Kathy Schwab v. Paul Schwab ( 2021 )

2021 WI 67SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1200
COMPLETE TITLE: In re the marriage of:
Kathy Schwab, n/k/a Siech,
Petitioner-Respondent-Petitioner,
v.
Paul Schwab,
Respondent-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 392 Wis. 2d 660,946 N.W.2d 241PDC No:2020 WI App 40 - Published
OPINION FILED: June 22, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 15, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Michael J. Dwyer
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, ROGGENSACK, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which REBECCA
GRASSL BRADLEY and HAGEDORN, JJ., joined. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-respondent-petitioner, there were briefs
filed by Carlton D. Stansbury, Colin A. Drayton, and Burbach &
Stansbury S.C., Milwaukee. Oral argument was presented by
Carlton D. Stansbury.
For the respondent-appellant, there was a brief filed by
Andrew J. Laufers, Laura Stack, and Cordell Law, LLP. Edina,
Minnesota and Milwaukee. Oral argument was presented by Andrew
J. Laufers.
2021 WI 67NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1200
(L.C. No. 1991FA915107)
STATE OF WISCONSIN : IN SUPREME COURT
In re the marriage of:
Kathy Schwab, n/k/a Siech,
FILED
Petitioner-Respondent-Petitioner, JUN 22, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Paul Schwab,
Respondent-Appellant.
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, ROGGENSACK, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which REBECCA
GRASSL BRADLEY and HAGEDORN, JJ., joined. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA FRANK DALLET, J. Kathy Siech and Paul Schwab
divorced in 1992. As part of the divorce judgment, the circuit
court incorporated their marital settlement agreement, in which
Paul promised to pay Kathy half of his pension "when and if"
that benefit first became available to him. But when Paul first
No. 2019AP1200
received his pension nearly 21 years later, he refused to pay
Kathy her share. Kathy sought to judicially enforce their
agreement via a contempt order, to which Paul responded that her
action was barred by a 20-year statute of repose, Wis. Stat.
§ 893.40 (2019–20).1 The circuit court disagreed and concluded
that, under Johnson v. Masters, 2013 WI 43, 347 Wis. 2d 238, 830
N.W.2d 647, it had the authority to order Paul to comply with
the settlement agreement.2 The court of appeals reversed that
order, concluding that § 893.40 barred Kathy's action.3 We agree
with the circuit court that Johnson v. Masters is instructive.
Accordingly, § 893.40 does not bar Kathy's action because it was
impossible for Paul to perform on his promise——and therefore for
Kathy to enforce that promise——until after the statutory period
of repose had run. We therefore reverse the court of appeals'
decision and reinstate the circuit court's order.
I
¶2 In February 1992, the circuit court granted Kathy and
Paul, then both 39 years old, a divorce judgment. The judgment
incorporated Kathy and Paul's marital settlement agreement,
which detailed how they would divide their marital property and
stated that the circuit court would retain "continuing
1 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2 The Honorable Michael J. Dwyer of the Milwaukee County
Circuit Court presided.
3 Schwab v. Schwab, 2020 WI App 40, 392 Wis. 2d 660, 946
N.W.2d 241.
2
No. 2019AP1200
jurisdiction . . . to make orders enforcing" that division.
Under one provision, Paul agreed to provide Kathy half his Air
National Guard pension "when and if" it became available to him.
¶3 Paul's pension first became available to him in
February 2013 when he turned 60 years old, roughly 21 years
after the divorce judgment was entered. Although he received
regular pension disbursements, Paul never paid Kathy her share.
In 2017, Kathy requested both her share of past payments and
that Paul sign a military retired pay order per 10 U.S.C. § 1408so that her share of Paul's future disbursements would be sent
directly to her.4 Paul refused to pay her or to sign the pay
order.
¶4 Kathy then initiated contempt proceedings. Paul
argued that Kathy's contempt action was untimely under Wis.
Stat. § 893.40. That provision, a statute of repose, bars any
"action upon a judgment or decree of a court" brought more
than "20 years after the judgment . . . is entered." § 893.40.
Paul reasoned that because the 1992 judgment was entered more
than 20 years earlier, Kathy's contempt action was barred by
§ 893.40.
¶5 The circuit court disagreed, concluding that under our
decision in Johnson v. Masters, 347 Wis. 2d 238, it had the
equitable authority to enforce a pension-division obligation
4 Pursuant to 10 U.S.C. § 1408, once served with a court
order dividing a military pension, the secretary of the
applicable armed-forces branch shall directly pay a former
spouse his or her interest in the pension.
3
No. 2019AP1200
extending beyond 20 years, § 893.40 notwithstanding. The
circuit court ordered Paul to pay Kathy her share of pension
payments and to sign the military retired pay order within 30
days or it would find him in contempt of court. It stayed
enforcement of that order pending Paul's appeal.
¶6 The court of appeals reversed, determining that
§ 893.40 barred Kathy's contempt action. The court of appeals
distinguished Johnson on factual grounds and dismissed the
equitable-authority rationale on which the circuit court relied
because that reasoning did not garner a majority. We granted
Kathy's petition for review.
II
¶7 We review whether Wis. Stat. § 893.40 bars the
enforcement of a marital property division that was impossible
until after the statutory period of repose had run. Resolving
this question requires us to interpret the language of both the
statute and the parties' agreement, matters which we review de
novo. See Jones v. Est. of Jones, 2002 WI 61, ¶9, 253
Wis. 2d 158, 646 N.W.2d 280.
A
¶8 We resolved a similar question in Johnson v.
Masters, 347 Wis. 2d 238. There, we held that Wis. Stat.
§ 893.40 did not bar an action to enforce a divorce judgment's
pension division brought more than 20 years after the judgment
was entered, because it was impossible to comply with the
judgment for the first nine years. Johnson and Masters' divorce
judgment, entered in 1989, required that Johnson be awarded half
4
No. 2019AP1200
of Masters' pension and that a "QDRO [qualified domestic
relations order] shall be submitted to secure these rights."
