This opinion will be unpublished and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

CX-00-169

 

Rosemary E. Kuriger, petitioner,

Respondent,

 

vs.

 

John B. Kuriger,

Appellant.

 

Filed September 12, 2000

Affirmed

Peterson, Judge

 

St. Louis County District Court

File No. F795600303

 

 

Rosemary E. Kuriger, 3820 London Road, No. 213, Duluth, MN† 55804 (pro se respondent)

 

Sally L. Tarnowski, Johnson, Killen & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN† 55802 (for appellant)

 

 

††††††††††† Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Parker, Judge.*

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

PETERSON, Judge

This appeal is from an order denying husbandís motion to modify a qualified domestic relations order (QDRO) that assigns an interest in husbandís retirement plan to wife.† We affirm.

FACTS

††††††††††† The 31-year marriage of appellant-husband John Kuriger and respondent-wife Rosemary Johnson was dissolved in 1996.† A partial judgment incorporated the partiesí stipulation regarding the division of personal property and sale of the homestead.† The remaining issues were tried to the court, and a supplemental judgment was entered.

††††††††††† The supplemental judgment contains the following provisions regarding husbandís pension plan:

††††††††††† [Husband] has a retirement plan through his employer, St. Maryís Medical Center, all of which was earned during the marriage. †The parties agree that the court may assign the parties their interest therein by a Qualified Domestic Relations Order.

 

††††††††††† * * * *

 

††††††††††† [Husband] shall transfer [wifeís] marital interest in his [St. Maryís pension plan and another retirement plan earned through other employment] by way of Qualified Domestic Relations Order which provides as follows:

††††††††††† (a) [Wifeís] marital interest shall be determined by multiplying [husbandís] future pension benefits by a fraction, the numerator of which shall be the number of months or years of marriage during which the said plan or plans were being accumulated, and the denominator of which shall be the total number of months or years during which benefits were accumulated prior to when paid, divided by two.

††††††††††† (b) [Wife] is entitled to pre and post joint survivor benefits, to the extent of her marital interest.

††††††††††† (c) The payments made to [wife] herein shall be regarded as deferred property division and the court retains jurisdiction over [husbandís] pensions and savings plan in order to effectuate the intention of this paragraph.

††††††††††† (d) The parties shall cooperate in the drafting of the Qualified Domestic Relations Order.

 

††††††††††† The Qualified Domestic Relations Order governing the St. Maryís retirement plan provides:

††††††††††† 5.† That with respect to said plan, [wife] is awarded one-half (1/2) of the marital portion of each future pension payment received by [husband].† The marital portion is a fraction of the said pension payment, the numerator of which is the number of months or years of marriage during which benefits were being accumulated, and the denominator of which is the total number of months or years during which benefits were accumulated prior to being paid.

 

††††††††††† * * * *

 

††††††††††† 10.† That if [husband] elects to take a disability retirement instead of his normal retirement, or receives a retirement bonus, severance pay or enhanced benefits based in part upon [husbandís] employment during the marriage, then [wife] is awarded her share of the marital portion of the disability payments as determined by the formula set forth in paragraph 5 herein.

 

††††††††††† Husband filed a motion to modify the QDRO to provide that wife was entitled to one-half of the value of the pension as of the date of the dissolution judgment.† The district court denied the motion.†

D E C I S I O N

††††††††††† The valuation and division of pension benefits is a matter for the district courtís discretion, and its decision will not be reversed absent an abuse of discretion.† Fastner v. Fastner, 427 N.W.2d 691, 696 (Minn. App. 1988).

††††††††††† Husband argues that because it is possible to determine the value of pension benefits in a defined-benefit plan as of the date of dissolution, the fixed-percentage method of dividing pension benefits should not be used for defined-benefit plans.† Under a defined-benefit plan, pension benefits are determined based on a formula set forth in the plan.† Therefore, husband contends, the district court could have applied the formula set forth in his pension plan and valued his pension benefits as of the date of dissolution.† We disagree.

††††††††††† The supreme court has held that the fixed-percentage method that was applied to husbandís pension

should be used where present value determinations are unacceptably speculative or there are not enough assets to equitably require that benefits due in the future be split presently.

 

Taylor v. Taylorł 329 N.W.2d 795, 799 (Minn. 1983).

††††††††††† In Petschel v. Petschel, 406 N.W.2d 604, 606 (Minn. App. 1987), the discounted value of husbandís pension benefits at the time of dissolution was $115,040 if he retired at age 55, and $186,522 if he retired at age 50.† It was undisputed that he would retire by age 55.† Id.† Assuming retirement between the ages of 50 and 55, husbandís annual pension benefits, based on his salary at the time of dissolution, were projected to be $16,891.† Id.† The district court awarded wife one-half of husbandís projected pension benefits, $8,445.50, payable upon husbandís retirement.† Id.

