Flummoxed by Finality

In a cautionary tale for practitioners, the Wisconsin Supreme Court affirmed the dismissal of appeal from a post-judgment order as untimely.

In 2007, the Wisconsin Supreme Court announced a rule requiring that final orders include a “statement on the face of a document that it is a final order for the purpose of appeal.”¹ Ever since, judges and lawyers in Wisconsin have dutifully added, “This is a final order for purposes of appeal,” as the closing line of any final order. When it announced this requirement, the court said it “should forestall situations” where parties inadvertently forfeit appellate rights because they failed to realize an order was final for purposes of appeal.

Well, eighteen years later, there’s still plenty of confusion to go around. The supreme court’s recent decision in Morway v. Morway, 2025 WI 3, is the latest proof. More specifically, Morway highlights the difficulty in determining whether a post-judgment order is final for purposes of appeal.

Here’s the factual setup. In 2019, David and Karen Morway were divorced pursuant to a final judgment which ordered David to pay Karen monthly spousal maintenance. (For the astute NBA fans out there, David Morway is the former general manager of the Indiana Pacers and a former assistant general manager to both the Milwaukee Bucks and, most recently, the Utah Jazz.)

Three years after the divorce, David filed a motion to modify his spousal maintenance obligations based on a change in circumstances—specifically, his new contract with the Utah Jazz. Karen opposed David’s motion, and a three-day trial followed. On May 24, 2023, the circuit court entered an order denying David’s motion to modify maintenance. The May 24 order did not include any language indicating that it was a final order for purposes of appeal. Instead, the court’s order anticipated that Karen would file an overtrial motion, stating, “As to Karen’s request for contribution to attorney fees for overtrial, the Court presently has insufficient information to address that issue and Karen will file a separate Motion on this issue.” In the weeks that followed, Karen filed and litigated her overtrial motion and ultimately obtained a ruling in her favor on August 28, 2023.

A few days later, on September 1, 2023, David filed a notice of appeal from both the denial of his motion to modify spousal maintenance and the circuit court’s decision to grant Karen’s overtrial motion. The notice was filed 100 days after the May 24 order on David’s spousal maintenance motion. (The Wisconsin notice of appeal deadline is 45 or 90 days, depending on whether a notice of entry of final judgment is served.) The court of appeals dismissed David’s appeal from the spousal maintenance order, holding the May 24 order was final despite its lack of finality language and that David’s appeal from the spousal maintenance order was therefore untimely. David filed a petition for review, setting up the case for supreme court review.

But how did we get here? At the top, I told you that since 2007 the supreme court has required that final orders state on their face that they are final orders for purposes of appeal. The May 24 order lacked any sort of finality language. Shouldn’t that be the end of it? As it turns out—and this is a major point of caution for practitioners—the absence of finality language only creates a quasi-presumption that an order is not final. The order may still be treated as final if, in fact, it “disposed of the entire matter in litigation.”

Sitting with six justices—Chief Justice Ziegler did not participate—the supreme court affirmed in a 4-2 decision. The majority opinion was authored by Justice Ann Walsh Bradley (who, incidentally, also authored the 2007 decision requiring finality language in the first place) and was joined by Justices Dallet, Karofsky, and Protasiewicz. The opinion reads as a bit of a primer on Wisconsin’s finality rules. It explains that although the inclusion of finality language in an order is an indication of its finality, the absence of such a statement is not necessarily determinative of non-finality. Rather, in the absence of a finality statement, courts are to “liberally construe any ambiguities in the judgment or order at issue to preserve the right to appeal.” However—and this is the cautionary bit—”an incorrect or nonexistent finality statement will not render ambiguous an otherwise unambiguous final judgment or order.” In other words, even if the finality language is missing, an order will nevertheless be final if it disposes of the entire matter in litigation.

Here, the issue was whether the spousal maintenance decision unambiguously disposed of the entire matter in litigation even though the circuit court’s May 24 order anticipated that Karen would file an overtrial motion in the days following the order. The court held the May 24 order was final despite the anticipated overtrial motion because, as of the date the order was issued, there were no remaining disputes pending between David and Karen. The majority explained:

David argues that Karen’s overtrial motion was before the court because the May 24 order said that “Karen will file a separate Motion” on overtrial. However, if that statement would be enough to keep the entire matter in litigation open, it could remain open indefinitely. Stated another way, the finality of the May 24 order could depend on whether Karen ultimately files an overtrial motion. We disfavor an understanding of finality that frustrates the efficient administration of justice by indefinitely extending litigation and do not embrace it here. Therefore, the finality of the May 24 order is not rendered ambiguous by any of David’s asserted claims.

Rather, we conclude that the May 24 order unambiguously disposed of the entire matter in litigation. When the circuit court entered the May 24 order, all that was before the court was David’s motion to modify or terminate maintenance, which the order explicitly denied.

Justice Hagedorn filed a dissenting opinion, which was joined by Justice Rebecca Grassl Bradley. The dissent took a more functional view of whether an order is final for purposes of appeal in the absence of finality language. In Justice Hagedorn’s view, the language in the May 24 order indicating that an overtrial motion was anticipated “at least arguably reflects that a matter of substantive law remained between the parties.” In light of that ambiguity, the court’s “cases instruct that the May 24 Order must be construed liberally to preserve David’s right to appeal.”

The lineup in this case was a bit surprising—at least to me. It’s probably not a reach to generalize that the more liberal justices on the court tend to favor more functional forms of analysis to legal questions, and the more conservative justices tend to prefer more formalistic approaches. Yet here, the script was flipped. The four more liberal justices in the majority applied a formalistic analysis to hold that David’s appellate rights were extinguished. Meanwhile, the two more conservative justices would have applied a functional analysis to preserve his right to appeal.

Even after Morway, Wisconsin’s finality analysis remains a bit of a quagmire—something Justice Dallet’s concurrence seems to acknowledge. In her concurrence, Justice Dallet proposed that Wisconsin adopt two rules from the federal courts to clarify when a post-judgment order is final for purposes of appeal:

I write separately to suggest two ways we might provide greater clarity in a future case. First, we should consider adopting the approach taken by the federal courts of treating each discrete post-judgment matter as “‘a free-standing litigation’” that is final when an order “disposes of all the issues raised in the motion that initially sparked the post-judgment proceedings” and no other related issues remain pending. Second, we should also consider joining the federal courts by adopting a bright-line rule that any pending matters relating to attorneys’ fees awards do not undermine finality, regardless of the legal authority for such an award.

I wholeheartedly support both of these suggestions. If this case shows anything, it’s that bright-line rules of finality are essential, especially when appealing from post-judgment orders. Justice Dallet’s proposals would go a long way toward clearing up these muddy waters.

For more on this case, check out Jay Jerde’s write-up for the Wisconsin State Bar.

1. Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶4, 299 Wis. 2d 723, 728 N.W.2d 670.