In RE MARRIAGE OF FRANKE v. Franke

Marriage In re the of: Kathryn Petitioner-Respondent- Jalas Franke,

Cross-Appellant, v. Respondent-Appellant-Cross- Martin T. Franke,

Respondent. Supreme Court argument 16, No. 01-3316. Oral September February Decided (On certification from the court of appeals.) 8WI

(Also 832.) reported in 674 N.W.2d respondent-appellant-cross-respondent For (in appeals) by there were briefs the court of David E. Brady LLP, Quarles Jarvis and & Milwaukee, and oral argument by David E. Jarvis. petitioner-respondent-cross-appellant

For the there by Rogahn Jones, was a brief Colleen Wentworth Rod W. Rogahn argument Law Offices, Delafield, and oral by Colleen Wentworth Jones.

¶ 1. SHIRLEY ABRAHAMSON, S. C.J. This case by comes before the court on certification the court of (Rule) appeals, pursuant § to Wis. Stat. 809.61 (2001-2002).1 Washington County, The circuit court for Faragher, Judges, Leo F. Schlaefer and Patrick J. en- opening judgment tered orders the divorce under Wis. § modifying provisions Stat. 806.07 and of the divorce judgment relating property sup- division and child port. The circuit court awarded an increase in the amount Mr. Franke was to contribute toward Ms. attorney Franke's fees, but not as much as Ms. Franke change provi- wanted. The circuit court refused to judgment setting party's sion the divorce each share liability.2 of the 1995 income tax 1All subsequent references to the Wisconsin Statutes are to the 2001-2002 version unless otherwise indicated.

2 Judge Schlaefer opening judg issued orders the divorce July July 30, ment on 27 and Upon retirement, his assigned Judge case was Faragher. Judge Faragher generally disagreed Judge with Schlaefer's conclusions of law. The order (1) 11, 2001, September dated (Judge Faragher) stated that Wis. may Stat. 806.07 not be used to review a final and 2. Four issues of law are presented: (1) May open property a circuit court division

provisions judgment of a divorce under Wis. though judgment Stat. 806.07 even the divorce incorporated an arbitral award that had been confirmed the circuit court?

(2) Assuming that a circuit court relieve a provisions of such a

party property from division 806.07, divorce under Wis. Stat. did erroneously the circuit court exercise its discre- opening judgment? tion this (3) § 806.07 is used to relieve a When Wis. Stat. provisions division of such a

party from judgment, divorce is the relevant date of valua- closing of the of the tion of assets date or the date of the divorce? arbitration record (4) may party from If a circuit court relieve a

property provisions judgment, of such a division erroneously exercise its did the circuit modifying judgment discretion in to increase division, property to Ms. Franke's share support pay- Mr. child increase the Franke's ments, and to increase Mr. Franke's contribution attorney toward his former wife's fees incurred modify judgment; refusing after the divorce in (2) award; a that final and arbitration arbitration "special exception general prop- to the rule that circumstance" (3) divorce; the circuit erty is valued as of the date of the attorney fees or additional prior court will not rule on award (4) attorney party; must fees to either Although to the court. submit other issues consideration Judge at odds with Judge Faragher's conclusions of law were Judge Faragher to review rulings, earlier declined Schlaefer's and Ms. Judge prior appealed Schlaefer's orders. Mr. Franke cross-appealed. Franke liability; income tax

the allocation of the 1995 refusing require Mr. Franke to contrib- and in his former wife's ute additional sums toward judg- attorney incurred after the divorce fees ment? as follows: questions posed answer the We

(1) may party property A circuit court relieve from judgment of a divorce under provisions

division though § 806.07 even the divorce Wis. Stat. incorporates a confirmed arbitral judgment award.

(2) erroneously did not exercise its The circuit court opening prop- in

discretion under 806.07 judgment. erty provisions of the divorce division (3) constitute, but does not as a Arbitration constitute, exception special of law

matter requiring property to be valued as of the date of closing of the arbitration record instead of date of divorce. (4) erroneously The circuit court did not exercise its modifying

discretion divorce Ms. Franke's share of the increase Mr. toward division and Franke's contribution attorney his former wife's fees incurred after the judgment. The circuit court did not divorce erroneously refusing exercise its discretion modify judgment the divorce to reallocate the liability parties. income tax between the (Judge Faragher) did not erro- The circuit court neously refusing in to exercise its discretion require Mr. Franke to contribute additional postjudgment sums toward his former wife's attorney erroneously ex- fees. The circuit court increasing ercised its discretion in Mr. Franke's support payments. child orders of the cir- we affirm the Accordingly, 4. ¶ to increase Ms. judgment the divorce revising cuit court Mr. division Franke's share post- his former wife's contribution toward Franke's The orders of circuit attorney fees. postjudgment Ms. Franke additional to award refusing modify the allocation refusing fees and attorney are also affirmed. liability income tax the 1995 child is reversed modifying support order circuit court's for further consider- the circuit court and remanded to with this opinion. ation not inconsistent

I atten- occupied This divorce proceeding 5. ¶ years. for several We courts and an arbitrator tion of the relevant of those facts an abbreviated version set forth ap- Additional facts deciding presented. the issues later in the opinion. pear 29, 1989. married on December The Frankes 6. Ms. Franke later, 26,1993, on July four years

Less than proceed- the divorce During for divorce. filed a petition to mediate court ordered the the circuit ings unsuccessful but these efforts were their disputes, in October of broke down to com- attempts various From 1994 to in the made, culminating were

plete proceedings have all agree April decision parties' arbitra- divorce resolved their disputes tion. 1996, the par- and October July 8. Between After hearings. in several arbitration participated

ties re- 1996, the arbitrator in October hearing the last was be- the homestead documents, additional quested details" needed "housekeeping and various sold, ing In the attention. summer of 1997 Mr. Franke filed an updated financial disclosure statement with the arbi- trator that reflected the ostensibly value of his assets as of October 1996. Mr. Franke's work buy- involved the and consolidation of ing, selling, assets, communication financial making calculations particularly complex. 9. The arbitrator issued a final award on April 16, 9, 1998, 1998. On June on motion, Ms. Franke's circuit court confirmed the arbitrator's award and or- dered that divorce be entered in judgment conformity with the In award. accordance with the confirmation order, the arbitral award was incorporated reference into the final judgment divorce filed and dated July 13, 1998 and made the judgment of the court. The arbitral award determined property division, child sup- port, party's each for liability taxes, 1995 income the sum Mr. Franke was to contribute toward Ms. attorney Franke's fees incurred the divorce during proceedings. Just over nine later, 15, months on April

1999, Mr. Franke filed a motion seeking hold Ms. Franke in contempt failing to and return sign tax parties' joint income return as by the required arbitral award and On judgment. 26, 1999, May Ms. Franke responded with motion to open June 1998 divorce judgment pursuant to Wis. Stat. §§ 806.07(l)(a), (b), (c), (h), and 767.32 (relating modification of child support), alleging, that Mr. part, Franke had failed to disclose certain assets and pro- vided erroneous valuations of other assets. Ms. Franke requested circuit court revise portions of the divorce relating division and child support reflect what she asserted was the true value of the assets. She requested also the circuit court qnd her share of income tax for 1995 liability reconsider fees. attorney award her additional The the divorce opened judg- 11. circuit ¶ ment after entered decision and order and, hearings, Mr. dated 2000. The order increased Franke's July $2,300 $3,000 child from payments per support $5,000 month increased Mr. Franke's payment and after attorney his former wife's incurred toward fees the divorce judgment. 12. The order each modify party's refused

¶ liability. share of the 1995 income tax The order Ms. share of 13. increased Franke's ¶ the Franke to Ms. Franke requiring Mr. property, pay $25,000 $50,000 of a loan Mr. as a one-half share to All City Company, Franke made Communication Inc., as of Mr. $28,457.22 and an additional her share All City. revalued interest the stock of Franke's Further, of 14. on the basis the circuit court's that Mr. had not been forthcoming conclusion Franke assets, the circuit court ordered about his various Franke's financial records discovery additional of Mr. between the close of time covering period judg- record of the divorce entry arbitration and ment. retirement, the cir- After Schlaefer's Judge the relevant stating

cuit court issued order of the Frankes' the close property valuation date was record, it would not award Ms. the arbitration pro- fees for attorney postjudgment Franke additional it revisit of the earlier and that would not ceedings, circuit orders of the court. cross-appealed, appealed to this court. appeals

and the court certified case

II question presented ¶ 17. The first is whether a may open provisions circuit court division of a divorce under Wis. Stat. 806.07 when judgment incorporated the divorce a confirmed arbitral award.3 question,

¶ 18. To answer this we must examine interplay among following: 806.07, A. Wis. Stat. governing opening judgments; (Rule) B. Wis. Stat. 802.12(3)(c), governing binding family actions, arbitration certain along law with chapter arbitration; 788 governing 767.255(3)(L), § C. Wis. Stat. imposing responsibilities on a circuit court in determining property division in a judgment. divorce

A § ¶ 19. Wisconsin Stat. 806.07 allows a circuit party judgment, court, motion, on to relieve a from a stipulation upon just order, or such terms as are and for eight § one of the reasons enumerated in 806.07.4 purpose 20. The of Wis. Stat. 806.07 is to "achieve a balance between fairness in the resolution of disputes policy favoring finality judg- and

3 Interpretation of presents rules and questions statutes law that we determine independently of the circuit court but benefiting from analysis. its 806.07(1) Wisconsin Stat. adopted by was court rule and provides as follows: (1) judgment 806.07 Relief from upon or order. On motion and just,

such may terms as are party court.. . relieve a . .. from judgment, stipulation a order following for the reasons: (a) Mistake, inadvertence, surprise, neglect; or excusable fairness in the adminis- ments. The statute enhances court to vacate a circuit by authorizing tration justice equitable grounds."5 on various judgments all to civil actions and applies 21. Section 806.07 actions, family unless proceedings, including special Section 806.07 has are to be found.6 contrary rules actions, and the courts family been applied often to use authority of circuit courts upheld have a terms as judgment upon 806.07 divorce such open "a has family court has just. are The stated a division under sec. authority modify property in a divorce 806.07, a division Although Stats. continuing jurisdiction not the court's subject is of circum- change modified based on be (b) party Newly-discovered a new trial which entitles evidence 805.15(3); under s. (c) Fraud, misrepresentation, or misconduct of an adverse other party; (d) void; judgment is The

(e) satisfied, discharged; judgment released or has been (f) judgment prior judgment upon has been A which the is based vacated; reversed or otherwise longer equitable (g) should have It no prospective application; or (h) operation Any justifying relief from other reasons judgment. 5 Ins. 210 2d Physicians Corp., Serv. Wis. Edland v. Wis. omitted). (1997) (citation 644, 638, 563 N.W.2d 519

6 801.01(2). § Wis. Stat. 767.32(1), gives Stats., stances under sec. 806.07 sec. discretionary authority grant the court relief from judgment."7 not, 22. The court however, has been faced with § using open the issue of Wis. a Stat. 806.07 to divorce judgment incorporating a confirmed arbitral award. argues, Mr. Franke effect, our cases applying judgments Wis. Stat. 806.07 to divorce are applicable open property here to a division of a judgment incorporating divorce a confirmed arbitral correctly general award. He contends that the rule is scope are that courts more limited in the of review of scope the substance of arbitral awards than in the judgments review of substance not based on arbitral awards. exceptions, A will, with some confirm regardless

an arbitral award of whether the award is correct or incorrect matter as a of fact law because public policy promoting favors arbitration as the effi- disputes, giving cient resolution of and as bargained they what for, that is, arbitrator's, not a 7 Spankowski Spankowski, 285, 290, v. 172 Wis. 2d (1992) (citing Thorpe N.W.2d 737 Thorpe, v. 123 Wis. 2d (1985)). 426, 367 N.W.2d Tozer, Tozer 187, 189, See also v. 121 Wis. 2d 358 N.W.2d (1984) 537, 539 (recognizing power of a court to use 806.07 to open judgment property divorce as to division while noting reviewing that a court will reverse circuit court's refusal to do only discretion); so Conrad, for abuse of Conrad v. 92 Wis. 2d (1979) 407, 413, 284 N.W.2d 674 (noting a stipulation when failed name, to address certain wife's circuit court's refusal open under 806.07 constituted erroneous discretion). exercise of secondary authority Our cases and court's decision. review of an judicial that arbitral principle support is narrow.8 award gird- 25. Mr. Franke asserts that these policies allowing an attack arbitration would he ill-served

ing on of divorce judgment incorporating § 806.07 under words, his argu- arbitral award. In other a confirmed give way conflicts with and must ment is that 806.07 802.12(3)(c). (Rule) however, note, We to ch. 788 and 806.07, 788.10, §§ and extent, Wis. Stat. some for opening forth similar criteria 788.11 set respectively an arbitral vacating modifying judgment award. on Wis. Stat. contrast, In Ms. Franke relies 788.14, incorporating that a provides which effect, same force and in all arbitral award has "the

