Sarah Diane Kraemer v. Benjamin Dean Traun

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 5, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP88 Cir. Ct. No. 2022FA63

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

SARAH DIANE KRAEMER,

PETITIONER-RESPONDENT,

V.

BENJAMIN DEAN TRAUN,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
SUSAN M. CRAWFORD, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, JJ.

¶1 GRAHAM, J. Benjamin Traun, who was married to Sarah
Kraemer, challenges several determinations that the circuit court made in the
parties’ judgment of divorce and in the order that granted in part and denied in part
No. 2024AP88

Traun’s motion for reconsideration. We ordered the parties to address two
questions that pertain to our appellate jurisdiction: whether Traun’s notice of
appeal was timely as to the divorce judgment under WIS. STAT. § 805.17(3) (2021-
22);1 and whether the rule from Ver Hagen v. Gibbons, 55 Wis. 2d 21, 26, 197
N.W.2d 752 (1972), and Silverton Enterprises Inc. v. General Casualty Co. of
Wis., 143 Wis. 2d 661, 422 N.W.2d 154 (Ct. App. 1988), precludes appellate
review of the circuit court order deciding the motion for reconsideration.

¶2 We conclude that we lack appellate jurisdiction over the divorce
judgment because, applying WIS. STAT. § 805.17(3), Traun’s notice of appeal was
not timely as to that judgment. With respect to the order deciding Traun’s motion
for reconsideration, we conclude that the rule from Ver Hagen and Silverton does
not prevent us from reviewing the portion of the decision in which the circuit court
granted reconsideration of a prior determination in the divorce judgment.
However, we lack jurisdiction to review the remaining portions of the decision, in
which the circuit court denied reconsideration of other prior determinations,
because Traun’s motion for reconsideration did not raise any new issues that were
not disposed of in the divorce judgment. As to Traun’s challenge to the
determination that the court reconsidered, we reject Traun’s arguments and affirm.
Separately, we deny Kraemer’s motion for costs and attorney fees for this appeal.

BACKGROUND

¶3 The circuit court divorce proceedings were fact-intensive, and we
limit our focus here to those facts that are pertinent to the parties’ arguments on

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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appeal. We provide an overview in this background section, and additional detail
as needed in the discussion section below.

¶4 Traun and Kraemer were married in 2015, and Kraemer initiated
divorce proceedings in 2022. Following a trial in which Traun proceeded without
the assistance of counsel, the circuit court entered the divorce judgment, which
was a final judgment for purposes of appeal. In that judgment, the court adopted a
number of Kraemer’s proposals for dividing the marital estate and determining
child support. As pertinent to this appeal, the court calculated Kramer’s income
based solely on the income listed on her W-2 (the “income calculation”
determination); it made Traun solely responsible for his premarital student loan
debt (the “student debt” determination); it concluded that Traun’s use of his
investment accounts constituted marital waste (the “investment account”
determination); and it did not include proceeds from a sale of Kraemer’s stock in
its determination of the value of the marital estate (the “stock sale” determination).

¶5 The divorce judgment was entered on April 24, 2023, and Traun
filed a timely motion for reconsideration pursuant to WIS. STAT. § 805.17(3). In
the brief he filed in support of reconsideration, Traun made various arguments
about his student debt, his investment accounts, and Kraemer’s stock sale, but he
did not make any arguments about the court’s calculation of Kraemer’s income.

¶6 WISCONSIN STAT. § 805.17(3) provides that a timely motion for
reconsideration following a trial to the court is “considered denied and the time for
initiating an appeal from the judgment commences” if the circuit court does not
decide the motion “within 90 days after entry of judgment.” Here, this 90-day

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period elapsed in July 2023, before the circuit court decided Traun’s
reconsideration motion.2

¶7 The circuit court entered an order deciding Traun’s motion (the
“reconsideration decision”) on December 4, 2023. In its decision the court granted
reconsideration of its prior determination regarding Traun’s student debt, but
declined to reconsider the remaining issues that Traun raised in his reconsideration
motion.3 With respect to the student debt determination, the court explained that it
was granting reconsideration because it had not expressly considered the factors
identified in WIS. STAT. § 767.61(3) before excluding the premarital portion of
Traun’s student debt from the marital estate. Under the circumstances, the court
“assume[d], for the purposes of this decision,” that its failure to do so was “a
manifest error warranting reconsideration.” Then, after considering the statutory
factors, the court reached the same ultimate conclusion and held Traun solely
responsible for the debt.

2
Although all briefing on Traun’s reconsideration motion was originally required to be
completed by June 2023, the court amended the briefing schedule at Traun’s request after he
hired counsel to represent him for the purposes of his reconsideration motion. Pursuant to the
new schedule, all briefing was completed by late September 2023.
3
More specifically, the circuit court declined to reconsider its prior determinations
regarding the investment accounts and the stock sale. The court also declined to reconsider an
additional issue related to Traun’s income, but Traun does not make any arguments about that
issue on appeal and we address it no further.

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¶8 Traun filed a pro se notice of appeal on January 18, 2024.4 His
appellant’s brief challenges the circuit court determinations on the four subjects
that are mentioned above. After we concluded that our appellate jurisdiction
might be in question, we ordered the parties to address the timeliness of Traun’s
appeal as to the divorce judgment, as well as our ability to consider Traun’s appeal
of the reconsideration decision.

¶9 In addition to her respondent’s brief, Kraemer filed a separate
motion asking this court to award her the costs and attorney fees she incurred in
responding to Traun’s appeal.

DISCUSSION

¶10 We begin our analysis by considering the threshold issues related to
our jurisdiction. After concluding that we have appellate jurisdiction to address
just one of the four circuit court determinations that Traun challenges on appeal,
we address the merits of Traun’s challenge to that determination. Finally, we
address Kraemer’s motion for costs and attorney fees.

