Topolski v. Topolski
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Patrick and Ellen Topolski were divorced in 1995. Under a marital settlement agreement setting forth division of the parties' property, Patrick was awarded all retirement and pension benefits when received by him less the sum of $912 per month he was to pay Ellen. In 2001, when he was fifty-three years old, Patrick began receiving disability pension payments of $2,348 monthly under a pension plan. In 2008, Ellen brought a motion in the circuit court seeking a qualified domestic relations order for $912 per month pursuant to the relief provided in the agreement as well as payment from the time Patrick began receiving benefits. The circuit court interpreted the agreement as requiring Patrick to pay Ellen $912 per month from his disability benefits and awarded judgment in the amount of $83,072 to Ellen. The court of appeals reversed, finding Ellen was not entitled to receive payments from the disability pension benefit but was entitled to receive monthly payments when Patrick reached sixty-five, the normal retirement age under the pension plan. The Supreme Court modified the appellate court's decision and as modified, affirmed, holding Ellen was entitled to $912 per month from the disability pension when Patrick turned sixty-two years old.
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2011 WI 59 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP2433-FT In re the marriage of: Patrick A. Topolski, Petitioner-Appellant, v. Ellen J. Topolski, Respondent-Respondent-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 8, 2011 March 1, 2011 CIRCUIT COURT WAUKESHA JAMES R. KIEFFER ROGGENSACK, J. dissents (Opinion filed). PROSSER, J. joins dissent. NOT PARTICIPATING: ATTORNEYS: For the respondent-respondent-petitioner there were briefs and oral argument by Thomas J. Schneck and Law Offices of Andrew C. Ladd, LLC, Madison. For the petitioner-appellant there was a brief and oral argument by Joseph F. Owens and Law Offices of Joseph F. Owens, LLC, New Berlin. 2011 WI 59 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP2433-FT (L.C. No. 1994FA492) STATE OF WISCONSIN : IN SUPREME COURT In re the marriage of: FILED Patrick A. Topolski, Petitioner-Appellant, JUL 8, 2011 v. A. John Voelker Acting Clerk of Supreme Court Ellen J. Topolski, Respondent-Respondent-Petitioner. REVIEW of a decision of the Court of Appeals. Modified and as modified affirmed. ¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of an unpublished decision of the court of appeals reversing an order of the Judge.1 1 circuit The court circuit for Waukesha court County, interpreted the James R. parties' Kieffer, Marital Topolski v. Topolski, No. 2009AP2433-FT, unpublished slip op. (Wis. Ct. App. May 5, 2010). No. 2009AP2433-FT Settlement Agreement, which was incorporated in the judgment of divorce, as requiring Patrick Topolski, the husband, to pay Ellen Topolski, the wife, $912.88 per month from his disability benefits under a pension plan. The circuit court order awarded judgment in the amount of $83,072.08 plus interest to the wife and found the husband in contempt for failing to comply with the Marital Settlement Agreement. ¶2 The court of appeals reversed that part of the circuit court order finding the husband in contempt and requiring him to pay his wife $912.88 per month with interest from December 2001 when he began receiving monthly disability payments from the pension plan. not entitled The court of appeals concluded that the wife was to receive $912.88 from the monthly disability pension benefit but was entitled to receive $912.88 from the monthly retirement benefit when the husband reached the age of 65, the "normal retirement age" under the pension plan, "the age at which the parties contemplated that he would have retired had he not been injured."2 ¶3 of The issue presented is whether the husband's receipt disability pension benefits paid under the Electrical Construction Industry Pension Plan ("Pension Plan"), beginning in December 2001 when he was 53 years old, required him to pay $912.88 per month to the wife pursuant to their judgment of divorce, which provided as follows: "All retirement, pension, 2 Topolski v. Topolski, No. 2009AP2433-FT, unpublished slip op., at 3 (Wis. Ct. App. May 5, 2010). 2 No. 2009AP2433-FT and deferred benefit accounts in [the husband's] name, less the sum of $912.88 to be paid by [the husband] to [the wife] per month, if and when received by him." ¶4 of the To resolve this issue, we must interpret the language parties' Marital Settlement Agreement and apply the Marital Settlement Agreement to the husband's disability pension under the Pension Plan. ¶5 Under the husband's Construction Industry Pension Plan, the amounts he received as disability benefits did not reduce the amounts payable to him as a retirement benefit when he reached early (62 years of age) or normal retirement age (65 years of age). The early retirement benefit at age 62 and the normal retirement benefit are the same amounts. ¶6 We conclude as follows: (1) The Marital "all retirement, Settlement pension, and Agreement's deferred reference benefit to accounts" does not address disability benefits. (2) The husband's disability pension under the Pension Plan, beginning when he was 53 years old and continuing until he attains the age of 62, replaces lost wages and therefore does deferred benefit Agreement. not constitute account a under retirement, the pension, Marital or Settlement Thus, the Marital Settlement Agreement does not require the husband to pay to his wife any portion of the disability pension that he receives before age 62. (3) When the husband reaches the age of 62 he is eligible to receive an unreduced "early pension" under the 3 No. Pension Plan, which is the same amount 2009AP2433-FT as his "normal pension" would be at age 65, which in turn is the same amount as his disability pension has been. Thus, the husband's disability pension under the Pension Plan when he reaches the age of 62 constitutes a retirement, pension or deferred benefit Agreement. And account so, under pursuant to the Marital Settlement the Marital Settlement Agreement, when the husband reaches age 62, the husband must pay the wife $912.88 per month if and when the husband receives the disability pension under the Pension Plan. ¶7 This holding places the husband and wife in the same position they would have been in had the husband not become disabled. This holding gives both the husband and wife exactly what they bargained for in the Marital Settlement Agreement: The husband retains, as the parties agreed, full right to earnings from his employment (here the disability payments are a substitute for earnings from employment); the wife is not entitled, under the Marital Settlement Agreement, to any part of the husband's earnings. The husband's retirement benefits under the Pension Plan are not reduced or otherwise affected by the disability husband payments "receives" made his to the retirement husband. benefits "If and under when" the the Pension Plan, the wife is to be paid $912.88 per month under the Marital Settlement Agreement. The husband is eligible to receive full retirement benefits at age 62 under the Pension Plan and "if and when" the husband receives retirement benefits at age 62 the 4 No. 2009AP2433-FT husband pays the wife the monthly sum upon which they agreed in the Marital Settlement Agreement. ¶8 Accordingly, we determine that the circuit court erred in holding the husband in contempt and in awarding the wife $83,072.08 plus interest. ¶9 We affirm the decision of the court of appeals reversing that portion of the order of the circuit court holding the husband in contempt and ordering him to make payments of $912.88 per month with interest to the wife from December 2001. We modify the decision of the court of appeals, however, to provide that under the Marital Settlement Agreement the wife is entitled to $912.88 per month if and when the husband receives the disability pension under the Pension Plan beginning first month immediately following his 62nd birthday. of appeals erred in holding that the wife's the The court monthly payment begins when the husband reaches his 65th birthday, rather than his 62nd birthday. I ¶10 The facts are undisputed for purposes of this review. Patrick and Ellen Topolski were divorced on January 3, 1995, after a marriage of 24 years. At the time of the divorce the husband was able-bodied and employed as an electrician. The judgment of divorce incorporated a Marital Settlement Agreement setting forth the division of the parties' property. ¶11 Maintenance was permanently waived by both the husband and wife under the Marital Settlement Agreement. 