In RE MARRIAGE OF LIPPSTREU v. Lippstreu

Wisconsin Supreme Court

In RE MARRIAGE OF LIPPSTREU v. Lippstreu

373 N.W.2d 53, 125 Wis. 2d 415, 1985 Wisc. App. LEXIS 3592

CourtWisconsin Supreme Court

DecidedJuly 11, 1985

Docket84-187

StatusPublished

Cited by4 cases

This text of 373 N.W.2d 53 (In RE MARRIAGE OF LIPPSTREU v. Lippstreu) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In RE MARRIAGE OF LIPPSTREU v. Lippstreu, 373 N.W.2d 53, 125 Wis. 2d 415, 1985 Wisc. App. LEXIS 3592 (Wis. 1985).

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[416]*416EICH, J.

Marilyn Lippstreu appeals from an order denying her petition to revise that portion of a 1973 divorce judgment awarding her limited maintenance. The issue is whether the trial court erred in determining that the appellant failed to file the petition within the time allotted by law. Because we agree that the petition was not timely filed, we affirm.

The trial court’s determination — whether the facts fulfill the legal standard of timeliness — is one of law. Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357, 361 (1983). We review it ab initio, without paying any special deference to the trial court’s determination. DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883, 885 (1983).

The facts are not in dispute. A 1973 divorce judgment directed respondent to pay the appellant $500 per month for three years, and $400 per month for the following seven years, as limited maintenance. Payments were to be made “on the 1st day of each month, commencing November 1, 1973.” Respondent made his final payment on October 1, 1983, and it does not appear that any arrearages are owing. On October 20, 1983, appellant petitioned to extend the maintenance.

Section 767.32(1), Stats., authorizes trial courts to revise divorce judgments “respecting the amount of . . . maintenance.” In Dixon v. Dixon, 107 Wis. 2d 492, 508, 319 N.W.2d 846, 854 (1982), the supreme court construed that section to permit revision of limited as well as indefinite maintenance as long as the petition for revision is filed “before the termination date of the limited maintenance payments set forth in the judgment.” The trial court, relying on this language, concluded that because the “[p]lain language of the judgment calls for 120 payments, the last of which was October 1, 1983,” appellant’s petition, filed October 20, 1983, was untimely.

[417]*417Appellant points out, however, that in the next sentence in Dixon, the court states its ruling in terms of the termination date of “maintenance,” rather than the termination date of the maintenance “payments.” Appellant argues (without elaboration) that regardless of the time of payment, the “maintenance” continues to November 1, 1983, and because her petition was filed prior to that date, it is timely under Dixon.

While the supreme court offered no reason for its reference to termination of “maintenance payments” in one breath and termination of “maintenance” in the next, it is a distinction without a difference. The maintenance statutes under consideration in Dixon — secs. 767.26 and 767.32, Stats. — both speak in terms of “maintenance payments.” Moreover, the 1973 judgment ordered respondent to pay appellant maintenance for ten years in stated monthly payments. The payments were due on the first of each month, and the first was to be made on November 1, 1973. Ten years is one hundred twenty months, and the respondent made his one hundred twentieth monthly payment on October 1, 1983. This was the termination date of the maintenance payments or the maintenance obligation within the meaning of Dixon. Because appellant did not file the petition for revision until October 20, 1983, the trial court correctly dismissed it.

Accordingly, we affirm the order of the trial court.

By the Court. — Order affirmed.

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[416]*416EICH, J.

Marilyn Lippstreu appeals from an order denying her petition to revise that portion of a 1973 divorce judgment awarding her limited maintenance. The issue is whether the trial court erred in determining that the appellant failed to file the petition within the time allotted by law. Because we agree that the petition was not timely filed, we affirm.

The trial court’s determination — whether the facts fulfill the legal standard of timeliness — is one of law. Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357, 361 (1983). We review it ab initio, without paying any special deference to the trial court’s determination. DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883, 885 (1983).

The facts are not in dispute. A 1973 divorce judgment directed respondent to pay the appellant $500 per month for three years, and $400 per month for the following seven years, as limited maintenance. Payments were to be made “on the 1st day of each month, commencing November 1, 1973.” Respondent made his final payment on October 1, 1983, and it does not appear that any arrearages are owing. On October 20, 1983, appellant petitioned to extend the maintenance.

Section 767.32(1), Stats., authorizes trial courts to revise divorce judgments “respecting the amount of . . . maintenance.” In Dixon v. Dixon, 107 Wis. 2d 492, 508, 319 N.W.2d 846, 854 (1982), the supreme court construed that section to permit revision of limited as well as indefinite maintenance as long as the petition for revision is filed “before the termination date of the limited maintenance payments set forth in the judgment.” The trial court, relying on this language, concluded that because the “[p]lain language of the judgment calls for 120 payments, the last of which was October 1, 1983,” appellant’s petition, filed October 20, 1983, was untimely.

[417]*417Appellant points out, however, that in the next sentence in Dixon, the court states its ruling in terms of the termination date of “maintenance,” rather than the termination date of the maintenance “payments.” Appellant argues (without elaboration) that regardless of the time of payment, the “maintenance” continues to November 1, 1983, and because her petition was filed prior to that date, it is timely under Dixon.

While the supreme court offered no reason for its reference to termination of “maintenance payments” in one breath and termination of “maintenance” in the next, it is a distinction without a difference. The maintenance statutes under consideration in Dixon — secs. 767.26 and 767.32, Stats. — both speak in terms of “maintenance payments.” Moreover, the 1973 judgment ordered respondent to pay appellant maintenance for ten years in stated monthly payments. The payments were due on the first of each month, and the first was to be made on November 1, 1973. Ten years is one hundred twenty months, and the respondent made his one hundred twentieth monthly payment on October 1, 1983. This was the termination date of the maintenance payments or the maintenance obligation within the meaning of Dixon. Because appellant did not file the petition for revision until October 20, 1983, the trial court correctly dismissed it.

Accordingly, we affirm the order of the trial court.

By the Court. — Order affirmed.

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373 N.W.2d 53, 125 Wis. 2d 415, 1985 Wisc. App. LEXIS 3592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-lippstreu-v-lippstreu-wis-1985.

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