Kathy Schwab v. Paul Schwab

2021 WI 67, 961 N.W.2d 56

• Court: Wisconsin Supreme Court
• Decided: June 22, 2021
• Docket: 2019AP001200
• Status: Published

Opinion

2021 WI 67

SUPREME 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 241 PDC 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 67 NOTICE 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.

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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. § 1408

so 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. § 767.01

authorizes 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.

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¶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. § 893.40

creates, 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. § 893.40

would 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).

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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,

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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.

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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

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.

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¶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."

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(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

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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

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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

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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.)

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¶52 Unlike the statute of repose in Wis. Stat. § 893.40,

the statute of limitation time period in Wis. Stat. § 893.43

begins 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

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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.

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