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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 23, 2003
A party may file with the Supreme Court a
                                                                                      Cornelia G. Clark                                                   petition to review an adverse decision by the
                                                                                      Clerk of Court of Appeals                                           Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                          and RULE 809.62.
                                                                                                                                                          Cir. Ct. No.   89-FA-418
Appeal No.                                                                            02-3249
STATE OF WISCONSIN                                                                                                                                        IN COURT OF APPEALS
                                                                                                                                                          DISTRICT II
IN RE THE MARRIAGE OF:
NORMAN L. ZIMDARS,
PETITIONER-RESPONDENT,
V.
MARGARET A. VANCLEAVE, F/K/A MARGARET A.
ZIMDARS,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Waukesha County:
JACQUELINE R. ERWIN, Judge.   Reversed and cause remanded.
Before Dykman, Vergeront and Higginbotham, JJ.
¶1                                                                                    PER  CURIAM.    Margaret  Van  Cleave  appeals  from  a  domestic
relations order which arranged for distribution of payments from her ex-husband
Norman  Zimdars’  retirement  plan  pursuant  to  a  stipulated  divorce  judgment.




No.   02-3249
Van Cleave  contends  that  the  judgment  was  ambiguous  with  respect  to  the
treatment of interest on her portion of the retirement account and whether her
payments would continue after her death or, in the alternative, that she is entitled
to  relief  from  the  judgment.    We  are  not  persuaded  that  the  judgment  was
ambiguous or improperly construed but conclude the trial court erred in failing to
hold a hearing on whether Van Cleave was entitled to relief from the judgment.
Accordingly, we reverse and remand for further proceedings consistent with this
opinion.
BACKGROUND
¶2                                                                                      Zimdars and Van Cleave were divorced in 1989 following a twenty-
six-year marriage.   The divorce judgment incorporated a stipulation between the
parties drafted by Van Cleave’s attorney.   Paragraph 9 of the stipulation provided:
PENSION:   The   parties   hereto   stipulate   that   the
petitioner’s interest in his Wisconsin State Retirement Fund
account                                                                                 (pension)  would  equal  a  monthly  annuity  of
$1,169.02 for a period of twelve (12) years, if the petitioner
were eligible to retire as of the date of this divorce.   It is
therefore the agreement of the parties that, at the time of his
retirement, the petitioner shall direct the Wisconsin State
Retirement  System  plan  administrator  to  forward  his
checks to the Office of the Clerk of Courts of Waukesha
County, whose offices are located at 515 West Moreland
Blvd., Waukesha, WI 53188.   The Clerk of Courts is then
directed to distribute to the respondent MARGARET A.
ZIMDARS (CLARK) the sum of $584.51 for a period of
up to 144 months.   The remaining balance of said checks
shall  be  distributed  to  the  petitioner  NORMAN  L.
ZIMDARS.   All payments made herein shall be construed
as Section 71 Payments under the Internal Revenue Code
and  shall  be  tax  deductible  by  the  petitioner  and  tax
includable to the respondent.
In the event that the petitioner dies before all 144 payments
are made to the respondent, this obligation shall terminate
and respondent shall be entitled to one-half any lump sum
payment  due  to  the  petitioner  through  this  Plan.    The
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No.   02-3249
balance of any lump sum payment shall be awarded to the
petitioner.
¶3                                                                                          In  2001, in anticipation of retirement, Zimdars asked the court to
approve a domestic relations order directing that the Clerk of Courts distribute a
monthly payment of $584.51 from Zimdars’ check to Van Cleave for a period not
to exceed 144 months.   The proposed order further specified that the payments
would cease upon Van Cleave’s death; that the payments would continue after
Zimdars’ death if there was a continued annuity; and that if the annuity was
discontinued after Zimdars’ death, Van Cleave would receive a percentage of any
lump sum death benefit awarded, calculated based on the amount of her fixed sum
divided by the amount of the benefit received by Zimdars in the month preceding
his  death,  but  in  no  event  greater  than  the  amount  Van  Cleave  would  have
received  by multiplying  her  fixed monthly amount by the  number  of  months
remaining in the stream of 144 payments.
¶4                                                                                          In response, Van Cleave asked the trial court to either construe the
divorce  judgment  to  allow  entry  of  a  Qualified  Domestic  Relations  Order
awarding her a 50% interest in Zimdars’ pension plan as of the date of divorce, or
to grant her relief from the judgment under WIS. STAT. § 806.07(1)(h) (2000-01) 1
by entering such an order.    The trial court denied Van Cleave’s motions and
entered a domestic relations order in line with Zimdars’ request, except that the
amount of the lump sum payment to be made to Van Cleave in the event of
Zimdars’ death would be 50 percent.
1  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise
noted.
