In Re the Marrage of Washington

• Decision Date: 14 March 2000
• Citation: 611 N.W.2d 261
• Parties: (Wis. 2000) NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. In re the Marriage of: Gail M. Washington, Petitioner-Appellant-Petitioner, v. Melvin K. Washington, Respondent-Respondent. Case No.: 98-1234 2000 WI 47 Submitted on Briefs: Oral Argument:
• Court: Wisconsin Supreme Court

611 N.W.2d 261 (Wis. 2000)

NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

In re the Marriage of:

Gail M. Washington, Petitioner-Appellant-Petitioner, v. Melvin K. Washington, Respondent-Respondent.

Case No.: 98-1234

2000 WI 47

SUPREME COURT OF WISCONSIN

Submitted on Briefs: Oral Argument: March 14, 2000

Opinion Filed: June 7, 2000

REVIEW OF A DECISION OF THE COURT OF APPEALS

Source of APPEAL COURT: Circuit COUNTY: Ozaukee

JUDGE: Joseph D. McCormack

JUSTICES: Concurred: Dissented: Not Participating:

ATTORNEYS: For the petitioner-appellant-petitioner, there were briefs by Donald Roy Fraker and Fraker Law Firm, S.C., Mequon, and oral argument by Donald Roy Fraker. For the respondent-respondent, there was a brief by Melvin K. Washington, Milwaukee, and oral argument by Melvin K. Washington.

REVIEW of a decision of the Court of Appeals. Reversed and remanded.

¶1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of an unpublished decision of the court of appeals, Washington v. Washington, No. 98-1234, unpublished slip op. (Wis. Ct. App., June 9, 1999), affirming an order of the circuit court for Ozaukee County, Joseph D. McCormack, Circuit Judge. The circuit court denied Gail M. Washington's post-divorce motion to grant her appreciation and interest, from the date of divorce until pension payments begin, on her award of a lump-sum share of her ex-husband Melvin K. Washington's federal employee pension. The circuit court held that Wis. Stat. §767.32(1)(a)(1997-98) prohibited the circuit court from modifying or revising the provisions of the judgment and order with respect to the final division of property.¹

¶2. Although the court of appeals expressed concern that the result was unfair to Mrs. Washington, it affirmed the order of the circuit court. The court of appeals concluded that the circuit court was barred by Wis. Stat. §767.32(1)(a) from modifying or revising the provisions of the judgment and order with respect to the final division of property.

¶3. This case presents an issue of law pertaining to the power of a circuit court over the final division of property in a divorce judgment. More specifically the legal issue is whether a circuit court may construe its judgment and allocate appreciation and interest on a lump-sum share of a pension awarded to a spouse (but not payable immediately) when the final division of property in the divorce judgment is silent about any such allocation. The court decides this question of law independently of other courts, benefiting from the analyses of the circuit court and court of appeals.

¶4. We conclude that a circuit court may construe the final division of property in a divorce judgment and allocate appreciation and interest on a pension when the divorce judgment is silent about the allocation of appreciation and interest on a lump-sum share awarded to a spouse but not payable immediately. The silence about appreciation and interest makes the judgment ambiguous. A circuit court's construction of the ambiguous final division of the pension in this divorce judgment does not violate Wis. Stat. §767.32(1)(a).² Accordingly we reverse the decision of the court of appeals and remand the cause to the circuit court to determine the allocation of appreciation and interest to the spouses under the final division of property in the divorce judgment.

I

¶5. The relevant facts are not in dispute. The Washingtons' divorce proceedings began in the summer of 1991. After a series of hearings, the circuit court decreed on May 19, 1993, that the couple was divorced. Because of continuing disputes between the parties, however, the findings of facts, conclusions of law and judgment were not entered until December 1995.

¶6. In December 1995, the circuit court determined the final division of the property, with each party getting one-half. Included in the property to be divided was Mr. Washington's interest in his U.S. Civil Service Retirement System pension. The federal pension plan was valued at $50,273 as of the time of the divorce. Desiring to maintain an equal property division of all the property, the circuit court awarded Mrs. Washington $23,910 of the pension and awarded Mr. Washington $26,363. The judgment made no mention of interest or appreciation on either party's lump-sum share of the pension or when or how payment of the federal pension was to be made. The judgment is silent about any details of the division of the pension except for the value of the total pension and the lump-sum division between the spouses at the time of the divorce judgment.

