Opinion
No. 4-233 / 03-1226
May 14, 2004.
Appeal from the Iowa District Court for Scott County, David H. Sivright, Jr., Judge.
Catherine Wood appeals a modification of the parties' qualified domestic relations order. VACATED AND REMANDED.
John Flynn of Brubaker, Flynn Darland, P.C., Davenport, for appellant.
Michael Walton of Ottesen Walton, Davenport, and Robert Gallagher of Gosma, Gallagher Goebel, P.L.C., Davenport, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
I. Background Facts Proceedings
The October 18, 2001, decree dissolving the marriage of Robert and Catherine White included the following provisions concerning Robert's pension:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that [Richard's] pension plan at John Deere shall be split one-half to [Richard] and one-half to [Catherine] by a QDRO order. The QDRO order shall include surviving spouse benefits for [Catherine's] share, and if [Catherine] dies first, her share shall be designated to pass to [the children] as beneficiaries, as long as [Richard's] pension plan allows her to do so.
On June 18, 2002, Catherine filed an application for court approval of a proposed qualified domestic relations order (QDRO) based on the foregoing language. Under the terms of Catherine's proposed QDRO, Robert's pension benefits would be divided as follows:
50% xthe Participant's Monthly Accrued Pension Benefit as of the Participant's Retirement of First Eligibility to Retire.
Robert objected to Catherine's proposed QDRO, claiming its formula for dividing pension benefits conflicted with the court's decree. Under Robert's interpretation of the decree, Catherine was entitled "only to 50% of the [pension] benefit accrued during the marriage."
At the August 15, 2002, hearing on Catherine's application, the trial court instructed counsel for both parties to draft an appropriate QDRO. The court added this admonition:
Given that, the Court's unable to order something that the Deere Company is not able to provide since it must be part of the Qualified Domestic Relations Order according to the decree. Therefore, the original ruling by Judge Nahra stands as the ruling of the Court in regard to the language [of the October 18, 2001, decree] being clear and unambiguous. Therefore, the Court would order that the pension qualified domestic relations order be drawn to reflect that language in the decree and no other language.
On August 28, 2002, the court entered a QDRO, approved by counsel for both parties. Paragraph four of that order included the same formula for dividing Robert's pension benefits as Catherine's proposed order filed on June 18, 2002. Robert did not appeal or otherwise challenge that order.
On October 3, 2002 Robert filed an application to review the August 28, 2002, QDRO challenging John Deere's interpretation of that order. Catherine filed a resistance on October 22, 2002, which was later supplemented by amendments filed May 13 and 15, 2003. There is no indication that the merits of Robert's application were heard or submitted to the trial court. On July 17, 2003, the trial court issued another QDRO, providing that Robert's pension benefits were to be divided according to the following formula:
50% x[number of months married while a Participant] [total months of pension service] x the Participant's Monthly Accrued Pension Benefit as of the Participant's Retirement or First Eligibility to Retire.
The July 17, 2003, order bears a file stamp indicating that it was uncontested.
Catherine appeals.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Merits
Both parties characterize the July 17, 2003, QDRO as a nunc pro tunc order. The dispositive question is therefore whether the terms of that order exceed those permissible in a nunc pro tunc order.
The purpose of a nunc pro tunc order is not to correct a mistake of the litigants, judicial thinking, or a mistake of law; the function is to make the record truthfully show the judgment actually rendered. State v. Naujoks, 637 N.W.2d 101, 113 (Iowa 2001); General Mills, Inc. v. Prall, 244 Iowa 218, 225, 56 N.W.2d 596, 600 (1953). A nunc pro tunc order can be used to correct obvious errors or to make an order conform to the judge's original intent. Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 230 (Iowa 1987).
Contrary to Robert's claim, the July 17, 2003, QDRO addressed more than an obvious error or the original intent of the August 28, 2002, QDRO. When considered in light of the trial court's earlier quoted statements concerning the controlling language of the decree, the August 28, 2002, QDRO was the result of the court's considered judgment. The court implicitly, if not expressly, rejected Robert's interpretation of the decree by resolving the parties' conflicting claims concerning the controlling formula in Catherine's favor. Because the July 17, 2003, QDRO conflicted with rather than expressed the court's intended division of Robert's pension, it exceeded the permissible scope of a nunc pro tunc order and must be vacated. We accordingly vacate the July 17, 2003, QDRO and remand for entry of a judgment in conformity with the August 28, 2002, QDRO.
IV. Attorney Fees
Catherine claims that she should have been awarded trial attorney fees and asks to be awarded attorney fees for this appeal. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We determine each party should pay his or her own attorney fees. Costs of this appeal are assessed one-half to each party.