Jerry L. Johnson, petitioner, Respondent, vs. Rhonda E. Johnson, Appellant.

Jerry L. Johnson, petitioner, Respondent, vs. Rhonda E. Johnson, Appellant. A06-1415, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1415

 

Jerry L. Johnson, petitioner,
Respondent,
 
vs.
 
Rhonda E. Johnson,
Appellant.

 

Filed August 21, 2007

Affirmed

Wright, Judge

 

Dakota County District Court

File No. F9-01-15250

 

 

Genelle F. Forsberg, Forsberg Law Office, 1345 Corporate Center Curve, Suite 205, Eagan, MN  55121; and

 

Thomas R. Lehmann, Theresa A. Peterson, Lehmann & Lutter, 1345 Corporate Center Curve, Suite 200, Eagan, MN  55121 (for appellant)

 

Brian J. Donahoe, Cutler & Donahoe, 100 North Phillips Avenue, Ninth Floor, Sioux Falls, SD 57104; and

 

Onna B. Houck (pro hac vice), Cutler & Donahoe, 100 North Phillips Avenue, Ninth Floor, Sioux Falls, SD  57104 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this dispute between the deceased husband's former wife and the deceased's estate regarding who is entitled to the balance of husband's 403(b) accounts, former wife argues that (1) the district court erred in awarding her $17,633 from the accounts, based on its determination that the dissolution judgment and decree was unambiguous and that the qualified domestic relations order was inconsistent with it; (2) husband waived his right to object to the order; (3) the district court erred in determining that husband's beneficiary designations were statutorily revoked when the dissolution of the marriage occurred; and (4) in the alternative, wife is entitled to one-half of the value of the accounts.  We affirm.

FACTS

            Husband Jerry Johnson and appellant-wife Rhonda Johnson were married in 1971.  Their marriage was dissolved by judgment and decree in October 2001.  According to the findings of fact in the stipulated judgment and decree, "Wife shall receive $17,633.00 of Husband's three 403(b) accounts by way of qualified domestic relations order(s)."  The judgment and decree states that the combined value of the 403(b) accounts, which were three Providentmutual policies, was $44,458.52.  The cash value was subject to a $19,729.67 loan payoff, for which husband was solely responsible, and payment of a $3,614.89 surrender charge.  The cash value of the policies also was offset by husband's interest in wife's 401(k) account, which was valued at $5,578.  But the judgment and decree did not specify how the $17,633 was calculated. 

            The judgment and decree further provided that husband is "awarded the balance of the Providentmutual accounts," but this provision appears out of context under the spousal-maintenance heading:

Neither party is awarded spousal maintenance from the other, and this Court is divested from having any accounts with Providentmutual.  Husband is awarded the balance of the Providentmutual accounts.  The parties shall equally divide[ ] Husband's Reformed Church of America retirement account.  jurisdiction whatsoever to consider an award of temporary or permanent spousal maintenance to either of the parties in the future [sic].

 

(Emphasis added.)  Under the retirement-accounts heading, the language"awarded the balance of the Providentmutual accounts"is notably absent:

Wife is awarded her 401(k) through her employment and $17,633.00 from Husband's three 403(b) [missing language.]  Wife's interest in Husband's 403(b) and Reformed Church of America accounts shall be obtained by way of qualified domestic relations orders entered separately.

 

In the marital-termination agreement, the provisions appear correctly:

Neither party is awarded spousal maintenance from the other, and this Court is divested from having any jurisdiction whatsoever to consider an award of temporary or permanent spousal maintenance to either of the parties in the future.

 

. . . .

 

Wife is awarded her 401(k) through her employment and $17,633.00 from Husband's three 403(b) accounts with Providentmutual.  Husband is awarded the balance of the Providentmutual accounts.  The parties shall equally divide[ ] Husband's Reformed Church of America retirement account.  Wife's interest in Husband's 403(b) and Reformed Church of America accounts shall be obtained by way of qualified domestic relations orders entered separately.

 

(Emphasis added.)