¶7. Mr. Washington is not expected to begin receiving payments of his federal pension until his retirement, which is anticipated to be approximately 21 years from the date of the divorce judgment. Mrs. Washington will not get her share under the divorce judgment until payments are made to Mr. Washington.

¶8. Supplemental documents were needed to effectuate the court's division of the pension. In 1997, the federal Office of Personnel Management, which handles federal employee pension benefits, informed Mr. Washington that in order to process the award to Mrs. Washington the divorce judgment must include language specifically referring to the Office of Personnel Management and particular provisions in the code of federal regulations.

¶9. As a result, Mr. Washington filed a motion in circuit court requesting that the judgment be amended by adding the language suggested by the Office of Personnel Management. When Mr. Washington proposed this amendment of the final division of the property in the divorce judgment, the parties became aware of the ambiguity resulting from the silence of the judgment regarding the allocation of appreciation and interest on the pension division. The parties debated the correct construction of the circuit court's division of the federal pension. Mr. Washington urged that at the time of his retirement Mrs. Washington would receive her specified lump-sum share of the pension and that he alone would receive any and all appreciation and interest that accumulated on both spouses' shares.

¶10. Mrs. Washington asserted that, in keeping with the circuit court's intent to divide the property equally, she would receive appreciation and interest on her lump-sum share of the pension and that Mr. Washington would receive appreciation and interest on his lump-sum share of the pension.

¶11. Paying out Mrs. Washington's share of the pension 21 years after the divorce, without giving her the benefit of appreciation and interest, would result in her receiving only the $23,910 the circuit court awarded her in the final division in 1995. In contrast, allocating to Mr. Washington all the appreciation and interest for 21 years would result in his receiving far more than the $26,363 the circuit court awarded him in the final division in 1995. The result is that the two would not receive an equal division of the property as the circuit court intended. We assume that the court of appeals was referring to this inequality in the division of the pension when it concluded that the result of the circuit court decision was unfair to Mrs. Washington.

¶12. Concurrent with Mr. Washington's motion in the circuit court to amend the judgment to comply with the federal requirements for distribution of the federal pension under the divorce judgment, Mrs. Washington filed a motion asking the circuit court to amend its 1995 divorce judgment to award her appreciation and interest on her lump-sum share of the pension. The circuit court granted Mr. Washington's motion to amend the judgment but denied Mrs. Washington's motion to amend the judgment.

II

¶13. Mr. Washington claims that his motion to amend the final division of property in the judgment is permissible in order to put the judgment into effect, but that Mrs. Washington's motion to amend the final division of property in the judgment violates Wis. Stat. § 767.32(1)(a).³ The statute reads in relevant part: "...nor shall the provisions of the judgment or order with respect to final division of property be subject to revision or modification...." One of the purposes of Wis. Stat. §767.32(1)(a) is to achieve finality in divorce decrees for property divisions. A significant aspect of justice is finality of decisions, and the court takes this legislative goal of finality seriously. Furthermore, when a marriage ends, the law envisions the parties as having an opportunity to be independent of each other and go their separate ways in regards to their property.

¶14. Nevertheless, the legislature and the courts recognize that a final division of property in a divorce judgment does not always resolve all matters between the parties and that remedial action by the circuit court may be needed to effectuate the objectives of the final division without disrupting the finality of the judgment. While the final division of property in a divorce judgment is indeed final, the jurisdiction of the court "continue[s] until the property [is] disposed of pursuant to the provisions of the division contained in the judgment of divorce."⁴ Section 767.01(1) vests in the circuit courts the authority to do all things "necessary and proper" in actions affecting the family and "to carry [the courts'] orders and judgments into execution."

¶15. Wisconsin Stat. §767.32(1)(a) should not be interpreted to strip a circuit court of its authority to put its judgment in effect. Without the authority to do all things necessary and proper to carry out the provisions of a divorce judgment, the judgment would have no effect.⁵ So although a circuit court may not revise or modify the final division of property, this court has recognized that by virtue of §767.01(1) the circuit court has the power to effectuate its orders and do justice. Rotter v. Rotter, 80 Wis.2d 56, 62-63, 257 N.W.2d 861 (1977).⁶

¶16. Thus in ...