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Supreme Court takes on a unique divorce

Gregg Herman

Gregg Herman

Periodically in this column, I have suggested that the Wisconsin Supreme Court accept review on a family law case decided by the Court of Appeals.

Examples include Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690 and more recently, McReath v. McReath, 2010 WI App 101 (recommended for publication). The high court has, regrettably, usually ignored my advice. Well, they haven’t decided on review in McReath yet, but considering that they have been sitting on the petition for review since Aug. 30, it doesn’t look promising.

Recently, the Supreme Court decided to accept review in Topolski v. Topolski, 2009AP2433-FT. Save yourself the time of trying to find the case on the appellate court Web site – it’s a summary decision, so it is not available online. Which raises a separate issue regarding the lack of transparency in the court’s work, but that’s a topic for another article. I had to call the court seeking a copy of the decision, which the staff kindly faxed to me.

But that really wasn’t a big job, because the entire Court of Appeals decision is four pages, including a half page for the caption and nearly a full blank page at the end after the remand order. You can almost count the words.

What are the facts that warrant the high court’s time? The case involves a fact situation that is not typical. In fact, it may never have happened before and may never occur again.

Patrick and Ellen Topolski divorced in 1995. Patrick had a pension. For reasons that are not apparent, rather than dividing the pension via a Qualified Domestic Relations Order (QDRO), they agreed that Ellen would receive $912.88 per month from Patrick’s retirement benefits when payments commenced.

A few years later, however, Patrick suffered a series of strokes and became unable to work. In 2001, he began receiving $2,348 in “monthly benefits” in lieu of income. For some reason, Ellen felt she was entitled to a portion of the benefits and, again for reasons which are not apparent, the circuit court agreed, finding Patrick in contempt. One can only imagine Patrick’s surprise at being held in contempt for not obeying an order that was not supposed to go into effect for a number of years.

The District II Court of Appeals reversed, concluding that the payment was not a retirement benefit but instead a disability benefit and was not subject to the property division agreement. Therefore, Patrick was not in contempt.

We are left with a number of questions, none of which is answered by the appellate decision:

1. Why didn’t the trial court simply divide Patrick’s retirement via a QDRO?

2. When the Court of Appeals wrote, “[N]either party received maintenance,” does that mean it was denied or held open? (Yes, it does matter).

3. How much was the retirement benefit Patrick was to receive?

4. How common does the Supreme Court think this type of fact pattern is?

I can answer the last question: not very common. Hopefully, the justices will not seek to use this case to make some larger point to affect cases whose fact patterns differ greatly. And, if not, it would be nice if they would let us know why they are spending their resources on a strange case with a unique fact situation.

Gregg Herman is a shareholder with Loeb & Herman in Milwaukee, which practices exclusively family law. Herman can be reached via e-mail to

One comment

  1. This is an interesting article on an interesting case. One good question is why opinions in “Fast Track” cases are not online. Another is why the court is taking a case that is fact-intensive and unlikely to affect more than the parties to this action. That seems at odds with Rule 809.62’s governing criteria for granting review. Perhaps it was seen as “novel” with potential “statewide impact.”

    In any case, if the issue is whether “disability” benefits are the same as “retirement” benefits, the answer is no. If that were all that the court was going to decide, it could have simply left the Court of Appeals (Dist II) decision alone.

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