5 No. ¶12 Pertinent to this review, under the Marital Settlement Agreement the retirement, husband's 2009AP2433-FT parties pension, name. The divided and their deferred husband was interests benefit awarded in accounts" "all "all in the retirement, pension, and deferred benefit accounts" "if and when received by him" less the sum of $912.88 per month which he was to pay his wife as follows: All retirement, pension, and deferred benefit accounts in [the husband's] name, less the sum of $912.88 to be paid by [the husband] to [the wife] per month, if and when received by him. If [the wife] predeceases [the husband], her interest lapses and reverts to [the husband]. Correspondingly, the wife was awarded: "The sum of $912.88 per month by direct payment from [the husband] following his receipt of pension and retirement benefits, if and when received by him. If [the husband] fails to honor this requirement, [the wife] will be automatically entitled to obtain a QDRO from the court to enforce same."3 3 A generic definition of a QDRO, a Qualified Domestic Relations Order, is "a court order directed to a retirement plan to divide, or pay, all or a portion of the plan participant's benefits or account balance to the nonparticipant alternate payee spouse or qualified dependant." Timothy C. Voit, Retirement Plan Benefits and QDROs in Divorce 143 (2004). The Wisconsin Judicial Benchbook, citing 29 1056(d)(3)(B)(i), (C), (D), discusses a QDRO as follows: U.S.C. 2) Qualified Domestic Relations Order. A "Qualified Domestic Relations Order" is a Domestic Relations Order which a. Creates or recognizes the existence of an Alternate Payee's rights to, or assigns to an Alternate Payee the right to, receive all or a portion of the benefits 6 No. ¶13 2009AP2433-FT Nothing in the record explains how the parties valued the wife's or husband's interests in retirement, pension, and deferred benefit accounts to reach the sum of $912.88 payable to the wife each month. ¶14 strokes In 1998 and in 2000 the husband suffered a series of leaving him unable to work as an electrician. In December 2001, the husband, then 53 years old, qualified for and began to receive Electrical month.4 "disability Construction pension" Industry Pension payments under the Plan $2,348 per of The Pension Plan defines "disability" as "a physical or mental condition which, in the judgment of the Trustees, will totally and presumably permanently engaging in employment or gainful prevent pursuit an in Employee the from electrical industry or as a craftsman in any building trades industry." payable with respect to a Participant under a Plan, and b. Clearly specifies certain facts, and c. Does not alter the amount or form of benefits under a Plan d. Even though signed by the Ct, a Domestic Relations Order becomes "Qualified" (i.e. approved) only after it is signed by the Plan Administrator. 3 Wisconsin Judicial Benchbook FA 12-6 (3d ed. 2007). When dividing marital interests in a retirement plan at divorce, a QDRO can be the most equitable way to divide retirement assets and may prevent disputes at a later time. 4 The husband also began receiving Social Security disability benefits. The Social Security benefits are not at issue in this case. The wife does not claim any right to those disability benefits. 7 No. ¶15 In 2008, after determining that the 2009AP2433-FT husband had received Pension Plan benefits starting in 2001 but had failed to pay her the sum of $912.88 monthly, the wife brought a motion in the circuit court seeking a Qualified Domestic Relations Order for $912.88 per month pursuant to the relief provided in the Marital Settlement Agreement, as well as payment (with accrued interest) from the time the husband commenced receiving benefits. ¶16 The circuit court held a hearing on the wife's motion. The wife's testimony centered on why she had waited so long to bring the motion seeking payment from the husband. She did not testify regarding her understanding of the terms of the Marital Settlement Agreement or the intent of the parties at the time of the divorce regarding the Marital Settlement Agreement. ¶17 The wife presented an expert witness, who testified generally about divorce. upon valuation and pension division at The wife's expert also testified that in his opinion, review of Agreement, the receiving were Pension pension Plan. the Pension and Marital pension payments the retirement benefits pursuant disability pension The expert Plan further opined about Settlement husband was to the whether the husband's receipt of these disability pension benefits triggered his obligation to pay the wife $912.88 per month pursuant to the Marital Settlement Agreement. ¶18 The wife's counsel asked the expert: "It's your opinion that once Mr. Topolski [the husband] commenced receiving benefits, the clause in the Divorce Judgment was triggered and 8 No. he was required to pay $912.88?"5 answer is yes." intent of the 2009AP2433-FT The expert responded: "The The expert witness did not testify about the parties about the meaning of the Marital Settlement Agreement at the time of the divorce judgment. ¶19 The husband was the only witness on his behalf at the hearing. He did not testify regarding his understanding of the terms of the Marital Settlement Agreement or the intent of the parties at the time of the divorce about the Marital Settlement Agreement. date was The husband was asked what his expected retirement at expectation the was time to of retire divorce. He at that 62 and responded he that would have problem with making payments to his wife at that time. his no The direct examination on this topic proceeded as follows: Q. [Husband's counsel] When the language of this divorce marital settlement agreement was entered into, did you have an intended retirement date in mind that this would start? A. [Husband] No. Q. You were abled [sic] body, did you expect to work until you were 65 or 62? What was your expectation? A. Probably 62. Q. So you would not have a problem with getting payments to her at age 62; is that a fair statement? A. No. Q. You would problem? have no problem 5 or would you have a The husband's counsel objected to this question asserting that it called for a legal conclusion. The objection was overruled. 9 No. 2009AP2433-FT A. No, I wouldn't have a problem. ¶20 The husband's counsel argued to the circuit court that the disability pension was income and that not until the husband attained the age of 62 did the disability pension constitute a retirement, pension, or deferred benefit account under the Marital Settlement Agreement. ¶21 The circuit court was not persuaded by the argument that the disability pension the husband was receiving should be characterized as income, as opposed to a retirement, pension, or deferred benefit account subject to division under the Marital Settlement Agreement. income argument, The circuit court rejected the husband's stating its interpretation of the Marital Settlement Agreement and the Pension Plan as follows: I recognize the parties did waive their requirements or the ability to receive maintenance and I think that may have come about for various reasons, all of which I really don't know but I know at the time of the divorce Patrick [the husband] was healthy and was working and he did not envision ever becoming disabled such as has happened with him but I disagree this is taking income from him as opposed to simply enforcing the property division itself. ¶22 The husband's counsel argued that the disability pension should be considered a retirement, pension, or deferred benefit account under the Marital Settlement Agreement when the husband attained the age of 62: "It would seem appropriate that beginning at age 62 the [$]912.88 would start based on his testimony and that is the earliest point in time that we should start this monthly benefit." 