                                                             2013 WI 43

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2011AP1240
COMPLETE TITLE:
                       In re the marriage of:

                       Patricia A. Johnson, p/k/a Patricia Masters,
                                 Petitioner-Appellant,
                            v.
                       Michael R. Masters,
                                 Respondent-Respondent.
                          ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:         May 17, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 7, 2012

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Waukesha
   JUDGE:              Kathryn W. Foster

JUSTICES:
   CONCURRED:          ABRAHAMSON, C.J., concurs. (Opinion filed.)
                       BRADLEY, J., ABRAHAMSON, C.J., concur. (Opinion
                       filed.) ZIEGLER, ROGGENSACK, GABLEMAN concur.
                       (Opinion filed.)
  DISSENTED:           PROSSER, J., dissents. (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the petitioner-appellant, there was a brief (in court
of appeals) by Joseph F. Owens and Law Offices of Joseph F.
Owens, New Berlin, and Debra K. Riedel and Law Offices of Debra
K. Riedel, New Berlin, and a reply brief to the Supreme Court by
Joseph Owens and Debra K. Riedel. Oral argument by Joseph F.
Owens.
       For the respondent-respondent, there was a brief by Erik I.
Colque and Colque Law, LLC, Waukesha, and oral argument by Erik
I. Colque.
                                                                                  2013 WI 43
                                                                        NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No. 2011AP1240
(L.C. No.    1988FA73)

STATE OF WISCONSIN                                    :              IN SUPREME COURT

Patricia A. Johnson,

             Petitioner–Appellant
                                                                                FILED
        v.                                                              MAY 17, 2013

Michael R. Masters,                                                        Diane M. Fremgen
                                                                        Clerk of Supreme Court

             Respondent–Respondent




        APPEAL   from an     order      of   the    Circuit         Court   for    Waukesha

County, Kathryn W. Foster, Judge.               Reversed and cause remanded.



        ¶1   N. PATRICK CROOKS, J.                 This case is before the court

on    certification       from    the   court    of       appeals    pursuant       to   Wis.

Stat.    § 809.61      (2009-10).         It    concerns        a    dispute      over    the

enforceability of a pension award in a divorce judgment.                                  The

specific question we address is whether the circuit court erred

when it denied Patricia Johnson's motion for the entry of a

qualified domestic relations order (QDRO) on the grounds that

the    motion    was     barred   by    Wis.    Stat.      § 893.40,        a   statute     of
                                                                        No.    2011AP1240



repose,1      which    states     that     "action     upon       a     judgment        or

decree . . . shall       be     commenced     within    20    years           after    the

judgment or decree is entered or be barred."                  Johnson had filed

a    motion    on   September    13,     2010,   seeking     to       compel     Michael

Masters to provide pension information so that the necessary

QDRO could be prepared and his Wisconsin Retirement System (WRS)

pension could be divided           in    accordance    with       the     judgment     of

divorce. The judgment in the divorce had been filed more than 20

years before, on July 20, 1989.                  With regard to the pension

benefits, the judgment had awarded Johnson half of the value

accrued during the span of the marriage and stated that a QDRO

"shall be submitted to secure these rights."

       ¶2     This court has upheld the application of Wis. Stat.

§ 893.40 in a family law context.2               We see no evidence for the

argument that the legislature intended for family law judgments

to   be     categorically     exempted    from   its   application            though   we

recognize the realities of family court judgments and see some


       1
       We address the question as presented in the certification
by the court of appeals and as briefed by the parties.      We do
not attempt to answer questions not raised by the certification.
       2
       That case involved an action by the State to enforce
payment of child support that had been ordered in a divorce
judgment.   We held that Wis. Stat. § 893.40 governed the case.
We said, "[U]nder the statute, an action brought to enforce a
child support judgment must be commenced within 20 years of the
date when the judgment is entered. The period of limitation
begins to run upon entry of judgment, irrespective of whether
any payment under that judgment has been missed."     Hamilton v.
Hamilton, 2003 WI 50, ¶4, 261 Wis. 2d 458, 661 N.W.2d 832.



                                          2
                                                                        No.     2011AP1240



evidence that this court has made certain accommodations for the

ongoing obligations that are common in that area.                             There is a

twist in this case, however, that we consider dispositive of the

question,    and   that    is    the      fact   that      even    though      the    1989

judgment     required     the    filing     of   a    QDRO,       the   WRS     was     not

authorized     under    statute      to    accept     a    QDRO    related      to    this

divorce until May 2, 1998.

     ¶3     In order to interpret the relevant statutes to avoid

"absurd or unreasonable results,"3 and in order to "constru[e]

each in a manner that serves its purpose"4 as we are bound to do,

we hold that Johnson's motion is not barred by the operation of

Wis. Stat. § 893.40.            The judgment contained a provision that

required the filing of a QDRO with the WRS, and it was not until

1998 that legislation authorized WRS to accept such orders for

marriages such as this one that were terminated in 1989.                                It

would be     absurd and     unreasonable         to   construe      the       statute   of

repose in such a way that it would begin to run at the time of a

judgment    with   regard       to   a    provision       that    assigned      Masters'
interest contrary to existing law, which was and continued for

the next nine years to be that WRS pension interests were not
assignable.5    Construing the statute as starting to run as to the


     3
       State ex rel. Kalal v. Circuit Court for Dane County, 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
     4
       State v. Szulczewski, 216 Wis. 2d 495, 503, 574 N.W.2d 660
(1998).
     5
       Wis. Stat. § 40.08(1)(1987-88), in effect at the time of
the 1989 divorce judgment, stated:

                                           3
                                                                           No.    2011AP1240



pension provision at the point when the provision was no longer

contrary      to    law    is    a   way    to       retain    the   statute's      limiting

function      "in    a    manner     that   serves       its    purpose."        Under   the

circumstances present in this case6 where a statute precludes a

provision in a judgment, the statute of repose cannot begin to

run as to that provision until the legislature changes the law

such that the provision can be carried out.                           In this case, that

change went into effect on May 2, 1998, and the statute of

repose will bar actions on such a provision only after May 1,

2018.       We therefore reverse the order of the circuit court and

remand for further proceedings consistent with this opinion.

                                        BACKGROUND

     ¶4       The     circuit        court's         order    that    we   review    denied

Johnson's motion for the entry of a QDRO and granted Masters'

motion to dismiss based on Wis. Stat. § 893.40.                            The QDRO that

Johnson      sought       from   the    Waukesha        County       Circuit   Court,    the

Honorable Kathryn W. Foster presiding, is an order that would

authorize      the       administrator         of      Masters'      pension     plan,   the
Wisconsin Retirement System, to assign Johnson a portion of his


        The benefits payable to, or other rights and interests
        of, any member, beneficiary or distributee of any
        estate under any of the benefit plans administered by
        the department . . . shall not be assignable, either
        in law or equity, or be subject to execution, levy,
        attachment, garnishment or other legal process except
        as specifically provided in this section.
        6
       We address the question as presented in the certification
by the court of appeals and as briefed by the parties.      We do
not attempt to answer questions not raised by the certification.

                                                 4
                                                               No.    2011AP1240



pension benefits, in accordance with the divorce judgment.                   It

is important to provide a brief explanation of what a QDRO is

and why there was no authority for the WRS to accept one when

Johnson and Masters divorced in 1989.

     ¶5     QDROs are defined by the Employee Retirement Income

Security    Act   (ERISA),   the   federal   law     that   governs    private

sector pension plans.        "The primary objective of ERISA is to

protect employees from the mismanagement of funds set aside to

finance    employee    benefits    and    pensions     by     establishing    a

comprehensive     regulatory   scheme     that     required     employers    to

fulfill    certain    reporting,   disclosure    and   fiduciary      duties."

Aurora Med. Group v. DWD, 2000 WI 70, ¶16, 236 Wis. 2d 1, 612

N.W.2d 646 (citations omitted).          Federal law generally prohibits

assigning pension benefits; however, it provides a mechanism in

QDROs to assign pension benefits under certain circumstances:


    [T]he anti-alienation provision in [the Employee Retirement
    Income Security Act] precludes assignment of the pension
    benefits [without] a valid QDRO. See 29 U.S.C. § 1056(d)(1)
    ("[e]ach pension plan shall provide that benefits provided
    under the plan may not be assigned or alienated"). ERISA's
    prohibition on the assignment or alienation of pension
    benefits has been strictly enforced. A QDRO is an express
    exception to ERISA's anti-alienation provision.   See ERISA
    § 1056(d)(3)(B)(i)(I). . . . 29 U.S.C. § 1056(d)(3)(B)(i)
    defines a “qualified domestic relations order” as a
    domestic relations order

            (I)   which creates or recognizes the existence of an
                    alternate payee's right to, or assigns to an
                    alternate payee the right to, receive all or a
                    portion of the benefits payable with respect to
                    a participant under a plan, and



                                     5
                                                                      No.      2011AP1240


             (II)        with respect to which the requirements                        of
                         subparagraphs (C) and (D) are met....
In re Gendreau, 191 B.R. 798, 801-02 (B.A.P. 9th Cir. 1995)

aff'd, 122 F.3d 815 (9th Cir. 1997) (citations omitted).                               "A

qualified domestic relations order permits payment of benefits

of    qualified     private    retirement      plans   to    one    other      than   the

employee spouse. Such a recipient is denominated an 'alternate

payee,'     which    includes     a   nonemployee      spouse."           Schinner    v.

Schinner, 143 Wis. 2d 81, 86 n.1, 420 N.W.2d 381 (Ct. App. 1988)
(citations omitted).

       ¶6    ERISA does not apply to government retirement plans

such as the WRS, see 29 U.S.C.A. § 1003(b)(1), and the Wisconsin

statutes that governed those plans initially made no provision

for    QDROs.       In    Lindsey     v.   Lindsey,    the       court    of    appeals

described    an     early     unsuccessful     attempt      to     pass   legislation

authorizing the Wisconsin Retirement System to accept QDROs:


       1985 Assembly Bill 689 was a proposal to create a procedure
       whereby a participant's accumulated rights and benefits
       under the Wisconsin Retirement System could be made the
       subject of a "qualified domestic relations order." See
       Analysis by the Legislative Reference Bureau to 1985
       Assembly Bill 689. The fiscal note to this proposed
       legislation observed that "[t]he statutes governing the
       Wisconsin Retirement System (WRS) do not provide a
       mechanism for dividing rights and benefits under the system
       to comply with a court order." "The purpose of this bill is
       to provide a mechanism for the division of WRS benefits
       pursuant to a qualified domestic relations order issued by
       a court in a manner similar to that established by Federal
       law for private sector pension plans." Report of Joint
       Survey Committee on Retirement Systems for 1985 Assembly
       Bill 689 (emphasis added). This proposed legislation failed
       to pass the Assembly.



