Opinion
Case No. 117,592
05-12-2020
In re the Marriage of: Margaret A. CLEMENTS, Plaintiff/Appellant, v. Richard D. CLEMENTS, Defendant/Appellee.
George H. Brown, Tony Gould, BROWN & GOULD, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant Betsy Ann Brown, Brayden Jennings, BIC LEGAL PLLC, Norman, Oklahoma, for Defendant/Appellee
George H. Brown, Tony Gould, BROWN & GOULD, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant
Betsy Ann Brown, Brayden Jennings, BIC LEGAL PLLC, Norman, Oklahoma, for Defendant/Appellee
OPINION BY JANE P. WISEMAN, CHIEF JUDGE: ¶1 Wife Margaret A. Clements appeals the trial court's order of November 16, 2018, in which it determined the division of Husband Richard D. Clements' OG&E retirement in an earlier decree awarded Wife "one-half (1/2) of the marital portion" rather than one-half of Husband's total OG&E pension. After review, we affirm as modified and remand with directions.
FACTS AND PROCEDURAL BACKGROUND
¶2 On April 29, 1999, Husband and Wife entered into an agreed divorce decree which in part granted her (1) "One-half (1/2) [Husband's] Chamber retirement," (2) "One-half (1/2) [Husband's] OG&E stock and 401K investments," and (3) "One-half (1/2) [Husband's] OG&E retirement." After the divorce in June 1999, the trial court approved two Qualified Domestic Relations Orders (QDROs) for Husband's Chamber retirement and for the OG&E stock and 401K investments. Husband had worked for OG&E for only four years as of that time, and he had not yet vested in the retirement plan, which required five years. Therefore no qualified QDRO for this benefit could be approved. Husband continued to work for OG&E, ultimately retiring in July 2017.
¶3 On March 8, 2017, Husband filed a QDRO for his OG&E retirement, which defined Wife's benefit as "50% of the Participant's accrued benefit between the date of marriage and the date of separation/divorce." Wife asserts she did not receive notice of the QDRO and it failed to include a certificate of mailing showing she received notice.
¶4 On December 29, 2017, Husband filed a motion to settle the QDRO stating that although Wife had already received half of both his Chamber retirement and OG&E stock and 401K investments, a QDRO was needed to distribute his OG&E retirement because he retired in July 2017. Husband, arguing Wife is entitled to half of the marital portion of the retirement, not half of his total retirement, asserted that based on the marital portion of his retirement, Wife was entitled to 9.8% of the total pension payment.
¶5 Wife responded that because she and Husband entered into a consent decree in which they specifically agreed Wife "would be entitled to a full one-half of [Husband's] OG & E retirement if he stayed long enough to become vested," she is entitled to this amount, not simply half of the marital portion. She emphasizes that the language in the decree unambiguously states she is to receive "One Half (1/2) [Husband's] OG & E retirement," not half of the marital portion of his retirement. The consent decree, she argues, is valid and enforceable with "the same force and effect as a contract" as long as it does not contravene public policy. And because the decree is a final order which was never appealed, the trial court, according to Wife, lacks jurisdiction to modify it. In her counter-motion to settle the QDRO, Wife asks the trial court to deny Husband's QDRO and to approve her attached QDRO.
¶6 After a hearing on February 9, 2018, the trial court directed the parties to include the language from the decree in the QDRO and did not determine whether the language in the decree meant half only of the marital portion of Husband's retirement or of all of it. The trial court concluded in part:
... I've got to go with the language that's in there, if there's a dispute as to what language that's to be in there. You're saying add "the marital portion," which very well may have been their intent. But then on the other hand, it may not. You know, we don't know. ... So the language that's here may be unfortunate, but it is, you know, it is the language that they used at the time.
¶7 On July 24, 2018, Husband filed a motion to settle journal entry asserting, "The parties have been unable to agree as to the language to be contained in the Journal Entry and as such, request the court make a determination as to which Journal Entry should be executed by the court." ¶8 Wife filed a response and cross-motion to settle journal entry with an attached QDRO arguing in part:
4. Following this Court's [February 2018] decision, counsel for Plaintiff ... submitted the QDRO to the third-party administrator for the OG&E Pension as to QDRO matters, Fidelity, for preapproval. The draft QDRO included the language ordered by this Court.
5. As this Court predicted, Fidelity rejected the QDRO as written for a lack of specificity. In fact, in its two-page rejection letter, Fidelity stated as follows:
"Please be advised, the Order must state the award as a specified percentage or amount of the Participant['s] vested accrued benefit in the Plan. ... Additionally, the Order does not state a valuation date on which to value that benefit in order to determine the Alternate Payee's one half share."
Wife asked the trial court to settle the journal entry and enter the attached QDRO which she claimed "accurately reflects the orders of this Court entered on February 9, 2018."
