision is a harsh result."
9
Masters cross-appealed the denial of his motion to dismiss
based on the doctrine of laches; he filed a notice of voluntary
dismissal of his cross-appeal on October 6, 2011.
11
No. 2011AP1240
v. State Farm Ins. Cos., 2006 WI 89, ¶9, 293 Wis. 2d 123, 717
N.W.2d 258. We begin with established principles of statutory
interpretation:
Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-
defined words or phrases are given their technical or
special definitional meaning. Context is important to
meaning. So, too, is the structure of the statute in
which the operative language appears. Therefore,
statutory language is interpreted in the context in
which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.
State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI
58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110 (citations
omitted). "Under the ordinary rules of statutory interpretation
statutes should be reasonably construed to avoid conflict. When
two statutes conflict, a court is to harmonize them,
scrutinizing both statutes and construing each in a manner that
serves its purpose." State v. Szulczewski, 216 Wis. 2d 495,
503, 574 N.W.2d 660 (1998).
¶14 We considered a related question concerning the
interpretation of Wis. Stat. § 893.40 in Hamilton v. Hamilton,
2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d 832, which involved an
action by the State to collect child support arrearages "almost
30 years after the original judgment, more than 20 years after
the amended judgment, and more than 15 years after [the]
youngest child reached the age of majority." Id. at ¶2.
We hold that Wis. Stat. § 893.40, which became
effective on July 1, 1980, governs the time within
which a party may bring an independent action to
12
No. 2011AP1240
collect child support arrearages that accumulated
after the statute's effective date. In addition, we
conclude that, under the statute, an action brought to
enforce a child support judgment must be commenced
within 20 years of the date when the judgment is
entered. The period of limitation begins to run upon
entry of judgment, irrespective of whether any payment
under that judgment has been missed.
Id., ¶4.
¶15 The parties' arguments with regard to statutory
interpretation focus on the question of whether the legislature
intended to subject family law judgments to Wis. Stat. § 893.40or to exempt them from it. The statute states:
Action on judgment or decree; court of record. Except
as provided in s. 846.04(2) and (3) and 893.415,
action upon a judgment or decree of a court of record
of any state or of the United States shall be
commenced within 20 years after the judgment or decree
is entered or be barred.
Johnson argues that her motion is not "action upon a judgment or
decree" for purposes of Wis. Stat. § 893.40. She points to Wis.
Stat. § 801.02 as providing guidance for defining the terms
"action" and "commence." The statute states:
[A] civil action in which a personal judgment is
sought is commenced as to any defendant when a summons
and a complaint naming the person as defendant are
filed with the court, provided service of an
authenticated copy of the summons and of the complaint
is made upon the defendant under this chapter within
90 days after filing.
Because her motion did not commence with a summons and
complaint, she argues, it does not constitute "action" within
the meaning of Wis. Stat. § 893.40. She also points to language
from a footnote in this court's decision in Hamilton:
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No. 2011AP1240
The court of appeals noted that both Walter and the
State agree that the State's motion is an "independent
action" upon the judgment. Apparently, neither party
argues that the State could not bring a motion within
the context of the original action. We do not address
this issue because it has no bearing on our present
decision.
Hamilton, 261 Wis. 2d 458, ¶9 n.4 (citations omitted). She
argues that language means that the applicability of the statute
of repose depends on a distinction between an "independent
action" and "a motion within the context of the original
action." She contends that the Hamilton footnote signaled that
the court wished to limit the application of the statute of
repose in the family law context to independent actions brought
by third parties.10
¶16 Masters argues that the language of Wis. Stat.
§ 893.40 is unambiguous and makes no exceptions that would
10
Johnson's other argument is that her interest in the
pension plan was created at the time the judgment was entered
and that she is therefore "entitled to seek enforcement of the
terms of the divorce judgment at any time . . . ." App. Br. at
12. For that proposition, she cites Dewey v. Dewey, 188 Wis. 2d
271, 279, 525 N.W.2d 85 (Ct. App 1994) (holding that the former
wife's "interest in one-half of [the former husband's] pension
was not a part of his bankruptcy estate nor was it a
dischargeable debt. It was [the former wife's] separate property
upon which the timing of the execution of the QDRO had no
effect.") We note that the "timing of the execution of the
QDRO" in that case refers to the significance of the timing
before or after a bankruptcy action; the language cannot be
fairly characterized as standing for the proposition that timing
is of no consequence whatsoever. In that case, there was no
discussion of a statute of repose; the former wife's action to
enforce the judgment was commenced two years after the judgment
was entered. In any case, we decide this case on other grounds
and need not address this argument further.
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No. 2011AP1240
exempt Johnson's motion from being barred 20 years after the
date of the judgment. He argues that this court's holding in
Hamilton is that Wis. Stat. § 893.40 applied to bar an action in
a child support case, and it should be dispositive of this case.
He argues that it would contravene the statute's language and
would nullify the statute if the court were to carve out an
exception for family law judgments or make a distinction between
actions begun by motion and those begun by summons and
complaint. He argues that the legislature made it clear that it
had no intention of exempting post-judgment actions in family
law cases from the requirements of the statute of repose because
it did actually enact a specific exemption in 2003 in response
to Hamilton and limited that exemption to actions for child
support.11
¶17 We first address why Hamilton does not answer the
question presented in this case. First, we note that the
11
Following this court's decision in Hamilton, the
legislature accepted the court's invitation to clarify its
intention with regard to limitations on actions to collect child
support owed under a judgment. It passed 2003 Wis. Act 287,
which created Wis. Stat. § 893.415. The statute states in
relevant part:
(2) An action to collect child or family support owed
under a judgment or order entered under ch. 767, or to
collect child support owed under a judgment or
order . . . shall be commenced within 20 years after
the youngest child for whom the support was ordered
under the judgment or order reaches the age of 18 or,
if the child is enrolled full-time in high school or
its equivalent, reaches the age of 19.
Wis. Stat. § 893.415.
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No. 2011AP1240
footnote on which Johnson relies at most implies only that a
legally meaningful distinction may exist between an "independent
action" on a judgment and "a motion within the context of the
original action." It does not necessarily stand for the
proposition that Hamilton "has no application to post-judgment
motions brought between the original divorcing parties pursuant
to Wis. Stat. § 767.281 within the action itself." App. Br. at
7. That far overstates a footnote that stated only, "We do not
address this issue because it has no bearing on our present
decision." Hamilton, 261 Wis. 2d 458, ¶9 n.4. Further, the
holding of the case is stated elsewhere in the decision as
"under the statute, an action brought to enforce a child support
judgment must be commenced within 20 years of the date when the
judgment is entered." Id. at ¶4 (emphasis added). That language
would appear to include an action "between the original
divorcing parties."
¶18 Masters considers Hamilton's holding dispositive of
this case because he would apply the statute here in the same
way as the court did in Hamilton to bar the action. But we have
already stated that we consider a crucial fact in this case to
be that a QDRO could not be assignable until permitted by the
legislature. That fact makes this case distinguishable from
Hamilton. The provision the State sought to enforce in that
case was a provision ordering child support payments, and there
was no statute existing at the time of the judgment that
prevented the filing of the proper documents to carry out that
judgment. Therefore, though it addresses similar issues and
16
No. 2011AP1240
contains helpful language with regard to the application of Wis.
Stat. § 893.40, Hamilton does not govern the analysis here.
¶19 This case raises thorny questions. Wisconsin Stat.
§ 893.40 cannot be said to be ambiguous as to the time
limitation. While it does not define "action on a judgment," it
does state clearly that the time period during which action on a
judgment or decree must be commenced is "within 20 years after
the judgment or decree is entered." And yet, we find that the
facts of the case before us compel a more careful look. As we
have explained, the 1989 divorce judgment required a filing of a
QDRO. The statute that authorized WRS to accept such a filing
in this divorce did not come into existence until nine years
later when the legislature passed 1997 Wis. Act 125. We cannot
apply this statute of repose without recognizing the fact that,
at the time of the judgment, a statute actually foreclosed for
nine years the single action, crucial to the pension's
assignability, that had to occur to secure the pension award.
