In re the Marriage of Patrick A. Topolski

• Decision Date: 08 July 2011
• Docket Number: No. 2009AP2433–FT.,2009AP2433–FT.
• Citation: 802 N.W.2d 482,2011 WI 59,335 Wis.2d 327
• Parties: In re the marriage of Patrick A. TOPOLSKI, Petitioner–Appellant,v.Ellen J. TOPOLSKI, Respondent–Respondent–Petitioner.
• Court: Wisconsin Supreme Court

335 Wis.2d 327

802 N.W.2d 482

2011 WI 59

In re the marriage of Patrick A. TOPOLSKI, Petitioner–Appellant,

v.Ellen J. TOPOLSKI, Respondent–Respondent–Petitioner.

No. 2009AP2433–FT.

Supreme Court of Wisconsin.

Argued March 1, 2011.Decided July 8, 2011.

For the respondent-respondent-petitioner there were briefs and oral argument by Thomas J. Schneck and Law Offices of Andrew C. Ladd, LLC, Madison.For the petitioner-appellant there was a brief and oral argument by Joseph F. Owens and Law Offices of Joseph F. Owens, LLC, New Berlin.SHIRLEY S. ABRAHAMSON, C.J.

This is a review of an unpublished decision of the court of appeals reversing an order of the circuit court for Waukesha County, James R. Kieffer, Judge.¹ The circuit court interpreted the parties' Marital Settlement Agreement, which was incorporated in the judgment of divorce, as requiring Patrick Topolski, the husband, to pay Ellen Topolski, the wife, $912.88 per month from his disability benefits under a pension plan. The circuit court order awarded judgment in the amount of $83,072.08 plus interest to the wife and found the husband in contempt for failing to comply with the Marital Settlement Agreement.

¶ 2 The court of appeals reversed that part of the circuit court order finding the husband in contempt and requiring him to pay his wife $912.88 per month with interest from December 2001 when he began receiving monthly disability payments from the pension plan. The court of appeals concluded that the wife was not entitled to receive $912.88 from the monthly disability pension benefit but was entitled to receive $912.88 from the monthly retirement benefit when the husband reached the age of 65, the “normal retirement age” under the pension plan, “the age at which the parties contemplated that he would have retired had he not been injured.” ²

¶ 3 The issue presented is whether the husband's receipt of disability pension benefits paid under the Electrical Construction Industry Pension Plan (“Pension Plan”), beginning in December 2001 when he was 53 years old, required him to pay $912.88 per month to the wife pursuant to their judgment of divorce, which provided as follows: “All retirement, pension, and deferred benefit accounts in [the husband's] name, less the sum of $912.88 to be paid by [the husband] to [the wife] per month, if and when received by him.”

¶ 4 To resolve this issue, we must interpret the language of the parties' Marital Settlement Agreement and apply the Marital Settlement Agreement to the husband's disability pension under the Pension Plan.

¶ 5 Under the husband's Construction Industry Pension Plan, the amounts he received as disability benefits did not reduce the amounts payable to him as a retirement benefit when he reached early (62 years of age) or normal retirement age (65 years of age). The early retirement benefit at age 62 and the normal retirement benefit are the same amounts.

¶ 6 We conclude as follows:

(1) The Marital Settlement Agreement's reference to “all retirement, pension, and deferred benefit accounts” does not address disability benefits.

(2) The husband's disability pension under the Pension Plan, beginning when he was 53 years old and continuing until he attains the age of 62, replaces lost wages and therefore does not constitute a retirement, pension, or deferred benefit account under the Marital Settlement Agreement. Thus, the Marital Settlement Agreement does not require the husband to pay to his wife any portion of the disability pension that he receives before age 62.

(3) When the husband reaches the age of 62 he is eligible to receive an unreduced “early pension” under the Pension Plan, which is the same amount as his “normal pension” would be at age 65, which in turn is the same amount as his disability pension has been. Thus, the husband's disability pension under the Pension Plan when he reaches the age of 62 constitutes a retirement, pension or deferred benefit account under the Marital Settlement Agreement. And so, pursuant to the Marital Settlement Agreement, when the husband reaches age 62, the husband must pay the wife $912.88 per month if and when the husband receives the disability pension under the Pension Plan.

