In re Barbara Welter, n/k/a Barbara Koepp, now deceased, petitioner, Respondent, vs. Gary Welter, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-710

 

 

In re Barbara Welter, n/k/a Barbara Koepp,

now deceased, petitioner,

Respondent,

 

vs.

 

Gary Welter,

Appellant.

 

 

Filed September 28, 2004

Affirmed

Robert H. Schumacher, Judge

 

Redwood County District Court

File No. F698438

 

Patrick A. Lowther, Somsen, Mueller, Lowther & Franta, P.A., 134 Second Avenue Southeast, Sleepy Eye, Minnesota 56085-0366 (for respondent)

 

Gary Welter, 112 Third Street, Morgan, Minnesota 56266 (pro se appellant)

 

            Considered and decided by Anderson, Presiding Judge; Schumacher, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

The judgment dissolving appellant-husband Gary Welter's marriage to respondent-wife Barbara Welter, n/k/a Barbara Koepp, now deceased, awarded to wife an interest in husband's pension by naming her the alternate payee in a qualified domestic relations order.  After wife died, both adult children of the marriage sought to be named alternate payees of wife's interest in the pension.  The district court granted the motion of one child but did not address the motion of the other.  We affirm.

FACTS

Husband and wife were married on June 1, 1968, and the marriage was dissolved in May 1999.  The parties have two daughters, Dana Gohr and Stacy Hipskind.  Both Gohr and Hipskind were adults at the time of the dissolution.  The dissolution judgment included a division of property, in part awarding one-half of husband's pension to wife.

To effect the pension portion of the property division, a qualified domestic relations order (QDRO) was filed with the district court on June 14, 1999.  The QDRO names wife as alternate payee of husband's pension and "irrevocably" assigns to her 50% of the value of husband's accrued benefit as determined on December 31, 1998.

            Wife died on May 20, 2003, and named Gohr as the sole heir of her estate.  After wife's death, Gohr filed a motion in the dissolution action requesting that the district court amend the QDRO to name her as the new alternate payee.  Husband opposed Gohr's motion.  He argued the QDRO was a binding contract that could not be amended, changing the named-alternate payee would violate pension bylaws, and federal law disallows wife from transferring by will her interest in the pension.  Hipskind also opposed Gohr's motion, arguing that she and Gohr should be named co-alternate payees.

The district court framed the issue before it as whether the pension benefit, which was properly allocated to wife in the dissolution action, should pass to husband or to Gohr.  The district court concluded the benefit should pass to Gohr because the pension award was part of a property settlement and Gohr was named by wife as her sole beneficiary.  By order filed February 27, 2004, the district court granted Gohr's motion, directed Gohr be named the new alternate payee, but did not respond to Hipskind's motion.

D E C I S I O N

1.            The district court may not modify a final division of property, but it may issue orders to implement, enforce, or clarify the provisions of a dissolution decree so long as it does not change the parties' substantive rights.  Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999).  The district court's implementation of a decree is reviewed under an abuse-of-discretion standard.  Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991).  Purely legal issues are reviewed de novo.  Haefele v. Haefele, 621 N.W.2d 758, 761 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).

Husband argues the district court's February 27, 2004 order is contrary to the Supreme Court's opinion in Boggs v. Boggs, 520 U.S. 833, 117 S. Ct. 1754 (1997), and therefore must be reversed.  We disagree.

In Boggs, Isaac and Dorothy Boggs were married in Louisiana, a community property state, and remained married until Dorothy's death.  Id. at 836, 117 S. Ct. at 1758.  Isaac then married a second wife, Sandra.  Id.  Upon retirement, Isaac received various benefits from his employer's retirement plans, including a lump-sum distribution, which he rolled over into an Individual Retirement Account (IRA).  Id.  The three sons of Isaac's first marriage claimed that under Louisiana community property law a portion of the IRA benefits belonged to Dorothy and therefore were now the property of her heirs, as designated in her will.  Id. at 836-37, 117 S. Ct. at 1758.

To resolve the issue,  the Supreme Court noted that a QDRO is a type of domestic relations order that assigns to an alternate payee the right to receive all or a portion of a participant's pension plan benefits.  Id. at 846, 117 S. Ct. at 1763; see also 29 U.S.C. § 1056(d)(3)(B) (2000).  QDROs, unlike domestic relations orders in general, are exempted from ERISA's anti-alienation and preemption provisions.  Boggs, 520 U.S. at 846, 117 S. Ct. at 1763; see also 29 U.S.C. §§ 1056(d)(3)(A), 1144(b)(7) (2000).  But in Boggs there was no QDRO.  Thus, because the limited QDRO exception did not apply, the Supreme Court determined that state law creating Dorothy's community property interest in Isaac's IRA was preempted by ERISA, and therefore the community property interest could not be subject to testamentary transfer.  Boggs, 520 U.S. at 854, 117 S. Ct. at 1767.  As noted in the dissenting opinion, had there been a QDRO assigning Dorothy an interest in Isaac's pension, she could have left that interest to her children.  Id. at 868, 117 S. Ct. at 1773 (Breyer, J., dissenting).

