IN the MATTER OF the ESTATE OF Carl FLEJTER, Deceased: Patricia A. FLEJTER, Appellant v. ESTATE OF Carl FLEJTER, by its Personal Representative, Diane Migacz, Respondent.
No. 99-2863
Court of Appeals of Wisconsin
December 5, 2000
2001 WI App 26 | 623 N.W.2d 552
Before Wedemeyer, P.J., Fine and Curley, JJ.
Submitted on briefs October 3, 2000. Petition to review denied.
On behalf of the respondent, the cause was submitted on the brief of Charles H. Barr of Croen & Barr LLP, Milwaukee.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶ 2. Patricia raises two issues: (1) whether the trial court erred as a matter of law when it concluded that the personal representative‘s objection to her claim against the estate was timely filed; and (2) whether the trial court improperly construed the final stipulation in the judgment for divorce to deny her proceeds from a life insurance policy; and to deny her reimbursement for real estate taxes she paid on her homestead. Because the trial court did not err in any respect, we affirm.
I. BACKGROUND
¶ 3. Patricia and the decedent, Carl, were divorced by a judgment entered February 15, 1979. The divorce judgment incorporated a final stipulation signed by both parties. The final stipulation was drafted by Patricia‘s attorney. Carl died on July 5, 1997.
¶ 4. On November 11, 1997, the personal representative filed an application for informal administration of Carl‘s estate. Pursuant to statute, the probate registrar set November 19, 1997, as the date for barring claims. On November 11, 1997, Patricia filed a claim against the estate for $65,774, which was later reduced by amendment to $57,001.13. On November 12, 1997, Patricia‘s counsel mailed a copy of the claim to the attorney for the estate. On January 14,
¶ 5. After hearing the summary judgment motion, the trial court ruled that the objection was timely filed. The court also found that the documentary evidence from the Social Security Administration, and the testimony of the personal representative, established that Carl was in fact, disabled. No other issues were decided at that hearing.
¶ 6. The contested claim, however, proceeded to a bench trial. As pertinent to this appeal, the claim consisted of: (1) fourteen alleged payments of real estate taxes for the claimant‘s homestead for the years 1992 through 1996; and (2) proceeds of an insurance policy on Carl‘s life in the amount of $15,000.1 After hearing the evidence, the trial court dismissed Patricia‘s claim in its entirety. She now appeals.
II. DISCUSSION
A. Objection to Claim.
¶ 7. Patricia first contends that the trial court erred when it found that the personal representative‘s objection to her claim was timely pursuant to
¶ 8. Patricia claims that the trial court‘s application of the three-day mailing extension is not supported by the language of
STANDARD OF REVIEW
¶ 9. The issue in this case involves statutory construction, which presents a question of law. See Sprague v. Sprague, 132 Wis. 2d 68, 71, 389 N.W.2d 823, 824 (Ct. App. 1986). We review questions of law independent of the trial court‘s decision, although we often profit greatly from the trial court‘s careful and thorough analysis.
¶ 10. “Statutes for the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible.” N. SINGER, 2B SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION § 51.02, at 122 (5th ed. 1992); see also State v. Wagner, 136 Wis. 2d 1, 5, 400 N.W.2d 519 (Ct. App. 1986). “Statutes are considered to be in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. To be in pari materia, statutes need not have been enacted simultaneously or refer to one another.” SUTHERLAND, § 51.03.
¶ 11. In State Farm Mutual Automobile Ins. Co. v. Kelly, 132 Wis. 2d 187, 389 N.W.2d 838 (Ct. App. 1986), quoting SUTHERLAND, we stated:
When determining the meaning and effect of statutory sections in pari materia,
“[i]t is assumed that whenever the legislature enacts a provision it has in mind previous statutes
relating to the same subject matter. In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in those prior statutes. Thus, they all should be construed together.”
Id. at 190 (citation omitted). Professor Sutherland further instructs that:
“General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail.”
State v. Amato, 126 Wis. 2d 212, 217, 376 N.W.2d 75 (Ct. App. 1985) (emphasis omitted).
