961 N.W.2d 56
Wis.2021Background
- Kathy and Paul Schwab divorced in 1992; the divorce judgment incorporated a marital settlement agreement (MSA) awarding Kathy 50% of Paul’s Air National Guard pension "when and if" it became available to him.
- Federal law made Paul eligible for retired pay at age 60; his pension first became payable in February 2013, about 21 years after the divorce.
- Paul began receiving pension payments but refused to pay Kathy her share or to sign a military retired pay order under 10 U.S.C. § 1408; Kathy sought past payments and an order directing direct payment to her.
- In 2017 Kathy filed contempt proceedings to enforce the judgment; Paul moved to dismiss, invoking Wis. Stat. § 893.40, the 20‑year statute of repose for actions upon judgments.
- The circuit court ordered Paul to comply, relying on Johnson v. Masters (holding § 893.40 did not bar enforcement where division was impossible under then‑existing law), but the court of appeals reversed.
- The Wisconsin Supreme Court reversed the court of appeals and reinstated the circuit court: § 893.40 did not bar Kathy’s enforcement action because performance (and thus enforcement) was impossible until the pension became payable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Wis. Stat. § 893.40 bar a post‑judgment contempt action to enforce a pension division when the pension was not payable until after the 20‑year repose period elapsed? | Schwab: § 893.40 does not bar enforcement because it was impossible to perform or enforce the pension division until the pension became available; the clock should start when division first became possible. | Paul: § 893.40 bars any action upon a judgment entered in 1992 because Kathy waited more than 20 years to bring her contempt action. | Court held for Kathy: § 893.40 does not bar the action because enforcement was impossible until pension availability; the 20‑year repose did not start before that impossibility ended (Johnson v. Masters governs). |
| Does Kathy’s failure to submit a military retired pay order or to pursue non‑judicial remedies bar her judicial enforcement under § 893.40? | Kathy: Administrative remedies don’t affect interpretation of a statute governing judicial actions; the MSA did not require submission of a military pay order and Paul could have paid her directly. | Paul: Kathy slept on her rights by not pursuing administrative routes (military pay order), so § 893.40 should bar her contempt action. | Court held for Kathy: availability of administrative remedies is irrelevant to the statute of repose for judicial actions and the agreement did not require a pay order; Paul had no basis to claim non‑use of administrative remedies prevents judicial enforcement. |
Key Cases Cited
- Johnson v. Masters, 347 Wis. 2d 238 (Wis. 2013) (held § 893.40 did not bar enforcement where legal impossibility delayed ability to assign pension interests)
- State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation begins with plain language and avoids unreasonable results)
- Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 237 Wis. 2d 99 (Wis. 2000) (explains purpose and policy considerations underlying statutes of repose)
- Hamilton v. Hamilton, 261 Wis. 2d 458 (Wis. 2003) (distinguishes statutes of limitations and statutes of repose in family law context)