¶9 On September 20, 2018, the trial court denied Husband's motion to settle and granted in part Wife's counter-motion to settle the QDRO, stating:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that [Wife's] Qualified Domestic Relations Order is approved in all respects except Paragraph 8 which will award Plaintiff "One-half of defendant's OG&E retirement." The Court's complete ruling is found within the Transcript of Proceedings from February 9, 2018.
¶10 This ruling did not resolve the parties' dispute and was insufficient for the plan administrator to calculate Wife's award of benefits. On September 27, 2018, Wife filed a motion to reconsider this order stating:
In light of Fidelity's rejection of the QDRO ordered by the Court (ultimately filed herein on September 27, 2018), [Husband's] commencement of his OG&E Pension benefit is on hold and [Wife] cannot receive her share of the same. Therefore, for the reasons stated herein, [Wife] respectfully requests that the Court reconsider its Order entered herein on February 9, 2018, and the QDRO filed September 27, 2018 which adhered to this Court's Order.
Wife asked the trial court to "amend the QDRO filed September 27, 2018 by instead entering the QDRO proposed by [Wife] in her Counter-Motion to Settle" and grant Wife any further relief the court deemed just and equitable including attorney fees and costs.
¶11 In response to Wife's motion to reconsider, Husband argues her request "requires the Court to divide future earnings which is outside of the court's jurisdiction." Husband urges the trial court to "either (1) use the date of marriage to the date of divorce as the division dates as this incorporates the time the parties' property is lawfully divisible; or (2) determine the marital portion of the whole pension upon retirement which equates to 17% of [Husband's] pension." Husband further urges the trial court to "review the intent of the parties to determine the true meaning of the orders entered" as it was not Husband's "intent to divide an additional 18 years of accrued benefit after divorce."
¶12 On November 16, 2018, the trial court considered Wife's motion to reconsider and concluded:
The Court orders that [Husband's] OG&E Pension shall be divided by Qualified Domestic Relations Order [QDRO] awarding [Wife] one-half (1/2) of the marital portion. The parties were married on June 19, 1976 and the parties were divorced on April 29, 1999.
The trial court then ordered Husband's counsel to prepare an amended QDRO which was filed that same day stating as to the provision in question:
8. The Court Orders that the Alternate Payee is entitled to one-half (1/2) of the Participant's vested accrued benefit in the Plan from the date of marriage June 19, 1976 to the date of divorce, April 29, 1999.
¶13 Wife appeals. STANDARD OF REVIEW
¶14 On September 20, 2018, the trial court denied Husband's motion to settle and granted in part Wife's counter-motion. On September 27, 2018, Wife filed a motion to reconsider this order. Because the motion to reconsider was filed within 10 days of the filing of the order, we will treat it as a motion for new trial. The Oklahoma Supreme Court in Fox v. Mize , 2018 OK 75, ¶ 5, 428 P.3d 314, held:
If timely filed ... a motion to reconsider may be regarded as one for new trial under 12 O.S. 2011 § 651 (if filed within ten (10) days of the filing of the judgment, decree, or appealable order), or it may be treated as a motion to modify or to vacate a final order or judgment under the terms of 12 O.S.2011 § ... 1031.1 (if filed after ten (10) days but within thirty (30) days of the filing of the judgment, decree, or appealable order).
"The standard of review for ... denial of a motion for a new trial ... is abuse of discretion." Id . ¶ 6. "A trial court abuses its discretion when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Id.
¶15 A court has jurisdiction to enter a QDRO that clarifies a decree but may not enter one that modifies or alters the decree. "In that a question concerning the jurisdictional power of the trial court to act as it did is implicated[,] our standard of review is de novo ." Jackson v. Jackson , 2002 OK 25, ¶ 2, 45 P.3d 418. Whether an ambiguity exists "in the language of the decree is a decision made by the trial court." Ryan v. Ryan , 2003 OK CIV APP 86, ¶ 8, 78 P.3d 961. "If the court determines that the language is not ambiguous, the construction of the decree is also a matter of law for the court." Id . Matters of law invoke a de novo review "which involves a plenary, independent and non-deferential examination of a trial court's legal rulings." Jackson , 2002 OK 25, ¶ 2, 45 P.3d 418.
ANALYSIS
¶16 Wife argues the trial court erred when it modified the parties' consent decree by preventing her from receiving half of Husband's total OG&E retirement.
¶17 As set forth in Jackson , a trial court has jurisdiction to clarify a previously entered divorce decree dividing retirement benefits:
Although a trial court is without jurisdiction or authority to issue a QDRO that substantively alters a final property division previously made in a divorce action, a trial court has jurisdiction or authority to issue a subsequent post-property division QDRO to act as the statutorily-sanctioned mechanism by which the System gains lawful empowerment to pay a former spouse their portion of a System benefit previously awarded as part of the final property division in the divorce action.