Id., ¶7. The parties could not immediately submit the required
QDRO, however, because from the time of their divorce until the
law was amended in 1998, Wisconsin law prohibited the assignment
of state pension benefits via a QRDO. Id., ¶6. Upon learning
in 2010 that Masters had retired a year earlier, Johnson filed a
QDRO. When Masters refused to sign the required authorization,
Johnson filed a post-judgment motion requesting that Masters
release his pension information. Id., ¶9. Masters argued that
Johnson's motion, filed 21 years after entry of the divorce
judgment, was untimely under § 893.40. Id., ¶10. The circuit
court agreed. Id., ¶11.
¶9 We reversed the circuit court's order, determining
that § 893.40 did not bar Johnson's motion because then-existing
law made it impossible for the parties to execute the required
QDRO for the first nine years after the divorce judgment.
Id., ¶¶19, 26. Johnson turned on our duty to interpret statutes
to avoid "unreasonable results" and to "constru[e] each in a
manner that serves its purpose." Id., ¶¶19-26 (citing State ex
rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶¶45–46, 271
Wis. 2d 633, 681 N.W.2d 110 and State v. Szulczewski, 216
Wis. 2d 495, 503, 574 N.W.2d 660 (1998)). Citing several prior
decisions in which we rejected interpretations that would
produce results contrary to both the statute's purpose and
common sense, we concluded that it would be similarly illogical
for § 893.40 to penalize Johnson for failing to do something not
5
No. 2019AP1200
possible. Id., ¶¶20-21; see also Teschendorf v. State Farm Ins.
Cos., 2006 WI 89, ¶¶30-43, 293 Wis. 2d 123, 717 N.W.2d 258 (lead
opinion) (rejecting a literal interpretation that both
"produce[d] absurd results and defie[d] common sense").5 We
further recognized that this court elsewhere accommodates
ongoing obligations in family law judgments that extend
beyond 20 years. Johnson, 347 Wis. 2d 238, ¶¶22-24 (explaining
that under SCR 72.01(11)-(14), records for family law matters
must be retained for 30 years; and that Wis. Stat. § 767.01authorizes courts to do "all acts and things necessary and
proper" in family law actions "to carry their orders and
judgments into execution"). Therefore, we held that § 893.40
did not bar Johnson's action because the 20-year clock for the
statute of repose did not start running until 1998, when it
first became possible to divide the pension according to the
judgment. Id., ¶26.
¶10 Those same principles apply here. At the time Kathy
and Paul's divorce judgment was entered in 1992, Paul's pension
benefits would not be available to him until he turned 60 years
old in February 2013, 21 years later. See 10 U.S.C.
5As further support for the principle that we should avoid
literal interpretations that lead to unreasonable results,
Johnson also cited Public Citizen v. U.S. Department of
Justice, 491 U.S. 440, 453-64 (1989), Green v. Bock Laundry
Mach. Co., 490 U.S. 504, 527-30, (1989) (Scalia, J.,
concurring), and Robbins v. Chronister, 402 F.3d 1047, 1050
(10th Cir. 2005), the last of which collected other United
States Supreme Court decisions applying the "absurdity
exception." Johnson v. Masters, 2013 WI 43, ¶20 n.12, 347
Wis. 2d 238, 830 N.W.2d 647.
6
No. 2019AP1200
§ 1331(a)(1) (1988) (requiring that a service member in Paul's
situation be "at least 60 years of age" before becoming entitled
to retired pay benefits). Because the divorce judgment required
Paul to divide his pension only "when and if" the pension became
"available" to him, that division was impossible prior to
February 2013. The "when and if" condition also made it
impossible for Kathy to judicially enforce the agreement during
those first 21 years because that action would not be ripe until
Paul's pension became available. See Tooley v. O'Connell, 77
Wis. 2d 422, 439, 253 N.W.2d 335 (1977). It would be
unreasonable to interpret § 893.40 as barring enforcement now of
a marital property division that was impossible to enforce
during the 20 years prior.6 See State v. Wachsmuth, 73
Wis. 2d 318, 326, 243 N.W.2d 410 (1976) (avoiding an
"unreasonable" interpretation that would require someone to do
the "impossible"); Hines v. Resnick, 2011 WI App 163, ¶16, 338
Wis. 2d 190, 807 N.W.2d 687 (same).
¶11 That result would also be unreasonable because it
would render Paul's promised pension division illusory and deny
6While Kathy sought to enforce the divorce judgment via a
contempt action, she could have alternatively enforced the
marital settlement agreement approved by and incorporated into
that judgment via a breach of contract action. See Miner v.
Miner, 10 Wis. 2d 438, 443-44, 103 N.W.2d 4 (1960) (explaining
that provisions in a marital settlement agreement approved by
and incorporated, rather than "merged," into the divorce
judgment and that are not modifiable by the court retain their
contractual nature), abrogated on other grounds by Rohde-
Giovanni v. Baumgart, 2004 WI 27, 269 Wis. 2d 598, 676
N.W.2d 452; see also 24A Am. Jur. 2d Divorce and Separation
§ 1010; 27B C.J.S. Divorce § 717.
7
No. 2019AP1200
Kathy the benefit she bargained for in the marital settlement
agreement. When Paul promised to pay Kathy half his pension,
the earliest he could do so was one year after the statute of
repose would have run. See 10 U.S.C. § 1331(a)(1) (1988).
Under Paul's reading of § 893.40, then, he made no real promise
to pay Kathy half his pension. Rather, at Paul's sole "will and
discretion," he could pay Kathy her share or not and be free of
liability either way under the statute of repose. See
Runzheimer Int'l, Ltd. v. Friedlen, 2015 WI 45, ¶45, 362
Wis. 2d 100, 862 N.W.2d 879 (quoted source omitted). Such a
"promise" is illusory.
