Soquet v. Soquet, 83-849

• Decision Date: 27 March 1984
• Docket Number: No. 83-849,83-849
• Citation: 117 Wis.2d 553,345 N.W.2d 401
• Parties: In re the Marriage of Joan R. SOQUET, Petitioner-Respondent, v. Gerald J. SOQUET, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 401

345 N.W.2d 401

117 Wis.2d 553

In re the Marriage of Joan R. SOQUET, Petitioner-Respondent, v. Gerald J. SOQUET, Respondent-Appellant-Petitioner.

No. 83-849.

Supreme Court of Wisconsin.

Argued Feb. 28, 1984.

Decided March 27, 1984.

William C. Griesbach, Green Bay (argued), for respondent-appellant-petitioner; Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, on brief.

James F. Pressentin, Green Bay, for petitioner-respondent.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals dismissing an appeal from the circuit court for Brown county, Hon. John C. Jaekels, circuit judge. The issue on this review is: Does a letter from Respondent's counsel to Petitioner's ¹ counsel stating that judgment has been entered constitute "written notice of the entry of judgment" that reduces the time for filing an appeal from ninety days to forty-five days under section 808.04(1), Stats. 1981-82. ² We conclude that the period for filing an appeal is shortened to forty-five days only if there has been a timely filing of a formal notice of entry of judgment. Since there was no such formal notice in this case and since the appeal was filed within the ninety day limit, the decision of the court of appeals is reversed and the cause is remanded to that court to hear the Petitioner's appeal.

Gerald J. Soquet (Petitioner) and Joan R. Soquet (Respondent) were opposing parties in a divorce action. Final judgment on the matter was entered by the circuit court for Brown county on February 9, 1983. On February 23, 1983, the Respondent's attorney mailed the Petitioner's attorney a one page letter which contained the following paragraph:

"Incidentally, the judgment in this matter was filed on February 9, 1983. My secretary tells me that she did call your office and inform your secretary of the date of filing. You seemed to be unaware of it last Friday. From the Trial Court's standpoint, it would appear that the Soquet case is over."

On May 4, 1983, eighty-five days after the date of entry of judgment, the Petitioner filed a notice of appeal with the court of appeals. The Respondent moved to dismiss the appeal on the ground that the February 23rd ³ letter constituted "written notice of the entry of judgment" under section 808.04(1), Stats., thereby reducing the time to file an appeal to forty-five days after the date of entry of judgment. The court of appeals granted the Respondent's motion and dismissed the appeal. This court granted the Petitioner's petition for review.

Section 808.04(1), Stats., requires that "[a]n appeal to the court of appeals must be initiated within 45 days of entry of judgment or order appealed from if written notice of the entry of judgment is given, or within 90 days of entry if notice is not given...." This case presents the question of what type of notice is required to make the forty-five day limit applicable. The Petitioner argues that notice must be in the form of a formal court document which is captioned and signed. The Respondent argues that all the statute requires is that the notice be in writing.

In support of his reading of section 808.04(1), Stats., Petitioner points to section 802.01(2)(d). That section states that "[t]he rules applicable to captions, signing and other matters of form of pleadings apply to all motions and other papers in an action ..." (Emphasis supplied.) Petitioner claims that "other papers" include notices of entry of judgment. Respondent argues that they do not as notices of entry of judgment occur outside of the trial court's area of concern regarding a particular action.

While "other papers" is never specifically defined in the statutes, section 801.14, Stats., suggests that they do include notices of entry of judgment. Section 801.14(1) states in part:

"801.14 Service and filing of pleadings and other papers. (1) Every order required by its terms to be served, every pleading unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, undertaking, and similar paper shall be served upon each of the parties." (Emphasis added).

Section 801.14(2), begins: "[w]henever under these statutes, service of pleadings and other papers is required...." (Emphasis added.) Section 801.14(4), begins: "[a]ll papers after the summons required to be served upon a party shall be filed with the court within a reasonable time after service." (Emphasis added.) Section 801.14(5), begins: "[t]he filing of pleadings and other papers with the court as required by these statutes...." (Emphasis added.) It seems apparent that "other papers" and "all papers" referred to in section 801.14(2), (4) and (5) mean the documents listed in section 801.14(1), including "every written notice ... served upon each of the parties." Therefore, when "other papers" are required by section 802.01(2)(d), to be formal, captioned and signed court documents, notices of entry of judgment seem to be included in that term.