            On May 11, 2005, a qualified domestic relations order (QDRO) was filed; the QDRO named wife as an alternate payee of husband's 403(b) accounts and directed payment of "the balance of the plan" to her.  The district court file contains no supporting documents to explain why the QDRO was drafted in this manner.  But documents filed in connection with the instant action provide a context.  According to a March 31, 2005 letter to husband from Nationwide Life Insurance Company, the successor to Providentmutual, by 2005, the combined surrender value of the three 403(b) accounts was less than the $17,633 awarded to wife in the judgment and decree.  Therefore, the QDRO could not order payment to wife in the amount of $17,633. 

On May 18, 2005, just one week after the QDRO was filed in district court, husband died.  Husband's estate, the respondent in this action, moved to be substituted for husband and for an amended QDRO.  According to the documents filed in support of the motion, Nationwide had not received the QDRO before husband's death, wife was still listed as husband's beneficiary, and Nationwide refused to pay the proceeds of the 403(b) accounts without clarification of who was entitled to the death benefits.  Wife filed a responsive motion seeking a district court order directing Nationwide to disburse all of the proceeds to her.  On May 8, 2006, the parties appeared in district court for a hearing on the motions.

In its June 12, 2006 postdecree order, the district court determined that the judgment and decree was unambiguous, that the original QDRO was inconsistent with the judgment and decree, and that husband's beneficiary designation was statutorily revoked as a result of the dissolution.  The district court granted the motion to substitute the estate for husband and directed the parties to cooperate in drafting an amended QDRO awarding wife $17,633, plus interest.  This appeal followed.

D E C I S I O N

When a judgment and decree is entered, it is final, subject to the right of appeal, unless a party establishes in a timely motion a basis for reopening the judgment.  Minn. Stat. § 518.145, subds. 1, 2 (2006).  Such bases include newly discovered evidence, fraud, mistake, or excusable neglect.  Id., subd. 2.  Thus, absent one of the statutory bases to reopen a dissolution judgment, once an original judgment and decree has been entered and the time for appeal has expired, the district court may not modify a division of property.  Erickson v. Erickson, 452 N.W.2d 253, 255 (Minn. App. 1990); see Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999) (stating that party may not seek modification of property division based on changed circumstances).  However, the district court may, in its discretion, issue an order that implements or enforces specific provisions of the judgment and decree as long as the order does not alter the terms of the original judgment and decree or affect the parties' substantive rights.  Erickson, 452 N.W.2d at 255-56; see Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991) (observing that district court has power to clarify and construe judgment and decree as long as parties' substantive rights are not changed); Fastner v. Fastner, 427 N.W.2d 691, 698 (Minn. App. 1988) (recognizing that district court has discretion to use QDRO to implement division of pension right).

A stipulated judgment and decree is a binding contract.  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).  As a general rule, when the language employed by the parties in a stipulated provision of a judgment and decree is unambiguous, it shall be construed according to its plain meaning.  Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977).  "[A] dissolution provision is unambiguous if its meaning can be determined without any guide other than knowledge of the facts on which the language depends for meaning."  Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn. App. 1985) (quotation omitted).  If, when judged by its language alone and without resort to parol evidence, a provision is reasonably susceptible of more than one meaning, it is ambiguous.  Id.  But whether ambiguity exists cannot be determined by reading words in isolation; rather, the stipulated judgment and decree must be considered in its entirety.  Id. at 139.

Whether a dissolution provision is ambiguous presents a legal question, which we review de novo.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  Parol evidence may be admitted to clarify the intent of the parties expressed in an ambiguous dissolution provision.  Webb v. Webb, 360 N.W.2d 647, 649 (Minn. App. 1985).  When relying on parol evidence for clarification of the parties' intent, the district court's construction of ambiguous language is a finding of fact, which we review for clear error.  Donnay v. Boulware, 275 Minn. 37, 44, 144 N.W.2d 711, 716 (1966).  In doing so, we accord great weight to the district court's construction of its own judgment and decree.  Redmond, 594 N.W.2d at 275-76.  "The fact that the judgment was ordered by a predecessor does not limit action of a successor judge on the motion for clarification."  Id. at 276 (quotation omitted).

I.

The district court determined that "it is clear and unambiguous, based on the evidence presented by both parties, that the parties intended for [wife] to receive $17,633.00 from [husband's] retirement accounts under the Judgment and Decree."  Wife argues that the district court erred as a matter of law in determining that the judgment and decree was unambiguous and abused its discretion in determining that the QDRO was inconsistent with the judgment and decree.  We disagree.  Our review establishes that the judgment and decree clearly and unambiguously awarded wife $17,633 from husband's 403(b) plans. 

