Disability Payments, a Bitter Ex and Lessons Learned

By Attorney Gregg Herman
September 25, 2012

Some times the lessons from caselaw could not be more obvious.

A recent decision from the Wisconsin Court of Appeals, Dickau v. Dickau, No. 2011AP1516, provides such a teachable moment.

When Glen Dickau was asked at trial why he didn’t feel he was under an obligation to tell his ex-wife about benefits he was receiving as a result of an appeal unrelated to his divorce, contravening the marital settlement agreement, Dickau testified:

“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.”

Much as the lack of sex and a clean house may have irked him, did Dickau really think that Milwaukee County Circuit Court Judge Elsa Lamelas, or the District I Court of Appeals, would find that a compelling reason to avoid his obligation to his ex-wife? (If so, it would indeed make the practice of family law more entertaining …).

The lesson? Make sure you discuss potential testimony with your client before trial. And, when doing so, you might want to suggest that lack of sex is not a really good excuse for your client’s behavior.

The Larger Lesson

The central holding of Dickau took me back to July 2011, when the Wisconsin Supreme Court held in Topolski v. Topolski that a former husband had to commence retirement payments to his ex-wife from his disability pension.

The high court held that the parties’ agreement required that payment start when the former husband reached the age of 62 and that the name of the benefit did not trump the intent of the parties.

While agreeing with the holding, I questioned why the Supreme Court decided that the issue was of sufficient importance to warrant granting review.

Dickau, which the Wisconsin Court of Appeals recommended for publication, has similar import. The appellate court affirmed (except for a minor quibble about interest) Lamelas’ order that likewise refused to allow a right to retirement benefits to be defeated by calling them “disability” payments.

Glen and Georgianne Dickau divorced in 1993. Glen was a city of Milwaukee firefighter who had been receiving disability allowance payments.

At the time of their divorce, the parties anticipated that in October 2001, when Glen reached the age of 57, the city would switch from providing his disability allowance to providing monthly ERS pension benefits. The divorce judgment allocated Glen’s ERS pension benefits between the parties.

In 2001, Glen joined in an appeal of a circuit court decision refusing to expand his disability allowance. That appeal resulted in a Court of Appeals decision allowing Glen to receive lifetime duty disability benefits, rather than ERS pension payments.

In November 2009, Georgianne, finding out for the first time that Glen was collecting payments, brought a motion to enforce the divorce judgment.

Lamelas found that Glen intentionally withheld information pertaining to the effects of the litigation and intentionally attempted to conceal the fact that he would now receive lifetime disability payments. She dismissed Glen’s argument that Georgianne’s claims were untimely, stating that Georgianne attempted to enforce the divorce judgment as soon as she learned of Glen’s intent not to pay her.

The Court of Appeals concluded that Georgianne’s delay in bringing the action to enforce the divorce judgment was reasonable in the context of Glen’s lengthy and intentional failure to tell her of the significant change he had caused in his financial circumstances.

The appellate court further found that the disability benefit payments were a substitute for age-related retirement benefits to which Glen had earlier been entitled. Therefore, the trial court order restored both parties to exactly what they bargained for in the marital settlement agreement.

While the facts of this case are unusual (how often does a divorcing party engage in litigation after the divorce, which changes the nature of the divorce judgment?), the reasoning and Dickau and Topolski will be very helpful to practitioners.

Simply put, things change. And it is impossible to predict all such possible changes in the future.

These decisions allow a trial court the discretion to consider the intentions of the parties and not be handcuffed by technicalities, such as the change in the title of the benefits received.

This article originally appeared in the Wisconsin Law Journal.

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