Supreme court may decide whether time bars ex-wife’s right
to retirement pension
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
April 4, 2012 – The Wisconsin Supreme Court may decide
whether the state’s statute of repose bars a former spouse from
receiving one-half of her ex-husband’s retirement pension.
A marital settlement agreement and divorce judgment in 1989 gave
Patricia Johnson half of her ex-husband’s accrued retirement
pension from the date of divorce to the date of his retirement and
required her to file a qualified domestic relations order (QDRO) to secure the right.
The ex-husband (Michael Masters) retired in 2009, and Johnson submitted
the QDRO to the circuit court in 2010, about 21
years and seven months after the divorce judgment was entered.
The circuit court dismissed the case, ruling that Wis. Stat. section 893.40
barred Johnson’s enforcement motion, meaning she could not enforce
the right to half Masters’ pension.
Section 893.40 (known as the statute of repose) bars
“actions” upon a court judgment or decree, unless commenced
within 20 years after the judgment or decree is entered.
Today, the District II Wisconsin Court of Appeals certified
the case, Johnson v. Masters, to the state supreme court,
asking whether section 893.40 applies.
The appeals court asks: “When a former wife seeks to obtain a
pension award by submitting a [QDRO] as required by the
divorce judgment, and the submission is approximately one year after the
former husband retires, but more than twenty years after the divorce
judgment, is this an ‘action’ which is barred by the statute
of repose, Wis. Stat. § 893.40?”
In dismissing the case, the circuit court relied on Hamilton v.
Hamilton, 2003 WI 50, 261 Wis. 2d
458, 661 N.W.2d 832, a case which barred an action to
collect child support arrearages commenced more than 20 years after an
amended judgment on child support was entered.
Johnson argues that her pension claim did not “accrue”
until after her ex-husband retired, so the statute of repose did not
start running until his retirement in 2009.
“[I]t may be too simplistic to say the clock always begins at the
divorce judgment because in a case such as this one, rights are
contemplated in the judgment that do not vest until a later date when
the vesting of property occurs,” the appeals court noted.
The supreme court accepts certifications if a majority of justices vote
to accept it.