¶12 An illusory promise in a martial settlement agreement
disturbs the balance of mutual obligations. Paul's promise to
pay Kathy half his pension's value "when" it became available to
him was critical to the rest of their agreement. See Washington
v. Washington, 2000 WI 47, ¶30, 234 Wis. 2d 689, 611 N.W.2d 261(explaining that a pension is one of a marriage's "most
significant assets"). Had Kathy known that Paul's "promise" was
illusory and unenforceable, she likely would have negotiated for
a different distribution of the other marital assets. Thus,
barring Kathy's enforcement action under the statute of repose
would deny her the specific benefit for which she bargained.
Paul, on the other hand, would keep the benefit of his bargain.
See Johnson, 347 Wis. 2d 238, ¶¶24-25 (explaining that a former
spouse "is in a poor position" to object to a property division
to which that spouse agreed and "has obtained a benefit from
it") (quoting Bliwas v. Bliwas, 47 Wis. 2d 635, 639-40, 178
8
No. 2019AP1200
N.W.2d 35 (1970)). Such an inequitable and unreasonable result
runs contrary to our duty to give effect to the parties' express
agreement that we presume was intended to be enforceable. See
Variance, Inc. v. Losinske, 71 Wis. 2d 31, 36–37, 237 N.W.2d 22(1976) (instructing courts to assume parties intend to enter
enforceable agreements and construe them accordingly);
Washington, 234 Wis. 2d 689, ¶17 (holding that divorce judgments
be construed in the same way).
¶13 Our conclusion also comports with the purpose of
§ 893.40. The purpose of a statute of repose is to provide
defendants relief, or "repose," from the uncertainty of
potential liability arising from some long-ago act by
extinguishing all causes of action once the statutory period has
lapsed. See Kohn v. Darlington Cmty. Schs., 2005 WI 99, ¶62,
283 Wis. 2d 1, 698 N.W.2d 794. At its core, a statute of repose
seeks to ameliorate the possibility that parties and courts will
be stuck "litigating claims in which the truth may be obfuscated
by death or disappearance of key witnesses, loss of evidence,
9
No. 2019AP1200
and faded memories."7 Aicher ex rel. LaBarge v. Wis. Patients
Comp. Fund, 2000 WI 98, ¶27, 237 Wis. 2d 99, 613 N.W.2d 849.
¶14 None of those concerns exists here. No uncertainty
hangs over Paul. He voluntarily promised to pay Kathy "when and
if" his pension became available to him. Although that event
was not possible until 21 years later, once it occurred, his
liability to Kathy was certain. As for stale evidence concerns,
a divorce judgment incorporating a settlement agreement uniquely
obviates those concerns as the only evidence necessary to
litigate that liability is the agreement itself. And the
circuit court is required to retain such agreements for at
least "30 years after entry of judgment of divorce." See
SCR 72.01(11). Therefore, barring Kathy's enforcement action
under § 893.40 would not advance the statute's purpose.
B
¶15 Finally, we are unpersuaded by Paul's argument that,
because Kathy submitted no military retired pay order to divide
Paul's pension, she slept on her rights and the statue of repose
bars her enforcement action. To begin with, the existence of
7 A statute of repose is unlike a statute of limitations in
that a statute of limitations generally starts with an event
uncertain, such as the occurrence or discovery of an injury,
while a statute of repose sets an absolute outside date
triggered by an event certain, such as the filing of a judgment.
See Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, ¶28, 245
Wis. 2d 1, 628 N.W.2d 893. In that respect, a statute of
limitation encourages plaintiffs not to sleep on their rights
once they accrue; a statute of repose, on the other hand, is
indifferent to the particular plaintiff's timeliness in bringing
the action. See Mueller v. TL90108, LLC, 2020 WI 7, ¶16, 390
Wis. 2d 34, 938 N.W.2d 566.
10
No. 2019AP1200
other non-judicial remedies provides no insight into how we
should interpret a statute concerned with judicial actions.
Wisconsin Stat. § 893.40 addresses only an "action upon a
judgment . . . of a court," a judicial remedy; it mentions
nothing about the availability of administrative or self-help
remedies. Moreover, nowhere does Kathy and Paul's agreement
require either party to submit a military retired pay order, a
notable contrast with the agreement in Johnson. Cf.
Johnson, 347 Wis. 2d 238, ¶7 (noting that the divorce agreement
expressly required that a QDRO "be submitted to secure
[Johnson's] rights" in Masters' pension). To the extent Paul
desired that administrative convenience, he was equally
responsible for filing the pay order, especially considering
that he had better access to the relevant information regarding
his service. Regardless, the agreement reserved for Paul the
flexibility to fulfill his obligation in other ways, including
by simply writing Kathy a check after he received each
disbursement.8 Thus, whether the parties submitted a military
retired pay order is irrelevant to interpreting a statute of
repose or applying it to their agreement.
III
¶16 Barring Kathy's enforcement action under Wis. Stat.
§ 893.40 would produce an unreasonable result that would not
8 Indeed, because the agreement is silent as to submitting a
military retired pay order, Kathy may have been unable to compel
Paul to sign or authorize such an order even within 20 years
after the judgment was entered.
11
No. 2019AP1200
advance the statute's purpose. Accordingly, following our
interpretation of § 893.40 in Johnson v. Masters, we conclude
that § 893.40 poses no bar to Kathy's action.9 Therefore, we
reverse the decision of the court of appeals and reinstate the
circuit court's order enforcing Paul's obligation to divide his
pension.
By the Court.—The decision of the court of appeals is
reversed.
