author: ANDERSON, J.

text:
    Larry L. GEORGE, Petitioner-Respondent, v. David H. Schwarz, Respondent-Appellant.
    Court of Appeals

      No. 00-2711.

      Submitted on briefs January 12, 2001.

    Decided February 28, 2001.

    2001 WI App 72
    (Also reported in 626 N.W.2d 57.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Eileen W. Pray, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Len Kachinsky of Kachin-sky & Petit Law Offices, Neenah.
    Before Brown, P.J., Anderson and Snyder, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. The State of Wisconsin was granted leave to appeal the decision of the trial court that the Division of Hearings and Appeals (DHA) was bound by the guidelines of the Department of Corrections's (DOC) Probation and Parole Operations Manual for establishing the period of reincarceration after parole revocation. The State also challenges the trial court's decision to reduce Larry L. George's rein-carceration from eight years and eighteen days to nineteen months. We agree with the State and reverse and remand. We conclude that the trial court exceeded its limited authority as a certiorari court when it reduced George's period of reincarceration. We also conclude that the DOC is without statutory authority to issue administrative rules that bind the DHA in the performance of its duties as a neutral and detached hearing examiner.

Facts and Procedural History

¶2. George was originally convicted of sexual assault and sentenced to sixteen years in prison on March 31, 1986. He was released on discretionary parole on May 30,1995, but was placed in custody four months later for investigation of possible violations of the rules of parole. George was released from custody and resumed his parole status approximately ten days later. On January 5, 1996, he absconded from parole and his whereabouts were unknown for more than thirty-three months. After George was located and placed in custody, his parole agent recommended revocation of his parole based upon nine alleged violations of the rules of parole. The agent originally recommended that George be reincarcerated for seven years; however, her supervisor increased the recommendation to eight years and eighteen days, the total balance of the original sentence. The supervisor believed that the maximum sentence was warranted because of George's underlying offense and the seriousness of the violations prompting revocation.

¶ 3. A parole revocation hearing was held on February 11,1999, and the administrative law judge (ALJ) issued a decision on March 25, 1999. The ALJ found that George had committed seven of the nine alleged violations of the rules of parole and imposed the maximum remaining sentence of eight years and eighteen days. George filed a petition for a writ of certiorari that was quashed by the trial court on July 9, 1999. George argued that the Probation and Parole Operations Manual established rules to be followed in determining the amount of time to be recommended for reincarceration. According to George, the recommendation that he serve the maximum time remaining on his sentence — Category 3 — was required by the operations manual only because the agent alleged that George had committed a sexual assault while on parole, and since the ALJ held that no sexual assault had been committed, there was no evidence to support the recommendation that George be reincarcerated for eight years and eighteen days. George also argued that the ALJ was bound by the operations manual and he erred when he did not reduce the period of reincarceration because the alleged sexual assault had not been proven. George asserted that he belonged in the category — Category 1 — that did not require reincarceration. The trial court found that the operations manual only provided guidelines and there was sufficient evidence to support the determination that George be reincarcerated for the maximum period of time.

¶ 4. While George's appeal from the decision of the trial court was pending before this court, he filed a motion for reconsideration before the trial court. The trial court denied the motion because the issue had already been decided and the case was pending before this court. We remanded the appeal to the trial court on December 28, 1999, with directions to consider George's motion for reconsideration. A hearing on George's second motion for reconsideration was conducted on January 24,2000. The trial court held that it could not make a finding that George belonged in Category 1 and reduced the amount of time George was ordered to serve. The court did remand the case to the ALJ to specify the reason why George was placed in Category 3 and sentenced to the maximum period of reincarceration.

¶ 5. The ALJ issued a clarification and additional findings of fact on February 7, 2000. First, the ALJ explained that the operations manual is an internal document providing guidelines for probation and parole agents and is not binding on the DHA. The ALJ then made additional findings of fact to support the maximum period of incarceration. The ALJ held that the underlying sexual assault George was sentenced on in 1986 and his multiple violations of the rules of parole required the maximum period of reincarceration.

¶ 6. On February 14, 2000, the trial court denied George's motion for reconsideration. The court implicitly found that the ALJ was not bound to apply the operations manual. The court also found that there was sufficient evidence to support imposing the maximum period of reincarceration.

¶ 7. George filed a notice of appeal and, while the appeal was pending, he filed a third motion for reconsideration, again challenging his placement in the appropriate category of the operations manual. We held that the trial court had the authority to entertain George's third motion for reconsideration, and a hearing was held on September 1, 2000.

¶ 8. The trial court changed course and held that under the spirit of State ex rel. Anderson-El v. Cooke, 2000 WI 40, 234 Wis. 2d 626, 610 N.W.2d 821, the ALJ from the DHA was bound by the operations manual. The court concluded that the ALJ's findings were insufficient to place George in Category 3 of the operations manual and justify imposing the maximum period of reincarceration. At George's request, the court placed him at the midpoint of Category 1 and determined that he should only be reincarcerated for nineteen months, which exceeded the time he had served since he had been placed in custody for absconding.

¶ 9. The State appealed from the trial court's order and sought a stay of the order releasing George. We granted the request for a stay pending appeal, expedited the briefing schedule and limited the briefing to three issues: (1) whether the ALJ was bound by the DOC's Probation and Parole Operations Manual; (2) whether the ALJ's findings support a maximum period of reincarceration; and (3) whether the circuit court overstepped its authority in this certiorari action by amending the period of reincarceration and reclassifying George.

Standard of Review

¶ 10. Our review is de novo. We owe no deference to any of the circuit court's rulings as we directly review the ALJ's decision. State ex rel. Macemon v. McReynolds, 208 Wis. 2d 594, 596, 561 N.W.2d 779 (Ct. App. 1997). For the first two issues, we nonetheless owe deference to the ALJ's decision and we are limited to the following four inquiries: (1) whether the ALJ kept to his or her jurisdiction; (2) whether the ALJ acted according to law; (3) whether the ALJ's action was arbitrary; and (4) whether the evidence provides reasonable support for the decision. Id. The evidentiary test on certiorari review is the substantial evidence test, under which we determine whether reasonable minds could arrive at the same conclusion that the ALJ reached. State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 386, 585 N.W.2d 640 (Ct. App. 1998). The facts found by the ALJ are conclusive if supported by "any reasonable view" of the evidence, and we may not substitute our view of the evidence for that of the ALJ. Id.

¶ 11. The third issue — whether the circuit court •exceeded its authority in reducing George's reincarcer-ation time — is a question of law that we review de novo.