I. Jurisdiction

¶11 We begin by summarizing some of the legal principles that are
pertinent to the jurisdictional issues here. The filing of a timely notice of appeal is

4
Traun’s notice of appeal stated that he was appealing the December 4, 2023
reconsideration decision, but the notice of appeal did not state that Traun intended to appeal the
April 24, 2023 divorce judgment. If the notice of appeal was timely as to the divorce judgment,
an issue that we discuss below, we would overlook Traun’s failure to specifically identify it in the
notice of appeal. See Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶46, 299 Wis. 2d 723,
728 N.W.2d 670 (“[A]ppellate courts should liberally construe ambiguities to preserve the right
of appeal.”).

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No. 2024AP88

necessary to give this court jurisdiction to review any judgment or order that was
entered in a circuit court case. WIS. STAT. § 809.10(1)(e). The time to appeal a
final judgment is generally controlled by WIS. STAT. § 808.04(1), which provides
a 45- or 90-day appeal timeline that commences upon entry of the final judgment.
In a civil case such as this in which no notice of entry of judgment is filed, a party
would typically have 90 days from the entry of the final judgment to file a notice
of appeal pursuant to § 809.10(1)(e).5

¶12 However, there is another statutory provision, WIS. STAT.
§ 805.17(3), that will in some cases extend the deadline to appeal a final judgment
beyond the 45- or 90-day appeal timeline set by WIS. STAT. § 808.04(1). More
specifically, if a party files a motion to reconsider the judgment pursuant to
§ 805.17(3), as Traun did here, § 805.17(3) delays the commencement of the
appeal timeline for a period of time to allow the circuit court to resolve the
reconsideration motion.6 See Continental Cas. Co. v. Milwaukee Metro.
Sewerage Dist., 175 Wis. 2d 527, 535, 499 N.W.2d 282 (Ct. App. 1993); Salzman
v. DNR, 168 Wis. 2d 523, 530-31, 484 N.W.2d 337 (Ct. App. 1992). We discuss

5
The 90-day timeline would be shortened under some circumstances to 45 days if
“written notice of the entry of a final judgment or order is given within 21 days of the final
judgment or order as provided in [WIS. STAT. §] 806.06(5).” WIS. STAT. § 808.04(1).
6
Although not directly material to the issues we decide here, we stress that WIS. STAT.
§ 805.17(3) applies only when there is a motion for reconsideration of a final order or judgment
following a trial to the court. The statute does not apply to delay the commencement of appellate
timelines in other instances. See Continental Cas. Co. v. Milwaukee Metro. Sewerage Dist., 175
Wis. 2d 527, 529, 533, 499 N.W.2d 282 (Ct. App. 1993) (holding that § 805.17(3) does not apply
when a motion for reconsideration was made in the summary judgment context); Highland
Manor Assocs. v. Bast, 2003 WI 152, ¶26, 268 Wis. 2d 1, 672 N.W.2d 709 (although § 805.17(3)
allows a tenant to seek reconsideration of an eviction judgment, it does not extend the 15-day
deadline to appeal the eviction judgment).

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the text of § 805.17(3) and its application to Traun’s appeal in greater detail
below.

¶13 Additionally, there is a separate jurisdictional rule established by
Wisconsin case law that specifically pertains to orders that resolve a motion to
reconsider a previously entered final judgment. Ver Hagen, 55 Wis. 2d at 26;
Silverton, 143 Wis. 2d 661; see also Marsh v. City of Milwaukee, 104 Wis. 2d 44,
45, 310 N.W.2d 615 (1981). The rule is that, if a party failed to timely appeal the
judgment, the party cannot revive its expired deadline by appealing an order that
denied a motion for reconsideration that presented the same issues as those
determined in the judgment sought to be reconsidered. Silverton, 143 Wis. 2d at
665.

¶14 We now consider how these jurisdictional principles play out here.
As stated, Traun challenges the circuit court’s determinations on four subjects: the
income calculation; the student debt; the investment accounts; and the stock sale.
We first consider whether we have jurisdiction to review the circuit court’s
calculation of Kraemer’s income, which the court addressed in the divorce
judgment but not in its reconsideration decision. After concluding that we lack
appellate jurisdiction to review that determination because Traun did not timely
appeal the divorce judgment under WIS. STAT. § 805.17(3), we turn to the
remaining determinations, which were addressed in the reconsideration decision as
well as in the divorce judgment.

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A. The April 24, 2023 Divorce Judgment

¶15 Traun argues that the circuit court erred when, for purposes of
determining child support, the court excluded Kraemer’s investment income and
calculated Kraemer’s income based on her W-2 alone.7 As mentioned, our ability
to review alleged errors related to this determination turns on whether we have
jurisdiction to consider a challenge to the divorce judgment, which was a final
judgment for purposes of appeal. This is because the income calculation was

7
Although not necessary to our resolution of this appeal, we briefly expand on two
separate problems with some of Traun’s arguments about the calculation of Kraemer’s income
and the circuit court’s determination about child support.

First, in addition to arguing that the circuit court erred in its final judgment, Traun
appears to be arguing that a court commissioner erred with respect to temporary orders that
preceded the final judgment and a decision on contempt that was issued after this appeal was
filed. To the extent that Traun is attempting to appeal decisions made by the court commissioner,
these decisions are not appealable; they must be reviewed in a de novo hearing before the circuit
court before they can be appealed to this court. See State v. Trongeau, 135 Wis. 2d 188, 191-92,
400 N.W.2d 12 (Ct. App. 1986) (decisions of court commissioners are not appealable); WIS.
STAT. § 757.69(8) (a party may obtain review of a court commissioner’s decision by seeking a de
novo hearing in the circuit court). Traun does not cite anything in the record showing that he
obtained de novo review of any of those orders. See Roy v. St. Lukes Med. Ctr., 2007 WI App
218, ¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256 (“We are limited to matters in the record.”).