Although there is an editing error in the judgment and decree, the $17,633 awarded to wife from the 403(b) accounts appears clearly and unambiguously in the findings of fact.  The editing error in the judgment and decree does not create an ambiguity, which exists only when a provision is "reasonably susceptible of more than one meaning."  Landwehr, 380 N.W.2d at 138.  The sentence containing the editing error is not reasonably susceptible of more than one meaning.  Rather, the sentence containing the editing error is without meaning until the editing error is corrected.  Once corrected, the judgment and decree accurately reflects the marital-termination agreement, which is without error and merged into the judgment and decree when the judgment was entered.  See Shirk, 561 N.W.2d at 522 (holding that marital-termination agreement is merged into judgment and decree when the judgment is entered). 

As corrected, the judgment and decree unambiguously awards wife $17,633 from the Providentmutual accounts and awards husband the balance.  Thus, the district court did not err in concluding that the judgment and decree is unambiguous.  As such, we need not consider the parol evidence on which wife relies to argue that the parties at all times intended that she would receive all of the plan benefits after the loan payoff. 

Wife argues that, because the QDRO clearly states the parties' intent to award wife "the balance of the plan," the district court abused its discretion when it found the QDRO to be inconsistent with the judgment and decree.  But by awarding wife "the balance of the plan," rather than the $17,633 that she was awarded in the judgment and decree, the QDRO is indeed inconsistent.  The district court may not modify a final judgment and decree; it may only issue orders that implement the provisions of the decree.  Erickson, 452 N.W.2d at 255-56.  Because the QDRO would modify the judgment and decree rather than implement the judgment and decree's provisions, enforcement of the QDRO would have been an abuse of the district court's discretion.  See generally Nelson v. Nelson, 83 P.3d 889, 893 (Okla. Civ. App. 2003) (observing that a QDRO is "the vehicle by which a spouse enforces and collects retirement benefits awarded in a divorce" and that although property division in dissolution generally is final, district court retains "jurisdiction" to conform             QDRO "to the terms of the underlying divorce decree as long as no impermissible modification of the property division of the decree is effected" (quotation omitted)).  To the contrary, the postdecree order at issue here does not modify the judgment and decree; it implements the judgment and decree's terms.

Wife contends that the postdecree order is erroneous because, in the judgment and decree, she did not waive her right to receive the 403(b) plan's death benefits.  But it is undisputed that wife waived her right to any further benefit from the plan in two respectswhen she agreed that husband was entitled to receive the balance of the plan and when the parties agreed to release each other from all claims and rights "[t]o share, as a result of the marital relationship, in the other party's estate upon the latter's death[,]" or "[t]o any other property right, benefit, or privilege in or from the property of the other."  Had the value of these accounts remained stable or increased and wife promptly received payment, wife would have received $17,633 and husband would have received the balance.  If a substantial inequity had arisen after the judgment and decree was entered and before the time for appeal had expired, and wife timely sought a more equitable property division, the district court could have made such an adjustment.  See Fastner, 427 N.W.2d at 699 (stating that when dividing marital property, courts should consider any substantial change in asset's value between time of trial and appeal); Otte v. Otte, 368 N.W.2d 293, 299 n.1 (Minn. App. 1985) (same).  But the change in value occurred well after the property division and the judgment and decree became final; and wife has no basis to assert a claim for the difference. 

Wife cites Neubauer v. Neubauer for the proposition that a district court can amend a judgment and decree when pension benefits were omitted from an initial property division.  433 N.W.2d 456, 461 n.1 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989).  But unlike the pension benefits in Neubauer, the pension benefits at issue here were not omitted from the judgment and decree; they were specifically addressed.  Wife also cites unpublished cases, which not only are without precedential value, Minn. Stat. § 480 A. 08, subd. 3(c) (2006), but also are not useful to the resolution of this matter.  See Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004) (noting that danger of reliance on unpublished opinions is great because unpublished opinions may not contain full recitation of facts).

The judgment and decree unambiguously provides that wife is awarded $17,633 from husband's 403(b) plans.  Although an editing error in the judgment and decree confuses the issue of who is to receive the balance, the marital-termination agreement and the corrected judgment and decree clearly state that husband is to receive the balance.  Thus, the district court did not abuse its discretion when it determined that the QDRO was inconsistent with the judgment and decree and issued a postdecree order that implemented the terms of the judgment and decree by awarding wife $17,633 from husband's 403(b) plans.

