Melissa A. Popp v. Gordon J. West, III
CourtCourt of Appeals of Wisconsin
Date FiledOctober 21, 2026
Docket2026AP000319
StatusUnpublished
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Full Opinion
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.
October 21, 2026
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. 2026AP319 Cir. Ct. No. 2011FA441
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN RE THE MARRIAGE OF:
MELISSA A. POPP,
PETITIONER-APPELLANT,
V.
GORDON J. WEST, III,
RESPONDENT-RESPONDENT.
APPEAL from orders of the circuit court for Winnebago County:
SCOTT C. WOLDT, Judge. Reversed and cause remanded for further
proceedings.
No. 2026AP319
¶1 LOCOCO, J.1 Melissa A. Popp had “20 calendar days” to seek
judicial review of a family court commissioner’s oral ruling. See WIS. STAT.
§ 767.17(2). The commissioner issued the ruling on December 15, 2025, making
the 20th calendar day January 4, 2026—a Sunday. When the circuit court
received Popp’s pro se request on Monday, January 5, it denied it as untimely.
¶2 The Wisconsin Statutes generally treat Sunday as a day of rest,
imposing a default rule of statutory construction that “[i]f the last day within
which an act is to be done … falls on a Sunday … the act may be done … on the
next secular day.” WIS. STAT. § 990.001(4)(b). The rule does not apply if its
application “would produce a result inconsistent with the manifest intent of the
legislature.” § 990.001.
¶3 The rules of civil procedure, which more specifically apply to
actions affecting the family “[e]xcept as otherwise provided in the statutes,” WIS.
STAT. § 767.201, likewise prevent the last day of a statutory time period from
falling on “a day the clerk of courts office is closed.” WIS. STAT. § 801.15(1)(b).
This would include Sundays. See, e.g., Pulera v. Town of Richmond, 2017 WI
61, ¶38 n.22, 375 Wis. 2d 676, 896 N.W.2d 342.
¶4 Regardless of which of the two laws applies—Popp argues it both
ways—Popp’s deadline at least presumptively shifted to Monday, January 5. This
means her filing was timely.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(h) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
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No. 2026AP319
¶5 The circuit court did not explain its contrary conclusion beyond a
citation to § 767.17(2). That statute does provide some additional guidance on
computation of time. It says: “As set forth under s. 801.15 (1), 20 calendar days
are counted consecutively and include weekends and holidays.”
¶6 If the circuit court thought this sentence means the 20-day review
period may terminate on a Sunday (and by the same logic, on Thanksgiving or
Christmas Day), it was mistaken. The only reference to weekends in § 801.15(1)
reads, “When the period of time prescribed or allowed is less than 11 days,
Saturdays, Sundays and holidays shall be excluded in the computation.” Under
this provision, courts would count a 20-day period (which is longer than ten days)
consecutively and include weekends and holidays. That is exactly what
§ 767.17(2) provides and what the circuit court below did. But § 801.15(1)(b)
addresses how to determine a “last day” separately and, as explained above, using
different language; it does not preclude time periods from ending on “weekends”
or “Sundays” but rather “day[s] the clerk of courts office is closed.” Lacking
similar language, § 767.17(2) is therefore silent on whether Popp’s deadline can
fall on a Sunday, requiring application of the default rule: it cannot.
¶7 A definitive interpretation will have to await a future case;
Gordon J. West, III, respondent here, concedes Popp’s read of the statutes. Instead
he says Popp forfeited her argument by not raising it below. See Wirth v. Ehly, 93
Wis. 2d 433, 443, 287 N.W.2d 140 (1980). He points out that Popp filed a motion
for reconsideration insisting she had electronically filed on January 4 (a factual
dispute this court need not resolve) but failed to argue there that the deadline was
really January 5.
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No. 2026AP319
¶8 The forfeiture rule does not clearly apply. Since the circuit court
acted sua sponte and its decision was dispositive, Popp had no opportunity to
make her statutory argument before her right to appeal ripened. If there is law
requiring such parties to raise all possible arguments in a motion for
reconsideration before taking their appeal, West does not direct this court to it.
Motions for reconsideration ordinarily have limited purposes. See Koepsell’s Olde
Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI
App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853.
¶9 In any event, Popp’s argument addresses an important legal issue
likely to recur. Under the circumstances, even assuming the forfeiture rule
technically applies, this court will exercise its discretion to disregard it. See
Thompson v. Ouellette, 2023 WI App 7, ¶15, 406 Wis. 2d 99, 986 N.W.2d 338.
¶10 All that is left is remand. West informs this court that since the
parties’ youngest child turned 18 during the pendency of this appeal, some of the
claims Popp made before the court commissioner are moot. He asks this court to
limit the scope of remand accordingly.
¶11 The only issue on this appeal is whether Popp’s request for judicial
review was timely. It was. Since the parties agree that at least some relief remains
available to Popp on remand, that issue and this appeal are not moot. See
Marathon County v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901.
The separate question of what Popp’s relief might include below, in contrast, was
not examined by the circuit court and is not under review. This court will remand
the cause without limitation; West is free to make his mootness argument to the
circuit court.
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No. 2026AP319
By the Court.—Orders reversed and cause remanded for further
proceedings.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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