10 No. ¶23 2009AP2433-FT In written finding number 7, the circuit court did not accept this argument. disability pension The was a circuit court retirement, concluded pension, that or the deferred benefit account, commenting as follows: That it is clear from the testimony of the experts [sic], the parties and the Plan documents, themselves, that disability pension benefits received by the Petitioner [Mr. Topolski] are retirement benefits pursuant to the parties' Judgment of Divorce; That to argue that Petitioner has received anything other than benefits under his pension plan, is inappropriate[.] This finding is interpretation of not labeled as fact the language of the or law, Divorce but is Judgment, an the Marital Settlement Agreement, and the Pension Plan. ¶24 the Based upon its interpretation of the Divorce Judgment, Marital Settlement Agreement, and the Pension Plan the circuit court also found, during the hearing, that the wife was not equitably estopped from pursuing monthly payments beginning in December 2001: I find there is absolutely no basis in this record to indicate that [the wife] should be equitably estopped from pursuit of what had been awarded to her per the parties' own agreement going back to the time of their divorce.6 ¶25 The circuit court implemented a qualified domestic relations order in favor of the wife pursuant to the Marital Settlement Agreement and awarded the wife $912.88 per month (plus interest) starting from December 2001. 6 Quoted in part at ¶17 of the dissent. The issue of equitable estoppel is not before the court. 11 No. 2009AP2433-FT II ¶26 We begin our standard of review. analysis by determining the proper We are called on in the present case to determine whether the circuit court erred in its use of the contempt power. ¶27 power, In reviewing a circuit court's use of its contempt we determine whether exercised its discretion.7 the circuit court erroneously A circuit court erroneously exercises its discretion if it makes an error of law. This court decides any questions of law that may arise during its review of a circuit court's circuit court exercise and of discretion of appeals, court independently benefiting from of the their analyses.8 ¶28 In the present case, the circuit court exercised its discretion on the basis of its interpretation of the Marital Settlement Agreement and the Pension Plan. The interpretation of the Divorce Judgment, the Marital Settlement Agreement, and the Pension independently Plan of is the a question court of of appeals law, which and circuit we decide court but benefiting from their analyses.9 7 Krieman v. Goldberg, 214 Wis. 2d 163, 165, 571 N.W.2d 425, 427 (Ct. App. 1997). 8 State v. St. George, 2002 WI 50, ¶37, 252 Wis. 2d 499, 643 N.W.2d 777 (2002). 9 Sulzer v. Diedrich, 2003 WI 90, ¶16, 263 Wis. 2d 496, 664 N.W.2d 641. 12 No. ¶29 2009AP2433-FT The principles that govern interpretation of written documents are well established. ¶30 Ordinarily the interpretation of a written document is a matter of law. If, however, a document is ambiguous or the parties rely on extrinsic evidence bearing on the intent of the parties to the contract regarding the writing when it was made, the question is one of fact for the fact-finder.10 ¶31 Settlement In the present case, neither party claims the Marital Agreement or the Pension Plan is ambiguous, and neither party offered or introduced extrinsic evidence in the circuit court bearing on the intent of the parties regarding the meaning of the text of either document. The standard of review for stated circumstances such as these was as follows in Thurston v. Burnett & Beaver Dam Farmers' Mut. Fire Ins. Co., 98 Wis. 476, 478-79, 74 N.W. 131 (1898): [W]here language is plain and unambiguous, the apparent import of the words must govern, and the rule that where there is no uncertainty as to the meaning of the words used in the contract, and where such uncertainty exists but there is no extrinsic evidence or circumstance bearing on the subject to be considered in determining the meaning attributed to them by the parties when the contract was made, the proper interpretation of the words and construction of the contract are solely for the court. 10 Streiff v. Am. Family Mut. Ins. Co., 118 Wis. 2d 602, 604, 348 N.W.2d 505 (1984); Kraemer Bros., Inc. v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 278 N.W.2d 857 (1979); RTE Corp. v. Maryland Cas. Co., 74 Wis. 2d 614, 620-21, 247 N.W.2d 171 (1976); Bauman v. Midland Union Ins. Co., 261 Wis. 449, 451-52, 53 N.W.2d 529 (1952). 13 No. ¶32 2009AP2433-FT Accordingly, we determine the meaning of the Marital Settlement Agreement and the Pension Plan as questions of law. III ¶33 We Agreement. turn now to interpreting the Marital Settlement The best indication of the parties' intent is the language of the document itself.11 Words in a document should be given their plain and ordinary meaning unless the word has a technical meaning.12 Technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless the context of the document or an applicable custom or usage clearly indicates that a different meaning was intended.13 ¶34 as we The Marital Settlement Agreement awards the husband, have stated previously, "all retirement, pension, and deferred benefit accounts in his name . . . ." ¶35 Nothing in the Marital Settlement Agreement refers to the disability of either party or to disability payments. ¶36 Judge James R. Kieffer presided over the divorce proceedings in 1995 and presided over the hearing on the wife's motion at issue here. court ruled: 11 Levy "The v. Levy, In the judgment of divorce, the circuit Marital 130 Settlement Wis. 2d 523, Agreement which 535, N.W.2d 170 388 was (1986). 12 Huml v. Vlazny, 2006 WI 87, ¶52, 293 Wis. 2d 169, 716 N.W.2d 807. 13 North Gate Corp. v. Nat'l Food Stores, 30 Wis. 2d 317, 321, 140 N.W.2d 744 (1966). 14 No. 2009AP2433-FT entered by the parties is found to be fair and reasonable, is approved in its entirety, and is incorporated within Judgment of this Court as an integral part thereof." the In the instant case, the only comment the circuit court made relating to the divorce judgment was the following: "I know at the time of divorce Patrick [the husband] was healthy and was working and he did not envision ever becoming disabled such as has happened with him . . . ." This appears to be a casual comment, not a considered ruling. ¶37 Nothing in the Marital Settlement Agreement specifically addresses the husband's interest in the Electrical Construction Industry Pension Plan. Indeed no particular retirement, pension, or deferred benefit account is referenced in the Marital Settlement Agreement; the Marital Settlement Agreement addresses the husband's interest globally in any and all retirement, pension, and deferred benefit accounts in his name. ¶38 Indeed, Construction the record Industry does Pension not Plan existence at the date of the divorce. include the Electrical Construction include that may the Electrical have been in The record does not even Industry Pension Plan in existence in December 2001 when the husband began collecting the disability pension. The only Pension Plan in the record is dated 2007, and the motion was heard as if this 2007 Pension 15 No. 2009AP2433-FT Plan were in existence at the time of divorce, in December 2001, and throughout this litigation.14 ¶39 The context of the Marital Settlement Agreement indicates that the words "retirement", "pension," and "deferred benefit accounts" are not used in a technical sense. No one has offered an interpretation of these words as usually understood by persons in the profession or business to which they relate. The wife's expert witness was an expert pension valuation for purposes of divorce. opinion that the benefit account" words in the "retirement," Marital in the subject of He offered no expert "pension," Settlement or "deferred Agreement had a technical meaning.15 ¶40 Marital Thus, we begin by giving the word "retirement" in the Settlement Agreement its plain and ordinary meaning. Nothing in the record indicates that the parties intended to incorporate the definition of "retirement" Electrical Construction Industry Pension Plan. used in the Thus, unlike the circuit court, we do not interpret the word "retirement" in the 14 The record contains the Summary Plan Description for the Electrical Construction Industry Pension Plan dated December, 2007. 