II.

Wife argues that the district court abused its discretion by failing to determine that husband waived his right to object to the QDRO.  As the estate observes, wife first raised this issue in a posthearing responsive memorandum, which appears to have been filed without the district court's permission and outside the rules of practice.  See Minn. R. Gen. Pract. 303.03 (allowing only for initial motions and memoranda, motions and memoranda responding to initial motion, and memoranda in response to motions raising new issues).  Thus, it may not have been considered by the district court.  Because the district court did not address this issue and wife did not move for amended findings for this purpose, our review is precluded.  See Beasley v. Medin, 479 N.W.2d 95, 99 (Minn. App. 1992) (noting that lack of findings on an issue and failure to request such findings under Minn. R. Civ. P. 52.02 precludes appellate review).

Citing Linder, wife arguesthat husband cannot avoid implementation of a QDRO that he was responsible for drafting.  391 N.W.2d at 7-8 (requiring spouse to honor compromise adopted by referee that wife suggested in affidavit).  But the facts here are distinguishable.  Husband is not abandoning a compromise.  A QDRO is limited by the terms of the judgment and decree, which in this case represents the parties' agreement.  Because the QDRO did not implement the terms of the judgment and decree, it was unenforceable even if the QDRO's terms were drafted at husband's direction.  Thus, the district court did not abuse its discretion by declining to consider the waiver argument.

 

III.

Wife also argues that the district court erred as a matter of law when it concluded that husband's beneficiary designations were revoked by Minn. Stat. § 524.2-804, subd. 1 (2006), which provides that, subject to limited exceptions including a court order, a dissolution of marriage revokes any revocable beneficiary designation.  We review de novo the district court's interpretation and construction of a statute.  Lewis-Miller v. Ross, 710 N.W.2d 565, 568 (Minn. 2006). 

According to wife, she is entitled to the death benefits because the QDRO, a court order, is a recognized exception to the application of Minn. Stat. § 524.2-804, subd. 1, and it indicates that husband and wife agreed that wife was to receive the balance of the plan, which would include any death benefits.  We are unpersuaded.  As addressed above, the QDRO was unenforceable because it was inconsistent with the governing dissolution judgment and decree.  Furthermore, the QDRO, if enforceable, does not clearly rename wife as the beneficiary of the death benefits on husband's 403(b) accounts. 

Although, as wife observes, had husband died in 2001 before the effective date of section 524.2-804, subdivision 1, she would have received the death benefits, this has no bearing on our analysis.  Because husband died in 2005, the revocation provision applies.  See 2002 Minn. Laws ch. 347, § 2, at 672-73 (enacting Minn. Stat. § 524.2-804, subd. 1); see also 2004 Minn. Laws ch. 146, art. 1, § 7, at 30 (applying that provision to decedents dying after July 31, 2002).  Wife's argument that she never waived her right to receive the death benefits because the statute did not exist at the time of the dissolution also is unpersuasive.  Indeed, application of the statutory-revocation provision is consistent with the waiver in the judgment and decree.  Cf. In re Estate of Rock, 612 N.W.2d 891, 895 (Minn. App. 2000) (holding prior to enactment of Minn. Stat. § 524.2-804, subd. 1, that district court's finding that language in judgment and decree did not remove former wife as beneficiary of husband's retirement accounts was not clearly erroneous).  And the terms of the judgment and decree did not preclude husband from changing his designated beneficiary, which he could have done at any time before his death.  See Lincoln Benefit Life Co. v. Heitz, 468 F. Supp. 2d 1062, 1067-69 (D. Minn. 2007) (holding that section 524.2-804, subdivision 1, is constitutional and does not substantially impair right to contract because beneficiary had no vested contractual interest in death benefits until decedent died and decedent could have avoided statute's application by affirmatively naming former spouse as beneficiary).

In sum, the QDRO, an unenforceable order that was inconsistent with the governing dissolution judgment and decree, did not thwart the statutory revocation of husband's beneficiary designation.  Because the QDRO is not an enforceable court order that clearly indicates husband's intent to retain wife as his beneficiary after the dissolution, the district court correctly applied Minn. Stat. § 524.2-804, subd. 1.

