COURT OF APPEALS

DECISION

DATED AND FILED

April 29, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP2362 Cir. Ct. No. 2009FA152

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN RE THE MARRIAGE OF:

JANELLE LYNN SCHIMKE, N/K/A JANELLE L. CASEY,

 PETITIONER-APPELLANT,

 V.

MARK JOHN SCHIMKE,

 RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Clark County: 

RIAN RADTKE, Judge. Dismissed.

Before Fitzpatrick, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2019AP2362

2

¶1 PER CURIAM. Approximately nine years after Janelle Casey and 

Mark Schimke divorced, Casey petitioned for a constructive trust, alleging that 

Schimke had failed to make required financial disclosures under WIS. STAT.

§ 767.127 (2019-20)1at the time of divorce. The circuit court dismissed Casey’s 

petition, and Casey filed a motion for reconsideration, which the court also denied. 

In an order from this court dated January 31, 2020, we noted that Casey had not 

timely appealed the order dismissing her petition, but had sought to appeal the 

order denying her motion for reconsideration. We requested that the parties 

address the issue of jurisdiction in their briefing. Because we conclude that we 

lack appellate jurisdiction over Casey’s appeal, we dismiss the appeal.

BACKGROUND

¶2 Janelle Casey and Mark Schimke married in 1988. In October of 

2009, Casey filed a petition for divorce. Schimke completed a financial disclosure 

statement that he signed on March 23, 2010, in which he answered yes to the 

question of whether he was a party to a lawsuit, and identified the claim as a “WC 

Claim,” or worker’s compensation claim. The financial disclosure statement was 

filed with the circuit court at the final divorce hearing on April 27, 2010. 

¶3 At the final hearing, the parties submitted a marital settlement

agreement, which the circuit court approved and incorporated into the judgment of 

divorce. In the section of the marital settlement agreement pertaining to property 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted. The relevant provisions of WIS. STAT. § 767.127, set forth in footnote 2, have not changed 

in any material way since the 2010 filing of Schimke’s financial disclosure and entry of the 

divorce judgment. 
No. 2019AP2362

3

division and division of debts, the parties agreed that Schimke would be awarded 

the “worker’s compensation claim and all proceeds therefrom.” The judgment of 

divorce was issued on April 27, 2010 and states that the division of assets, 

interests, encumbrances and debts was approved in accordance with the terms of 

the marital settlement agreement. 

¶4 At some point in 2018, Casey received documents from a family 

member that led her to believe that Schimke had withheld information in 2010 

regarding his assets in violation of the disclosure statute, WIS. STAT. § 767.127,2

and that he had used the hidden assets to redeem a family farm from foreclosure 

 

2

 The disclosure requirements in WIS. STAT. § 767.127(1) provide, in pertinent part:

REQUIRED DISCLOSURE. In an action affecting the 

family, ... the court shall require each party to furnish, on 

standard forms required by the court, full disclosure of all assets 

owned in full or in part by either party separately or by the 

parties jointly.... Assets required to be disclosed include, but are 

not limited to, real estate, savings accounts, stocks and bonds, 

mortgages and notes, life insurance, retirement interests, interest 

in a partnership, limited liability company, or corporation, 

tangible personal property, future interests whether vested or 

nonvested, and any other financial interest or source.

The constructive trust provision in § 767.127(5) provides:

FAILURE TO DISCLOSE; CONSTRUCTIVE TRUST. If a party 

intentionally or negligently fails to disclose information required 

by sub. (1) and as a result any asset with a fair market value of 

$500 or more is omitted from the final distribution of property, 

the party aggrieved by the nondisclosure may at any time 

petition the court granting the annulment, divorce, or legal 

separation to declare the creation of a constructive trust as to all 

undisclosed assets, for the benefit of the parties and their minor 

or dependent children, if any, with the party in whose name the 

assets are held declared the constructive trustee. The trust shall 

include such terms and conditions as the court may determine. 

The court shall grant the petition upon a finding of a failure to 

disclose assets as required under sub. (1).
No. 2019AP2362

4

shortly after the final hearing and judgment of divorce. Casey filed a petition and 

supporting affidavit seeking an order for imposition of a constructive trust over 

Schimke’s assets, on grounds that Schimke had failed to make necessary 

disclosures on his financial disclosure statement as required by § 767.127. 

