### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP2362 Cir. Ct. No. 2009FA152 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

I N RE THE MARRIAGE OF :
J ANELLE L YNN S CHIMKE , N / K / A J ANELLE L. C ASEY ,
P ETITIONER - A PPELLANT ,

V .
M ARK J OHN S CHIMKE ,
R ESPONDENT - R ESPONDENT .

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 W IS . S TAT . R ULE 809.23(3).No. 2019AP2362

2 ¶ 1 PER CURIAM. Approximately nine years after Janelle Casey and
Mark Sch imke divorced, Casey petitioned for a constructive trust , alleging that Schimke had failed to make required financial disclosure s under W IS

. S TAT

. § 767.127 (2019

- 20) 1 at 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 appeal ed 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 juris diction over Casey ’ s appeal , we dismiss th e appeal

.
BACKGROUND

¶ 2 Janelle Casey and Mark Schimke married in 1988. In October of 2009, C asey 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 part y 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, 201 0

. ¶ 3 At the final hearing, the parties submitted a mar ital 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 W IS

. S TAT

. § 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 agr eed that Schimke w ould 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

r egarding his assets in violation of the disclos ure statute, W IS

. S TAT

. § 767.127, 2 and that he had used the hidden assets to redeem a family farm from foreclosure

2 The disclosure requirements in W IS

. S TAT

. § 767.127(1) provide, in pertinent part:

R EQUIRED 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 lim ited 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
nonves ted, and any other financial interest or source. The constructive trust provision in § 767.127(5) provides:

F AILURE 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 divor ce. 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 disclos ures 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 T he 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 co unsel s ent the court the first page of a three

- page document en titled “ 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 ofNo. 2019AP2362

5 determining the date on which the Agreement was executed, under the theory that
if the Agreement was executed prior to Sc h imke ’ s March 23, 2010 execution of
his f inancial 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, t he 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 learn ed that the Agre ement was executed on January 29, 2010 , prior to Schimke ’ s March 2010 completion of h is financial disclosure statement and the April 2010 final divorce hearing. Th e 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 . T he Agreement also showed that, upon approval of the Agreement by DWD, a sum of $37,112 would be paid

to a M edicare set

- aside accou nt for Schi mke

. 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 Workfor ce 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
faile d to disclose the value of the settlement in violation of W IS

. S TAT

. § 767.127.

¶ 10 The circuit court orally denied the motion for re consideration on September 16, 2019

. The court reiterated that the wor k er ’ s compensation claim

was inclu ded on Schimke ’ s financial disclosure statement and was awarded to
Schimke pursuant to the marit al settlem en t agreement incorporated into the judgment of divorce

. The court noted that a constructive trust may be imposed
under W IS

. S TAT

. § 767.127(5) where a p arty “ intentionally or negli gently 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 statut ory language, the court concluded that the
conditions for a constructive trust were not met. Specifically, t he court noted that
the worker ’ s compensation claim was not only referenced on the financial
disclosure statement , but was also made part of the “ f inal 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 pet ition for imposition of a constructive trust

. Casey appealed.

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

to brief jurisdictional issues. We indicat ed that Casey had not file d a timely appeal from the circu it court ’ s May 16, 2019 order dismissing her petition for imposition of a constructive trust and that we may lack jurisdiction to review theNo. 2019AP2362

7 September 2019 order denying reconsideration if Casey ’ s motion for reconsideration presented the same issues as tho se determined in the May 16, 2019
order. See Silverton Enters., Inc. v. Gen eral 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 timel y notice of appeal is necessary to give this court jurisdiction over an appeal from a final judgment or order

. W IS

. S TAT

. R ULE 809 .10(1) (e) and (4). It is undisputed that i n 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 W IS

. S TAT

. § 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 W IS

. S TAT

. § 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 dep rives 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 W IS

. S TAT

. § 805.17(3) appl

y 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 W IS

. S TAT

. § 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. Sp ecifically, Schimke argues that her deadline to appeal the May 16 order was extended pursuant to W IS

. S TAT

. § 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:

R ECONSIDERATION M OTIONS

. Upon its own motion or the motion of a party made not later than 20 days after entry of judgment, the co urt 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 th e 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 N otice of A ppeal timely appealed the May 16 order be cause the appeal was filed within 90 days of t h e September 19, 2019 order denying her
motion for reconsidera tion

. However, as explained below, Casey is incorrect that

t h e appellate timing provisions of § 805.17(3) appl y 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
W IS

. S TAT

. § 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 n otice of a ppeal. ” Id . at 5 35.

¶ 16 We based our conclusion in Continental on the following : (1) minutes from Judicial Council meeting s indicating that W IS

. S TAT

. § 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 appear s 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

- 3 4 ; 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, w e 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 file d following
the circuit court ’ s order granting Schimke ’ s motion to dismiss. As a result, Continental controls and W IS

. S TAT

. § 805.17 (3) does not apply to extend the
deadline in this case to 90 days from the September 19, 2019 order denyingNo. 2019AP2362

10 reconsideration

. Instead, the 90

- day period commenced on the date of the original order, Ma y 16, 2019. Because Casey did not appeal within 90 days of th e May 16 order, we are without jurisdiction to review that order. 4 See W IS

. S TAT

. § 808.04(1); Wainwright v. Wainwrigh t , 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 revie w 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 sou ght 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 fina l order or judgment ” ). In applying t he new

- issues test, we “ compare the issues raised in

4 We note that, i n 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

- S ultze 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 W IS

. S TAT

. § 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 fa ct

- finding, a rationale upon which the court s 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, 8 7, 417 N.W.2d 50 (Ct. App. 1987).

¶ 19 Casey contends that her motion for reconsideration satisfies the

new

- issue s test because it contains information showing the date of the Agreement, which was not included in he r 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 s t atement satisfied the requirements of W IS

. S TAT

. § 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 comp l eted his financial di s closure statement and before
the final divorce hearing does not creat e a new issue because it has no b earing on the issue itself, which was whether Schimke’s failure to list an ex act 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

sta tement ; (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 of

fsets and approval by the DWD ; and (4) imposition of aNo. 2019AP2362

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

su ch failure result in the asset ’ s “ omi [s s ion] from the final distribution of property, ” condition s 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 Schimk e ’ 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
den ying 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 den ying her motion for reconsideration.

By the Court.

— Appeal dismissed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.

5 Casey also contends that revisions to W IS

. S TAT

. § 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 W IS

. S TAT

. § 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).