¶ 7 This holding places the husband and wife in the same position they would have been in had the husband not become disabled. This holding gives both the husband and wife exactly what they bargained for in the Marital Settlement Agreement: The husband retains, as the parties agreed, full right to earnings from his employment (here the disability payments are a substitute for earnings from employment); the wife is not entitled, under the Marital Settlement Agreement, to any part of the husband's earnings. The husband's retirement benefits under the Pension Plan are not reduced or otherwise affected by the disability payments made to the husband. “If and when” the husband “receives” his retirement benefits under the Pension Plan, the wife is to be paid $912.88 per month under the Marital Settlement Agreement. The husband is eligible to receive full retirement benefits at age 62 under the Pension Plan and “if and when” the husband receives retirement benefits at age 62 the husband pays the wife the monthly sum upon which they agreed in the Marital Settlement Agreement.

¶ 8 Accordingly, we determine that the circuit court erred in holding the husband in contempt and in awarding the wife $83,072.08 plus interest.

We affirm the decision of the court of appeals reversing that portion of the order of the circuit court holding the husband in contempt and ordering him to make payments of $912.88 per month with interest to the wife from December 2001. We modify the decision of the court of appeals, however, to provide that under the Marital Settlement Agreement the wife is entitled to $912.88 per month if and when the husband receives the disability pension under the Pension Plan beginning the first month immediately following his 62nd birthday. The court of appeals erred in holding that the wife's monthly payment begins when the husband reaches his 65th birthday, rather than his 62nd birthday.

I

¶ 10 The facts are undisputed for purposes of this review. Patrick and Ellen Topolski were divorced on January 3, 1995, after a marriage of 24 years. At the time of the divorce the husband was able-bodied and employed as an electrician. The judgment of divorce incorporated a Marital Settlement Agreement setting forth the division of the parties' property.

¶ 11 Maintenance was permanently waived by both the husband and wife under the Marital Settlement Agreement.

¶ 12 Pertinent to this review, under the Marital Settlement Agreement the parties divided their interests in “all retirement, pension, and deferred benefit accounts” in the husband's name. The husband was awarded “all retirement, pension, and deferred benefit accounts” “if and when received by him” less the sum of $912.88 per month which he was to pay his wife as follows:

All retirement, pension, and deferred benefit accounts in [the husband's] name, less the sum of $912.88 to be paid by [the husband] to [the wife] per month, if and when received by him. If [the wife] predeceases [the husband], her interest lapses and reverts to [the husband].

Correspondingly, the wife was awarded: “The sum of $912.88 per month by direct payment from [the husband] following his receipt of pension and retirement benefits, if and when received by him. If [the husband] fails to honor this requirement, [the wife] will be automatically entitled to obtain a QDRO from the court to enforce same.” ³

Nothing in the record explains how the parties valued the wife's or husband's interests in retirement, pension, and deferred benefit accounts to reach the sum of $912.88 payable to the wife each month.

¶ 14 In 1998 and in 2000 the husband suffered a series of strokes leaving him unable to work as an electrician. In December 2001, the husband, then 53 years old, qualified for and began to receive “disability pension” payments under the Electrical Construction Industry Pension Plan of $2,348 per month.⁴ The Pension Plan defines “disability” as “a physical or mental condition which, in the judgment of the Trustees, will totally and presumably permanently prevent an Employee from engaging in employment or gainful pursuit in the electrical industry or as a craftsman in any building trades industry.”

¶ 15 In 2008, after determining that the husband had received Pension Plan benefits starting in 2001 but had failed to pay her the sum of $912.88 monthly, the wife brought a motion in the circuit court seeking a Qualified Domestic Relations Order for $912.88 per month pursuant to the relief provided in the Marital Settlement Agreement, as well as payment (with accrued interest) from the time the husband commenced receiving benefits.

¶ 16 The circuit court held a hearing on the wife's motion. The wife's testimony centered on why she had waited so long to bring the motion seeking payment from the husband. She did not testify regarding her understanding of the terms of the Marital Settlement Agreement or the intent of the parties at the time of the divorce regarding the Marital Settlement Agreement.

¶ 17 The wife presented an expert witness, who testified generally about pension valuation and pension division at divorce. The wife's expert also testified that in his opinion, upon review of the Pension Plan and Marital Settlement Agreement, the disability pension payments the husband was receiving were pension retirement benefits pursuant to the Pension Plan. The expert further opined about whether the husband's receipt of these disability pension benefits triggered his obligation to pay the wife $912.88 per month pursuant to the Marital Settlement Agreement.

¶ 18 The wife's counsel asked the expert: “It's your opinion that once Mr. Topolski [the husband] commenced receiving benefits, the clause in the Divorce Judgment was triggered and he was required to pay $912.88?”...