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COURT OF APPEALS DECISION DATED AND RELEASED June 22, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0078-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
ROY H. LIDDICOAT,
Petitioner-Appellant,
v.
KAY F. LIDDICOAT,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Dane County:
GERALD C. NICHOL, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER CURIAM. Roy Liddicoat appeals from an order
construing a disputed clause in a divorce stipulation. The trial court held the clause ambiguous,
and interpreted it to award Roy's ex-wife, Kay Liddicoat, a 32.7% share of his
monthly payments received from the Wisconsin Retirement Fund. He contends that the plain meaning of the
clause only allows Kay a 7.9% share of that pension. We agree with Roy that the clause is unambiguous. However, we conclude that its plain meaning
provides Kay the 32.7% share ordered by the trial court. Although we apply a different rationale, we
therefore affirm.[1]
The parties divorced in
1982, after twenty-three years of marriage during which Roy had continuously
accrued benefits under the Wisconsin Retirement System. The parties stipulated to a division of
those benefits as follows:
The
petitioner's pension or retirement with the State Teachers Retirement System
shall be payable to the parties, as, if and when payable to petitioner. The respondent's share shall be 50% of the
benefits attributable to the petitioner's earnings during marriage.
Roy worked twelve more
years before retiring, for a total of thirty-five years under the retirement
system. By doing so, through longevity,
retirement age, salary increases, and legislative changes, he provided himself
with a $2,733-per-month pension. Had he
retired in 1982, he would have received only a $431-per-month pension. This dispute arose when Kay sought a pro
rata share of the $2,733 current benefit.
Roy is willing to give her a pro rata share only of the $431 figure.
A divorce stipulation
incorporated in the judgment is a binding contract. Norman v. Norman, 117 Wis.2d 80, 82, 342 N.W.2d
780, 781 (Ct. App. 1983). Construing an
unambiguous contract is a question of law.
Patti v. Western Mach. Co.,
72 Wis.2d 348, 353, 241 N.W.2d 158, 161 (1976). Whether a contract is ambiguous is also a question of law which
we decide independently of the trial court's decision. See Moran v. Shern, 60
Wis.2d 39, 46-47, 208 N.W.2d 348, 351-52 (1973). A contract is ambiguous only if it is reasonably susceptible to
more than one meaning. Central
Auto Co. v. Reichert, 87 Wis.2d 9, 19, 273 N.W.2d 360, 364-65 (Ct. App.
1978).
On appeal, Roy contends
that the stipulation plainly awards Kay a share in his pension as it would have
been valued at retirement in 1982, under then-existing facts and law, rather
than its actual value in 1994, after it was greatly increased by subsequent
events. We disagree. The stipulation does not award Kay a portion
of a hypothetical pension. It plainly
awards her a percentage as payable to Roy and when payable to him. That has turned out to be $2,733 in
1994. No other reasonable
interpretation is available.
The stipulation
calculates Kay's share as fifty percent of the benefits attributable to
earnings during the marriage. Under the
retirement system's formula for computing pensions, each year of employment
counts the same, regardless of the salary earned during that year. Twenty-three/thirty-fifth's of Roy's $2,733
is therefore attributable to earnings during the marriage. Fifty percent of that amount is $893, the
amount awarded to Kay.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.