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Ambiguous property divisions can be clarified

The Wisconsin Supreme Court held in a unanimous decision issued on June 7 that, in divorce matters, Sec. 767.32(1)(a) does not bar a circuit court from construing an ambiguous portion of a final property division. Rather, Sec. 767.01(1) grants circuit courts the power to effectuate a divorce judgment by construing an ambiguous property division provision.The opinion is one of only two family law cases before the high court this term. It serves as another milestone in the longstanding dispute between Melvin K. and Gail M. Washington. Their divorce proceedings initiated in 1991. They were divorced in 1993, but the findings of fact, conclusions of law and judgment of divorce were not entered until 1995. At that time, the Ozaukee County Circuit Court determined that each party would receive one-half of the property, including the husband’s federal civil service pension. To obtain a 50-50 division, in light of other rulings, Gail received close to $24,000 of that asset, presently valued at approximately $50,000, and Melvin was awarded the balance. The judgment, however, did not speak of the allocation of interest and appreciation on the pension, which wouldn’t begin yielding payments until approximately 21 years after the divorce. After discovering the discrepancy, the husband argued that he should be entitled to all of the interest and appreciation on the asset, while the wife should receive just the lump-sum share, and he moved the circuit court to amend the judgment accordingly. The wife also filed a motion, hers being for “clarification” of the judgment, so that she would receive interest and appreciation on her share.The court ruled in Melvin’s favor, stating that Sec. 767.32(1)(a) prohibited it from modifying or revising the final property division. The District III Court of Appeals agreed, although it expressed concern that the result was unfair to Gail. The high court reversed and remanded the case in a decision penned by Chief Justice Shirley S. Abrahamson. Sec. 767.32(1)(a) states in relevant part, “… nor shall the provisions of the judgment or order with respect to the final division of property be subject to revision or modification.”However, at the same time, Sec. 767.01(1) vests in circuit courts the authority to do all things “necessary and proper” in actions affecting the family and “to carry the (the courts’) orders and judgments into execution.” Abrahamson wrote, “A significant aspect of justice is finality of decisions, and the court takes this legislative goal of finality seriously. Furthermore, when a marriage ends, the law envisions the parties as having an opportunity to be independent of each other and go their separate ways in regards to their property.“Nevertheless, the legislature and the courts recognize that a final division of property in a divorce judgment does not always resolve all matters between the parties and that remedial action by the circuit court may be needed to effectuate the objectives of the final division without disrupting the finality of the judgment.”The court reasoned that the wife was merely seeking clarification, which is “to make clear or intelligible,” while the statute proscribes only revision or modification, which means “to change or alter.” The court additionally observed that valuing and dividing pension plans is one of the most difficult tasks for judges, and that frequently, parties and courts fail to work out all of the details of the final division of a pension until after a divorce judgment.

Significance to the parties, family lawyers

The decision stated that, under the husband’s construction, he would have received “far more” than the $26,000 he was awarded pursuant to the judgment. Specifically, with all of the interest and appreciation, that figure falls more in the range of $145,000, said the wife’s attorney, Donald Roy Fraker of the Fraker Law Office in Mequon. “And that was only at 6 percent. So who knows — the markets have been doing so well — what it’s going to be worth when he retires in 2014? But it’s bound to be a heck of a lot more for her than the $23,000,” he said, estimating that it would top over $100,000 for his client. Fraker said the decision means that Sec. 767.32(1)(a) “doesn’t hobble trial courts, or prevent them from clarifying what they mean. It just says they can’t change their minds and redo it.”Judges will need to have an ambiguous provision first, he reminded. Fraker also said that the decision also gives a green light to what family court judges have likely been doing for years.“I have to guess that, as a practical matter, most judges were clarifying things when they were asked to clarify things. It just got done, and people were satisfied with it,” he said. “Or if there were another case like this, maybe nobody wanted to take it up (on appeal) because it would be too costly. Here, the amount at stake was sufficient to make it worthwhile.” The husband, an attorney, has been pro se since the case entered the appellate stage. He did not return a phone call seeking his commentary. The case is In Re the Marriage of Washington vs. Washington, 2000 WI 47, Wisconsin Supreme Court.

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