9 Because we decide this case under Johnson, we do not reach
Kathy's argument that under Hamilton v. Hamilton, 2003 WI 50,
¶47, 261 Wis. 2d 458, 661 N.W.2d 832, the judiciary's inherent
contempt power is unaffected by statutes of repose. See Md.
Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300,
786 N.W.2d 15.
12
No. 2019AP1200.akz
¶17 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting).
Today, the majority sheds its judicial robes and takes its seat
in the legislature. When we interpret the plain language of
Wis. Stat. § 893.40, it is clear that Kathy Schwab's contempt
action is barred. Instead of following the plain language of
the statute, the majority calls into question every statute of
repose by placing its policy choices above the plain text of the
statute. However, our role in the judiciary is to interpret the
law, not create it. Because I would not engage in judicial
activism or legislate from the bench as the majority does in
this case, I respectfully dissent.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶18 On February 25, 1992, Kathy and Paul Schwab entered
into a Marital Settlement Agreement (the "Agreement") as part of
their divorce proceedings. That Agreement is the focus of this
case. The Agreement awarded Kathy "50% of the current pretax
value of [Paul's] Air National Guard pension, [then] non-vested
when and if it is available to [Paul]." The Agreement also
awarded Paul "his non vested pension from Air National Guard
subject to an order to pay one-half the present non vested value
to [Kathy] when and if it is available to [Paul]."
¶19 To ensure Kathy and Paul fulfilled the terms of the
Agreement, the Agreement stated that "[e]ach party recognizes
that the terms of this [Agreement] will require each to
cooperate in signing further documents to make the terms a
reality and each party agrees to cooperate in signing such
documents." Consequently, both Kathy and Paul were aware that
1
No. 2019AP1200.akz
they may have to sign further documents to effectuate their
rights under the Agreement.
¶20 After a total of 35 years in the Air National Guard,
Paul retired from service in November 2008. Paul applied for
his Air National Guard pension in February 2013 when he was 60
years old——the earliest he was able to receive his pension. See
10 U.S.C. § 12731. Neither Kathy nor Paul took steps to secure
Kathy's allocation of Paul's pension. Paul never paid Kathy any
portion of his pension.
¶21 In November 2017, Kathy filed an affidavit to show
cause for contempt for Paul's failure to pay her half of his Air
National Guard pension. The circuit court issued an order to
show cause in December 2017. Paul moved to dismiss the order to
show cause for contempt.
¶22 After an evidentiary hearing, the circuit court
ordered that Paul must sign an order to divide his pension, but
did not find him in contempt. Rather, the court stated that it
would find him in contempt if he refused to sign the order
dividing the pension within 30 days of the court's order.
¶23 Paul appealed, and the court of appeals reversed,
holding "that [Kathy's] contempt motion is barred by the twenty-
year time constraint set forth in Wis. Stat. § 893.40." Schwab
v. Schwab, 2020 WI App 40, ¶23, 392 Wis. 2d 660, 946 N.W.2d 241.
Kathy petitioned this court for review, which we granted.
II. ANALYSIS
¶24 Unlike the majority, I begin with the plain language
of Wis. Stat. § 893.40 to determine whether it bars Kathy's
2
No. 2019AP1200.akz
contempt action. Next, I analyze Johnson v. Masters, 2013
WI 43, 347 Wis. 2d 238, 830 N.W.2d 647, explaining that it is
inapplicable to Kathy's case. Finally, I address the majority's
evisceration of statutes of repose and our precedent.
A. Wisconsin Stat. § 893.40 Bars Kathy's Contempt Action.
¶25 Kathy's contempt action is barred by Wis. Stat.
§ 893.40 because the legislature has made no exception to the
time bar in the statute that applies to Kathy's contempt action.
To understand the application of § 893.40, we must interpret the
plain language of the statute. "[W]e have repeatedly held that
statutory interpretation 'begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry.'" State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted
source omitted).
¶26 Wisconsin Stat. § 893.40 provides 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." The nature of the
time constraints set forth in § 893.40 render it a statute of
repose, in that it "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.
¶27 "Statutes of limitation and statutes of repose
represent legislative policy decisions that dictate when the
courthouse doors close for particular litigants." Aicher ex
3
No. 2019AP1200.akz
rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶27, 237
Wis. 2d 99, 613 N.W.2d 849. Whereas "[a] statute of limitations
usually establishes the time frame within which a claim must be
initiated after a cause of action actually accrues," a statute
of repose "limits the time period within which an action may be
brought based on the date of the act or omission." Id., ¶26.
"Statutes of repose thus bear no relation to the accrual of a
cause of action and can toll before an injury is discovered or
even before an injury has occurred." Id.
¶28 Statutes of repose inherently create unfair
situations. As we have previously explained, "[c]ourts may
shudder at the unfairness visited by statutes of repose." Id.,
¶45. However, despite the unfairness created, "statutes of
repose inherently are policy considerations better left to the
legislative branch of government." Id., ¶54. Thus, when the
legislature expressly chooses not to recognize a claim after a
certain period, "[w]e cannot preserve a right to obtain justice"
because "none in fact exists." Id. "Were we to extend a right
to remedy outside the limits [the legislature set], we
effectively would eviscerate the ability of the legislature to
enact any statute of repose." Id.
¶29 To alleviate the unfairness that Wis. Stat. § 893.40creates, the legislature has enacted two exceptions to the
statute of repose. See § 893.40. The first exception is for
deficiency judgments in mortgage foreclosures, set forth in Wis.
Stat. § 846.04(2) and (3). See § 893.40. The second exception
is for actions relating to child or family support, set forth in
4
No. 2019AP1200.akz
Wis. Stat. § 893.415.1 See id. Given that the legislature has
enacted these two exceptions to the statute, we cannot now
create new exceptions to § 893.40. See State v. Delaney,
2003 WI 9, ¶22, 259 Wis. 2d 77, 658 N.W.2d 416 ("Under the well-
established canon of expressio unius est exclusio alterius (the
expression of one thing excludes another), where the legislature
specifically enumerates certain exceptions to a statute, we
conclude, based on that rule, that the legislature intended to
exclude any other exception.").