IV.

Finally, wife argues that the district court erred by failing to address her alternative argument that the increase in the value of the 403(b) plans resulting from husband's death warrants awarding her one-half of the balance.  According to wife, because there was a "substantial change" in the asset's value before it was distributed, the district court should have adjusted the value to ensure an equitable distribution.  Minn. Stat. § 518.58, subd. 1 (2006); see McGowan v. McGowan, 532 N.W.2d 258, 259-60 (Minn. App. 1995) (observing that district court may either employ lump-sum payment to distribute pension or retain jurisdiction and make any necessary adjustments to distribution when pension payments begin); Webb, 360 N.W.2d at 648-49 (affirming district court's order awarding wife double the number of shares of stock she was awarded in judgment and decree because a stock split before distribution date decreased by one-half of the value of each share).  We disagree.

When parties agree to a lump-sum payment and the judgment and decree is final, the district court is not required to make any adjustments to the value before distribution.  See McGowan, 532 N.W.2d at 260 ("Although a property division is normally considered final, . . . an equal division [of a pension] may be finalized later when the original judgment makes no lump sum award."); see also Bollenbach v. Bollenbach, 285 Minn. 418, 436, 175 N.W.2d 148, 159 (1970) ("[T]he [judgment and] decree should be so phrased as to permit such modification as might be required to prevent the inequities resulting from marked changes in market value of the property between the date of the decree and a timely execution of the plan of distribution contemplated by it, at least to the extent that modification is possible before the judgment and decree become final."  (Emphasis added.)).  Indeed, a district court is prohibited from modifying a final property division, even if inequitable, under the guise of implementing or clarifying a judgment and decree.  Jensen v. Jensen, 440 N.W.2d 152, 158 (Minn. App. 1989).   

Contrary to the facts in the cases on which she relies, wife was not awarded a percent of husband's account or a number of shares of stock.  She was awarded a prescribed dollar amount.  The detriment of any loss in the value of the 403(b) accounts would have fallen solely on husband; wife still would be entitled to the lump sum of $17,633.  Cf. Webb, 360 N.W.2d at 649 (affirming district court's proportionate award of stock to wife and noting that had stock decreased in value, loss would have been shared by wife and not fallen entirely on husband).  Because an award of any amount over the $17,633 specified in the judgment and decree would constitute an unanticipated windfall for wife, the district court was not required to make an equitable adjustment due to the increase in the plan's value. 

We acknowledge that an award in the amount of $17,633 indicates that the parties intended to divide the 403(b) accounts in half, just as they had divided in half husband's Reformed Church of America account and, in effect, wife's 401(k) through the use of the offset.  According to the parties' calculations, $17,633 was derived by subtracting the surrender charge of $3,614.89 from the value of the three accounts, $44,458.52, dividing in half the remaining $40,843.63, which equals $20,421.82, and subtracting one-half of the value of wife's 401(k), $2,789, as an offset.[1]  The remaining $17,632.82 rounds up to the $17,633, the amount specified in the judgment and decree.  Although $17,633 may have represented one-half of the value of the 403(b) accounts at the time of dissolution, the judgment and decree provides that wife is to receive $17,633 from the accounts, not one-half.  Indeed, the parties could have expressly agreed to "equally divide" the 403(b) accounts, as they did with the Reformed Church of America account.  But based on the plain meaning of unambiguous terms, they did not do so.

Because the district court correctly determined that the judgment and decree is unambiguous, the district court was not required to consider wife's alternative argument that she is entitled to one-half of the balance of the 403(b) accounts.  Under the unambiguous terms of the judgment and decree, wife is awarded $17,633, not one-half of the balance of the 403(b) accounts.  And under the marital-termination agreement and the corrected judgment and decree, husband is awarded the balance of the 403(b) accounts.

The postdecree order does not change the agreed-on division of property or the parties' substantive rights.  Rather, it accurately enforces the provisions of the judgment and decree.  Accordingly, the district court did not misapply the law or abuse its discretion when, in its postdecree order, it directed the parties to cooperate in drafting an amended QDRO that implements the terms of the judgment and decree and awards wife $17,633, plus interest.

Affirmed.

[1][($44,458.52 $ 3,614.89) ÷ 2] $ 2,789 = $17,632.82