15 The expert testified about the meaning of the phrase "if, as and when" which he viewed as a technical phrase in the industry. The expert testified: "Shared interest division works if, as and when. It's a very specific term in my industry. If the participant collects, as the participant collects it, when the participant collects it. That's basically the term that's in my industry." The Marital Settlement Agreement in the present case does not use the phrase "if, as and when." 16 No. Marital Settlement Agreement by using the 2009AP2433-FT definition of "retirement" set forth in the Electrical Construction Industry Pension Plan.16 ¶41 The plain and ordinary meaning of "retirement" is the withdrawal from work, often due to reaching a particular age.17 Retirement does not ordinarily mean termination of employment resulting from an inability to work due to a medical condition. ¶42 The plain and ordinary usage of the word "pension" is to refer to income a person receives when he or she reaches retirement age and no longer earns regular income from employment.18 "Pension plan" is often used interchangeably with "retirement plan" and in common parlance "pension income" and 16 The Electrical Construction Industry Pension Plan defines "Retirement" as "The period after you qualify for a pension under the Plan and start to receive monthly pension payments . . . ." 17 Webster's New World Law Dictionary defines "retirement" as "the voluntary termination of employment upon reaching a certain age." Webster's New World Law Dictionary (2010). 18 "Pension: money that someone regularly receives after they have stopped working because of their age, paid either by their company or by the government." Macmillan Dictionary (2009). "Pension: a regular payment made by an employer to former employees after they retire." Collins English DictionaryComplete and Unabridged (2003). "Pension: a fixed sum paid Merriam-Webster Dictionary (2011). regularly to a person." "Pension: A benefit, usually money, paid regularly to retired employees or their survivors by private businesses and federal, state, and local governments." West's Encyclopedia of American Law (2d ed. 2008). 17 No. "pension account" or "retirement and income" 2009AP2433-FT "retirement account" are used interchangeably. ¶43 benefit Nothing in the The accounts." record defines plain and the phrase ordinary "deferred meaning of that phrase used in context with the words "pension" and "retirement" seems to describe a benefit that will be realized sometime in the future. Reference to deferred benefit accounts seems like a reference to deferred compensation received on the attainment of a particular age. ¶44 The value of pension, or deferred valuation challenges, asset at divorce.19 considered in a spouse's benefit is interest account, generally in a retirement, although presenting classified as a divisible Therefore, these assets generally must be the circuit court's division of property at divorce. ¶45 as In contrast, a disability benefit is ordinarily viewed distinct account. from a "Disability retirement, pension, benefit" or or deferred "disability benefit income," in ordinary parlance, commonly refers to a payment received when a person is totally, unable due to to a work, either physical or 19 in a mental chosen profession medical or condition. Cook v. Cook, 208 Wis. 2d 166, ¶18, 560 N.W.2d 246 (1997)(holding that military retirement pay must be considered in dividing the property in a divorce proceeding); Steinke v. Steinke, 126 Wis. 2d 372, 380, 376 N.W.2d 839 (1985), 127 Wis. 2d 444, 379 N.W.2d 853 (1986) (on reconsideration) ("[W]e hold that, as a matter of law, the value of a spouse's interest in a pension fund must be included by the trial court in the division of the property between the spouses."). 18 No. 2009AP2433-FT Disability benefits are not ordinarily referred to as deferred compensation. Disability benefits are generally considered wage replacement, that is, compensation for lost future wages because a physical or mental condition prevents the person from being gainfully employed. ¶46 Disability payments, disability payments such or veteran's as disability Social Security payments, replace the wages lost by the individual due to the disability and are generally classified as income at divorce.20 payments marriage. are not assets divisible at As such, these dissolution of the Instead, they are considered income for the purpose of determining a maintenance award. ¶47 Courts have differentiated between disability payments, which are generally not a divisible asset at divorce, and retirement benefits, which are generally divisible at divorce. ¶48 For example, in Leighton v. Leighton, 81 Wis. 2d 620, 261 N.W.2d 457 (1978), this court addressed the division of a veteran's disability pension. In that case, this court "sharply" distinguished the "disability pension from a present interest, vested or unvested, in a retirement plan . . . ."21 The court concluded that the disability pension was replacement 20 See Leighton v. Leighton, 81 Wis. 2d 620, 637, 261 N.W.2d 457 (1978) ("We view the [Veteran's] disability benefits in the case before us as income to the defendant, material only to his ability to pay alimony, if alimony were awarded."). 21 Id. at 636. 19 No. 2009AP2433-FT for lost earning capacity due to injuries suffered in military service. The court equated the benefit to payment under the Social Security Act to disabled workers.22 Thus, the veteran's disability benefit in Leighton was treated as income subject to a maintenance award determination and not as a divisible asset.23 ¶49 Giving the text of the Marital Settlement Agreement at issue its plain and ordinary meaning, we agree with the court of appeals that the parties' intent, evident in the language of the Marital Settlement Agreement, was to entitle the wife to receive a portion of all the husband's retirement, pension, and deferred compensation accounts, and that nothing in the Marital Settlement Agreement addresses disability benefits. IV ¶50 Having interpreted the Marital Settlement Agreement, we now look to the Pension Plan. to determine husband is account," whether a the disability "retirement," as those words We interpret the Pension Plan pension "pension," are used in or the payment "deferred Marital to the benefit Settlement Agreement. ¶51 The husband contends that payments are a substitute for wages. the disability pension The wife contends that the disability pension is a form of retirement, pension, or deferred benefit account, that is, compensation for past services, and 22 Id. at 636-37. 23 Id. at 637. 20 No. 2009AP2433-FT that it must be treated as such under the Marital Settlement Agreement. ¶52 The court need not accept either of these absolutist positions. There is disability benefits. a more nuanced approach to classifying A disabled spouse's disability benefit may in effect be an amalgam: a portion may be a replacement for lost wages and a portion may be a replacement for deferred compensation (that is, retirement or pension benefits). ¶53 Depending on the terms of a plan, a disability benefit may encompass both a wage replacement component and a deferred compensation replacement component. plan, a disability benefit In other words, under a may in substance be both a replacement for lost future wages and a replacement for deferred compensation. The disability benefit should be viewed in light of the totality of the circumstances to determine whether all or any part spouse of the replaces disability post-divorce benefit received wages or extent that a the disabled replaces deferred disability lost by benefit compensation.24 ¶54 When and to the replaces the disabled spouse's post-divorce wages, the benefit should be characterized as income and will be individual property not subject to property division at divorce. 