¶30 Applying this understanding of Wis. Stat. § 893.40 to
this case, it is clear that Kathy's contempt action is barred.
In this case, the act that triggered the statute of repose was
the entry of the judgment. Hamilton, 261 Wis. 2d 458, ¶29.
Thus, when the circuit court entered the judgment of divorce on
March 17, 1992, the 20-year time clock began to run. Kathy did
not file her contempt action by March 17, 2012. Rather, she
filed her contempt action in November 2017. Moreover, Kathy's
action is neither an action on a deficiency judgment in a
1 The legislature added the second exception——for actions
relating to child or family support——in response to our decision
in Hamilton v. Hamilton, 2003 WI 50, 261 Wis. 2d 458, 661
N.W.2d 832. See 2003 Wis. Act 287. In Hamilton, we
specifically held that "Wis. Stat. § 893.40 governs the time
within which a party may bring an independent action to collect
child support arrearages that have amassed after July 1, 1980."
Hamilton, 261 Wis. 2d 458, ¶50. The legislature clearly
abrogated this holding when it enacted 2003 Wis. Act 287, which
created a specific exception to section 893.40 for actions
relating to child or family support. Accordingly, our precedent
reflects our deference to the legislature in making decisions
regarding both when a statute of repose applies and specific
exceptions to a statute of repose.
5
No. 2019AP1200.akz
mortgage foreclosure nor an action relating to child or family
support; it is for contempt for failing to comply with a
property division in a Marital Settlement Agreement.
Consequently, Kathy's action is barred under the plain language
of the statute and no exception applies.
B. Johnson v. Masters Does Not Demand a Different Result.
¶31 To avoid the plain language of the statute, the
majority relies upon Johnson v. Masters, 347 Wis. 2d 238, to
conclude that it would be unreasonable to apply Wis. Stat.
§ 893.40 to bar Kathy's contempt action. Majority op., ¶10.
However, this misinterprets our holding in Johnson. When
properly interpreted, Johnson does not prevent applying § 893.40
in this case.
¶32 In Johnson, we addressed a unique factual scenario
when the petitioner was legally incapable of filing a qualified
domestic relations order (QDRO). In that case, the Marital
Settlement Agreement between Johnson and Masters provided that
"[t]he Petitioner shall be awarded [half] of the value of the
Respondent's Wisconsin Retirement System benefits accrued from
the date of marriage thr[ough] the date of divorce. A QDRO
shall be submitted to secure these rights." Johnson, 347
Wis. 2d 238, ¶7. At the time of the divorce in 1989, Johnson
was unable to file a QDRO under state law. Id., ¶6. This
changed in 1999 when the legislature adopted 1997 Wis. Act 125,
which permitted the Wisconsin Retirement System to accept QDROs
related to certain divorces, including Johnson and Masters'
divorce. Id. More than 20 years after the divorce judgment,
6
No. 2019AP1200.akz
Johnson filed an action upon the judgment, requesting an order
to require Masters to release his pension information. Id.,
¶10. The circuit court applied Wis. Stat. § 893.40 and barred
Johnson's action, which was eventually appealed to this court.
¶33 In our review, we stated that "the application of Wis.
Stat. § 893.40 in certain circumstances may produce results that
'def[y] both common sense and the fundamental purpose' of the
statute." Id., ¶21. "The judgment here has the flaw, as to the
pension award provision, that under the statute then in effect
the pension was not assignable." Id. The "dispositive fact" in
that case was "that the statute operated to prohibit pension
interests from being assigned at the time the judgment was
entered." Id., ¶22 (emphasis added). Thus, because the law
prohibited the assignment, application of Wis. Stat. § 893.40would be unreasonable.
¶34 The present divorce between Kathy and Paul is
remarkably different from the divorce in Johnson because, at the
time of the divorce, the law permitted an assignment of Paul's
Air National Guard pension to Kathy, and Kathy could secure her
rights in his pension.
¶35 Paul's Air National Guard pension is governed by
federal law. To divide a military retiree's retired pay, a
military retired order must be sought pursuant to 10 U.S.C.
§ 1408.2 Specifically, to secure an interest in the military
retired pay, a copy of the final divorce decree must be served
This statute was enacted in 1982, and was in effect when
2
Paul and Kathy entered the Agreement in 1992. Pub. L. 97-252,
Title X, § 1002(a).
7
No. 2019AP1200.akz
on the appropriate agent for the Secretary of Defense concerned
with court orders. 10 U.S.C. § 1408(b)(1)(A). That court order
can also be served prior to the retirement of the servicemember.
See 10 U.S.C. § 1408(a)(4)(B). When a servicemember is not
receiving payments on the effective service date of the court
order, the Secretary of Defense makes payments not later than 90
days after the date on which the servicemember first becomes
entitled to receive retired pay. 10 U.S.C. § 1408(d)(1).
¶36 Accordingly, federal law permitted Paul to assign
Kathy her interest in his Air National Guard pension, and Kathy
could have secured that assignment. During the 20 years
following their divorce, Kathy could have sought a military pay
order pursuant to 10 U.S.C. § 1408, and served a copy of her
divorce decree on the appropriate agent of the Secretary of
Defense. If Paul refused to sign the military pay order, Kathy
then could have filed a contempt motion pursuant to the
provision of the Agreement that provides that "each party agrees
to cooperate in signing such documents." After receiving the
military pay order, Kathy would have received the portion of
Paul's Air National Guard pension that she was given as part of
the Agreement.
¶37 Because Kathy did not face a legal barrier to the
assignment of her interest, Johnson is inapplicable to Kathy.