8 v. School District No. 10 expounded As this court Joint Association, 94, 116-18, 253 78 Wis. 2d Educational Jefferson (1977): N.W.2d relitigate to arbitration. The The not issues submitted court will decision, the court's. contracted for the arbitrator's with cannot be interfered ... The decision of an arbitrator judgment as to law or fact. Courts will overturn an mere errors of perverse or if there if is a misconstruction arbitrator's award there established, positive plainly or if there is a manifest misconduct law, disregard illegal itself is or violates or if award strong public policy. Dankert, 110, 113, v. 2d 503 N.W.2d also 178 Wis. See Lutkowski 1993). (Ct. Secondary authority supports proposi App. award "is of an arbitration scope judicial review tion E. Lawrence & to the law." Laird among narrowest known Ward, Arbitration Availability Scope Christopher R. Acts, Federal, 29 The Uniform, and State Awards under (2000). Brief respects, as, subject provisions and to all of law [is] to, in an and a relating judgment argues a action" that subject an arbitral award to judgment confirming is § 806.07.9 needWe not address the broader that issue namely §

the Wis. parties dispute, whether Stat. 806.07 to all a applies judgments confirmed incorporating arbitral award.10 We need address whether only § to 806.07 the of applies provisions division a statutes, parties rely While the the on on the terms of agreement, the arbitration to their arguments, buttress the agreement arguably interpreted arbitration could be to allow parties the judgment confirming to seek relief from a the § arbitral award agree under Wis. Stat. 806.07. The arbitration ment states that an arbitration award "shall not be modified or re-litigated in except provided the circuit court as in Secs. 802.12(3)(e) [sic], by as required 788.10 788.12 Rule provision play Stats." This not come present does into in the dealing because are with judgment, case we the not the award. agreement The goes arbitration on address a to circuit court's power judgment award, over confirming stating: the an "How ever, confirming after an order the is entered the award judgment circuit court pursuant 788.09, as a to Sec. and 802.12 Stats., agree the expressly the circuit court has matter, continuing jurisdiction may party bring and either modify judgment a motion to in the circuit court pursuant [relating to Sec. 767.32 support] [relating and Sec. 767.325 added). legal custody physical placement]." (emphasis emphasized they words are superfluous something unless mean than may modify other circuit court judgment relating legal custody, to support, and physical placement. The heavily very dissent relies on the existence of the terms agreement arbitration emphasized but reads the words out of agreement. dissent, See Justice Prosser's 10Our very research indicates that few courts have ad dressed the question may under what judgment conditions a confirming an arbitral opened. award be confirmed arbitral incorporating divorce judgment examining task first by are this guided award. We 802.12(3)(c) (Rule) and then Wis. Stat. Wis. Stat. 767.255(3)(L). Federal Rule of Procedure have concluded that Civil Courts 806.07, 60(b), analogue open can be used of Wis. Stat. Lines, Air In judgment that confirms an arbitral award. Baltia (D.C. Inc., Cir. Management, 98 F.3d Inc. v. Transaction 60(b) 1996), "[a]lthough Rule the court concluded that challenge a confirm- appropriate vehicle which award, has not met the standards ing an Baltia arbitration implicitly has the rule." The Seventh Circuit relief under 60(b) modify judgments to confirm- the use of Rule authorized Co., Leatherby Ins. 714 Merit Ins. Co. v. ing arbitral awards. See (7th 1983) 673, (failing provide to relief from Cir. F.2d 682-83 60(b) not that Rule was judgment suggesting without the Co., available). Nat'l Co. v. TIG Reinsurance In Clarendon Ins. (S.D.N.Y. 1998), 112, Judge Robert Sweet 183 F.R.D. 117-18 60(b) judgment may modify used to the that Rule be concluded award, relying an on of arbitral of a circuit court's confirmation 788.14(3), provides analogue which federal to Wis. Stat. the an conformity in with arbitral award judgment a entered effect, subject be respects, and in all as and has the "same force to, an relating a in action." provisions all the of law to 60(b) contrast, has been Rule of Civil Procedure In Federal award, being modify an arbitral as not available to viewed as See, judgment confirming distinguished an award. from a arbitral Washington e.g., Washington-Baltimore Newspaper Guild v. Post 1971) 60(b) (D.C. (neither Co., 1234, Cir. Rule F.2d 1238-39 designed Civil Procedure was nor the other Federal Rules of of Pierce, awards); Hough Lynch, v. Merrill apply to to arbitration (S.D.N.Y. 1991) Smith, Inc., 283, Supp. Fenner & 289-90 757 F. 60(b) (courts award); may an arbitration Rule to overturn use F.Supp. (S.D.N.Y. Inc., 122, v. Salomon Cook Chocolate Co. 1990) 60(b) (Judge that Rule is unavailable to Robert Sweet held decision). an arbitrator's use to contest B (Rule) 28. This court Wis. adopted Stat. 802.12(3) in Rule, 1993.11 Prior to the of adoption this no existed express provisions relating to arbitration in 802.12(3) actions the affecting family. Rule provides a binding arbitration as mechanism to resolve certain

familial disputes between a husband wife.12 Rule 802.12(3)(c) confirmation governs circuit court's of an arbitral award addressing adult financial issues and an incorporating award into a divorce judgment. The Rule limits a court's to powers confirm an arbitral award and it incorporate into divorce A judgment. subject court's are powers §§ to Wis. Stat. 788.10 and 802.12(3)(c) 788.11. Rule as reads follows: 802.12(3)(c). parties If agree binding arbitration, shall, 788.11, subject to ss. 788.10 confirm ^[11] prior adoption this rule, had the option using family disputes arbitration in as a arriving means at agreement. See of Supreme Record Court Public Hearing 93-13, Attorney Letter from Supreme Leonard Loeb (Oct. 1993): Court already

Arbitration well be available under Wisconsin existing law, litigants family common but Bar and the simply considering law area are unaccustomed it. A statute/judicial clearly determination that identifies arbitration as alternative, process use, an available and the describes for its great help public of to would be the the and Bar. Id. at 1-2. section, only In this we part address of Wis. Stat. (Rule) 802.12(3)(c) governing property division. We discuss (Rule) 802.13(3)(c)

the application § of attorney fees and (Rule) of liability allocation 802.12(3)(d) income tax the application and of (e) and to arbitration of children's issues later in the opinion. into incorporate and the award

the arbitrator's award order with postjudgment modification or following: respect to all of the 767.255. Property 1. division under s. s.

2. Maintenance under 767.26. Attorney

3. fees under s. 767.262. modifying under maintenance Postjudgment orders

s. 767.32. added).

Id. (emphasis a circuit requires § 788.10 Wisconsin Stat. an award was procured an award when court to vacate means; or when there fraud, undue by corruption, misconduct, misbehav- or corruption, partiality, evident or or an arbitrator exceeded arbitrator; of an when ior powers.13 his or her executed imperfectly requires § 788.11 circuit Stat. 30. Wisconsin when, generally speaking, an award modify provides as follows: Stat. 788.10 Wisconsin (1). county was wherein the award [T]he . court in for the . vacating upon application make an order award made must any party to the arbitration: (a) by procured corruption, undue fraud or the award was Where means; (b) corruption part of partiality or on the there evident Where was them; arbitrators, either (c) refusing guilty of misconduct in the arbitrators were Where shown, hearing, or in postpone upon sufficient cause refusing pertinent material to the contro- evidence hear any rights versy; or of other misbehavior which party prejudiced; have been (d) imperfectly powers, their or so exceeded Where arbitrators mutual, upon the final and definite award them that executed subject not made. matter submitted was there was an material evident miscalculation or mis- upon take or when arbitrators have awarded a matter not submitted them.14 argues §§

¶ 31. Mr. Franke that Wis. Stat. 788.10 challenging judg- and 788.11 are the sole means for a incorporating ment a confirmed arbitral award. The provisions speaks text of these a circuit court's vacating, modifying, confirming an arbitral award prior judgment. present ato In case, the the circuit already court has confirmed the arbitral award and incorporated judgment.15 it into the divorce The final incorporate agreement divorce does judgment incorporates arbitrate; the arbitration award. 788.10 and not, Sections 788.11 are therefore on face, their determinative of this case. provides: Wisconsin Stat. 788.11 (1) [TJhe county . .. and for the -wherein the award was modifying correcting

made must make an upon order or the award application any party of to the arbitration: (a) figures Where there was an evident material miscalculation of description any person, or an evident material mistake in the thing award; referred to in the (b) upon Where arbitrators have awarded matter not sub- affecting mitted to them it unless is matter not the merits of upon submitted; the decision the matters (c) imperfect affecting Where the award is in matter form not controversy the merits of the 15The agreement provides arbitration that when an order confirming the award is entered parties appellate could seek upon review and appeal such an the appellate court would not grounds be §§ limited set forth in Wis. Stat. 788.10 and 788.11. The did appellate not seek order review the confirming award, provision and this of the arbitration agreement is not relevant to this case. be drawn Nevertheless, inferences on a and 788.11's limitations §§ 788.10

from Wis. Stat. an arbitral modify vacate and court's to powers circuit A reasonable judgment. confirmation before award of not, a entry a court is upon circuit inference is from the limitations freed judgment, suddenly divorce judgment a divorce change §§ and 788.11 788.10 of property award on a arbitral confirmed incorporating just like judgment and treat such divorce division this expressed Judge Faragher judgment. divorce other "To one of permit as follows: view hearing after arbitration, relitigate an issue parties, agreement violate the arbitration would in found procedures also be inconsistent with hut would of an arbitration vacation regarding . . . 788.10 sec. sec. 788.13... meaningless make and would award vacate, modify of motion to that notice providing upon party the adverse an must be served correct award or deliv- award is filed after the three months within ered." Stat. Wis. therefore examine 33. We responsibil- a circuit court's 767.255(3)(L), governing

§ determining in guidance ity dividing property, in under authority open, a circuit court has whether in a division 806.07, provisions § property Stat. Wis. arbitral a confirmed incorporating divorce expressed limitations regardless award 802.12(3)(c). §

c requires ¶ 34. Wisconsin Stat. 767.255 that a property16 circuit court divide authorizes circuit equal property court to deviate from an division of after considering applicable statutory factors set forth in 767.255(3).17 Wis. Stat.

¶ 35. One of the factors a circuit court considers deviating equal from an division is the agreement parties. terms an between the Wisconsin 767.255(3)(L)18 provides agreement Stat. be- parties binding presumption tween the is and creates a agreement equitable parties. that the provision as to both The caveat,

contains a however, critical in that no agreement parties regarding property between the binding upon division shall be the court when the terms agreement inequitable party.19 are as to either 16 767.255(1). See Wis. Stat. 17 LeMere, WI 67, 25, 262 LeMere v. Wis. 2d N.W.2d 789. present The arbitrator in the property case divided all known explicitly applicable stated that he considered the factors set forth Wis. Stat. 767.255 to determine whether division equal

other an apply. than division should 767.255(3)(L) Section part states in relevant that: (3)(L)... equal [a property court alter an division of after considering] [a]ny agreement by parties written made the before during marriage concerning any arrangement or distribution; agreements binding such upon shall be the court except agreement that no such shall be where the terms of agreement inequitable party. are as to either The court shall presume any agreement equitable such parties. to be as to both added). (emphasis Id. 19See also Wis. Stat. (authorizing parties 767.10 to an annulment, divorce, legal separation stipulate to ato division intended a circuit legislature safeguarding thus agreement, to the parties' effect give contract. The of freedom to policy important public however, a competing public expressed, also legislature codified in the law and then found in the common policy to marriage relating code that promises law family policy.20 contravene public cannot marry agreement and the agreement 37. The private are their nature marriage to dissolve the institution but parties, decisions between to dissolve authority as well as marriage, by the laws of institution, extensively governed are contracts, commercial In contrast with most state. in the substantive rétained an interest society has and divorce. relating marriage terms of contracts from a marriage were no different If the contract automobile, thereto to sell an contract away all interests permitted bargain might well be has an involved, But the State in or out of court. vastly family relations of its citizens interest in the ordinary com- the interest it has different from mercial transaction.... unique in contract, marriage contract

As a compre- do not marriage to a parties the law.... court). In Van Boxtel approval subject to property of Boxtel, 2001 WI 40, 21-28, 474, 242 2d 625 N.W.2d Wis. ¶ v. Van made agreements that are 284, separation the court ruled governed are contemplation separation of separation after or 767.255(3)(L), a recommenda 767.10, and constitute by regarding what the jointly by parties to the court made tion provide. should 20 (1951). at § 1474 610 6A on Contracts Corbin

383 hend between them all the interests that the relation Society contains. sanctions the institution and creates and enforces its benefits duties.21 regards 38. As property divorce, division agreement between the must be equitable to protect parties' status partnership mar- during riage,22 as well as their economic welfare after di- A protects vorce.23 parties' inter- public ests reviewing the substantive provisions of agreement affecting division of property.24 39. While "the parties [to a are divorce] free to contract, . . they . contract in the shadow of the court's obligation to review the on agreement divorce to protect

21 Sherrer, (1948) (Frank 343, Sherrer v. 334 U.S. 358-60 furter, J., dissenting). Askew, See also v. 359 Supp. F. Shiffman (M.D. 1225, 1973); Institute, 1229-31 Fla. American Law Prin ciples Family 7.02, the Law Dissolution c Comment of of (2002) ("Enforcement agreements consequences about family dissolution present policy therefore a different question than agreements enforcement commercial persons between who otherwise have no claims on one another's income."). 22 Perrenoud, 36, Perrenoud 39, v. 82 Wis. 2d 260 N.W.2d (1978).