                                           6
                                                                         No.      2011AP1240



Lindsey v. Lindsey, 140 Wis. 2d 684, 694 n.8, 412 N.W.2d 132

(Ct. App. 1987).           The state of the law in Wisconsin in 1989 was

that benefits, rights and interests of any WRS member "shall not

be   assignable,       either     in    law       or   equity,    or    be   subject     to

execution, levy, attachment, garnishment or other legal process

except    as   specifically        provided        in   this     section[,]"       and   no

provisions     were    included        for    QDROs.       Wis.    Stat.       § 40.08(1)

(1987-88).     That remained the law until the passage of 1989 Wis.

Act 218, which authorized WRS to accept QDROs beginning April

28, 1990, but did not apply retroactively to divorces occurring

prior to the new statute's effective date, which was April 28,

1990.    It was not until May 2, 1998, that WRS was authorized by

1997    Wis.   Act    125    to   accept      QDROs     related    to    divorces      that

became effective between January 1, 1982, and April 28, 1990.

In part, 1997 Wis. Act 125 stated,


       40.08(1m)(k) of the statutes is created to read: . . . [A]
       court may revise or modify a judgment or order specified
       under subd. 1. for participants whose marriages were
       terminated by a court on or after January 1, 1982, and
       before April 28, 1990, but only with respect to providing
       for payment in accordance with a qualified domestic
       relations order of benefits under the Wisconsin retirement
       system that are already divided under the judgment or
       order.
1997 Wis. Act 125, § 5.                That authorization closed a gap that

had been created by the earlier legislation authorizing WRS to

accept    QDROs      but    failing     to    state     clearly    that      it    applied

retroactively to divorces that became final after January 1,

1982 and before April 28, 1990.


                                              7
                                                                      No.   2011AP1240



     ¶7    The final judgment in Johnson and Masters' divorce was

entered   on   July   20,   1989,   so       it   fell   into   the    category    of

divorces that were covered by the change in the law that took

effect in 1998 with regard to QDROs.                 The judgment stated that

the Marital Agreement between the parties was appended to the

judgment and was "approved as reasonable" and was incorporated

into the judgment of the circuit court.                  The Marital Agreement

included the following provisions:

    V. Property Division – Pension

    The Petitioner shall be awarded [half] of the value of
    the Respondent's Wisconsin Retirement System benefits
    accrued from date of marriage thr[ough] the date of
    divorce.   A QDRO shall be submitted to secure these
    rights.

     . . .

    X. Execution of documents

    Now or in the future, upon demand, the parties agree
    to execute and deliver any and all documents which may
    be necessary to carry out the terms and conditions of
    this marital agreement.

     . . .

    XII. Divesting of property rights

    Except as otherwise provided for in this marital
    agreement, each party shall be divested of and each
    party waives, renounces and gives up pursuant to Wis.
    Stats. § 861.07, all right, title and interest in and
    to the property awarded to the other. All property and
    money received and retained by the parties shall be
    the separate property of the respective parties, free
    and clear of any right, title, interest or claim of
    the other party, and each party shall have the right
    to deal with and dispose of his or her separate
    property as fully and effectively as if the parties
    had never been married.

                                         8
                                                                   No.    2011AP1240


      XIII. Mutual releases

      Neither party may, at any time hereafter, sue the
      other, or his or her heirs, personal representatives
      or assigns, for the purpose of enforcing any or all of
      the rights relinquished and/or waived under this
      marital agreement. Both parties also agree that in the
      event any suit shall be commenced, this release, when
      pleaded, shall be and constitute a complete defense to
      any such claim or suit so instituted by either party.

       . . .

      XX. Survival of marital agreement after judgment

      Both parties agree that certain paragraphs of this
      marital   agreement   shall  survive  the   subsequent
      judgment of divorce and shall have independent legal
      significance. This marital agreement is a l[e]gally
      binding contract, entered into for good and valuable
      consideration. In the future, either party may enforce
      this specific marital agreement in this or any other
      court of competent jurisdiction.
      ¶8     In April 2009, nearly 20 years after the divorce was

final, Masters retired from his job as a school janitor.                     It is

undisputed     that   Masters    did   not    notify     Johnson   that    he    was

retiring.      According to an undisputed affidavit in the record,

Johnson learned in March 2010 that Masters had retired.                          On

March 3, 2010, Johnson filed a form QDRO that was signed by the
circuit court on March 5, 2010, and vacated by stipulation of

the   parties    24   days    later    when   it   was    discovered      that   it

contained an error.          Johnson then retained new counsel and took

steps to obtain a valuation of the pension and draft a QDRO to

obtain her portion of the pension.

      ¶9    When WRS notified Johnson that Masters' authorization

was required in order to disclose the pension value information,

she sought his authorization.               On September 7, 2010, Johnson

                                        9
                                                                       No.     2011AP1240



received     notification          that    Masters     would     not     provide      the

necessary     authorization.              Johnson    then     filed    a     motion    on

September 12, 2010, for orders to require Masters to release his

pension information.          At a hearing before a court commissioner,

Masters was ordered to sign the authorization.                         He then moved

for a hearing de novo in the circuit court.

      ¶10    In the circuit court, Masters moved to dismiss the

motion on the grounds that Johnson's motion was barred by Wis.

Stat. § 893.40 because it states that action must be commenced

within 20 years after "the judgment or decree is entered," and

it includes no exemptions for family law judgments.                                In the

alternative,        he    argued    that    the     doctrine    of     laches      barred

Johnson's     claim       because    her    delay    in   seeking      the    QDRO    was

unreasonable        and    prejudiced      him.       Johnson    argued       that    the

statute of repose could not operate as a bar to her motion in

light of Wis. Stat. § 767.01, in Ch. 767, Actions Affecting the

Family, which states that "circuit courts . . . have authority

to do all acts and things necessary and proper in those actions
and   to    carry    their    orders       and    judgments     into    execution      as

prescribed in this chapter." Alternatively, Johnson argued that
the doctrines of unclean hands and equitable estoppel precluded

Masters' statute of repose defense.7                 The circuit court held two
hearings     on   the     matter,    and    the     parties    briefed       the   issues

extensively.

      7
       The parties' briefs to the circuit court contained other
arguments that are not recited here because they were not
pursued on appeal.

                                            10
                                                                    No.     2011AP1240



        ¶11      The circuit court granted Masters' motion to dismiss

based       on   Wis.   Stat.   § 893.40,     and   it   denied   his     motion   to

dismiss based on the doctrine of laches.                   It denied Johnson's

motion for the entry of a QDRO.               In ruling from the bench, the

circuit court stated:

       The, quote, cause of action, the ability to obtain a
       QDRO, was not directly triggered by the actual
       retirement of Mr. Masters. It was, in fact, a result
       of a 1989 divorce decree and after the passage of the
       Wisconsin Act of 125 in 1997 was subject to be
       executed from that time going forward, not contingent
       on the retirement date of Mr. Masters.8
       ¶12       Johnson appealed the denial of her motion.9              The court

of appeals certified the case to this court, and we accepted

certification.

                                    DISCUSSION

       ¶13       The question presented by this case is how the statute

that        requires    "action   upon   a     judgment    or     decree"     to   be

"commenced within 20 years" applies to a judgment containing a

provision that cannot be performed under existing law at the

time of judgment.         It is a question of statutory interpretation,

a question of law that this court reviews de novo.                      Teschendorf


        8
       The circuit court also stated that the doctrine of laches
would favor the petitioner's position except that it "runs full
face into the stone wall in the form of the statute of repose."
The circuit court expressed its belief that the result was
inequitable: "I frankly hope I am wrong [if the case is
appealed] because I do believe my decision is a harsh result."
       9
       Masters cross-appealed the denial of his motion to dismiss
based on the doctrine of laches; he filed a notice of voluntary
dismissal of his cross-appeal on October 6, 2011.

                                         11
                                                                      No.    2011AP1240



v. State Farm Ins. Cos., 2006 WI 89, ¶9, 293 Wis. 2d 123, 717

N.W.2d 258.      We begin with established principles of statutory

interpretation:

      Statutory language is given its common, ordinary, and
      accepted meaning, except that technical or specially-
      defined words or phrases are given their technical or
      special definitional meaning. Context is important to
      meaning. So, too, is the structure of the statute in
      which the operative language appears. Therefore,
      statutory language is interpreted in the context in
      which it is used; not in isolation but as part of a
      whole; in relation to the language of surrounding or
      closely-related statutes; and reasonably, to avoid
      absurd or unreasonable results.
State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI
58,   ¶¶45-46,    271   Wis.    2d      633,     681    N.W.2d    110       (citations

omitted).    "Under the ordinary rules of statutory interpretation

statutes should be reasonably construed to avoid conflict.                        When

two   statutes     conflict,        a    court     is    to      harmonize       them,

scrutinizing both statutes and construing each in a manner that

serves its purpose."         State v. Szulczewski, 216 Wis. 2d 495,

503, 574 N.W.2d 660 (1998).
      ¶14   We   considered     a       related    question       concerning       the

interpretation of Wis. Stat. § 893.40 in Hamilton v. Hamilton,
2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d 832, which involved an

action by the State to collect child support arrearages "almost
30 years after the original judgment, more than 20 years after

the   amended    judgment,     and      more   than     15    years     after    [the]
youngest child reached the age of majority." Id. at ¶2.

      We hold that Wis. Stat. § 893.40, which became
      effective on July 1, 1980, governs the time within
      which a party may bring an independent action to
                                         12
                                                                     No.    2011AP1240


        collect child support arrearages that accumulated
        after the statute's effective date.    In addition, we
        conclude that, under the statute, an action brought to
        enforce a child support judgment must be commenced
        within 20 years of the date when the judgment is
        entered. The period of limitation begins to run upon
        entry of judgment, irrespective of whether any payment
        under that judgment has been missed.
Id., ¶4.

        ¶15   The   parties'       arguments     with   regard       to    statutory

interpretation focus on the question of whether the legislature

intended to subject family law judgments to Wis. Stat. § 893.40

or to exempt them from it. The statute states:

        Action on judgment or decree; court of record. Except
        as provided in s. 846.04(2) and (3) and 893.415,
        action upon a judgment or decree of a court of record
        of any state or of the United States shall be
        commenced within 20 years after the judgment or decree
        is entered or be barred.
Johnson argues that her motion is not "action upon a judgment or

decree" for purposes of Wis. Stat. § 893.40.                 She points to Wis.

Stat.    § 801.02     as   providing       guidance   for   defining       the   terms

"action" and "commence."           The statute states:

     [A] civil action in which a personal judgment is
     sought is commenced as to any defendant when a summons
     and a complaint naming the person as defendant are
     filed   with  the   court,  provided  service  of   an
     authenticated copy of the summons and of the complaint
     is made upon the defendant under this chapter within
     90 days after filing.
Because       her   motion   did     not     commence   with     a    summons     and

complaint, she argues, it does not constitute "action" within

the meaning of Wis. Stat. § 893.40.              She also points to language

from a footnote in this court's decision in Hamilton:



                                           13
                                                                       No.   2011AP1240


      The court of appeals noted that both Walter and the
      State agree that the State's motion is an "independent
      action" upon the judgment.   Apparently, neither party
      argues that the State could not bring a motion within
      the context of the original action. We do not address
      this issue because it has no bearing on our present
      decision.
Hamilton, 261 Wis. 2d 458, ¶9 n.4 (citations omitted).                             She

argues that language means that the applicability of the statute

of   repose    depends    on     a    distinction      between    an    "independent

action"     and   "a    motion       within     the   context    of    the   original
action."      She contends that the Hamilton footnote signaled that
the court wished to limit the application of the statute of

repose in the family law context to independent actions brought

by third parties.10

      ¶16     Masters    argues       that      the   language    of     Wis.   Stat.

