Court Sides With Ex-Wife in Pension Fight, Applies New Judgment
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Sept. 13, 2012 – A former Milwaukee firefighter must pay
$165,290 to his ex-wife, who was entitled to 40 percent of his
retirement pension starting in 2001. Post-divorce, the ex-husband
elected to receive lifetime “duty disability payments” in
lieu of the pension.
The District I Wisconsin Court of Appeals in Dickau v. Dickau, 2011AP1516 (Sept. 5, 2012), also applied the
state’s new judgment interest rule (prime rate plus one percent)
to future payments, but not without questioning the wisdom of the new
“Although a fixed percentage interest rate on delinquent payments
has much to recommend it in the context of certainty to litigants and
economical use of judicial time, the legislature has set a different
policy,” wrote Judge Joan Kessler for the three-judge appeals
Ex-Husband Must Pay Portion of Disability
Glen and Georgianne Dickau divorced in 1993 after 24 years of marriage.
They entered into a Marital Settlement Agreement (MSA) that entitled
Georgianne to 40 percent of Glen’s retirement pension through the
City of Milwaukee, when he started receiving it. At the time of divorce,
the parties anticipated that Glenn would start receiving the pension at
In 2001, Glen joined litigation commenced by four other Milwaukee
firefighters regarding “duty disability benefits,” which he
had been receiving since 1985. The result meant that Glen could receive
nontaxable lifetime duty disability benefits in lieu of retirement
Glen chose the duty disability benefit pension option when he turned
age 57 in October 2001, and did not inform his ex-wife that he would
never receive pension retirement payments. In fact, the circuit court
found that Glen actively concealed this information believing that
receipt of duty disability benefits instead of pension payments would
entitle Georgianne to nothing.
In 2009, when Georgianne learned of Glen’s belief from a family
friend, she commenced an action to recover 40 percent of the duty
disability payments, beginning in 2001.
The circuit court ruled in favor of Georgianne, ordering that Glen pay
a past due amount, at three percent interest, calculated at $165,290.
The court also imposed 12 percent interest on any past due sum not paid
within a month and two weeks of judgment, and ordered that future
delinquent payments bear interest at three percent per annum, compounded
The appeals court upheld the circuit court’s order in part,
agreeing the Glen owed a past due amount, plus three percent interest
(from 2001 to 2011), based on the couple’s MSA.
“[T]he disability benefit payments are in fact and in law a
substitute for age-related retirement benefits to which the employee had
earlier been entitled,” wrote Judge Kessler, relying on
Topolski v. Topolski, 2011 WI 59, 335 Wis. 2d 327, 802 N.W.2d
482. “We conclude that the decision in Topolski is
entirely supportive of and consistent with the circuit court’s
The appeals court also upheld the circuit court’s application of
12 percent interest on any past due sum not paid within the grace period
of a month and two weeks from the judgment.
However, it ruled that Wis. Stat. section 815.05(8),
effective Dec. 2, 2011, applied to determine the interest rate on future
delinquent monthly payments owed to Georgianne by Glen. The circuit
court had set a three percent fixed rate interest on future delinquent
Section 815.05(8) changed interest on civil money judgments from an
annual fixed rate of 12 percent to an annual rate of 1 percent plus the
prime rate in effect on Jan. 1 and June 30 in a given year, as reported
by the Federal Reserve board in statistical
release H. 15.
“The statute does not appear to prospectively set a fixed rate
interest on future delinquencies other than as directed by the
statute,” Judge Kessler explained.
When a Pension is Not a Pension – WisBar InsideTrack,
June 20, 2012.