Authority of the Circuit Court

¶ 12. We first will consider whether the circuit court overstepped its authority when it reclassified George from Category 3 to Category 1 and reduced the period of reincarceration from eight years and eighteen days to nineteen months. As a general rule, a certiorari court may affirm or reverse the action of the ALJ and, in limited circumstances, it may remand the case, see Snajder v. State, 74 Wis. 2d 303, 311-12, 246 N.W.2d 665 (1976), but it "cannot order the [ALJ] to perform a certain act." State ex rel. Richards v. Leik, 175 Wis. 2d 446, 455, 499 N.W.2d 276 (Ct. App. 1993).

¶ 13. We recently reviewed the limited nature of the authority of a certiorari court:

The scope of certiorari extends to all questions of jurisdiction, power and authority of the inferior tribunal to do the action complained of and all questions relating to the irregularity of the proceedings. In short, the issue is limited to whether the tribunal has kept within the boundaries prescribed by the express terms of the ordinance, statute or law of this state. In its essence, circuit court review is supervisory in nature. The issue is the regularity of the inferior tribunal's proceeding.

Winkelman v. Town of Delafield, 2000 WI App 254, ¶ 5, 239 Wis. 2d 542, 620 N.W.2d 438 (citations omitted). The limited role of the certiorari court prevents it from reexamining the evidence presented to the ALJ.

¶ 14. Throughout these proceedings, George has challenged the sufficiency of the evidence supporting the ALJ's conclusion that the maximum period of rein-carceration was warranted. George's complaint required the circuit court to consider whether the evidence was such that the ALJ might reasonably have made the determination in question; certiorari is not a de novo review. See Van Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978). The court's inquiry was limited to whether there was substantial evidence to support the ALJ's decision. Id. It was the province of the ALJ, not the circuit court, to weigh the evidence in this case. Id. The circuit court erred when it reclassified George and reduced the period of reincarceration because the court cannot substitute its view of the evidence for that of the ALJ. Id.

Probation and Parole Operations Manual

¶ 15. Since the revocation, George has argued that the ALJ erred when he failed to impose a period of reincarceration consistent with the Probation and Parole Operations Manual. George contends that the use of the operations manual is mandatory in all revocation hearings conducted by ALJs from the DHA. Although the circuit court initially ruled that the operations manual was only a guideline, at the hearing on George's third motion for reconsideration, the circuit court concluded that under the spirit of Anderson-El, the ALJ was required to apply the reincarceration guidelines from the operations manual.

¶ 16. The operations manual is an internal working document for the employees of the DOC's Probation and Parole division. The portion of the operations manual this case is concerned with supplies procedures for recommending reincarceration as a result of parole revocation. Under these procedures, a parole agent must engage in a two-step process to arrive at a recommendation of how much reincarceration time should be recommended.

¶ 17. The first step requires the agent to apply the penalty schedule to determine the range of rein-carceration. The penalty schedule is a table with three categories based on the amount of time available for reincarceration. Category 1 covers minor violations not involving property or human safety and permits rein-carceration of ten to thirty-five percent of the remaining sentence. Category 2 includes misdemeanor assaults and felony property crimes and permits rein-carceration of thirty-five to seventy-five percent of the remaining sentence. Category 3 includes crimes against a person and use of a weapon and permits reincarceration of seventy-five to one hundred percent of the remaining sentence. The schedule also includes aggravating factors and mitigating factors that may be used to adjust the recommendation.

¶ 18. The second step of the procedure requires the agent to apply criteria from the Wisconsin Administrative Code to determine where the reincarceration recommendation should be within the range of each category. In George's case, there are five factors that the agent is required to consider:

1. The nature and severity of the original offense;
2. The client's institutional conduct record;
3. The client's conduct and behavior while on parole;
4. The period of reincarceration that would be consistent with the goals and objectives of field supervision under ch. DOC 328; and
5. The period of reincarceration that is necessary to protect the public from the client's further criminal activity, to prevent depreciation of the seriousness of the violation or to provide a confined correctional treatment setting which the client needs.

Wis. Admin. Code § DOC 331.14(3)(b).

¶ 19. Although Anderson-El supports the proposition that an administrative agency must abide by its own rules, Anderson-El, 2000 WI 40 at ¶ 17, it does not support the proposition that an ALJ from the DHA is bound to follow the operations manual. Assuming arguendo that the operations manual is an administrative rule, there are three reasons why it is not binding upon the DHA and its ALJs.

¶ 20. First, an administrative agency cannot regulate the activities of another agency or promulgate administrative rules to bind another agency unless it has express statutory authority to make and enforce such a rule. "[A]n administrative agency has only those powers as are expressly conferred upon it or which may be fairly implied from the statutes under which it operates, and as a consequence, it cannot promulgate any rule which is not expressly or impliedly authorized by the legislature." Brown County v. HSS Dep't, 103 Wis. 2d 37, 48, 307 N.W.2d 247 (1981). The DOC has primary responsibility to administer parole matters. Wis. Stat. § 301.03(3) (1999-2000). The DOC also has responsibility to revoke parole in uncontested cases where the individual has waived the right to a final revocation proceeding. Id. The DOC is within its statutory authority to have an operations manual that includes guidelines on recommending periods of reincarceration.

¶ 21. The DHA is not part of the DOC; it is part of the Department of Administration. WlS. Stat. § 15.103(1). The DHA has sole responsibility for the decision to revoke parole in all contested cases, WlS. Stat. § 301.03(3), and in the determination of the period of reincarceration, WlS. STAT. § 302.11(7)(a).

¶ 22. The legislature has unmistakably delegated duties relating to parole revocation to two different agencies:

Every paroled prisoner remains in the legal custody of the department [of corrections] unless otherwise provided by the department. If the department alleges that any condition or rule of parole has been violated by the prisoner, the department may take physical custody of the prisoner for the investigation of the alleged violation. If the department is satisfied that any condition or rule of parole has been violated it shall afford the prisoner such administrative hearings as are required by law. Unless waived by the parolee, the final administrative hearing shall be held before a hearing examiner from the division of hearings and appeals in the department of administration who is licensed to practice law in this state. The hearing examiner shall enter an order revoking or not revoking parole. Upon request by either party, the administrator of the division of hearings and appeals shall review the order. ... If the parolee waives the final administrative hearing, the secretary of corrections shall enter an order revoking or not revoking parole. If the examiner, the administrator upon review, or the secretary in the case of a waiver finds that the prisoner has violated the rules or conditions of parole, the examiner, the administrator upon review, or the secretary in the case of a waiver, may order the prisoner returned to prison to continue serving his or her sentence, or to continue on parole.

WlS. Stat. § 304.06(3). Under this delegation of duties, the DOC lacks the statutory authority to make and enforce rules binding on the DHA regarding the revocation of parole in contested cases or the period of reincarceration to be served in contested cases.