24 For similar analyses, see, e.g., Conner v. Conner, 68 P.3d 1232 (Alaska 2003); Villasenor v. Villasenor, 657 P.2d 889 (Ariz. Ct. App. 1982); Saslow v. Saslow, 710 P.2d 346 (Cal. 1985); In re Marriage of Leland, 847 P.2d 518 (Wash Ct. App. 1993). 21 No. ¶55 Alternatively, disability benefit disability benefit compensation and when and replaces should will be to the deferred be extent to that the compensation, characterized subject 2009AP2433-FT as property the deferred division at divorce. ¶56 This approach enables courts to differentiate among a multitude of disability benefits under a multitude of different circumstances that a court may encounter. ¶57 There is nothing in the record in the instant case to show that in executing the Marital Settlement Agreement or in dividing the husband's interest in retirement, pension, or deferred benefit accounts, the parties considered the potential for or effect of the husband's becoming disabled and qualifying for disability benefits. ¶58 Now that the unfortunate and unforeseen disability has occurred, the task of the court is to understand the characteristics of the disability pension under the Pension Plan and to determine whether the disability pension is a retirement, pension, or deferred benefit account, as those words are used in the Marital Settlement Agreement, regardless of the label "pension" or "retirement" that the Pension Plan has placed on the disability benefit. pension under the Pension Plan, determine The characteristics of the disability Pension Plan, how the not the label disability used pension in the will be of the treated under the Marital Settlement Agreement. ¶59 We turn to analyze the characteristics disability pension the husband receives under the Pension Plan. 22 No. ¶60 2009AP2433-FT The Pension Plan defines the disability benefit as a "pension" for purposes of the Pension Plan. The Pension Plan explicitly provides for three kinds of pensions: (1) a "normal pension" for an employee who is at least age 65 at termination of employment, (2) an "early pension" for an employee who is at least age 55 but not yet 65 at termination of employment, and (3) a "disability pension" for an employee who terminates employment as a result of total and permanent disability.25 ¶61 Thus, the husband's disability is one of three conditions giving rise to a "pension" benefit under the Pension Plan. The Pension Plan defines "retirement" as follows: "The period after you qualify for a pension under the Plan and start to receive monthly pension payments is considered Retirement." ¶62 The Pension Plan provides that the disabled husband collecting a disability payment a disability as pension pension receives that he the would same monthly receive as a "normal pension"26 or as an "early pension" (that is, if the 25 Under the Pension Plan vesting is required, and the disability pension requires that an employee have a minimum number of years of Benefit Credit. 26 Under the terms of the Pension Plan in the record, the amount of a disability pension is the greater of $50 or the Plan participant's "normal pension" amount. Thus, the amount that the husband has received as a "disability pension" pursuant to the Pension Plan is the amount he would receive as a "normal pension," that is, the amount he would receive when he retired at the age of 65. The Pension Plan provides the following calculation of the amount of the Normal Pension if certain qualifications are met: 23 No. 2009AP2433-FT employee terminates employment when he is at least 62 years of age).27 life. The disability pension the husband receives lasts for The husband's receipt of the disability pension does not reduce the amount of his "normal" or "early" pension. ¶63 Under the Pension Plan, in which the monthly amount paid to the husband as a disability pension is the same as the monthly amount paid as a normal pension and also is the same as the monthly amount paid as an early pension at age 62 for life, it is understandable that the circuit court concluded that the disability pension was a pension under the Marital Settlement Agreement. A more analytical and realistic approach, however, On or after January 1, 2002, the monthly amount of your Normal Pension equals the number of years of Benefit Credit you earned after May 31, 1995 multiplied by $92, plus the total years of Benefit Credit you earned prior to June 1, 1995 multiplied by $66. 27 The amount of an "early pension" under the Pension Plan is determined "by, first, calculating the amount of the Normal Pension to which you would be entitled if you were age 65," and then: (a) You will be eligible for an unreduced pension equal to your Normal Pension if payment of your Early Pension begins at or after age 62. (b) If payment of your Early Pension benefit begins before age 62 but at or after age 55, your normal pension benefit will be reduced by 1/4 of 1% for each full month (i.e., 3% for each full year) payments are made before the first month immediately following your 60th birthday and 1/12 of 1% for each full month (i.e., 1% for each full year) payments are made after you attain age 60 and before the first month immediately following your 62nd birthday. 24 No. is to recognize pension has that under the characteristics Pension of both Plan future 2009AP2433-FT the disability lost wages and deferred compensation. ¶64 Prior to reaching the age of 62, the husband's disability pension is in the nature of compensation for lost wages the disabled husband no longer can earn. In contrast, the disability pension paid to the husband after he reaches the age of 62 is in the nature of a pension that the husband expected to receive had he not become eligible to receive the disability pension. ¶65 pension, Considering we these conclude that characteristics the of disability the disability pension that the husband received under the Pension Plan at termination of his employment prior to age 62 replaced the wages lost because of his physical inability to work. This portion of the husband's disability pension under the Pension Plan replaces post-divorce income and is not a retirement, pension, or deferred benefit account under the Marital Settlement Agreement. income, property the not disability subject pension to the is the division As post-divorce husband's of individual property under the Marital Settlement Agreement. ¶66 Regardless of the "disability pension," the husband is eligible under the Pension Plan for an unreduced normal pension at age 65 or an unreduced early pension at age 62. ¶67 The question then is whether the wife is entitled under the Marital Settlement Agreement to receive a portion of 25 No. 2009AP2433-FT the husband's disability pension under the Pension Plan when the husband reaches age 62 or age 65. ¶68 The Marital Settlement Agreement is silent about the age at which the husband is required to receive a retirement, pension, or deferred benefit account. The language of the Marital Settlement Agreement states that the wife is entitled to receive her portion of retirement, pension, and deferred benefit accounts in the husband's name, if and when received by him. ¶69 Under the Pension Plan, when the husband attains the age of 62 he is eligible to receive the amount of an unreduced "normal pension." At age 62 the husband receives the disability pension that is the equivalent of an unreduced normal pension. ¶70 Because the husband is disabled, he need not elect an early or normal pension benefit; he receives the equivalent