Schimke filed a motion to dismiss the petition, asserting that Casey had failed to 

state a claim upon which relief could be granted.

¶5 The circuit court sent a letter to the parties requesting further 

information on the value of the worker’s compensation claim. In response to the 

court’s letter, Schimke’s counsel sent the court the first page of a three-page 

document entitled “Full and Final Compromise Agreement” (Agreement), which 

indicated that Schimke was party to a worker’s compensation settlement 

agreement under which he would receive a lump sum of $162,888, subject to any 

subrogation claims or unpaid medical bills. This document also stated that the 

Agreement was “subject to the approval of the Department of Workforce 

Development [DWD].”

¶6 The circuit court issued an oral ruling on May 15, 2019, granting 

Schimke’s motion to dismiss Casey’s petition for imposition of a constructive 

trust. The court noted that it was undisputed that Schimke’s financial disclosure 

statement listed a worker’s compensation claim, although the statement did not list 

an amount, and that the parties’ marital settlement agreement awarded any 

worker’s compensation proceeds to Schimke in the division of assets. The court 

stated that the “exact dollar amount” was not listed on the financial disclosure 

form because “it was not exactly known until after the divorce was completed.”

¶7 Following the circuit court’s oral ruling, Casey’s counsel asked the 

court for the opportunity to conduct additional discovery for the purpose of 
No. 2019AP2362

5

determining the date on which the Agreement was executed, under the theory that 

if the Agreement was executed prior to Schimke’s March 23, 2010 execution of 

his financial disclosure statement, then Schimke “would have had to disclose 

exactly how much the proceeds were that he received rather than [disclosing] 

himself as a party to a lawsuit.” In response, the court stated that it did not believe 

that anything prohibited Casey from conducting further discovery. The court 

entered a written order the following day, May 16, 2019, granting Schimke’s 

motion to dismiss Casey’s petition for a constructive trust. 

¶8 After the circuit court’s oral ruling, Schimke filed with the court a 

complete copy of the three-page Agreement. As a result, Casey learned that the 

Agreement was executed on January 29, 2010, prior to Schimke’s March 2010 

completion of his financial disclosure statement and the April 2010 final divorce 

hearing. The full Agreement showed that the parties were requesting that DWD

“enter an order in conformance” with the parties’ Agreement, and that DWD set 

aside $40,000 for attorney fees and $921.96 in costs. The Agreement also showed 

that, upon approval of the Agreement by DWD, a sum of $37,112 would be paid 

to a Medicare set-aside account for Schimke.

3

¶9 On May 24, 2019, Casey filed a motion for reconsideration of the 

circuit court’s order that granted Schimke’s motion to dismiss. Casey argued that 

the complete disclosure of the Agreement after the May 15 ruling merited 

reconsideration of the court’s order dismissing Casey’s petition for a constructive 

 

3

 The Agreement further states that “[t]he applicant has the right to petition the 

Department of Workforce Development to set aside or modify this Compromise Agreement 

within one year of its approval by the Department.”
No. 2019AP2362

6

trust because the complete Agreement showed that it was signed in January 2010. 

Casey argued that this information supported the conclusion that Schimke had 

failed to disclose the value of the settlement in violation of WIS. STAT. § 767.127.

¶10 The circuit court orally denied the motion for reconsideration on 

September 16, 2019. The court reiterated that the worker’s compensation claim 

was included on Schimke’s financial disclosure statement and was awarded to 

Schimke pursuant to the marital settlement agreement incorporated into the 

judgment of divorce. The court noted that a constructive trust may be imposed 

under WIS. STAT. § 767.127(5) where a party “intentionally or negligently fails to 

disclose information required by sub. (1) and as a result any asset with a fair 

market value of $500 or more is omitted from the final distribution of property.”