§ 893.40    is    unambiguous        and   makes      no   exceptions    that   would

      10
       Johnson's other argument is that her interest in the
pension plan was created at the time the judgment was entered
and that she is therefore "entitled to seek enforcement of the
terms of the divorce judgment at any time . . . ." App. Br. at
12. For that proposition, she cites Dewey v. Dewey, 188 Wis. 2d
271, 279, 525 N.W.2d 85 (Ct. App 1994) (holding that the former
wife's "interest in one-half of [the former husband's] pension
was not a part of his bankruptcy estate nor was it a
dischargeable debt. It was [the former wife's] separate property
upon which the timing of the execution of the QDRO had no
effect.")   We note that the "timing of the execution of the
QDRO" in that case refers to the significance of the timing
before or after a bankruptcy action; the language cannot be
fairly characterized as standing for the proposition that timing
is of no consequence whatsoever.     In that case, there was no
discussion of a statute of repose; the former wife's action to
enforce the judgment was commenced two years after the judgment
was entered. In any case, we decide this case on other grounds
and need not address this argument further.



                                           14
                                                                        No.     2011AP1240



exempt Johnson's motion from being barred 20 years after the

date of the judgment.           He argues that this court's holding in

Hamilton is that Wis. Stat. § 893.40 applied to bar an action in

a child support case, and it should be dispositive of this case.

He argues that it would contravene the statute's language and

would nullify the statute if the court were to carve out an

exception for family law judgments or make a distinction between

actions     begun     by   motion      and    those      begun    by        summons    and

complaint.        He argues that the legislature made it clear that it

had no intention of exempting post-judgment actions in family

law cases from the requirements of the statute of repose because

it did actually enact a specific exemption in 2003 in response

to   Hamilton      and limited    that       exemption    to     actions       for child
support.11

      ¶17    We    first   address     why    Hamilton     does       not     answer   the

question     presented     in   this    case.      First,        we   note     that    the

      11
       Following   this  court's   decision  in   Hamilton,  the
legislature accepted the court's invitation to clarify its
intention with regard to limitations on actions to collect child
support owed under a judgment.    It passed 2003 Wis. Act 287,
which created Wis. Stat. § 893.415. The statute states in
relevant part:

      (2) An action to collect child or family support owed
      under a judgment or order entered under ch. 767, or to
      collect child support owed under a judgment or
      order . . . shall be commenced within 20 years after
      the youngest child for whom the support was ordered
      under the judgment or order reaches the age of 18 or,
      if the child is enrolled full-time in high school or
      its equivalent, reaches the age of 19.

Wis. Stat. § 893.415.

                                         15
                                                                             No.   2011AP1240



footnote on which Johnson relies at most implies only that a

legally meaningful distinction may exist between an "independent

action" on a judgment and "a motion within the context of the

original     action."           It     does    not    necessarily        stand     for   the

proposition that Hamilton "has no application to post-judgment

motions brought between the original divorcing parties pursuant

to Wis. Stat. § 767.281 within the action itself." App. Br. at

7.    That far overstates a footnote that stated only, "We do not

address this issue because it has no bearing on our present

decision." Hamilton, 261 Wis. 2d 458, ¶9 n.4.                                Further, the
holding     of   the    case     is    stated       elsewhere     in   the    decision     as

"under the statute, an action brought to enforce a child support

judgment must be commenced within 20 years of the date when the

judgment is entered." Id. at ¶4 (emphasis added).                            That language

would      appear      to     include     an    action       "between        the   original

divorcing parties."

      ¶18    Masters         considers       Hamilton's      holding     dispositive      of

this case because he would apply the statute here in the same

way as the court did in Hamilton to bar the action.                            But we have

already stated that we consider a crucial fact in this case to

be that a QDRO could not be assignable until permitted by the

legislature.        That fact makes this case distinguishable from

Hamilton.        The provision the State sought to enforce in that

case was a provision ordering child support payments, and there

was   no    statute         existing    at     the    time   of    the    judgment       that

prevented the filing of the proper documents to carry out that

judgment.        Therefore, though it addresses similar issues and
                                               16
                                                                       No.   2011AP1240



contains helpful language with regard to the application of Wis.

Stat. § 893.40, Hamilton does not govern the analysis here.

        ¶19     This case raises thorny questions.                  Wisconsin Stat.

§ 893.40        cannot     be     said   to   be   ambiguous     as    to    the    time

limitation.          While it does not define "action on a judgment," it

does state clearly that the time period during which action on a

judgment or decree must be commenced is "within 20 years after

the judgment or decree is entered."                  And yet, we find that the

facts of the case before us compel a more careful look.                            As we

have explained, the 1989 divorce judgment required a filing of a

QDRO.         The statute that authorized WRS to accept such a filing

in this divorce did not come into existence until nine years

later when the legislature passed 1997 Wis. Act 125.                         We cannot

apply this statute of repose without recognizing the fact that,

at the time of the judgment, a statute actually foreclosed for

nine         years   the   single        action,   crucial     to     the    pension's

assignability, that had to occur to secure the pension award.

That is the crux of this case.

       ¶20      This     court,     in    a   previous   case,      considered       the
application of a statute that appeared to be unambiguous yet had

troubling implications appearing to lead to a disturbing outcome
if applied literally.12              In Teschendorf, this court unanimously



        12
         It is the court's role, in the context of statutory
interpretation, to give effect to legislation unless we find
that the legislature could not have intended the absurd or
unreasonable results a statute appears to require. As we have
stated:

                                              17
                                                                        No.   2011AP1240



agreed to affirm a court of appeals ruling refusing to apply a

reducing clause in an uninsured motorist provision in an auto

insurance policy.            The question there involved construing Wis.

Stat. §     632.32(5)(i), which authorizes such reducing clauses,

and determining whether it applied where worker's compensation

payments     were     made    to     the    State   of    Wisconsin      Work      Injury

Supplemental Benefit Fund.             Although the court was unanimous in

affirming,      the   justices       were    evenly      divided   on    whether     the

statute    in   question       was   ambiguous.13         The   position      of   three

justices was that




     The purpose in this situation is to verify that the
     legislature did not intend these unreasonable or
     unthinkable results.   See Green v. Bock Laundry Mach.
     Co.,   490   U.S.   504,   527  (1989)   (Scalia,  J.,
     concurring); Kalal, 271 Wis. 2d 633, ¶52 n.9, 681
     N.W.2d 110; see also Public Citizen v. United States
     Dep't of Justice, 491 U.S. 440, 465 (1989) (invoking
     the Supreme Court's absurdity exception to the plain
     language of the statute); Robbins v. Chronister, 402
     F.3d 1047, 1050 (10th Cir. 2005) (collecting federal
     circuit court and Supreme Court cases applying the
     absurdity exception). Because our purpose in these
     situations is grounded in open disbelief of what a
     statute appears to require, we are bound to limit our
     off-statute investigations to obvious aberrations.

Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶15, 293 Wis.
2d 123, 717 N.W.2d 258.
     13
       Chief Justice Shirley Abrahamson took a different
position on the statutory construction approach and concurred in
the holding. Teschendorf, 293 Wis. 2d 123, ¶70 (Abrahamson,
C.J., concurring) (writing that "[a] better approach to
statutory     construction    would     be     to    drop    the
ambiguous/unambiguous/literal/plain meaning pretense and instead
take a comprehensive view of statutory interpretation").

                                            18
                                                                No.   2011AP1240


      [a]lthough the meaning of the statute appears to be
      plain, a literal application of the language would be
      absurd. As a general rule, courts apply the ordinary
      and accepted meaning of statutory language, unless it
      produces an absurd result. Seider, 236 Wis. 2d 211,
      ¶32,    612    N.W.2d   659.    Because   a    literal
      application . . . would   produce    an  absurd    and
      unreasonable result in certain situations, Justices
      Wilcox, Crooks, and Butler construe the statute to
      avoid that result.
Teschendorf, 293 Wis. 2d 123, ¶32.             After setting forth examples

of how the statute if applied as unambiguously written would

create untenable results in certain circumstances, the opinion
adds,   "Because     this    literal       interpretation   produces     absurd

results and defies both common sense and the fundamental purpose

of [the statutes governing worker's compensation and uninsured

motorist coverage], Justices Wilcox, Crooks, and Butler reject

it   unless    extrinsic    sources    reveal     the   legislature    intended

these consequences." Id., ¶43 (citing to Green v. Bock Laundry
Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring)

("We are confronted here with a statute which, if interpreted

literally,     produces     an   absurd,    and   perhaps   unconstitutional,

result. Our task is to give some alternative meaning to the word

'defendant' in Federal Rule of Evidence 609(a)(1) that avoids

this consequence . . . .")).

      ¶21     The   reasoning      followed       by    three   justices     in

Teschendorf, as well as that followed by the court in Wenke v.




                                       19
                                                                     No.   2011AP1240



Gehl    Co.,14   is    apropos   in   this    case.     As    with   the   statutes

involved in Teschendorf, the application of Wis. Stat. § 893.40

in certain circumstances may produce results that "def[y] both

common sense and the fundamental purpose" of the statute.                        The

judgment here has the flaw, as to the pension award provision,

that    under    the   statute    then   in    effect   the    pension     was   not

assignable.       Where the statute clearly states that WRS pension

interests "shall not be assignable, either in law or in equity,"

and a court entered a judgment with a provision assigning such

an interest, that fact must be taken into account.15

       ¶22   In the case under review, the dispositive fact in our

view is that the statute operated to prohibit pension interests

from being assigned at the time the judgment was entered.                     We do


       14
       For another instance when this court has confronted
apparently dispositive clear language in a source of law that
was ultimately held not to be dispositive of the issue, see
Wenke v. Gehl Co., 2004 WI 103, ¶49, 274 Wis. 2d 220, 682 N.W.2d
405 (noting that "[t]he language of these [Judicial Council]
Committee Notes [setting forth the legislative intent] does
appear, on its face, to speak exactly to Wenke's construction of
both §§ 893.05 and 893.07" but nonetheless adopting a contrary
interpretation of the legislative intent in light of "a largely
unperceived shift in the meaning attached to the phrase 'statute
of repose.'")
       15
       The record does not disclose whether the original counsel
perhaps believed that the legislature would authorize QDROs and
that it would eventually be possible to file one in accordance
with the judgment of divorce, but as we noted above, attempts
were being made to pass such legislation as early as 1985.
Bills authorizing QDROs were introduced on February 21 and March
15, 1989, and were pending at the time the divorce judgment was
entered in July.   The following year 1989 Wis. Act 218 became
law, but as explained above, its provisions did not cover
divorces granted between January 1, 1982 and April 28, 1990.