658 23 Boxtel, 474, 23; Button, Van 242 Wis. 2d Button v. 131 (1986). 84, 94, 2dWis. 388 546 N.W.2d 24See, Boxtel, e.g., 474, 20-21; Van 242 2dWis. ¶¶ Rintel Rintelman, man v. 587, 599, 118 2d (1984); Wis. 348 N.W.2d 498 Bergevin Bergevin, 466, 470, v. (1919); 168 Wis. 170 N.W 820 Polakowski, Polakowski 20, 9-10, v. App WI 259 Wis. ¶¶ 765, 102; Patrickus, 2d 657 N.W.2d Patrickus v. AppWI 255, 10-11, 205; Ross, 2d ¶¶ Wis. 620 N.W.2d Ross v. (Ct. 1989). 713, 718, 149 Wis. 2d 439 N.W.2d 639 App. spouses' Further, on divorce."25 interests financial agreement adopts "[w]hen of the and an a court follows making judgment, part parties the court does it a of its provisions responsibility, and the become on its so own judgment."26 of the arbitration It is the terms own its agreement arbitrate, that to award, not the terms of may incorporate within its reviews and a circuit court judgment. Stat. a court has under Wis. 40. Thus 767.255(3)(L) important oversight re- function an agreements parties

garding private made between judi- equitable. contrast, In the terms are ensure that proceedings is, of arbitral awards cial review very statute, limited. today merely clarifies that 41. Our decision confirming an a circuit court enters a

when same division, award in arbitration public policy implicated are as would considerations stipulated particular parties divi- to a if the had arise 767.255(3)(L) property. Stat. text Wis. sion of The agree- types among various not differentiate does parties. it does not differenti- Thus between the ments agreement arbitration an for ate between apparent agreement parties. between other 802.12(3)(c) prior adoption practice of Rule was voluntarily into arbitra- entered that when the proceedings, completed the arbitration tion and 25 Button, that a court must (concluding 94 131 Wis. 2d at 767.255(3)(L) §to precursor agreement under review Abitz, 161, 177, 2d 455 v. fairness); Abitz 155 Wis. substantive (1990) takes an active role (noting that the court N.W.2d stability and best reviewing stipulations promote divorce family). interests (1960) Miner, 438, 443, 2d 103 N.W.2d Miner v. 10 Wis. 767.255(3)(L)). (decided adoption prior reduced the award parties stipulation. terms the to The circuit court then the it stipulation reviewed as did 767.255(3)(L).27 any stipulation other under § Implicit in Ms. Franke's argument that Wis. § Stat. 806.07 the allows circuit court the open division in the property case, of the present regardless existence of binding arbitration, that Rule 802.12(3) (c) cannot limit a circuit court's in power confirming an arbitral award on property division to consider the equity such agreements because of Wis. 767.255(3)(L). 767.255(3)(L) Stat. Section requires circuit court to divide property the of the parties upon the full parties' disclosure of their finances and provides agreement that no between the about division "shall be where the terms of the agreement are inequitable as either party." 43. We with agree Ms. Franke that the circuit court's statutory responsibility to agreements review 767.255(3)(L) under Wis. Stat. does not comfortably mesh with our 802.12(3)(c), Rule which limits the circuit court's responsibilities in reviewing, modifying, and incorporating arbitral awards regarding property division in a divorce judgment. Supreme In the hearing Court on the adoption of Rule

802.12, Attorney Linda Balisle adoption noted that the of the rule would supplant then-existing the practice that the "divorc ing parties may any arbitrate If, or all issues their divorce. upon completion arbitration, they reduce the terms to a stipulation, the trial stipulation reviews as it does other and affirms or stipulation." modifies Record of Wis Supreme consin 93-13, Court Hearing Balisle, Public S. Linda Remarks Regarding Petition for Dispute Alternative Resolution (on Family Law at 1 Cases file with Clerk of the Wisconsin WI). Supreme Court, Madison, at attorney raised this concern 44. One Rule 802.12. Coun- adopt petition on hearings retained, namely law be then-existing urged sel to review obligation retain the a circuit court ap- and that any agreement stipulation fairness a circuit retain their review powers courts pellate the sub- on Such review of appeal. court's a circuit court and award both of an arbitral stance asserted, is, necessary counsel of appeals the court the public.28 of the and protection parties rule does not hearing 45. The record of the and argument, of counsel's the court's discussion reflect 802.12(3)(c) as proposed pursu- Rule adopted the court adoption hearing on the of Rule supreme court In the court Attorney argued that circuit review 802.12, Linda Balisle adoption of be limited an arbitral award would of proposed rule: require the trial petition court would that is before this give award and would limit to the arbitrator's deference modify ability consistent or vacate award trial court's Further, and 788.11. provisions of Stat. secs. 788.10 with the Wis. Supreme Appeals and the Court's it of would limit the Court family whether to the narrow issues of these law cases of review applied and 788.11 in affirm- properly Secs. 788.10 the trial court ing modifying an arbitrator's award. or in should not be restricted court's standard of review This provisions application

family of Secs. 788.10 to the of law cases special expertise in have no 788.11 when the arbitrator law, of the is no written record of the when there this area developing aspects proceeding in all is still and when the law relations. domestic Hearing 93-13, Supreme Public Court Record Wisconsin Regarding Petition for Alternative Balisle, Remarks Linda S. (on at 1-2 file with Family in Cases Dispute Law Resolution WI). Madison, Court, Supreme Clerk rulemaking powers ant its under 751.12. Section pertinent part, adopt court, 751.12 authorizes this in "regulat[ing] practice, procedure pleading, rules judicial proceedings in courts," all but the rules "shall abridge, enlarge, modify rights or the substantive any litigant."29 litigants dispute challenge

¶ 46. The in this do not 802.12(3)(c) ground Rule on the that it broaches Wis. proce- Stat. 751.12's divide between substance and dure.30 We need not determine whether Rule 802.12(3)(c) merely provides proce- a new, alternative dividing property fundamentally changes dure for rights substantive available to in a divorce. say appears Suffice it to a tension to exist between 802.12(3)(c) 767.255(3)(L), Rule and Wis. Stat. and we interpret way should the Rule and the statute provisions. harmonizes the two ¶ 47. To harmonize the two and effectuate the purposes of both, we conclude that a circuit court must incorporating treat divorce a confirmed property arbitral on award in division a similar fashion 29Section provides, alia, 751.12 inter as follows: (1) pleading 751.12 practice. supreme Rules of The state court shall, hy regulate pleading, practice, procedure ... rules in judicial courts, proceedings purposes all simplifying in for the of promoting speedy the same and litigation of the determination of upon abridge, enlarge, modify its The merits. rules shall not rights any litigant. substantive of 30 Holmes, State v. In n.11, 2d 106 Wis. 45 315 N.W.2d (1982), 703 the Court was made of possibility aware that use rulemaking of its power produced could have a substantive change judge in requests. substitution question Because case, was not before the court in that we declined to it. consider Id. as, its treatment of way the same to, exactly not in but 767.255(3)(L) § over under judgments other divorce as jurisdiction exercise its the circuit which greater must deference give Circuit courts necessary. under Rule award of 'a division property an arbiter's 802.13(3)(c) of types agree- to other they than would parties. ments between this conclusion. support 48. Several reasons a has, long- previously, as we have stated

The state an alternative arbitration as standing favoring policy encour- court has of resolution.31 dispute method 802.12(3) (Rule) court-annexed in Stat. Wis. aged resolution, including binding arbi- dispute alternative The arbitrator tration, litigation. a supplement as can decision maker who third-party independent and the considering parties' division decide property reach contrast, In when the interests. public's divi- property tend to view they their own agreement, and not only bargain a matter of their economic sion as of under- public policy a sense to motivated be divorce law.32 lying 802.12(3)(c), This Rule harmonization 767.255(3)(L), pro- and Wis. Stat. 806.07 Stat.

Wis. in preserving integrity interest public's tects and the litigants' sacrificing arbitration without divisions review judicial property interest public's in divorce. holding of our scope reiterate the narrow 50. We holding to divisions We limit our

today. arbitral confirmed incorporating judgments divorce whether Stat. not determine Wis. do award. We Shah, 104, 111, 533 N.W.2d Wis. 2d DeBaker v. arbitration). (1995) (the favors of this state policy

32Miner, 2d 10 Wis. at

§ power open 806.07 vests circuit courts to all final judgments incorporating judg- arbitral Divorce awards. statutorily A ments are different. circuit court is re- quired perform independent, an substantive review agreement parties' incorporating before it in the judgment. divorce considering In sum, after Wis. Stat.

§ § 767.255(3)(L), 802.12(3)(c), 806.07, and Rule we may properly a conclude that § circuit court invoke open provisions 806.07 to division of a incorporating divorce a confirmed arbitral award.

Ill Having may ¶ 52. resolved that a circuit court use § open judgment incorporating Wis. Stat. 806.07 to a a property, confirmed arbitral award on the division of we question, namely turn to the second whether the circuit properly exercised its discretion under 806.07 present open judgment. case to the divorce present 53. Ms. Franke asserts that case 806.07(l)(a), (b), (c), (h), providing falls within party judgment, that a court relieve a from order stipulation following or for the Mistake, reasons: surprise, neglect inadvertence, excusable (§ 806.07(l)(a)); newly entitling discovered evidence 805.15(3) (§ party 806.07(l)(b)); ato new trial under misrepresentation, fraud, or other misconduct of (§ 806.07(l)(c)); other reasons party adverse justifying operation judgment relief from the 806.07(l)(h)).33 (§ § relief under Wis. Stat. 806.07 is 54. Granting of the circuit court.34 We review a

within the discretion grant of relief from exercise discretion circuit court's for an erroneous exercise of judgment a under 806.07 must be discretionary determination "[A] discretion. by a mental which the process rational product relied are and are upon record and law stated facts of a achieving for the together purpose considered An appellate and reasonable determination."35 reasoned discretionary affirm a circuit court's decision court will facts, relevant court "examined the as the circuit long as and, demon- law, using standard of applied proper reached a conclusion that a process, rational strated Therefore, record reach."36 judge reasonable could circuit court's reasoned must "reflect on appeal to the standard legal application appropriate relevant of the case."37 facts

33 from her motion for relief properly Franke filed Ms. Stat. one-year period prescribed Wis. judgment within 806.07(2). 34 D.G.H., 536, 541, ex v. 2d rel. M.L.B. 122 Wis. 363 State (1985). N.W.2d 419

35 58, 66, 306 Hartung, 16 Hartung v. Wis. 2d N.W.2d 102 (1981). 36 (Ct. 691, 695, 462 Long Long, v. 2d 539 N.W.2d 196 Wis. M.L.B., 541; Shuput 1995). v. also 122 2d at See Wis.

App. (1982). Lauer, 177-78, 164, 325 321 109 2d N.W.2d Wis. 37 281, 2d Delgado, v. N.W.2d State Wis. (1999). function of this court is exercise

discretion the first instance but to review the circuit court's exercise of discretion. The record is clear that the circuit court exercised its discretion, concluding it Ms. grant should Franke's motion to open under Wis. Stat. 806.07(l)(a), (b), (c), and (h), but the circuit court did not explicitly state the subsection which it relied or upon fully explain its rationale. When a circuit court provide fails to an for its adequate reason discretionary decision, this court will uphold the circuit court's determination if examination the upon of record the facts the support circuit court's of exercise discretion.38 contends, 56. Ms. Franke and apparently the circuit court agreed, that opening judgment was because Mr. appropriate Franke failed to make full financial disclosures the arbitrator, court,

38 Co., Sentry Hedtke v. Ins. 461, 471-72, 2dWis. (1982); Co., N.W.2d 727 Christensen v. Econ. &Fire Cas. 77 Wis. (1977). 50, 55-56, 2d 252 N.W.2d 81 A in circuit court's decision the exercise of discretion will not be by appellate disturbed an court unless an abuse of discretion is If the record shown. indicates that the circuit court failed to discretion, exercise its the circuit court has abused its discretion. discretion, aWhen court appeal circuit exercises the record on must reflect application appro- the circuit court's reasoned of the priate legal standard to the relevant facts in the case. If this court's applied review the record indicates that the circuit court legal wrong standard in the exercise its discretion or support decision, facts of record fail to the circuit court's the circuit appellate has court abused its may engage discretion. An in its own examination of the record to determine whether the facts provide support for the circuit court's decision. DeSantis, State v. n.1, 155 Wis. 2d 456 N.W.2d 600 (1990). Presumably reasoned that the circuit court Franke. Ms. misrepresen- mistake, constituted this nondisclosure justifying relief under other misconduct tation, or § 806.07. disagree point, do not On this agrees that "if Franke's brief Mr. the relevant law.

about confirming judgment has been arbitration award by assets failure disclose a material infected point reopening."39 permit His 806.07 liabilities, opining is the divorce with of contention inter- his financial he disclosed He claims that factual. considered that the arbitrator to the arbitrator ests preparing the award. in them position not substantiated Mr. Franke's finding supports court's the circuit record, which company change in the value a material not, been, was disclosed have but should

issue coop- suggests a lack the record Further, arbitrator. making part financial his Franke's on Mr. eration the court arbitrator, and wife, the known to his status litigation. years in The been this case has that over the ruling support court's the circuit is sufficient record opening justified alleged the nondisclosure the that judgment. divorce Accordingly, circuit the conclude we erroneously in its discretion exercise

court did opening under 806.07. the divorce Brief Response and Reply Brief Combined T. Franke Martin Cross-Respondent and Respondent-Appellant at 4.