Second, Traun argues that Kraemer misrepresented her income to the circuit court
throughout the divorce proceedings, and therefore, we should find her “in contempt of court
pursuant to [WIS. STAT.] § 767.127 and [WIS. STAT.] § 785.02.” Traun does not point to any
authority to support the proposition that this court could independently determine that a party is in
contempt of a circuit court order, and our review of the case law suggests that such a
determination would rest with the circuit court. See, e.g., Marcott v. Marcott, No. 2013AP96,
unpublished slip op. ¶5 (WI App Feb. 27, 2014) (“The broad authority of the circuit court
includes the authority to find a person in contempt of court for intentionally disobeying, resisting,
or obstructing an order of the court, such as a divorce judgment. We review a circuit court’s
contempt finding for an erroneous exercise of discretion.” (internal citations omitted)); Benn v.
Benn, 230 Wis. 2d 301, 308, 602 N.W.2d 65 (Ct. App. 1999) (“We also review a circuit court’s
use of its contempt power to determine whether the court properly exercised its discretion.”).

We cite Marcott and two other authored, unpublished decisions in our opinion for
persuasive authority pursuant to WIS. STAT. § 809.23(3)(b).

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No. 2024AP88

included in the divorce judgment, and Traun did not raise any argument about that
calculation in his reconsideration motion. Therefore, to review any errors the
court made regarding Kraemer’s income, we would have to have jurisdiction over
an appeal of the divorce judgment itself.

¶16 Resolution of that issue turns on the interpretation and application of
WIS. STAT. § 805.17(3). When interpreting a statute, we begin with its language.
See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.
2d 633, 681 N.W.2d 110. “Statutory language is given its common, ordinary, and
accepted meaning,” and we read the language “in the context in which it is used;
not in isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes”; and consistent with its purpose. Id., ¶¶45, 46, 48.

¶17 As noted, in a civil case such as this in which no notice of entry of
judgment was filed, Traun would typically have 90 days from the entry of the
divorce judgment to file his notice of appeal pursuant to WIS. STAT.
§ 809.10(1)(e). Here, however, Traun filed a motion for reconsideration of the
divorce judgment under WIS. STAT. § 805.17(3). The parties agree that the filing
delayed the “commence[ment]” of the “time for initiating an appeal” of the
divorce judgment, meaning that Traun’s deadline to appeal was delayed for some
period of time. See Continental Cas. Co., 175 Wis. 2d at 535 (“[Section]
805.17(3) modifies the deadline for filing an appeal.”). However, the parties
dispute how long the commencement of the appeal timeline was delayed. Traun
argues that his time to appeal the divorce judgment did not commence until the
circuit court decided his reconsideration motion, and that he timely appealed the
judgment after the court decided the motion. By contrast, Kraemer argues that, by
its terms, § 805.17(3) can delay the commencement of the time to appeal the
divorce judgment for no more than 90 days after the date the judgment was

9
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entered, and that here, the deadline to appeal the judgment elapsed before Traun
filed his notice of appeal. For reasons we now explain, we agree with Kraemer.

¶18 WISCONSIN STAT. § 805.17(3) provides that, following a trial to a
circuit court, a party may file a motion asking the court to “amend its findings or
conclusions.” The court may deny the motion or “amend the judgment
accordingly.” See § 805.17(3).

¶19 As pertinent to this appeal, a timely motion under WIS. STAT.
§ 805.17(3) modifies the time to appeal a judgment following a trial to the court
by delaying the commencement of the appeal timeline.8 The final three sentences
of § 805.17(3), which address “the time for initiating an appeal,” provide:

If the court amends the judgment, the time for
initiating an appeal commences upon entry of the amended
judgment. If the court denies a motion …, 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. If
within 90 days after entry of judgment the court does not
decide a motion filed under this subsection … the motion is
considered denied and the time for initiating an appeal from
the judgment commences 90 days after entry of judgment.

¶20 Thus, WIS. STAT. § 805.17(3) provides that “the time for initiating
an appeal” of the judgment “commence[s]” when one the following events occurs:
the court decides the reconsideration motion (either by entering an amended
judgment or by denying the reconsideration motion, whether on the record or by

8
Here, Traun filed his motion for reconsideration after the circuit court made an oral
decision on the record at the conclusion of the bench trial, but before the court memorialized its
decision in the written judgment that was entered in the record. Kraemer has not argued that
Traun’s motion was premature. Such an argument would fail under the unambiguous statutory
language, which provides that a reconsideration motion must be “made not later than 20 days
after entry of judgment.” WIS. STAT. § 805.17.

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entering an order); or 90 days after the entry of judgment if the court has not
decided the motion by that date.9 Accordingly, by its unambiguous terms, the
statute can delay the commencement of the appeal timeline for no longer than 90
days.

¶21 We acknowledge that, if we were to read the first two sentences of
the above-quoted statutory text in isolation, we might conclude that the appeal
timeline is delayed until after the circuit court decides the motion, as Traun
contends.10 However, statutory language should not be read in isolation, and the
final sentence of WIS. STAT. § 805.17(3) demonstrates that Traun’s interpretation
is incorrect. That sentence unambiguously sets an outer limit on how long the
appeal deadline can be delayed—under § 805.17(3), the commencement of the
appeal timeline turns on the circuit court’s reconsideration decision or the passage
of 90 days, whichever occurs first.

¶22 That is how we applied WIS. STAT. § 805.17(3) in Wainwright v.
Wainwright, 176 Wis. 2d 246, 248-50, 500 N.W.2d 343 (Ct. App. 1993). See
Berkos v. Shipwreck Bay Condo. Ass’n., 2008 WI App 122, ¶8, 313 Wis. 2d 609,
758 N.W.2d 215 (“Also relevant to a statute’s plain meaning is prior case law

9
Wisconsin courts have interpreted WIS. STAT. § 805.17(3) in this manner for decades.
See Salzman v. DNR, 168 Wis. 2d 523, 528, 484 N.W.2d 337 (Ct. App. 1992) (“[U]pon the filing
of a motion for reconsideration, the time for filing an appeal does not begin to run until the trial
court denies the motion on the record … or the time for consideration of the motion expires.”);
Highland Manor Assocs., 268 Wis. 2d 1, ¶24 (“The time for appeal from a judgment … would
be extended under § 805.17(3).”).
10
See WIS. STAT. § 805.17(3) (“If the court amends the judgment, the time for initiating
an appeal commences upon entry of the amended judgment. 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.”).