                                         20
                                                                 No.    2011AP1240



note that there might be other grounds as well for reaching the

result we reach, founded on the unique characteristics of family

law judgments.        In family law matters especially, courts often

encounter     provisions       in      orders     that      create     continuing

obligations that may very well extend beyond 20 years, such as

support,    maintenance,     property     transfers,      agreements     for    the

sale of property, and educational expenses payments.                     We have

recognized the unique nature of family law judgments in another

context, which lends support to our holding.                 Rules promulgated

by   this    court,    which      of   course     are    procedural     and     not

substantive, do treat family law orders differently from others

in one telling respect.             They set the required minimum time

periods for courts to retain "the original paper records" for

various types of cases.           See SCR 72.01, Retention of original

record.     As might be expected, the minimum time periods set for

courts to retain records for various types of cases corresponds

to the relevant statute limiting enforcement of the judgment.

For example, civil case files and records of money judgments are
to   be    retained    for   20     years,     consistent    with    Wis.     Stat.

§ 893.40's 20-year limitation on enforcing such judgments.                     See

SCR 72.01(1) and (5).        The retention requirements for delinquent

income or franchise tax warrants or liens are tied directly to

relevant    statutes    regarding      their    enforcement,     and    the    rule

notes that for warrants or liens that are renewed, "a new 20-

year retention period begins from the date on which the renewal

is filed with the clerk of circuit court." See SCR 72.01(7m).


                                        21
                                                                               No.     2011AP1240



        ¶23    With      regard      to       family        case    files,     family     court

records, family court minute records and maintenance and support

payment records, the rule departs from the practice of tying the

retention          period     to     a    recognized          limitation       on     enforcing

judgments and instead sets the required minimum for retaining

such records as follows:

    [Thirty] years after entry of judgment of divorce,
    legal separation, annulment, or paternity, or entry of
    a final order, except that after 30 years, for any
    case file for which related support or maintenance
    payments are continuing to be made, 7 years after
    final   payment   or   after   an  order   terminating
    maintenance is filed.
See SCR 72.01(11), (12), (13), and (14).                             We suggest only that

these procedural rules reflect a recognition on the part of this

court that in some respects ongoing obligations are a common

feature       of    family     law       judgments,         and    whether    observing       the

obligation         to   construe         statutes      to     avoid    absurd       results     or

exercising their equitable powers, circuit courts, under Wis.

Stat. § 767.01, in Ch. 767, Actions Affecting the Family, "have

authority to do all acts and things necessary and proper in

those    actions        and   to     carry      their       orders    and     judgments       into

execution as prescribed in this chapter."

    ¶24        For example, in Bliwas v. Bliwas, 47 Wis. 2d 635, 178

N.W.2d    35       (1970),    we     considered         a    stipulation       in    which     the

divorcing couple had agreed that the father would "pay the cost

of tuition, books, supplies, rent, food allowance and certain

miscellaneous           expenses"        for    his     son's       college    and     graduate

professional         expenses      in     a    Wisconsin          school    even     beyond    his


                                                22
                                                        No.   2011AP1240



twenty-first     birthday;   the   court-ordered   support    payments,

however, would be lowered and would then terminate on the son's

twenty-first birthday. Id. at 637.      While the question presented

in that case had to do with the proper procedural method for

bringing the father, who was not complying with the stipulation,

into court, we addressed at some length the basis for enforcing

the stipulation:

    However, we hold that the enforcement of a family
    court order, which would not be enforceable without a
    prior stipulation of the parties that it be made part
    of the decree, rests not so much in the enforcement of
    a   contractual   obligation  or   even  extension   of
    jurisdiction of the court, as it does in recognizing
    that a person who agrees that something be included in
    a family court order, especially where he receives a
    benefit for so agreeing, is in a poor position to
    subsequently object to the court's doing what he
    requested the court to do. One leading text puts the
    proposition   involved   in  the  following   language:
    "[W]here the court disposes of the property of the
    parties by stipulation . . . the general rule applies
    that a party who procures or consents to the entry of
    the decree is estopped to question its validity,
    especially where he has obtained a benefit from it."
Id. at 639-40.       The decision went on to quote from another

jurisdiction in support of such a rule:

    In a case where a wife had received certain advantages
    under the award of the divorce court, made pursuant to
    a stipulation of the parties, the Supreme Court of the
    State of Washington held it to be well established law
    that, " . . . even though a decree is void as beyond
    the power of the court to pronounce, a party who
    procures or gives consent to it is estopped to
    question its validity where he has obtained a benefit
    therefrom."
Id. at 640 (citing Svatonsky v. Svatonsky,         389 P.2d 663, ___

(Wash. 1964)).

                                   23
                                                                               No.     2011AP1240



        ¶25   Though      we        do   not    decide       this    case     on   grounds     of

equitable estoppel, it appears to support our decision and to

provide independent grounds for our holding.                            We have addressed

the doctrine in similar cases, and in Rintelman v. Rintelman,

118 Wis. 2d 587, 596, 348 N.W.2d 498 (1984), we held:

        In situations such as this one, all that need be shown
        to constitute an estoppel is that both parties entered
        into the stipulation freely and knowingly, that the
        overall settlement is fair and equitable and not
        illegal or against public policy, and that one party
        subsequently seeks to be released from the terms of
        the court order on the grounds that the court could
        not have entered the order it did without the parties'
        agreement.
We recently addressed a related issue where a stipulation and

order     established           a    33–month            unmodifiable    floor       for    child

support payments, and a party was seeking modification of the

order.        In    May    v.       May,   we       emphasized      courts'    deference       to

parties' stipulations: "[W]e are sensitive to the importance and

prevalence         of   stipulations           in    helping       families    going       through

difficult      and      litigious          divorces          and    curbing    disagreements

[between] the parties. The ability to contract is fundamental to

our legal system and may aid parties in settling their divorces

more amicably." May v. May, 2012 WI 35, ¶18, 339 Wis. 2d 626,
813 N.W.2d 179.           The court went on to add:

        [W]here the parties to a child support order have
        entered into a stipulation in regard to child support
        for a limited period of time that the court has
        adopted, courts will attempt to give effect to the
        parties' intentions where the stipulation was entered
        into freely and knowingly, was fair and equitable when
        entered into, and is not illegal or violative of
        public policy. In this context, a court's review

                                                    24
                                                                 No.   2011AP1240


       typically will consider the doctrine of equitable
       estoppel, by which a party may be precluded from
       challenging an agreement when the elements of estoppel
       set forth in Rintelman are satisfied.
Id.,   ¶36   (citation   omitted).        We   recognize   the    elements    of

estoppel in several key provisions in the stipulation here that

was incorporated into the judgment:

       X. Execution of documents

       Now or in the future, upon demand, the parties agree
       to execute and deliver any and all documents which may
       be necessary to carry out the terms and conditions of
       this marital agreement.

        . . .

       XII. Divesting of property rights

       Except as otherwise provided for in this marital
       agreement, each party shall be divested of and each
       party waives, renounces and gives up pursuant to Wis.
       Stats. § 861.07, all right, title and interest in and
       to the property awarded to the other. All property and
       money received and retained by the parties shall be
       the separate property of the respective parties, free
       and clear of any right, title, interest or claim of
       the other party, and each party shall have the right
       to deal with and dispose of his or her separate
       property as fully and effectively as if the parties
       had never been married.

       XIII. Mutual releases

       Neither party may, at any time hereafter, sue the
       other, or his or her heirs, personal representatives
       or assigns, for the purpose of enforcing any or all of
       the rights relinquished and/or waived under this
       marital agreement. Both parties also agree that in the
       event any suit shall be commenced, this release, when
       pleaded, shall be and constitute a complete defense to
       any such claim or suit so instituted by either party.
In light of these provisions as agreed upon by the parties, the

doctrine     of   equitable   estoppel     supports    our   holding       where

                                     25
                                                                                    No.      2011AP1240



Masters         had   promised        in    1989       "in     the       future,      upon    demand,

. . . to execute and deliver any and all documents which may be

necessary to carry out the terms and conditions of this marital

agreement."

                                            CONCLUSION

          ¶26    In order to interpret the relevant statutes to avoid

"absurd or unreasonable results," and in order to "constru[e]

each in a manner that serves its purpose" as we are bound to do,

we hold that Johnson's motion is not barred by the operation of

Wis. Stat. § 893.40.             The judgment required the filing of a QDRO

with      the    WRS,    and     it    was       not     until          1998   that     legislation

authorized WRS to accept such orders for marriages such as this

one    that      were    terminated         in     1989.           It     would    be     absurd    and

unreasonable to construe the statute of repose in such a way

that it would begin to run at the time of a judgment with regard

to    a    provision      that    assigned            Masters'           interest       contrary    to

existing law, which was and continued for the next nine years to

be that WRS pension interests were not assignable.                                        Construing
the statute as starting to run as to that provision at the point

when the provision was no longer contrary to law is a way to
retain      its       limiting    function         "in        a    manner      that     serves      its

purpose."         Under the circumstances present in this case where a
statute precludes a              provision          in    a       judgment,       the     statute    of

repose      cannot      begin    to        run   as      to       that    provision       until     the
legislature           changes    the       law   such         that       the   provision      can    be

carried out.            In this case, that occurred on May 2, 1998, and

the statute of repose will bar actions on that provision after
                                                  26
                                                No.   2011AP1240



May 1, 2018.   We therefore reverse the order of the circuit

court and remand for further proceedings consistent with this

opinion.

    By the Court.—Reversed and remanded.




                              27
                                                                No.    2011AP1240.ssa


      ¶27   SHIRLEY S.       ABRAHAMSON,     C.J.     (concurring).            I    join

the   majority       opinion     authored    by     Justice     Crooks      and     the

concurrence authored by Justice Bradley.                I write separately to

address the characterization of a circuit court's exercise of

equitable   powers      in     Justice   Ziegler's     concurrence       as    "based

solely on the subjective determination of each judge who reviews

such a question"        and "an     arbitrary     determination        of     any   one

judge on any given day."          Justice Ziegler's concurrence, ¶41.

      ¶28   If   a     circuit     court     exercises        its     discretionary

equitable powers in a subjective, arbitrary fashion instead of

setting forth logical, rational reasoning based on the facts of

record and a correct statement of the law, the circuit court has

erred and its ruling will be reversed on appeal.

      ¶29   The comment in Justice Ziegler's concurrence equating

discretion with judicial subjectivity and arbitrariness does a

disservice to judicial decision making and to the circuit courts

of the state.    The comment cannot stand unchallenged.




                                         1
                                                                          No.   2011AP1240.awb


        ¶30       ANN    WALSH      BRADLEY,   J.        (concurring).          I    join    the

majority          opinion      in   its    entirety,         concluding    that      Johnson's

motion for the entry of a qualified domestic relations order is

not barred by the operation of Wis. Stat. § 893.40.                                   I agree

with        the   majority       opinion    when       it    states   that      it   would   be

"absurd and unreasonable" to construe the statute of repose in a

way that it would begin to run at the time the judgment in this

case was entered.              Majority op., ¶3.

