This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-1420

In Re the Marriage of:
Peter D. Ekstrand, petitioner,
Respondent,

vs.

Kathryn J. Ekstrand,
Appellant.

Filed January 18, 2000
Affirmed in part, Reversed in part, and Remanded
Kalitowski, Judge

Winona County District Court
File No. F297659

James C. Nordstrom, Nordstrom Law Office, P.O. Box 125, Wabasha, MN 55981 (for respondent)

Jill I. Frieders, OíBrien, Ehrick, Wolf, Deaner & Maus, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903-0968 (for appellant)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant challenges the district courtís posttrial order (1) denying her motion for an equal division of respondentís SEP account pursuant to the divorce decree, and (2) denying her motion for attorney fees. We affirm in part, reverse in part, and remand.

D E C I S I O N

I.

Once made, a property division in a dissolution action is final and may not be revoked or modified absent the existence of the factors that justify reopening a judgment. Minn. Stat. ß 518.64, subd. 2(e) (Supp. 1999); Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999). The interpretation or clarification of an ambiguous dissolution decree does not constitute a modification of the decree. Edelman v. Edelman, 354 N.W.2d 562, 564 (Minn. App. 1984). A district court has the power to clarify and construe a dissolution decree so long as it does not change the partiesí substantive rights. Ulrich v. Ulrich, 400 N.W.2d 213, 218 (Minn. App. 1987).

The parties ended their 22-year marriage by a decree of dissolution dated December 31, 1997. On October 30, 1998, the district court issued amended findings of fact, conclusions of law, order for judgment, and judgment and decree (the amended decree). The district court found that the value of respondentís Charles Schwab SEP account as of the valuation date of December 31, 1997, was $134,110. The district court also found:

The parties agree to divide the SEP Charles Schwab account, but disagree on the percentage each will retain. The SEP is a retirement account of pre-tax dollars and the monies cannot be withdrawn without substantial tax consequences. * * * It is reasonable that the SEP account be equally divided between the parties so that they can equally bear the tax consequences of this account.

The district court then ordered that each party receive "[o]ne-half of the Charles Schwab SEP account awarded by Qualified Domestic Relations Order."

Appellant subsequently brought a motion for enforcement of the amended decree, requesting $67,055 plus all earnings and appreciation attributable to her share of the SEP account since the valuation date. The district court denied her motion and ordered that she receive only $67,055 plus statutory interest from the SEP account.

While the district court may interpret a decree, the clarification must accurately express the thoughts the decree intended to convey. Thompson v. Thompson, 385 N.W.2d 20, 22 (Minn. App. 1986). Here, we agree with appellantís contention that the district court misinterpreted the clear terms of the amended decree and consequently modified the property division in a manner that affects the partiesí substantive rights without any showing of the factors that justify modification, as required by Minn. Stat. ß 518.64, subd. 2(e).

The amended decree awarded appellant an actual ownership interest in one-half interest in the SEP account as of the valuation date of December 31, 1997, as opposed to an equalizing cash payment in exchange for her interest in that marital asset. The district court specifically found that it was reasonable to "equally divide" the Schwab SEP so that both parties would "equally bear" the tax consequences of the account. This is not the language of an equalization award; rather, it bestowed upon appellant a one-half property interest in the SEP account. The amended decree also ordered that the division occur pursuant to a QDRO. While the district court erred in ordering the division to occur through a QDRO, this technical error does not change the fact that by ordering the division through a QDRO, the district court contemplated that appellant would own one-half of the Schwab SEP, with all of the attendant benefits, risks, and responsibilities, including tax consequences.

Respondent argues that the district court correctly determined appellantís share of the SEP account to consist of $67,055 plus interest because the district court identified appellantís interest in terms of a specific dollar amount in an appendix to the amended decree. We disagree. The appendix identifies each partyís interest in the SEP account as $67,055 in order to illustrate the district courtís calculation of the equalization payment respondent was required to pay. The appendix does not purport to substantively dispose of the partiesí legal rights in the pension plan, and it does not override the clear and unambiguous language of the amended decree. Moreover, the appendix also identifies the value of respondentís share of the SEP account as $67,055. Thus, under respondentís interpretation the appendix also does not entitle him to any earnings on his share of the SEP.

Respondent contends we should interpret the amended decree to have awarded appellant a lump sum rather than a percentage interest in the SEP account because the account has an easily quantifiable value. In support, respondent cites cases indicating a general preference for using the lump-sum, present cash valuation method for dividing pension benefits when valuation is not unduly speculative and sufficient assets exist for an equalization award. See, e.g., Taylor v. Taylor, 329 N.W.2d 795, 798-99 (Minn. 1983); McGowan v. McGowan, 532 N.W.2d 258, 259-60 (Minn. App. 1995). But the cases respondent cites are inapplicable because they involve defined benefit plans, from which pension funds are not available for distribution until retirement. The valuation and distribution concerns associated with defined benefit plans are not relevant with respect to an SEP account, which can be easily divided between the two parties at any time prior to retirement. Moreover, respondentís characterization of appellantís interest as a lump-sum award is contrary to the language of the amended decree, which specifically granted each party a "one-half" interest in the SEP account.

Finally, respondent argues that appellant should suffer the consequences of her failure to effect the transfer sooner. But the record does not support a conclusion that appellant engaged in undue delay in effecting the transfer of pension funds. Moreover, even if there had been a delay, respondent cites no legal authority that the delay would operate to divest appellant of her legitimate property interest in the SEP account.

The language of the amended decree unambiguously awarded appellant one-half of the SEP account. Thus, it was clear error for the district court to conclude that appellantís one-half interest did not include accumulated earnings and appreciation on her share of the account. We therefore reverse the district courtís order and remand for entry of an order that enforces the provisions of the amended decree, consistent with this opinion.

II.

Appellant asks that we reverse the district courtís denial of her motion for an award of attorney fees. But, respondentís position was not frivolous, in bad faith, or designed to lengthen the litigation and appellant did not make the required showing for an award of attorney fees under Minn. Stat. ß 518.14, subd. 1 (1998). Therefore, we affirm the district courtís denial of attorney fees.

Affirmed in part, reversed in part, and remanded.