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No. 2024AP88

interpreting the statute.”) In Wainwright, we determined that a husband’s notice
of appeal of the final divorce judgment was not timely under § 805.17(3).
Wainwright, 176 Wis. 2d at 250. There, the circuit court did not issue a decision
on a pending reconsideration motion until five months after the court entered the
divorce judgment, and the husband filed his notice of appeal after the order
deciding the reconsideration motion was entered. Id. at 248. We explained that,
because the court had not decided the reconsideration motion within 90 days of the
judgment being entered, the motion was “deemed denied” “[f]or appeal purposes”
on the 90th day, and the time for commencing the appeal of the judgment began to
run that same day. Id. at 250 (citing § 805.17(3)). Wainwright therefore supports
our conclusion that, under § 805.17(3), an appeal deadline can be delayed, at most,
for 90 days.

¶23 Our interpretation finds further support in the drafting history of
WIS. STAT. § 805.17(3). As we now explain, this history demonstrates that the
drafters of § 805.17(3) were attempting to balance competing concerns, and to
encourage reconsideration at the circuit court level while at the same time
discouraging undue delay in appeals. Although we “need not” consult extrinsic
sources like drafting history if a statute’s meaning is plain, as we have concluded
that it is here, we may consult these sources to “confirm or verify a plain-meaning
interpretation.” See Kalal, 271 Wis. 2d 633, ¶51.

¶24 The amendments that are pertinent to our analysis were made by our
supreme court in 1991, consistent with a proposal that was drafted by the
Wisconsin Judicial Council. S. CT ORDER, In the Matter of the Amendment of the
Rules of Civil Procedure: Sections 801.15(2)(c), 805.16(3), 805.17(3), Stats.:
Reconsideration Motions, 160 Wis. 2d xiii (eff. July 1, 1991); see also Minutes of
the Meeting of the Wisconsin Judicial Council (Mar. 15, 1991). Prior to those

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amendments and much like the current version of the statute, § 805.17(3)
authorized a party to file a motion asking the court “to amend the judgment” or
“its findings or make additional findings.” WIS. STAT. § 805.17(3) (1989-90).
However, unlike the current version, the prior version did not delay the
commencement of the appeal timeline for any period of time while the
reconsideration motion was pending. Id. As a result, members of the judicial
council were concerned that the reconsideration process was used less often than it
might otherwise be used, and appellate courts were “[r]ather frequently” “urged to
decide a case upon a theory never adequately presented to the trial court.”
Minutes of the Meeting of the Wisconsin Judicial Council (Sept. 15, 1989).

¶25 To address that issue, the judicial council discussed ways to improve
the reconsideration procedure. Specifically, the council predicted that “the
number of appeals might be reduced” if “arguments which are now made for the
first time in the [c]ourt of [a]ppeals” were heard “in the trial courts instead.” Id.
To that end, the council initially proposed delaying the appeal deadline until the
court “disposed” of the reconsideration motion. Id. That way, a party could file a
motion asking the court to reconsider its findings and conclusions without fear that
the time to appeal might expire while the motion was pending, and the party could
hold off on filing an appeal until it knew that “an appeal [would] be necessary.”
Id.

¶26 At the same time, some members of the judicial council appeared to
be concerned that, if a motion for reconsideration could delay the commencement
of the appeal period indefinitely while the court considered the motion, there
might be “an undesirable delay into the appellate process.” Letter from the
Honorable William Eich, Chief Judge of the Wisconsin Court of Appeals and
Member of the Wisconsin Judicial Council, to Professor Eva M. Soeka, Member

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of the Wisconsin Judicial Council (Jan. 23, 1990). Specifically, the council was
aware of “the propensity of busy trial lawyers … and … busy trial judges” to
“maximize[e] time limits,” and was concerned about the delay that might result if
the commencement of the appellate process rested solely on the action or inaction
of the court in resolving reconsideration motions. Id.; see also Minutes of the
Meeting of the Wisconsin Judicial Council (Sept. 15, 1989).

¶27 These drafting files suggest that the version that was finally
proposed, and eventually adopted by our supreme court, sought to balance these
competing concerns. Delaying the commencement of the appeal timeline for a
period of time will, in many cases, allow reconsideration motions to be resolved
before the time to appeal expires. At the same time, delaying the commencement
of the appeal deadline for 90 days at most prevents reconsideration motions from
causing undue delay of the appeal.

¶28 Having concluded that WIS. STAT. § 805.17(3) can delay the
deadline in WIS. STAT. § 808.04(1) for, at most, an additional 90 days, we now
consider whether Traun’s appeal was timely as to the divorce judgment. The
circuit court entered the judgment, which followed a trial to the court, on April 24,
2023. Pursuant to § 808.04(1), Traun would have 90 days to appeal the final
judgment, before taking any delay imposed by § 805.17(3) into account.
However, Traun moved for reconsideration pursuant to § 805.17(3), and his timely
motion delayed the commencement of the appeal timeline. When the court did not
decide the reconsideration motion within 90 days, the motion was considered
denied for appeal purposes on July 24 (that is, 90 days after the April 24
judgment). See § 805.17(3); Wainwright, 176 Wis. 2d at 250. Traun’s notice of
appeal should therefore have been filed within 90 days of July 24, and it is
undisputed that Traun did not file his notice of appeal within that time.

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Accordingly, we conclude that his notice of appeal was untimely as to the divorce
judgment, and we lack jurisdiction to review the court’s determination of
Kraemer’s income.

