Kenosha County Department of Social Services v. Nelsen

305 N.W.2d 924, 102 Wis. 2d 49, 1981 Wisc. LEXIS 2754
CourtWisconsin Supreme Court
DecidedJune 2, 1981
DocketNo. 79-774
StatusPublished
Cited by3 cases

This text of 305 N.W.2d 924 (Kenosha County Department of Social Services v. Nelsen) 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.

Bluebook
Kenosha County Department of Social Services v. Nelsen, 305 N.W.2d 924, 102 Wis. 2d 49, 1981 Wisc. LEXIS 2754 (Wis. 1981).

Opinion

HEFFERNAN, J.

This is a review of a decision of the court of appeals.1 We affirm. The principal question presented is whether the lottery winnings by a stepparent (or parent) constitutes the acquisition of property contemplated in sec. 49.195, Stats. 1975,2 which will [51]*51trigger the operation of the statute and require the recipient — parent or stepparent — to use the proceeds of those winnings to reimburse the county for AFDC payments.

We conclude that lottery winnings are not within the operation of the statute, and we affirm the decision of the court of appeals.

The facts show that, on May 22, 1975, Neis Nelsen won an Illinois state lottery in the amount of $300,000, which will be paid to him in instalments of $20,000 per year over a fifteen-year period. When the lottery tickets were purchased, Nelsen and his father agreed to split any possible winnings. Accordingly, the annual payment of Neis Nelsen’s winnings amounts to $10,000.

On December 8, 1975, Nelsen married Judith Anderson, the mother of four children by her prior marriage to Robert Anderson. Because Anderson was delinquent in support payments for the children, they were depen[52]*52dent and received AFDC. These payments continued after the marriage of Judith and Neis.

Although Neis Nelsen allegedly was informed by county authorities that he had no obligation to support Judith’s four children, the county, upon learning of Nelsen’s lottery winnings, which preceded the marriage, demanded repayment of AFDC disbursements for the period after the marriage when the children lived in Neis Nelsen’s home. Upon Nelsen’s refusal to pay, an action was commenced pursuant to sec. 49.195, Stats. Pertinent provisions of the statute are:

“49.195 Recovery of aid to families with dependent children. (1) If any parent at the time of receiving aid under s. 49.19 or at any time thereafter acquires property by gift, inheritance, sale of assets, court judgment or settlement of any damage claim, the county granting such aid may sue the parent to recover the value of that portion of the aid which does not exceed the amount of the property so acquired. . . . Liability under this section shall extend to any stepfather whose family receives aid under s. 49.19 during the period he is a member of the same household, but his liability is limited to such period. . . .
“(2)

Although the pleadings are exceedingly murky, it appears that the issue on which the case was decided, and the issue which the parties deem to be controlling, was whether lottery winnings were encompassed within the purview of the statute.

The issue was raised by Nelsen’s motion for summary judgment alleging that he “has not received or acquired any property by gift, inheritance, sale of assets, Court Judgment or settlement of any damage claim.” The winning of $300,000 in the Illinois lottery was admitted.

Insofar as the record shows, the county did not file counter-affidavits and did not move to dismiss the mo[53]*53tion for summary judgment.3 The decision of the trial court, however, indicates that the county filed a brief in opposition to the motion. That brief (and Nelsen’s brief in support of the motion) is not of record on appeal.

The trial court held that sec. 49.195, Stats, was specific in respect to the method of property acquisition which would subject the recipient to an obligation to repay the county for AFDC payments and that lottery winnings were not included in the statute. Accordingly, it granted the motion for summary judgment and dismissed the complaint. The court of appeals followed substantially the same reasoning, holding the statute was unambiguous. It stated, “The statute lists five specific ways of acquiring property. Lottery winnings are not within any of these methods.” (pp. 414-15)

Because the statute was unambiguous, addressed itself to specific, defined types of acquisitions, and gave no indication that other types of acquisitions were intended to be within the class, the court of appeals concluded that the statute on its face did not include lottery winnings.

There is little that this court can add to the trial court or court of appeals analysis. Both are clearly correct.

[54]*54Sec. 49.195(1), Stats., itemizes the modes of acquisition which trigger liability for reimbursement under the statute. They are acquisition by gift, inheritance, sale of assets, court judgment or settlement of any damage claim.

The itemization is of the means or the methods of acquisition. It is apparent it is not exhaustive. Had it been the legislative intent to predicate reimbursement on the ability to pay, other forms of acquisition or sources of income or property would have been included. The county, however, makes the argument that the public treasury is not bottomless, and because it is in the interest of the public fisc that aid-payments of whatever nature should be repaid, the statute should be interpreted with that in mind.

It is clear, however, that this generalized public purpose could not have been in the mind of the legislature when it approved this statute. Had that been true, ordinary earned income would have been included, as well as interest on investments or savings. Not even all forms of windfall increments to assets as income are included, e.g., fortuitous findings — treasure trove, rewards, or employees’ bonuses are not included. There is no indication that the statute was intended to sweep broadly on the premise that reimbursement should depend on ability to pay. Nor was the scope of the statute made subject to expanded interpretation by any catchall phrase which would trigger application of the ejus-dem generis rule of statutory construction.

We assume that the legislature knew what it was doing when it enacted this statute. Were the statute subject to the unduly broad interpretation urged by the county, it might well be subject to attack on the ground that it failed to give notice of what types of acquisitions it attempted to encompass.

[55]*55The hazards of open-ended, vague legislation of that type or legislation subject to the county’s urged interpretation are illustrated by the facts of this case. Neis Nelsen, prior to his marriage to Judith, knew that the father of Judith’s children was delinquent in his support payments. He knew that his lottery winnings would be paid for years to come. Hence, Judith and Neis specifically sought the counsel of an employee of Kenosha county for advice in respect to his liability for support because of his lottery winnings. He testified that he was told that the provisions of the statute did not subject those winnings to liability.4 His conduct shows that he was aware of the statute and concluded, upon the advice of others, that his situation was not within the purview of the statute. His conclusion was correct, and the advice given him was correct. He had notice of the sweep of the statute and acted accordingly. The legislature may well have considered the problems that would ensue if the statute were made indefinite or of too broad or vague a sweep. The legislature acted wisely in its determination to enact a reimbursement statute that precisely defined the liability of those who might come within its scope and thus gave precise notice of potential liability.

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305 N.W.2d 924, 102 Wis. 2d 49, 1981 Wisc. LEXIS 2754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenosha-county-department-of-social-services-v-nelsen-wis-1981.