Opinion
No. 1-526 / 00-1233.
Filed January 28, 2002.
Appeal from the Iowa District Court for Scott County, J. HOBART DARBYSHIRE, Judge.
The defendant appeals from the district court's ruling on the plaintiff's petition for declaratory judgment. REVERSED AND REMANDED.
Michael J. McCarthy of McCarthy, Lammers Hines, Davenport, for appellant.
J.E. Tobey, III, Davenport, for appellee.
Heard by SACKETT, C.J., EISENHAUER, J. and C. PETERSON, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2001).
The defendant appeals from the district court's ruling on the plaintiff's petition for declaratory judgment. The defendant contends the trial court erred in awarding the plaintiff a judgment against him in the sum of $740 per month until such time as the plaintiff receives payments from his pension. We reverse and remand.
I. Background Facts and Proceedings . Linda and Richard Carstensen were married in 1971 and divorced in 1996. The dissolution decree provided that neither party was to be awarded alimony. The decree stated that Richard's union retirement was vested and Linda was "eligible to immediately receive her share of the benefits." The decree awarded Linda one half of Richard's pension and directed that a qualified domestic relations order (QDRO) be entered.
Prior to the entry of the dissolution decree, Linda and her counsel had been misinformed by Richard's union representative that Linda could collect her share of Richard's pension even if Richard continued working. After the entry of the decree, Richard's pension board refused to honor the QDRO. The board would not pay Linda her share of Richard's retirement benefits while Richard was still working. Linda filed a petition to partially vacate the dissolution decree. The district court found Linda had abandoned her claims for alimony based on the misrepresentation regarding her immediate entitlement to Richard's pension benefits, and it vacated that portion of the dissolution decree that denied either party alimony.
Richard filed an appeal. However, before the appeal was completed the parties were informed Richard could work in a supervisory capacity and earn retirement benefits at the same time. As a result, in January 1998 the parties entered into a settlement agreement and a new QDRO, allowing Linda to receive $740 per month of Richard's pension benefits. Approximately a year later, the pension board reversed its position and would no longer pay any of Richard's pension benefits while he continued to work. Linda filed a contempt action that was converted to a petition for declaratory judgment. At the hearing the court would not allow evidence to determine if alimony was warranted.
The district court found Linda had agreed to give up her right to reopen the issue of alimony in exchange for a monthly payment of $740. The court awarded Linda's judgment against Richard in the sum of $740 per month until such time as Linda received payments from Richard's pension.
Richard appeals and argues the district court erred in finding his continued employment resulted in a suspension of benefits to Linda and triggered his obligation to pay her. He contends the court imposed a remedy that awards Linda de facto alimony without a hearing regarding the necessity or amount thereof.
II. Scope of Review . Our review for cases in equity is de novo. Iowa R. App. P. 4. While weight is given to the trial court's fact findings, we are not bound by them. Israel v. Farmers Mut. Ins. Ass'n., 339 N.W.2d 143, 146 (Iowa 1983).
III. Analysis . The trial court applied a contract analysis and determined Richard had dismissed his appeal in return for Linda's giving up her right to seek alimony. Our court has recognized that traditional contract analysis may be applied to negotiations between former spouses. In re Marriage of Masterson, 453 N.W.2d 650, 653 (Iowa Ct. App. 1990). The district court then applied the language of the first QDRO to govern the contract between the parties. The court concluded Richard's continued employment triggered his obligation under the original QDRO to pay Linda the equivalent amount until the pension payments resume. Without deciding whether the language of the original QDRO is superseded by the second QDRO, we find the district court erred in concluding Richard's continued employment requires that he pay Linda the $740 per month in pension benefits she was entitled to under the QDRO.
The original QDRO stated:
If the payment of benefits to [Linda] from the assigned plan does not begin at a time specified in this order or if the payments cease or are suspended after that date for any period due in any respect to the actions of [Richard], [Richard] will pay to Linda the proportionate share assigned to her each and every month until the payments from such plan begin or resume.
(Emphasis added). Richard did not take any action to suspend his pension payments. Rather, it was the pension board that took action by changing its policy to prevent Richard from collecting his pension. Although the pension board's decision made Richard's continued employment result in the cessation of his pension payments, this cannot serve as a basis for requiring Richard to make monthly payments to Linda. In fact, Linda complains not that Richard has committed an act that has caused the pension payments to cease, but rather that he has failed to act by not retiring as the pension board's new rules would require for one to receive their pension. Richard's continued employment, in this instance, is not an act but rather an omission. See Terry v. Linscott Hotel Corp., 617 P.2d 56, 61 (Ariz. 1980) ("The word `act' . . . denotes the affirmative. Omission denotes the negative. Act is the expression of will, purpose. Omission is inaction. Act carries the idea of performance. Omission carries the idea of refraining from action."). Therefore, we reverse the district court's order requiring Richard to pay Linda $740 per month until the pension payments resume.
The difficulties in this case were not caused by either party. In both the decree and the modification, Linda gave up her right to seek alimony on the belief that she would be receiving a monthly pension payment. The pension board has, once again, prevented this from occurring. Like Richard, Linda should not be penalized because of the pension board's actions. "Equity requires doing justice to all parties in the action." Folkers v. Southwest Leasing, 431 N.W.2d 177, 182 (Iowa Ct. App. 1988). Therefore, we conclude Linda may pursue a claim for alimony in the district court. Because no evidence was permitted to determine whether alimony is proper considering the factors listed in Iowa Code section 598.21(3), the case should be remanded.
REVERSED AND REMANDED.