That is the crux of this case.
¶20 This court, in a previous case, considered the
application of a statute that appeared to be unambiguous yet had
troubling implications appearing to lead to a disturbing outcome
if applied literally.12 In Teschendorf, this court unanimously
12
It is the court's role, in the context of statutory
interpretation, to give effect to legislation unless we find
that the legislature could not have intended the absurd or
unreasonable results a statute appears to require. As we have
stated:
17
No. 2011AP1240
agreed to affirm a court of appeals ruling refusing to apply a
reducing clause in an uninsured motorist provision in an auto
insurance policy. The question there involved construing Wis.
Stat. § 632.32(5)(i), which authorizes such reducing clauses,
and determining whether it applied where worker's compensation
payments were made to the State of Wisconsin Work Injury
Supplemental Benefit Fund. Although the court was unanimous in
affirming, the justices were evenly divided on whether the
statute in question was ambiguous.13 The position of three
justices was that
The purpose in this situation is to verify that the
legislature did not intend these unreasonable or
unthinkable results. See Green v. Bock Laundry Mach.
Co., 490 U.S. 504, 527 (1989) (Scalia, J.,
concurring); Kalal, 271 Wis. 2d 633, ¶52 n.9, 681
N.W.2d 110; see also Public Citizen v. United States
Dep't of Justice, 491 U.S. 440, 465 (1989) (invoking
the Supreme Court's absurdity exception to the plain
language of the statute); Robbins v. Chronister, 402
F.3d 1047, 1050 (10th Cir. 2005) (collecting federal
circuit court and Supreme Court cases applying the
absurdity exception). Because our purpose in these
situations is grounded in open disbelief of what a
statute appears to require, we are bound to limit our
off-statute investigations to obvious aberrations.
Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶15, 293 Wis.
2d 123, 717 N.W.2d 258.
13
Chief Justice Shirley Abrahamson took a different
position on the statutory construction approach and concurred in
the holding. Teschendorf, 293 Wis. 2d 123, ¶70 (Abrahamson,
C.J., concurring) (writing that "[a] better approach to
statutory construction would be to drop the
ambiguous/unambiguous/literal/plain meaning pretense and instead
take a comprehensive view of statutory interpretation").
18
No. 2011AP1240
[a]lthough the meaning of the statute appears to be
plain, a literal application of the language would be
absurd. As a general rule, courts apply the ordinary
and accepted meaning of statutory language, unless it
produces an absurd result. Seider, 236 Wis. 2d 211,
¶32, 612 N.W.2d 659. Because a literal
application . . . would produce an absurd and
unreasonable result in certain situations, Justices
Wilcox, Crooks, and Butler construe the statute to
avoid that result.
Teschendorf, 293 Wis. 2d 123, ¶32. After setting forth examples
of how the statute if applied as unambiguously written would
create untenable results in certain circumstances, the opinion
adds, "Because this literal interpretation produces absurd
results and defies both common sense and the fundamental purpose
of [the statutes governing worker's compensation and uninsured
motorist coverage], Justices Wilcox, Crooks, and Butler reject
it unless extrinsic sources reveal the legislature intended
these consequences." Id., ¶43 (citing to Green v. Bock Laundry
Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring)
("We are confronted here with a statute which, if interpreted
literally, produces an absurd, and perhaps unconstitutional,
result. Our task is to give some alternative meaning to the word
'defendant' in Federal Rule of Evidence 609(a)(1) that avoids
this consequence . . . .")).
¶21 The reasoning followed by three justices in
Teschendorf, as well as that followed by the court in Wenke v.
19
No. 2011AP1240
Gehl Co.,14 is apropos in this case. As with the statutes
involved in Teschendorf, the application of Wis. Stat. § 893.40in certain circumstances may produce results that "def[y] both
common sense and the fundamental purpose" of the statute. The
judgment here has the flaw, as to the pension award provision,
that under the statute then in effect the pension was not
assignable. Where the statute clearly states that WRS pension
interests "shall not be assignable, either in law or in equity,"
and a court entered a judgment with a provision assigning such
an interest, that fact must be taken into account.15
¶22 In the case under review, the dispositive fact in our
view is that the statute operated to prohibit pension interests
from being assigned at the time the judgment was entered. We do
14
For another instance when this court has confronted
apparently dispositive clear language in a source of law that
was ultimately held not to be dispositive of the issue, see
Wenke v. Gehl Co., 2004 WI 103, ¶49, 274 Wis. 2d 220, 682 N.W.2d
405 (noting that "[t]he language of these [Judicial Council]
Committee Notes [setting forth the legislative intent] does
appear, on its face, to speak exactly to Wenke's construction of
both §§ 893.05 and 893.07" but nonetheless adopting a contrary
interpretation of the legislative intent in light of "a largely
unperceived shift in the meaning attached to the phrase 'statute
of repose.'")
15
The record does not disclose whether the original counsel
perhaps believed that the legislature would authorize QDROs and
that it would eventually be possible to file one in accordance
with the judgment of divorce, but as we noted above, attempts
were being made to pass such legislation as early as 1985.
Bills authorizing QDROs were introduced on February 21 and March
15, 1989, and were pending at the time the divorce judgment was
entered in July. The following year 1989 Wis. Act 218 became
law, but as explained above, its provisions did not cover
divorces granted between January 1, 1982 and April 28, 1990.
20
No. 2011AP1240
note that there might be other grounds as well for reaching the
result we reach, founded on the unique characteristics of family
law judgments. In family law matters especially, courts often
encounter provisions in orders that create continuing
obligations that may very well extend beyond 20 years, such as
support, maintenance, property transfers, agreements for the
sale of property, and educational expenses payments. We have
recognized the unique nature of family law judgments in another
context, which lends support to our holding. Rules promulgated
by this court, which of course are procedural and not
substantive, do treat family law orders differently from others
in one telling respect. They set the required minimum time
periods for courts to retain "the original paper records" for
various types of cases. See SCR 72.01, Retention of original
record. As might be expected, the minimum time periods set for
courts to retain records for various types of cases corresponds
to the relevant statute limiting enforcement of the judgment.
For example, civil case files and records of money judgments are
to be retained for 20 years, consistent with Wis. Stat.
§ 893.40's 20-year limitation on enforcing such judgments. See
SCR 72.01(1) and (5). The retention requirements for delinquent
income or franchise tax warrants or liens are tied directly to
relevant statutes regarding their enforcement, and the rule
notes that for warrants or liens that are renewed, "a new 20-
year retention period begins from the date on which the renewal
is filed with the clerk of circuit court." See SCR 72.01(7m).
21
No. 2011AP1240
¶23 With regard to family case files, family court
records, family court minute records and maintenance and support
payment records, the rule departs from the practice of tying the
retention period to a recognized limitation on enforcing
judgments and instead sets the required minimum for retaining
such records as follows:
[Thirty] years after entry of judgment of divorce,
legal separation, annulment, or paternity, or entry of
a final order, except that after 30 years, for any
case file for which related support or maintenance
payments are continuing to be made, 7 years after
final payment or after an order terminating
maintenance is filed.
See SCR 72.01(11), (12), (13), and (14). We suggest only that
these procedural rules reflect a recognition on the part of this
court that in some respects ongoing obligations are a common
feature of family law judgments, and whether observing the
obligation to construe statutes to avoid absurd results or
exercising their equitable powers, circuit courts, under Wis.
Stat. § 767.01, in Ch. 767, Actions Affecting the Family, "have
authority to do all acts and things necessary and proper in
those actions and to carry their orders and judgments into
execution as prescribed in this chapter."