ANALYSIS
¶ 12. Patricia contends that the sixty-day deadline in
¶ 13. Second, an examination of the development of the two statutes throughout the course of history demonstrates that the two statutes are not in conflict with each other and, in fact, can be read in harmony consistent with the trial court‘s decision in this case. Because we conclude that the statutes do not actually conflict, the statutory construction rule indicating that specific statutes control over general statutes does not apply. See Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 22, 353 N.W.2d 812 (Ct. App. 1984). Here there is no dispute that mailing is an alternative method of service for personal service in civil actions and special proceedings. In a historical context, from the earliest years of our state‘s existence, service by mail has been recognized as an alternate method of service of process.
¶ 14. The key feature associated with service by mail is extending the time for a response, under the theory that service is complete at the moment of mailing. The general concept of adding time to documents served by mail was part of the original Field Code. Laws of 1856, ch. 120, § 315. The Field Code had an add-on provision of one day per fifty mile formula for mail service. See id. When the legislature adopted the Field Code, it rejected the per/mile formula and instead “simply doubled the time required when personal service was used” for a response. Charles D. Clausen & David P. Lowe, The New Wisconsin Rules of Civil Procedure Chapters 801-803, 59 MARQ. L. REV. 31 (1976).
¶ 15. The procedure, however, for filing a claim against an estate and serving an objection to it was not introduced until May 1, 1953, by supreme court order. It was codified as
¶ 16. In 1969,
¶ 17. In 1973, the statute was amended to provide that if a notice of claim was served upon the personal representative or attorney for the estate, any objection to the claim had to be served or mailed to the
¶ 18. In 1989,
[I]f a copy of the claim has been mailed to or served upon the personal representative or the attorney for the estate, the objection ... shall be served upon or mailed to the claimant ... within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate.
¶ 19. There is no doubt that the “add-on” provision in the case of service by mail had been a feature of our statutory procedural law for decades before the procedure for handling contested claims appeared in our statutes. On four separate occasions, while both provisions coexisted, our Legislature and Supreme Court have reviewed the procedure for processing claims in probate proceedings. Nevertheless, with the presumed knowledge of the mailing “add-on” provision and its consequences, neither governmental body has addressed any apparent conflict between the two statutes. If the legislature did not want
¶ 20. Initiating the filing of a claim by mail in a probate proceeding starts the clock running for assert-
¶ 21. Patricia cites Leonard v. Cattahach, 214 Wis. 2d 236, 248, 571 N.W.2d 444 (Ct. App. 1997) for the proposition that a twenty-day period for an insurer to answer a summons and complaint mailed to it under
¶ 22. In Leonard, the insurer was deemed served for the purpose of commencing a cause of action by the substitute service provision of
¶ 23. We found that
¶ 24. Unlike Leonard, Patricia‘s mailing of her claim to the personal representative, and the response objecting to the claim, constituted “service of a notice or paper,” as that phrase is used in
¶ 25. In First Wisconsin National Bank v. Nicholaou, 87 Wis. 2d 360, 364-65, 274 N.W.2d 704 (1979), our supreme court held that
¶ 26. The holdings in these cases lead to a simple conclusion: the “add-on” provision of
B. Life Insurance Proceeds.
¶ 27. Next, Patricia asserts that the trial court erred when it construed paragraph seven of the stipulation incorporated in the judgment of divorce to deny her the proceeds of a $15,000 life insurance policy. We are not convinced.
STANDARD OF REVIEW
¶ 28. Judgments are construed at the time of their entry and in the same manner as other written instruments. See Wright v. Wright, 92 Wis. 2d 246, 255, 284 N.W.2d 894 (1979). Whether a judgment is ambiguous is itself a question of law. See Washington v. Washington, 2000 WI 47, ¶ 26, 234 Wis. 2d 689, 611 N.W.2d 261. Words or phrases are ambiguous when they are reasonably or fairly susceptible to more than one construction. If a judgment is ambiguous, construction is allowed and the court will consider the whole record, including pleadings, findings of fact, and conclusions of law. See Wright, 92 Wis. 2d at 255. Lastly, the construction of a document that gives reasonable meaning to all provisions is preferable to one that leaves part of the language useless or inexplicable or creates surplusage. See Goldmann Trust v. Goldmann, 26 Wis. 2d 141, 147, 131 N.W.2d 902 (1965).