IV 60. The third issue we address is whether the relevant date of valuation of the parties' is the date of the closing the arbitration record or the date of the divorce. No case that we are aware of has dealt the with date-of-valuation issue when an arbitration award is disputed. Wisconsin Stat. 767.27 governs the disclo-

sure and valuation of assets in a divorce proceeding.40 767.27(1) Section requires that parties to a divorce forms complete fully disclosing all assets owned in full 767.27(2) or in part by either party. Wisconsin Stat. further provides that financial disclosure forms are to 767.27(1) provides Section as follows: 767.27(1) required. any Disclosure of affecting assets In action family, except marriage 767.02(l)(a), an action to affirm under s. require party furnish, the court shall each on such standard may require, forms as full disclosure of all assets owned part by party separately in full in by or either parties jointly. or may by party Such disclosure individually by be made each or parties jointly. required include, Assets to be disclosed shall but to, estate, savings accounts, shall not be limited real stocks and bonds, mortgages notes, insurance, and partner- fife interest ship, liability company corporation, limited tangible personal property, employment, income from future interests whether nonvested, vested or other financial interest or source. require party furnish, The court shall also each on the same form, pertaining standard information to all debts and liabilities of parties. conspicu- form used shall contain a statement print complete ous required disclosure of assets and debts is by provide law and deliberate complete failure to disclosure perjury. constitutes The court on its own initiative and shall request party at require of either copies to furnish of all state and federal income tax returns filed them for the past years, may require copies prior of such returns for

years.

394 the to the date of hearing."41 be on record "updated statute to mean that the have this interpreted cases date of "valued and divided as of the usually circumstances" exist.42 divorce," except where "special ruled (Judge The circuit court Faragher) nature, its constituted binding arbitration, by very that valua- a circumstance alternative justifying special a matter The circuit also ruled tion date as of law. 767.27(2) §of language referring updating that a at the the financial disclosure forms conclusion hearing of the arbitration refers the close hearing confirms rather than the date on which circuit court award. arbitral circuit court to the extent agree 63. We with the regarding property it that an arbitral award concluded very "special be circumstance" might division well date of deviation valuation as of the from justifying have a circuit court previously, As we stated divorce. under deferentially, consider more should 767.255(3)(L), an award from resulting arbitral 41 767.27(2) provides: text of The full required forms this section shall he filed within Disclosure under filing joint petition days the service or the of a 90 after of summons time the court circuit court at such other as ordered or such be Information contained on forms shall commissioner. hearing. updated the record date of on to the 42 Schinner, 81, 98, v. Wis. 2d 420 N.W.2d Schinner (Ct. 1988). 154 Wis. Sommerfield, See also v. App. Sommerfield 1990). (Ct. 851, App. 2d 454 N.W.2d 55 circumstances, see, Long, e.g., Long v. 196 Wis. special For (Ct. Brandt, 1995); 691, 698, App. Brandt v. 2d 539 N.W.2d 462 (Ct. 1988); 394, 421-22, App. 2d 427 N.W.2d 126 Wis. a husband "special existed where (holding circumstances" separa checking account between significantly depleted date was a separation tion the final divorce and assets). valuing marital "meaningful date" for parties' binding agreement types arbitration than other agreements parties. of between the But it not does heightened follow that a circuit court's an deference to requires, law, arbitral award closing as a of matter that always of the arbitration record must be property date on which the is valued. Although closing

¶ 64. of the arbitration meaningful record is a date and could serve as the date closing of valuation, we conclude that the of the arbi- categorical exception tration record does not create a 767.27(2) general valuing under to alter the rule of property at the date divorce. A circuit court considers special selecting what constitutes circumstances in valuation date other than the date of divorce aon case-by-case basis.43

¶ 65. conclude We the circuit court incor- rectly holding closing stated law in that the exception arbitration record constitutes a blanket gen- the date-of-divorce rule. We are satisfied that the eral rule that is to be valued at the date of coupled requirement divorce, with the de- courts general special viate from the rule when circumstances require, provides so a workable and flexible standard apply involving for circuit courts cases arbitral award. appropriate 66. We need not determine date

of valuation in case, this and we need not remand matter to the circuit court for such determination

43 circumstances," For of "special e.g., Fin see, discussions ley v. Finley, 2002 WI 144, 48, App 508, 256 Wis. 2d 648 Preiss, v. 536; Preiss App 185, 20-22, N.W.2d 2000 WI ¶¶ Long, 514; Wis. 2d Wikel v. 698; 617 N.W.2d Wis. 2d at Wikel, (Ct. 278, 287, 1992); 168 Wis. 2d App. 483 N.W.2d 292 Brandt, 2d at Wis. 421-22. explain apparently because, below, as we Ms. Franke asking modify this court the circuit court's increasing revision the circuit court order her share property. V Having questions resolved these of law, we briefly appeal: address the fourth issue raised on this erroneously Did the circuit court exercise its discretion (A) modifying in the to increase the wife's (B) property increasing share of the division; child (C) support payments; increasing Mr. Franke's contri- attorney during bution toward Ms. Franke's fees proceedings awarding divorce and not Ms. at- Franke torney during postjudgment proceedings; fees (D) refusing modify its allocation between the liability? of the 1995 income tax

A property ¶ 68. As to the revision division, of the argues erroneously Mr. Franke that the circuit court valuing property exercised its discretion in and in increasing property the wife's share of the division. Mr. primary argument Franke's is that the circuit court concluding erred in he that withheld relevant informa- assessing tion from the arbitrator and value persuaded by argument. certain assets. We are not this supports ¶ 69. conclude We that the record well the circuit court's determination Mr. Franke at- tempted to shift his assets to evade accurate valuation provide appropriate and refused to documentation to Furthermore, and the court.44 both the arbitrator financial documents provided court reviewed the circuit the property it revised rationally explained why it and $50,000 loan, All and the consistent City as to division property. division of the with 50/50 circuit from the cross-appealed 70. Ms. Franke conclusion of law (Judge Faragher's) court's closing date of the date of valuation was the it on this but point, arbitration record. She wins this Ms. Franke is requesting clear whether entirely the circuit remand the division to property the properties a determination of the value of court for From the proceed- as of the date of the divorce. issue Franke is not whole, conclude that Ms. ings as we further a remand to the circuit court seeking on the division. proceedings property cir- affirm the order of the Accordingly, we as property cuit court Ms. Franke additional awarding division. part

B that the 72. Both Mr. and Ms. Franke assert monthly it increased his child circuit court erred when 44 Rintelman, in previous Our decisions Rintelman v. 118 Nichols, (1984), and Nichols v. Wis. 2d 596 348 N.W.2d (1991), 96, 100-101, support 2d 469 N.W.2d 619 our Wis. estopped seeking that Ms. Franke is not from a conclusion in the four conditions change property division. The third of Rintelman, namely elucidated in that the overall settlement be fair, equitable, against public policy and not at the time of the judgment, in The circuit divorce is not satisfied this case. judgment, appar in opened property division the divorce ently concluding that the arbitration award was not fair and equitable. month.45 We

support payments by per review $700 circuit court order child regarding support for an erro- neous exercise of discretion.46 767.32(1) 73. Wisconsin Stat. provides that

modification of child order be made support may only if there has been a in change substantial circumstances affecting parties. Mr. Franke contends that no substantial in change circumstances occurred that would increase child Franke justify support. Ms. that the circuit responds court did not sufficiently child increase the support payments. parties dispute do not that the circuit court has the

power open judgment a divorce incorporating a confirmed (Rule) 767.32, support. §§ arbitral award on child See Stat. Wis. (e) 802.12(3)(d), (treating relating awards to children differ 802.12(3)(c) matters). ently regarding from Rule adult financial (Rule) Note, 1993, 802.12, Stats., Judicial Council comments as follows: (3) special family Subsection sets forth several considerations for arbitration, parties actions. Even when the consent to responsibility ensuring court retains the the arbitration custody, placement, support award in visitation and con- matters applicable

forms to the law. The court is not bound to confirm the Rather, award. arbitrator's it must review the arbitrator's decision light following of the best interest of the child. If this review the satisfy process court finds that the arbitration and its outcome statutes, requirements applicable may adopt of all the court as decision its own. agreement provided The arbitration also modify seek pursuant the divorce to 767.32. 46"The division of marital and the calculation of support generally child are matters left to the sound discretion discretion, however, of the circuit court. That must be exercised Cook, by applying legal correct standards." Cook v. 208 Wis. 2d (1997) (citations 166, 171, omitted); 560 N.W.2d 246 see also LeMere, WI 67, 262 LeMere v. 2d 2003 Wis. 663 N.W.2d 789.

399 claim that a Mr. Franke's 74. We first address change in did not occur be- circumstances substantial circuit arbitration and the the termination of tween modify support. order to court's 767.32(l)(b) circum- lists four 75. Section presumption of a sub- that raise a rebuttable stances change if circumstances, one of which occurs in stantial "[a] moving party difference be- can demonstrate by support ordered the court the amount of child tween payer by paid payer that the and the amount to be percent- required pay on the have been based would department. age . . ." Wis. standard established 767.32(1)(b)4. Stat. that a substantial 76. The circuit court found

change in occurred in this case because circumstances suggested the circuit court obtained new information higher significantly than he Franke's income to be Mr. originally disparity reported and because a wide existed supports parties' The record between the incomes. the additional informa- circuit court's assessment that coupled apparent disparity tion, with the between parties, income constituted a substantial levels change Accordingly in the circuit circumstances.47 erroneously discretion in court did not exercise its modifying support upward. child 47 Montemurro-Luciani, 280, 309, 2d Luciani v. 199 Wis. (1996) (income in disparity plays 561 a role deter 544 N.W.2d occurred, mining change a substantial has but is not whether Brown, itself); 296, 305, v. 2d sufficient Raz Wis. (Ct. 1997) are App. (although numbers themselves N.W.2d enough, discretionary speaks income to unfair disparity care). necessary division of amounts for child ¶ to Ms. Franke's contention 77. We now turn awarding larger in her a circuit court erred that the begin by noting support payment. that child child We by support payments are determined the circuit court (lj) § Subsection in accordance with Wis. Stat. 767.25. except provided § provides that, as subsec- of 767.25 (lm), percentage to use the of income tion the court is by Department of Workforce established standard (DWD).48 percentage Development Deviation from this appropriate a circuit court finds that when standard percentage to the child standard is unfair the use of parties.49 Franke court found that Mr. 78. The circuit although 1999, Mr. Franke dis- $348,798.00 in earned figure. According putes calculations, to the DWD this percentage for two children is 25%.50 standard Twenty-five percent 12, $348,798, divided monthly. support $7,266.62 to child amounts argues Franke inasmuch as the 79. Ms. Mr. Franke had income of court found that circuit required have the circuit court should $348,798 49.22(9), adopted § the DWD Pursuant to Wis. Stat. be used to deter payor's standard of the income to percentage 40.03(1) (Dec. Admin. Code DWD support. mine child See Wis. 2003). 767.25(1m). Wis. Stat. provides: The Administrative Code by adding together payer's be determined [T]he base shall (2), support if payer's gross child under sub. income available for support payer's imputed appropriate, income for child and the adjusted payer's dividing by percentage base or 12. ... The (a) support obligation shall be: 17% that constitutes the child base (b) child; 2 children .... for one 25% for 2003). 40.03(1) (Jan. § DWD Wis. Admin. Code pay $7,266.62 Mr. Franke to percentage each month under the in- Instead, standard. the circuit court monthly payments per $2,300 creased the from month only $3,000 each month. 767.25(lm) noted, 80. As allows court to depart percentage from the standard when its use parties. children or the would be unfair the When departs percentage court order the circuit from stan- 767.25(ln) requires however, dard, Wis. Stat. that the writing circuit court "state or on the record the support required by using amount would be the by percentage standard, the amount which the court's finding amount, order deviates from that its reasons for percentage that use of the standard is unfair to the party, child its reasons for the amount of the modification and the for the basis modification." Although

¶ 81. the circuit court exercised its dis- setting support, cretion in child the circuit court failed 767.25(ln) requires, any articulate, as Stat. Wis. why why it deviated from the reasons 25% standard and by only support it increased the child The record $700. why does contain sufficient facts for us to conclude percentage circuit court deviated from the stan- dard, and we therefore conclude that the circuit court erroneously setting exercised its discretion in child support.51 requests

¶ 82. Ms. Franke this court to increase support per pursu- $7,266.62 her child award to month Richmond, 25, 12-13, See Richmond App v. 2002 WI (circuit 2dWis. 640 N.W.2d 220 court's decision to modify support payments child was reversed and remanded because the record did not show that the circuit court consid 767.25(1m), ered factors set forth in or state its basis for adjusting payments and its reasons for the amount of modifi cation). percentage

ant We decline to do so. to the standard. Determining per- support child and deviation from centage standard is a task better handled the circuit court's order court. We therefore reverse circuit increasing support child and remand the issue circuit court.