Sec. 767.127(5). Relying on this statutory language, the court concluded that the

conditions for a constructive trust were not met. Specifically, the court noted that 

the worker’s compensation claim was not only referenced on the financial 

disclosure statement, but was also made part of the “final distribution” under 

§ 767.127(5), in that it was awarded to Schimke under the marital settlement 

agreement. The court again stated that the “exact dollar figure” of the worker’s 

compensation claim was unknown at the time of the financial disclosure statement 

and divorce and that the claim was a “future interest.” The court issued a written 

decision on September 19, 2019 denying the motion for reconsideration and

affirming its prior order dismissing Casey’s petition for imposition of a 

constructive trust. Casey appealed. 

¶11 On January 31, 2020, this court issued an order requiring the parties 

to brief jurisdictional issues. We indicated that Casey had not filed a timely 

appeal from the circuit court’s May 16, 2019 order dismissing her petition for 

imposition of a constructive trust and that we may lack jurisdiction to review the
No. 2019AP2362

7

September 2019 order denying reconsideration if Casey’s motion for 

reconsideration presented the same issues as those determined in the May 16, 2019 

order. See Silverton Enters., Inc. v. General Cas. Co., 143 Wis. 2d 661, 422 

N.W.2d 154 (Ct. App. 1988); see also Ver Hagen v. Gibbons, 55 Wis. 2d 21, 197 

N.W.2d 752 (1972). The parties submitted briefs addressing the jurisdictional 

issues and the merits of the case.

DISCUSSION

¶12 We begin by addressing the question of jurisdiction, which we 

conclude is dispositive. 

¶13 The filing of a timely notice of appeal is necessary to give this court 

jurisdiction over an appeal from a final judgment or order. WIS. STAT. RULE

809.10(1)(e) and (4). It is undisputed that in a civil action such as this, where no 

notice of entry of judgment was filed, the time to appeal is 90 days from the entry 

of a final judgment or order. See WIS. STAT. § 808.04(1). The jurisdictional 

dispute in this case centers on two issues: (1) whether this court has jurisdiction to 

consider the May 16, 2019 dismissal order under the theory that WIS. STAT.

§ 805.17(3) extends the time period in which to appeal that order to 90 days from 

the court’s September 19, 2019 order denying Casey’s motion for reconsideration; 

and (2) whether this court has jurisdiction over Casey’s appeal of the 

September 19, 2019 order denying her reconsideration motion under precedent 

such as Silverton. We address these issues in turn below, and conclude that 

Casey’s failure to timely appeal the May 16, 2019 order deprives the court of 

jurisdiction over any issues addressed in that order, and that we lack jurisdiction 

over Casey’s appeal of the September 19, 2019 order based on Silverton.
No. 2019AP2362

8

I. This court does not have jurisdiction to review the May 16, 2019 

dismissal order because the timing provisions of WIS. STAT.

§ 805.17(3) apply only to court trials.

¶14 The circuit court issued an order granting Schimke’s motion to 

dismiss on May 16, 2019. That order was a final order from which an appeal as of 

right could be taken. See WIS. STAT. § 808.03(1). Our January 31, 2020 order 

stated that “no timely appeal was filed” of the May 16 order. Nevertheless, Casey 

implicitly asks us to revisit our determination that she did not timely appeal the 

May 16 order. Specifically, Schimke argues that her deadline to appeal the 

May 16 order was extended pursuant to WIS. STAT. § 805.17(3) and that, as a 

result, this court has jurisdiction over her purported appeal of the May 16 order,

based on her timely appeal of the order denying her motion for reconsideration. 

Section 805.17(3) states, in relevant part:

RECONSIDERATION MOTIONS. Upon its own motion 

or the motion of a party made not later than 20 days after 

entry of judgment, the court may amend its findings or 

conclusions or make additional findings or conclusions and 

may amend the judgment accordingly.... If the court denies 

a motion filed under this subsection, the time for initiating 

an appeal from the judgment commences when the court 

denies the motion on the record or when an order denying 

the motion is entered, whichever occurs first.