        ¶31       Likewise, I agree with the majority when it states

that there has been "a recognition on the part of this court"

that:

       . . . in some respects ongoing obligations are a
       common feature of family law judgments, and whether
       observing the obligation to construe statutes to avoid
       absurd results or exercising their equitable powers,
       circuit courts, under Wis. Stat. § 767.01, in Ch. 767,
       Actions Affecting the Family, "have authority to do
       all acts and things necessary and proper in those
       actions and to carry their orders and judgments into
       execution as prescribed in this chapter."
Id., ¶23.1

        ¶32       However, I write separately to address the unnecessary

uncertainty that Justice Ziegler's concurrence introduces into
the law.          By raising questions concerning the continued vitality

of   judgments          that     require    the       payment   of    maintenance      or    the
continuation            of life insurance             with    designated     beneficiaries,


        1
       Justice Ziegler asserts that this concurrence "incorrectly
characterizes the conclusions reached in the majority opinion."
Justice Ziegler's Concurrence, ¶1 n.1.    Ultimately, it will be
left to the reader to determine whether such an assertion is
correct.   This concurrence does not attempt to "characterize"
the majority opinion but rather quotes directly from it.

                                                  1
                                                                           No.    2011AP1240.awb


Justice Ziegler's concurrence creates uncertainty in areas of

family law not presented in this case.

        ¶33 In the concurring opinion, Justice Ziegler questions

"whether or how Wis. Stat. § 893.40 may affect the enforcement

of     obligations          which       may        necessarily          extend     beyond       20

years. . . ."            Justice Ziegler's Concurrence, ¶2.                        She further

appears to question whether judgments requiring "maintenance" or

the    payment      of     "life      insurance          proceeds"      that     may    continue

beyond or may first become due after 20 years post-judgment will

remain enforceable after 20 years has passed.                            Id., ¶1 n.2.

        ¶34   Both the majority and the dissent provide a response

to    Justice       Ziegler's          concerns.                The     majority        correctly

recognizes      that       "[i]n      family       law       matters    especially,        courts

often    encounter         provisions         in       orders    that    create        continuing

obligations         that       may     very     well         extend     beyond     20    years."

Majority op., ¶22.

       ¶35    The     dissent          responds          by     explaining       that     "[t]he

suggestion that            a party      could          simply    stop    paying      alimony or
maintenance after 20 years, as a result of Wis. Stat. § 893.40,

is not reasonable or realistic because of the continuing nature

of    the     obligation         to     pay."            Dissent,       ¶112     (emphasis      in

original);      Ashby      v.    Ashby,        174      Wis.    549,    554,     183    N.W.   965

(1921) (determining that an order for alimony payments was a

"continuing      judgment,            always       subject      to     modification       by   the

court during the life of the parties," and therefore a statute

of    limitations        did    not     apply).          I     agree    with   the      dissent's

conclusion that a judgment that orders indefinite maintenance

                                                   2
                                                       No.   2011AP1240.awb


payments is a continuing judgment that is not barred by the

operation of Wis. Stat. § 893.40.

       ¶36   In response to the concern regarding the change of

life   insurance   beneficiaries,   the   dissent   explains   that   "the

insured may not change the beneficiary more than 20 years after

the entry of the judgment and expect that he or she has not

created a new cause of action for the original beneficiary."

Dissent, ¶111.     Likewise I agree with the dissent's conclusion

that the obligation to designate a specific beneficiary may be

enforced beyond the 20-year period.

       ¶37   Accordingly, although I join the majority opinion in

its entirety, I respectfully concur.

       ¶38   I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this concurrence.




                                    3
                                                                   No.   2011AP1240.akz


        ¶39    ANNETTE KINGSLAND ZIEGLER, J.              (concurring).        I join

the majority opinion because it does not conclude that a court

has   the     equitable     power    to   ignore   a     statute    of    repose   and

because it concludes that under the facts of this case Wis.

Stat.       § 893.40    does   not    apply    because    a   qualified       domestic

relations order (QDRO) was not possible when this judgment was

entered.1       I concur to urge the legislature to consider whether

legislative change could provide greater certainty to courts,

litigants, and parties who may depend on the enforceability of

certain family court matters beyond 20 years.2

      ¶40      The legislature has set a 20-year statute of repose in

Wis. Stat. § 893.40, and in the case at issue, the circuit court

concluded,       as     Justice     Prosser    would,     that     § 893.40     barred

enforcement.           The majority opinion reverses the circuit court

but has cabined its analysis to "the circumstances present in

this case" and the "dispositive fact" that the QDRO statute,

Wis. Stat. § 40.08, "operated to prohibit pension interests from

        1
       Justices Roggensack and Gableman join this concurrence
because they also conclude that the majority opinion does not
answer whether Wis. Stat. § 893.40 bars certain family court
judgments that extend beyond 20 years, and it does not conclude
that the circuit court has the equitable power to ignore a
statute of repose.      If, as Justice Bradley suggests, the
majority opinion were to answer those questions, it would not
have sufficient votes to constitute a majority opinion and would
then be only a lead opinion.       Therefore, Justice Bradley's
concurrence incorrectly characterizes the conclusions reached in
the majority opinion.
      2
       The payment of retirement benefits, maintenance, or life
insurance proceeds may be court ordered and thus necessarily
extend beyond 20 years.    While the majority somewhat addresses
equitable estoppel, it does not state that equitable estoppel
provides an enforcement mechanism. See majority op., ¶25.

                                           1
                                                        No.   2011AP1240.akz


being assigned at the time the judgment was entered."             Majority

op., ¶¶3, 19-23, 26.      I join that holding.     I write to clarify

the   fact   that   the   majority   opinion   leaves   unanswered      the

question of whether or how Wis. Stat. § 893.40 may affect the

enforcement of obligations which may necessarily extend beyond

20 years.3   See majority op., ¶¶3, 19-23, 26.      Further proof that

legislative action may provide greater clarity is evident by the

thoughtful yet differing viewpoints and analyses of the circuit




      3
       Justice Bradley's opinion incorrectly suggests that the
majority has decided this issue.        Instead, the majority's
analysis is entirely dependent on the fact that a QDRO could not
have transferred these assets at the time of the divorce
judgment.    The majority's conclusion does not hinge on the
language of Wis. Stat. § 893.40.       The majority holds that
"[u]nder the circumstances present in this case where a statute
precludes a provision in a judgment, the statute of repose
cannot begin to run as to that provision until the legislature
changes the law such that the provision can be carried out."
See majority op., ¶¶3, 26.     Absent the unique facts of this
particular case, the majority would be required to determine
whether § 893.40 otherwise bars enforcement.      In fact, that
issue was presented by the parties, addressed by the circuit
court, and is again presented in the concurrences and the
dissent.

                                     2
                                                                 No.   2011AP1240.akz


court decision in this case, the arguments of counsel, and our

own majority, concurring, and dissenting opinions.4

     ¶41    Unlike   Justice   Bradley,     I    would     not    go    beyond   the

majority opinion to conclude that a court may simply invoke its

equitable   powers    to   override   the       language    in     a   statute    of

repose.     If the equitable power of the circuit courts can so

supersede the limits of a statute of repose, such as Wis. Stat.

§ 893.40, based solely on the subjective determination of each

judge who reviews such a question, then whether a court order is

enforceable under the statute could be subject to an arbitrary




     4
       Justice Bradley asserts that Justice Prosser's dissent
supports her position, yet he concludes that the 20-year statute
of repose is an absolute bar to this enforcement proceeding.
Moreover, if Ashby v. Ashby, 174 Wis. 549, 183 N.W. 965 (1921),
somehow unequivocally answers the question, then the majority
decision would not need to undertake its extensive analysis.
Instead, it could rely on that precedent and the equitable power
of the circuit court. Ashby was decided well before Wis. Stat.
§ 893.40 was enacted, and arguably, Dewey v. Dewey, 188
Wis. 2d 271, 525 N.W.2d 85 (Ct. App. 1994), may call into
question whether this is a continuing judgment.      The dissent
cites several cases in support of the proposition that circuit
courts can equitably enforce certain family law judgments that
may continue past 20 years.    See dissent, ¶¶110-11.   However,
none of the plaintiffs in the cases cited by the dissent
attempted to enforce a judgment more than 20 years after the
entry of judgment, nor do any of the cases cite to or discuss
the application of § 893.40.

                                      3
                                                                No.    2011AP1240.akz


determination of any one judge on any given day.5                         I cannot

conclude   that     the   rule    of   law    supports    such        subjectivity.

Apparently,   the    issue   of    when      § 893.40    bars    enforcement      is

subject to some debate.6

     ¶42   Courts,    practitioners,         and   parties      deserve     greater

certainty when it comes to important family law issues.                       It is

the role of the legislature, not the courts, to enact statutes.


     5
       Judicial decisions made without definable standards are
arbitrary decisions that are disfavored under the law.       See
Donaldson v. Bd. of Comm'rs of Rock-Koshkonong Lake Dist., 2004
WI 67, ¶¶91-102, 272 Wis. 2d 146, 680 N.W.2d 762.     I am at a
loss as to why Chief Justice Abrahamson's concurrence disparages
my concern over avoiding arbitrary decision-making, which should
not be confused with a court's duty to engage in discretionary
decision-making, as somehow being disrespectful of circuit court
judges.   C.J. Abrahamson's concurrence, ¶29.   To the contrary,
having been a trial lawyer and a circuit court judge, I
understand that courts, lawyers, and litigants would typically
prefer greater certainty when analyzing jugular issues, such as
when a statute of repose acts as a bar to enforcement.
Unfortunately, this opinion is limited to its facts and does not
answer that issue.
     6
       Legislative response to a court decision is not unusual.
Hamilton v. Hamilton, 2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d
832, is instructive as to the interplay between court decisions
and subsequent legislative response.        After Hamilton, the
legislature initiated statutory changes to address the child
support issues raised therein.     It is not uncommon for this
court to ask the legislature to consider legislative action.
See, e.g., State v. Brereton, 2013 WI 17, ¶54 n.16, 345
Wis. 2d 563, 826 N.W.2d 369; id., ¶¶98-99 (Abrahamson, C.J.,
dissenting); State v. Sveum, 2010 WI 92, ¶¶79, 84, 328
Wis. 2d 369, 787 N.W.2d 317 (Ziegler, J., concurring) (asking
legislature to set parameters and standards of use for the
installation and monitoring of GPS tracking devices); id., ¶77
(Crooks,   J.,   concurring);   id.,  ¶126   (Abrahamson,   C.J.,
dissenting); State v. McClaren, 2009 WI 69, ¶¶77-79, 318
Wis. 2d 739, 767 N.W.2d 550 (Bradley, J., dissenting); State ex
rel. J.H. Findorff & Son, Inc., v. Circuit Court for Milwaukee
Cnty., 2000 WI 30, ¶24 n.14, 233 Wis. 2d 428, 608 N.W.2d 679.

                                        4
                                                     No.   2011AP1240.akz


Perhaps legislative change is not needed, but perhaps it is.           I

merely     request   that   the   legislature   evaluate    the   issue

presented.