ANALYSIS
¶ 29. The paragraph of the stipulation in question reads:
The defendant [Carl] shall be awarded the following life insurance policies and he shall name and designate the plaintiff as beneficiary, and the minor children of the parties as secondary beneficiaries of the same during his lifetime, without hypothecation, but with the exception that if the defendant became disabled, the defendant would remain the beneficiary.
American Bankers Life Assurance of Florida
Policy No. 127854
Face Amount $15,000.
Specific to our analysis are the two clauses, “but with the exception that if the defendant became disabled, the defendant would remain the beneficiary.” We agree, as did the parties, that these two clauses, when read together, are ambiguous.
¶ 30. Ambiguity is present for several reasons. First, while Carl can be the owner of a life insurance policy, it is an impossibility for him to also be the beneficiary. Second, in the divorce judgment, Carl was not named as the beneficiary of any life insurance policy. Third, although the divorce judgment named Carl as the owner of various life insurance policies, it required him to name his former wife and his minor children as beneficiaries of the policies. The trial court construed the ambiguity to mean that if Carl became disabled, he could name his estate as the beneficiary of the policy. We agree that this is the correct interpretation.
¶ 31. Patricia concedes that the provisions of the judgment of divorce and the terms of the stipulation incorporated within it were the product of negotiation. Three life insurance policies were part of the marital
¶ 32. Because it is clear that two of the policies were created by mutual agreement to allow Carl to retain some ownership benefits in the policy in the event of disability, it necessarily follows that he retained the ability to designate his estate as the beneficiary of the policies either expressly or by default. Construing the ambiguity in favor of the estate, however, does not end our analysis. The question of proof of “disability” must also be resolved.
¶ 33. Patricia contends that there was insufficient evidence to support the trial court‘s finding that Carl was disabled. Specifically, she argues that the trial court erred by admitting into evidence a Notice of Award of Disability Benefits addressed to her former
¶ 34. When reviewing trial court rulings regarding the admissibility of evidence, we use the erroneous exercise of discretion rubric. In evidentiary matters, we shall not reverse an erroneous exercise of a discretionary ruling unless it is prejudicial to the adverse party; that is, the result might, within reasonable probabilities, have been more favorable to the complaining party had the error not occurred. See First Federal Financial Serv., Inc. v. Derrington‘s Chevron, Inc., 230 Wis. 2d 553, 566, 602 N.W.2d 144 (Ct. App. 1999). Findings of fact are reviewed under the clearly erroneous standard. See State v. McMorris, 213 Wis. 2d 156, 165, 570 N.W.2d 384 (1997).
¶ 35. Patricia contends that the contents of the notice of award are inadmissible hearsay. While conceding in her reply brief that the notice was authenticated by the personal representative, she claims it was never authenticated as a public record or some other exception to the hearsay rule to make the contents of the notice admissible. Thus, she argues there is no proof of disability to support the estate‘s entitlement to the life insurance proceeds. For several reasons, we reject this assertion of error.
¶ 36.
¶ 37. Applying these standards to the record before us relating to the admission of the notice, we note the following. The personal representative testified that she and Carl had lived together since 1988. He retired from his job because of liver cancer. As the result of his condition, he was filled with fluid and experienced trouble walking and sitting. At the end of May 1997, she took him to a social security office to apply for disability benefits. On July 5, 1997, Carl died from liver cancer. After the date of death, she opened a letter addressed to Carl. The envelope containing the letter bore the name and address of the Social Security Administration. The letterhead itself indicates it was from the Social Security Administration‘s regional office. The letter was entitled Notice of Award and informed Carl that the agency had made a finding that, as of May 27, 1997, under its rules, he had been found to be disabled. It further set forth the date Carl would start receiving benefits and what his appeal rights were if he disagreed with the amount and terms of payment contained within the findings.
¶ 38. From this recitation, we conclude that the personal representative had direct knowledge of Carl‘s disabling condition. This is sufficient to sustain the trial court‘s finding that Carl was in fact disabled. The testimony also provides sufficient evidence to satisfy authentication of the document, given the distinct nature of the letterhead, and its contents. Therefore, the trial court did not erroneously exercise its discretion when it admitted the document.
