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LOOKING BACK: Court didn’t distinguish itself with family law in 2020

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Typically, I end a year of columns with a review of the previous year.

Well, there’s no way I’m going to review 2020 in general as it would require expletives not allowed in this publication. So instead, I’ll limit my review to the Wisconsin Supreme Court, which issued two opinions concerning family law this year – and has one case pending for next year. This also affords me one more kick at the Supreme Court cat. And, it seems to me, some kicking is appropriate.

In Pulkkila v. Pulkkila, 2020 WI 34, 386 Wis.2d 352, 927 N.W. 2d 164, the supreme court wasted its time by affirming a perfectly good court of appeals decision without adding anything positive. In Pulkkila, the ex-husband violated a clause in his divorce agreement by not maintaining his ex-wife as a beneficiary of life insurance. The court of appeals sensibly reversed a trial-court ruling by holding, essentially, that the court order meant something.

Although the majority of the justices on the supreme court voted to affirm the court of appeals, they nonetheless remanded the case to the trial court to make additional findings. Because the essential facts were undisputed, it was totally unclear what additional findings were necessary. For that matter, it was totally unclear what the court was seeking to accomplish by reviewing a perfectly fine appellate court decision. It would have been helpful if it had taken this opportunity to remind parties to a divorce that a court order is not an “invitation” to do as they wish. But that didn’t happen. In fact, the supreme court did not seem perturbed at all by a blatant disregard for a court order.

Similarly, in Miller v. Carroll, 2020 WI 56 the supreme court affirmed a perfectly good decision from the court of appeals. The unusual facts involved a circuit court judge who had accepted a Facebook friend request from the mother in a custody/placement dispute involving a domestic-violence issue. The judge accepted the request after presiding over a contested hearing but before rendering a decision. In the course of the 25-day Facebook friendship’s existence before the court’s ruling, the mother “liked”, “loved” or commented on a number of the judge’s Facebook posts, as well as shared some third-party posts related to domestic violence. The judge never disclosed the Facebook friendship or the communications to the father or his lawyer, and he ultimately ruled entirely in the mother’s favor.

The Supreme Court held that there was a due-process violation since “(T)he totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality … Accordingly, this matter must be reversed to proceed before a different circuit court judge.”

The result is a case which, because of its unusual facts, is so narrow in its scope as to be worthless in application to other matters. I mean, how often do judges (a) issue written decisions after trial, (b) accept a litigant as a “friend” in the interim between the trial and decision, (c) not inform the other party of the friendship, and (d) receive information by social media regarding an issue at play during the trial? The answer: Not very often. In fact, other than this case, probably never.

So, if you are keeping score from home, those are two decisions which add little (if anything) to aid practitioners or parties. However, the supreme court has accepted review in a case in which one particular issue needs definition.

In Kemper Independence Insurance Co. v. Islami, 2019AP488 (May 27, 2020), a published decision, the court of appeals affirmed an order by Waukesha County Judge Hon. William Domina denying coverage to Ismet Islami for loss of her home because of a fire set by her former (?) husband, Ydbi, from whom she was legally separated. The reason for the “?” is that there’s a question of whether a judgment of legal separation means that Ismet was not married – or to what extent she was not married. Apparently, unlike being pregnant, it is possible to be a “little married.”

The trial court found that, for the purposes of the insurance contract, it was irrelevant whether or not under Wisconsin law the Islamis were actually married at the time of the arson since they represented themselves as “an insured interest based upon their marriage.” The trial court denied the claim under a “concealment or fraud” condition of their homeowner’s policy, according to which there is no coverage if an insured conceals or mis-presents a fact upon which the insurer relies or which contributes to the loss. The trial court granted summary judgment to Kemper denying coverage to Ismet, despite the fact that she was an innocent insured.

The court of appeals affirmed, finding, among other matters, that Ydbi was Ismet’s spouse, not withstanding the judgment of legal separation. The appellate court found that a legal separation is “something less than terminating a marriage”, although it did not bother to define “something.” Citing Herbst v. Hansen, 46 Wis. 2d 697, 176 N.W.2d 380 (1970), the appellate court noted that

“[T]here are more rights remaining in a marriage after a legal separation than following an absolute divorce.” Again, the court did not bother to be explicit about these “rights.”
Ismet petitioned for review, and the Supreme Court accepted the request. Although the supreme court may be able to avoid the question of “how married are legally separated parties?” it would be nice if they would help define this “fine point of Wisconsin family law.” Inquiries by clients and potential clients about the difference between a legal separation and a divorce are common.

Although it’s easy to explain the prohibition against remarriage for a legally separated couple, much else is fuzzy. Fuzziest of all, for example, is the extent to which a legal separation would protect a legally separated spouse from a marital-purpose obligation under Chapter 766. And if the Supreme Court does provide some definition of “legal separation,” I promise to say something kind about the court in my 2021 year in review summary.

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