¶ 23. Second, to bind the DHA to rules in the operations manual would seriously undermine the discretion accorded the DHA in contested parole revocation matters. The Wisconsin Supreme Court has had occasion to discuss the discretion given the DHA in Bartus v. DHSS, 176 Wis. 2d 1063, 501 N.W.2d 419 (1993):

Past decisions of this and other courts indicate the care with which... the Division of Hearings and Appeals are expected to exercise their discretionary authority during these proceedings. "Discretion" includes not only "the process of decision making on the basis of the relevant facts but also requires that the decision be consonant with the purposes of the established law or other guides to discretion...."
We conclude that these well-established standards for exercising judicial discretion in the sentencing process apply with equal force to the administrator's exercise of discretion during revocation proceedings.

Id. at 1080.

¶ 24. Just as sentencing is the trial judge's sole responsibility, the decision to impose reincarceration time is the DHA's sole responsibility. In exercising that responsibility, both are required to engage in "reasoning based on facts that are of record or that are reasonably derived by inference from the record, and a conclusion based on a logical rationale founded upon proper legal standards." State v. Wagner, 191 Wis. 2d 322, 332, 528 N.W.2d 85 (Ct. App. 1995). In exercising that responsibility, both are required to independently arrive at an appropriate disposition. They are not to blindly accept or adopt sentencing or reincarceration recommendations from any particular source. See State v. Johnson, 158 Wis. 2d 458, 465, 463 N.W.2d 352 (Ct. App. 1990). They may accept recommendations only if they can independently conclude that the recommendations are appropriate in light of the acknowledged goals of sentencing and parole revocation as applied to the facts of the case. See id. Accordingly, to require the DHA to follow the reincarceration guidelines of the operations manual would strip it of all discretion and make it nothing more than a rubber stamp.

¶ 25. Finally, due process requires that a person subject to parole revocation appear before a neutral and detached hearing officer. State v. Horn, 226 Wis. 2d 637, 653, 594 N.W.2d 772 (1999). The DHA would be neither neutral nor detached if it were required to accept the reincarceration recommendation of the agency charged with prosecuting a person's parole revocation.

Recommended Period of Reincarceration

¶ 26. As we previously noted, the limited role of the certiorari court is to review whether the DHA kept within the boundaries prescribed by the laws of this state. Winkelman, 2000 WI App 254 at ¶ 5. George complains that the evidence is insufficient to support the DHA's imposition of the maximum amount of reincarceration time. This complaint requires the certiorari court to consider whether the evidence at the revocation hearing provides reasonable support for the DHA's decision. Macemon, 208 Wis. 2d at 596.

When the sufficiency of the evidence is challenged, we are limited to the question of whether there is substantial evidence to support the department's decision. This is described as a "low burden of proof." Substantial evidence is the "quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion." However, assigning weight to the evidence in a revocation hearing is the province of the department.

State ex rel. Washington v. Schwarz, 2000 WI App 235, ¶ 17, 239 Wis. 2d 443, 620 N.W.2d 414 (citations omitted).

¶ 27. At the original revocation hearing, the ALJ found that George had committed seven violations of the rules of parole, including (1) recruiting another parolee to intimidate a third person to pay a debt to George; (2) forcing the third person into a car against his will; (3) absconding for a period of thirty-three months; (4) associating with a minor; (5) having more than twenty credit cards in another name in his possession; (6) providing false information to the FBI; and (7) consuming alcoholic beverages. In imposing the maximum period of reincarceration, the ALJ also considered the original offense of second-degree sexual assault of a fourteen-year-old male in violation of Wis. Stat.' § 940.225(2)(e) (1985-86). The ALJ provided the following reasoning for imposing reincarceration of eight years and eighteen days:

[George] demonstrates a willingness to take advantage of anybody or any situation that presents itself to him. He has learned very little from his imprisonment and subsequent supervision. A continuation of supervision would unduly depreciate the seriousness of his behavior and would subject the public to an unreasonable risk of further criminal activity in the future. He is in need of treatment. That treatment can most effectively be provided in a confined setting.

¶ 28. In response to the order of the circuit court to clarify why the maximum period of reincarceration was imposed, the ALJ stated that he considered recruiting another parolee to intimidate a third person to pay a debt to George and forcing the third person into a car against his will to be crimes against a person. The ALJ also considered George's multiple violations to be aggravating factors.

¶ 29. We have independently reviewed the entire record in this case and paid particular attention to the Return to the Writ of Certiorari. We agree with the ALJ that George is guilty of parole rules violations that would constitute crimes against persons. We conclude that the evidence available to the ALJ at the hearing and to the administrator of the DHA on the appeal overwhelmingly supports the conclusion that any period of reincarceration short of the maximum would unduly depreciate the seriousness of George's original criminal conduct and multiple rules violations.

Conclusion

¶ 30. We reverse and remand with directions to reinstate the DHA's original order that George be rein-carcerated for a period of eight years and eighteen days for three reasons. First, the circuit court erred when it went beyond the limited scope of a certiorari court's authority and reduced George's reincarceration from eight years and eighteen days to nineteen months. Second, the circuit court also erred when it held that the DHA was bound to follow the Probation and Parole Operations Manual. In order to remain a neutral and detached hearing officer, the DHA retains the right to exercise its discretion in revocation hearings free from the guidelines found in the operations manual. Third, there is substantial evidence to support the DHA's conclusion that George's multiple parole rules violations warranted the maximum period of reincarceration.

By the Court. — Order reversed and cause remanded with directions.

       On January 26,2001, Larry L. George filed a pro se motion to dismiss asserting that this appeal was authorized by the DOC rather than by David H. Schwarz, Administrator of the DHA, and, as an unnamed party, the DOC is without authority to prosecute this appeal. George's motion is denied; any person aggrieved from a trial court order or judgment may appeal. Koller v. Liberty Mut. Ins. Co., 190 Wis. 2d 263, 266, 526 N.W.2d 799 (Ct. App. 1994). The DOC is aggrieved because the trial court's decision, reducing George's incarceration time, was contrary to the DOC's considered recommendation for reincarceration time.

       Two counts of second-degree sexual assault and one count of intimidating a witness were read in for sentencing purposes. The victim was a fourteen-year-old male.

         George v. Schwarz, No. 99-2085, order dated December 28,1999.

        George v. Schwarz, Nos. 99-2085 and 00-0474, order dated August 3, 2000.

         George v. Schwarz, No. 00-2711, order dated October 13, 2000.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 301.03(3) provides in part that the DOC shall:
      Administer parole, extended supervision and probation matters, except that the decision to grant or deny parole to inmates shall be made by the parole commission and the decision to revoke probation, extended supervision or parole in cases in which there is no waiver of the right to a hearing shall be made by the division of hearings and appeals in the department of administration.