¶24 For example, in Bliwas v. Bliwas, 47 Wis. 2d 635, 178
N.W.2d 35 (1970), we considered a stipulation in which the
divorcing couple had agreed that the father would "pay the cost
of tuition, books, supplies, rent, food allowance and certain
miscellaneous expenses" for his son's college and graduate
professional expenses in a Wisconsin school even beyond his
22
No. 2011AP1240
twenty-first birthday; the court-ordered support payments,
however, would be lowered and would then terminate on the son's
twenty-first birthday. Id. at 637. While the question presented
in that case had to do with the proper procedural method for
bringing the father, who was not complying with the stipulation,
into court, we addressed at some length the basis for enforcing
the stipulation:
However, we hold that the enforcement of a family
court order, which would not be enforceable without a
prior stipulation of the parties that it be made part
of the decree, rests not so much in the enforcement of
a contractual obligation or even extension of
jurisdiction of the court, as it does in recognizing
that a person who agrees that something be included in
a family court order, especially where he receives a
benefit for so agreeing, is in a poor position to
subsequently object to the court's doing what he
requested the court to do. One leading text puts the
proposition involved in the following language:
"[W]here the court disposes of the property of the
parties by stipulation . . . the general rule applies
that a party who procures or consents to the entry of
the decree is estopped to question its validity,
especially where he has obtained a benefit from it."
Id. at 639-40. The decision went on to quote from another
jurisdiction in support of such a rule:
In a case where a wife had received certain advantages
under the award of the divorce court, made pursuant to
a stipulation of the parties, the Supreme Court of the
State of Washington held it to be well established law
that, " . . . even though a decree is void as beyond
the power of the court to pronounce, a party who
procures or gives consent to it is estopped to
question its validity where he has obtained a benefit
therefrom."
Id. at 640 (citing Svatonsky v. Svatonsky, 389 P.2d 663, ___
(Wash. 1964)).
23
No. 2011AP1240
¶25 Though we do not decide this case on grounds of
equitable estoppel, it appears to support our decision and to
provide independent grounds for our holding. We have addressed
the doctrine in similar cases, and in Rintelman v. Rintelman,
118 Wis. 2d 587, 596, 348 N.W.2d 498 (1984), we held:
In situations such as this one, all that need be shown
to constitute an estoppel is that both parties entered
into the stipulation freely and knowingly, that the
overall settlement is fair and equitable and not
illegal or against public policy, and that one party
subsequently seeks to be released from the terms of
the court order on the grounds that the court could
not have entered the order it did without the parties'
agreement.
We recently addressed a related issue where a stipulation and
order established a 33–month unmodifiable floor for child
support payments, and a party was seeking modification of the
order. In May v. May, we emphasized courts' deference to
parties' stipulations: "[W]e are sensitive to the importance and
prevalence of stipulations in helping families going through
difficult and litigious divorces and curbing disagreements
[between] the parties. The ability to contract is fundamental to
our legal system and may aid parties in settling their divorces
more amicably." May v. May, 2012 WI 35, ¶18, 339 Wis. 2d 626,
813 N.W.2d 179. The court went on to add:
[W]here the parties to a child support order have
entered into a stipulation in regard to child support
for a limited period of time that the court has
adopted, courts will attempt to give effect to the
parties' intentions where the stipulation was entered
into freely and knowingly, was fair and equitable when
entered into, and is not illegal or violative of
public policy. In this context, a court's review
24
No. 2011AP1240
typically will consider the doctrine of equitable
estoppel, by which a party may be precluded from
challenging an agreement when the elements of estoppel
set forth in Rintelman are satisfied.
Id., ¶36 (citation omitted). We recognize the elements of
estoppel in several key provisions in the stipulation here that
was incorporated into the judgment:
X. Execution of documents
Now or in the future, upon demand, the parties agree
to execute and deliver any and all documents which may
be necessary to carry out the terms and conditions of
this marital agreement.
. . .
XII. Divesting of property rights
Except as otherwise provided for in this marital
agreement, each party shall be divested of and each
party waives, renounces and gives up pursuant to Wis.
Stats. § 861.07, all right, title and interest in and
to the property awarded to the other. All property and
money received and retained by the parties shall be
the separate property of the respective parties, free
and clear of any right, title, interest or claim of
the other party, and each party shall have the right
to deal with and dispose of his or her separate
property as fully and effectively as if the parties
had never been married.
XIII. Mutual releases
Neither party may, at any time hereafter, sue the
other, or his or her heirs, personal representatives
or assigns, for the purpose of enforcing any or all of
the rights relinquished and/or waived under this
marital agreement. Both parties also agree that in the
event any suit shall be commenced, this release, when
pleaded, shall be and constitute a complete defense to
any such claim or suit so instituted by either party.
In light of these provisions as agreed upon by the parties, the
doctrine of equitable estoppel supports our holding where
25
No. 2011AP1240
Masters had promised in 1989 "in the future, upon demand,
. . . to execute and deliver any and all documents which may be
necessary to carry out the terms and conditions of this marital
agreement."
CONCLUSION
¶26 In order to interpret the relevant statutes to avoid
"absurd or unreasonable results," and in order to "constru[e]
each in a manner that serves its purpose" as we are bound to do,
we hold that Johnson's motion is not barred by the operation of
Wis. Stat. § 893.40. The judgment required the filing of a QDRO
with the WRS, and it was not until 1998 that legislation
authorized WRS to accept such orders for marriages such as this
one that were terminated in 1989. It would be absurd and
unreasonable to construe the statute of repose in such a way
that it would begin to run at the time of a judgment with regard
to a provision that assigned Masters' interest contrary to
existing law, which was and continued for the next nine years to
be that WRS pension interests were not assignable. Construing
the statute as starting to run as to that provision at the point
when the provision was no longer contrary to law is a way to
retain its limiting function "in a manner that serves its
purpose." Under the circumstances present in this case where a
statute precludes a provision in a judgment, the statute of
repose cannot begin to run as to that provision until the
legislature changes the law such that the provision can be
carried out. In this case, that occurred on May 2, 1998, and
the statute of repose will bar actions on that provision after
26
No. 2011AP1240
May 1, 2018. We therefore reverse the order of the circuit
court and remand for further proceedings consistent with this
opinion.
By the Court.—Reversed and remanded.
27
No. 2011AP1240.ssa
¶27 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I join
the majority opinion authored by Justice Crooks and the
concurrence authored by Justice Bradley. I write separately to
address the characterization of a circuit court's exercise of
equitable powers in Justice Ziegler's concurrence as "based
solely on the subjective determination of each judge who reviews
such a question" and "an arbitrary determination of any one
judge on any given day." Justice Ziegler's concurrence, ¶41.
¶28 If a circuit court exercises its discretionary
equitable powers in a subjective, arbitrary fashion instead of
setting forth logical, rational reasoning based on the facts of
record and a correct statement of the law, the circuit court has
erred and its ruling will be reversed on appeal.
¶29 The comment in Justice Ziegler's concurrence equating
discretion with judicial subjectivity and arbitrariness does a
disservice to judicial decision making and to the circuit courts
of the state. The comment cannot stand unchallenged.
1
No. 2011AP1240.awb
¶30 ANN WALSH BRADLEY, J. (concurring). I join the
majority opinion in its entirety, concluding that Johnson's
motion for the entry of a qualified domestic relations order is
not barred by the operation of Wis. Stat. § 893.40. I agree
with the majority opinion when it states that it would be
"absurd and unreasonable" to construe the statute of repose in a
way that it would begin to run at the time the judgment in this
case was entered. Majority op., ¶3.
¶31 Likewise, I agree with the majority when it states
that there has been "a recognition on the part of this court"
that:
. . . in some respects ongoing obligations are a
common feature of family law judgments, and whether
observing the obligation to construe statutes to avoid
absurd results or exercising their equitable powers,
circuit courts, under Wis. Stat. § 767.01, in Ch. 767,
Actions Affecting the Family, "have authority to do
all acts and things necessary and proper in those
actions and to carry their orders and judgments into
execution as prescribed in this chapter."