            Here, unlike Boggs, there is a QDRO.  The parties do not contest that the document filed June 14, 1999, is a valid QDRO.  Husband now contends the document resulting from the district court's February 27, 2004 order is not a valid QDRO.  But the opinion in Boggs does not reach the issue of what qualifies as a QDRO.  See id. at 848, 117 S. Ct. at 1764 (stating sons "do not even attempt to argue that they are beneficiaries by virtue of the judgment of possession qualifying as a QDRO").  The opinion in Boggs is not applicable to this case.  Thus, the district court's February 27, 2004 order is not contrary to federal law as stated in that opinion.

2.            On appeal, husband for the first time argues the document resulting from the district court's February 27, 2004 order, which names Gohr as alternate payee, is not a valid QDRO because Gohr does not meet the definition of "alternate payee" and the district court failed to include her address.  See 29 U.S.C. §§ 1056(d)(3)(K) (stating term "alternate payee" means "any spouse, former spouse, child, or other dependent of a participant"), (d)(3)(C)(i) (2000) (stating QDRO must include name and mailing address of each alternate payee).

We decline to review these arguments because they were not presented to the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts generally will not considered matters not argued and considered in court below).  Furthermore, we note that whether a document is a QDRO is a matter relevant to ERISA, determinable by the plan administrator, and reviewable by a federal court.  See 29 U.S.C. § 1056(d)(3)(G)(i)(II) (2000) (stating, "plan administrator shall determine whether such order is a qualified domestic relations order"); 29 U.S.C. § 1132(a) (2000) (stating civil action may be brought by participant or beneficiary to recover benefits due); 29 U.S.C. § 1132(e) (2000) (stating, except for actions under section 1132(a)(1)(B), federal courts shall have exclusive jurisdiction of civil actions under this subchapter brought by participant or beneficiary); see also U.S. Department of Labor, Pension and Welfare Benefits Administration, QDROs: The Division of Pensions Through Qualified Domestic Relations Order, 6, 9 (1997).

3.            Citing Krollman v. City of Hibbing, 550 N.W.2d 314, 316 (Minn. App. 1996), husband argues the QDRO filed June 14, 1999, was a binding contract that incorporated the pension plan's bylaws.  Husband contends the district court erred because the order naming Gohr as alternate payee violates the bylaws and therefore violates the parties' contract.

But Krollman does not stand for the proposition that a QDRO is a binding contract.  See id. at 316 (applying standard of review for interpreting contract to interpretation of language in pension plan).  Assignment of error in a brief based on mere assertion and not supported by authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Prejudicial error is not obvious in this case.  Thus, we decline to address this argument.

4.            Husband argues the district court erred in not responding to Hipskind's motion.  Quoting from 29 U.S.C. § 1132(a)(1)(B) (2000), husband contends that Hipkind has a valid cause of action under ERISA.

The question of standing can be raised by an appellate court on its own motion, and is essential to our exercise of jurisdiction.  Annandale Advocate v. City of Annandale, 435 N.W.2d 24, 27 (Minn. 1989).  Standing requires a potential party to allege injury in fact, or otherwise have a sufficient stake in the outcome of litigation.  State ex rel. Hatch v. Allina Health Sys., 679 N.W.2d 400, 404 (Minn. App. 2004).  Generally, a litigant may not base his claims on the legal rights of a third party.  Singleton v. Wulff, 428 U.S. 106, 114, 96 S. Ct. 2868, 2874 (1976).  Courts deviate from this general rule only when the litigant has suffered an injury in fact, the litigant has a close relationship with the third party, and the third party is somehow hindered from asserting his or her own rights. Campbell v. Louisiana, 523 U.S. 392, 397, 118 S. Ct. 1419, 1422-23 (1998).

Arguably, one of the criteria is met in this case:  husband has a close relationship with his daughter, Hipskind.  But husband has not shown that he has an economic interest in the claim Hipskind asserted before the district court, and there is nothing in the record demonstrating that Hipskind is hindered from protecting her own rights.  For these reasons we conclude that husband does not have standing to raise Hipkind's alleged injury.

5.            Husband argues the district court violated his right to procedural due process.  See Wick v. Wick, 670 N.W.2d 599, 603 (Minn. App. 2003) (acknowledging that meaningful opportunity to be heard is fundamental element of due process).  The record shows that husband had the opportunity to present his argument to the district court at a hearing and by written memorandum.  The court accepted husband's written memorandum, and it is included in the district court file.  On this record, we conclude that husband received a meaningful opportunity to be heard, and the district court did not violate husband's procedural due process rights.

6.            Husband argues the district court violated his right to equal protection.  Again, husband does not support this contention with legal analysis, and therefore the issue is waived.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by legal analysis).

Affirmed.