       George asserts that the requirement that the administrator of the DHA consult with the DOC before promulgating "rules relating to the exercise of the administrator's and the division's powers and duties," Wis. Stat. § 301.035(5), binds the DHA to the rules promulgated by the DOC in the Probation and Parole Operations Manual. George's argument is far from persuasive. The requirement that the administrator of the DHA confer with the DOC is not an expression of legislative intent that the DHA is bound by the DOC's rules. In fact, § 301.035(5) explicitly reserves to the administrator of the DHA the exclusive authority to make rules concerning the DHA's powers and duties to revoke parole and order periods of reincarceration.

       While this appeal was pending, George filed a pro se motion for remand to the trial court to consider: (1) whether a parolee's conduct after absconding and the issuance of a parole revocation order can be considered at a contested hearing to revoke parole, and (2) whether one or more witnesses testified untruthfully at the revocation hearing. We denied George's motion. State v. George, No. 00-2711, order dated January 7, 2001. This decision does not address these issues. George can revisit these issues after remand, provided that they have been properly preserved.


source: Caselaw Access Project

author: ANN WALSH BRADLEY, J.

license: Public Domain

text:
    In re the Marriage of: Jami L. Van Boxtel, Petitioner-Appellant-Cross-Respondent-Petitioner, v. Brent F. Van Boxtel, Respondent-Respondent-Cross-Appellant.
    Supreme Court

      No. 99-0341.

      Oral argument February 7, 2001.

    Decided May 2, 2001.

    2001 WI 40
    (Also reported in 625 N.W.2d 284.)

      For the petitioner-appellant-cross-respondent-petitioner there were briefs by John Miller Carroll and
      John Miller Carroll, S.C., Milwaukee, and oral argument by John Miller Carroll.

    For the respondent-respondent-cross-appellant there was a brief by David J. Van Lieshout and Menn, Teetaert & Beisenstein, Ltd., Little Chute, and oral argument by David J. Van Lieshout.

   ANN WALSH BRADLEY, J.

¶1. In this divorce action, the petitioner, Jami L. Van Boxtel, seeks review of an unpublished decision of the court of appeals upholding the circuit court's refusal to enforce a written property division agreement between the petitioner and the respondent, Brent F. Van Boxtel. The petitioner asserts that the terms of the agreement are binding on the respondent and the circuit court pursuant to Wis. Stat. § 767.255(3)(L) (1995-96) and that the circuit court erred in refusing to incorporate the agreement into its judgment. We disagree.

¶ 2. We conclude that because the agreement was entered into after divorce proceedings commenced, it is a stipulation under Wis. Stat. § 767.10(1). We also conclude that the respondent repudiated his consent to that stipulation and, therefore, we uphold the circuit court's refusal to incorporate it into the judgment. Accordingly, we affirm the decision of the court of appeals.

¶ 3. The relevant facts are not in dispute. The petitioner and respondent married in July 1994. At the time of the marriage, the petitioner owned a home on Walter Avenue in Appleton. The respondent also owned property in Appleton, which was sold shortly after the marriage. With the proceeds of this sale, the couple then built a new home. The Walter Avenue property was subsequently sold in April 1996.

¶ 4. One month later, in May 1996, the petitioner filed for divorce. Shortly thereafter, she sought to purchase her own home. To obtain the necessary financing, the petitioner's lender required that the petitioner secure certain proceeds from the sale of the Walter Avenue property. In meeting this requirement, the petitioner asked the respondent to sign an agreement foregoing his interest in the Walter Avenue proceeds as well as any interest in the petitioner's new home.

¶ 5. The agreement specifically stated that the parties were "currently in the middle of a court proceeding for divorce," and further provided:

Now, Therefore, in consideration of the mutual covenants of this Agreement, the parties agree as follows:
1. That the [Walter Avenue property] and the net proceeds from the sale of such residence has [sic] always been and shall continue to be the individual property of [the petitioner].
2. That a certain parcel of real estate located at 213 West Parkway Boulevard. . .or any other property purchased with the proceeds from the sale of the above mentioned real estate shall be classified as the individual property of [the petitioner].
3. That [the respondent] waives and releases all claims or rights he might otherwise have pursuant to Chapters 766 and 767 of the Wisconsin Statutes to [the Walter Avenue property], the proceeds from the sale of the same and any replacement residence purchased with such sale proceeds.

The parties signed the agreement on January 27,1997.

¶ 6. Approximately six months after the agreement was signed, the petitioner moved for partial summary judgment seeking to enforce the agreement and preclude the respondent from making any claims to the proceeds from the sale of the Walter Avenue property. In response, the respondent submitted an affidavit contesting the agreement. In his affidavit, the respondent set forth facts challenging the validity of the agreement and asserted that "no agreement has been reached concerning the property division." The record contains no ruling on the petitioner's motion and the matter was left to be resolved at trial.

¶ 7. At the following June 1998 trial, the petitioner pursued enforcement of the agreement and incorporation of it into the divorce judgment. The respondent continued to challenge the validity of the agreement. He presented evidence to support his position that he was pressured and rushed into signing the agreement and that it was entered prior to review by his attorney.

¶ 8. In making its property division determination, the circuit court concluded that the agreement was invalid and refused to incorporate it into the divorce judgment. The court was persuaded that the agreement was not entered into voluntarily and ultimately concluded that, under the totality of the circumstances, the agreement was inequitable. The court thus refused to enforce the agreement and divided the proceeds from the Walter Avenue property equally between the parties.

¶ 9. The petitioner appealed and the court of appeals affirmed. She maintained that the agreement was properly executed under Wis. Stat. § 766.58 and enforceable upon divorce pursuant to § 767.255(3)(L). The court of appeals rejected the petitioner's argument and concluded that because the agreement was signed after divorce proceedings had commenced, it was a stipulation subject to court approval under § 767.10(1). Because the circuit court had not approved the agreement and, in fact, found it to be inequitable to the respondent, the court of appeals found that the circuit court did not err in refusing to enforce the agreement.

¶ 10. The specific issues presented to this court are whether the agreement between the parties is a stipulation under § 767.10(1) or a binding agreement under § 767.255(3)(L) and, in turn, whether the circuit court properly refused to incorporate the agreement into its judgment. Although the petitioner challenged numerous aspects of the circuit court's property division before the court of appeals, she has asked this court to review only the court of appeals' characterization of the agreement and the agreement's enforceability. The respondent concurs that these are the only matters before this court.

¶ 11. This examination presents us with a question of statutory construction as it arises during the review of a circuit court's exercise of discretion. Generally, a division of property in a divorce action will be upheld absent an erroneous exercise of discretion. Cook v. Cook, 208 Wis. 2d 166, 171, 560 N.W.2d 246 (1997). However, statutory construction is a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. Blazekovic v. City of Milwaukee, 2000 WI 41, ¶ 9, 234 Wis. 2d 587, 610 N.W.2d 467. When interpreting a statute, this court seeks to identify and effectuate the intent of the legislature. Stockbridge Sch. Dist. v. DPI Sch. Dist. Boundary Appeal Bd., 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996).