¶29 We acknowledge that WIS. STAT. § 805.17(3) can be a trap for the
unwary and, at times, may result in harsh consequences for parties who do not
carefully monitor appeal deadlines. However, the unambiguous language of
§ 805.17(3) sets a rigid deadline, and the policy underlying that rigid deadline is to
prevent reconsideration motions from unduly delaying the appellate process. As
explained in Matton Steamboat Co. v. Murphy, 319 U.S. 412 (1943), appeal
deadlines can be critical to the functioning of our legal system because they “set a
definite point of time when litigation shall be at an end” and “advise prospective
appellees that they are freed of the appellant’s demands.” Id. at 415.

B. The December 4, 2023 Reconsideration Decision

¶30 We now consider our jurisdiction over the remaining three
determinations that Traun challenges on appeal. As discussed above, the circuit
court originally made these determinations in the divorce judgment, and it
addressed them again in its order deciding the motion for reconsideration. Given
our conclusion that we do not have jurisdiction over the divorce judgment, our
ability to review Traun’s challenges to these determinations turns on whether we
have jurisdiction over his appeal of the reconsideration decision.

¶31 There is no dispute that Traun’s appeal of the reconsideration
decision was timely under WIS. STAT. § 808.04(1)—the circuit court entered an
order deciding Traun’s reconsideration motion on December 4, 2023; § 808.04(1)
provides a 90-day deadline to appeal in civil cases like this, in which no notice of
entry of judgment was served; and Traun filed his notice of appeal on January 18,

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2024. However, Kraemer argues that we cannot review the reconsideration
decision because the court lacked competency to enter the order on December 4,
2023. We consider and reject Kraemer’s argument about competency, and we
then apply the rule set forth in Ver Hagen, 55 Wis. 2d 21, and Silverton, 143 Wis.
2d 661, which governs our jurisdiction over Traun’s appeal of the reconsideration
decision.

1. Competency

¶32 Kraemer’s competency argument is based on WIS. STAT.
§ 805.17(3). As we have explained, the filing of a motion to reconsider a final
judgment under § 805.17(3) delays the deadline to appeal a final judgment for up
to 90 days. Kraemer argues that, in addition to delaying the deadline to appeal the
divorce judgment, the statute also imposes a 90-day deadline for the circuit court
to decide the reconsideration motion, and that the court lost competency to decide
the reconsideration motion after those 90 days elapsed. Therefore, she argues, the
December 4 order is “null and void” and was “not a legitimate order … to appeal
from.”

¶33 As a preliminary matter, we agree with a predicate of Kraemer’s
argument—that a loss of competency would affect the circuit court’s ability to
enter a judgment. See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶10, 273
Wis. 2d 76, 681 N.W.2d 190 (2004) (competency refers to “the court’s power to
proceed in the particular case before the court”); City of Eau Claire v. Booth,
2016 WI 65, ¶¶7, 12, 370 Wis. 2d 595, 882 N.W.2d 738 (competency is “defined
as ‘the power of a court to exercise its subject matter jurisdiction’” and “to
proceed to judgment in the particular case before the court” (citation omitted)).
We also agree that a court may lose competency to enter judgment if it fails to

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comply with applicable deadlines. Id. ¶21 (“[A] circuit court may lose
competency to enter judgment in a particular case if statutory requirements are not
met.”). However, we do not agree with Kraemer’s argument that WIS. STAT.
§ 805.17(3) imposes a 90-day deadline on the circuit court to decide a motion for
reconsideration, after which the court loses competency to act.

¶34 We begin by noting that Kraemer does not identify anything in the
text of WIS. STAT. § 805.17(3) that supports her argument. See Kalal, 271 Wis. 2d
633, ¶45 (“[S]tatutory interpretation ‘begins with the language of the statute. If
the meaning of the statute is plain, we ordinarily stop the inquiry.’” (citation
omitted)). Section 805.17(3) does not contain any language that requires a circuit
court to decide a reconsideration motion within 90 days, or that provides that the
court loses competency if the motion is not decided within 90 days. Instead, the
statute merely says what we have explained above—if the court does not decide
the motion within 90 days, “the motion is considered denied and the time for
initiating an appeal from the [final] judgment commences.” See § 805.17(3).

¶35 Nor does Kraemer’s argument find support in the case law she cites.
That is, Kraemer does not point to any case that has interpreted WIS. STAT.
§ 805.17(3) as imposing a 90-day deadline for the circuit court to decide a
reconsideration motion.11 In Wainwright, which we discussed above, we
determined that the language of § 805.17(3) modified the party’s deadline to
appeal a final judgment. Wainwright, 176 Wis. 2d at 250. But we did not say that
the circuit court was required to decide the reconsideration motion within 90 days,

11
See Berkos v. Shipwreck Bay Condo. Ass’n, 2008 WI App 122, ¶8, 313 Wis. 2d 609,
758 N.W.2d 215 (“Also relevant to a statute’s plain meaning is prior case law interpreting the
statute.”).

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No. 2024AP88

or that it had lost competency to issue its decision more than five months after it
entered the final judgment. Id. at 249-50. Likewise, in a subsequent unpublished
opinion that may be cited as persuasive authority, we rejected an argument that the
circuit court’s reconsideration decision, which was made more than 90 days after
the final judgment, was “void” for lack of competency. See Koch v. Koch,
No. 2011AP1186, unpublished slip op. ¶¶7, 13 (WI App Feb. 6, 2014).12

¶36 Kraemer’s argument is instead based on a sentence found in
Schmorrow v. Sentry Ins. Co., 138 Wis. 2d 31, 405 N.W.2d 672 (Ct. App. 1987).
In that case, we analyzed a different statute, WIS. STAT. § 805.16, which we refer
to as the “motion-after-verdict statute.” Id. at 35. The text of the motion-after-
verdict statute and a related statute required a circuit court to decide motions after
a verdict within 90 days of the verdict.13 Id. at 35-36. In Schmorrow, the circuit
court failed to decide the pending motions after the verdict within 90 days of the
verdict, and we concluded that “[t]he expiration of the ninety-day time limit