Id., ¶23.1
¶32 However, I write separately to address the unnecessary
uncertainty that Justice Ziegler's concurrence introduces into
the law. By raising questions concerning the continued vitality
of judgments that require the payment of maintenance or the
continuation of life insurance with designated beneficiaries,
1
Justice Ziegler asserts that this concurrence "incorrectly
characterizes the conclusions reached in the majority opinion."
Justice Ziegler's Concurrence, ¶1 n.1. Ultimately, it will be
left to the reader to determine whether such an assertion is
correct. This concurrence does not attempt to "characterize"
the majority opinion but rather quotes directly from it.
1
No. 2011AP1240.awb
Justice Ziegler's concurrence creates uncertainty in areas of
family law not presented in this case.
¶33 In the concurring opinion, Justice Ziegler questions
"whether or how Wis. Stat. § 893.40 may affect the enforcement
of obligations which may necessarily extend beyond 20
years. . . ." Justice Ziegler's Concurrence, ¶2. She further
appears to question whether judgments requiring "maintenance" or
the payment of "life insurance proceeds" that may continue
beyond or may first become due after 20 years post-judgment will
remain enforceable after 20 years has passed. Id., ¶1 n.2.
¶34 Both the majority and the dissent provide a response
to Justice Ziegler's concerns. The majority correctly
recognizes that "[i]n family law matters especially, courts
often encounter provisions in orders that create continuing
obligations that may very well extend beyond 20 years."
Majority op., ¶22.
¶35 The dissent responds by explaining that "[t]he
suggestion that a party could simply stop paying alimony or
maintenance after 20 years, as a result of Wis. Stat. § 893.40,
is not reasonable or realistic because of the continuing nature
of the obligation to pay." Dissent, ¶112 (emphasis in
original); Ashby v. Ashby, 174 Wis. 549, 554, 183 N.W. 965(1921) (determining that an order for alimony payments was a
"continuing judgment, always subject to modification by the
court during the life of the parties," and therefore a statute
of limitations did not apply). I agree with the dissent's
conclusion that a judgment that orders indefinite maintenance
2
No. 2011AP1240.awb
payments is a continuing judgment that is not barred by the
operation of Wis. Stat. § 893.40.
¶36 In response to the concern regarding the change of
life insurance beneficiaries, the dissent explains that "the
insured may not change the beneficiary more than 20 years after
the entry of the judgment and expect that he or she has not
created a new cause of action for the original beneficiary."
Dissent, ¶111. Likewise I agree with the dissent's conclusion
that the obligation to designate a specific beneficiary may be
enforced beyond the 20-year period.
¶37 Accordingly, although I join the majority opinion in
its entirety, I respectfully concur.
¶38 I am authorized to state that CHIEF JUSTICE SHIRLEY S.
ABRAHAMSON joins this concurrence.
3
No. 2011AP1240.akz
¶39 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion because it does not conclude that a court
has the equitable power to ignore a statute of repose and
because it concludes that under the facts of this case Wis.
Stat. § 893.40 does not apply because a qualified domestic
relations order (QDRO) was not possible when this judgment was
entered.1 I concur to urge the legislature to consider whether
legislative change could provide greater certainty to courts,
litigants, and parties who may depend on the enforceability of
certain family court matters beyond 20 years.2
¶40 The legislature has set a 20-year statute of repose in
Wis. Stat. § 893.40, and in the case at issue, the circuit court
concluded, as Justice Prosser would, that § 893.40 barred
enforcement. The majority opinion reverses the circuit court
but has cabined its analysis to "the circumstances present in
this case" and the "dispositive fact" that the QDRO statute,
Wis. Stat. § 40.08, "operated to prohibit pension interests from
1
Justices Roggensack and Gableman join this concurrence
because they also conclude that the majority opinion does not
answer whether Wis. Stat. § 893.40 bars certain family court
judgments that extend beyond 20 years, and it does not conclude
that the circuit court has the equitable power to ignore a
statute of repose. If, as Justice Bradley suggests, the
majority opinion were to answer those questions, it would not
have sufficient votes to constitute a majority opinion and would
then be only a lead opinion. Therefore, Justice Bradley's
concurrence incorrectly characterizes the conclusions reached in
the majority opinion.
2
The payment of retirement benefits, maintenance, or life
insurance proceeds may be court ordered and thus necessarily
extend beyond 20 years. While the majority somewhat addresses
equitable estoppel, it does not state that equitable estoppel
provides an enforcement mechanism. See majority op., ¶25.
1
No. 2011AP1240.akz
being assigned at the time the judgment was entered." Majority
op., ¶¶3, 19-23, 26. I join that holding. I write to clarify
the fact that the majority opinion leaves unanswered the
question of whether or how Wis. Stat. § 893.40 may affect the
enforcement of obligations which may necessarily extend beyond
20 years.3 See majority op., ¶¶3, 19-23, 26. Further proof that
legislative action may provide greater clarity is evident by the
thoughtful yet differing viewpoints and analyses of the circuit
3
Justice Bradley's opinion incorrectly suggests that the
majority has decided this issue. Instead, the majority's
analysis is entirely dependent on the fact that a QDRO could not
have transferred these assets at the time of the divorce
judgment. The majority's conclusion does not hinge on the
language of Wis. Stat. § 893.40. The majority holds that
"[u]nder the circumstances present in this case where a statute
precludes a provision in a judgment, the statute of repose
cannot begin to run as to that provision until the legislature
changes the law such that the provision can be carried out."
See majority op., ¶¶3, 26. Absent the unique facts of this
particular case, the majority would be required to determine
whether § 893.40 otherwise bars enforcement. In fact, that
issue was presented by the parties, addressed by the circuit
court, and is again presented in the concurrences and the
dissent.
2
No. 2011AP1240.akz
court decision in this case, the arguments of counsel, and our
own majority, concurring, and dissenting opinions.4
¶41 Unlike Justice Bradley, I would not go beyond the
majority opinion to conclude that a court may simply invoke its
equitable powers to override the language in a statute of
repose. If the equitable power of the circuit courts can so
supersede the limits of a statute of repose, such as Wis. Stat.
§ 893.40, based solely on the subjective determination of each
judge who reviews such a question, then whether a court order is
enforceable under the statute could be subject to an arbitrary
4
Justice Bradley asserts that Justice Prosser's dissent
supports her position, yet he concludes that the 20-year statute
of repose is an absolute bar to this enforcement proceeding.
Moreover, if Ashby v. Ashby, 174 Wis. 549, 183 N.W. 965 (1921),
somehow unequivocally answers the question, then the majority
decision would not need to undertake its extensive analysis.
Instead, it could rely on that precedent and the equitable power
of the circuit court. Ashby was decided well before Wis. Stat.
§ 893.40 was enacted, and arguably, Dewey v. Dewey, 188
Wis. 2d 271, 525 N.W.2d 85 (Ct. App. 1994), may call into
question whether this is a continuing judgment. The dissent
cites several cases in support of the proposition that circuit
courts can equitably enforce certain family law judgments that
may continue past 20 years. See dissent, ¶¶110-11. However,
none of the plaintiffs in the cases cited by the dissent
attempted to enforce a judgment more than 20 years after the
entry of judgment, nor do any of the cases cite to or discuss
the application of § 893.40.
3
No. 2011AP1240.akz
determination of any one judge on any given day.5 I cannot
conclude that the rule of law supports such subjectivity.
Apparently, the issue of when § 893.40 bars enforcement is
subject to some debate.6
¶42 Courts, practitioners, and parties deserve greater
certainty when it comes to important family law issues. It is
the role of the legislature, not the courts, to enact statutes.