¶ 12. We first address whether the court of appeals erred in characterizing this written agreement as a stipulation under Wis. Stat. § 767.10(1). The petitioner contends that the agreement is properly governed by § 767.255(3)(L) and is binding upon the parties and the circuit court. She maintains that because the parties intended to be bound by the agreement, the court should not treat it as a stipulation. The respondent, however, argues that the agreement is a § 767.10(1) stipulation subject to the approval of the court. He asserts that any agreement between spouses signed after a filing for divorce is a stipulation.

¶ 13. The parties dispute the statutory characterization of the agreement because the classification of the agreement as either a § 767.10(1) stipulation or a § 767.255(3)(L) agreement determines the degree of flexibility a circuit court has in incorporating the agreement into its judgment. An agreement under § 767.255(3)(L) is binding upon the court unless the terms of the agreement are "inequitable as to either party." Wis. Stat. § 767.255(3)(L). Such agreements are presumptively equitable. Id. In contrast, a § 767.10(1) divorce stipulation is only enforceable "subject to the approval of the court." Wis. Stat. § 767.10(1). Such a stipulation is merely a "recommendation jointly made by [the parties in a divorce action] to the court suggesting what the judgment, if granted, is to provide." Bliwas v. Bliwas, 47 Wis. 2d 635, 638, 178 N.W.2d 35 (1970).

¶ 14. We conclude that any agreement regarding the division of property entered into between spouses after divorce proceedings have commenced is a stipulation under § 767.10(1) and is therefore subject to the approval of the court. This conclusion is dictated by the language of the statute, controlling precedent, and the public policy considerations implicated when divorcing spouses enter into agreements.

¶ 15. We turn to the language of the statutes. The parties' dispute centers around whether § 767.10(1) or § 767.255(3)(L) applies to the agreement at issue. Section 767.10(1) enables spouses in an action for divorce to stipulate to certain matters relevant to their divorce judgment, subject to the approval of the court. The statute specifically provides:

The parties in an action for an annulment, divorce or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, for periodic family support payments under s. 767.261 or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.

Wis. Stat. § 767.10(1).

¶ 16. Section 767.255 governs the circuit court's division of property upon divorce. The statute directs the court to equally divide between the parties all property that is not a gift or inheritance. Wis. Stat. § 767.255(3). The court may alter this distribution upon considering a variety of factors, including certain written agreements under § 767.255(3)(L). That provision allows the court to consider:

Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.

Wis. Stat. § 767.255(3)(L).

¶ 17. The petitioner argues that § 767.255(3)(L) broadly applies to any agreement entered into "before or during the marriage." We note, however, that § 767.10(1) specifically applies to agreements entered into by "parties in an action for. . .divorce." Although § 767.255(3)(L) does not expressly exclude agreements executed after the filing of divorce, the classification of a post-filing agreement as a stipulation derives from the limitation found in § 767.10(1). Because § 767.10(1) more specifically addresses agreements regarding the division of property entered into after the filing for divorce, it is the applicable statute in this circumstance. See State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 595-96, 547 N.W.2d 587 (1996) (specific statutory provisions generally take precedence over general provisions).

¶ 18. In addition to the statutory language, our conclusion is required by precedent. The court of appeals addressed facts similar to the present case in Evenson v. Evenson, 228 Wis. 2d 676, 598 N.W.2d 232 (Ct. App. 1999). In that case, a divorcing couple entered into an agreement after a petition for divorce had been filed but before the divorce judgment was entered. The agreement in Evenson was entitled a Limited Marital Property Agreement and covered each parties' rights as to their marital residence, the husband's new residence, and their various financial assets. Prior to judgment, the husband sought to withdraw from a portion of the agreement, while the wife sought enforcement of the agreement and incorporation of it into the divorce judgment. The parties' dispute presented the identical question of law posed by today's case: "whether the document presented to the court was a binding agreement pursuant to § 767.255(3)(L), Stats., or a divorce stipulation pursuant to § 767.10(1)." Id. at 681.

¶ 19. The court of appeals concluded that because "the agreement was executed after the parties filed for divorce," it was a divorce stipulation governed by § 767.10(1). Id. at 686 (emphasis in original). Thus, to adopt the petitioner's characterization of the agreement before us would essentially require us to overrule Evenson, a case that remains controlling precedent. While the agreement in Evenson was broader in scope than the agreement before us, the scope of the property agreement is not determinative of its classification under the divorce statutes.

¶ 20. Much like the court in Evenson, we also examine the public policy considerations that inform our decision. In Evenson, the court of appeals relied heavily upon the public policy concerns enunciated by this court in Ray v. Ray, 57 Wis. 2d 77, 203 N.W.2d 724 (1973). We too believe the principles articulated in Ray support the "determination that all agreements entered into after the filing for divorce regarding the division of the parties property are stipulations under §767.10(1).

¶ 21. In Ray, this court recognized the need for court approval of agreements made between spouses after divorce proceedings are commenced due to the active third-party interests that the state has in divorce cases. Id. at 82. As we emphasized in Ray, once parties invoke the jurisdiction of the court, and the court is given the authority to determine the disposition of property upon divorce, parties cannot then oust the court of this authority. Id. at 84. The court's interest in divorce cases and its role in approving agreements made during divorce proceedings are safeguarded by treating such agreements as stipulations under § 767.10(1). Unlike § 767.255(3)(L), § 767.10(1) provides the circuit court with the flexibility and control necessary to carry out this authority.

¶ 22. The petitioner maintains that the concerns articulated in Ray are not applicable under the current divorce statutes. When this court decided Ray, § 767.255(3)(L) had not yet been enacted. The only statute that contemplated the incorporation of marital agreements into a divorce judgment at that time was Wis. Stat. § 247.10 (1969), the predecessor to § 767.10(1). The petitioner asserts that the subsequent enactment of § 767.255(3)(L) should be viewed as a limitation on the holding of Ray because the statute requires the court to enforce agreements governed by this statute unless they are inequitable.

¶ 23. Although the divorce statutes have changed since Ray was decided, the policy concerns underlying Ray have not. Ray emphasized the need for judicial approval of agreements that have not been made in contemplation of a continued marital relationship. Id. at 82. This need for judicial approval of such agreements continues as embodied in § 767.10(1). Moreover, the statutory recognition of agreements under § 767.255(3)(L) since Ray does not alter the court's interest and authority described in .Ray. Section 767.255(3)(L) agreements implicate different concerns and further different goals. As we explained in Button v. Button, 131 Wis. 2d 84, 94, 388 N.W.2d 546 (1986), § 767.255(3)(L) serves the function of bringing certainty into a marriage. This certainty encourages marriage and "may be conducive to marital tranquility by protecting the financial expectations of the parties." Id.

