Johnson v. Masters: On April 4, 2012, District II of the Court of Appeals certified Johnson v. Masters, 2011AP1240, to the Wisconsin Supreme Court.
By Gregg Herman, family lawyer
In this case, the parties divorced in 1989. Michael retired in 2009. About a year after he retired, and 20 years and 7 months after the divorce, Patricia submitted a QDRO to the circuit court. When Michael refused to cooperate, Patricia moved for an order requiring the release of pension information. Michael moved to dismiss on the grounds that the twenty-year statute of repose set forth in Wis. Stat. § 893.40 barred Patricia’s enforcement motion. Section 893.40 reads as follows:
Except as provided in § 846.04 (2) and (3) and § 893.415, action upon a judgment or decree of a court of record of any state or of the United States shall be commenced within 20 years after the judgment or decree is entered or be barred.
The circuit court agreed with Michael and dismissed Patricia’s motion, based on Hamilton v. Hamilton, 2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d 832. In Hamilton, the State filed an action to collect child support arrearages almost thirty years after the original judgment, more than twenty years after the amended judgment and more than fifteen years after the youngest child reached the age of majority. Id., ¶2. The Supreme Court held an action brought to enforce a child support judgment must be commenced within twenty years of the date when the judgment is entered. The court held that “an independent action for child support arrearages is an action upon a judgment.” Id., ¶18.
Meanwhile, in an unpublished, but citable, case, Lueck v. Lueck, No. 2011AP1195, unpublished slip op. (Wi App Oct. 12, 2012), which we reported in the November, 2011 FLU, the court of appeals held that the statute of repose does apply to an action commenced by a motion and order to show cause. Also, contempt is exempted from Wis. Stat. § 893.40, per Hamilton.
In its certification, the court of appeals asked the following questions: “[D]oes the Wis. Stat. §893.40 clock begin ticking even before a right is even in place?” “When the legislature has stated, as it did in §753.03, that courts have this broad power to see to the enactment of their judgments, how do we apply the statute of repose to cut off this power?”
Editor’s Note: Of course, if the Supreme Court accepts the certification, I’ll have a lot more to say about this issue. But, in the meantime, why can’t the Court of Appeals simply reverse the trial court order, citing Lueck, if it provides a copy of that case to all parties?
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Gregg Herman is a Family Law attorney with Loeb & Herman, S.C., Milwaukee, Wisconsin. He is certified as a specialist in family law trial advocacy by the National Board of Trial Advocacy and is a past chair of the Family Law Section of the American Bar Association. His law firm website is www.loebherman.com.
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