Janelle Lynn Schimke v. Mark John Schimke
2019AP002362
| Wis. Ct. App. | Apr 29, 2021Background
- Casey and Schimke divorced in April 2010; at the final hearing Schimke filed a financial disclosure (Mar. 23, 2010) stating only that he was party to a “WC Claim” but not listing an amount. The marital settlement agreement awarded any worker’s compensation proceeds to Schimke.
- In 2018 Casey obtained documents suggesting Schimke had undisclosed assets and filed a petition (2019) to impose a constructive trust under Wis. Stat. § 767.127 for alleged nondisclosure.
- The circuit court granted Schimke’s motion to dismiss Casey’s petition (oral May 15, written May 16, 2019), concluding the WC claim had been disclosed and was awarded to Schimke.
- After the May ruling, the full worker’s compensation settlement agreement was filed, showing it had been executed Jan. 29, 2010 (before the disclosure form), and describing settlement amounts and conditions.
- Casey moved for reconsideration (arguing the agreement date was newly discovered evidence); the court denied reconsideration (oral Sept. 16, written Sept. 19, 2019).
- On appeal the Court of Appeals concluded it lacked jurisdiction: Casey did not timely appeal the May 16 order and the reconsideration order presented the same issues as the original dismissal, so the court dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wis. Stat. § 805.17(3) extended the deadline to appeal the May 16, 2019 dismissal to 90 days from the Sept. 19, 2019 denial of reconsideration | Casey: § 805.17(3) applies so her later notice of appeal was timely (filed within 90 days of denial) | Schimke: § 805.17(3) applies only after a trial to the court (bench trial); it does not extend the deadline for dismissals/summary dispositions | Held: Court applied Continental and Teff — § 805.17(3) applies only after a bench trial; deadline began May 16; Casey’s appeal of the May 16 order was untimely and court lacked jurisdiction over it |
| Whether the Sept. 19, 2019 denial of reconsideration was appealable because the motion raised new issues (Silverton new-issues test) | Casey: Discovery of the Agreement’s execution date was new evidence creating a new issue and thus permits appeal of the denial | Schimke: The Agreement date was immaterial to the central issue (whether failure to list an amount amounted to nondisclosure); issues were the same as in the original dismissal | Held: Court held the Agreement date did not change the dispositive issues (claim was disclosed and awarded); reconsideration raised no new issues under Silverton, so denial was not appealable and court lacked jurisdiction |
| Whether the constructive-trust claim met § 767.127(5) requirements | Casey: Failure to disclose the settlement amount warranted imposition of a constructive trust | Schimke: The WC claim was disclosed and assigned to him in the marital settlement, so no asset was omitted from the final distribution | Held: Court observed the claim was disclosed and awarded to Schimke and that the statutory conditions for a constructive trust were not met (though the court’s ultimate disposition rested on jurisdictional grounds) |
Key Cases Cited
- Continental Cas. Co. v. Milwaukee Metropolitan Sewerage Dist., 175 Wis. 2d 527, 499 N.W.2d 282 (Ct. App. 1993) (§ 805.17(3) appellate-deadline extension applies only when reconsideration follows a trial to the court)
- Silverton Enters., Inc. v. General Cas. Co., 143 Wis. 2d 661, 422 N.W.2d 154 (Ct. App. 1988) (no appeal from denial of reconsideration that presents the same issues as the original order)
- Teff v. Unity Health Plans Ins. Corp., 265 Wis. 2d 703, 666 N.W.2d 38 (Ct. App. 2003) (applies Continental reasoning outside bench-trial context)
- Harris v. Reivitz, 142 Wis. 2d 82, 417 N.W.2d 50 (Ct. App. 1987) (compare issues in reconsideration motion to original order for new-issues test)
- Marsh v. City of Milwaukee, 104 Wis. 2d 44, 310 N.W.2d 615 (1981) (denial of reconsideration is not independently appealable unless new issues are presented)