Recently, the debate has once again arisen about what “final judgment” means under Wis. Stat. section 767.451(1).

Is the “final judgment” the original judgment in the action or is it the most recent order determining legal custody or physical placement? Does the two-year truce restart with every new order, or is there a one-time truce after the matter is first resolved?

The Debate Over ‘Final Judgment’

The conclusion matters, as pointed out by both Chelsie A. Thuecks in her Family Law Blog article from 2024^[1] and Hon. Jeffrey R. Wisnicky in his recent contribution to the Wisconsin Journal of Family Law.^[2] I believe the legislature tried to resolve the issue when it amended and renumbered the old Wis. Stat. section 767.32 as section 767.451 in 2005.^[3] As Thuecks points out and Wisnicky references, “This bill struck ‘initial order’ language and replaced it with ‘final judgment determining custody and placement.’ A footnote in the bill specifically states that ‘[n]o substantive change in current law is intended.’”^[4]

Wisnicky reminds us, however, that “we do not consult with this legislative history unless the statute is ambiguous. …” I submit that Wis. Stat. section 767.451(1) is not at all ambiguous, and that the two-year truce period applies only to final, original judgments, not to modifications of the judgment.

The Court of Appeals Leaves Clues

But what I think doesn’t really matter. What matters is what the court of appeals has held.

In In Re the Paternity of Bradford J.B.: Paul M.J. v. Dorene A.G.,^[5] the court of appeals noted:

By enacting sec. 767.325(1)(a), Stats. [the precursor to Wis. Stat. § 767.451(1)], the legislature has demonstrated its intent that, absent extraordinary circumstances, modification of custody and placement hearings may not be held, and orders modifying custody and placement may not be entered, during the two-year period following the entry of the original order. [Emphasis added.]^[6]

So, in 1993, the court of appeals found no ambiguity in holding that the truce was a one-time event that hinged on the “original order.”

Fast forward to 2012. The court of appeals entered a per curiam opinion (not citable, but interesting) in Koronkiewicz v. Spitzmacher.^[7] There, the court at ¶ 14 upheld enforcement of a two-year truce after a post-judgment stipulation under Lawrence^[8] and Rintelman.^[9] Why would the court reference enforcing the parties’ agreement for conditions that could not ordinarily be ordered by a court, if the multiple two-year truce rule was the law under Wis. Stat. section 767.451?

The Question Remains Open

And again in 2023, in The Support of C.L.B.: Krzykowski v. Bentivegna^[10] (another per curiam, but also interesting) the court of appeals at ¶ 3 notes:

By its own terms, [the harm standard] applies only to modifications within two years after “determining legal custody or physical placement is entered under [WIS. STAT. §] 767.41.” Here, it is not clear that the August 2021 order was “the final judgment … under [§] 767.41,” or whether the final judgment was instead one that the circuit court issued earlier in the case, such as the placement order the court entered on September 5, 2017. This point is potentially significant; if the two-year period applies only to modification of the first order issued under § 767.41 but not to any subsequent modification orders, then the two-year period would not apply to the court’s August 2021 order. However, on appeal Bentivegna does not dispute that this provision applies here, and therefore the final judgment we proceed on the assumption that it does, without deciding that it does. [Emphasis added.]

How could it be unclear what the date of the “final judgment” was in C.L.B. if “final judgment” meant “most recent judgment?”

Moreover, why would the court of appeals have to assume without deciding whether “final” means “most recent” if section 767.451 makes it so clear and unambiguous?

Critics will say that per curiam opinions, while interesting, are not law. And they’d be right. Except that, if section 767.451 is so unambiguous as to the interpretation of “final judgment,” why does the court of appeals keep hedging its bets?

The Path to an Answer

I submit that while the Wisconsin Legislature tried to correct the ambiguity in 2005, it left us with more of the same. Lawyers and courts differ in the application of the two-year truce period under section 767.451. Anecdotally, I feel like the final = original = first crowd is in the majority.

There is a simple way to resolve this: Give the court of appeals the chance to tell us what this all means.

Our family law statutes are young. The law contained in Wis. Stat. section 767 was overhauled in 1986 (and to a much lesser extent in 2005), and 40 years into the life cycle of a statute is like 40 years for Yoda or Grogu – hardly a drop in the bucket.

Written family law court of appeals opinions have slowed down recently, so our law is still developing. As advocates for jurisprudence, we should take every opportunity and make every argument that advances that jurisprudence.

The court of appeals can provide us and our clients with the answers, but they must be presented with the questions first. This topic is ripe for an appeal, but lawyers must have the fortitude to appeal a circuit court’s decision and clients must have the resources to underwrite it.

Until this happens, this potential ambiguity will undoubtedly continue to raise its ugly head in family law matters in Wisconsin.

Endnotes

[1] Chelsie A. Thuecks, “Revising Placement: The Harm Standard, Section 767.451, and the Two-year Limit,” Family Law Blog, Oct. 28, 2024. ↩

[2] Hon. Jeffrey R. Wisnicky, “Modifying Placement Before the Two-year Mark,” Wisconsin Journal of Family Law, July 2026, p. 51. ↩

[3] See 2005 Wis. Act 443. ↩

[4] Thuecks, “Revising Placement.” ↩

[5] M.J. v. A.G., 181 Wis. 2d 304, 510 N.W.2d 775 (Ct. App. 1993). ↩

[6] Id., at 311. ↩

[7] Koronkiewicz v. Spitzmacher, No. 2011AP1155, 2012 WI App 73, 342 Wis. 2d 250, 816 N.W.2d 351 (Ct. App., May 1, 2012) (unpublished table decision). ↩

[8] Lawrence v. Lawrence, 2004 WI App 170, ¶ 6, 276 Wis. 2d 403, 687 N.W.2d 403. ↩

[9] Rintelman v. Rintelman, 118 Wis. 2d 587, 594-96, 348 N.W.2d 498 (1984). ↩

[10] Krzykowski v. Bentivegna, No. 2022AP2089, 2024 WI App 1, 2 N.W.3d 416 (Ct. App., Nov. 16, 2023) (unpublished table decision). ↩