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No.   02-3249
DISCUSSION
Terms of the Divorce Judgment
¶5                                                                                     The  provisions  of  a  divorce  judgment  relating  to  the  property
division are not subject to revision or modification.   WIS. STAT. § 767.32(1)(a).
Ambiguities, however, may be clarified if necessary to put the judgment into
effect.   See Washington v. Washington, 2000 WI 47, ¶19, 234 Wis. 2d 689, 611
N.W.2d 261.   Whether a judgment is ambiguous is a question of law subject to
de novo review.  Id. at ¶26.
¶6                                                                                     In Washington, the court held that
a circuit court may construe the final division of property in
a divorce judgment and allocate appreciation and interest
on a pension when the divorce judgment is silent about the
allocation of appreciation and interest on a lump-sum share
awarded to a spouse but not payable immediately.    The
silence about appreciation and interest makes the judgment
ambiguous.
Id. at ¶4.
¶7                                                                                     Van Cleave first argues that the divorce judgment in this case is
ambiguous because, like that in Washington, it is silent as to the allocation of
appreciation and interest in the pension plan.   Unlike the situation in Washington,
however, the judgment here did not merely divide the value of the pension plan as
of the date of the divorce into two lump sum shares, without making any provision
as to how to divide future appreciation and interest.    Rather, it set a specific
monthly amount to be distributed to Van Cleave, with the “remaining balance” to
go to Zimdars.   Regardless, whether Van Cleave realized at the time of the divorce
that the remaining balance would include all the appreciation and interest on the
account, that is the plain meaning of the language used in the judgment.   Because
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No.   02-3249
the judgment unambiguously set Van Cleave’s monthly payment as a specific
dollar amount, we conclude the trial court properly refused to  “construe” the
judgment as dividing the parties’ interest in the account on a percentage basis.
¶8                                                                                        Van Cleave also maintains that the judgment is ambiguous as to
whether her payments would end upon her death.   We agree that the silence of the
stipulation on that issue creates an ambiguity.   However, we are not persuaded that
the trial court’s construction of the judgment to mandate that the payments would
cease  upon  Van  Cleave’s  death  was  unreasonable,  given  that  the  judgment
explicitly provided for “Sec. 71” payments, and § 71 of the federal tax code does
not permit payments following the death of the payee.                                     26 U.S.C. § 71(b)(1)(D).
We  therefore  conclude  the  domestic  relations  order  entered  by  the  court
represented  a  proper  interpretation  of  the  language  of  the  stipulated  divorce
judgment.
Relief from the Divorce Judgment
¶9                                                                                        Our conclusion that the trial court properly construed the amount
and duration of Van Cleave’s monthly payment set forth in the judgment does not
resolve this appeal, however, because Van Cleave also requested relief from the
judgment.    We review the trial court’s decision whether to reopen a judgment
under  the  discretionary  review  standard,  considering  whether  the  trial  court
reasonably considered the facts of record under the proper legal standard.   Nelson
v. Taff, 175 Wis. 2d 178, 187, 499 N.W.2d 685 (Ct. App. 1993).
¶10    WISCONSIN STAT. § 806.07(1) (1999-2000) allows the trial court to
reopen an order or judgment based upon:
(a)  Mistake,  inadvertence,  surprise,  or  excusable
neglect;
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No.   02-3249
(b) Newly-discovered evidence which entitles a party
to a new trial under s. 805.15(3);
(c) Fraud, misrepresentation, or other misconduct of an
adverse party;
(d) The judgment is void;
(e)  The  judgment  has  been  satisfied,  released  or
discharged;
(f) A prior judgment upon which the judgment is based
has been reversed or otherwise vacated;
(g) It is no longer equitable that the judgment should
have prospective application; or
(h)  Any  other  reasons  justifying  relief  from  the
operation of the judgment.
Subsection  (h) should be applied even to allegations which would arguably be
time barred under one of the other sections  “when the petition  … also alleges
extraordinary circumstances that constitute equitable reasons for relief.”   State ex
rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 549-50, 363 N.W.2d 419 (1985).   Factors
relevant to a determination of whether extraordinary circumstances exist include
whether the judgment was the result of the conscientious,
deliberate  and  well-informed  choice  of  the  claimant;
whether the claimant received the effective assistance of
counsel; whether relief is sought from a judgment in which
there has been no judicial consideration of the merits and
the interest of deciding the particular case on the merits
outweighs  the  finality  of  judgments;  whether  there  is  a
meritorious defense to  the claim;  and whether  there  are
intervening circumstances making it inequitable to  grant
relief.
Id.  at                                                                                 552-53.    If  the  allegations  would  be  sufficient,  if  true,  to  constitute
extraordinary circumstances warranting relief, the trial court must grant a hearing
to determine the truth of the allegations before ruling.   Id. at 553.
