Divorce – Marital Settlement Agreement

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WI Supreme Court

Case Name: Kathy Schwab n/k/a Siech v. Paul Schwab

Case No.: 2021 WI 67

Focus: Divorce – Marital Settlement Agreement

Kathy Siech and Paul Schwab divorced in 1992. As part of the divorce judgment, the circuit court incorporated their marital settlement agreement, in which Paul promised to pay Kathy half of his pension “when and if” that benefit first became available to him. But when Paul first received his pension nearly 21 years later, he refused to pay Kathy her share. Kathy sought to judicially enforce their agreement via a contempt order, to which Paul responded that her action was barred by a 20-year statute of repose, Wis. Stat. § 893.40 (2019–20). The circuit court disagreed and concluded that, under Johnson v. Masters, 2013 WI 43, 347 Wis. 2d 238, 830 N.W.2d 647, it had the authority to order Paul to comply with the settlement agreement. The court of appeals reversed that order, concluding that § 893.40 barred Kathy’s action. We agree with the circuit court that Johnson v. Masters is instructive. Accordingly, § 893.40 does not bar Kathy’s action because it was impossible for Paul to perform on his promise——and therefore for Kathy to enforce that promise——until after the statutory period of repose had run. We therefore reverse the court of appeals’ decision and reinstate the circuit court’s order.

Reversed

Concur:

Dissent: ZIEGLER, C.J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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Derek A Hawkins is Corporate Counsel, at Salesforce.