This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-1593

 

In Re the Marriage of:

Linda K. Crombie, petitioner,

Respondent,

 

vs.

 

Michael J. Crombie,

Appellant.

 

Filed April 4, 2000

Affirmed

Schumacher, Judge

 

Rice County District Court

File No. F598688

 

Eve H. Webster, Webster Law Office, P.A., 205 South Water Street, Northfield, MN 55057 (for respondent)

 

Ronald L. Moersch, Hvistendahl & Moersch, P.A., 311 South Water Street, Northfield, MN 55057 (for appellant)

 

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Michael J. Crombie (husband) seeks review of the district court's approval of the Qualified Domestic Relations Order (QDRO) proposed by respondent Linda K. Crombie (wife). Husband alleges wife is not entitled to a QDRO awarding her post-valuation-date earnings on the 401(k) plan. We affirm.

FACTS

In this dissolution proceeding, an April 1999 judgment valued husband's 401(k) plan as of a valuation date, awarded it to wife, and directed wife to provide a QDRO to accomplish the award. Wife proposed a QDRO awarding her the entire 401(k) plan. Husband opposed the proposed order, alleging wife was not entitled to the plan's post-valuation-date earnings. The district court approved wife's proposed QDRO, stating the judgment was intended to award wife the entire plan, not just the amount in it on the valuation date.

D E C I S I O N

1. Husband makes three interrelated arguments: (a) because the judgment lacks language granting wife post-judgment increases in the plan's value, she was not entitled to anything other than the amount in the plan on the valuation date unless she petitioned the court for relief; (b) the district court improperly modified the property division by awarding wife an amount other than the amount the parties agreed was in the 401(k) plan on the valuation date; and (c) because the dissolution judgment does not explicitly award post-valuation-date increases in the value of the 401(k) plan to wife, wife is not entitled to those amounts. See Minn. Stat. 518.64, subd. 2(e) (Supp. 1999) (stating "all" property divisions "shall be final" and may be altered only if requirements for re-opening judgment under Minn. Stat. 518.145, subd. 2 (1998) are satisfied). Each argument assumes that the judgment awarded wife the amount in the plan rather than the plan itself. This assumption is inconsistent with the portion of the district court's memorandum accompanying its order approving wife's proposed QDRO that states:

It is the intent of the Court (and the Decree so provides) that [wife] receive 100% of the Plan as of the valuation date. It is not the Court's intent that she just receive [the amount in the plan on the valuation date]. [Wife] is entitled to the earnings or increase in value (or loss or decrease in value) of the fund that existed on the valuation date. This is fair and treats the asset like any other.

 

To support his arguments, husband cites statements made by the district court from the bench in which the district court indicated that it agreed with husband's reading of the judgment. The parties dispute whether husband takes these statements out of context. Regardless of their context however, the statements were not the district court's ruling. And, even if they were deemed to be an oral ruling by the district court, the issue of attorney fees was still pending at the close of the hearing. Therefore, any oral ruling was not final or binding. See Minn. R. Civ. P. 54.02 (stating if district court rules on less than all claims without stating ruling is final, order "is subject to revision at any time" before resolution of "all" claims).

2. The dispositive issue is whether the district court, in approving wife's proposed QDRO, misread the judgment to award wife the entire 401(k) plan rather than the amount in it on the valuation date. Whether a provision in a dissolution judgment is ambiguous is a legal question. Head v. Metropolitan Life Ins. Co., 449 N.W.2d 449, 452 (Minn. App. 1989), review denied (Minn. Feb. 21, 1990). If a judgment provision is ambiguous, determining what the ambiguous provision means is a factual question. Landwehr v. Landwehr, 380 N.W.2d 136, 140 (Minn. App. 1985). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

Here, the relevant provision states:

The value of [husband's] interest [in his 401(k) plan] as of [the valuation date] was approximately $61,029.00. [Wife] is awarded one hundred percent of such plan as valued on [that date].

 

Husband reads this as awarding wife not the 401(k) plan itself but $61,029 from the plan. The district court, however, read the provision to award wife the plan, rather than $61,029 from the plan. The district court's reading of the award entitles wife to any post-valuation-date increases (or decreases) in the plan's value; husband's reading does not.

Both readings of the provision are possible. Therefore, the award is ambiguous. Landwehr, 380 N.W.2d at 138 (stating writing is ambiguous if reasonably susceptible to more than one meaning). If a judgment is ambiguous, it may be interpreted, and where, as here, the district court interpreting an ambiguous provision is the same one that issued it, this court gives "great weight" to the district court's reading of its own judgment. Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987). On this record, we cannot say that the district court's reading of its own ambiguous judgment provision is clearly erroneous.

Affirmed.