Respondent argues, however, that under section 808.04(1), Stats., a notice of entry of judgment need not be "served" but only "given." Therefore, such a notice is not included in the list found in section 801.14(1), is not considered included in the terms "other papers" in other statutory sections, and is not required by section 802.01(2)(d), to be formal, captioned and signed.

Clarification of what the term "given" means can be found in section 806.06, Stats., and the comments of the Judicial Council following. In 1981, section 806.06(3) and (5), were amended by the supreme court to read:

"806.06. Rendition, perfection and entry of judgment. ... (3) After an order or judgment is entered, either party may serve upon the other a written notice of entry containing the date of entry....

"(5) Notice of entry of judgment must be given within 21 days after the entry of judgment or order to constitute notice under s. 808.04(1)." (Emphasis added.)

The use of the word "serve" in section 806.06(3) and the reference to section 808.04(1) in subsection (5) suggests that "given" as used in section 808.04(1), is synonymous with "served."

The comments by the Judicial Council about the 1981 amendments add further support to this interpretation:

"Subsections (3) and (5) are amended to clarify what constitutes a sufficient notice of entry to reduce the appeal time. The notice of entry must be a written document, other than the judgment or order, containing the date of entry and served after the entry of the judgment or order. The notice must accurately and completely inform the opposing party as to the date of entry." (Emphasis added.)

The use of the words "document" and "served" demonstrates that the Judicial Council intended that the notice must be formal, and by implication, fall under the captioning and signing requirements of section 802.01(2)(d), Stats.

The interchangeability of the words "given" and "served" as used in this statute is shown in the method by which each is accomplished. In Bruns v. Muniz, 97 Wis.2d 742, 295 N.W.2d 11 (Ct.App.1980), the court of appeals held that notice of entry is "given" when mailed. Similarly, section 801.14(2), Stats., stated: "[s]ervice by mail is complete upon mailing." That giving and serving can be accomplished in an identical manner is further evidence that, as used in the statutes, there is no difference in meaning between the two.

While this court has not previously addressed the question of what notice is required under section 808.04(1), Stats., this court has construed the term "written notice" in other contexts to require more than actual notice. In Obenberger v. Obenberger, 200 Wis. 318, 228 N.W. 492 (1930), a divorced father moved for a modification of the support and custody arrangements for his child. While the court granted a reduction in support payments, it refused to change custody of the child from mother to father. The father appealed the custody decision and the mother claimed the appeal was initiated too late. The two statutes at issue were section 274.01 and section 274.04. Section 274.01 limited appeals to the supreme court "to one year from date of the entry of such judgment or order, except as hereinafter provided...." Section 274.04 provided an exception: "[t]he time within which an appeal may be taken directly from an order is further limited to thirty days from the date of service by either party upon the other of a copy of such order, with a written notice of the entry of the same." (Emphasis added.) In Obenberger, the mother claimed that section 274.04, was satisfied because the father's attorney had been served with a copy of the order being appealed and specifically had been shown the judge's signature on the order to indicate that the order had been entered. Therefore, the mother argued, the thirty day limitation for initiating an appeal should have begun to run from the date of the service of the order, making the father's appeal too late.

The court disagreed. While accepting that the mother had proved that the order was served on the father, the court found "no proof of the service of notice of the entry of the order to set the time running in which to appeal from said order." 200 Wis. at 320. Because there was no proof of service of a notice of the entry of judgment, the court ruled that section 274.04, Stats., did not apply and that the father had one year from the date of the entry of judgment to initiate his appeal, a limitation with which he had complied.

This and other cases, see, e.g., Brown v. Siegel, 191 Wis. 256, 210 N.W. 688 (1926); Lauren v. Calvetti, 255 Wis. 121, 37 N.W.2d 839 (1949), have consistently held that "written notice" requires more than a writing which gives a party notice that the order or judgment has been entered. Inste...