††††††††††† Even though it was possible to value husbandís pension as of the date of dissolution, this court held in Petschel that the district court erred by awarding wife a fixed dollar amount instead of using the fixed-percentage method.† Id. at 607.† The Petschelcourt noted that actual pension benefits can differ from projected pension benefits depending on a pensionerís retirement date and that accurate valuation is impaired by the risk that a pensioner might die before reaching retirement age.† Id. (citing Kottke v. Kottke, 353 N.W.2d 633, 637 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984)).† The court further explained:

The fixed percentage rate is a more accurate method of determining the payments due the pensionerís spouse, because it does not require the court to estimate the amount the future pensioner will receive when he or she retires.† The spouse simply receives a percentage of the pension benefits as they are paid out.† In addition, the fixed percentage rate will reflect post-retirement cost-of-living increases in the pension, while the fixed dollar method used below would not.

 

Id.; see also Rask v. Rask, 445 N.W.2d 849, 852 (Minn. App. 1989) (when husband gave conflicting testimony regarding retirement date, trial court did not abuse its discretion by awarding wife one-half of marital interest in defined-benefit plan to be determined pursuant to a QDRO).

††††††††††† Under husbandís pension plan, his monthly benefit is based on the number of years of employment with St. Maryís and his salary during a specified number of years preceding retirement.† Husband argues that the fixed-percentage method will unfairly allow wife to benefit from increased pension payments resulting from future salary increases.† The Kottke court rejected the argument that this characteristic precludes used of the fixed-percentage method.† 353 N.W.2d at 637.† The Petschel court held that a former spouse should not benefit from future salary increases attributable exclusively to a pensionerís own efforts, such as increases resulting from promotions, and therefore, once a pension becomes payable, the pensioner may present evidence showing what part of postdissolution salary increases were attributable solely to his own efforts and have those amounts excluded from division.† 406 N.W.2d at 607.

††††††††††† Here, the district court found:

The Court does not concur that the mechanism provided in Petschel will not properly protect [husbandís] interests.† [Husband] suggests that the amount of his ultimate pension benefit will be based in part upon the total number of years he continues to be employed with his employer.† He suggests that increases in the pension amount allocable to those years of employment subsequent to the decree herein should go in his column only without any benefit therefrom accruing to [wife].† This analysis ignores the foundation upon which these later years will be placed.† That foundation consists of years ot employment during the term of the marriage.† Depending upon the features of the plan and the manner of its administration it is likely that the post dissolution years will be ďmore valuableĒ in terms of benefit accruing to [husband] by reason of the fact they are preceded by years of employment during the term of marriage.† These issues can be considered and dealt with under the procedure made available by Petschel at such time as the issue becomes ripe by reason of [husbandís] participation in receipt of payments from the plan.

 

The district courtís analysis is correct.† The fixed-percentage method of dividing pension benefits recognizes that under a defined-benefit plan, the pension benefit available at retirement is ordinarily attributable to all of the years of participation in the plan and that it is inequitable and inaccurate to attribute a portion of the benefit to any particular year.† But when a pension becomes payable and the pensioner believes that an identifiable portion of the pension benefit is attributable solely to the pensionerís efforts, the pensioner will have an opportunity under Petschel to present evidence to demonstrate that a portion of the benefit should be excluded from division.

††††††††††† Husband also argues that the district court erred by including retirement bonus, severance pay, and enhanced benefits in paragraph 10 of the QDRO.† The district court has the authority to clarify and construe a dissolution judgment so long as it does not change the partiesí substantive rights.† Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991).† When clarifying or construing an ambiguous judgment, the court must give full effect ďto that which is necessarily implied in the judgment, as well as to that actually expressed therein.Ē† Jensen v. Jensen, 440 N.W.2d 152, 155 (Minn. App. 1989).† This court gives ďgreat weightĒ to the district courtís construction of its own judgment.† Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).†

††††††††††† The dissolution judgment is ambiguous in that it does not award husbandís potential enhanced benefits, such as a retirement bonus or severance pay, to either party.† Considering the pension-plan provisions in the dissolution judgment in light of the facts that wife worked as a homemaker during the marriage and had no retirement benefits of her own, the pension-plan provisions can fairly be construed as intending to award wife a share of enhanced benefits earned through husbandís employment during the marriage.† The district court did not err by applying the QDRO to a retirement bonus, severance pay, and other enhanced benefits.† If husband does receive such benefits in the future, he can file a motion in district court to exclude from division any amounts attributable solely to his own efforts following the dissolution.

††††††††††† Affirmed.



*† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.