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No.   02-3249
¶11    Here,  Van  Cleave  asserted  mistake  as  her  grounds  for  relief.2
Essentially, she claimed that the parties’ intent was to divide the pension equally
between them as of the date of the judgment of divorce.   Because the Wisconsin
Retirement System would not accept qualified domestic relations orders at the
time  of  the  divorce,  they  hired  an  accountant  to  assist  in  devising  an  equal
division.   However, Van Cleave contended that the stipulation eventually reached
was allegedly premised on Van Cleave’s mistaken understanding that Zimdars’
benefits would be limited to a term of twelve years and that the portion of his
monthly benefits at time of retirement attributable to his service during the divorce
would be the same as they were at the time of divorce.   Zimdars disputed that the
stipulation had been based on any mistake.
¶12    Because Van Cleave asserted a ground for relief under WIS. STAT.
§ 806.07(1)(a) more than a year after the divorce, she also needed to demonstrate
extraordinary circumstances in order to allow the court to consider her claim under
the catchall provision of  (h).    M.L.B.,  122 Wis. 2d at  549-50.    Discussing the
extraordinary circumstance factors set forth in M.L.B., Van Cleave further claimed
that her stipulation was not the result of a conscientious, deliberate and well-
informed  choice  due  to  her  mistaken  understanding;  that  she  was  denied  the
effective assistance of counsel because counsel never discussed the topic of post-
divorce appreciation and interest with her; that the judgment was not the result of
2  Zimdars complains that Van Cleave did not properly set forth all of her allegations in
her initial motion and affidavit.  However, because waiver is a doctrine of judicial administration,
we retain the authority to address an issue on appeal even if it has not been properly preserved.
Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980).   Here, Margaret addressed the
factors of State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 363 N.W.2d 419 (1985), in her trial
brief, and the court cited M.L.B. in its decision.  We therefore chose to address the M.L.B. factors
as well.
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No.   02-3249
judicial consideration  of  the  merits;  and that the  subsequent appreciation  and
interest of the retirement account resulting in an approximately 80/20 split of the
marital estate following a long-term marriage constituted an intervening factor.
Although the trial court cited M.L.B. for the proposition that Van Cleave needed
to  demonstrate  extraordinary  circumstances,  its  discussion  reveals  that  it  was
operating under a mistaken view of the relevant factors under that case.
¶13    First, the trial court seemed to entirely disregard the parties’ factual
dispute over whether the stipulation had been the result of a mistake, under the
notion that any motion under WIS. STAT. § 806.07(1)(a) was time barred.   As we
have explained above, under M.L.B., allegations that would otherwise be time-
barred under (a) may be brought under (h) upon showing both the grounds and
extraordinary circumstances.   Thus, the question of mistake was relevant not only
as  the  initial  grounds  but  also  as  to  the  extraordinary circumstance  factor  of
whether the stipulation was the result of a well-informed choice.   The trial court
could not properly rule on Van Cleave’s motion for relief from the judgment
without making a finding as to whether the stipulation was the result of a mistake
on Van Cleave’s part and, given the parties’ disagreement on the issue, could not
make such a finding without first holding an evidentiary hearing.
¶14    Second,  the  trial  court  emphasized  that  both  parties  had  been
represented by counsel.   But the factor listed for consideration in M.L.B. is not
merely whether the claimant was represented but whether she received effective
assistance from counsel.   Van Cleave claimed that counsel had never discussed
with her the question of post-judgment appreciation and interest on the pension
fund, which was the primary asset in the divorce and in which she would have had
a  presumptive  entitlement  of  a  half-interest  following  a  long-term  marriage.
However,  the  trial  court  could  not  properly  make  a  finding  on  the  issue  of
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No.   02-3249
ineffective assistance without first holding a hearing to obtain testimony relating
to counsel’s representation.
¶15    Third, the trial court seemed to consider the fact that the judgment
was the result of a voluntary stipulation as weighing against relief.    However,
under M.L.B., the opposite is true.   A judgment which is the result of a stipulation
has not been subjected to judicial consideration on the merits.    It is therefore
entitled to a lesser presumption of fairness.
¶16    Finally, the trial court acknowledged that the difference between the
amount Van Cleave stipulated to receive and the amount she would have been
entitled to receive had the value of the pension been divided equally could “be
characterized as extraordinary.”   But it apparently believed that the size of the
discrepancy could not be considered a factor in determining whether to grant
relief.   We disagree.   The larger the size of the alleged inequity, the greater weight
it would have against the consideration to be given generally to the finality of the
judgment.
¶17    In sum, we conclude that the trial court erroneously exercised its
discretion by applying a mistaken view of the extraordinary circumstance factors
and failing to hold an evidentiary hearing to make the findings required to evaluate
the relevant factors.   We therefore reverse and remand with directions that the trial
court hold an evidentiary hearing to specifically consider the factors discussed in
this opinion.
By the Court.—Order reversed and cause remanded.
This opinion will not be published.   WIS. STAT. RULE 809.23(1)(b)5.
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