     ¶43    For the foregoing reasons I concur.

     ¶44    I am authorized to state that Justices PATIENCE DRAKE

ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.




                                   5
                                                                                 No.    2011AP1240.dtp


        ¶45       DAVID       T.    PROSSER,            J.     (dissenting).             Michael       R.

Masters and Patricia                     A.   Johnson         were    married     on    October       18,

1986.         They were divorced on July 20, 1989.                                   Their divorce

judgment,          signed          by    Waukesha            County     Circuit        Judge    Robert

Mawdsley, made the couple's written marital property agreement

part of the judgment.                      The marital property agreement read in

part: "V. Property Division——Pension.                                 The Petitioner shall be

awarded           1/2    of     the       value         of     the      Respondent's       Wisconsin

Retirement System [WRS] benefits accrued from date of marriage

thru the date of divorce.                       A QDRO [qualified domestic relations

order] shall be submitted to secure these rights."

       ¶46        For    more       than      20    years,         Patricia      Johnson       did    not

submit a          QDRO    to       the    WRS      or    to    the    court    "to     secure [her]

rights" to a portion of her former husband's pension.                                            Thus,

when        she    attempted        to     file     a       QDRO   in    2010,    her    effort       was

opposed by Masters and ultimately denied by the Waukesha County

Circuit Court.1

       ¶47        The    basis      for       the   circuit          court's     denial    was       Wis.

Stat. § 893.40, which provides:

            Action on judgment or decree; court of record.
       Except as provided in ss. 846.04(2) and (3) and
       893.415, action upon a judgment or decree of a court
       of record of any state or of the United States shall
       be commenced within 20 years after the judgment or
       decree is entered or be barred.
       ¶48        The issue presented in this case is whether there is

any reasonable basis for Johnson to avoid the apparent effect of

this statute.            I conclude that there is not.

        1
            Kathryn W. Foster, Judge.

                                                        1
                                                                            No.    2011AP1240.dtp


      ¶49    The majority takes the opposite view.                          It asserts that

it   would      be   an   absurdity         to       apply     the    statute        under    the

circumstances        of   this      case.            Justice       Ziegler's        concurrence

raises the stakes even more and pleads with the legislature to

change    the    law.     Inasmuch      as           I   believe     the    circuit     court's

decision was correct, the majority's analysis is flawed, and

Justice Ziegler's concurrence is mistaken because the statute is

reasonable, I respectfully dissent.

                                             I

     ¶50     The     facts    and    circumstances             heavily        influence       the

outcome of this case.

     ¶51     Congress        approved       the           Employee    Retirement         Income

Security     Act     of   1974   (ERISA)             to    protect     the        interests   of

participants in the growing number of employee benefit plans in

the private sector throughout the United States.                              See 29 U.S.C.

§ 1001.      Ten years later, Congress amended ERISA by enactment of

the Retirement Equity Act of 1984.                         See Pub. L. No. 98-397, 98

Stat. 1426 (1984).            The purpose of the Retirement Equity Act,
which created the "qualified domestic relations order" in 29

U.S.C. § 1056(d), was to facilitate the orderly assignment or

alienation of all or a portion of a person's employee benefit

plan to an "alternate payee" as the result of a court order or

judgment relating to child support, alimony, or marital property

rights stemming from divorce.                See S. Rep. No. 98-575, at 3, 18-

21 (1984) reprinted in 1984 U.S.C.C.A.N. 2547, 2549, 2564-2567.

      ¶52    As the majority opinion notes, however, "ERISA does

not apply to government retirement plans."                                 Majority op., ¶6

                                                 2
                                                                   No.    2011AP1240.dtp


(citing 29 U.S.C.A. § 1003(b)(1)); see also Lindsey v. Lindsey,

140    Wis. 2d 684,         690,     412   N.W.2d 132        (Ct.        App.   1987).

Consequently,       a     court's     authority    to    assign      or     divide    a

government pension in Wisconsin was and is subject to Wisconsin

statute.

       ¶53    On   July    20,     1989——the   date     of   the    Johnson/Masters

divorce——Wis. Stat. § 40.08 read in part:

            Benefit    assignments   and    corrections.   (1)
       Exemptions.   The benefits payable to, or other rights
       and   interests    of   any  member,    beneficiary  or
       distributee of any estate under any of the benefit
       plans administered by the [Department of Employee
       Trust Funds (the department)], including insurance
       payments, shall be exempt from any tax levied by the
       state or any subdivision of the state and shall not be
       assignable, either in law or equity, or be subject to
       execution, levy, attachment, garnishment or other
       legal process except as specifically provided in this
       section.     The exemption from taxation under this
       section shall not apply with respect to any tax on
       income.
Wis. Stat. § 40.08(1) (1987-88) (emphasis added).                         Compare id.

with   Wis.    Stat.      § 66.81    (1987-88)    (prohibiting       the     taxation,

execution, and assignment of pension benefits in the retirement

system of first class cities).

       ¶54    However, the statute continued:

            (3) Waivers.    Any participant, beneficiary or
       distributee of any estate may waive, absolutely and
       without right of reconsideration or recovery, the
       right to or the payment of all or any portion of any
       benefit payable or to become payable under this
       chapter.   The waiver shall be effective on the first
       day of the 2nd month commencing after it is received
       by the department or on the date specified in the
       waiver if later.
Wis. Stat. § 40.08(3) (1987–88) (emphasis added).

                                           3
                                                                 No.   2011AP1240.dtp


      ¶55    The gist of these statutory provisions was clear.                     In

July 1989 the benefits payable to a member of the WRS were not

assignable     in    a   divorce      proceeding      except    as     specifically

provided in Wis. Stat. § 40.08.               Section 40.08 did not authorize

any   "qualified     domestic     relations      order."       It    did,    however,

permit a member to waive payment of a portion of his or her

pension by filing an appropriate waiver with the department.

      ¶56    The    legislature    changed      the    law    approximately      nine

months later.       See 1989 Wis. Act 218.            Newly created Wis. Stat.

§ 40.08(1m) provided that a participant's accumulated rights and

benefits in the WRS shall be divided by "a qualified domestic

relations order" but "only if the order provides for a division

as specified in this subsection."               Wis. Stat. § 40.08(1m) (1989–

90) (emphasis added).           The specifications in § 40.08(1m), plus

the new definition of "qualified domestic relations order" in

Wis. Stat. § 40.02(48m), take up more than a full page of the

1989-90     statutes.         Wisconsin   Stat.       § 40.08(1m)(j)        pointedly

stated: "This subsection applies to qualified domestic relations
orders     issued   on   or   after   April     28,   1990,    that    provide   for

divisions of the accumulated rights and benefits of participants

whose marriages have been terminated by a court on or after

April 28, 1990."

      ¶57    In short, the 1990 changes in the statutes did not

apply to the Johnson/Masters divorce.

      ¶58    In 1998 the legislature amended the statutes again2 to

recognize qualified domestic relations orders issued on or after

      2
          See 1997 Wis. Act 125.

                                          4
                                                             No.   2011AP1240.dtp


January 1, 1982, Wis. Stat. § 40.08(1m)(j) (1997–98), and to

permit the revision or modification of judgments entered on or

after January 1, 1982, to provide for payments under a qualified

domestic relations order.          Wis. Stat. § 40.08(1m)(k)2. (1997–

98).    These changes permitted Johnson to take the step outlined

in the marital property agreement to secure her rights.

       ¶59    The plain truth is that the property division-pension

section of the Johnson/Masters marital property agreement was

not valid on the date of the 1989 divorce because the law did

not then permit a court to divide Michael Masters' WRS pension.

If the law had not changed in 1998, the 1989 property division-

pension section of the marital property agreement might never

have   been    eligible   to   become    valid,   although    it    was   always

possible for Patricia Johnson to secure Masters' written waiver

under Wis. Stat. § 40.08(3).

       ¶60    If the 1998 law had been in place on July 20, 1989,

Johnson would still have been required by the marital property

agreement, the judgment incorporating that agreement, and the
applicable statutes to submit a QDRO to the department to secure

her rights.

       ¶61    Johnson had 20 years to obtain a QDRO and submit it to

the department or at least file it with the court.                 She did not

do so, even though such a QDRO was specifically authorized by

law in her situation from May 2, 1998, through July 20, 2009——

that is, for more than 11 years——and even though she signed a

draft QDRO after the divorce.           There is no evidence that Johnson

sought a court order or contempt to force Masters to comply with

                                        5
                                                               No.   2011AP1240.dtp


the marital property agreement by signing the draft QDRO or a

revised QDRO.

      ¶62   Johnson also had 20 years to obtain a written waiver

from Masters, either voluntarily or through court action.                      She

did not do so, even though the Waukesha County Circuit Court

held post-divorce hearings in the Johnson/Masters case in 1995

and 1996 and issued orders in the case in 1995, 1996, and 2004.

      ¶63   In addition, Johnson had almost nine years to seek to

amend the judgment to obtain the cash equivalent of her pension

share in lieu of a QDRO, during the period when a QDRO was not

authorized by statute in her case.                After that time, she could

have pursued multiple options, including an effort to secure the

cash equivalent.

      ¶64   Johnson's interest in a portion of Masters' pension

was   always   contingent      upon   her   taking     steps    to   secure    and

enforce her rights.       She did not do so until more than 20 years

after the divorce judgment.

      ¶65   In pointing the finger at Johnson for failing to take
the   required   action   to    protect     her    rights,     one   is   actually

pointing at her divorce counsel.3             There is no allegation by

Johnson that Masters' divorce counsel failed to do something

that he committed to do.         This case, then, reveals more than 20

years of unexplained inaction and neglect.                   It is hardly an

"absurdity" for a court to take that inaction into account.

      3
       See Scott L. Dennison, Valuing Retirement Benefits in
Divorce, Wis. Lawyer, June 2012, at 10–11 ("Lawyers who work on
divorces that involve QDROs have been magnets for malpractice
suits, because a poorly designed QDRO can be a real disaster.").

                                       6
                                                                        No.   2011AP1240.dtp


                                          II

      ¶66    Johnson's        inaction        over      a       20-year       period        is

significant because of Wis. Stat. § 893.40, the 20-year statute

of repose.        The statute provides, in part, that "action upon a

judgment or decree of a court of record of any state or of the

United    States     shall    be   commenced        within      20   years      after   the

judgment     or    decree     is   entered     or    be     barred."          Wis.    Stat.

§ 893.40 (emphasis added).

      ¶67    The history and purpose of Wis. Stat. § 893.40 deserve

discussion.        The court also should discuss Johnson's attempt to

get around the statute by arguing that her effort to secure a

QDRO was not "an action upon a judgment."

      ¶68    Wisconsin Stat. § 893.40 became law in 1980.                         See 1979

Wis. Act 323.         It combined and modified the provisions of two

repealed statutes, Wis. Stat. §§ 893.16(1) and 893.18(1).                               The

former statute had provided a 20-year statute of limitations:

"Within     20    years.      Within     20    years:       (1)    An    action      upon   a

judgment or decree of any court of record of this state or of
the   United      States     sitting   within        this    state."          Wis.    Stat.