....
[A] QDRO is generally the mechanism by which a divorce decree awarding retirement benefits to a spouse is enforced and collected with regard to the particular retirement program covered by the decree. ... [A] trial court has the authority to issue a subsequent QDRO if an initial one contains some ambiguity concerning the proper division of a retirement benefit under an earlier entered divorce decree, as long as the later QDRO does not alter what was awarded initially by the decree, but conforms to it.
Id. ¶¶ 1, 15.
¶18 To determine whether the Amended QDRO impermissibly modified or properly clarified the consent decree, "[w]e use principles of contract law" and interpret "a consent judgment ‘as other contracts’ and ascertain the intent of the parties." Holleyman v. Holleyman , 2003 OK 48, ¶ 11, 78 P.3d 921. "The intent of the parties at the time they entered into an agreement controls the meaning of their written contract." Id . ¶ 13 ; see also 15 O.S.2011 § 152 ("A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful.").
¶19 The April 29, 1999, agreed divorce decree granted Wife (1) "One-half (1/2) [Husband's] Chamber retirement," (2) "One-half (1/2) [Husband's] OG&E stock and 401K investments," and (3) "One-half (1/2) [Husband's] OG&E retirement." Less than two months after the June 1999 divorce, the trial court approved two QDROs for Husband's Chamber retirement and for his OG&E stock and 401K investments. On June 23, 1999, a QDRO was filed dividing Husband's Chamber retirement stating in part:
4. The Alternate Payee is hereby assigned a portion of the vested benefits payable to the Participant under the Retirement Plan for Employees of Greater Oklahoma City Chamber of Commerce (the "Plan"), in an amount equal to fifty percent (50%), net any loans, as of April 29, 1999.
....
6. ... Once the benefits assigned to the Alternate Payee pursuant to this Order have been disbursed, the Alternate Payee shall have no further interest of any kind whatsoever [in the] remainder of the Participant's accrued benefits under the Plan.
That same day, a second QDRO was entered dividing Husband's OG&E stock and 401K investments similarly stating in part:
4. The Alternate Payee is hereby assigned a portion of the vested benefits payable to the Participant under the OGE Energy Corp. Employees' Stock Ownership and Retirement Savings Plan (the "Plan"), in an amount equal to fifty percent (50%), net any loans, as of April 29, 1999.
This QDRO also has an identical paragraph 6 as quoted above. It is undisputed that the assets in the first two QDROs, entered within two months after the consent decree was approved, had vested and were divided based on what had accrued during the marriage. Because the OG&E retirement had not yet vested at the time of the divorce, no qualified QDRO could be approved.
¶20 We recognize, as did the Supreme Court in Jackson , that "[o]nce a ruling has become final (either for want of an appeal or in consequence of an appellate court's decision), any controversy over the meaning and effect of the decision must be resolved by resort solely to the face of the judgment roll." Jackson , 2002 OK 25, ¶ 18, 45 P.3d 418. "Furthermore, mere ambiguity will not affect a judgment's validity, unless none of its terms is susceptible to construction which will make it conformable to law." Id . "Also, merely entering a second judgment cannot, per se , vacate a prior judgment in the same action." Id. "An unclear judgment should be construed so as to carry out its evident purport and intent, rather than defeat it, and a court should consider the situation to which it was applied and the purpose sought to be accomplished." Id.
"The judgment roll has been defined to include the petition, process, return, pleadings, reports, verdicts, orders and all acts and proceedings of the court." Federal Deposit Ins. Corp. v. Duerksen , 1991 OK CIV APP 39, ¶ 11, 810 P.2d 1308 ; see also 12 O.S.2011 § 32.1.
¶21 The Jackson Court explained:
The purpose and function of a court in construing a divorce decree earlier entered is to give effect to that which is already in the judgment, although expressed ambiguously, and the court has no authority to add new provisions to the decree or to change substantive provisions already in the decree, under the guise of construing said decree.
Id. ¶ 19.
¶22 In this case, we conclude the trial court correctly determined Wife is entitled to half of the marital portion only of Husband's OG & E retirement rather than half of Husband's total OG & E retirement. Without question, both parties knew Husband's OG & E retirement had not vested at the time of the divorce in April 1999. This seems to indicate that if Wife is held to receiving half only of Husband's "vested retirement during coverture," she would receive nothing because the benefit did not vest until after the divorce. The Amended QDRO approved by the trial court attached to the order appealed currently states:
8. The Court Orders that the Alternate Payee [Wife] is entitled to one-half (1/2) of the Participant's vested accrued benefit in the Plan from the date of marriage June 19, 1976 to the date of divorce, April 29, 1999.