5
Judicial decisions made without definable standards are
arbitrary decisions that are disfavored under the law. See
Donaldson v. Bd. of Comm'rs of Rock-Koshkonong Lake Dist., 2004
WI 67, ¶¶91-102, 272 Wis. 2d 146, 680 N.W.2d 762. I am at a
loss as to why Chief Justice Abrahamson's concurrence disparages
my concern over avoiding arbitrary decision-making, which should
not be confused with a court's duty to engage in discretionary
decision-making, as somehow being disrespectful of circuit court
judges. C.J. Abrahamson's concurrence, ¶29. To the contrary,
having been a trial lawyer and a circuit court judge, I
understand that courts, lawyers, and litigants would typically
prefer greater certainty when analyzing jugular issues, such as
when a statute of repose acts as a bar to enforcement.
Unfortunately, this opinion is limited to its facts and does not
answer that issue.
6
Legislative response to a court decision is not unusual.
Hamilton v. Hamilton, 2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d
832, is instructive as to the interplay between court decisions
and subsequent legislative response. After Hamilton, the
legislature initiated statutory changes to address the child
support issues raised therein. It is not uncommon for this
court to ask the legislature to consider legislative action.
See, e.g., State v. Brereton, 2013 WI 17, ¶54 n.16, 345
Wis. 2d 563, 826 N.W.2d 369; id., ¶¶98-99 (Abrahamson, C.J.,
dissenting); State v. Sveum, 2010 WI 92, ¶¶79, 84, 328
Wis. 2d 369, 787 N.W.2d 317 (Ziegler, J., concurring) (asking
legislature to set parameters and standards of use for the
installation and monitoring of GPS tracking devices); id., ¶77
(Crooks, J., concurring); id., ¶126 (Abrahamson, C.J.,
dissenting); State v. McClaren, 2009 WI 69, ¶¶77-79, 318
Wis. 2d 739, 767 N.W.2d 550 (Bradley, J., dissenting); State ex
rel. J.H. Findorff & Son, Inc., v. Circuit Court for Milwaukee
Cnty., 2000 WI 30, ¶24 n.14, 233 Wis. 2d 428, 608 N.W.2d 679.
4
No. 2011AP1240.akz
Perhaps legislative change is not needed, but perhaps it is. I
merely request that the legislature evaluate the issue
presented.
¶43 For the foregoing reasons I concur.
¶44 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.
5
No. 2011AP1240.dtp
¶45 DAVID T. PROSSER, J. (dissenting). Michael R.
Masters and Patricia A. Johnson were married on October 18,
1986. They were divorced on July 20, 1989. Their divorce
judgment, signed by Waukesha County Circuit Judge Robert
Mawdsley, made the couple's written marital property agreement
part of the judgment. The marital property agreement read in
part: "V. Property Division——Pension. The Petitioner shall be
awarded 1/2 of the value of the Respondent's Wisconsin
Retirement System [WRS] benefits accrued from date of marriage
thru the date of divorce. A QDRO [qualified domestic relations
order] shall be submitted to secure these rights."
¶46 For more than 20 years, Patricia Johnson did not
submit a QDRO to the WRS or to the court "to secure [her]
rights" to a portion of her former husband's pension. Thus,
when she attempted to file a QDRO in 2010, her effort was
opposed by Masters and ultimately denied by the Waukesha County
Circuit Court.1
¶47 The basis for the circuit court's denial was Wis.
Stat. § 893.40, which provides:
Action on judgment or decree; court of record.
Except as provided in ss. 846.04(2) and (3) and
893.415, action upon a judgment or decree of a court
of record of any state or of the United States shall
be commenced within 20 years after the judgment or
decree is entered or be barred.
¶48 The issue presented in this case is whether there is
any reasonable basis for Johnson to avoid the apparent effect of
this statute. I conclude that there is not.
1
Kathryn W. Foster, Judge.
1
No. 2011AP1240.dtp
¶49 The majority takes the opposite view. It asserts that
it would be an absurdity to apply the statute under the
circumstances of this case. Justice Ziegler's concurrence
raises the stakes even more and pleads with the legislature to
change the law. Inasmuch as I believe the circuit court's
decision was correct, the majority's analysis is flawed, and
Justice Ziegler's concurrence is mistaken because the statute is
reasonable, I respectfully dissent.
I
¶50 The facts and circumstances heavily influence the
outcome of this case.
¶51 Congress approved the Employee Retirement Income
Security Act of 1974 (ERISA) to protect the interests of
participants in the growing number of employee benefit plans in
the private sector throughout the United States. See 29 U.S.C.
§ 1001. Ten years later, Congress amended ERISA by enactment of
the Retirement Equity Act of 1984. See Pub. L. No. 98-397, 98
Stat. 1426 (1984). The purpose of the Retirement Equity Act,
which created the "qualified domestic relations order" in 29
U.S.C. § 1056(d), was to facilitate the orderly assignment or
alienation of all or a portion of a person's employee benefit
plan to an "alternate payee" as the result of a court order or
judgment relating to child support, alimony, or marital property
rights stemming from divorce. See S. Rep. No. 98-575, at 3, 18-
21 (1984) reprinted in 1984 U.S.C.C.A.N. 2547, 2549, 2564-2567.
¶52 As the majority opinion notes, however, "ERISA does
not apply to government retirement plans." Majority op., ¶6
2
No. 2011AP1240.dtp
(citing 29 U.S.C.A. § 1003(b)(1)); see also Lindsey v. Lindsey,
140 Wis. 2d 684, 690, 412 N.W.2d 132 (Ct. App. 1987).
Consequently, a court's authority to assign or divide a
government pension in Wisconsin was and is subject to Wisconsin
statute.
¶53 On July 20, 1989——the date of the Johnson/Masters
divorce——Wis. Stat. § 40.08 read in part:
Benefit assignments and corrections. (1)
Exemptions. The benefits payable to, or other rights
and interests of any member, beneficiary or
distributee of any estate under any of the benefit
plans administered by the [Department of Employee
Trust Funds (the department)], including insurance
payments, shall be exempt from any tax levied by the
state or any subdivision of the state and shall not be
assignable, either in law or equity, or be subject to
execution, levy, attachment, garnishment or other
legal process except as specifically provided in this
section. The exemption from taxation under this
section shall not apply with respect to any tax on
income.
Wis. Stat. § 40.08(1) (1987-88) (emphasis added). Compare id.with Wis. Stat. § 66.81 (1987-88) (prohibiting the taxation,
execution, and assignment of pension benefits in the retirement
system of first class cities).
¶54 However, the statute continued:
(3) Waivers. Any participant, beneficiary or
distributee of any estate may waive, absolutely and
without right of reconsideration or recovery, the
right to or the payment of all or any portion of any
benefit payable or to become payable under this
chapter. The waiver shall be effective on the first
day of the 2nd month commencing after it is received
by the department or on the date specified in the
waiver if later.
Wis. Stat. § 40.08(3) (1987–88) (emphasis added).
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¶55 The gist of these statutory provisions was clear. In
July 1989 the benefits payable to a member of the WRS were not
assignable in a divorce proceeding except as specifically
provided in Wis. Stat. § 40.08. Section 40.08 did not authorize
any "qualified domestic relations order." It did, however,
permit a member to waive payment of a portion of his or her
pension by filing an appropriate waiver with the department.
¶56 The legislature changed the law approximately nine
months later. See 1989 Wis. Act 218. Newly created Wis. Stat.
§ 40.08(1m) provided that a participant's accumulated rights and
benefits in the WRS shall be divided by "a qualified domestic
relations order" but "only if the order provides for a division
as specified in this subsection." Wis. Stat. § 40.08(1m) (1989–
90) (emphasis added). The specifications in § 40.08(1m), plus
the new definition of "qualified domestic relations order" in
Wis. Stat. § 40.02(48m), take up more than a full page of the
1989-90 statutes. Wisconsin Stat. § 40.08(1m)(j) pointedly
stated: "This subsection applies to qualified domestic relations
orders issued on or after April 28, 1990, that provide for
divisions of the accumulated rights and benefits of participants
whose marriages have been terminated by a court on or after
April 28, 1990."
¶57 In short, the 1990 changes in the statutes did not
apply to the Johnson/Masters divorce.