of a full pension under the Pension Plan at either age 62 or age 65. When the husband receives a disability pension under the Pension Plan after he reaches the age of 62, the monthly payment is precisely the amount he would have received had he terminated employment without a disability at age 62 or at age 65. the husband is 62 years of age, the disability After pension effectively supplants and is a substitute for the early and the normal pension under the Pension Plan. ¶71 If, after the husband attains the age of 62, the husband's disability pension under the Pension Plan is viewed as a replacement for an early or normal pension under the Pension Plan and therefore as a retirement, pension, or deferred benefit account under the Marital Settlement Agreement, the expectations 26 No. 2009AP2433-FT of both the husband and the wife are effectively protected under the Marital Settlement Agreement.28 husband to become disabled. Neither party expected the The division of the retirement, pension, and deferred benefit accounts was calculated on the parties' assumption that the husband would receive retirement or pension income in the future. ¶72 Thus, we conclude that at the age of 62 when the husband became eligible to begin receiving an unreduced early pension equal to the normal pension and equal to the disability pension, the disability pension constitutes a retirement, pension or deferred benefit account under the Marital Settlement Agreement. ¶73 This holding places the husband and wife in the same position they would have been in had the husband not become disabled. This holding gives both the husband and wife exactly what they bargained for in the Marital Settlement Agreement: The husband retains, as the parties agreed, full right to earnings from his employment (here the disability payments are a substitute for earnings from employment); the wife is not entitled, under the Marital Settlement Agreement, to any part of the husband's earnings. The husband's retirement benefits under the Pension Plan are not reduced or otherwise affected by the disability payments made to the 28 husband. "If and when" the At the circuit court and before this court, the husband agreed that the wife's claim to payment of $912.88 monthly is cognizable under the Marital Settlement Agreement when he reaches the age 62. Petitioner-Appellant-Respondent's Brief at 6. 27 No. husband "receives" his retirement benefits under 2009AP2433-FT the Pension Plan, the wife is to be paid $912.88 per month under the Marital Settlement Agreement. The husband is eligible to receive full retirement benefits at age 62 under the Pension Plan and "if and when" the husband receives retirement benefits at age 62 the husband pays his wife the monthly sum upon which they agreed in the Marital Settlement Agreement. ¶74 In sum, we conclude as follows: (1) The Marital Settlement Agreement's reference to "all retirement, pension, and deferred benefit accounts" does not address disability benefits. (2) The husband's disability pension under the Pension Plan, beginning when he was 53 years old and continuing until he attains the age of 62, replaces lost wages and therefore does not constitute a retirement, pension or deferred benefit account under the Marital Settlement Agreement. Thus, the Marital Settlement Agreement does not require the husband to pay to his wife any portion of the disability pension that he receives before he is 62 years old. (3) When the husband reaches the age of 62 he is eligible to receive an unreduced "early pension" under the Pension Plan, which is the same amount as his "normal pension" would be at age 65, which in turn is the same amount as his disability pension has been. Pension Plan retirement, Thus, the when he pension, husband's reaches or disability the deferred age of benefit pension 62 under the constitutes account under a the Marital Settlement Agreement. And so, pursuant to the Marital 28 No. Settlement Agreement, when the husband reaches 2009AP2433-FT age 62, the husband must pay the wife $912.88 per month if and when the husband receives the disability pension under the Pension Plan. ¶75 Accordingly, we determine that the circuit court erred in holding the husband in contempt and in awarding the wife $83,072.08 plus interest. ¶76 We affirm the decision of the court of appeals reversing that portion of the order of the circuit court holding the husband in contempt and ordering him to make payments of $912.88 per month with interest to the wife from December 2001. We modify the decision of the court of appeals, however, to provide that under the Marital Settlement Agreement the wife is entitled to $912.88 per month if and when the husband receives the disability pension under the Pension Plan beginning first month immediately following his 62nd birthday. of appeals erred in holding that the wife's the The court monthly payment begins when the husband reaches his 65th birthday, rather than his 62nd birthday. By the Court. The decision modified and as modified affirmed. 29 of the court of appeals is No. ¶77 PATIENCE DRAKE ROGGENSACK, J. 2009AP2433-FT.pdr (dissenting). This action was commenced on November 24, 2008, by Ellen Topolski's motion to hold Patrick Topolski in contempt of court for failing to comply with the Judgment of Divorce in two respects: (1) Patrick failed to pay her $912.88 per month from the $2,348 he has received every month in disability pension payments since December 2001; and (2) Patrick failed to pay the full equalization payment required by the Judgment of Divorce. I conclude that based upon the findings of the circuit court and the obligations created in the Judgment of Divorce, Patrick is not in compliance with the Judgment of Divorce as Ellen alleged. ¶78 I write erroneously: that the in dissent because the majority opinion (1) ignores the circuit court's finding of fact parties agreed to disability pension payments mischaracterizes the divide at the disability the time pension future of receipt divorce; payments of and (2) from the Electrical Construction Industry Pension Plan (the Pension Plan) in order to avoid the actual issue presented, i.e., whether the parties agreed to divide the disability pension payments if and when Patrick received them. Accordingly, I respectfully dissent from the majority opinion. I. ¶79 Patrick and BACKGROUND Ellen were divorced marriage and the birth of three children. parties entered into a Marital after 24 years of At the divorce, the Settlement Agreement (the Settlement Agreement) that the circuit court incorporated into the Judgment of Divorce. In the 1 Settlement Agreement, the No. 2009AP2433-FT.pdr parties stipulated to waive maintenance and to the division of their property. parties: Patrick their home received and the "[a]ll major assets the pension, retirement, of and deferred benefit accounts in his name, less the sum of $912.88 to be paid by [Patrick] received by him." payment as her to [Ellen] per month, if and when Ellen was to receive a $55,000 equalization half of the parties' equity in their home. Within 90 days of the divorce, $40,000 was to be paid, and the remaining $15,000 was to be paid within three years. ¶80 Apparently, Patrick paid the initial $40,000 and $5,000 of the remaining $15,000 that was due under the judgment before this action was commenced. lawsuit, Patrick July 30, 2009, paid when an the After Ellen commenced this additional court order entered, $5,000 remained unpaid. made any payments to Ellen $5,000. now However, on review was under In addition, Patrick has not from the $213,688 in disability pension payments he received. ¶81 "revise" In response the judgment, to Ellen's asking the motion, court Patrick to excuse moved him to from making monthly payments to Ellen from the disability pension. He did not deny that he had failed to make the equalization payment required by the Judgment of Divorce. ¶82 At the hearing, the Pension Plan under which Patrick's disability pension is paid was received as Exhibit 1. Neither party argued that a different pension plan or a pension