C parties disagree The whether the circuit erroneously regarding court exercised its discretion Mr. post- payment of Franke's Franke's contribution to Ms. (Judge judgment attorney court fees.52 circuit Schlaefer) increased Franke's toward Mr. contribution attorney Ms. Franke's fees incurred before the divorce judgment. Mr. circuit Franke contends Schlaefer) erroneously (Judge exercised its discretion in attorney hearing, awarding a later the circuit fees. At Faragher) require (Judge Mr. Franke refused post- additional toward Franke's contribute funds Ms. attorney argues Franke fees. Ms. erroneously in exercised its discretion not circuit court attorney awarding her fees. additional regard- review circuit court's decision 84. We ing attorney of discre- fees for an erroneous exercise did tion.53 conclude that the circuit court We awarding erroneously or refus- exercise its discretion 52 disputed attorney fees case arose after Because all this governed by judgment, judicial review is Wis. Stat. the divorce 802.12(3)(c)(3). 767.262(2) and not Rule 53Attorney in the discretion of the primarily fees rest Martin, 221, 174 218, 2d Martin v. 46 Wis. N.W.2d circuit court. (1970). ing attorney to award additional A fees. circuit court variety including factors, consider the financial parties, resources of the incurred, additional fees opposing party's provide the promptly refusal information unnecessary delays.54

to avoid ¶ 85. The increase in Mr. Franke's contribution attorney justified given toward Ms. Franke's fees was the evidence of Mr. Franke's elusive behavior in disclos- ing during pro- financial information the arbitration ceedings. Although (Judge Faragher) the circuit court explain did not its refusal to award Ms. Franke addi- attorney beyond already tional fees that which had by Judge supports been Schlaefer, awarded the record Judge Faragher apparently this exercise of discretion. recognized Judge already Schlaefer had taken into dilatory setting account Mr. Franke's behavior in attor- ney Judge Faragher erroneously fees. As such did not by refusing exercise his discretion to increase further attorney Mr. Franke's contribution toward Ms. Franke's fees.

D ¶ 86. Ms. Franke's final claim that the circuit erroneously refusing court open exercised its discretion in judgment requiring liability her to incur tax year carefully considering for the 1995.55 After arbitral award, the circuit court concluded that Ms. Modrow, Modrow v. 200, App WI 247 Wis. 2d 903-04, 634 N.W.2d 852.

55We treat liability the income tax as a debt to be consid ered in property the Accordingly, division. explained as we previously, the authority circuit court has open to the divorce judgment and determine the liability. income tax to arguments was the same the court making Franke the and that the arbitrator's that she had to arbitrator the did not of the merits of issue warrant consideration the of the issue. On basis revisiting circuit court's the not record, the circuit court did we conclude that this in refusing change exercise its discretion erroneously liability allocation of regarding arbiter's award the income taxes. forth, we affirm the 87. For the reasons set of the circuit court the revising orders Franke's division property increase Ms. share the Ms. Franke's contribution toward Mr. Franke's The of incurred after the divorce. orders attorney fees Ms. Franke addi- circuit court to award refusing the refusing modify fees and the alloca- attorney tional are also affirmed. liability of the 1995 income tax tion child are modifying circuit court's orders support for further remanded to the circuit court reversed and opinion. with this consideration inconsistent are of the circuit court the Court. —The orders By and remanded in part. reversed part affirmed I join in the WILCOX, (dissenting). E J. JON because Prosser, of but write separately dissent Justice to determine the date upon failure majority's of update their financial required are which The majority 65-66. Majority op., information. ¶¶ award arbitral presence states circumstance" such "special constitute sometimes than the date on some date other is valued property "it not follow that a circuit divorce, but does re- to an arbitral award heightened deference court's law, that closing as a matter of quires, on must be the date which always record arbitration Majority op., is valued." 767.27(2) requires ¶ Stat. 89. Wisconsin that a update party financial information "to the date of the hearing." dispute in this case centers on what "hearing" refers in the of a to context divorce majority that confirms an arbitration award. As the normally property notes, case law establishes that is to Majority op., ¶ be on the date of valued divorce. 61 & problematic parties rule However, n.40. if the this agreement enter into an to arbitrate the division of property. "hearing" their scenario, In this the could have 1) possible meanings: four the date on which the 2) record; arbitrator chooses to close the the date on 3) which the award; arbitrator renders an the date on parties confirm which the move for circuit the court to 4) judgment; the arbitral award a the date on actually which the circuit court the confirms arbitral judgment. award in a " agree [defer- I with Justice Prosser that requires

ence the arbitrator that the arbitrator, not court, determine when the record is closed. This is 767.27(2)." categorical exception a Justice Prosser's proceedings dissent, 164. In all arbitration of this pick upon nature, the arbitrator will date have required update which the are their informa- Then, tion. the arbitrator will have to take this upon depending which, the nature and information — parties' extent of the assets, could be voluminous —and proper make calculations as to the division property. Given the fact that the value of most particularly parties' fluctuates, stocks, the value of undoubtedly change assets will between the date the arbitrator closes the arbitration record and the time the arbitrator Where, here, long renders an award. as the arbi- trator did not render until decision after the surprise record was closed, there is little Further, the value of changed assets value. parties' undoubtedly change will between time assets and the time the circuit closes record arbitrator judgment. the award in a court confirms assets, if the fluid nature the valu- Given the date other the date on which ation is than record, to the the arbitration arbitrator decides close If are meaningless. parties would be rendered process constantly to their financial informa- update required record, of then the tion after the close the arbitration to never be able make definitive arbitrator will the parties' calculation as to division because after close will to fluctuate value the assets continue of never-ending cycle updating record. This the result in the circuit likely recalculation will valuation assets making independent its own time to have the case at the the seek every award confirmed. arbitral address squarely 92. The failure to majority's First, is for several reasons.

this issue problematic did err in that the circuit court concludes majority to because the divorce deciding reopen to make full that Mr. Franke failed record establishes to and the circuit financial disclosures the arbitrator However, this failure to 56, 69. Majority op., court. ¶¶ his finan- update more failure to properly, disclose —or to Mr. Franke's failure from cial statements —stems the close of the arbitration his assets between update I to see how the entry of divorce. fail hearing and the charged Franke can be can that Mr. majority conclude failure to provide fraud for misrepresentation or with his updated documentation regarding the appropriate determining upon the last date without first assets If this information. update he was required which 11, ended on October obligation update Mr. Franke's date closed, the arbitration record then was majority's assertion Mr. failed Franke to dis- close assets tenuous Ms. Franke's Wis. Stat. § 806.07 motion fails because there is little indication in majority's the record discussion Mr. Franke prior failed to disclose to the assets close arbitra- majority litigants tion If the is to record. allow to be charged misrepresentation fraud or with failure to update statements, their financial it at should least do courtesy informing them the them their when obli- gation update ends. majority Second, how can conclude that properly

the circuit court revalued Mr. Franke's assets determining appropriate upon without first date majority which those assets are be valued? must party's determine when a assets should be valued majority today because the a circuit allows court to independently parties' review the financial statements modify and the arbitral award before it is confirmed in judgment. majority provide litigants a As the fails to and circuit courts with a clear rule as when the parties' are to valued, assets be the valuation date will inevitably case-by-case depending basis, fluctuate on a upon independent the circuit court's assessment of the arbitral award. By failing guidance give

¶ parties 94. on this majority opens issue, the the door for claims of fraud or misrepresentation pro- in numerous divorce arbitration ceedings destroys finality usually and the accorded to process. the arbitration

¶ respectfully For 95. the reasons discussed, I dissent.

¶ I am 96. authorized to state that Justices join DAVID PROSSER, T. JR. and DIANE S. SYKES opinion. this (dissenting). PROSSER, DAVID T. J. lives, in arise area of our the

Disputes can in school, business, neighborhood, in in workplace, the escalate to the disputes and in families. Some of those side the other looks to the court point at which one or resolution, by starting system for a lawsuit. variety a years, professionals recent from

In develop processes for backgrounds have collaborated system. disputes the court These resolving outside of collectively dispute are "alternative processes known as resolution," simply "ADR." Bar of the State 98. These words introduce dispute consumer on alternative pamphlet

Wisconsin's (1) ADR may The Bar save explains resolution.1 (3) (2) time; expenses; parties save legal provide resolu- for control over greater dispute opportunity (4) allow to resolve their parties tion process; if than be way might possible in a more creative conflict (5) or jury; left to a decision dispute by judge were resolving disputes their parties greater privacy give (6) courtroom; reduce "the in a public than afforded (7) lawsuit; valued permit toll" of emotional preserved.2 to be relationships among parties ADR is one several Binding arbitration utility de- but its resolving disputes, techniques willingness agreement par- pends upon to settle the courtroom. disagreements outside ties if do be arbitration cannot Binding may be pamphlet consumer text of the State Bar's http:llwww.legalexplorer.coml on the Bar's website at found 2002). (last updated Nov. legal/legal-QA.asp?PositionPoint 2Id. up voluntarily give right not the to determine some dispute of all their in court. parties agreed binding case, In this the to Agreement. They in a

arbitration agreed written Arbitration powers that the arbitrator "should all have the normally . . to . make which decisions are accorded to provisions the court of under the the Wisconsin Stat- agreed They utes." that the "arbitration award shall not re-litigated except be modified or in the circuit court as provided required [sic], in Secs. 788.10 and 788.12 or as 802.12(3). They agreed Rule .".. further that the jurisdiction continuing circuit court would have modify judgment under Wis. Stat. 767.32 for family support support, and child not divi- they agreed appellate sion;3 and review of the award §§ beyond the strict limitations of 788.10 and 788.11. agreement good enough 101. This is for the majority. sweeping judicial power In its assertion of binding judg- review certain arbitration awards and the confirming majority opinion them, ments eviscer- binding affecting family ates arbitration in actions jeopardizes finality arbitration opinion other areas law. The thus setback to ADR majority opinion's analysis in Wisconsin. Because the applicable fundamentally rules and statutes is at my understanding respectfully law, odds with I dissent. majority suggests agreed that the themselves

in the Agreement give Arbitration continuing the court jurisdiction permit as to reopen so motions to on subjects. all If this correct, novel construction were it would superfluous Agreement's render clarifying reference to Wis. §§ Stat. Majority op., 767.32 767.325. See 26 n.9.

I the Statutes 788 of Wisconsin Chapter Act.4 The as The Arbitration Wisconsin referred "2 more to submit persons authorizes chapter them at between any controversy existing arbitration agreement The to submit."5 agreement the time of enforceable valid, irrevocable and submit "shall be for equity as exist at law or such except grounds upon contract."6 the revocation dates from Arbitration Act Wisconsin have been litigated purposes provisions 1931.7 Its has settled rules many litigation produced times. This Nicolet High arbitrators' decisions. review of governing 707, Ass'n, 712, 2d 118 Wis. Dist. v. Nicolet Educ. Sch. (1984). 175 348 N.W.2d from the authority their 104. Arbitrators obtain No. v. Dist. 10 Joint School parties.

contract Ass'n, 94, 101, 253 Wis. 2d N.W.2d Educ. 78 Jefferson (1977). arbitration, for parties contract Because 536 award "whether the arbitrator's parties get or law." as a matter of fact correct or incorrect award is Ass'n, Police Madison 'l Madison v. City Prof Officers (1988) (citing 8 586, 425 576, 2d N.W.2d 144 Wis. 796-A, 99 Union Local Maint. Employees Oshkosh v. (1980)). a court 103, 210 While 95, 2d 299 N.W.2d Wis. its award, it not substitute with may disagree 4 § 788.17. Wis. Stat. 5 § 788.01. Wis. Stat. 6Id.