¶ 24. Marital tranquility is not furthered by agreements entered into after divorce proceedings have commenced. Once spouses have filed for divorce, they are no longer contemplating a continued marital relationship. As such, additional judicial oversight is necessary to ensure that the needs of the parties are met. Section 767.10(1) embodies these concerns in requiring court approval of agreements made by parties in an action for divorce.

¶ 25. Having determined from our review of the statutory language, precedent, and public policy that § 767.10(1) governs the agreement at issue, we now turn to the circuit court's refusal to enforce the stipulation and incorporate it into the divorce judgment. Such a discretionary determination will be upheld in the absence of an error in law or the failure of the court to base its decision upon facts in the record. King v. King, 224 Wis. 2d 235, 248, 590 N.W.2d 480 (1999). In the case at hand, the circuit court reached the correct result in declining to enforce the agreement. The court's refusal to incorporate the stipulation into the judgment was warranted by the respondent's repudiation of his consent to the stipulation. We may sustain a circuit court's decision even though our rationale for doing so may differ from that of the circuit court where controlling legal authority and the record support the decision. Schauer v. DeNeveu Homeowners Ass'n, 194 Wis. 2d 62, 71, 533 N.W.2d 470 (1995).

¶ 26. As previously explained, a stipulation is no more than an understanding of what the parties desire and recommend to the court. Bliwas, 47 Wis. 2d at 638; see also Miner v. Miner, 10 Wis. 2d 438, 444, 103 N.W.2d 4 (1960) ("A stipulation. . .does not rise to the dignity of a contract."). A party is free to withdraw from this recommendation until it is incorporated into the divorce judgment. Evenson, 228 Wis. 2d at 686; Norman v. Norman, 117 Wis. 2d 80, 82, 342 N.W.2d 780 (Ct. App. 1983). The repudiation of consent to a stipulation by a party may render the stipulation nonexistent. Thereafter a court's refusal to incorporate it into the judgment cannot be said to be an erroneous exercise of discretion. Norman, 117 Wis. 2d at 82.

¶ 27. In the case at hand, the respondent continuously disavowed the stipulation at issue. From the first instance that the petitioner sought enforcement of the stipulation, the respondent challenged the agreement, contesting its validity. Because this constitutes a repudiation of the respondent's consent, the circuit court did not erroneously exercise its discretion in refusing to incorporate the stipulation into its judgment.

¶ 28. In sum, we conclude that because the agreement between the petitioner and respondent was entered into after divorce proceedings commenced, it is a stipulation under Wis. Stat. § 767.10(1). We thus uphold the circuit court's refusal to incorporate the stipulation into its judgment, because the respondent repudiated his consent. Accordingly, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

        Van Boxtel v. Van Boxtel, No. 99-0341, unpublished slip opinion (Wis. Ct. App. April 11, 2000) (affirming the judgment of the Circuit Court for Outagamie County, John A. Des Jardins, Judge).

       Unless otherwise noted, all subsequent references to the Wisconsin Statutes are to the 1995-96 version.

       In reaching this conclusion, the circuit court did not expressly identify the nature of the agreement under the statutes, but termed it a "postnuptial agreement or contract."

       We have not been asked to review the entirety of the circuit court's determinations regarding the division of the parties' property. Rather, the petition for review and the briefs of both parties state the issue presented for review as follows: "When a husband and wife, during marriage but after the commencement of divorce proceedings, enter into a written marital property agreement classifying a piece of real estate as the individual property of the wife, should that agreement be enforced in making the property division in a divorce proceeding?"

       In her briefs to this court, the petitioner argued, much like she did to the court of appeals, that the agreement was a binding marital property agreement under Wis. Stat. § 766.58. However, at oral argument the petitioner acknowledged that the issue in this case is the status of the agreement under chapter 767. We thus do not address any prior contentions regarding chapter 766.

       We acknowledge that another recent court of appeals' decision concluded that an agreement entered into prior to the filing for divorce, but made in contemplation of divorce, was a § 767.10(1) stipulation. Ayres v. Ayres, 230 Wis. 2d 431, 602 N.W.2d 132 (Ct. App. 1999). We need not examine the court of appeals' conclusion in that case. Today's decision addresses only agreements entered into after divorce proceedings are commenced.

       Wisconsin Stat. § 247.255(11) was enacted in 1977. It was later renumbered to Wis. Stat. § 767.255(11), and is now Wis. Stat. § 767.255(3)(L).

       Section 247.10 provided that "the parties may, subject to the approval of the court, stipulate for a division of estate, for alimony, or for the support of children, in case a divorce or legal separation is granted or a marriage annulled." Wis. Stat. § 247.10 (1969).


author: WILLIAM A. BABLITCH, J.

text:
    Patricia S. Magyar, Individually and as Special Administrator of the Estate of Anthony F. Magyar, Deceased, Plaintiffs, City of Milwaukee, a municipal corporation, Involuntary-Plaintiff, v. Wisconsin Health Care Liability Insurance Plan, a Wisconsin insurance corporation, Lawrence J. Frazin, M.D., Neurological Surgery, S.C., a Wisconsin service corporation, f/k/a Neurological Surgery of Milwaukee, S.C. and Wisconsin Patients Compensation Fund, Defendants, Neurological Surgery, S.C., Third-Party Plaintiff-Appellant-Petitioner, v. Physicians Insurance Company of Wisconsin, Third-Party Defendant-Respondent, Wisconsin Patients Compensation Fund, Defendant.
    Supreme Court

      No. 98-3289.

      Oral argument February 5, 2001.

    Decided May 3, 2001.

      2001 WI 41
    (Also reported in 625 N.W.2d 291.)

      For the third-party plaintiff-appellant-petitioner there were briefs by David W. Neeb, Daniel J. Borowski and Davis & Kuelthau, S. C., Milwaukee, and oral argument by James E. Culhane.

    For the third-party defendant-respondent there was a brief by Jeffrey O. Davis, Cory L. Nettles and Quarles & Brady, LLP, Milwaukee, and oral argument by Jeffrey O. Davis and Owen T. Armstrong, Jr.

   WILLIAM A. BABLITCH, J.

¶ 1. Neurological Surgery, S.C. (NSM) petitions us to review a court of appeals' decision that held that Physicians Insurance Company of Wisconsin (PICW) had no duty to defend or indemnify NSM against allegations of negligence because NSM's policy was not in effect at the time of the negligence claim against NSM due to PICW's non-renewal of the policy. NSM argues that PICW's failure to give notice of nonrenewal to either NSM or the commissioner of insurance had the result of maintaining the insurance policy until such notices were given. We disagree. If NSM were correct, the statute requiring notice would in effect provide unlimited renewals until notice was given. The statute does not so provide. Accordingly, we affirm.

