Retirement vs. Disability

By Attorney Gregg Herman
September 5, 2012

This morning, the Wisconsin Court of Appeals issued its decision in Dickau v. Dickau, 2011AP1516, which is recommended for publication.

Two things are worth mentioning about this decision.

The first is that this is the second recent case about the interrelationship between retirement and disability.  The first, Topolski v. Topolski, was decided by the Supreme Court in July, 2011.  At the time, I questioned why the Supreme Court granted review on a case where the facts seemed rather unique.  I mean, how often is there an interplay between retirement pay and disability pay?  In addition, the court of appeals decision, which was affirmed by the Supreme Court, seemed to be perfectly fine when it reversed the trial court and ordered that, despite a sloppy Marital Settlement Agreement, the wife would get exactly what she bargained for.

Now, a second case comes along regarding the same interplay.  Could I be wrong and these cases are more common than I thought?  Never!  Or, at least, I’ll never admit publicly that I was wrong!

OK, seriously, Dickau’s facts are even more unique (yeah, I know that’s an oxymoron…) that those in Topolski.  In Dickau, Glen was to have started paying his ex-wife a portion of his disability pay when it became retirement pay.  Instead, he was one of the plaintiffs in a lawsuit against the City of Milwaukee which, according to the court of appeals, allowed Glen to receive lifetime duty disability benefits, rather than receive ERS pension payments.

Glen apparently felt that not only did he have no obligation to inform his ex-wife about the results of the lawsuit, but now that the payments changed name from “retirement” to “disability,” he had no obligation to pay her.  The appellate court was not amused:

We conclude, as did the circuit court, that as a matter of law, Georgianne’ delay in bringing the action to enforce the divorce judgment was reasonable in the context of Glen’s lengthy and intentional failure to tell Georgianne of the significant change he had caused in his financial circumstances.

It’s not that I’m not willing to admit a mistake, but I still question why the Supreme Court thought that the Topolski case presented facts to common to warrant review and I now question why the court of appeals feels that Dickau is worth publicizing.  This seems a perfect case for a “citeable,” but not published decision.

The second interesting part of the decision is more fun.  Here is a quote from Glen’s testimony before the Circuit Court concerning why he didn’t feel under an obligation to tell his ex-wife about the lawsuit:

“I wanted it to be a surprise like when she went for my 40 percent and when I asked her about it, her answer to me was, [b]ecause I’m entitled to it.  Well, I was entitled to sex at home.  I was entitled to a clean house.  I didn’t get either, but she was entitled to my pension.  That just irked me.”

Hey, Glen, was this really smart testimony?  Did you really think that Judge Lamelas (or any judge, for that matter) would find that because your ex-wife denied you sex, you didn’t have to tell her that she would not get any portion of your retirement?

I’m not sure that Glen would have prevailed under any circumstances, but I sure hope his lawyer did not recommend – or even approve – that line of reasoning.  This is why good lawyers prepare witnesses!  My guess is that with better prep, maybe Glen could have found a better excuse, such as that the lawsuit against Milwaukee County was a public record and his ex-wife could easily have discovered it on her own.

As I said, I doubt it would have made a difference.  But, it would sure have had a better chance than the excuses given!

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.