Thus, according to Casey, under the timing provisions of § 805.17(3), her 

December 11, 2019 Notice of Appeal timely appealed the May 16 order because 

the appeal was filed within 90 days of the September 19, 2019 order denying her 

motion for reconsideration. However, as explained below, Casey is incorrect that 

the appellate timing provisions of § 805.17(3) apply here. As a result, we reaffirm 

the conclusion in our January 31, 2020 order that Casey did not timely appeal the 

May 16 order, and explicitly hold that we lack jurisdiction to review that order.
No. 2019AP2362

9

¶15 In Continental Casualty Co. v. Milwaukee Metropolitan Sewerage 

District, 175 Wis. 2d 527, 499 N.W.2d 282 (Ct. App. 1993), this court held that 

WIS. STAT. § 805.17(3) modifies the deadline for filing an appeal “only when a 

reconsideration motion has been timely filed after a trial to the court.” Id. at 535. 

We therefore declined to apply the reconsideration procedures of § 805.17(3) to 

the summary judgment context, concluding that the motion for reconsideration 

“had no effect on the deadline for filing a notice of appeal.” Id. at 535. 

¶16 We based our conclusion in Continental on the following: 

(1) minutes from Judicial Council meetings indicating that WIS. STAT. § 805.17(3) 

was intended to apply only to bench trials; (2) the context of § 805.17(3)—

specifically, that the subsection is entitled “Trial to the Court” and appears in a 

chapter entitled “Trials”; and (3) the language of § 805.17(3), which refers to 

“findings,” yet circuit courts do not make “findings” at the summary judgment 

stage. Id. at 532-34; see also Teff v. Unity Health Plans Ins. Corp., 2003 WI App 

115, ¶¶58-59, 265 Wis. 2d 703, 666 N.W.2d 38 (articulating these three grounds 

for the Continental court’s conclusion and applying the Continental holding to 

the default judgment context). Thus, we determined that the appellate deadlines in 

§ 805.17(3) did not apply and that, because Continental had not timely appealed 

the original order dismissing its complaint on summary judgment, this court did 

not have jurisdiction over the appeal. See Continental, 175 Wis. 2d at 529-30, 

535-36.

¶17 As in Continental, here, Casey’s motion for reconsideration was not 

brought “after a trial to the court.” See id. at 535. Rather, it was filed following 

the circuit court’s order granting Schimke’s motion to dismiss. As a result, 

Continental controls and WIS. STAT. § 805.17(3) does not apply to extend the 

deadline in this case to 90 days from the September 19, 2019 order denying 
No. 2019AP2362

10

reconsideration. Instead, the 90-day period commenced on the date of the original 

order, May 16, 2019. Because Casey did not appeal within 90 days of the May 16

order, we are without jurisdiction to review that order.4 See WIS. STAT.

§ 808.04(1); Wainwright v. Wainwright, 176 Wis. 2d 246, 250, 500 N.W.2d 343 

(Ct. App. 1993) (“Failure to appeal within the times set by either sec. 808.04, 

Stats., or sec. 805.17(3), Stats., deprives this court of jurisdiction.”). 

II. This court does not have jurisdiction to review the circuit court’s 

September 19, 2019 order denying Casey’s motion for 

reconsideration.

¶18 “No right of appeal exists from an order denying a motion to 

reconsider which presents the same issues as those determined in the order or 

judgment sought to be reconsidered.” Silverton, 143 Wis. 2d at 665; see also

Marsh v. City of Milwaukee, 104 Wis. 2d 44, 45, 310 N.W.2d 615 (1981) (for this 

court to obtain jurisdiction over an appeal from an order denying reconsideration 

“a party must present issues other than those determined by the original final order 

or judgment”). In applying the new-issues test, we “compare the issues raised in 

 

4

 We note that, in granting the motion to dismiss, the circuit court considered matters 

outside the pleadings, namely, an affidavit filed with Casey’s motion, exhibits filed with 

Schimke’s reply brief, and the first page of the Agreement that Schimke filed pursuant to the 

court’s request. Thus, the court’s May 16, 2019 order could be considered a dismissal on 

summary judgment. See Farady-Sultze v. Aurora Med. Ctr. of Oshkosh, Inc., 2010 WI App 99, 

¶2, 327 Wis. 2d 110, 787 N.W.2d 433 (“[W]here a circuit court considers matters outside the 

complaint, we may treat the appeal as though it were from a summary judgment.”). However, 

regardless of whether we treat the court’s May 16 order as granting summary judgment or 

dismissal, the outcome is the same. Continental Casualty Co. v. Milwaukee Metropolitan 