H

¶ 2. Patricia Magyar filed a lawsuit on October 22, 1992, following the death of her husband, Anthony Magyar. In her complaint, she alleged that her husband's death was caused by the medical negligence of Lawrence Frazin during care that he provided in 1990. Anthony Magyar died in December 1990. The complaint named Frazin, his insurer (Wisconsin Health Care Liability Insurance Plan), and the Wisconsin Patients Compensation Fund as defendants. At the time of the alleged negligence, Frazin was one of two physicians at NSM. In March 1993, Magyar amended her complaint to add NSM as a defendant. In October 1994, NSM filed a third-party complaint against PICW after PICW denied any obligation to defend or indemnify NSM.

¶ 3. Our review focuses on NSM's insurance policy with PICW; thus, some background regarding this policy is necessary. In April 1987, Frazin and Richard Strassburger, the other physician at NSM, obtained individual medical professional liability claims-made insurance policies with PICW. At that time, NSM received an identical policy with equal coverage at no additional cost. The policy included the following stipulation: "[Y]our entity is not covered unless all physicians and surgeons who are members of your entity are covered by individual policies of insurance issued by us." The terms of eligibility in the policy stated: "A partnership, association or corporation is eligible for coverage only if all physicians and surgeon members, partners, officers, directors or shareholders of the partnership, association or corporation: 1. Are insured by professional liability policies issued by us. 2. Maintain the same limits of liability."

¶ 4. In April 1988, PICW renewed the policies to NSM and to NSM's physicians individually. The policies were all renewed for a term of nine months, ending January 1, 1989. In November 1988, PICW informed Frazin that, effective January 1, 1989, it would not be renewing his policy. PICW did not send any notice of nonrenewal to NSM. Frazin purchased a reporting endorsement through PICW, which provided "tail coverage" to him, that is, coverage for any incident occurring during the policy period but not reported until a date within the endorsement period. This endorsement took effect on January 1,1989.

¶ 5. In January 1993, the Wisconsin Patients Compensation Fund notified NSM that NSM did not have a valid certificate of insurance on file. NSM then contacted PICW, and PICW explained that a certificate was not on file because NSM's policy had been terminated on January 1, 1989. After being named as a defendant in this lawsuit, NSM tendered a defense to PICW in January 1994. PICW denied any obligation to defend or indemnify NSM under the policy. Consequently, NSM filed a third-party complaint against PICW. In it, NSM argued that because PICW failed to give notice of termination of coverage to NSM and “to the commissioner of insurance, PICW's nonrenewal of the policy was void, and PICW had a duty to defend and indemnify NSM in this case. The parties later brought cross-motions for summary judgment.

¶ 6. The Milwaukee County Circuit Court, the Honorable Victor Manian, granted summary judgment in favor of PICW. The court concluded that PICW failed to provide notice of nonrenewal to NSM pursuant to Wis. Stat. § 631.36(4)(a)(l987-88), and as a result, NSM was entitled to a renewal of its policy. However, the court found that this renewal was limited to one additional period under the same conditions and for the same term as the policy. Because the malpractice act and claim both occurred after any renewal period, the court determined that PICW was not obligated to defend or indemnify NSM in this case. The court also concluded that NSM was not entitled to coverage after January 1,1989, because after that date NSM failed to have all of its physicians covered by PICW policies with equal liability limits. The court noted that this condition precedent was necessary for NSM to have coverage under the policy.

¶ 7. The court of appeals affirmed, and we accepted review.

II

¶ 8. We review the circuit court's decision granting summary judgment to PICW. Such decisions are reviewed de novo. Smith v. Katz, 226 Wis. 2d 798, 805, 595 N.W.2d 345 (1999). In reviewing this decision, we must interpret state statutes and provisions in an insurance contract. Statutory interpretation presents a question of law that we determine independently, while benefiting from the analyses of the circuit court and the court of appeals. Patients Compensation Fund v. Lutheran Hosp., 223 Wis. 2d 439, 454-55, 588 N.W.2d 35 (1999). Our interpretation of an insurance contract is also a question of law that we review de novo. Smith, 226 Wis. 2d at 805.

¶ 9. It is undisputed that PICW failed to mail or deliver a separate notice of nonrenewal to NSM as required under Wis. Stat. § 631.36(4)(a). This statute provides:

Subject to subs. (2) and (3), a policyholder has a right to have the policy renewed, on the terms then being applied by the insurer to similar risks, for an additional period of time equivalent to the expiring term if the agreed term is one year or less. . .unless at least 60 days prior to the date of expiration provided in the policy a notice of intention not to renew the policy beyond the agreed expiration date is mailed or delivered to the policyholder. . ..

Wis. Stat. § 631.36(4)(a). Thus, we must first determine what remedy is available to NSM for PICW's violation of this statute.

¶ 10. NSM argues that the appropriate remedy for this violation is to permit the policy to remain in effect until PICW mails or delivers such notice. This remedy is required, NSM asserts, because, although the statute affords a right of renewal to the policyholder, this right is not triggered unless and until notice is mailed or delivered to the policyholder. Until that time, coverage continues. We disagree with this interpretation.

¶ 11. "Where a statute unambiguously establishes legislative intent in its plain meaning, we apply that meaning without resorting to extrinsic sources." Seider v. O'Connell, 2000 WI 76, ¶ 52, 236 Wis. 2d 211, 612 N.W.2d 659. We find the statute clear and unambiguous. Within the language of the statute, there is nothing to suggest that the right to renewal is triggered by notice from the insurer. Instead, the statute grants this right to any policyholder, that is, "the person who controls the policy by ownership, payment of premiums or otherwise." Wis. Stat. § 600.03(37). Thus, by statute, the policyholder obtains this right upon formation of the contract, not upon any triggering event. NSM's policy also included the language found in Wis. Stat. § 631.36(4)(a).

¶ 12. According to Wis. Stat. § 631.36(4)(a), a policyholder has this right "unless" the insurer mails or delivers notice of nonrenewal to the policyholder at least 60 days prior to the date of expiration provided in the policy. Thus, an insurer may effectively eliminate the policyholder's right to renewal if it provides valid notice of nonrenewal. If notice is not provided, the policyholder retains this right, and barring any application of an exception under § 631.36(4)(b), it may exercise its right to a renewal. This is the remedy afforded to policyholders for violations of § 631.36(4)(a).

¶ 13. Any renewal period afforded to a policyholder is specifically limited under Wis. Stat. § 631.36(4)(a). Under the statute, the renewal is restricted to "an additional period of time equivalent to the expiring term." The expiring term here was for the nine months preceding January 1,1989. The additional period of time equivalent to the expiring term was nine months, from January 1, 1989 to October 1, 1989. The acts and claim of malpractice, however, occurred after this period. Thus, PICW's failure to give notice pursuant to § 631.36(4)(a) did not result in any remedy that provided coverage to NSM in this case.