§ 893.16(1) (1977-78).

      ¶69    The     latter    statute    had    only       a     10-year     statute       of

limitations: "Within 10 years.                Within 10 years: (1) An action

upon a judgment or decree of any court of record of any other

state or territory of the United States or of any court of the

United      States    sitting      without      this        state."           Wis.    Stat.

§ 893.18(1) (1977-78).



                                          7
                                                                      No.    2011AP1240.dtp


     ¶70    The new Wis. Stat. § 893.40 established a uniform 20-

year time limit for an "action upon a judgment or decree" and

specified that the 20 years began to run when the "judgment or

decree is entered."         It added that a failure to timely commence

action   would    "bar[]"     future   action     upon      a    judgment.           These

changes transformed two statutes of limitation into a single

statute of repose.

    ¶71     "A    statute    of    repose . . . limits               the    time    period

within which an action may be brought based on the date of an

act or omission."          Hamilton v. Hamilton, 2003 WI 50, ¶29, 261

Wis. 2d 458,      661    N.W.2d 832.        The     "act"       that        triggers   the

statute of repose in Wis. Stat. § 893.40 is the entry of a

judgment.        See    generally,   Daniel    J.    La     Fave,          Remedying   the

Confusion Between Statutes of Limitation and Statutes of Repose

in Wisconsin——A Conceptual Guide, 88 Marq. L. Rev. 927 (2005).

     ¶72    Limitation       periods   in     statutes          of    limitation       and

statutes    of   repose     are   "legislative      pronouncements             of   policy

barring actions for various policy reasons regardless of the
merit of the action."         Hamilton, 261 Wis. 2d 458, ¶42 (citations

omitted).    These statutes are meant to "ensure prompt litigation

of claims and to protect defendants from fraudulent or stale

claims brought after memories have faded or evidence has been

lost."     Korkow v. Gen. Cas. Co. of Wis., 117 Wis. 2d 187, 198,

344 N.W.2d 108 (1984).        As this court explained in Aicher:

     Statutes   of  limitation  and   statutes  of   repose
     represent legislative policy decisions that dictate
     when   the  courthouse doors   close for particular
     litigants. . . .   [These statutes] "are found and
     approved in all systems of enlightened jurisprudence,"

                                        8
                                                                  No.    2011AP1240.dtp

     [and] articulate the principle that it is more just to
     put the adversary on notice to defend a claim within a
     specified period of time than to permit unlimited
     prosecution of stale claims.
Aicher     v.    Wis.    Patients   Comp.       Fund,   2000     WI   98,    ¶27,   237

Wis. 2d 99, 613 N.W.2d 849 (quoting United States v. Kubrick,

444 U.S. 111, 117 (1979)).

     ¶73        Wisconsin Stat. § 893.40 has no exception for family

law cases except for actions to collect child support payments.

See Wis. Stat. § 893.415.               This specific exception was created

following       the   court's    decision       in   Hamilton,    which      discussed
§ 893.40 extensively.4

     ¶74        The court in Hamilton said Wis. Stat. § 893.40 was

"plain and unambiguous" as to the act that begins the 20-year

period.     Hamilton, 261 Wis. 2d 458, ¶30.                   This means that the

statute is not triggered by the subsequent "accrual" of a right,

as   the        majority     mistakenly        suggests.         Thus,      Hamilton's

interpretation          of   § 893.40    should      decide    this      case   unless

Johnson's effort to secure a QDRO in 2010 was not an "action

upon a judgment."
     ¶75        This possibility is raised in the certification from

the court of appeals and argued by Johnson in this review.

     ¶76        The argument is grounded in the text of Wis. Stat.

§ 893.02:

          Except as provided in s. 893.415(3), an action is
     commenced, within the meaning of any provision of law
     which limits the time for the commencement of an
     action, as to each defendant, when the summons naming
     4
       Wisconsin Stat. § 893.415(1) defines "action" as "any
proceeding brought before a court" to collect child or family
support.

                                           9
                                                                            No.    2011AP1240.dtp

       the defendant and the complaint are filed with the
       court, but no action shall be deemed commenced as to
       any defendant upon whom service of authenticated
       copies of the summons and complaint has not been made
       within 90 days after filing.
Wis. Stat. § 893.02 (emphasis added).

       ¶77    The certification states that an "argument could be

made   that     an   'action'       is    a     proceeding          which   is     begun             by    a

summons and complaint and that an action upon a judgment or

decree of a court of record therefore means any judgment that

was commenced by a summons and complaint."                              The certification
added that this was part of the rationale used in Lueck v.
Lueck, No. 2011AP1195, unpublished slip op. (Wis. Ct. App. Oct.

12, 2011), review denied (Mar. 2, 2012), where the court of

appeals      said    Wis.    Stat.       § 893.40       did    not    pertain          to    actions

begun by a motion and order to show cause because motions and

orders to show cause "are not a summons and complaint."                                              Id.,

¶9.

       ¶78    The argument that Johnson's effort to secure a QDRO in

2010 was not an action upon a judgment must be addressed.

       ¶79    Wisconsin Stat. §§ 893.02 and 893.40 both have their
origins in early Wisconsin law.                      Revised Wisconsin Stat. Chapter

138, § 15 (1858), provided: "Within twenty years:——1. An action

upon a judgment or decree of any court of record of this state."

       ¶80    Section 27 of the same chapter then provided, in part,

that    "[a]n       action       shall     be        deemed    commenced          as        to       each

defendant,      when    the      summons        is    served    on     him,       or    on       a    co-

defendant, who is            a    joint contractor             or    otherwise          united            in




                                                10
                                                                     No.       2011AP1240.dtp


interest with him."           Wis. Stat. ch. 138, § 27 (1858) (emphasis

added).

     ¶81     These      two   statutes       were      accompanied        by     two      other

provisions    of     note.     Section       2    of    Chapter     122    of       the    1858

Revised    Statutes      provided    that,        "[a]n    action    is        an    ordinary

proceeding in a court of justice, by which a party prosecutes

another party for the enforcement or protection of a right, the

redress or prevention of a wrong, or the prevention of a public

offense."    Wis. Stat. ch. 122, § 2 (1858).

     ¶82    Section 10 of Chapter 122 provided:

          No action shall be brought upon a judgment
     rendered in any court of this state, except a court of
     the justice of the peace, between the same parties,
     without leave of the court, for a good cause shown, on
     notice to the adverse party; and no action on a
     judgment rendered by a justice of the peace shall be
     brought in the same county within two years after its
     rendition, except in cases of his death, resignation,
     incapacity to act, or removal from the county, or that
     the   process  was  not   personally  served   on  the
     defendant, or on all the defendants, or in case of the
     death of some of the parties, or when the docket or
     record of such judgment is or shall have been lost or
     destroyed.
Wis. Stat. ch. 122, § 10 (1858) (emphasis added).

     ¶83    These statutes suggest that "action" was an "ordinary
proceeding,"       as   opposed     to   a       special    proceeding,             and   that

sometimes this "action" required a "summons" and sometimes it
required "notice to the adverse party."

    ¶84     The essence of Wis. Stat. § 893.40 appears again in
chapter 177, section 4220 of the 1878 Revised Statutes: "Within

twenty years: 1. An action upon a judgment or decree of any



                                         11
                                                                   No.    2011AP1240.dtp


court of record of this state, or of the United States, sitting

within this state."

     ¶85     The    forerunner       of      present      Wis.     Stat.      § 893.02

(regarding    summons       and   complaint)        was   found   in     Chapter    177,

Section 4239 of the 1878 Revised Statutes:

     An action shall be deemed commenced, within the
     meaning of any provision of law which limits the time
     for the commencement of an action, as to each
     defendant, when the summons is served on him, or on a
     codefendant who is a joint contractor or otherwise
     united in interest with him.
Wis. Stat. ch. 177, § 4239 (1878) (emphasis added).

     ¶86    The     1878     Revised      Statutes        also     maintained        the

definition of "action" in the new Section 2595 of Chapter 118

but eliminated the second reference to "action upon a judgment"

that had appeared in Chapter 122, Section 10 of the 1858 Revised

Statutes.

     ¶87    By     1925    the    language     in   Section   4220       of   the   1878

Revised      Statutes       appeared         without      change         (except    for

punctuation) in Wis. Stat. § 330.16 (1925).5                       The language of

Section 4239 of the 1878 Revised Statutes appeared in Wis. Stat.

§ 330.39 (1925).          The definition of "action" from 1878 continued

in Wis. Stat. § 260.03 (1925).

     ¶88    Sections        330.16    and      330.18      were     renumbered       as

§§ 893.16 and 893.18 in § 2, ch. 66, Laws of 1965.                            Wisconsin

Stat. § 330.39 was renumbered § 893.39 in the same chapter.



     5
       The 10-year statute of limitations for "action upon a
judgment . . . of any court of record of any other state"
appeared in Wis. Stat. § 330.18(1) (1925).

                                          12
                                                                    No.    2011AP1240.dtp


        ¶89    In 1975 the supreme court adopted the Wisconsin Rules

of    Civil     Procedure,       effective     January       1,    1976.        See   67

Wis. 2d 585,       585-784       (1975).      Wisconsin      Stat.        § 893.39    was

amended       "to conform to the           proposed   mode    of    commencement      of

action under s. 801.02(1)."            Id. at 770–71.        It read:

           Action, when commenced.      An action shall be
      deemed commenced, within the meaning of any provision
      of law which limits the time for the commencement of
      an action, as to each defendant, when the summons
      naming him as defendant and the complaint are filed
      with the court, but no action shall be deemed
      commenced as to any defendant upon whom service of
      authenticated copies of the summons and complaint has
      not been made within 60 days after filing.
Id. at 770-71 (emphasis added).
        ¶90    This    amended    section    was   repealed       and     recreated    as

Wis. Stat. § 893.02 by Section 28, Chapter 323, Laws of 1979,

the   chapter     that    repealed     and     recreated      all    of     Wis.   Stat.

Chapter 893.          Chapter 323 is the same chapter that created Wis.

Stat. § 893.40, the statute of repose at issue in this case.

      ¶91      In sum, Johnson's argument depends in large part on

whether the supreme court redefined "action upon a judgment"

when it added "complaint" to Wis. Stat. § 893.39 in 1975.
      ¶92      There are several cases prior to the 1975 change that

suggest       "action    upon    a   judgment"     was   broadly          construed   to
include "actions" beyond the filing of a new lawsuit.

      ¶93      In Coon v. Seymour, 71 Wis. 340, 345-46, 37 N.W. 243
(1888), the court explained "action upon a judgment."                         The court

said:

      We do not understand this [case] to be an action upon
      a judgment which may be brought within twenty years
      after the cause of action accrued, within the meaning
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      of sec. 4220, R.S.   Such an action is to confirm and
      enforce a judgment.     This, on the contrary, is an
      action to avoid and set aside a judgment for alleged
      causes existing outside of the record.
Id.   (emphasis   added).       An   action   to   "confirm    and    enforce    a

judgment" is not a new lawsuit.

