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Winkler v. Winkler4/26/2005
Joy M. Winkler, formerly known as Joy Capizzi and now known as Joy Zablocki ("Zablocki"), appeals from orders denying her motions to reopen the property division of her divorce judgment and to award her a portion of new "backdrop" pension benefits her ex-husband will receive as a result of a post-divorce change in Milwaukee County's pension policy. She also appeals from an order denying her motion for reconsideration. We affirm the trial court's orders with respect to this issue.
Robert W. Winkler ("Winkler") cross-appeals from orders that require him to pay increased child support based on the backdrop pension benefit. We affirm the trial court's conclusion that the backdrop benefit is income that must be considered for child support purposes. We also affirm the trial court's decision that this be paid as a lump sum.
BACKGROUND
The parties married in June 1974 and were divorced in November 1993, after nineteen-and-a-half years of marriage. They have two daughters, born in 1980 and 1987. At the time of the divorce, Winkler was forty-nine years old and was a long-time employee of Milwaukee County. Although he was eligible to retire effective January 1, 1994, both parties understood that he intended to continue working.
One of the contested issues in the divorce was dividing Winkler's pension. The matter was scheduled for trial, but the parties resolved the contested issues by entering into a Marital Settlement Agreement, ("Agreement"), which was approved by the trial court and incorporated in the Judgment of Divorce ("Judgment"). The Agreement was obviously the product of substantial negotiation between the parties. Original provisions relating to the pension awarded Zablocki one-third of the gross monthly pension payments Winkler would receive from Milwaukee County. On the day of trial, these provisions were crossed out and initialed by the parties. In lieu of the fixed percentage of unknown future payments, the parties amended the Agreement to award Zablocki a fixed amount of Winkler's pension. They agreed that:
[Zablocki] is awarded one-half of the accrued monthly benefit that [Winkler] has with the Employees' Retirement System of the County of Milwaukee ["ERS"]. The administrator of , shall prepare an accrued monthly benefit calculation and schedule setting forth the present monthly benefit that [Winkler] would be eligible to receive per month for each year of the retirement age of 55 through 65, inclusive. [Zablocki] shall be awarded a wage assignment for one-half the present monthly annuity benefit as calculated by the plan administrator based upon the actual year [Winkler] begins receiving his retirement benefits.
Promptly after the November 1993 divorce, Zablocki moved the trial court for a more specific order indicating the specific amount of payments from the pension that would be due her whenever Winkler retired. In January 1994, ERS prepared a calculation of the monthly retirement benefits that Winkler would receive, depending on his age at retirement, over a period of ten possible retirement years. It appears that the trial court accepted the calculation of the monthly retirement benefits and included it in an order which reiterated that, pursuant to the Judgment, Zablocki would receive monthly one-half of the applicable listed amount for the year in which Winkler retired. For example, according to the order, if Winkler retired at age fifty-eight (which he ultimately did), Zablocki would receive one-half of $997.07 ($498.54) per month.
Seven years after the divorce, on January 1, 2001, Milwaukee County adopted a pension enhancement plan that has subsequently been the subject of significant litigatio
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