Moreover, the law specifically included a system by which she
could secure her rights in Paul's pension. Rather than follow
that system, Kathy delayed and fell afoul of Wis. Stat.
§ 893.40. Consequently, Kathy's contempt action is now barred,
8
No. 2019AP1200.akz
and neither Johnson nor the statutory exceptions can save her
claim.
C. The Majority Reinvents Statutes of Repose to
Satisfy Its Preferred Policy Outcomes.
¶38 Rather than follow this straightforward analysis, the
majority "eviscerate[s] the ability of the legislature to enact
any statute of repose." Aicher, 237 Wis. 2d 99, ¶54. The
majority never once grapples with the language of the statute.
Instead, the majority resorts to the general purposes of
statutes of repose to determine that the text of the statute
could not possibly mean what it says. See majority op.,
¶¶13-14. But the majority's reliance on purpose cannot
contravene the plain text of the statute. See Hamilton, 261
Wis. 2d 458, ¶45 (noting that the court's holding ran "counter
to the desire previously expressed by the legislature and
courts" but still concluding that the statute of repose
applied).
¶39 Because the majority's logic lacks any sort of
limiting principle, all statutes of repose must fall because
statutes of repose may often cause a result that the majority
deems "unreasonable." For example, under a different statute of
repose, Wis. Stat. § 893.35, a plaintiff is barred from bringing
a claim for replevin after six years from when the conversion
occurs, even if the plaintiff learned of the conversion ten
years later. See, e.g., Mueller v. TL90108, LLC, 2020 WI 7, 390
Wis. 2d 34, 938 N.W.2d 566. Applying the majority's conclusion,
it is clearly unreasonable for a plaintiff who never learns of
the conversion during the statute of repose period to bring a
9
No. 2019AP1200.akz
replevin action. Consequently, the majority would purport to
hold, the statute of repose cannot apply to such a plaintiff.
However, this is exactly what happens in statute of repose cases
"[b]ecause, by their nature, statutes of repose can sometimes
arbitrarily extinguish a prospective plaintiff's cause of
action," even before the plaintiff learns of the claim. Aicher,
237 Wis. 2d 99, ¶32.
¶40 As we cut away the flowery language and demystify the
majority's argument, the truth reveals itself: the majority
simply disagrees with the policy decision of the legislature.3
Such a power grab runs afoul of our role as judges to declare
the law, not create it. See Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803). Our precedent is clear: "statutes of
repose inherently are policy considerations better left to the
legislative branch of government." Aicher, 237 Wis. 2d 99, ¶54.
3 To be sure, I recognize that the policy underlying
application of Wis. Stat. § 893.40 to certain family court
matters may require attention from the legislature, as I did in
Johnson v. Masters, 2013 WI 43, ¶¶39-40, 347 Wis. 2d 238, 830
N.W.2d 647 (Ziegler, J., concurring). However, it is not our
role to make such policy decisions——that is left to the
legislature.
10
No. 2019AP1200.akz
Accordingly, we must respect the choice the legislature made
when it enacted Wis. Stat. § 893.40 and bar Kathy's action.4
III. CONCLUSION
¶41 The majority sheds its judicial robes and takes its
seat in the legislature. When we interpret the plain language
of Wis. Stat. § 893.40, it is clear that Kathy Schwab's contempt
action is barred. Instead of following the plain language of
the statute, the majority calls into question every statute of
repose, placing its policy choices above the plain text of the
statute. However, our role in the judiciary is to interpret the
law, not create it. I would not engage in judicial activism or
legislating from the bench as the majority does in this case.
¶42 For the foregoing reasons, I respectfully dissent.
¶43 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and BRIAN HAGEDORN join this dissent.
4 The majority also creates whole-cloth a new argument that
neither party raised: that Paul's promise of his pension was
illusory. Despite the majority's smoke and mirrors, Paul's
promise was not illusory. The majority asserts that it was at
Paul's "will and discretion" whether he would pay Kathy, but
this is simply untrue. Majority op., ¶11. Pursuant to the
Agreement, Paul was obligated to pay Kathy, and Kathy could
secure her rights to receive payment by filing a military pay
order pursuant to 10 U.S.C. § 1408. Accordingly, the Agreement
was not subject to Paul's "will and discretion." Rather, it was
subject to Kathy exercising her rights, which she failed to do.
11
No. 2019AP1200.rgb
¶44 REBECCA GRASSL BRADLEY, J. (dissenting). I join
Chief Justice Annette Ziegler's dissent in full. I write
separately because the majority does not appreciate the
distinction between a contract and a court judgment. At the
time Paul Schwab reneged on his agreement to pay half of his
pension to Kathy Siech, her action to enforce the divorce
judgment was time-barred, but a contract claim was not. The law
would have afforded Siech the fair and equitable result the
majority gives her, had she brought a viable claim. Because she
failed to do so, the majority crafts what it considers to be a
"reasonable" result but not one based in the law.1
1 The majority repeatedly suggests the court bears some
obligation to disregard the statute of repose whenever it leads
to "unreasonable" results. If courts ignored the law every time
they deem a result unreasonable, the rule of law would be
supplanted by the rule of judges. In support of this
disturbingly subjective standard, the majority invokes the
absurdity doctrine. The majority abuses the canon. The
absurdity doctrine applies only to textual errors that may be
fixed "by changing or supplying a particular word or phrase
whose inclusion or omission was obviously a technical or
ministerial error." Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 238 (2012); see State ex
rel. Associated Indem. Corp. v. Mortensen, 224 Wis. 398, 402,
272 N.W. 457 (1937) (stating that the absurdity canon does
"not . . . justify a court in amending the statute or giving it
a meaning to which its language is not susceptible merely to
avoid what the court believes are inequitable or unwise
results"). Just because a court dislikes the outcome does not
mean it is absurd. Mellen Lumber Co. v. Indus. Comm'n of
Wisconsin, 154 Wis. 114, 119, 142 N.W. 187 (1913) ("The statute
in question may be inequitable, but this does not make it
absurd."). As Chief Justice Ziegler's dissent explains,
statutes of repose often extinguish claims before they even
accrue, which may be considered unfair but it certainly isn't
"absurd." Nor does Johnson v. Masters, 2013 WI 43, 347
Wis. 2d 238, 830 N.W.2d 647, support setting aside the statute
of repose, as Chief Justice Ziegler's dissent makes clear.