plan with terms different from Exhibit 1, was relied upon when the 2 No. Settlement Agreement was made. 2009AP2433-FT.pdr Both parties testified, as did an expert on pensions. ¶83 Ellen testified that she had heard that Patrick was receiving pension payments. She sought legal assistance to determine if this was true and if so, to determine "where my portion of it was if he was collecting it." She said she became suspicious that he was receiving pension payments because he was not working. She remarked, "I don't know how you can not work and not collect some kind of money." ¶84 Counsel for Patrick asked Ellen, "Ma'am, have you ever sought a qualified domestic relations order from a court to enforce your rights to have a piece of Mr. Topolski's pension?" Ellen answered, "That's why I hired an attorney." ¶85 Counsel for Patrick asked him about the disability pension payments: Q Did you have any intent or understanding about disability benefits? A At the time of my divorce? Q Yes, sir. A No. Q You never had a conversation you can recall with her when she said when I retire or words to that effect? A No. . . . Q Do you draw a distinction between a retirement time in your life or a disability time in your life? 3 No. A 2009AP2433-FT.pdr I retired because of a disability, that's all I can say. Normally I wouldn't. I wouldn't have retired when I did. That's all I can say. Patrick did not testify that a disability pension was not among the pensions that were provided by the Pension Plan at the date of divorce. ¶86 In response to his counsel's questions, Patrick said in addition to the $2,348 in pension payments he receives each month, he also receives Social Security disability payments of approximately "2,000 bucks" per month. Patrick also said that he has an annuity worth approximately $20,000 that was "paid into over the course of the years [he] was working," which he can receive payments from when he is 59-1/2 years old. When counsel for Ellen asked, "Did you own the annuity at the time of your divorce?" Patrick responded, "It started right around that There was very little in there at that time."1 time. further testified that his home was assessed at Patrick $250,000 to $260,000 and that it had a mortgage of approximately $100,000. ¶87 At the conclusion of the hearing, counsel for Ellen submitted an exhibit showing the attorney fees that she had incurred to enforce the Judgment of Divorce.2 ¶88 The circuit court found that Patrick was compliance with the Judgment of Divorce in two respects: not in (1) he 1 It is not clear whether Patrick's annuity was disclosed at the time of divorce. 2 Paragraph XIII.C. of the Settlement Agreement provided that if court enforcement of the Judgment of Divorce was required, the party who was not in compliance with the judgment would pay the other party's "actual attorney fees incurred in bringing the action." 4 No. has been pension receiving plan" $2,348 since per December month of in 2001 2009AP2433-FT.pdr "benefits without under paying his Ellen $912.88 per month as the judgment required; and (2) Patrick has not made the full equalization payment for Ellen's interest in the party's home, which home was awarded to Patrick. ¶89 The circuit court found that the disability pension payments that Patrick has been receiving were "what had been awarded to [Ellen] per the parties' own agreement going back to the time of their divorce." Patrick had argued that the disability pension payments he was receiving were income. The court disagreed, explaining, "I disagree this is taking income from him as opposed to simply enforcing the property division itself." ¶90 Patrick appealed and the court of appeals reversed that portion of the circuit court order that related to the disability pension payments.3 The court of appeals said the issue presented was "whether those benefits are retirement or disability benefits."4 It concluded that the payments were disability benefits and therefore, Patrick was not obligated to pay any portion of it to Ellen.5 ¶91 case The court of appeals did not address the issue the actually presents, which is whether, at the time of divorce, the parties agreed to a division of disability pension 3 Topolski v. Topolski, No. 2009AP2433-FT, order, at 1-2 (Wis. Ct. App. May 5, 2010). 4 Id. at 2. 5 Id. 5 unpublished No. payments if and when Patrick receives 2009AP2433-FT.pdr them. The court of appeals did not disturb the circuit court's determination that Patrick had failed to make the full equalization payment required by the Judgment of Divorce. II. A. ¶92 DISCUSSION Standard of Review This case involves the review of the circuit court's findings of fact and the court's interpretation of the Judgment of Divorce that incorporates the Settlement Agreement of the parties. We affirm a circuit court's findings of fact unless they are clearly erroneous. Dist., 2006 WI 63, ¶10, Steinbach v. Green Lake Sanitary 291 Wis. 2d 11, 715 N.W.2d Interpretation of a judgment is a question of law. Jacobson, 1993). 177 Wis. 2d 539, 546-47, 502 N.W.2d 195. Jacobson v. 869 (Ct. App. Where we conclude that a judgment is ambiguous, we will defer to the circuit court's interpretation of its own ambiguous judgment. Schultz v. Schultz, 194 Wis. 2d 799, 808, 535 N.W.2d 116 App. (Ct. 1995). We independently interpret written documents, such as the Pension Plan, as a question of law, but benefitting from previous court interpretations. Solowicz v. Forward Geneva Nat'l, LLC, 2010 WI 20, ¶13, 323 Wis. 2d 556, 780 N.W.2d 111. B. ¶93 Finding of Fact The circuit court found that the disability pension payments that Patrick has been receiving were "what had been awarded to [Ellen] per the parties' own agreement going back to the time of their divorce" and that her efforts were "simply 6 No. enforcing the property division itself." circuit court's determination allocate as property payments Patrick in that their received This finding shows the the divorce when he 2009AP2433-FT.pdr parties the was division no including the disability pension payments. intended longer of to all working, This finding is not clearly erroneous; rather, it is supported by Ellen's testimony and uncontradicted by Patrick's testimony.6 affirm it. Steinbach, 291 Wis. 2d 11, ¶10. C. ¶94 that court Judgment of Divorce The circuit court interpreted the Judgment of Divorce incorporated payments Accordingly, I would Patrick utilized the Settlement was receiving the testimony Agreement under of the both in light Pension parties, of Plan. an expert the The in pension plans, the Settlement Agreement and the Pension Plan. The circuit Settlement court noted Agreement that divided the "[a]ll relevant provision retirement, of the pension, and deferred benefit accounts" in Patrick's name. ¶95 The circuit court determined that the disability pension payments Patrick was receiving fell within that listing. It held Patrick in contempt of court for failing to pay the full equalization payment and for failing to pay Ellen $912.88 from each $2,348 disability pension payment he received. 6 The court Ellen said that she sought legal assistance to determine if Patrick was receiving pension payments and if so "where my portion of it was if he was collecting it." Patrick simply said he had no understanding about disability pension payments when the divorce was granted and that he retired due to a disability. 