7 Act, 274, "The Wisconsin Arbitration Ch. of 1931. Laws arbitration 1931, obviously to make was intended enacted in enforceable." subject specifically law to Wisconsin agreements Foundation, Lloyd Wright Wis. 2d v. Frank Madison (1963). 383, 122 N.W.2d Denhart v. arbitrator, decision of the Co., Brewing

Waukesha 44, 51, 17 Wis. 2d 115 N.W.2d (1962), because contracted for the Educ. decision, arbitrator's the court's. Jefferson Ass'n, 2d review, 78 Wis. at 116. Upon function of nature. Milwaukee 'l the court is supervisory Prof Milwaukee, Firefighters, Local 215 v. City 78 Wis. 2d (1977). 1, 22, 253 N.W.2d 481 It is merely to insure that have received the arbitration they 796-A, Union Local for. bargained 99 Wis. 2d at 106. 788 Chapter establishes for procedures se- lecting arbitrators,8 gathering evidence,9 hearing cases,10 and written issuing arbitral awards.11 The for the chapter provides confirmation of an arbitral award in court: award,

Court confirmation time At any limit. time year within any one after the is party award made may apply the arbitration to the court in and for the county within such which award was made an order award, confirming the thereupon and the court must grant vacated, an such order unless award is or corrected under s. 788.10 or 788.11. Notice modified in writing of the application upon shall be served adverse or party party's attorney days adverse 5 hearing before the thereof. added). §

Wis. Stat. (emphasis 788.09 106. The pertinent language in this section is court must grant an order confirming the arbitration award "unless the award vacated, is modi- fied or corrected" according to statute. Significantly, a 8 Wis. Stat. 788.04.

9 788.06(2) §§ Wis. Stat. and 788.07. Wis. Stat. 788.06. Wis. Stat. 788.08. may party court to vacate the ask the to the arbitration grounds, including any fraud,12 or to on of four award grounds, modify on of three or correct the award figures.13 including miscalculation these material .If prohibited shown, is from are the court circumstances confirming modify, Instead, vacate, it must the award. vacate, However, a motion to the award. or correct modify within 3 or an award must be served correct Appeals filed or delivered.14 after the award is months judgments upon or from awards from such orders judgment in an action."15 an or filed "as from order be statutory grounds Although there are modify statutory procedures to vacate for court presumptively valid, the award is award, arbitrator's invalidity only its be disturbed when and it will convincing Nico evidence. demonstrated clear (citing Bd. Sch. let, Milwaukee 118 Wis. 2d at Ass'n, 93 Wis. Educ. Directors v. Milwaukee Teachers' (1980)); County v. Dane 415, 422, 287 N.W.2d 131 2d County 275, 565 65, 267, 210 Wis. 2d Local Dane Union (Ct. 1997). adopted App. a Courts have 540 N.W.2d approach awards, Madison to arbitration "hands off' (citing Ass'n, 144 Wis. 2d at 587 'l Police Prof Officers 563, 611, 602, 75 Wis. 2d Local No. v. Teamsters WERC strong (1977)), public there is a 696 because 250 N.W.2d settling favoring policy as a method arbitration Firefighters, disputes. 2d at 'l 78 Wis. Milwaukee Prof "elementary" background, Against it this (claim estop- judicata preclusion) and collateral res 12 § 788.10. Wis. Stat.

13 § Stat. 788.11. Wis.

14 Stat. 788.13. Wis.

15 § 788.15. Wis. Stat.

413 (issue pel are preclusion) applicable arbitration v. Sys., Manu-Tronics awards. Mgmt. 163 Wis. Effective (Ct. 1991) 304, 311, 2d 471 263 App. (citing N.W.2d Denhart, (Second) 21 589; Wis. 2d at and Restatement (1982)). of Judgments 84 These doctrines underscore of finality binding arbitration awards except specific enumerated An circumstances. arbitration award under the statute is "irrevocable and on binding Whitewater, v. the parties." Stradinger City 2dWis. of 19, (1979). 33-34, 277 N.W.2d "Parties who contract for arbitration are entitled to arbitration award without the added expense having to relitigate Dankert, Lukowski v. issue in court." 178 Wis. 2d (Ct. 113, 503 N.W.2d 15 1993), App. Wis. 2d aff'd (1994).16 142, 515 N.W.2d

II 109. The majority opinion completely abandons these well-settled principles. first, It holds, that a cir- cuit may modify court a property division arbitral award on equitable grounds it been has con- before firmed, and, second, a circuit modify property division arbitral award it has been con- after firmed and incorporated judgment, into in a collateral attack under Wis. Stat. 806.07. These two proposi- tions contradict virtually every principle arbitration because they eliminate the finality award, arbitral permit collateral attack on the arbitral award, and breach the lawful contract the parties by empowering court to second-guess arbitrator on the merits.

16 "The whole purpose of arbitration is to substitute less-expensive settling less-formal method of differences Lloyd Frank between litigation." for normal court Wright Foundation, 20 2d at Wis.

414 to rationalizes its decision majority 110. The ¶ discretion on the judicial establish pre-confirmation in certain actions affect- that arbitration theory binding 802.12(3)(c), § Wis. Stat. family by is authorized ing family law 788, binding arbitration Chapter The major- arbitration. binding different from other is pronouncement this view with the up sums ity awards] on arbitral part [based "Divorce judgments is statutorily required A circuit court are different. substantive review of [the] an independent, perform it in the divorce incorporating before parties' agreement on majority 50. The relies op., judgment." Majority ¶ 767.255(3)(L) this conclusion. § to support Wis. Stat. view, arbitration under binding In my 802.12(3)(c) the same as arbitration exactly § is by the plain 788. This substantiated Chapter under § language of 802.12. § created Stat. 802.12 was 112. Wisconsin Amendment Rules Civil order in 1993. 93-13 Alternatives, 802-Settlement

Procedure Chapter (1993). amendment "provides express 2d xv Wis. order that judges litigants statutory authority defined any of several through settlement attempt 93-13, See Judicial Note, Council processes." 2d at xix. 180 Wis. "binding defines Stat. 802.12 113. Wisconsin that meets a dispute process

arbitration" as resolution the award is conditions, a condition including five §§ 788.10 and review under Wis. Stat. subject judicial "nonbinding arbitration."18 It also defines 788.II.17 802.12(l)(a). Wis. Stat. 802.12(l)(h). Wis. Stat. Both forms of arbitration are permissible settlement alternatives actions the affecting family.19 114. The parties choose the type dispute ¶ (2)(b) they settlement process want to use. "Subsection the § prohibits [of judge requiring 802.12] from to submit to binding arbitration their without consent; preserves this restriction of trial right added). Id. jury." (emphasis 802.12(3)(c) 115. Then Wis. Stat. provides: (c) parties agree arbitration, If the shall, 788.11, subject to ss. 788.10 and confirm the incorporate arbitrator's award and the award into the judgment or postjudgment modification order with re- spect to all of following:

1. Property division under s. 767.255.

2. Maintenance under s. 767.26. Attorney under s. 767.262. fees Postjudgment modifying orders maintenance un-

der s. 767.32. 802.12(3)(c) added). Wis. Stat. (emphasis (3)(c) 116. Subsection is quite explicit. Subject §§ 788.11, 788.10 and the court shall confirm arbitrator's award and it incorporate into the judgment. It must also incorporate the award into o.postjudgment order. modification (3)(c) 117. Subsection contrasts with subsec- (3)(d) (e). (d)

tions permits Paragraph the parties agree binding arbitration for visitation, child custody, (e) and child but support, paragraph provides court "may not confirm the arbitrator's award under 802.12(3)(a). Wis. Stat. (d)" law. conforms to applicable unless award par. of the "best law consideration requires The applicable (e) authorizes Hence, child."20 paragraph interest of the Wis. Stat. oversight beyond judicial additional — (d). under paragraph §§ 788.10 and 788.11—to awards (c) not judicial does contrast, anticipate By paragraph §§ of 788.10 and 788.11. oversight beyond application criteria only statutory provide These two sections 802.12(3) (c), § so as the long under judicial for review 802.12(1)(a) § sati of have been conditions prerequisite sfied.21 802.12(3)(c) absolutely § is 118. Wisconsin Stat. §§ under 788.10 for determinations except

clear that confirm arbitrator's 788.11, and the court shall division under and incorporate property award astounding for the It is judgment. § 767.255 into the 767.24, 767.245, §§ 767.045, 767.11, Stat. See Wis. 767.25. attorneys responsible for judges, and professors, The recognized have Judicial Benchbook compiling the Wisconsin 802.12(3)(c-e), child- subjecting § reading of this commonsense judicial scrutiny applicable not special matters related differ Family of the Benchbook The section property division. visitation, placement, and custody physical entiates between division, property and the one hand support and child on other. Wisconsin Judi maintenance, attorney on the and fees 2001). (2d ed. Family, FA to 3-7 3-6 cial Benchbook: category exempt from the latter is notes that Benchbook binding accompany judicial oversight that must additional While the Benchbook matters. awards child-related arbitral authority legal for independent to stand as not intended prin ADR law, recitation Wisconsin proposition of its clear family law many eminent of the state's understood ciples as discovery of majority's stark contrast experts stands 767.255(3)(L). 802.12(3)(c) Majority between "tension" op., 767.255(3)(L) to assert

majority Wis. Stat. is an source independent authority judicial review an arbitrator's on award division property before con- firmation. is in This assertion direct conflict with the

plain language statute. When the insists majority that the circuit court conduct its own evaluation of whether property division is as inequitable to either party confirming award, before the arbitral it is trans- (3)(c) forming binding arbitration under subsection into a form of nonbinding arbitration. It is saying parties did really contract for an arbitrator's division; decision on contracted they for an paid arbitrator's advisory decision subject judicial review of the merits. This is simply rewriting the statute.

Ill 120. The history ¶ Wis. Stat. 802.12 supports the view that the Judicial Council and the supreme court intended traditional binding arbitration under 802.12(3)(c). 121. First, the original draft the rule petition, in filed the Supreme Court Clerk of Courts on office February 11, 1993, reads in part: (4)(c) parties agree If the binding arbitration, to the shall, subject 788.11,

court to ss. 788.10 and confirm the arbitrator's [on decision enumerated issues].... (d) If agree binding to arbitration, may, subject court 788.11, to ss. 788.10 and confirm the [on arbitrator's award other issues]... enumerated not confirm the arbitrator's child support award ... support unless child is determined in the required manner under s. 767.75 s. 767.51. added). 1993) (Feb. 11, (emphasis Rule Petition 93-13 a different role early This draft established (c) than under paragraph circuit court under for the (c) affording the court no (d), with paragraph paragraph Paragraph the award on the merits. to review discretion (c) rule-making revised in the substantively never was (d) was revised paragraph para- whereas process, (e) child concerns that added to ameliorate was graph visitation, well child as as custody, placement, the same as adult-financial not be treated support, issues. 19, 1993, Second, October public at Barbara J. Attorney on the rule petition,

hearing of the Board Directors Becker, then chair Wisconsin, Bar of Section of the State Family Law binding the Section strongly supported testified that She said: for adult-financial issues. arbitration Family Law Section Board In the fall of majority support overwhelming voted peti- Resolution Dispute Alternative Judicial Council Council requested the Judicial tion. The section family petition specific reference to incorporate ... actions law requested also the Judicial Council

The section money relating to adults separate out the issues maintenance, division, divorce, i.e., and attor- custody, issues of ney fees, from the child related as visitation, support and child placement, ... the Board that It the consensus of arbitration. was divorce available to settle binding arbitration should be cases. very clear to be sure that it was

The Board wanted approve court shall rule that the trial proposed related financial issues binding on the adult arbitration binding arbitration on may approve and that the court the child related preserve issues. This was to jurisdiction protect the circuit court to the minor possible children improvidence par- from the of their ents. 1993, August

[In posi- Board reconsidered its tion. The year vote was closer than it had been the general before.] The consensus in the Board [after the vote] second binding is that arbitration should be in family allowed law cases. a general There also consensus that adult financial should be issues distin- guished from child related issues and that the adult subject [financial] related issues should be binding arbitration. (Oct. 1993).

Testimony of Barbara J. 1-2 19, Becker by Attorney ¶ 124. The themes set out Becker testimony repeatedly by her were echoed others who Attorney communicated with the For instance, court. , proposed pro- Joan F. Kessler that wrote "The statute vides court must confirm an arbitration award involving involving finances, confirm award custody/visitation process prop- if issues, has been erly invoked and followed." Letter from Joan F. Kessler (Oct. Supreme Justices 18, Wisconsin Court 1993). County Family

¶ 125. Dane Court Commissioner Ralph family J. Guerin and three assistant court com- they difficulty missioners wrote had "no with the submission of financial issues arbitration" thought "inappropriate but it was for arbitrators to be entering binding relating decisions in matters to cus- tody placement." Ralph Letter Guerin, from J. et al. (Oct. 1993). Supreme Court Justices in Milne, family leader 126. Ann L. national ¶ "I to volun- counseling, allowing parties wrote: support their divorce-related tarily disputes, choose arbitrate The child-related issues. financial including resolution is dispute behind alternative premise alterna- dispute a full resolution range provide parens court, jurisdiction of the ongoing tives. . .. The child-related, over all matters presumes that the patriae, be and all orders to review all stipulations will of the the court the 'best interest signed by light L. Letter from Ann Milne to Justices child doctrine.'" (Oct. 18,1993) (emphasis Court Supreme the Wisconsin added). Koritzinsky R. advised the Attorney 127. Allan hearing Saturday, that "This past

court after the Bar Law Section Family Board of Directors of the State that requesting its position, unanimously reaffirmed Rule, the arbi- including Court Supreme adopt and child for all adult financial issues provisions tration child- only remains on the Reasonable debate support. child excluding support." arbitration provisions, related Koritzinsky from Allan R. Clerk of Wisconsin Letter (Oct. 1993). Court Supreme of these communications gist as for adult-financial issues such arbitration binding to be and intended expected division was arbitration. binding traditional Third, conspicuous oppo- there was one any affecting for actions

nent to arbitration October Linda Balisle testified at the Attorney S. family. follows: hearing as against petition which speak part I family law cases be- provides binding arbitration I think it grave cause is a mistake to restrict this court's family by private review of law decisions rendered attorneys . ..