Sewerage District, 175 Wis. 2d 527, 535, 499 N.W.2d 282 (Ct. App. 1993), unequivocally states

that WIS. STAT. § 805.17(3) modifies the deadline for filing an appeal “only when a 

reconsideration motion has been timely filed after a trial to the court.” As stated, this case does 

not involve a trial to the court. Moreover, as with summary judgment addressed in Continental, a 

determination on a motion to dismiss does not involve fact-finding, a rationale upon which the 

courts relied in Continental and Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, 265 

Wis. 2d 703, 666 N.W.2d 38. 
No. 2019AP2362

11

[the] petition for reconsideration with those disposed of in the order dismissing 

[the] complaint.” Harris v. Reivitz, 142 Wis. 2d 82, 87, 417 N.W.2d 50 (Ct. App. 

1987).

¶19 Casey contends that her motion for reconsideration satisfies the 

new-issues test because it contains information showing the date of the 

Agreement, which was not included in her original petition requesting imposition 

of a constructive trust. She contends that this court therefore has jurisdiction over 

her appeal from the circuit court’s order denying her motion for reconsideration. 

We are unpersuaded. 

¶20 In its original May 2019 ruling dismissing Casey’s petition for 

imposition of a constructive trust, the circuit court determined that Schimke’s 

inclusion of a “WC Claim” in his financial disclosure statement satisfied the 

requirements of WIS. STAT. § 767.127 and that the conditions for imposition of a 

constructive trust were not met, particularly given that Casey had agreed, and the 

marital settlement agreement and divorce judgment reflect, that any worker’s 

compensation proceeds would be awarded to Schimke. That the Agreement was 

entered into before Casey completed his financial disclosure statement and before 

the final divorce hearing does not create a new issue because it has no bearing on 

the issue itself, which was whether Schimke’s failure to list an exact amount on 

the financial disclosure statement constituted a failure to disclose such that a 

constructive trust should be imposed. The date of the Agreement did not change 

the following: (1) Schimke listed the “WC Claim” on his financial disclosure

statement; (2) regardless of the amount of the claim proceeds, the parties agreed—

and the marital settlement agreement and divorce judgment reflect—that those 

proceeds would be awarded to Schimke; (3) the amount was subject to conditions, 

including various offsets and approval by the DWD; and (4) imposition of a 
No. 2019AP2362

12

constructive trust under § 767.127(5) requires both a failure to disclose and that 

such failure result in the asset’s “omi[ssion] from the final distribution of

property,” conditions which were not satisfied here.

¶21 Therefore, the discovery of the Agreement’s execution date was 

immaterial to Casey’s petition for a constructive trust and did not raise a new issue 

separate from those already considered by the court in granting Schimke’s motion 

to dismiss. See Harris, 142 Wis. 2d at 87 (we compare the issues raised in a 

motion for reconsideration with those disposed of in the original dismissal order). 

Accordingly, this court does not have jurisdiction over an appeal of the order 

denying Casey’s motion for reconsideration.5

CONCLUSION

¶22 For the foregoing reasons, we are without jurisdiction to review 

either the May 16, 2019 order dismissing Casey’s petition for a constructive trust 

or the September 19, 2019 order denying her motion for reconsideration.

By the Court.—Appeal dismissed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5. 

 

5 Casey also contends that revisions to WIS. STAT. § 805.17(3) in 1991 had the effect of 

nullifying Silverton Enterprises, Inc. v. General Casualty Co., 143 Wis. 2d 661, 665, 422 

N.W.2d 154 (Ct. App. 1988). However, Casey points to no authority in support of her claim that 

Silverton was modified in any way by the revisions to WIS. STAT. § 805.17(3). Thus, we 

conclude it is still the rule that a party must present issues other than those determined by the 

original final order if this court is to have jurisdiction over an appeal from an order denying a 

motion for reconsideration. Silverton, 143 Wis. 2d at 665-66; Marsh v. City of Milwaukee, 104 

Wis. 2d 44, 45, 310 N.W.2d 615 (1981).