12
In Koch, our analysis was based on WIS. STAT. § 808.075(3), which provides that a
“circuit court retains the power to act on all issues until the record has been transmitted to the
court of appeals.” Koch v. Koch, No. 2011AP1186, unpublished slip op. ¶13 (WI App Feb. 6,
2014). Therefore, we concluded that the circuit court retained competency to decide a
reconsideration motion filed under WIS. STAT. § 805.17(3) until the record was transmitted to the
court of appeals. Id. Although our conclusion in Koch ultimately turned on a different statute
and we did not specifically address the competency argument that Kraemer makes today, we
considered the pertinent text of § 805.17(3) and did not conclude that it imposed any type of
deadline on the circuit court.
13
At that time, the operable version of the motion-after-verdict statute provided that,
“[i]f an order granting or denying a motion challenging the sufficiency of the evidence or for a
new trial is not entered within 90 days after the verdict, the motion shall be deemed denied.”
WIS. STAT. § 805.16 (1985-86). A related statute, WIS. STAT. § 805.14 (1985-86), made clear
that motions after the verdict must be decided within 90 days of the verdict. See § 805.14 (1985-
86) (“[i]f a motion after the verdict is timely filed, judgment on the verdict shall be entered upon
denial of the motion.”) Thus, a motion was “deemed denied” 90 days after the verdict, and the
expiration of that time period triggered the entry of judgment. Accordingly, a circuit court
therefore had, at most, 90 days to issue a decision on any motions after the verdict.

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No. 2024AP88

deprived the trial court of competency to exercise its jurisdiction to decide the
motions after the verdict.” Id. at 37.

¶37 We have no reason to question the Schmorrow court’s interpretation
of the motion-after-verdict statute, which has been reaffirmed in subsequent
decisions.14 But we conclude that Kraemer’s reliance on Schmorrow as a basis for
interpreting WIS. STAT. § 805.17(3) is misplaced for two reasons.

¶38 First, as we have mentioned, the Schmorrow court was interpreting
the motion-after-verdict statute, rather than WIS. STAT. § 805.17(3). Kraemer does
not explain why the Schmorrow court’s interpretation of a different statute should
govern our interpretation of § 805.17(3). See Techworks, LLC v. Wille, 2009 WI
App 101, ¶27, 318 Wis. 2d 488, 770 N.W.2d 727 (we are not required to entertain
undeveloped arguments).

¶39 Second, there are good reasons to interpret WIS. STAT. § 805.17(3)
differently from how we have interpreted the motion-after-verdict statute. The
statutes are different not only in their text, but also in their function. For instance,
the motion-after-verdict statute is a pre-judgment procedure that imposes an
explicit deadline on the circuit court. Specifically, the statute provides: “If within
90 days after the verdict is rendered the court does not decide a motion after
verdict…the motion is considered denied and judgment shall be entered ….” WIS.

14
See Brandner v. Allstate Ins. Co., 181 Wis. 2d 1058, 1070-71, 512 N.W.2d 753
(1994) (A circuit court “loses its competency to decide post-verdict motions after the 90-day time
limit of [WIS. STAT. §] 805.16(3) has expired. We … therefore conclude that the supplemental
decision in this case is a nullity.” (citation omitted)); Eastman v. Bennett, No. 2006AP626,
unpublished slip op. ¶9 (WI App. May 15, 2007) (“[U]nder § 805.16(3), ‘a [circuit] court loses its
competency to decide post-verdict motions after the expiration of ninety days from the date of the
jury verdict.’” (citation omitted)).

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No. 2024AP88

STAT. § 805.16(3) (emphasis added). Because the entry of judgment puts the
verdict into effect and is the court’s “[final] determination of the action,” WIS.
STAT. § 806.01(1)(a), the motion-after-verdict statute necessarily creates a
deadline for the court to decide such motions. Thus, consistent with its text and
purpose, we have reasonably interpreted the motion-after-verdict statute as
resulting in a loss of competency if the circuit court does not comply with its
deadline.

¶40 By contrast, WIS. STAT. § 805.17(3) is a post-judgment procedure
that, as discussed above, does not impose any explicit or implicit 90-day deadline
on the circuit court that could precipitate its loss of competency. Instead, as we
have explained, the text creates a deadline for any party wishing to appeal the
previously entered judgment—once 90 days pass without a decision from the
court, “the [party’s] time for initiating an appeal … commences.”

¶41 For all these reasons, we conclude that Kraemer’s reliance on
Schmorrow is inapt. We further conclude that the circuit court had not lost
competency to decide Traun’s reconsideration motion at the time it issued the
December 4, 2023 order.

2. The Ver Hagen/Silverton Rule

¶42 Our jurisdiction over Traun’s appeal of the reconsideration decision
is instead governed by Ver Hagen, 55 Wis. 2d 21, and Silverton, 143 Wis. 2d 661.
The rule from those cases is that “[n]o right of appeal exists from an order denying
a motion to reconsider which presents the same issues as those determined in the
… judgment sought to be reconsidered.” Silverton, 143 Wis. 2d at 665. The
policy underlying the rule is to prevent a party from reviving an expired appeal

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No. 2024AP88

deadline by filing a motion for reconsideration that raises the same issues that
were decided in a final judgment or order. See Ver Hagen, 55 Wis. 2d at 26.

¶43 We pause to emphasize an important point. There would be no need
for this court to address whether the reconsideration decision is appealable under
the Ver Hagen/Silverton rule if Traun had timely appealed the divorce judgment,
which was a final judgment for purposes of appeal. See Silverton, 143 Wis. 2d at
665 (the rule is animated by the concern “that a motion for reconsideration should
not be used as a ploy to extend the time to appeal from [a final] order or judgment
when the time to appeal [that order or judgment] had expired”). Had Traun timely
appealed the divorce judgment and the reconsideration decision alike, there would
be no barrier to our appellate jurisdiction, and we would generally review the
merits of any challenged determination in either decision based on the applicable
legal standards.15 Here, however, because Traun did not timely appeal the divorce
judgment, we must apply the rule from Ver Hagen and Silverton to resolve the
threshold question of whether we have appellate jurisdiction to review the merits
of any issues that the circuit court addressed in its reconsideration decision.

