Dickau v. Dickau

• Decision Date: 05 September 2012
• Docket Number: No. 2011AP1516.,2011AP1516.
• Citation: 2012 WI App 111,344 Wis.2d 308,824 N.W.2d 142
• Parties: In re the Marriage of Glen DICKAU, Petitioner–Appellant–Cross–Respondent, v. Georgianne DICKAU, Respondent–Respondent–Cross–Appellant.
• Court: Wisconsin Court of Appeals

344 Wis.2d 308

824 N.W.2d 142

2012 WI App 111

In re the Marriage of Glen DICKAU, Petitioner–Appellant–Cross–Respondent, ^†

v.Georgianne DICKAU, Respondent–Respondent–Cross–Appellant.

No. 2011AP1516.

Court of Appeals of Wisconsin.

Submitted on Briefs May 8, 2012.

Opinion Filed Sept. 5, 2012.

On behalf of the petitioner-appellant-cross-respondent, the cause was submitted on the briefs of Donald Roy Fraker of Fraker Law Firm, S.C. of Mequon.

On behalf of the respondent-respondent-cross-appellant, the cause was submitted on the briefs of Douglas W. Rose and Lora L. Chupita of Rose & DeJong, S.C. of Milwaukee.

Before CURLEY, P.J., KESSLER and BRENNAN, JJ.

KESSLER, J.

[344 Wis.2d 313]¶ 1 At issue in this appeal is whether the circuit court erred in enforcing the parties' Marital Settlement Agreement (“the MSA”), eighteen years after their divorce, to require Glen Dickau (“Glen”) to pay forty percent (“40%”) of his disability benefit installments to his former wife, Georgianne Dickau (“Georgianne”). Specifically, the circuit court found that while the MSA required Glen to pay Georgianne 40% of his City of Milwaukee Employees Retirement System benefits (“ERS pension benefits”) beginning in October 2001, when Glen reached the age of fifty-seven, Glen actively opted to receive continued disability benefits in lieu of ERS pension benefits. Thus, the circuit court determined that Georgianne was entitled to “40% of the disability payments which [Glen] has received, and should in the future receive, commencing with the first such payment received subsequent to his 57th birthday in October of 2001.” The circuit court ordered interest on this arrearage at three percent (“3%”), compounded annually. As of April 1, 2011, this past due amount was calculated by the parties and stipulated to be $165,290.70. The circuit court ordered Glen to pay interest at the rate of twelve percent (“12%”) per annum on any part of that sum not paid by May 14, 2011. Delinquent monthly payments occurring after April 25, 2011, were to bear interest at 3% per annum, compounded annually.

¶ 2 Glen appeals from the entire order, essentially arguing that: (1) because Glen received disability benefits, rather than ERS pension benefits, the circuit court erroneously ignored the terms of the MSA which address the pension benefits; (2) Georgianne waited too long to pursue enforcement of the divorce judgment; and (3) the circuit court erroneously retroactively assessed interest on payments it determined to be past due. Georgianne cross-appeals the circuit court's interest assessment, arguing that the court should have awarded interest on the past due amounts at 12%, pursuant to Wis. Stat. § 815.05(8) (2009–10),¹ rather than at 3%. We affirm in part and reverse in part.

BACKGROUND

¶ 3 Glen and Georgianne divorced in 1993, after twenty-four years of marriage. Glen was a City of Milwaukee firefighter who had been receiving disability allowance payments since 1985. At the time of their divorce, the parties anticipated that in October 2001, when Glen reached the age of fifty-seven, that the City would switch from providing Glen his “Duty Disability Allowance” to providing monthly ERS pension benefits. The divorce judgment included the MSA, which allocated Glen's ERS pension benefits between the parties. The MSA specified multiple alternatives for transferring the ERS pension funds to Georgianne, stating ultimately that if the alternatives failed, Glen was to make payments directly to Georgianne. The MSA, as relevant, stated:

The husband's interest in the Employees Retirement System of the City of Milwaukee shall be divided by a Qualified Domestic Relations Order with 40% of such accrued benefit through the date of divorce, herein, being awarded to the wife.

....

[T]he husband, commencing with his first monthly retirement benefit received by the Employees RetirementSystem shall pay to the wife 40% of the retirement benefit accrued as of the date of divorce herein, which amount is 40% of $1,705.80 or $682.32 to the wife immediately after receiving such monthly benefit. The husband shall continue to pay the wife this amount upon his receipt of each succeeding monthly benefit.

(Emphasis added.) The anticipated retirement benefits were taxable to Glen. Consequently, the MSA required Georgianne to reimburse Glen for 40% of the taxes he paid on the payments he received.² In addition, Georgianne was to receive 40% of any ERS death benefit either directly from the ERS as a named beneficiary or to be paid to her by Glen's heirs.

