Jan. 28, 2025 – Although a legal issue remained in the future, an order in a divorce case was final – killing the ex-husband’s appeal because it arrived too late – allowing the Wisconsin Supreme Court to reiterate the standards for finality critical for appeal deadlines.

A 4-2 majority denied the ex-husband’s appeal in Morway v. Morway, 2025 WI 3 (Jan. 22, 2025). Chief Justice Annette Kingsland Ziegler did not participate in the case.

Although Justice Rebecca Frank Dallet agreed with the majority, she concurred to suggest that better solutions are available, for the right case, to improve clarity in finality of orders.

Issues After Divorce

After David Morway’s divorce from Karen Morway, David filed a motion asking the circuit court to modify spousal maintenance because his employment was changing. The family court commissioner found in his favor, and Karen appealed to the Ozaukee County Circuit Court. The circuit court denied David’s motion at a hearing on April 19, 2023.

At the same hearing, the circuit court addressed Karen’s motion for attorney fees against David because of overtrial, which occurs “when one party’s unreasonable approach to litigation causes the other party to incur extra and unnecessary fees.”

The circuit court noted it had nothing to base a ruling on overtrial attorney fees. Karen’s counsel told the judge that the lawyer would file a separate motion on that issue.

The May 24 order confirmed the hearing results and mentioned that “‘Karen will file a separate Motion for overtrial.” She did.

At a June 28 hearing on the overtrial issue, David told the circuit court that he intended to appeal both the May 24 order and the overtrial decision after the court set attorney’s fees. The circuit court entered the written order for the overtrial hearing Aug. 28.

David filed his appeal four days after the Aug. 28 order – and 100 days after the May 24 order. The deadline for filing an appeal under Wis. Stat. section 808.03(1) is 90 days.

The court of appeals determined the May 24 order was a final order and denied David’s appeal.

Finality

A final circuit court order “may be appealed as a matter of right to the court of appeals” under Wis. Stat. section 808.03(1). A final order is an order “that disposes of the entire matter in litigation as to one or more of the parties,” with exceptions that don’t apply here.

The final order starts the clock. In this case, where the order did not explicitly state it was the final order, the appeal generally must be made within 90 days of entry, as required by section 808.04(1).

Whether the May 24 order was final decides whether David’s appeal was timely.

Justice Ann Walsh Bradley, writing for the majority, summarized what establishes an order as final.

“[F]inality is based on the text of the judgment or order at issue, not the subsequent actions taken by the circuit court nor the court’s intention,” A.W. Bradley wrote. “[W]hether the judgment or order at issue disposed of the entire matter in litigation depends on whether it leaves anything to be decided as a matter of substantive law in the litigation.”

Caselaw requires circuit courts to state when an order is final. If the order lacks that statement, the majority explained, “we instructed courts to liberally construe any ambiguities in the judgment or order at issue to preserve the right to appeal.”

Under those rules, the majority concluded that David’s three claims fail.

First, the May 24 order lacked a finality statement, but that absence is not enough to create ambiguity about whether the order was final, the majority decided.

Second, David argued that “the intentions and subsequent actions of the parties and the circuit court” showed ambiguity.

For example, at the June 28 hearing, David’s lawyer discussed the order as though it was not final. The court, David suggested, “‘thought’ David was waiting for ‘the complete set of decisions’ before appealing.”

The majority explained that intent or subsequent actions don’t create ambiguity. Finality results from disposing “of all substantive issues with respect to a party.”

Third, David argued that the text shows ambiguity because it “contemplated a subsequent, substantive overtrial motion from Karen,” as noted in the order that “Karen will file a separate Motion.”

The motion, however, was not before the court on May 24, and to the extent it could create ambiguity, the majority “disfavor[ed] an understanding of finality that frustrates the efficient administration of justice by indefinitely extending litigation.”

Summing up, the majority concluded “the May 24 order unambiguously disposed of the entire matter in litigation” – David’s motion to modify or terminate maintenance. The language of the order in resolving that issue clearly shows the order was final.

Allowing the Appeal

Justice Brian Hagedorn wrote a dissent, joined by Justice Rebecca Grassl Bradley, noting the finding in the May 24 order that indicates the circuit court had “insufficient evidence to address” the issue of overtrial and noted that Karen would file a separate motion.

The order stated the circuit court expected the overtrial motion. Contrary to Wis. Stat. section 808.03(1), the order did not “dispose[ ] of the entire matter in litigation,” the dissent emphasized.

“The text of this Order at least arguably leaves the issue of overtrial as a matter of ongoing litigation. The parties concede overtrial is a substantive issue,” the dissent explained.

“The Order also failed to include the required finality statement, and any ambiguity in the Order must be read in favor of preserving David’s right to appeal,” the dissent concluded.

A Better Way?

Although Justice Dallet agreed with the majority, the case provoked thoughts about improving clarity for when an order is final.

“Determining finality is more complicated … when litigation continues between the parties long after a final judgment is entered,” Dallet noted.

Although “[p]ost-judgment litigation like this isn’t unusual,” Dallet pointed out, “our court has never articulated a distinct method for determining when orders resolving these post-judgment matters are final for purposes of appeal.”

In the post-judgment world, it’s hard to know whether an order resolves all substantive issues, Dallet explained.

Federal practice offers alternatives. In matters of finality, “[federal] courts generally treat the post-judgment proceeding as if it were a lawsuit distinct from the suit that generated the underlying judgment,” Dallet explained.

“[W]e should take a similar tack and hold that post-judgment orders are final so long as they resolve the issue that kicked off the post-judgment litigation and no other related matters remain pending.”

Even though such an approach could result in multiple appeals, circuit courts can organize the issues before them into a smaller number of post-judgment orders, Dallet noted. Appeals could proceed promptly.

Wisconsin also could improve finality by adopting the federal practice of “a bright-line rule that pending attorneys’ fees claims do not undermine finality, regardless of the legal authority for such an award,” Dallet suggested.

This case doesn’t justify these changes in judicial practices, Dallet clarified, because the May 24 order was final for purposes of appeal.