      ¶94   In Brown v. Hopkins, 101 Wis. 498, 77 N.W. 899 (1899),

the   court   discussed     a   judgment      of   foreclosure       entered    on

December 10, 1877, and an execution issued upon that judgment on

December 3, 1897, and a subsequent levy on real estate, both

within the 20-year statute of limitations.            The court said:

           The question is whether an execution which is
      duly issued and partially executed by levying upon
      property within twenty years from the entry of a
      judgment expires at the end of the twenty-year period,
      or whether it remains valid and effective, so that the
      property so levied upon may be thereafter sold and
      applied to satisfy the command of the writ.         Our
      statute provides (R.S. 1878, sec. 4220) that a
      judgment of a court of record outlaws at the end of
      twenty years from the date of its rendition; and,
      further (R.S. 1878, sec. 2968), that "in no case shall
      an execution be issued, or any proceedings had on any
      judgment, after twenty years from the time of the
      rendition thereof."    It is very evident from this
      latter section that a valid execution may be issued at
      any time up to the last day of the twenty years; and
      the question is whether, when so issued, it is
      rendered void by the limitation upon the judgment.
      Our statute requires no order of confirmation of the
      sheriff's sale, nor any other proceeding by the court,
      to perfect the purchaser's title.           No further
      proceedings upon the judgment are contemplated or
      required by the statute. The sale of the property by
      the sheriff, and the payment or application of the
      proceeds, are simply the carrying out of the commands
      of his writ, which, when issued, was perfectly valid.
Brown, 101 Wis. at 499-500.




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       ¶95       The Brown case shows that "execution" upon a judgment

was required within the 20-year period.                          "Execution" was not a

new lawsuit.

       ¶96       In Zellmer v. Sharlein, 1 Wis. 2d 46, 82 N.W.2d 891

(1957),      a    daughter         filed    a   claim    against         her     late     father's

estate.          When the daughter's mother and father were divorced,

the    divorce          judgment      had       incorporated         a     stipulation          that

required the father to pay the premiums on an insurance policy

on his life for the benefit of the daughter.                                   Id. at 47.        The

father failed to pay the premiums.                        Id. at 48.                 As a result,

when   the       father      died    and    left      nothing    for       the       daughter    (on

grounds      that       he   had    provided      for   her     by       the    life     insurance

policy), she filed and litigated a claim against his estate.

Id.    The court rejected a defense that the claim was barred by a

six-year statute of limitations for breach of contract.                                     Id. at

52.    It concluded that the claim was within the 20-year statute

of limitations for a claim upon a judgment, namely, the divorce

judgment.         Id.    The claim did not constitute a new lawsuit.
       ¶97       In Schafer v. Wegner, 78 Wis. 2d 127, 254 N.W.2d 193

(1977), the plaintiff commenced an action to recover personal

property awarded to her in a divorce judgment in 1957.                                    The suit

was commenced in 1973, within the 20 years set out in Wis. Stat.

§ 893.16(1) (1971-72).               Id. at 130–31.           The court observed that,

"[t]he household furniture was awarded to the appellant in the

divorce decree and the statute of limitations concerning actions

based on that award is twenty years."                      Id. at 132.               Although the

plaintiff's suit was timely filed under the statute, this court

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dismissed it on grounds of laches.                 Id.     There is no evidence in

the   opinion      that     the    court     would       have    viewed       a   "motion"

different from          a new suit     under       the   statute      of     limitations.

Rather, the court cut off the plaintiff after a shorter time

period.

      ¶98    Coon, Brown, Zellmer, and Schafer suggest that courts

have viewed "action upon a judgment" broadly, not restricting an

"action" to a proceeding that required a summons and complaint.

The question here is whether that view changed in 1975 when the

court modified the language in Wis. Stat. § 893.39 (1973-74).

      ¶99    There are at least four reasons why this court should

not adopt any theory that Wis. Stat. § 893.40's time limitation

applies     to     only     proceedings      commenced          by    a     summons    and

complaint.

      ¶100 First, this theory depends upon a conclusion that this

court contravened its rulemaking authority when it amended Wis.

Stat. § 893.39 in 1975.

      ¶101 In      1975     Wis.    Stat.        § 251.18,      the    predecessor      to

present     Wis.        Stat.    § 751.12,       contained      the        same   critical

language found in present law, namely, with respect to court-

made rules of pleading, practice, and procedure, "Such rules

shall not abridge, enlarge or modify the substantive rights of

any litigant."            If the court's 1975 amendment to Wis. Stat.

§ 893.39 (1973-74) narrowed the statute of limitations so that

it    applied      to     only    proceedings       initiated         by     summons   and

complaint——thereby removing the limitation on motions, orders to

show cause, claims, executions, and the like——the court would

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have violated § 251.18 because it clearly would have abridged,

enlarged, or modified the substantive rights of persons affected

by judgments.

      ¶102 "In Wisconsin, unlike many states, the running of the

statute of limitations extinguishes the right as well as the

remedy; if the statute has run, the cause of action no longer

exists."    Schafer,    78   Wis. 2d at    134.       "The   limitation    of

actions is a right as well as a remedy, extinguishing the right

on one side and creating a right on the other, which is as of

high dignity as regards judicial remedies as any other right and

it is a right which enjoys constitutional protection."              Maryland

Cas. Co. v. Beleznay, 245 Wis. 390, 393, 14 N.W.2d 177 (1944)

(citations omitted).

      ¶103 Second, an interpretation that Wis. Stat. § 893.40 is

inapplicable    to   motions,   orders    to   show    cause,    and   other

proceedings not requiring a "complaint" would mean, in effect,

that there would be no time period for a party to bring certain

kinds of actions upon a judgment.         This would effectively remove
the   limitation,    creating   tremendous     uncertainty,     because    it

would be replaced with the far-less-certain doctrine of laches.

See Schafer, 78 Wis. 2d at 132.

      ¶104 It is hard to imagine that this court would purposely

gut a longstanding statute of limitations at the very time it

was speaking of the constitutional significance of such statutes

in court decisions.

      ¶105 Third, an interpretation that Wis. Stat. § 893.40 is

inapplicable    to   motions,   orders    to   show    cause,    and   other

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proceedings not requiring a complaint could have serious adverse

consequences      outside      family         law.         Masters         argues         that    the

principle stated in the Lueck decision would leave many post-

judgment     collection       actions         without       any       time     limitation             to

commencement.      He points to earnings garnishments and executions

as examples.       In the absence of a specific statute limiting a

particular enforcement mechanism upon a judgment, this concern

is well founded.

     ¶106 Fourth,       the       legislature            concluded         that         Wis.    Stat.

§ 893.40    applied     to    a    broad      array        of    "proceedings"             when       it

created    Wis.    Stat.      § 893.415            after        the   Hamilton            decision.

Subsection (1) defines "action"                     in    the     section          to    mean     "any

proceeding     brought       before       a    court,       whether         commenced            by    a

petition, motion, order to show cause, or other pleading."                                       This

broad     definition      would       be       superfluous            if      § 893.40           were

inapplicable to anything other than a proceeding commenced with

a summons and complaint.

     ¶107 There        are    various         ways        to     interpret              Wis.    Stat.
§§ 893.40 and 893.02.             The latter section provides a surefire

way of acting "upon a judgment" before a statute of limitations

or a statute of repose has run.                    See Lak v. Richardson-Merrell,

Inc., 100 Wis. 2d 641, 649, 302 N.W.2d 483 (1981).                                      Whether the

wording of § 893.02 was expected or intended to curtail what an

"action"    was   is    much       more       speculative.             The         enactment          of

§ 893.40, on      the other        hand,       signified          a   clear        objective:         a

statute of repose eliminated issues about accrual because the

statute begins to run at a definite time, based on an event, not

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an indefinite time based upon the accrual of a right.                                                The

majority        opinion       has        the        effect        of      disregarding               the

legislature's clearly stated objective.

                                                III

       ¶108 Justice         Ziegler's          concurrence            presents       a    different

problem.           Justice     Ziegler         writes         that      some        family      court

judgments      and    orders    may      necessitate             jurisdiction            for    longer

than   20     years,    such    as       the       payment       of    retirement         benefits,

maintenance issues, or life insurance proceeds.                                      In my view,

courts    will      employ    reason         and        common    sense    in       dealing         with

questions about the enforcement of judgments.

       ¶109 For instance, some judgments, like the Johnson/Masters

divorce       judgment,      require      some          additional       step       or     steps     to

secure    a    right.        Filing      a     QDRO       protects      the     rights         of    the

"alternate         payee"    with     respect            to   both      public       and       private

retirement benefits.             Enforcing a properly filed QDRO is not

barred by Wis. Stat. § 893.40.

       ¶110 Other judgments are not only final but also complete,
in the sense that no additional steps are required by a party

seeking to enforce a right.                        These in essence are continuing

judgments.

       ¶111 For instance, a judgment that requires an insured to

pay    premiums      and     designate         a    specific          beneficiary          needs     no

additional action by the beneficiary.                             The beneficiary has a

property right and may enforce that right against the insured or

the insured's estate when the insured violates that right.                                          See

Richards      v.    Richards,       58   Wis. 2d 290,             298–99,      206       N.W.2d 134

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(1973).       In   other       words,       the    insured    may     not    change       the

beneficiary more than 20 years after the entry of the judgment

and expect that he or she has not created a new cause of action

for the original beneficiary.                Glassner v. DOR, 115 Wis. 2d 168,

181, 340 N.W.2d 223 (Ct. App. 1983).

       ¶112 As another example, in Ashby v. Ashby, 174 Wis. 549,

183    N.W. 965     (1921),        this     court    said     that     alimony      was    a

"continuing     judgment,          always    subject    to    modification       by       the

court during the life of the parties," and thus a statute of

limitations     did      not      apply.      Ashby,    174    Wis. at      554.6         The

suggestion that          a   party    could simply       stop    paying      alimony       or

maintenance after 20 years, as a result of Wis. Stat. § 893.40,

is not reasonable or realistic because of the continuing nature

of    the   obligation       to    pay.      Cf.    Rintelman    v.    Rintelman,         118

Wis. 2d 587,       348       N.W.2d 498      (1984);    Estate        of    Barnes,       170

Wis. 2d 1, 12–13, 486 N.W.2d 575 (Ct. App. 1992).

       ¶113 A party can protect its interests in a judgment by

timely action and by careful wording of the judgment.                          Wisconsin
Stat. § 893.40 is designed to discourage people from sleeping on

their rights.         The statute is not likely to be used against

people who are wide awake and conscious of the need to assert

their interests.

       ¶114 For the foregoing reasons, I respectfully dissent.

       6
       However, because Mrs. Ashby waited so long to seek back
payments for alimony, she could not get everything that her ex-
husband owed her.    Ashby v. Ashby, 174 Wis. 549, 555–56, 183
N.W. 965 (1921).   Fully enforcing the judgment after 44 years
was not fair to the ex-husband, since he no longer had any way
to earn money. Id.

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