¶ 4 Several years after the divorce, in 2001, Glen joined four other firefighters in the appeal of a circuit court decision refusing to expand their “Duty Disability Allowances” ³ beyond what was contractually in place at the time their employment commenced with the City. That appeal resulted in our decision in Rehrauer v. City of Milwaukee, 2001 WI App 151, 246 Wis.2d 863, 631 N.W.2d 644. The firefighters involved in that litigation, Glen included, all began their employment with the City prior to February 8, 1972, and all received duty disability benefits at various times after September 1977. Id., ¶ 2. The City granted the firefighters the limited-term duty disability benefits that were provided under their contracts in place at the time of their hiring, but denied them the lifetime duty disability benefits that had been established by a subsequent contract in effect from February 8, 1972, to September 30, 1977. Id. Essentially, the appellant firefighters were hired before, but disabled after, the lifetime benefits became a part of the City contracts. We concluded “that the firefighters gained vested rights in the highest level of duty disability benefits that came to be contractually established during their years of active duty.” Id., ¶ 20 (emphasis added). As relevant to this appeal, the effect of our holding allowed Glen to receive lifetime duty disability benefits, rather than receive ERS pension payments.

¶ 5 It is undisputed that this post-divorce litigation occurred without Georgianne's knowledge. In November 2009, Georgianne brought a motion to enforce the divorce judgment, arguing that she was entitled to 40% of Glen's ERS payments, dating back to November 2001. Glen argued that as a result of Rehrauer, he did not receive ERS pension payments, thus, Georgianne was not entitled to any benefits.

¶ 6 After an Assistant Family Court Commissioner resolved the matter in favor of Georgianne, granting her 40% of Glen's current disability benefits and arrears from November 2001, Glen filed a motion for a de novo hearing. Glen argued that Georgianne was not timely in bringing her motion to enforce the divorce judgment.

¶ 7 After hearing testimony from both Glen and Georgianne, as well as other witnesses, the circuit court issued an oral decision, finding that Glen intentionally withheld information pertaining to the effects of the Rehrauer litigation and intentionally attempted to conceal the fact that he would now receive lifetime disabilitypayments. The circuit court dismissed Glen's argument that Georgianne's claims were untimely, stating that Georgianne attempted to enforce the divorce judgment as soon as she learned of Glen's intent not to pay her. The circuit court also awarded 3% interest on the amount determined to be past due from October 2001 through May 2011. The circuit court issued a written order, consistent with its findings at the hearing, establishing as follows:

(1) The Petitioner shall pay the Respondent forty percent (40%) of the disability payments which he has received, and should in the future receive, commencing with the first such payment received subsequent to his 57^th birthday in October of 2001 and continuing from that date forward indefinitely;

(2) except as noted in part (4) below, any delinquency in said payments shall bear interest at the rate of three percent (3%) per annum, compounded annually;

(3) the Petitioner shall pay Respondent the past due amount as agreed upon by the parties, $165,290.70, by May 14, 2011; and,

(4) should Petitioner fail to pay the past due amount by May 14, 2011, then the remaining arrearage shall bear interest from that point forward at the statutory rate of twelve percent (12%) per annum.

Glen appeals the circuit court's finding that Georgianne's pursuit of her claims was not untimely, as well as the order in its entirety. Georgianne cross-appeals the circuit court's award of interest on the past due payment at 3%, arguing that she was statutorily entitled to an award of 12% interest.

DISCUSSION

¶ 8 On appeal, Glen argues that: (1) the circuit court erroneously found that Georgianne did not wait too long to enforce the divorce judgment; (2) he does not owe Georgianne anything pursuant to the divorce judgment because he does not receive ERS pension benefits; (3) a conclusion by us holding otherwise would be an improper modification of property division under Wis. Stat. § 767.59(1c)(b) or Wis. Stat.§ 806.07; (4) if he owes anything, it is not 40% of his monthly disability benefits, but rather $682.32 per month, as stated in the divorce judgment; and (5) the circuit court improperly retroactively assessed interest, compounded at 3% annually, on the amount it found was due between October 2001 and April 1, 2011. Georgianne contends that she was entitled to interest calculated at 12% annually on the past due amount. We disagree with both parties.

I. Delay by Georgianne.

¶ 9 A party who delays in making a claim may lose his or her right to assert that claim based on the equitable doctrine of laches. Zizzo v. Lakeside Steel & Mfg. Co., 2008 WI App 69, ¶ 7, 312 Wis.2d 463, 752 N.W.2d 889. The elements of laches are: “(1) unreasonable delay by the party seeking relief, (2) lack of knowledge or acquiescence by the party asserting laches that a claim for relief was forthcoming, and (3) prejudice to the party asserting laches caused by the delay.” Id. The reasonableness of the delay,...