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Winkler v. Winkler4/26/2005
agreement. The wife alerted her counsel and the trial court to her concerns about the judgment while it was still being drafted. 92 Wis. 2d at 411. Then, when the trial court nonetheless signed the proposed judgment to which the wife objected, she filed a motion for relief within two months of the judgment. Id. at 414. In short, the moving party in Conrad immediately and consistently claimed that she did not understand the agreement, did not agree with some terms her lawyer inserted in the findings, and that she was unwilling to accept the disparity in property division that the agreement disclosed. Id. at 411-12.
Here, the original Agreement was thoroughly understood by all parties. They agreed on the day of trial to significantly modify the terms at issue. In denying Zablocki's recent motion to reopen the Judgment, the trial court specifically found that there was no ambiguity in the Judgment regarding the pension benefits. We agree. The final modifications to the Agreement that were ultimately adopted as the Judgment were discussed on the record and were approved by both parties. Zablocki chose the certainty of receipt of a fixed dollar amount from Winkler's monthly pension payments, as reflected by the Judgment and supplemental order, rather than a fixed percentage of a dollar amount of monthly pension that could (and did) change over time. The facts here contrast those in Conrad, where the person directly affected by the disputed term objected promptly, openly, and consistently to the provision at issue. Id. at 411-12.
Nor, as Zablocki effectively concedes, is this a request that fits within the other provisions of WIS. STAT.§ 806.07. There is no claim of mutual mistake or fraud; at the time of the divorce, no one knew the pension backdrop benefit was going to be available. This is not a situation where any evidence suggests Winkler had any part in creating the backdrop provisions, nor did he deceive either Zablocki or the trial court about the pension as it existed at the time of the divorce. The backdrop benefit provisions were an unanticipated windfall.
Zablocki argues that Winkler's employment created the pool from which he was able to elect the "backdrop" lump-sum payment. Those efforts, she correctly points out, were marital efforts. The fruits of marital efforts are generally subject to division. See WIS. STAT.§ 767.25. What is also clear is that those efforts, to the extent they took the form of a pension, were thoroughly negotiated and divided at the time of the divorce in a manner satisfactory to the parties at that time, as reflected in the amended Marital Settlement Agreement and Judgment of Divorce. Were we to now conclude, as Zablocki urges, that post-divorce employer modification of pension payout terms, years after a divorce, compels reopening of the divorce Judgment, finality in division of retirement benefits would essentially evaporate. No logical reason suggests itself to limit such a reopening as is requested here to only those cases where the benefits improve; the named pension recipient would assert equally substantial claims should benefits be reduced or otherwise disadvantageously modified. We decline to take such a drastic leap into the pool of uncertainty where, as here, the enhanced benefits become available years after the divorce. We conclude that the trial court did not erroneously exercise its discretion when it declined to reopen the Judgment.
II. Child Support
The trial court ordered Winkler to pay $22,870.90 in child support. This calculation was based on seventeen percent of the lump-sum backdrop payment, reduced by twenty percent to cover the estimated income taxes that Winkler must pay on the payment. Wink
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