This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Donna Rae Aiken-Johnson,
n/k/a Donna Rae Aiken,
Thomas Edward Johnson,
Filed February 27, 2001
Reversed and remanded; motion denied
Hennepin County District Court
File No. DC223870
John Robinson Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for respondent)
David Gronbeck, One Financial Plaza, Suite 1100, 120 South Sixth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Foley, Judge.
DANIEL F. FOLEY, Judge
In this dissolution proceeding, appellant Thomas Johnson challenges a Qualified Domestic Relations Order (QDRO) dividing a retirement plan, alleging it does not accurately reflect a stipulated portion of the parties’ dissolution judgment. Respondent Donna Aiken seeks attorney fees on appeal. Because the QDRO is inconsistent with the stipulated judgment, we reverse and remand. We deny respondent’s fee request.
During the parties’ marriage, appellant acquired an interest in a retirement plan. A stipulated property settlement was incorporated into the amended judgment dissolving the parties’ marriage. The amended judgment stated that, after crediting appellant for paying certain expenses, the parties would equally divide the retirement plan. After some delay, a QDRO was issued awarding respondent 45 percent of the retirement plan.
Stipulated dissolution judgments are generally deemed binding contracts. Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997). Whether a stipulated dissolution judgment is ambiguous is a legal question. Anderson v. Archer, 510 N.W.2d 1, 3 (Minn. App. 1993); Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986). Absent ambiguity, it is improper for a court to interpret a stipulated judgment or contract. See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977) (court cannot construe plain and unambiguous stipulation language); Telex Corp. v. Data Prods. Corp., 271 Minn. 288, 295, 135 N.W.2d 681, 686-87 (1965) (if contract clear, “it is neither necessary nor proper in construing it to go beyond the wording of the instrument itself”). A district court may interpret an ambiguous judgment. Stieler v. Stieler, 244 Minn. 312, 318, 70 N.W.2d 127, 131 (1955). In doing so, the district court may consider the whole record as well as parole evidence. Palmi v. Palmi, 273 Minn. 97, 103, 140 N.W.2d 77, 81 (1966). But, “full effect must be given to that which is necessarily implied in the judgment, as well as to that actually expressed therein.” Stieler, 244 Minn. at 319, 70 N.W.2d at 131-32.
Here, the relevant part of the amended judgment states:
The net marital value of the [retirement plan] as of the date of the pre-trial was * * * $84,921.
The parties agreed to divide the value in the [plan] equally following payment of [various amounts].
The amended judgment does not explicitly state whether respondent’s share of the plan was to be a dollar amount or a percentage of the plan. After stating the plan’s value on the valuation date, however, it lists categories of expenses that are to be used to reduce the plan’s value for purposes of its division. To not read the judgment as requiring respondent’s share to be calculated as half of what is left of the valuation date value of the plan after it has been reduced by the expenses in question, is to render the judgment’s reference to the valuation date value of the plan irrelevant. Judgments cannot be read to render provisions extraneous. See Starr, 312 Minn. at 562-63, 251 N.W.2d at 342 (rules of contract construction apply to interpretation of stipulated dissolution judgment); see also Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (Minn. 1990) (courts presume contract language has effect and avoid interpretations rendering provisions meaningless). Thus, while the judgment does not explicitly state that respondent’s interest in the plan is to be a dollar amount, the judgment assumes that is the case. Also, to award respondent 45 percent of the plan as of August 2000, is to ignore the stipulated valuation date. Therefore, we reverse the award to respondent of a percentage of the retirement plan and remand for an award to respondent of a dollar figure interest in the plan.
The judgment fails to address whether respondent is to receive interest on her share of the plan. While this failure could render the judgment ambiguous on this point, case law requires that, if receipt of a property settlement is delayed, the district court is to either award interest on the property settlement or make findings explaining why interest is inappropriate. Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987). Here, the amended judgment was entered in November 1999 and the QDRO requiring transfer to respondent of her interest in the plan was not signed until August 2000. While the delay suggests it is proper to award interest to respondent, the acrimonious nature of the parties’ dispute suggests respondent may have been partially to blame for the delay. Therefore, on remand, the district court shall award respondent interest on her share of the retirement plan or explain why interest is not appropriate.
Respondent seeks “at least $1,350” in appellate attorney fees but fails to cite any authority for her request. It appears, however, that respondent is seeking fees under the portion of Minn. Stat. § 518.14, subd. 1 (2000) allowing need-based fee awards. Whether to award fees on appeal is discretionary with this court. Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994). Need-based fee awards under Minn. Stat. § 518.14, subd. 1 require, among other things, that the recipient lack the ability to pay her own fees. Attached to respondent’s counsel’s affidavit supporting the motion for fees is a check stub for respondent showing respondent’s annual compensation rate, and a list of her purported monthly expenses. Because the source of respondent’s expenses is unclear and because the papers supporting her motion for fees lack an affidavit from respondent, she failed to show that she lacks the ability to pay her attorney fees. See Minn. R. Civ. App. P. 139.06, subd. 1 (requiring fee motions to “include sufficient documentation to enable the appellate court to determine the appropriate amount of fees”); State ex rel. Sime v. Pennebaker, 215 Minn. 75, 77, 9 N.W.2d 257, 259 (Minn. 1943) (disregarding affidavit of counsel as containing “nothing of evidentiary worth” and “founded upon mere hearsay” when it addressed facts of case). Therefore, we deny respondent’s request for fees on appeal.
Because we deny the request for attorney fees on the merits, we need not address whether it was properly served.
We express no opinion on how to resolve the remanded issues. Whether to reopen the record on remand shall be discretionary with the district court.
Reversed and remanded; motion denied.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.