¶ 39. Lastly, Patricia contends that the trial court erred when it concluded that the doctrine of laches operated to bar her claim seeking reimbursement for real estate taxes she paid on the homestead. We are not persuaded.
STANDARD OF REVIEW
¶ 40. The doctrine of laches has been defined as: “[A] recognition that a party ought not to be heard when he has not asserted his right for unreasonable length of time or that he was lacking in diligence in discovering and asserting his right in such a manner so as to place the other party at a disadvantage.” Bade v. Badger Mut. Ins. Co., 31 Wis. 2d 38, 47, 142 N.W.2d 218 (1966).
¶ 41. The elements of the equitable doctrine of laches are: (1) unreasonable delay; (2) knowledge of and acquiescence in the course of events; and (3) prejudice to the party asserting laches. See Ozaukee County v. Flessas, 140 Wis. 2d 122, 127, 409 N.W.2d 408 (Ct. App. 1987). This defense operates
as a bar upon the right to maintain an action by those who unduly slumber upon their rights. There is no fixed rule as to the lapse of time necessary to bar a suitor in a court of equity. Each case must stand upon its own particular facts. Great lapse of time, if reasonably excused and without damage to the defendant, has been ignored; while slight delay, accompanied by circumstances of negligence, apparent acquiescence, or change of defendant‘s position, has been held sufficient.
¶ 42. Although the issue of reasonableness presents a question of law that we ordinarily review independently of the trial court‘s determination, because the determination of reasonableness is so intertwined with the factual findings supporting it, we offer some deference to the trial court‘s conclusion. See Estate of Lohr v. Viney, 174 Wis. 2d 468, 477-78, 497 N.W.2d 730 (Ct. App. 1993).
¶ 43. Patricia‘s claim for real estate taxes consisted of the taxes paid by her for the period of 1992 through 1996 in the sum of $18,085. She amended the claim to subtract a previously claimed payment of taxes for 1992, but added a claimed payment for 1983, 1997 and 1998, for an amended total of $23,964.77. The claim for taxes was one part of her six-part claim.
¶ 44. In response to the trial court‘s application of the doctrine of laches, Patricia contends that the estate offered no evidence to establish the presence of the three elements necessary for laches to apply. Further, she argues that her failure to pursue legal action against Carl for the real estate taxes she paid for no more than four and one-half years was not unreasonable. We are not convinced for two reasons.
¶ 45. First, from a review of the record, we note that a small portion of Patricia‘s claim for the real estate taxes dates back to 1983. We deem it significant that when, in 1988, she brought a motion for alleged violations of the judgment of divorce relating to child support payments, she did not complain about the real estate taxes.
¶ 46. Second, the record is void of any evidence that from 1992 to the date that the claim was filed, Patricia initiated any action from which Carl could rea-
¶ 47. The reasonableness of delay is a conclusion of law dependent on how the fact-finder evaluates the totality of the evidence. From the evidence in the record, another fact-finder might readily conclude that the delay in asserting a claim for the paid real estate taxes was reasonable. That, however, is not the correct standard of review. As noted earlier, we grant deference to the fact-finder when a “reasonableness standard must be applied because of the unique position occupied by the fact-finder in assessing the quality of the evidence placed before it.”
¶ 48. Patricia argues that she was aware of Carl‘s condition of health and decided it was inappropriate to raise the issue of reimbursement with him. It is not for this court to assess her seemingly circumspect motive. The trial court was not functioning in a vacuum. It heard her testimony relating to all six parts of her claim. In succinct terms, it found much of her testimony incredulous. This conclusion may have driven the trial court‘s decision on findings of fact and its ultimate discretionary application of laches. We can find no reversible fault in this exercise of discretion.
¶ 49. The trial court also based its decision on this contested claim not only on equitable grounds, but also on legal grounds. Patricia additionally contends that regardless of when the mortgage existing at the time of the divorce was paid off, Carl was obligated by
¶ 50. The court concluded that a practical construction of the divorce judgment resulted in Carl, and later the estate, owing no real estate taxes beyond the time the home was to be sold by one of the triggering events set forth in the stipulation. We agree with this construction. In Zweck v. D.P. Way Corp., 70 Wis. 2d 426, 435, 234 N.W.2d 921 (1975), our supreme court recognized:
It is a well-settled principle of Wisconsin law that, where contract terms may be taken in two senses, evidence of practical construction by the parties is highly probative of the intended meaning of those terms and the court will normally adopt that interpretation of the contract which the parties themselves have adopted.