¶44 By its terms, the Ver Hagen/Silverton rule pertains to issues for
which the circuit court denied reconsideration. Id. Here, however, the court
indicated that it was granting reconsideration of its prior determination about the
student debt, and the court issued a new decision that provided additional analysis

15
These standards include the standards for prevailing on a motion for reconsideration,
which are set forth in Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn
Wagons, Ltd., 2004 WI App 129, ¶6, 275 Wis. 2d 397, 685 N.W.2d 853. See id., ¶44 (“To
prevail on a motion for reconsideration, the movant must either present newly discovered
evidence or demonstrate that the circuit court’s prior decision contained a manifest error of law or
fact.”).

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No. 2024AP88

supporting its determination of that issue. Therefore, by its terms, the rule does
not prevent us from considering the portion of the reconsideration decision that
addressed Traun’s student debt. And, apart from the competency argument that
we have rejected, Kraemer makes no other argument about why we could not
review that portion of the reconsideration decision. We conclude that we have
jurisdiction to address the merits of Traun’s challenge to the student debt
determination, and we consider that challenge in the following section of this
opinion.

¶45 We now turn to the determinations that the circuit court declined to
reconsider (the investment accounts and the stock sale), and we address whether
our jurisdiction is precluded by Ver Hagen and Silverton. Our case law directs us
to apply the “new issues test,” which requires us to compare the issues Traun
raised in the motion for reconsideration with the issues the court disposed of in the
divorce judgment. Harris v. Reivitz, 142 Wis. 2d 82, 87-88, 417 N.W.2d 50 (Ct.
App. 1987) (citing Ver Hagen, 55 Wis. 2d at 25). We do not have jurisdiction
over the appeal of any issues raised in the reconsideration decision that were
disposed of in the divorce judgment. See id. Applying the “new issues” test, we
conclude that we lack appellate jurisdiction to review either determination.

¶46 With respect to the investment accounts, Traun’s reconsideration
motion argued that the circuit court erred when it found that his use of the
accounts constituted marital waste. Traun argued that the trial evidence showed
that the accounts were “depleted solely [due] to market forces, not due to [his]
intentionally squandering … marital property,” and he further argued that the court
should have valued the accounts based on screenshots he provided that purported
to show the account balances as of the day of trial.

22
No. 2024AP88

¶47 Based on our review of the record, it is evident that the circuit court
disposed of those issues in the final judgment. At trial, the court considered
whether Traun committed marital waste with his investment accounts, and it
determined that the evidence showed that Traun had “emptied out” the accounts
over the past year and “has not adequately accounted for what happened to reduce
those accounts.” The court likewise considered whether it should use the
screenshots that Traun provided at trial to value those accounts; however, because
the evidence showed that Traun “drained all of the accounts in his control,” the
court determined that the evidence he provided regarding the account balances
was not reliable. Thus, Traun’s motion for reconsideration did not present any
new issues regarding the investment accounts that the court had not already
addressed.

¶48 We reach the same conclusion with respect to the stock sale. In his
reconsideration motion, Traun took the position that Kraemer sold stock during the
pendency of the divorce, and he argued that the circuit court should have included
the proceeds from that sale in the marital estate, given that a temporary order that
was in place at that time provided that “[t]he parties shall equally share any
proceeds from the sale of [Kraemer’s] vested stock units.” Again, the court
disposed of this issue in the divorce judgment—Traun raised this issue several
times during the trial, and the court ultimately declined to include the stock sale in
the marital estate. We therefore conclude that Traun’s motion for reconsideration
did not present any new issues regarding the stock sale that the court had not
already addressed.

¶49 In sum, we have appellate jurisdiction to review the portion of the
reconsideration decision in which the circuit court reconsidered its prior
determination about the student debt because the Ver Hagen/Silverton rule does

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No. 2024AP88

not prevent us from reviewing issues for which the circuit court granted
reconsideration, but we lack appellate jurisdiction to review the two
determinations that the court denied to reconsider because Traun’s motion did not
present any new issues that the court had not already addressed.

II. Traun’s Student Debt

¶50 We now consider the merits of Traun’s challenge to the
determination that the circuit court made in its reconsideration decision about his
student debt. The division of property in a divorce is a decision “entrusted to the
discretion of the circuit court,” and will not be disturbed on review unless there
has been an erroneous exercise of discretion. LeMere v. LeMere, 2003 WI 67,
¶13, 262 Wis. 2d 426, 663 N.W.2d 789. We will affirm a court’s exercise of
discretion as long as the court “examined the relevant facts, applied a proper
standard of law, and, using a demonstrated rational process, reached a conclusion
that a reasonable judge could reach.” Id. (citations omitted).

¶51 As mentioned, Traun argues that the circuit court erroneously
exercised its discretion when it excluded the premarital portion of Traun’s student
debt from the marital estate. Specifically, he argues that the court did not consider
all the statutory factors as required by WIS. STAT. § 767.61(3), and that, had the
court properly applied § 767.61(3), it would have divided his premarital student
debt equally between the parties. We disagree.

¶52 Traun is correct that WIS. STAT. § 767.61(3) presumes that property
will be equally divided between divorcing parties, and provides that a deviation
from that presumption must “be based upon consideration of all [of] the statutory
factors” in § 767.61(3). Id., ¶24. However, a circuit court is not precluded “from
giving one statutory factor greater weight than another, or from concluding that

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No. 2024AP88

some factors may not be applicable at all.” Id., ¶¶24-25. Additionally, a court’s
“failure to address factually inapplicable statutory factors” is not considered an
erroneous exercise of discretion. Id., ¶26. Therefore, contrary to Traun’s
assertions, it was not necessarily an “erroneous exercise of discretion” that the
court discussed some but not all of the statutory factors in its written order. This is
especially true under the circumstances here, in which the court explicitly stated
that it was addressing only “the relevant factors” in its reconsideration decision.
Accordingly, we decline to conclude that the court erred in exercising its
discretion merely because its written order did not discuss factors that were
“factually inapplicable.” Id.