¶ 14. This conclusion is consistent with the statute's primary purpose, which is to ensure peace of mind for a policyholder in relying on its policy despite any desire by the insurer to either cancel the policy or decline renewal without sufficient notice. See § 24, ch. 144, Laws of 1969 (preliminary comment). Our interpretation fulfills this purpose by establishing uninterrupted coverage when an insurer has not provided valid notice of nonrenewal. Notice is necessary to warn the policyholder that it must find additional insurance because its current insurance will not be renewed. The statute contemplates that, when notice is not provided according to the statute, the policyholder may not have sufficient time to obtain replacement insurance, and therefore, the policyholder is entitled to a renewal period to maintain coverage. By limiting this renewal to one additional period, however, the statute also balances the competing interest that a policyholder must take some responsibility in minding its policy and discerning whether renewal has occurred in light of evidence to the contrary, such as a failure to receive billing or declarations statements.

¶ 15. In its interpretation of Wis. Stat. § 631.36(4)(a), NSM relies on the court of appeals' holding in Sausen v. American Family Mutual Insurance Co., 121 Wis. 2d 653, 360 N.W.2d 565 (Ct. App. 1984). In that case, Sausen obtained a three-year policy to insure his interest in a farm combine. Id. at 655. The insurer failed to notify Sausen that it would not renew the policy, and two months after the expiration date, the combine was damaged by fire. Id. Sausen argued that he was entitled to coverage because, under § 631.36(4)(a), his policy automatically renewed when his insurer failed to provide notice of nonrenewal. Id. The insurer disagreed, arguing that its failure to provide notice only resulted in its implied offer of renewal, which must be accepted by the policyholder before the policy expiration date for the policy to be renewed. Id.

¶ 16. The court of appeals held that notice of non-renewal or of premium due is required under the statute before a policy lapses and that, because such notice was not provided by the insurer, Sausen's coverage extended beyond the expiration date. Id. at 654. Our holding is consistent with the holding in Sausen. We, like the Sausen court, recognize that, pursuant to Wis. Stat. § 631.36(4)(a), a policyholder is entitled to coverage beyond the date of expiration of the policy if notice of nonrenewal is not provided according to statute. Coverage continues, barring any exceptions, under a renewal of the policy. This conclusion promotes mandatory notice. Our holding, however, goes one step further than Sausen because we also find that the continuation of coverage is limited to one renewal period. Indeed, the Sausen court did not have to address this issue because the date of the accident in that case fell within this renewal period.

¶ 17. Notwithstanding any renewal of the policy, NSM also argues that it is entitled to coverage under its policy because the policy remained in effect after Frazin's policy was not renewed. NSM acknowledges that its policy required every NSM physician to be covered under a PICW policy with the same limits of liability; however, it asserts that this condition was met after January 1, 1989, by Frazin's reporting endorsement. We disagree. The terms of the policy required that all NSM physicians have individual professional liability policies with the same limits of liability. Frazin's reporting endorsement did not provide the same limits of liability as NSM's policy because it did not cover claims that arose from acts occurring after December 31,1988. NSM's policy would have covered such claims. Thus, because Frazin would not have maintained the same limits of liability as NSM, NSM no longer met the terms of eligibility in its policy as of January 1,1989.

I — I I — ! hH

¶ 18. We must also decide what remedy, if any, is available to NSM for PICW's failure to notify the commissioner of insurance of NSM's policy termination. Such notification is required under Wis. Stat. § 655.24(4), which states: "The insurer shall, upon termination of a policy of health care liability insurance issued under this chapter by cancellation or nonre-newal, notify the commissioner of the termination."

¶ 19. NSM correctly notes that this statute does not specifically enumerate any remedy for PICW's failure to the commissioner. NSM argues, however, that, in light of Lang v. Kurtz, 100 Wis. 2d 40, 301 N.W.2d 262 (Ct. App. 1980), an appropriate remedy would be to require the insurance policy to remain in effect until PICW provided such notice. We conclude that such a remedy is not available to NSM for two reasons.

¶ 20. First, Wis. Stat. § 655.24(4) does not imply or suggest that such a remedy is appropriate. This statute only requires that an insurer "shall. . .notify the commissioner of the termination." This language does not suggest that the policy would remain in effect or would not be terminated until notice is provided.

¶ 21. In this respect, Wis. Stat. § 655.24(4) differs from the statute at issue in Lang. In Lang, the court examined Wis. Stat. § 344.34 (1977), which provided: "When an insurance carrier has certified a motor vehicle liability policy.. .the insurance so certified shall not be canceled or terminated until at least 10 days after a notice of cancellation or termination of the insurance so certified has been filed in the office of the secretary." Id. at 42 n. 3. Unlike § 655.24(4), the statute in Lang clearly implies that coverage would remain in effect if notice were not provided. For this reason, the remedy provided in Lang is inappropriate.

¶ 22. The second reason that the policy must not remain in effect is because the legislature has already provided for sanctions against an insurer in such instances. In particular, the legislature authorized the commissioner to apply enforcement procedures and penalties under Wis. Stat. § 601.64 for such violations. We must presume that the legislature was aware that such sanctions were available to the commissioner when it promulgated Wis. Stat. § 655.24(4) in 1985. See Jones v. State, 226 Wis. 2d 565, 579, 594 N.W.2d 738 (1999) ("We presume that the legislature enacts laws with full knowledge of existing statutes.").

¶ 23. Our interpretation preserves the legislature's scheme of financial responsibility. The legislature empowered the commissioner to impose sanctions against insurers when they jeopardize financial responsibility by failing to provide proper notice of termination. We give deference to the legislature's determination that these statutory sanctions are the most appropriate method of achieving financial responsibility in such instances. We will not rewrite this statute.

I — I <

¶ 24. In sum, we conclude that PICW is entitled to summary judgment because its failure to give notice to either NSM or the commissioner did not result in an extension of the policy that coincided with any negligent act by Frazin or claim submitted by Magyar. As a result, we affirm the court of appeals' decision.

By the Court. — The decision of the court of appeals is affirmed.

DIANE S. SYKES, J., did not participate.

       All subsequent references to the Wisconsin Statutes are to the 1987 — 88 version unless otherwise indicated.

       In particular, Wis. Stat. § 601.64(3)(c) specifically states:
      Whoever violates an insurance statute or rule, intentionally aids a person in violating an insurance statute or rule or knowingly permits a person over whom he or she has authority to violate an insurance statute or rule shall forfeit to the state not more than $1,000 for each violation. If the statute or rule imposes a duty to make a report to the commissioner, each week of delay in complying with the duty is a new violation.