Jan. 11, 2024 – The word “shall” in a statute setting a 60-day time limit for circuit court review of family law judgments is not mandatory, the Wisconsin Court of Appeals (District IV) has ruled in Jahimiak v. Jahimiak, 2023AP573 (Dec. 21, 2023).
After 27 years of marriage, Ann and David Jahimiak were divorced in La Crosse County in 1999.
At the time of the divorce, Ann, age 49, attended college part-time and worked part-time as a sales clerk; David, age 51, worked as a dentist.
The circuit court that oversaw the divorce awarded Ann permanent spousal support of $4,500 a month.
Motion to Reduce Support
In September 2020, David, then age 73, filed a motion to stop or reduce the spousal support, under Wis. Stat. section 767.59.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
In his motion, David cited as factors his work status and his health. Ann opposed the motion.
At a hearing on the motion held in September 2021, David said he planned to retire on Nov. 15, 2021.
The circuit denied the motion because David hadn’t retired and there was no substantial change in circumstances in 2021.
A Second Motion
On Oct. 19, 2021, David filed another motion to end the spousal support.
In support of the motion, David cited an upcoming spinal fusion surgery and an agreement he’d signed to end his ownership in the dental practice effective Nov. 12, 2021.
On June 8, 2022, a court commissioner ordered the spousal support reduced to $2,800 per month.
Appeal to Circuit Court
On June 10, 2022, Ann moved to have the La Crosse County Circuit court hear the matter de novo, with a hearing date of Aug. 22, 2022.
On Aug. 18, 2022, David filed a motion asking the circuit court not to hold the hearing, because the circuit court hadn’t held the hearing within 60 days of Ann’s June 10 motion, as required by section 767.17(3).
Section 767.17(1) requires a circuit court judge, upon a motion by any party, to review any decision of a circuit court commissioner under chapter 767, and section 767.17(3) states that “[t]he court shall hold a hearing de novo not later than 60 days from the date of the filing of the motion under this section, except as otherwise required under section 767.481,” which relates to relocating a child’s residence.
The circuit court held the hearing on Aug. 22 and ruled that David had waived any objection to the hearing date because he’d failed, upon receipt of the June 10 motion, to object to the court’s competency to hold the hearing.
In February 2023, the circuit court ordered David to pay Ann: 1) $3,850 a month beginning on Oct. 1, 2022, until the death of either party or Ann’s remarriage; and 2) a total of $20,200 in attorney fees and costs, “to level the playing field … and act as a deterrent for any future meritless litigation or bad faith actions.”
David appealed.
Mandatory or Directory?
Writing for a three-judge panel, Judge Brian Blanchard noted that neither party disputed that the circuit court had failed to review the court commissioner’s decision within 60 days.
However, Blanchard explained, under Wisconsin Court of Appeals caselaw, four factors govern whether the word “shall,” when contained in a time limit established by statute, is mandatory or directory:
the purpose of the statute;
the history of the statute;
whether a violation of the time limit carries a penalty or prohibition; and
consequences of interpreting the time limit as mandatory or prohibitory.
‘Shall’ is Directory
Judge Blanchard concluded that as used in the time limit established in section 767.17(3), ‘shall’ was directory and not mandatory. As a result, the circuit court’s failure to meet the 60-day deadline was not fatal to Ann’s motion.
Blanchard acknowledged that when the legislature establishes a uniform time limit, it generally weighs in favor concluding, on the first factor, that ‘shall’ is mandatory.
However, he reasoned that nothing in the wording of section 767.17(3) or closely related statutes suggested that the legislature’s purpose in effectuating the prompt review of motions under section 767.17 wasn’t just as well-served by interpreting ‘shall’ as directory.
On the second factor, Judge Blanchard concluded that this history of section 767.17(3) weighed in favor of a mandatory interpretation.
But on the third factor, Blanchard noted that section 767.17(3) imposed no penalty or prohibition for violating the 60-day limit, and he pointed out that under Wisconsin Court of Appeals caselaw, such a fact weighed in favor of a directory interpretation.
Judge Blanchard concluded that the fourth factor weighed heavily in favor of a directory interpretation.
“If the 60-day limit precludes a party from litigating a dispute in the circuit court because a hearing de novo was not held within that timeframe, the injury to the party seeking the hearing may be severe – the permanent foreclosure of additional litigation that could bring potential relief in either circuit court or an appellate court,” Blanchard wrote.
Process for Modifying Maintenance
Judge Blanchard concluded that the circuit court erroneously exercised its discretion in modifying the maintenance award because it failed to show that it used a rational process for doing so.
He reasoned that the circuit court erred by failing to explain how it set the new monthly maintenance amount beyond relying on a gross income chart provided by Ann.
Attorney Fees
David argued that the circuit court erred by awarding Ann $19,000 in attorney fees after finding that David acted in bad faith to undermine the permanent maintenance order.
But Judge Blanchard reasoned that David’s argument missed the mark.
“The issue is not whether David made individual arguments in the litigation that had merit,” Blanchard wrote.
“The issue is whether the court had a basis to reasonably determine that he had engaged in ‘unreasonable’ litigation that had ‘result[ed] in unnecessary proceedings or unnecessarily protracted proceedings, together with the attendant preparation time.’”
The Court of Appeals reversed the circuit court’s modification of the monthly maintenance amount, affirmed its award of attorney fees to Ann, and remanded the case for further proceedings.