7 No. 2009AP2433-FT.pdr ordered payment in full of amounts then due and $3,429.50 in attorney fees that this enforcement action generated. ¶96 On review, we must interpret the Settlement Agreement, which was incorporated into the Judgment of Divorce. ambiguous because it does not separately describe If it is disability pensions from the collective term, "all pensions," or because Patrick had no understanding about the disability pension at the time of divorce, then I will defer to the circuit court's interpretation of the Settlement Agreement because it is part of the court's own Judgment of Divorce. at 808. See Schultz, 194 Wis. 2d If the Settlement Agreement is unambiguous, then I will review what it requires independently of the decision of the circuit court. ¶97 Jacobson, 177 Wis. 2d at 547. Whether I defer to the interpretation of the circuit court or apply an independent review of the Judgment of Divorce as it incorporates the Settlement Agreement, I conclude that the circuit court correctly interpreted what was required under the Judgment of Divorce. ¶98 The Pension Plan is relevant to the interpretation of the Judgment of Divorce. operative Patrick document has been in Both parties agreed that it was the regard receiving, to even the pension though payments the that Pension Plan admitted into evidence is dated December 2007. ¶99 for a The Pension Plan states, "The period after you qualify pension under the Plan and start pension payments is considered Retirement."7 7 to receive monthly The Pension Plan Electrical Construction Industry Pension Plan (the Pension Plan), at 2. 8 No. also describes "Disability "ABOUT PENSION BENEFITS."8 Pension" in the 2009AP2433-FT.pdr section entitled Therefore, under the Pension Plan from which Patrick is paid, an employee achieves "retirement" once the employee receives any type of pension payments, including payments from a disability pension. ¶100 The Settlement Agreement covers "[a]ll retirement, pension, and deferred benefit accounts" in Patrick's name. It is beyond dispute that the disability pension payments he has been receiving are from a pension described in the Pension Plan. The parties did not exclude any type of pension payments; rather, they agreed to divide "all" pension payments "if and when" Patrick received them. ¶101 When reviewing the majority opinion, it is important not to lose track of the issue presented by this review. That issue is whether the parties agreed to divide the disability pension payments when they agreed to divide "all" pensions "if and when" Patrick receives payments. ¶102 The Instead, wherein the it majority majority sets out opinion opinion an never does irrelevant a addresses clever conclusion this issue. bait-and-switch on which its decision turns. ¶103 To explain, the majority opinion concludes that the disability pension is not divisible because it "replaces lost wages and therefore does not constitute a retirement, pension, or deferred 8 benefit account under Id. at 12-13. 9 the Marital Settlement No. Agreement."9 2009AP2433-FT.pdr The majority opinion concludes that "[a]s such, these payments are not assets divisible at dissolution of the marriage."10 However, whether the disability pension payments replace lost wages or are characterized as income has nothing to do with the issue presented for our review, which is whether the parties agreed to divide the disability pension payments "if and when" Patrick received them. ¶104 Furthermore, the amounts of the pension payments that Patrick has received from his disability pension are not comparable to the amounts payable as social security disability, which amounts are based on statute. Rather, the uncontroverted evidence shows that the amount of Patrick's pension payment was determined under the terms of the Pension Plan, based on his past years of employment. For example, the Pension Plan states, "Benefit Credit is earned for your work in Covered Employment. The amount of your pension benefit will be based on the total years of Benefit Credit you have at retirement."11 Plan further provides, "Benefit Credit is The Pension used calculation of the amount of your pension benefit. in the The monthly amount of your pension will be based on the number of Benefit Credits you have. Benefit Credit also is counted in determining eligibility for Early Retirement and Disability Pensions."12 9 Majority op., ¶6. 10 Id., ¶46. 11 Pension Plan, at 2. 12 Id. at 4 (emphasis added). 10 The No. 2009AP2433-FT.pdr disability pension payments are a property right created by the Pension Plan in the same way as a property right to a normal pension is created both are based on past years of service.13 ¶105 Furthermore, both a normal pension and a disability pension are income to the recipient. See Barker v. Kansas, 503 U.S. 594, 603 (1992); Wis. Stat. § 71.01(13). majority opinion's characterization of the Therefore, the disability pension payments as income or lost wages is irrelevant to determining whether Patrick owed $912.88 per month pension payment of $2,348 that he received. from every monthly He owed it because the parties agreed to divide all pension payments if and when he received them. ¶106 To explain this latter point further, we have recognized that some disability pensions are separate property to compensate for loss of division cannot be compelled.14 earning capacity and therefore Leighton v. Leighton, 81 Wis. 2d 620, 636, 261 N.W.2d 457 (1978) (remarking that Mr. Leighton was not required to divide disability pension replacement for as because earning marital it was capacity lost 13 property "a by his Veterans' federally-provided reason of injuries I note that the Pension Plan is an ERISA defined benefit plan. See the Pension Plan, at 2, 29, 32. Accordingly, Patrick's right to payments under the Pension Plan is an interest in the receipt of payments when the Pension Plan's conditions are met that is protected under federal law. Cent. Laborers' Pension Fund v. Heinz, 541 U.S. 739, 743 (2004); Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996). 14 The majority opinion cites Leighton v. Leighton, 81 Wis. 2d 620, 637, 261 N.W.2d 457 (1978), as authority for the proposition that a disability pension replaces lost wages. Majority op., ¶46 n.20. However, that is not what Leighton holds. Leighton addresses lost earning capacity, not lost wages. Leighton, 81 Wis. 2d at 636. 11 No. sustained while in military service"). 2009AP2433-FT.pdr Other Wisconsin appellate courts have divided disability pensions against the wishes of the primary recipient. Loveland v. Loveland, 147 Wis. 2d 605, 612, 433 N.W.2d 625 (Ct. App. 1988) (concluding that "retirement pay based on disability but which replaces 'retirement' pension and is partly computed on service longevity and rank" is divisible). However, no Wisconsin appellate decision has ever held that the parties cannot agree as part of their divorce settlement to divide disability pension payments, subject to the approval of the circuit court. ¶107 The Settlement Agreement now before us, which the circuit court approved by incorporating it into the Judgment of Divorce, is an agreement to divide all pensions in Patrick's name. The parties were free to divide the disability pension as they saw fit, subject to circuit court approval, and they did so. ¶108 Accordingly, correctly determined I conclude that that Patrick failed the to circuit comply court with the Judgment of Divorce when he did not pay Ellen $912.88 each month from the disability pension payments he received. I respectfully dissent from the majority opinion that concludes to the contrary. III. CONCLUSION ¶109 I conclude that based upon the findings of the circuit court and the obligations created in the Judgment of Divorce, Patrick is not in compliance with the Judgment of Divorce in two respects: (1) Patrick failed to pay Ellen $912.88 per month 12 No. from the $2,348 he has received every month 2009AP2433-FT.pdr in disability pension payments since December 2001; and (2) Patrick failed to pay the full equalization payment required by the Judgment of Divorce. ¶110 I write erroneously: that the in dissent because the majority opinion (1) ignores the circuit court's finding of fact parties agreed disability pension payments mischaracterizes the to divide at the disability the time future of pension receipt divorce; payments and from of (2) the Pension Plan in order to avoid the actual issue presented, i.e., whether payments the parties if and agreed to when Patrick divide receives the disability them. pension Accordingly, I respectfully dissent from the majority opinion. ¶111 I am authorized to state that Justice DAVID T. PROSSER joins this dissent. 13 No. 1 2009AP2433-FT.pdr
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