Regardless, Johnson was wrongly decided and should be
1
No. 2019AP1200.rgb
¶45 A Marital Settlement Agreement (MSA) is a contract
under the law, as explained in my dissent in Pulkilla v.
Pulkilla, 2020 WI 34, 391 Wis. 2d 107, 941 N.W.2d 239. Because
Schwab's and Siech's MSA is a contract, the statute of
limitations in Wis. Stat. § 893.43——applicable to "actions on
contract"——would have applied to Siech's breach of contract
claim (if she had brought one) for Schwab's failure to pay her
50 percent of his military pension as he agreed in the MSA.
Instead of asserting a breach of contract claim in the circuit
court, Siech brought a contempt motion based upon the divorce
judgment. Accordingly, this court's review is limited to Wis.
Stat. § 893.40——Wisconsin's statute of repose for an action on
judgment or decree. Chief Justice Ziegler's dissent correctly
concludes that Siech failed to commence her action within 20
years after the circuit court entered the divorce judgment;
hence, Siech is statutorily barred from pursuing her claim.
¶46 In my dissent in Pulkilla, I exhaustively analyzed
long-standing precedent establishing the contractual nature of
an MSA and it is not necessary to repeat that analysis in this
opinion. In sum, "MSAs have been treated as contracts by this
court for at least 83 years." Pulkilla, 391 Wis. 2d 107, ¶48
overturned. In that case, the court justified its decision to
disregard the statute of repose because "the application of Wis.
Stat. § 893.40 in certain circumstances may produce results that
'def[y] both common sense and the fundamental purpose' of the
statute." Johnson, 347 Wis. 2d 238, ¶21. The court was wrong
on both counts. The legislature has the prerogative to enact a
statute that may produce outcomes which defy "common sense" so
long as the statute comports with the constitution. And courts
have no authority to disregard the plain text of a statute in
order to achieve what the court may divine to be its "purpose."
2
No. 2019AP1200.rgb
(Rebecca Grassl Bradley, J., dissenting). Since at least 1935,
this court has referred to a "marriage settlement" as a
"marriage settlement contract," In re Will of Koeffler, 218 Wis.
560, 564-65, 260 N.W. 638 (1935) (emphasis added), and has
consistently applied principles of contract law to MSAs.
Pulkilla, 391 Wis. 2d 107, ¶¶48-49 (Rebecca Grassl Bradley, J.,
dissenting) (collecting over 35 cases from this court and the
court of appeals). Academic literature and dictionary
definitions of marital settlement agreements support this
court's history of interpreting MSAs as contracts. Id., ¶¶50-51
(collecting sources); see Lauren M. Ilvento, The Application of
Kenney System, Inc. v. Continental Ins. Co. to Modification of
Child Custody Proceedings, 83-May Fla B.J. 41, 43 (2009) ("In
the context of family law, marital settlement agreements and
mediated agreements are contracts and are to be interpreted
pursuant to the provisions of contract law.") (emphasis added);
Martial Settlement Agreement, Black's Law Dictionary 604, 1158
(11th ed. 2019) ("A contractual agreement that sets out
divorcing spouses' rights and responsibilities regarding
property, alimony, custody, visitation, and child support.")
(emphasis added).
¶47 MSAs are bargained-for agreements between two parties,
and courts must uphold them, absent any violations of public
policy. Pulkilla, 391 Wis. 2d 107, ¶52 (Rebecca Grassl Bradley,
J., dissenting); see Topolski v. Topolski, 2011 WI 59, ¶7, 335
Wis. 2d 327, 802 N.W.2d 482 (interpreting an MSA to "plac[e] the
husband and wife in the same position" but for the occurrence of
3
No. 2019AP1200.rgb
an event and "giv[ing] both the husband and wife exactly what
they bargained for in the Martial Settlement Agreement").
Incorporating an MSA into a divorce judgment does not change the
former's status as a contract. Pulkilla, 391 Wis. 2d 107, ¶53
(Rebecca Grassl Bradley, J., dissenting). Like all other
contracts, we interpret MSAs according to their "plain language"
and "consistent with what a reasonable person would understand
the words to mean under the circumstances." Marx v. Morris,
2019 WI 34, ¶63, 386 Wis. 2d 122, 925 N.W.2d 112 (quoted source
omitted). "Where the terms of a contract are clear and
unambiguous, we construe the contract according to its literal
terms." Gorton v. Hostak, Henzel & Bichler, S.C., 217
Wis. 2d 493, 506, 577 N.W.2d 617 (1998) (citation omitted).
¶48 These principles apply to the MSA Schwab and Siech
negotiated and signed in 1992. The MSA states that "[Siech]
shall receive 50% of the current pre-tax value of [Schwab's] Air
National Guard pension, presently non-vested when and if it is
available to [Schwab]." The MSA further provides that both
parties agreed the pension provision was a "full, fair, and
final division of their marital property." The parties also
agreed that the MSA's provisions "shall be the terms and
conditions of relief in this action." The circuit court
approved the MSA and incorporated its provisions into the
divorce judgment. As pertinent to this dispute, the circuit
court stated in the divorce judgment that "[t]he parties have
entered into a written agreement concerning the division of
their marital property . . . . Their agreement is reasonable
4
No. 2019AP1200.rgb
under the facts as the court has determined those facts, and
shall be included and incorporated in the conclusions of law and
judgment in this action."