¶58 In 1998 the legislature amended the statutes again2 to
recognize qualified domestic relations orders issued on or after
2
See 1997 Wis. Act 125.
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January 1, 1982, Wis. Stat. § 40.08(1m)(j) (1997–98), and to
permit the revision or modification of judgments entered on or
after January 1, 1982, to provide for payments under a qualified
domestic relations order. Wis. Stat. § 40.08(1m)(k)2. (1997–
98). These changes permitted Johnson to take the step outlined
in the marital property agreement to secure her rights.
¶59 The plain truth is that the property division-pension
section of the Johnson/Masters marital property agreement was
not valid on the date of the 1989 divorce because the law did
not then permit a court to divide Michael Masters' WRS pension.
If the law had not changed in 1998, the 1989 property division-
pension section of the marital property agreement might never
have been eligible to become valid, although it was always
possible for Patricia Johnson to secure Masters' written waiver
under Wis. Stat. § 40.08(3).
¶60 If the 1998 law had been in place on July 20, 1989,
Johnson would still have been required by the marital property
agreement, the judgment incorporating that agreement, and the
applicable statutes to submit a QDRO to the department to secure
her rights.
¶61 Johnson had 20 years to obtain a QDRO and submit it to
the department or at least file it with the court. She did not
do so, even though such a QDRO was specifically authorized by
law in her situation from May 2, 1998, through July 20, 2009——
that is, for more than 11 years——and even though she signed a
draft QDRO after the divorce. There is no evidence that Johnson
sought a court order or contempt to force Masters to comply with
5
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the marital property agreement by signing the draft QDRO or a
revised QDRO.
¶62 Johnson also had 20 years to obtain a written waiver
from Masters, either voluntarily or through court action. She
did not do so, even though the Waukesha County Circuit Court
held post-divorce hearings in the Johnson/Masters case in 1995
and 1996 and issued orders in the case in 1995, 1996, and 2004.
¶63 In addition, Johnson had almost nine years to seek to
amend the judgment to obtain the cash equivalent of her pension
share in lieu of a QDRO, during the period when a QDRO was not
authorized by statute in her case. After that time, she could
have pursued multiple options, including an effort to secure the
cash equivalent.
¶64 Johnson's interest in a portion of Masters' pension
was always contingent upon her taking steps to secure and
enforce her rights. She did not do so until more than 20 years
after the divorce judgment.
¶65 In pointing the finger at Johnson for failing to take
the required action to protect her rights, one is actually
pointing at her divorce counsel.3 There is no allegation by
Johnson that Masters' divorce counsel failed to do something
that he committed to do. This case, then, reveals more than 20
years of unexplained inaction and neglect. It is hardly an
"absurdity" for a court to take that inaction into account.
3
See Scott L. Dennison, Valuing Retirement Benefits in
Divorce, Wis. Lawyer, June 2012, at 10–11 ("Lawyers who work on
divorces that involve QDROs have been magnets for malpractice
suits, because a poorly designed QDRO can be a real disaster.").
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II
¶66 Johnson's inaction over a 20-year period is
significant because of Wis. Stat. § 893.40, the 20-year statute
of repose. The statute provides, in part, that "action upon a
judgment or decree of a court of record of any state or of the
United States shall be commenced within 20 years after the
judgment or decree is entered or be barred." Wis. Stat.
§ 893.40 (emphasis added).
¶67 The history and purpose of Wis. Stat. § 893.40 deserve
discussion. The court also should discuss Johnson's attempt to
get around the statute by arguing that her effort to secure a
QDRO was not "an action upon a judgment."
¶68 Wisconsin Stat. § 893.40 became law in 1980. See 1979
Wis. Act 323. It combined and modified the provisions of two
repealed statutes, Wis. Stat. §§ 893.16(1) and 893.18(1). The
former statute had provided a 20-year statute of limitations:
"Within 20 years. Within 20 years: (1) An action upon a
judgment or decree of any court of record of this state or of
the United States sitting within this state." Wis. Stat.
§ 893.16(1) (1977-78).
¶69 The latter statute had only a 10-year statute of
limitations: "Within 10 years. Within 10 years: (1) An action
upon a judgment or decree of any court of record of any other
state or territory of the United States or of any court of the
United States sitting without this state." Wis. Stat.
§ 893.18(1) (1977-78).
7
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¶70 The new Wis. Stat. § 893.40 established a uniform 20-
year time limit for an "action upon a judgment or decree" and
specified that the 20 years began to run when the "judgment or
decree is entered." It added that a failure to timely commence
action would "bar[]" future action upon a judgment. These
changes transformed two statutes of limitation into a single
statute of repose.
¶71 "A statute of repose . . . limits the time period
within which an action may be brought based on the date of an
act or omission." Hamilton v. Hamilton, 2003 WI 50, ¶29, 261
Wis. 2d 458, 661 N.W.2d 832. The "act" that triggers the
statute of repose in Wis. Stat. § 893.40 is the entry of a
judgment. See generally, Daniel J. La Fave, Remedying the
Confusion Between Statutes of Limitation and Statutes of Repose
in Wisconsin——A Conceptual Guide, 88 Marq. L. Rev. 927 (2005).
¶72 Limitation periods in statutes of limitation and
statutes of repose are "legislative pronouncements of policy
barring actions for various policy reasons regardless of the
merit of the action." Hamilton, 261 Wis. 2d 458, ¶42 (citations
omitted). These statutes are meant to "ensure prompt litigation
of claims and to protect defendants from fraudulent or stale
claims brought after memories have faded or evidence has been
lost." Korkow v. Gen. Cas. Co. of Wis., 117 Wis. 2d 187, 198,
344 N.W.2d 108 (1984). As this court explained in Aicher:
Statutes of limitation and statutes of repose
represent legislative policy decisions that dictate
when the courthouse doors close for particular
litigants. . . . [These statutes] "are found and
approved in all systems of enlightened jurisprudence,"
8
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[and] articulate the principle that it is more just to
put the adversary on notice to defend a claim within a
specified period of time than to permit unlimited
prosecution of stale claims.
Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶27, 237
Wis. 2d 99, 613 N.W.2d 849 (quoting United States v. Kubrick,
444 U.S. 111, 117 (1979)).
¶73 Wisconsin Stat. § 893.40 has no exception for family
law cases except for actions to collect child support payments.
See Wis. Stat. § 893.415. This specific exception was created
following the court's decision in Hamilton, which discussed
§ 893.40 extensively.4
¶74 The court in Hamilton said Wis. Stat. § 893.40 was
"plain and unambiguous" as to the act that begins the 20-year
period. Hamilton, 261 Wis. 2d 458, ¶30. This means that the
statute is not triggered by the subsequent "accrual" of a right,
as the majority mistakenly suggests. Thus, Hamilton's
interpretation of § 893.40 should decide this case unless
Johnson's effort to secure a QDRO in 2010 was not an "action
upon a judgment."
¶75 This possibility is raised in the certification from
the court of appeals and argued by Johnson in this review.
¶76 The argument is grounded in the text of Wis. Stat.
§ 893.02:
Except as provided in s. 893.415(3), an action is
commenced, within the meaning of any provision of law
which limits the time for the commencement of an
action, as to each defendant, when the summons naming
4
Wisconsin Stat. § 893.415(1) defines "action" as "any
proceeding brought before a court" to collect child or family
support.
9
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the defendant and the complaint are filed with the
court, but no action shall be deemed commenced as to
any defendant upon whom service of authenticated
copies of the summons and complaint has not been made
within 90 days after filing.
Wis. Stat. § 893.02 (emphasis added).
¶77 The certification states that an "argument could be
made that an 'action' is a proceeding which is begun by a
summons and complaint and that an action upon a judgment or
decree of a court of record therefore means any judgment that
was commenced by a summons and complaint." The certification
added that this was part of the rationale used in Lueck v.
Lueck, No. 2011AP1195, unpublished slip op. (Wis. Ct. App. Oct.