¶53 To the extent that Traun takes issue with the circuit court’s analysis
under WIS. STAT. § 767.61(3), we conclude that the court’s decision to allocate the
premarital student debt solely to Traun was reasonable. In allocating the debt to
Traun, the court considered Traun’s relatively high earning capacity, the fact that
“[he] alone [would] benefit from his increased earning capacity post-divorce,” and
his use of marital assets to invest in day trading and cryptocurrency when he
“could have made considerable progress in paying down his student loan debt
during the marriage.” Although those factors appeared to weigh most heavily in
the court’s analysis, the court also considered Kraemer’s earning capacity, which
was considerably lower than Traun’s, as well as her contribution of “personal
assets” to the marriage while Traun completed his education. For these reasons, it
is evident that the court “examined the relevant facts, applied a proper standard of
law,” and used “a demonstrated rational process” to make its determination. Id.,
¶13.

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No. 2024AP88

III. Kraemer’s Motion for Costs and Attorney Fees

¶54 We now address Kraemer’s motion for costs and attorney fees.
Kraemer argues that she is entitled to costs and fees under WIS. STAT. RULE
809.25(3)(c)2. because Traun’s appeal is frivolous, or alternatively, based on the
“overtrial” doctrine. We address each argument in turn.

¶55 Whether an appeal is frivolous is a question of law. Howell v.
Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621. Sanctions for a
frivolous appeal will be imposed if the court concludes that the party “knew, or
should have known, that the appeal … [had no] reasonable basis in law or equity
and could not be supported by a good faith argument for an extension,
modification, or reversal of existing law.” Id. (citing WIS. STAT. RULE
809.25(3)(c)2.). Although we give some allowance to pro se parties, the standard
is objective, so we must examine what a reasonable person “in the position of this
pro se litigant kn[e]w or [should] have known about the facts and the law relating
to the arguments presented.” Holz v. Busy Bees Contracting, Inc., 223 Wis. 2d
598, 608, 589 N.W.2d 633 (Ct. App. 1998).

¶56 Importantly, to award costs and attorney fees, we “must conclude
that the entire appeal is frivolous.” Howell, 282 Wis. 2d 130, ¶9. In deciding
whether an appeal is frivolous under WIS. STAT. RULE 809.25(3)(c)2., we “resolve
all doubt in favor of finding the claim[s] nonfrivolous.” Dietscher v. Pension Bd.
of Emps. Ret. Sys. of Milwaukee, 2019 WI App 37, ¶56, 388 Wis. 2d 225, 932
N.W.2d 446 (citation omitted).

¶57 Admittedly, Traun’s arguments on appeal are weak. We have
concluded that we lack appellate jurisdiction over the majority of issues that Traun
raised in his appeal, and on the one issue that is the proper subject of appeal, he

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No. 2024AP88

has not persuaded us that the circuit court erred. However, we cannot conclude
that Traun’s entire appeal lacks any “reasonable basis in law or equity.” See
Howell, 282 Wis. 2d 130, ¶9 (quoting WIS. STAT. RULE 809.25(3)(c)2.).
Specifically, Traun presented a nonfrivolous challenge to the circuit court’s
treatment of his student debt, which was based on the text of the pertinent statute,
WIS. STAT. § 767.61(3). Although we have concluded that the court did not
erroneously exercise its discretion under § 767.61(3), the record provides the raw
material for an argument that the court did not correctly apply that statute.
Accordingly, we conclude that the entire appeal is not frivolous.

¶58 We now address Kraemer’s alternative argument that we should
impose costs based on Traun engaging in “overtrial.” We reject this argument for
two reasons.

¶59 First, the argument is insufficiently developed. Although Kraemer
asserts that she is the “victim of overtrial,” she does not develop an argument to
support her assertion that Traun “unreasonably [engaged in] excessive litigation …
resulting in overtrial.” Zhang v. Yu, 2001 WI App 267, ¶11, 248 Wis. 2d 913,
673 N.W.2d 754.

¶60 Second, Kraemer does not identify any authority to support the
position that an appellate court may independently determine that a party has
engaged in overtrial and impose sanctions on that basis. The court of appeals is
not a fact-finding court, Lange v. LIRC, 215 Wis. 2d 561, 572, 573 N.W.2d 856
(Ct. App. 1997), and our review of the case law suggests that a determination
about overtrial rests with the circuit court. See Zhang, 248 Wis. 2d 913, ¶11
(“Whether excessive litigation occurred is a question of historic fact to be
determined by the circuit court.”); Ondrasek v. Ondrasek, 126 Wis. 2d 469, 483,

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No. 2024AP88

377 N.W.2d 190 (Ct. App. 1985) (“The award of contribution to attorney fees
rests within the discretion of the trial court.”). Although Kraemer asked the circuit
court to impose costs, she does not identify anything in the record that shows that
the court made a finding that Traun engaged in overtrial in this case.

CONCLUSION

¶61 For the reasons explained above, we conclude that we lack appellate
jurisdiction over the divorce judgment. Regarding the reconsideration decision,
we conclude that we have appellate jurisdiction to review the portion of the
decision in which the circuit court granted reconsideration of its prior
determination about Traun’s student debt; however, we lack jurisdiction to review
the remaining determinations, which the court declined to reconsider. Regarding
the merits of the circuit court’s determination about his student debt, we reject
Traun’s arguments and affirm the reconsideration decision. Separately, we deny
Kraemer’s motion for costs and attorney fees for this appeal.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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