The judgment of divorce required that Carl pay the “mortgage including principal, interest, insurance and taxes until the sale of the property.” The stipulation further provided that the home “shall” be sold upon the “the youngest child of the parties [Heather] attaining the age of twenty-two (22) years.”6 Heather turned twenty-two years of age on September 6, 1993.
¶ 51. The trial court applied the doctrine of practical construction to reach the conclusion that even if the final stipulation incorporated into the judgment of divorce required Carl to pay the real estate taxes after the mortgage was paid off, it did not require him to pay the taxes coming due after the youngest child attained her twenty-second birthday on September 6, 1993.
¶ 52. The trial court further supported its conclusion by observing that in accord with the stipulation, Patricia had the first option to purchase Carl‘s interest in the marital homestead. However, she did not offer to
After payment of all encumbrances, usual costs of sale, and prorations, the net proceeds from the sale shall be shared equally by the parties.
NOTE: The defendant agrees to be responsible for any reasonable needed interior and exterior painting upon the plaintiff supplying the paint and materials.
The conditions upon which the sale of said property shall occur are:
1) plaintiff‘s remarriage;
2) plaintiff moving from said premises;
3) the youngest child of the parties attaining the age of twenty-two (22) years;
4) plaintiff‘s death; or
5) upon the mutual agreement of the parties.
Both parties shall cooperate in the sale of the said property and the showing of same.
The defendant shall be responsible for all major repairs and maintenance expenses for the home in excess of $50 per event. The plaintiff shall pay the first $50 for each such repair. The cost of all repairs, maintenance, etc. over $50 per event and not covered by insurance, shall be shared equally by the parties.
By the Court.—Order affirmed.
¶ 53. FINE, J. (dissenting). In my view, the statutes here are clear and the estate‘s objection to the claim was not timely. Accordingly, I respectfully dissent.
¶ 54.
¶ 55. The majority concludes that
¶ 56. The following analysis applies here:
WISCONSIN STAT. § 801.15(5)(a) is the general statute—it applies to “all civil actions and special proceedings ... except where differentprocedure is prescribed by statute or rule.” See WIS. STAT. § 801.01(2) (emphasis added).WISCONSIN STAT. § 859.33(1) is the specific statute—it applies to the timely filing of objections to claims against estates.- Section
859.33(1) requires that an objection to a claim against an estate shall be served and filed “within 60 days after the copy of the claim was mailed to or served upon” the estate. (Emphasis added.) Section801.15(5)(a) gives an extra three days when document to which a response must be made is mailed to the party. - Section
859.33(1) thus conflicts with§ 801.15(5)(a) because application of the latter provision to the former modifies the former to require that any objection to a claim filed against an estate “shall be served upon or mailed to the claimant and filed with the court within6063 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate.”
Accordingly, under the universal rule recognized Maxey, the sixty-day period set out in
Notes
HOW CONTEST INITIATED. The following persons may contest a claim ...: the personal representative.... They may do so only by mailing a copy of the objection ... to the claimant or personally serving the same upon the claimant and filing the same with the court. The objection... may be served at any time prior to entry of judgment on the claim, but if a copy of the claim has been mailed to or served upon the personal representative or the attorney for the estate, the objection ... shall be served upon or mailed to the claimant and filed with the court within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate.
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:
(a) If the notice or paper is served by mail, 3 days shall be added to the prescribed period.
The complete text of the final stipulation as to this issue provided:
The joint tenancy of the parties in the residence located at 2180 E. Spruce Court, Oak Creek, Wisconsin shall be terminated and the parties shall hold said real estate as tenants in common. Upon the happening of any of the events hereinafter enumerated, said property shall be sold. The defendant shall continue to pay the mortgage, including principal, interest, insurance and taxes until the sale of the property and plaintiff shall be allowed to occupy the homestead until such sale. In addition, the plaintiff shall have the first option to purchase said real estate.