¶49 In November 2008, Schwab retired from the Air National
Guard. He started receiving his military pension in February
2013. Despite Schwab's pension having vested, he never paid
Siech 50 percent of its value as the MSA required. In 2017,
Siech brought a contempt motion against Schwab, contending that
he intentionally failed to comply with the circuit court's 1992
divorce judgment. Siech did not bring a breach of contract
claim. In resolving Siech's contempt motion, the circuit court
concluded that Siech could recover her 50 percent share of the
military pension as the parties agreed in the MSA incorporated
into the divorce judgment. According to the circuit court, Wis.
Stat. § 893.40 did not bar Siech's action. A statute of repose,
§ 893.40 states that "an action upon a judgment or decree of a
court . . . shall be commenced within 20 years after the
judgment or decree is entered or be barred." Schwab appealed
the circuit court's decision to the court of appeals, which
reversed the circuit court's decision. The court of appeals
held that Siech's claim was time-barred under the statute of
repose because 20 years had passed before Siech brought her
contempt motion to enforce the divorce judgment.
¶50 As Chief Justice Ziegler's dissent correctly
concludes, Wis. Stat. § 893.40 indeed bars Siech's action. The
circuit court issued the divorce judgment in 1992, and Siech did
not bring a contempt motion until 2017——more than 20 years after
5
No. 2019AP1200.rgb
the judgment was entered. Even though Schwab's military pension
did not vest until 2013, § 893.40 nonetheless bars Siech's claim
because a statute of repose begins to run regardless of when a
claim accrues or is discovered and it cuts off any claim once
the period of repose lapses. Hamilton v. Hamilton, 2003 WI 50,
¶29, 261 Wis. 2d 458, 661 N.W.2d 832 ("A statute of
repose . . . limits the time period within which an action may
be brought based on the date of an act or omission. A statute
of repose does not relate to the accrual of a cause of action.
In fact, it may cut off litigation before a cause of action
arises.").
¶51 While the statute of repose extinguished Siech's
action on the divorce judgment, she could have timely brought a
breach of contract claim based on the MSA. As explained in my
dissent in Pulkilla, MSAs are stand-alone contracts, regardless
of whether they are incorporated into a divorce judgment.
Pulkilla, 391 Wis. 2d 107, ¶53 (Rebecca Grassl Bradley, J.,
dissenting). A breach of contract claim for Schwab's failure to
pay 50 percent of his military pension to Siech——as the parties
agreed under the MSA——would have been subject to the statute of
limitations in Wis. Stat. § 893.43 and not the statute of repose
in Wis. Stat. § 893.40. Under § 893.43, "an action upon any
contract obligation, or liability, express or implied, including
an action to recover fees for professional services, except
those mentioned in s. 893.40, shall be commenced within 6 years
after the cause of action accrues or be barred." (Emphasis
added.)
6
No. 2019AP1200.rgb
¶52 Unlike the statute of repose in Wis. Stat. § 893.40,
the statute of limitation time period in Wis. Stat. § 893.43begins to run when the claim accrues. See Hamilton, 261
Wis. 2d 458, ¶29 ("A statute of limitations usually establishes
the time frame within which a claim must be initiated after a
cause of action actually accrues."); Yocherer v. Farmers, 2002
WI 41, ¶10, 252 Wis. 2d 114, 643 N.W.2d 457 ("The parties do not
dispute that the applicable statute of limitations is Wis. Stat.
§ 893.43," which provides parties 6 years to commence an action
after "a cause of action accrues."). It is undisputed that
Schwab's military benefits vested in 2013 and Siech's claim
accrued upon Schwab's failure to pay her that year; accordingly,
Siech had until 2019 to bring a breach of contract claim against
Schwab for violating the MSA, at which time the statute of
limitations would have expired. The existence of this
alternative avenue by which Siech could have compelled Schwab to
comply with their agreement belies the majority's assertion that
it was "impossible" for Siech to enforce the MSA.
¶53 The majority seems to think the statute of repose
applies to a breach of contract claim, declaring that "it was
impossible for Paul to perform on his promise——and therefore for
Kathy to enforce that promise——until after the statutory period
of repose had run." Majority op., ¶1. Of course, the statute
of repose in Wis. Stat. § 893.40 applies only to actions on
judgments, not breach of contract claims. Although Wis. Stat.
§ 893.43 references § 893.40 with respect to other types of
claims, the statute of repose would not have applied to Siech's
7
No. 2019AP1200.rgb
breach of contract claim (had she brought one). Because the MSA
is a stand-alone contract, independent of the divorce judgment,
an action for its breach would not be subject to the 20-year
statute of repose applicable to an action to enforce the divorce
judgment. It was, therefore, quite possible for Siech to
enforce Schwab's promise——if she had brought a claim that was
not time-barred.
¶54 Siech never brought a breach of contract claim, and
relied solely on a contempt action to enforce the divorce
judgment in order to compel Schwab to fulfill his pension
payment obligations to her under the MSA. We cannot convert her
contempt action into one for breach of contract and must apply
the law to the action she actually filed. See, e.g., Wolnak v.
Cardiovascular & Thoracic Surgeons of Cent. Wisconsin, S.C.,
2005 WI App 217, ¶¶46-52, 287 Wis. 2d 560, 706 N.W.2d 667(denying relief under a breach of contract claim the plaintiff
failed to plead). As Chief Justice Ziegler's dissent explains
more fully, the action Siech chose to bring is barred by the
statute of repose. Avoiding a result it deems "inequitable and
unreasonable," the majority designs an outcome that may comport
with its conceptions of fairness but it does not comport with
the law. I dissent.
8
No. 2019AP1200.rgb
1