Currently, divorcing may arbitrate or all issues in their .. The divorce.. trial court reaching consider the arbitrator's award in its own decision, but is not it. bound petition

The is require that before this court would give the trial court to deference to the arbitrator's modify award and limit the ability would trial court's or vacate the provisions award consistent with the of Further, Wis. Stat. secs. 788.10 and 788.11. it would Appeals Supreme limit Court of and the Court's family of review these law cases to the of narrow issues properly whether the trial court applied Secs. 788.10 affirming modifying and 788.11 in an arbitrator's award.

This experienced court has reversed trial court judges and the Court of Appeals family law cases. involving issues maintenance and division. A review those cases that if an shows arbitrator had cases, made decision the trial courts made in those this court have would been unable to reverse those decisions.

Why give greater should this court deference to a private attorney [than] it would to a trial court or the of Appeals? Court (Oct. 1993).

Testimony 19, Linda S. Balisle 130. The majority makes reference opinion Attorney Balisle’s dramatic but appeal, it fails to ac- knowledge rejected the court request her re- family binding issues from arbitration on move (3)(c). Rather, did not subsection rule. The court revise adopted arbitration it a rule with traditional family cases. issues in law adult-financial

IV attempts majority to overcome 802.12(3)(c) history language plain of Wis. Stat. subsidiary they by asserting to Wis. Stat. are 767.255(3)(L). analysis the mark. misses This 767.255(3) begins direc- with the 132. Section presume property not that all tive that the court "shall (2)(a) equally." The in sub. to be divided described pre- the court alter this then authorizes subsection sumption including considering factors, certain after marriage age length the the and health of the parties. and factors to con- One of the other enumerated dividing property is: sider in

(L) by parties agreement made the Any written concerning arrange- during marriage any or before distribution; agreements such shall property ment for except agree- that no such binding upon the court be agreement the terms binding be where ment shall of party. The court shall inequitable as to either are as to agreement equitable to be both presume such parties. added). 767.255(3)(L) (emphasis

Wis. Stat. typical the court called In the case where is agreement property, upon made the "written to divide dividing agreement by parties" and distribut- is an intangible. tangible ing assets, and marital both may equally "agreement" value, in of terms divide assets unequally. may a It distribute it them or specific divide private particular party. of In this a sort asset to agreement, spouse may one written have tremendous leverage producing other, influence over property unfair In a situation, division. such the court agreement. parties' is not bound only "agreement" binding ¶ 134. The issue in at a "agreement case, however, arbitration is the to submit" property binding division to arbitration. The do agree way they to divide the in a certain — agree binding to submit the issue to arbitration. How agreement can it be said that the "terms" such an "are inequitable party"? as to either majority "public policy" 135. The relies on de- including sources, rived from several Wisconsin cases binding that did not involve arbitration under Wis. § 802.12(3)(c), marriage Stat. to conclude that contracts are different from other a contracts "court protects parties' public by reviewing interests provisions any agreement affecting the substantive property." Majority op., ¶ division 38. There is no disagreement policy with this in a case that does not involve arbitration. The in case, issue this however, is a whether court is entitled to act as "free safety"22 equity parties, complete when the con- football, In safety" a "free player defensive who has specific assignment "no snap at the of the ball." Random House (2d 1993). Unabridged Dictionary 764 ed. Although the free safety up frequently deepest "lines the secondary in the and deep against defends the pass," player middle field the the may change position unpredictably provide to coverage double against a pass receiver blitz the passer. See (last http://football.about.com/cs/footballl01lg/gl_freesafety.htm 2004). January 26, visited In binding arbitration, the contract to acting exclude the court from unpredictably or providing coverage. double law, than have contracted for someone other

formity a division and bind property the court arbitrate parties. no view, authority In the court has my

¶ 767.255(3)(L) second-guess § under Stat. Wis. no on division. There is arbitrator's decision 802.12(3)(c) 767.255(3)(L) § § to harmonize with need have contracted to voluntarily give when the parties be- balance responsibility equities arbitrator It who considers para- them. is the arbitrator tween (L). graph

V the circuit court dispute 137. There is no it is confirmed, an arbitrator's award must vacate before 788.10, Stat. when a contest- under the terms of Wis. no burden There is proof. satisfies the ing party or correct an modify that the circuit must dispute it confirmed, award under arbitrator's before 788.11, such a shows party of Wis. Stat. when terms may appeal There is no that a dispute party error. also these matters "as judgment court order or on circuit action," in an under Wis. judgment an order or from case involve § 788.15. But this does Stat. options.

these Wis. case a motion under 138. This involves after the reopen § 806.07 to divorce Stat. components confirmed the adult-financial circuit court them into incorporated arbitral award was a collateral under 806.07 motion judgment. more than 11 months coming the judgment, attack on after the time entered, long was after the judgment had the judgment expired. to appeal in part: Section 806.07 reads (1) judgment Relief from or order. On motion and upon just, . . such terms as are the court. relieve party judgment, stipulation or ... from order for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect;

(c) Fraud, misrepresentation, or other misconduct of an party; adverse

(g) longer It no equitable judgment prospective application; should have or (h) Any justifying reasons other relief from the operation judgment. authority

¶ 140. Wisconsin courts have asserted modify under 806.07 divisions judgments, Conrad, Conrad v. Wis. 407, 413-14, 92 2d (1979); Spankowski Spankowski, 284 N.W.2d674 v. 172 (Ct. 1992); App. 285, 290, Wis. 2d 493 N.W.2d 737 Thorpe Thorpe, 424, 426, v. 123 Wis. 2d N.W.2d (Ct. App. 1985), 767.32(1), though even Stat. Wis. permits judgments, which revisión of certain not does permit provisions revision modification of "the of a respect or order with to final division property." Spankowski family decision stressed the "discretionary grant authority court's from the relief judgment." 2d at Wis. 141. None of the dealt cases cited with a today,

arbitration award. Until circuit courts have had "discretion" review arbitration awards on an equitable Logically, basis. a circuit court should not a binding more "discretion" to revise arbitration have 802.12(3)(c). than it has under award under 806.07 such effort to why That is devotes estab- majority in arbitration actions lishing binding affecting from arbitration —that is different other family is, it does not "bind" court. is based upon Wisconsin Stat. 806.07

¶ 60(b) of the Federal Rules of Civil Procedure. Rule The Rules Civil New Wisconsin Patricia Graczyk, of Procedure, 805-807, 671, Rev. 726 chapters 59 L. Marq. (1976). Fed Hence, interpreting federal rules decisions 60(b) in interpreting Rule be helpful eral v. Lumber Split Liquidators, rule. See Rock Wisconsin 2d 66, 14, 238, WI 253 Wis. 646 N.W.2d 2002 60(b) in Rule interpret federal courts Traditionally, (the with Title 9 of the United States Code tandem Act). Federal Arbitration in the federal 143. The embedded principles of awards is are clear. "Judicial review arbitration

cases final arbitration is intended to be the narrow because v. Int'l Bhd. Co. Wrecking Nat'l of disputes." resolution (7th Teamsters, 731, Local 957, F.2d 960 Cir. 990 of 1993). arbitration as a "Where have selected resolution, have they of dispute presumably means in of and inexpensiveness so recognition speed done ill serve these the arbitral federal courts process; of more review than rigorous ... by engaging aims statutory with stan- necessary is to ensure compliance Ltd., Fin. v. Chase 160, 667 F.2d Chevy dards." Davis (D.C. 1981). Act Arbitration Cir. Federal 164-65 a not, stressed, general confer courts it must be on "does resolution of a judicial to substitute power equitable one; '[i]t rather. . . for an arbitral dispute which was contract] [of arbitrator's construction Id. of the courts." at for,' and bargained (quoting United Steelworkers Am. v. Enter. &Wheel (1960)). Car Corp., 363 U.S. 144. Federal applied courts have consistently example, Washington-Baltimore

these For principles. Guild, Co., Local 35 v. Post Newspaper Washington (D.C. Cir. 1971), F.2d 1234 the district court granted summary to sustain an arbitrator's award. The Guild then filed a motion reopen the judgment 60(b) under Federal Rule grounds on newly available evidence. The court said: appeals

[I]t bargain was the Guild's with Post to have disputes the discharge employees by over of settled arbitration, all with of its known advantages well and give appellant drawbacks. To rematch a before the arbitrator, merely because a witness who refused to original enter the contest partici- has now decided to pate, only give would be not to Guild more than the bargain case, benefit of in its this but would undercut finality and therefore the entire usefulness expeditious generally arbitration as an fair method settling disputes. Judge Aubrey As District Robinson put init this case: by SU32Unless are bound arbitrators, records piecemeal made before the or staggered submission likely of evidence would be to erode the effectiveness of as a speedy arbitration efficient for resolving disputes. forum labor

These considerations demonstrate substantial cause 60(b) Rule applying to remedies arbitration for final 60(b) course, awards. Of per nor, neither Rule se matter, any other of the Federal Rules of Civil Procedure designed was ever apply proceedings in other than the United States District Courts.

428 60(b) sum, In think we that neither Rule nor judicially parallel constructed thereto was meant to be awards, applied to final arbitration and that the Dis- denying in appellant's trict Court was correct motion. added).23 Id. at 1238-39 (emphasis 145. The majority distinguish seeks cases following the seminal Post decision. It Washington to three federal points cases which courts have said 60(b) that Rule be used "to open Majority confirms arbitration award." 27 n.10. op., ¶ These three cases individual require analysis. In 1983 the Seventh Circuit reversed a

district court decision an arbitration award reopening 60(b). Co., under Rule Merit Ins. Co. v. Leatherby Ins. (7th 1983). F.2d court, Cir. for the Writing Richard Posner declared: Judge

If Leatherby dispute had wanted its with Merit judge an Article III it resolved ... would not have contract, having inserted an arbitration clause (In In Bledsoe v. Dalkon Shield Claimants Trust re A.H. (4th 1997), one Company), Robins F.3d 160 Cir. 60(b) challenge parties attempted to use Rule the arbitrator's directly. award The court said: Agreement provision the ADR

Neither the nor Rules contain hearing permitting party either to seek a new after the referee any provision providing issues a decision. The absence of post-decision is not unintentional. it review We believe omission, permitting rule constitutes a deliberate because very goal such immediate contravene the of the ADR review would efficient, fair, against process and final resolution of claims —the Consequently, did the Trust. we hold that the district court 60(b) finding in that Rule relief from this abuse its discretion particular procedure ADR was not available to those claimants who elected to have their claims resolved in ADR. Id. at 163. wishes. against Merit's for arbitration done so move judicial from something different

Leatherby wanted by dispute resolution It wanted dispute resolution. bound to industry, who were in the insurance experts previ- based on knowledge parties, greater have judge, III than an Article professional experience, ous their choose jury. parties to an arbitration or a resolution, ask no more and can dispute method of they in method have than inheres impartiality chosen.

