In Wisconsin, litigants may only appeal a final circuit court judgment or order to the Wisconsin ​Court of Appeals per Wis. Stat. section 808.03(1) as a matter of right – appeals from nonfinal orders are permissive. Litigants must strictly follow deadlines for appellate jurisdiction: they have a maximum of 90 days to file an appeal, per Wis. Stat. section 808.04(1).

In a divorce, legal separation, or other family law matter initiated by summons and petition, determining when an order is “final” is straightforward, since the final order tends to be clearly designated as a “Findings of Fact, Conclusions of Law, and Judgment.” The obvious nature of the finality of the judgment makes clear when the clock begins to run on deadlines for appeal.

Final Orders in Post-judgment Litigation

The waters are muddied when it comes to post-judgment litigation.

Family law differs from other types of civil cases because there are issues over which the circuit court, in certain circumstances, has continuing jurisdiction to review and modify the final judgment. The court may revisit legal custody and physical placement of minor children (Wis. Stat. section 767.451) and child support and spousal maintenance (Wis. Stat. section 767.59), if properly pled.

Additionally, orders often remain in effect over a lengthy period during which parties may not comply. Aggrieved parties may also initiate post-judgment enforcement action. Eventually, the court concludes these matters by issuing an order or orders.

However, the path from beginning to end is often far from a straight line. As practitioners know well, a motion filed by one party frequently leads to cross motions filed by the other party. Actions may contain a mix of modification and enforcement requests.

In high-conflict matters, this exchange of fired shots commonly intensifies and leads the case down a circuitous path of supplemental motions, multiple family court commissioner hearings, motions for de novo review, stays for mediation, discovery disputes and more – all of which can make even the most experienced of lawyers lose sight of where a “round” of post-judgment litigation in a case begins and ends.

This brand of seemingly never-ending litigation and its procedural pitfalls is on display in Morway v. Morway​.

Morway Facts

In Morway, the Wisconsin Supreme Court considered the question of when a post-judgment order is a “final order” for purposes of appeal.

David Morway filed a motion to modify maintenance in May 2022. Following proceedings before the family court commissioner, discovery disputes, a multiday trial, and accusations of overtrial, the circuit court rendered an oral decision on April 19, 2023. The court denied the requested maintenance modification as well as a motion by David’s former wife, Karen, for overtrial. At that time, Karen’s counsel informed the court that she planned to file a second motion for overtrial.

The court entered its written order on May 24, 2023, which included a specific finding that a second overtrial motion was forthcoming.¹ The written order also granted Karen a contribution of attorney fees based on a successful motion to compel discovery earlier in the proceedings, though the court left the amount of fees awarded Karen open. This Order did not contain a statement indicating that it was a final order for purposes of appeal.

As promised, Karen filed the second overtrial motion on June 2, 2023. The court held a hearing on the second motion a few weeks later and granted it. During this hearing, David’s attorney informed the court that he intended to appeal the overtrial decision along with the order denying maintenance modification once the fees were set, stating that he was waiting for the “complete set of decisions” on the case before appealing. The circuit court acknowledged this and replied that it thought that would happen. On Aug. 28, 2023, the court ordered David to pay Karen just under $12​,000 in fees as the remedy for overtrial.

David filed his Notice of Appeal on Sept. 1, 2023 (four days after the fee decision and 100 days after the entry of the maintenance order). The appeals court, sua sponte, requested briefs from the parties on whether it had jurisdiction to hear the matter. It concluded that the May 24 Order was a final order because it disposed of all matters raised in David’s motion for maintenance modification. Thus, when David filed his appeal 100 days later, it was 10 days too late. As a result of the untimely filing, the court dismissed the appeal for lack of jurisdiction.

The Wisconsin Supreme Court granted David’s Petition for Review. Though the court rarely takes family law cases, the issue apparently sparked debate among the justices as the opinoin includes a concurrence written by Justice Dallet and a dissent written by Justice Hagedorn. Reading both fosters understanding of the complexities of this issue.

What is a 'Final' Order?

The entry of a final order triggers the right to appeal to the Wisconsin ​Court of Appeals. In Wis. Stat. section 808.03(1)​, "[a] final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties.” A judgment or order disposes of the entire matter in litigation when the text of that judgment or order leaves nothing else to be decided as a matter of substantive law.

A seminal case on this issue is Wambolt v. West Bend Mut. Ins. Co.​, a personal injury case. Pursuant to the Wambolt line of cases, courts must indicate that their final judgments and orders are final for purposes of appeal with a “finality statement.”²

When a judgment or order does not clearly dispose of an entire matter in litigation, courts should liberally construe ambiguities to preserve litigants’ right to appeal.

Analysis and Holding

David Morway invited the court to expand Wambolt to require courts to explicitly state whether the document is final or nonfinal for purposes of appeal. The majority, in an opinion written by Justice Ann Walsh Bradley (who also wrote Wambolt), declined. The Morway court additionally repudiated the notion that the intent of the parties or the court is instructive in determining whether an order is final.

Morway reaffirmed the Wambolt requirement that circuit courts must include a finality statement in final judgments and orders.

However, in an important shift away from Wambolt, Morway concluded that the absence of a finality statement cannot be used to create ambiguity around whether an order is final.

In Morway, the court concluded that the text of the May 24 Order disposed of the entire matter in litigation (that being the request for maintenance modification) and noted that the second overtrial motion was not yet filed at the time the order was entered. The Morway court agreed with the Court of Appeals conclusion: because David initiated his appeal more than 90 days after May 24, 2023, it was untimely, depriving the court of jurisdiction to review the May 24 Order.

The result? Waiting to file an appeal until “everything” in the case was concluded meant David lost his right to appeal the denial of his requested modification of maintenance.

Lessons from Morway

The Morway case imparts important lessons for practitioners moving forward. They include the following:

• Know the rules of civil and appellate procedure and the case law interpreting them. Lawyers fail to follow general procedural rules at their peril.

• The Wisconsin ​Court of Appeals gate keeps. The Court of Appeals independently identified the jurisdictional issue and ordered the parties to brief it shortly after the record was filed, before the parties even filed their case briefs.

• In high-conflict post-judgment litigation, pay attention to the trees, not just the forest. It can often feel like a never-ending merry-go-round to be mired in a difficult case. Practitioners should resist the temptation to solely view a post-judgment matter as a bundle of issues to be solved. For purposes of appeal deadlines, each discrete part of the case may be tracked differently under the law.

• Do not rely on the circuit court to include a “finality” statement in an order. When parties are represented, responsibility rests with the attorneys to draft and approve orders before submitting them to the court for signature. Wambolt, a case nearly two decades old, directs the inclusion of finality statements – yet very few post-judgment orders drafted by counsel include them.

  Practitioners should incorporate finality statements as a matter of practice, and request such statements in orders prepared by others. Do not approve a final order without a finality statement, and object when an order lacks one.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Finding 17 of the May 24, 2023, Order provided that “[a]s to Karen’s request for contribution to attorney fees for overtrial, the court presently has insufficient information to address that issue and Karen will file a separate motion on this issue.” 2025 WI 3 ¶66.

² An example of a finality statement is found in the Wisconsin Court form for a Judgment of Divorce, where a bolded, capitalized statement reads at the bottom: “THIS IS A FINAL ORDER FOR PURPOSES OF APPEAL IF SIGNED BY A CIRCUIT COURT JUDGE.”