12, 2011), review denied (Mar. 2, 2012), where the court of
appeals said Wis. Stat. § 893.40 did not pertain to actions
begun by a motion and order to show cause because motions and
orders to show cause "are not a summons and complaint." Id.,
¶9.
¶78 The argument that Johnson's effort to secure a QDRO in
2010 was not an action upon a judgment must be addressed.
¶79 Wisconsin Stat. §§ 893.02 and 893.40 both have their
origins in early Wisconsin law. Revised Wisconsin Stat. Chapter
138, § 15 (1858), provided: "Within twenty years:——1. An action
upon a judgment or decree of any court of record of this state."
¶80 Section 27 of the same chapter then provided, in part,
that "[a]n action shall be deemed commenced as to each
defendant, when the summons is served on him, or on a co-
defendant, who is a joint contractor or otherwise united in
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interest with him." Wis. Stat. ch. 138, § 27 (1858) (emphasis
added).
¶81 These two statutes were accompanied by two other
provisions of note. Section 2 of Chapter 122 of the 1858
Revised Statutes provided that, "[a]n action is an ordinary
proceeding in a court of justice, by which a party prosecutes
another party for the enforcement or protection of a right, the
redress or prevention of a wrong, or the prevention of a public
offense." Wis. Stat. ch. 122, § 2 (1858).
¶82 Section 10 of Chapter 122 provided:
No action shall be brought upon a judgment
rendered in any court of this state, except a court of
the justice of the peace, between the same parties,
without leave of the court, for a good cause shown, on
notice to the adverse party; and no action on a
judgment rendered by a justice of the peace shall be
brought in the same county within two years after its
rendition, except in cases of his death, resignation,
incapacity to act, or removal from the county, or that
the process was not personally served on the
defendant, or on all the defendants, or in case of the
death of some of the parties, or when the docket or
record of such judgment is or shall have been lost or
destroyed.
Wis. Stat. ch. 122, § 10 (1858) (emphasis added).
¶83 These statutes suggest that "action" was an "ordinary
proceeding," as opposed to a special proceeding, and that
sometimes this "action" required a "summons" and sometimes it
required "notice to the adverse party."
¶84 The essence of Wis. Stat. § 893.40 appears again in
chapter 177, section 4220 of the 1878 Revised Statutes: "Within
twenty years: 1. An action upon a judgment or decree of any
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court of record of this state, or of the United States, sitting
within this state."
¶85 The forerunner of present Wis. Stat. § 893.02(regarding summons and complaint) was found in Chapter 177,
Section 4239 of the 1878 Revised Statutes:
An action shall be deemed commenced, within the
meaning of any provision of law which limits the time
for the commencement of an action, as to each
defendant, when the summons is served on him, or on a
codefendant who is a joint contractor or otherwise
united in interest with him.
Wis. Stat. ch. 177, § 4239 (1878) (emphasis added).
¶86 The 1878 Revised Statutes also maintained the
definition of "action" in the new Section 2595 of Chapter 118
but eliminated the second reference to "action upon a judgment"
that had appeared in Chapter 122, Section 10 of the 1858 Revised
Statutes.
¶87 By 1925 the language in Section 4220 of the 1878
Revised Statutes appeared without change (except for
punctuation) in Wis. Stat. § 330.16 (1925).5 The language of
Section 4239 of the 1878 Revised Statutes appeared in Wis. Stat.
§ 330.39 (1925). The definition of "action" from 1878 continued
in Wis. Stat. § 260.03 (1925).
¶88 Sections 330.16 and 330.18 were renumbered as
§§ 893.16 and 893.18 in § 2, ch. 66, Laws of 1965. Wisconsin
Stat. § 330.39 was renumbered § 893.39 in the same chapter.
5
The 10-year statute of limitations for "action upon a
judgment . . . of any court of record of any other state"
appeared in Wis. Stat. § 330.18(1) (1925).
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¶89 In 1975 the supreme court adopted the Wisconsin Rules
of Civil Procedure, effective January 1, 1976. See 67
Wis. 2d 585, 585-784 (1975). Wisconsin Stat. § 893.39 was
amended "to conform to the proposed mode of commencement of
action under s. 801.02(1)." Id. at 770–71. It read:
Action, when commenced. An action shall be
deemed commenced, within the meaning of any provision
of law which limits the time for the commencement of
an action, as to each defendant, when the summons
naming him as defendant and the complaint are filed
with the court, but no action shall be deemed
commenced as to any defendant upon whom service of
authenticated copies of the summons and complaint has
not been made within 60 days after filing.
Id. at 770-71 (emphasis added).
¶90 This amended section was repealed and recreated as
Wis. Stat. § 893.02 by Section 28, Chapter 323, Laws of 1979,
the chapter that repealed and recreated all of Wis. Stat.
Chapter 893. Chapter 323 is the same chapter that created Wis.
Stat. § 893.40, the statute of repose at issue in this case.
¶91 In sum, Johnson's argument depends in large part on
whether the supreme court redefined "action upon a judgment"
when it added "complaint" to Wis. Stat. § 893.39 in 1975.
¶92 There are several cases prior to the 1975 change that
suggest "action upon a judgment" was broadly construed to
include "actions" beyond the filing of a new lawsuit.
¶93 In Coon v. Seymour, 71 Wis. 340, 345-46, 37 N.W. 243(1888), the court explained "action upon a judgment." The court
said:
We do not understand this [case] to be an action upon
a judgment which may be brought within twenty years
after the cause of action accrued, within the meaning
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of sec. 4220, R.S. Such an action is to confirm and
enforce a judgment. This, on the contrary, is an
action to avoid and set aside a judgment for alleged
causes existing outside of the record.
Id. (emphasis added). An action to "confirm and enforce a
judgment" is not a new lawsuit.
¶94 In Brown v. Hopkins, 101 Wis. 498, 77 N.W. 899 (1899),
the court discussed a judgment of foreclosure entered on
December 10, 1877, and an execution issued upon that judgment on
December 3, 1897, and a subsequent levy on real estate, both
within the 20-year statute of limitations. The court said:
The question is whether an execution which is
duly issued and partially executed by levying upon
property within twenty years from the entry of a
judgment expires at the end of the twenty-year period,
or whether it remains valid and effective, so that the
property so levied upon may be thereafter sold and
applied to satisfy the command of the writ. Our
statute provides (R.S. 1878, sec. 4220) that a
judgment of a court of record outlaws at the end of
twenty years from the date of its rendition; and,
further (R.S. 1878, sec. 2968), that "in no case shall
an execution be issued, or any proceedings had on any
judgment, after twenty years from the time of the
rendition thereof." It is very evident from this
latter section that a valid execution may be issued at
any time up to the last day of the twenty years; and
the question is whether, when so issued, it is
rendered void by the limitation upon the judgment.
Our statute requires no order of confirmation of the
sheriff's sale, nor any other proceeding by the court,
to perfect the purchaser's title. No further
proceedings upon the judgment are contemplated or
required by the statute. The sale of the property by
the sheriff, and the payment or application of the
proceeds, are simply the carrying out of the commands
of his writ, which, when issued, was perfectly valid.
Brown, 101 Wis. at 499-500.
14
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¶95 The Brown case shows that "execution" upon a judgment
was required within the 20-year period. "Execution" was not a
new lawsuit.
¶96 In Zellmer v. Sharlein, 1 Wis. 2d 46, 82 N.W.2d 891(1957), a daughter filed a claim against her late father's
estate. When the daughter's mother and father were divorced,
the divorce judgment had incorporated a stipulation that
required the father to pay the premiums on an insurance policy
on his life for the benefit of the daughter. Id. at 47. The
father failed to pay the premiums. Id. at 48. As a result,
when the father died and left nothing for the daughter (on
grounds that he had provided for her by the life insurance
policy), she filed and litigated a claim against his estate.