Id. at 679. 60(b) that Rule explained Posner Judge

¶ finality the social interest a value on high places "To make out a Then he went on: Id. at 682. litigation. 60(b)(6) Rule judgment relief from under case for that an arbitrator had only had to show not Leatherby for arbitrators standards legal violated the ethical danger created a that the violation substantial but Id. at 682-83. unjust result." that Rule implied 148. This latter statement 60(b) based on an could be used to reopen However, cited no author- award. the court arbitrator's and did not it to the facts. As apply for its statement ity court's of the motion was noted, grant the district reversed. 60(b)(6) to reopen Rule motion Leatherby's the award had filed 18 months after judgment was the mo- the arbitrators. Consequently,

been issued 9 U.S.C. language tion was at odds with "[njotice vacate, or correct an modify, of motion to adverse . . party. award must be served upon filed deliv- three months after the award is within ered." 150. The of Title 9 was to make arbi- purpose as other contracts.

tration as agreements enforceable Pierce, Smith, Inc., v. Merrill Fenner & Lynch, Pritzker (3rd 1110, 1993); Cir. & Sons Supak Mfg. 7 F.3d 1113 (4th Inc., Indus., F.2d Cir. Co. v. Pervel 1979). 60(b) Rule used to a Permitting reopen be really an arbitration award is judgment incorporating more than the court to nothing reopen permitting arbitration award itself. This is highly problematic, 60(b) because literal of Rule would a application permit judgment for, to move to party reopen say, misrep resentation, to four times is up longer judgment after entered than is entered.24 This makes judgment before of alterna no sense because it undermines purpose tive resolution. It severs the arteries of dispute disregarding arbitration under Title 9 the time by in Title 9. Leatherby provided limits Because for its observation and did not authority no rationale it, the be as dictum. apply regarded observation should Lines, case, In Air a second Baltia Inc. v. (D.C. Inc., Transaction 98 F.3d 640 Cir. Management, 60(b) an 1996), the court stated that "Rule appropri- challenge judgment confirming ate vehicle which to Here, too, the court an arbitration award." Id. at 642. no statement and did not it authority apply cited its 60(b), suggested because the motion under Rule which fraud, more discovered evidence and was filed newly after on the award was year judgment than a time limit in Hence, entered. the court relied upon rule as the basis for relief. denying 60(b) requires to relieve a Federal Rule that motion time, made a reasonable and for "shall be within (1) [mistake, inadvertence, surprise, or excusable ne reasons (2) (3) evidence], [fraud, [newly misrep glect], discovered resentation, party] not more or other misconduct of adverse entered or taken." year judgment... than one after the was Clarendon National In- case, In third 152. ¶ Company, surance v. TIG Reinsurance 183 Company (S.D.N.Y. Rob- 1998), Judge F.R.D. 112 Federal District 60(b) to reopen judgment, ert Sweet did Rule apply he did substantiates pen language that: He noted majority's position. 60(b) suggest Rule

Clarendon does not the use of modify It the arbitration award itself. is well- 60(b) apply that Rule does not to such established Salomon, Inc., F. See Cook Chocolate Co. v. awards. (S.D.N.Y 1990) 60(b) 122, 125 Supp. (holding that Rule award), cannot be utilized to vacate an arbitration aff'd (2nd 1991). Rather, 932 F.2d 955 Cir. Clarendon invokes Judgment by modify the Rule to entered this Court. Clarendon, 183 F.R.D. at 117. the Clarendon case presented However, 153.

¶ moved, unusual facts: Clarendon under authorized Title 9 the arbitration award procedures, vacate in it and proceeding issued the arbitration between TIG to confirm the Reinsurance TIG cross-moved Company. and to remand one for further part award issue determination the arbitrators. The district court cross-motion, the award as to granted confirming certain issues and other issues to the arbi- remanding v. trators. See Clarendon National Insurance Company (S.D.N.Y. TIG Reinsurance F. Company, Supp. 1998). The court entered on the subsequently of the award it had confirmed. parts remand, On re- arbitrators themselves they decided, issues that had opened previously correct an error in their award. original arithmetic award, issues, Then a revised they including issued new time, which Clarendon to confirm. At the same sought 60(b) moved under Rule for relief from the Clarendon acknowledged to correct error. previous judgment presenting described the case as The court "extraordinary Clarendon, 183 F.R.D. circumstances." the court had not closed because The case at 118. was arbitrators, and the issues to the remanded certain they explic- award which issued a revised arbitrators itly principal acknowledged error. The a mathematical time it went to court was in the case the second issue their mathemati- could correct the arbitrators whether they could, and it then court ruled that cal error. The Having that, the done the modified award. confirmed judgment. previous, inconsistent its court modified very different case is thus 156. The Clarendon present factually case, the In the from the case at hand. remanding judgment reopened a without court proceeding, it In a collateral arbitrator. issues to the award and revised the arbitration took new evidence part, arbitra- not available to the based, in on evidence proceeding. The of the arbitration tor at the close compared Clarendon because to Franke case cannot be every sweeps past and other state it Clarendon brought attention of to the case that has been federal the court.

VI § reopen majority's of 806.07 The use binding ominous award is of a arbitration the merits binding questions all arbitration about and raises Stat. relies on Wis. all, Ms. Franke After awards. 788.14(3),25 unambiguously applies § to all arbi- which invoking Chapter as her basis tration under repudiate majority opinion § this fails to The 806.07. 788.14(3) reads as follows: Stat. Wis. force and have the same judgment so entered shall provisions of as, subject to all the effect, respects, and be all Clarendon case Indeed, it cites the premise. which the federal regrettably relied on Section 13 of the Act, 788.14(3),26 Federal Arbitration which parallels support view that the basic arbitration statute reopen judgments courts to permits arbitra- confirming tion awards. The majority attempts downplay potential scope its us it ruling by assuring determines only §of 806.07 to applicability family law However, arbitration cases. once the 806.07 door is opened, it will be hard to close. The majority's §of a application judgment 806.07 to incorporating binding arbitration award that all implies subsections §of 806.07 be utilized may to attack arbitral awards into incorporated judgments. This is bound to spawn future litigation undermine the finality arbitra- tion awards. 806.07(1) 158. As a general rule, § does not

apply judgments based on arbitration awards. Any other conclusion is inconceivable it because would au- thorize judicial tampering with all arbitration awards after judgment, them thereby making nonbind- ing, and trivialize the of arbitration protections awards found elsewhere in the statute. As a resort, last a party relating to, action; law in an and it be enforced ifas it had been in rendered an action in the court in which it is entered. provides Section 13 of part: judgment Title 9 in "The so effect,

entered shall have the respects, as, same force and in all subject to, and be provisions to all the relating judgment law a of action; in may and it be enforced ifas it had been rendered in an action in the court in § which it is entered." 9 U.S.C.A. 13 added). (emphasis The Clarendon appears only case to be the 60(b). directly case linking § 9 U.S.C. 13 to Federal Rule independent may under Wis. Stat. action file an 806.07(2) upon § a based relieve it from on the court. direct fraud

VII prin- majority opinion subverts ciples in at least two additional of arbitration closing majority of ways. that the concludes First, the categorical not create record does the arbitration 767.27(2). § exception Stat. to Wis. majority that an concludes Second, the

appellate court's decision a circuit court should review grant under Wis. award from an arbitration relief using § exercise discretion an erroneous Stat. 806.07 standard. implications of these determinations

¶ 161. The 767.27(1) Stat. in Wisconsin turn. will be discussed provides affecting family "the action party require furnish, on such each shall require, full disclosure as the court forms standard party part by either in full or all assets owned jointly." by Stat. separately Wisconsin or 767.27(2) provides: then shall required under this section forms Disclosure of summons days after the service filed be within time as at other joint petition or such filing of a court commissioner. or circuit the court ordered updated be shall on such contained forms Information hearing. the date the record to on added). 767.27(2) (emphasis Stat. Wis. indisputably apply provisions when

¶ 162. These making responsibility on such issues decisions assigned to the maintenance division as situation, court. In the normal the court should the set securing for rules information and the court will value property and divide the as of the date of the divorce. binding ¶ 163. Of course, arbitration under Wis. 802.12(3)(c) Stat. is not the normal situation. The parties by contracted have for a determination arbitrator, court, not the and the arbitrator should set ground securing including rules for evidence, submitting deadline for evidence. majority proceeds though

¶ 164. The as there agreement though were no arbitration —as information not available and circumstances not present at the time the arbitration record is closed by be used a court to reevaluate the award on judicial By division in a decision on the merits. outlin- ing possibility issues will be determined on majority information not effectively arbitrator, available to the erases deference to the arbitrator and equitable grounds. invites circuit court intervention on requires Deference arbitrator arbitrator, that the court, not the determine when the record is closed. This 767.27(2). categorical exception is a appellate forAs the standard of review, discretionary court is inclined to show deference to a decision the circuit court. However, a case involv- ing binding appellate ought arbitration, an to be showing deference to the award, arbitrator's because it presumed to be correct. App Williams, In Lane v. 263, 6, WT 255, 240 Wis. 2d 922, 621 N.W.2d the court stated: We review an arbitration award without deference to the trial court. Our function is to insure that they bargained received the arbitration for. See City Madison v. Local International Ass'n (Ct. 186, 190, Firefighters, 133 Wis. 2d 394 766 N.W.2d 1986). only may modify an award App. The circuit v. statute. See McKenzie by grounds specified on the (1978). Warmka, 591, 603, 260 752 81 Wis. 2d N.W.2d majority get around this black 167. The seeks shifting by the focus from the arbitration letter law "discretionary" reopen decision to to the award judgment. a court does exercise discretion doubt, No reopens judgment Stat. 806.07. it under Wis. when reopen is, that here —that But to exercise discretion judgment by reopening the an incompatible award arbitration —is binding and should make arbitration with may why in a like not be used case it 806.07 obvious majority again, conclusion, the to reach its this.27 Once redefines arbitration.

VIII years ago decided that Thirteen this court may, circum under certain divorce stipulate their division and stances, that payments permanent agreed-upon are maintenance may a court. in the future and not be modified Nichols, 96, 2d 469 619 v. 162 Wis. N.W.2d Nichols (1991). spouse Nichols, moved for an In a former years the divorce. in maintenance nine after increase grounds the motion on that the court denied circuit incorporated parties' stipula judgment had divorce pay property division and maintenance "Said tion that petitioner, Nichols, considered as Mitzi be ments of 27 (D.C. Brown, 1999), v. A.2d In McDaniels upon judgment "A entered of court said: the District Columbia subject a motion not be made the an arbitration award 60(b) Superior Court's Rules of Rule of the under Rule 59 or Ostheimer, see, 447, 450 e.g., Siddig A.2d v. Procedure, Civil 1990)." (D.C. and in lieu of further or additional permanent maintenance said payments, except pay- maintenance remarriage [Mitzi ments shall terminate upon Id. at Nichols]." reversed, 169. The court of citing Wis. appeals 767.32(1) 767.08(2)(b) §§

Stat. reasoning provision maintenance is not Id. at subject to modification violated public policy. 102-03. This court reversed the court appeals, say- ing: rule, general always subject

As a maintenance is to upon showing modification a the in requisite change of However, Rintelman, circumstances. in [Rintelman v. (1984)], 2d recognized Wis. 348 N.W.2d498 we general an exception to the rule is that maintenance always subject to modification when held a we party estopped seeking is from modification of the a stipulation incorporated terms of into a divorce judgment... (citations omitted).

Id. at 103-04 We held that the party to divorce is judgment estopped from seeking increase in maintenance if four conditions are met:

[F]irst, parties freely the knowingly stipulated and to fixed, permanent, and nonmodifiable maintenance pay- stipulation ments and said incorporated was into the second, judgment; stipulation divorce part the was aof comprehensive settlement of all and mainte- approved by court; nance issues which was the circuit third, settlement, the overall at the time it was incor- porated judgment, fair, into the equitable, divorce was illegal, against fourth, not public policy; and, not the party seeking release from the terms the divorce judgment is seeking grounds release on the that the court power did not have the enter the agreement. parties' without the Id. at 100-101. its gave One of the reasons the for decision was that: appeals to

[A]llowing the of the court of stand decision discourage of divorce cases. The the settlement will advantage agreements providing that maintenance is finality. certainty and If subject not to modification is really is not nonmodifi- nonmodifiable maintenance able, payor spouse will no there be motivation Rin- in agreements as stipulations enter into such Ross,28 telman, at in the case bar. There- one fore, discourage appeals of the court of will the decision settlements, contrary to of this state. public policy Id. at 115. unanimous. The court's decision was not state, this argued public policy "the dissent is to years, in the divorce statutes over

as reflected maintenance both modify protect allow the courts change judg- circumstances after should spouses Id. at 117 (Abrahamson, J., dissent- ment entered." ing). case deals with Although prop- the present maintenance, division, the views of dissent

erty Nichols majority opinion. are now enshrined binding in arbitration actions is to The result obliterate the Nichols major- To affecting family. paraphrase binding, not there will binding really if arbitration is ity, it, contrary agree no for be motivation of this state. public policy to the be time-tested prin- It should evident ¶ have overwhelmed arbitration been ciples Franke deceived the a belief that Martin T. this case defrauded his wife. arbitrator 28 (Ct. Ross, 713, App. N.W.2d 639 Ross v. 149 Wis. 2d 1989). 173. But did he? 174. The majority's failure conspicuous to dis-

cuss the facts of this case a telling acknowledgement the record not support the misconduct majority implies.29 I am authorized to state that Justices JON

E WILCOX and DIANE SYKES join S. this opinion. Judge opinion In case, Sweet's first in the Clarendon he wrote: that, "[o]nly egregious have Courts held the most error which adversely rights party" affects the of a constitutes misconduct and "[elrroneous provide exclusion evidence does itself a basis vacating moving an award absent substantial harm to the party." In Matter Consolidated Arbitrations Between A.S. Inc., Panama, 0214,

Seateam v. Texaco No. 97 Civ. 1997 WL (S.D.N.Y. 1997). May 16, Further, *7 such misconduct “must amount to a denial of fundamental fairness of the arbitra Areca, proceeding." Oppenheimer Co., tion Supp. Inc. v. & 960 F. (S.D.N.Y.1997). 52, 54-55 Co., Clarendon Nat'l Co. Ins. v. TIG Supp. Reinsurance 990 F. (S.D.N.Y 1998). 304, 310

Case Details

Case Name: In RE MARRIAGE OF FRANKE v. Franke

Court Name: Wisconsin Supreme Court

Date Published: Feb 6, 2004

Citation: 674 N.W.2d 832

Docket Number: 01-3316

Court Abbreviation: Wis.