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Winkler v. Winkler4/26/2005
n. See, e.g., Dunn v. Milwaukee County, 2005 WI App 27, 693 N.W.2d 82 (petition for review pending). The feature of the plan that brings the parties to court at this time is generally described as a "backdrop" provision. The "backdrop" has been explained as a mechanism to permit employees who stay beyond their earliest available retirement date to receive both a lump-sum payment and a monthly retirement benefit. The word "drop" in backdrop is an acronym for Deferred Retirement Option Program. It allows employees who stay longer than required to reach "back" to a prior date when they could have retired (but did not) and to collect a lump-sum payment equal to the total payments they could have collected between the selected "back" date and the actual date of retirement. This benefit first became available to Winkler when it was adopted in January 2001. During oral argument, counsel for Zablocki acknowledged that neither party knew at the time of the divorce that this benefit would become available.
Winkler retired effective May 1, 2002, when he was fifty-eight years old. He elected to go "back" to January 1, 1994, for purposes of the retirement calculations and the lump-sum payment. As a result, he will receive a monthly pension of $1330 and a lump-sum payment of $168,168.40; he may choose to roll the latter into an IRA, and thereby defer paying taxes on that amount until he withdraws all or any part of the money.
In February 2002, Zablocki filed an order to show cause, asserting that Winkler had failed to pay her the pension benefits she believed were due, including her share of the lump-sum backdrop benefit. After a court commissioner denied Zablocki some of the benefits she was seeking, the trial court considered, during a series of hearings in 2003 and 2004, a host of issues raised by Zablocki and Winkler.
As relevant to this appeal, the trial court concluded that there were no grounds to reopen the Judgment under WIS. STAT.§ 806.07 because the motion to reopen was not brought within one year after the Judgment was granted, and because there were no extraordinary circumstances that would justify the reopening. The trial court specifically found that the enhanced pension benefits do not constitute an extraordinary circumstance because the pension benefit changes did not occur until after the Judgment was granted. The trial court further found that the property division provision in the Judgment was unambiguous and was therefore not subject to modification under WIS. STAT.§ 767.32.
Zablocki appealed the trial court's decision with respect to pension benefits. She argues that the trial court erroneously exercised its discretion when it denied her motion to reopen the Judgment and award her a share of the new backdrop benefit. She contends that the backdrop pension benefits are "marital property" because the backdate Winkler selected, January 1, 1994, was a mere six weeks after the divorce date, and thus reflected work he performed during the marriage.
With respect to child support, the trial court concluded that the backdrop payout was income for purposes of determining child support. The trial court ordered Winkler to pay child support in the amount of $22,870.90 from his backdrop pension benefits. This amount was seventeen percent of the gross payment, reduced by an estimated tax impact to Winkler of twenty percent.
Winkler cross-appealed the trial court's order that he pay any child support on the backdrop payment. He argues that enhanced pension benefits are not income for child support purposes. In the alternative, he argues that even if the enhanced benefits are income, the trial court erroneously exercised its discretion whe
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