Id. The court rejected a defense that the claim was barred by a
six-year statute of limitations for breach of contract. Id. at
52. It concluded that the claim was within the 20-year statute
of limitations for a claim upon a judgment, namely, the divorce
judgment. Id. The claim did not constitute a new lawsuit.
¶97 In Schafer v. Wegner, 78 Wis. 2d 127, 254 N.W.2d 193(1977), the plaintiff commenced an action to recover personal
property awarded to her in a divorce judgment in 1957. The suit
was commenced in 1973, within the 20 years set out in Wis. Stat.
§ 893.16(1) (1971-72). Id. at 130–31. The court observed that,
"[t]he household furniture was awarded to the appellant in the
divorce decree and the statute of limitations concerning actions
based on that award is twenty years." Id. at 132. Although the
plaintiff's suit was timely filed under the statute, this court
15
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dismissed it on grounds of laches. Id. There is no evidence in
the opinion that the court would have viewed a "motion"
different from a new suit under the statute of limitations.
Rather, the court cut off the plaintiff after a shorter time
period.
¶98 Coon, Brown, Zellmer, and Schafer suggest that courts
have viewed "action upon a judgment" broadly, not restricting an
"action" to a proceeding that required a summons and complaint.
The question here is whether that view changed in 1975 when the
court modified the language in Wis. Stat. § 893.39 (1973-74).
¶99 There are at least four reasons why this court should
not adopt any theory that Wis. Stat. § 893.40's time limitation
applies to only proceedings commenced by a summons and
complaint.
¶100 First, this theory depends upon a conclusion that this
court contravened its rulemaking authority when it amended Wis.
Stat. § 893.39 in 1975.
¶101 In 1975 Wis. Stat. § 251.18, the predecessor to
present Wis. Stat. § 751.12, contained the same critical
language found in present law, namely, with respect to court-
made rules of pleading, practice, and procedure, "Such rules
shall not abridge, enlarge or modify the substantive rights of
any litigant." If the court's 1975 amendment to Wis. Stat.
§ 893.39 (1973-74) narrowed the statute of limitations so that
it applied to only proceedings initiated by summons and
complaint——thereby removing the limitation on motions, orders to
show cause, claims, executions, and the like——the court would
16
No. 2011AP1240.dtp
have violated § 251.18 because it clearly would have abridged,
enlarged, or modified the substantive rights of persons affected
by judgments.
¶102 "In Wisconsin, unlike many states, the running of the
statute of limitations extinguishes the right as well as the
remedy; if the statute has run, the cause of action no longer
exists." Schafer, 78 Wis. 2d at 134. "The limitation of
actions is a right as well as a remedy, extinguishing the right
on one side and creating a right on the other, which is as of
high dignity as regards judicial remedies as any other right and
it is a right which enjoys constitutional protection." Maryland
Cas. Co. v. Beleznay, 245 Wis. 390, 393, 14 N.W.2d 177 (1944)
(citations omitted).
¶103 Second, an interpretation that Wis. Stat. § 893.40 is
inapplicable to motions, orders to show cause, and other
proceedings not requiring a "complaint" would mean, in effect,
that there would be no time period for a party to bring certain
kinds of actions upon a judgment. This would effectively remove
the limitation, creating tremendous uncertainty, because it
would be replaced with the far-less-certain doctrine of laches.
See Schafer, 78 Wis. 2d at 132.
¶104 It is hard to imagine that this court would purposely
gut a longstanding statute of limitations at the very time it
was speaking of the constitutional significance of such statutes
in court decisions.
¶105 Third, an interpretation that Wis. Stat. § 893.40 is
inapplicable to motions, orders to show cause, and other
17
No. 2011AP1240.dtp
proceedings not requiring a complaint could have serious adverse
consequences outside family law. Masters argues that the
principle stated in the Lueck decision would leave many post-
judgment collection actions without any time limitation to
commencement. He points to earnings garnishments and executions
as examples. In the absence of a specific statute limiting a
particular enforcement mechanism upon a judgment, this concern
is well founded.
¶106 Fourth, the legislature concluded that Wis. Stat.
§ 893.40 applied to a broad array of "proceedings" when it
created Wis. Stat. § 893.415 after the Hamilton decision.
Subsection (1) defines "action" in the section to mean "any
proceeding brought before a court, whether commenced by a
petition, motion, order to show cause, or other pleading." This
broad definition would be superfluous if § 893.40 were
inapplicable to anything other than a proceeding commenced with
a summons and complaint.
¶107 There are various ways to interpret Wis. Stat.
§§ 893.40 and 893.02. The latter section provides a surefire
way of acting "upon a judgment" before a statute of limitations
or a statute of repose has run. See Lak v. Richardson-Merrell,
Inc., 100 Wis. 2d 641, 649, 302 N.W.2d 483 (1981). Whether the
wording of § 893.02 was expected or intended to curtail what an
"action" was is much more speculative. The enactment of
§ 893.40, on the other hand, signified a clear objective: a
statute of repose eliminated issues about accrual because the
statute begins to run at a definite time, based on an event, not
18
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an indefinite time based upon the accrual of a right. The
majority opinion has the effect of disregarding the
legislature's clearly stated objective.
III
¶108 Justice Ziegler's concurrence presents a different
problem. Justice Ziegler writes that some family court
judgments and orders may necessitate jurisdiction for longer
than 20 years, such as the payment of retirement benefits,
maintenance issues, or life insurance proceeds. In my view,
courts will employ reason and common sense in dealing with
questions about the enforcement of judgments.
¶109 For instance, some judgments, like the Johnson/Masters
divorce judgment, require some additional step or steps to
secure a right. Filing a QDRO protects the rights of the
"alternate payee" with respect to both public and private
retirement benefits. Enforcing a properly filed QDRO is not
barred by Wis. Stat. § 893.40.
¶110 Other judgments are not only final but also complete,
in the sense that no additional steps are required by a party
seeking to enforce a right. These in essence are continuing
judgments.
¶111 For instance, a judgment that requires an insured to
pay premiums and designate a specific beneficiary needs no
additional action by the beneficiary. The beneficiary has a
property right and may enforce that right against the insured or
the insured's estate when the insured violates that right. See
Richards v. Richards, 58 Wis. 2d 290, 298–99, 206 N.W.2d 13419
No. 2011AP1240.dtp
(1973). In other words, the insured may not change the
beneficiary more than 20 years after the entry of the judgment
and expect that he or she has not created a new cause of action
for the original beneficiary. Glassner v. DOR, 115 Wis. 2d 168,
181, 340 N.W.2d 223 (Ct. App. 1983).
¶112 As another example, in Ashby v. Ashby, 174 Wis. 549,
183 N.W. 965 (1921), this court said that alimony was a
"continuing judgment, always subject to modification by the
court during the life of the parties," and thus a statute of
limitations did not apply. Ashby, 174 Wis. at 554.6 The
suggestion that a party could simply stop paying alimony or
maintenance after 20 years, as a result of Wis. Stat. § 893.40,
is not reasonable or realistic because of the continuing nature
of the obligation to pay. Cf. Rintelman v. Rintelman, 118
Wis. 2d 587, 348 N.W.2d 498 (1984); Estate of Barnes, 170
Wis. 2d 1, 12–13, 486 N.W.2d 575 (Ct. App. 1992).
¶113 A party can protect its interests in a judgment by
timely action and by careful wording of the judgment. Wisconsin
Stat. § 893.40 is designed to discourage people from sleeping on
their rights. The statute is not likely to be used against
people who are wide awake and conscious of the need to assert
their interests.
¶114 For the foregoing reasons, I respectfully dissent.
6
However, because Mrs. Ashby waited so long to seek back
payments for alimony, she could not get everything that her ex-
husband owed her. Ashby v. Ashby, 174 Wis. 549, 555–56, 183
N.W. 965 (1921). Fully enforcing the judgment after 44 years
was not fair to the ex-husband, since he no longer had any way
to earn money. Id.20
No. 2011AP1240.dtp
21
No. 2011AP1240.dtp
1