Wife argues that under this language, she receives nothing from Husband's retirement, which thus contradicts the decree's language that she receive half, rendering the provision without substance. If Husband received no OG&E retirement because he left OG&E after the divorce but before his retirement vested, Wife—like Husband—would receive nothing in OG&E retirement benefits. But once Husband vested, the decree's provision became effective and enforceable. We agree that this language creates confusion as to what Wife is awarded.
¶23 In her motion to reconsider, Wife proposes the following language for inclusion in the Amended QDRO:
8. The Alternate Payee is entitled to Fifty percent (50%) of the Participant's vested accrued benefit as of the Alternate Payee's commencement date.
This language reflects one of Fidelity's options explaining what a QDRO must state when it describes an Alternate Payee's separate interest award. However, we agree with Husband that this represents an award to Wife of one-half of his entire retirement benefit, only four years of which accrued during the marriage, and is not, as we explain below, a sustainable construction under the record before us.
¶24 A contract term is ambiguous if it can be reasonably interpreted as having two or more meanings. K&K Food Servs., Inc. v. S&H, Inc., 2000 OK 31, ¶ 8, 3 P.3d 705. Because this is a consent decree, we cannot rely on the statutory restrictions on distributions of future income binding on the court in entering a non-consent decree. We acknowledge that "parties to a consent decree may agree to obligations between themselves that exceed those required by law." Holleyman v. Holleyman , 2003 OK 48, ¶ 8, 78 P.3d 921. Husband and Wife were free to contract "with respect to disposition of their property" and could achieve by contract what the trial court was prohibited from doing. Perry v. Perry , 1976 OK 57, ¶ 8, 551 P.2d 256 ; see also Kittredge v. Kittredge , 1995 OK 30, 911 P.2d 903.
¶25 As we can see from the parties' positions and Fidelity's rejection of the initial QDRO, the decree is ambiguous on the question of whether Wife is awarded one-half of Husband's benefits that accrued during the marriage (four years) or one-half of his benefits that accrued until he retired (22 years). Although the decree's language awarding Wife "half of Husband's OG&E retirement" is ambiguous, we must give effect to what is in the decree and cannot "add new provisions to the decree or [ ] change substantive provisions already in the decree." Jackson v. Jackson , 2002 OK 25, ¶ 19, 45 P.3d 418.
¶26 As previously noted, the meaning of the ambiguous provision must be resolved solely by resorting to the judgment roll. Id. ¶ 18. In this respect, we are assisted by the decree itself. The two other marital assets divided in the decree and subject to QDROs—Husband's Chamber retirement and his OG&E stock and 401K investments—were divided on the basis of assets accrued during coverture only. Although Wife seeks to distinguish Husband's OG&E retirement from these two because it was not yet vested when the decree was entered, we see no credible or equitable reason to draw this distinction as to its division. In Baggs v. Baggs , 2016 OK 117, ¶ 14, 385 P.3d 68, the Court said: "Generally, a pension right burdened with a conjugal interest is a type of marital asset divided between the parties to a divorce." The Baggs Court, citing Carpenter v. Carpenter , 1983 OK 2, ¶ 23, 657 P.2d 646, continued:
[W]e do not deem it significant whether the pension is "vested" in the sense that it is now due and owing, whether it is conditional or contingent upon continued employment for a prescribed period or terminable upon the occurrence [ ]or non-occurrence of some future event. ... In any of these events, it is a valuable right which has been purchased through joint efforts of the spouses to the extent that it has been acquired or enhanced during the marriage, and as such becomes jointly acquired property during the marriage.
Baggs, 2016 OK 117, ¶ 15, 385 P.3d 68. Neither party would receive any portion of the retirement if Husband left OG&E's employ before he vested. And, if he remained and vested—which he did—there is nothing in the judgment roll to justify distributing this asset differently from the other two assets subject to QDROs.
¶27 Nor is there any equitable argument to be made for such a distinction. Distribution to the parties using a "currently accrued" basis represents an equitable distribution of assets acquired during coverture, but adding one-half of 18 years of Husband's benefits that accrued after the divorce appears substantially inequitable. We interpret the phrase "one-half of Husband's OG&E retirement" as awarding Wife one-half of Husband's plan assets that accrued during the marriage.
¶28 We conclude that relying on the face of the judgment roll, the trial court correctly construed the decree to say Wife is entitled to half of the marital portion only of Husband's OG&E retirement, that is, the portion that accrued during coverture and not beyond.
¶29 We affirm the trial court's order and remand with directions to the trial court to issue an Amended QDRO that is consistent with this Opinion awarding Wife one-half of Husband's OG&E retirement benefits that accrued during the marriage.
CONCLUSION
¶30 For the reasons stated, we affirm the decision of the trial court as modified and remand with directions.
¶31 AFFIRMED AS MODIFIED AND REMANDED WITH DIRECTIONS.
THORNBRUGH, P.J., and RAPP, J., concur.