This opinion will be unpublished and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

C5-01-400

 

 

In re the Marriage of:

David Pautz, petitioner,

Appellant,

 

vs.

 

Shuneui Chun,

Respondent.

 

 

Filed December 18, 2001

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 245333

 

Jon J. Arcand, Jon J. Arcand & Associates, P.L.L.C., 2780 Snelling Avenue North, Suite 317, St. Paul, MN 55113; and

 

Timothy D. Lees, Hennek, Klaenhammer & Lees, P.A., 2585 Hamline Avenue North, Suite A, St. Paul, MN 55113 (for appellant)

 

Alan C. Eidsness, Scott A. Neilson, Henson & Efron, P.A., 400 Second Avenue South, Suite 1200, Minneapolis, MN 55401 (for respondent)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant David Pautz challenges the trial court’s order of January 4, 2001, on the grounds that (1) the order was not a clarification of a previous order but, rather, an improper modification of the amount of respondent’s retirement account that he was awarded, resulting in a loss to him of $363,005.79; (2) the trial court erred in finding that respondent Shuneui Chun did not contribute to any delay in the transfer of the retirement account funds to appellant; and (3) the trial court’s second amended judgment and decree of June 20, 2000, constituted a qualified domestic relations order (QDRO) and respondent’s alleged delay in response to the decree was a breach of her fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA).  We conclude that (1) the trial court’s January 4, 2001 order was a proper clarification of its previous order, (2) the trial court’s finding that respondent did not delay in effecting the transfer of the retirement account funds to appellant is well-supported by the record, and (3) appellant has waived the issues of whether or not the second amended judgment and decree was a QDRO and whether respondent was a retirement-plan fiduciary by not raising them prior to this appeal.  Therefore, we affirm.

FACTS

            Appellant and respondent, both physicians, were married on June 13, 1976.  Following a trial to the court, their marriage was dissolved by judgment and decree dated March 16, 2000.  Given the extensive assets of the parties and the numerous posttrial motions filed, the trial court amended the judgment and decree three times.  With respect to the issue on appeal, the division of respondent’s Paul Larson OB-GYN Clinic, P.A. Employees’ Profit Sharing Plan and Trust (“retirement account”), the trial court’s findings of fact and conclusions of law were identical in all four orders.  Respondent invested her retirement account in an aggressive growth mutual fund, which had a value of $524,261 on November 1, 1997, the date the parties separated.  The account had a value of $1,117,728 at the time of the initial pretrial hearing on November 29, 1999, and the trial court adopted this value for purposes of the property division.  At the time of trial on February 24, 2000, the plan had a value of $1.6 million. 

            The judgment and decree awarded appellant “$558,864.00 from Respondent’s Paul Larson Retirement plan by QDRO, if necessary, to be drafted by [appellant’s] counsel,” in addition to other property.  The judgment and decree did not specify whether the award should be in cash or securities, nor did the trial court attempt to determine whether a direct transfer of the funds was possible.

            Appellant’s first effort to effect a transfer of his portion of the retirement account occurred on August 21, 2000, when appellant’s counsel sent Dain Rauscher a copy of the second amended judgment and decree and requested the amount of appellant’s award.  Appellant’s counsel did not provide a QDRO at that time.

On November 27, 2000, appellant sent a proposed QDRO to the retirement plan administrator that called for a transfer of $558,864 in cash, plus interest, or any appreciation from the plan, if greater.  Between the time of the initial pretrial hearing and November 27, 2000, the value of respondent’s retirement account had decreased substantially due to the drop in the stock market.  Appellant also moved the trial court for relief on multiple issues, including a request for entry of personal judgment against respondent consistent with the terms of the proposed QDRO.  Appellant’s motion was based on an allegation that respondent had thwarted his attempt to receive his award.

A hearing occurred on December 14, 2000, and the trial court issued its order on January 4, 2001.  With respect to the retirement account issue, the trial court denied appellant’s motion for judgment against respondent.  The court specifically found that respondent did not impede the transfer of the retirement account funds and that appellant’s counsel had not been prompt in preparing a QDRO or in seeking the court’s assistance, if required.  The court held that, rather than a cash award in a specific amount, appellant was entitled to receive a division of securities that would reflect the market losses since the first judgment and decree.  The trial court stated: 

As indicated earlier, since it was Respondent who dragged her feet regarding the Fidelity account, the Court has determined that she should bear the brunt of any decrease in the VALUE of the Fidelity account.  In contrast, since Respondent did not drag her feet regarding the Paul Larson Retirement Account and it was [appellant] who either failed to provide a QDRO, if necessary, or failed to seek the aid of the Court to affect a direct transfer, if necessary, he should bear the brunt of any decrease in VALUE of the Paul Larson Retirement Account.

 

The trial court explained its intent: 

The Court intended to have the transfer occur expeditiously so that [appellant] would receive $558,864.00 in value and Respondent would retain a portion of her Paul Larson Retirement Account that had a value substantially in excess of $558,864.00.  If the transfer occurred expeditiously, then both parties could have invested their relative values in the manner they deemed appropriate * * * .

 

The trial court signed respondent’s proposed QDRO, which stated that “[t]he amount assigned from the [respondent’s] account to the [appellant] shall be increased or decreased to reflect its share of any investment earnings or losses.”  On March 29, 2001, the sum of $195,858.21 was transferred from the retirement account to appellant’s qualified retirement account.  This appeal follows.

D E C I S I O N

1.         Clarification of the Judgment

Appellant asserts that the trial court’s order of January 4, 2001, is improper because it modifies the prior orders.  A trial court may modify a dissolution decree under limited circumstances.  These circumstances include mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or other misconduct of an adverse party.  Minn. Stat. § 518.145, subd. 2(1)-(3) (2000).  But a trial court may also clarify a dissolution decree.  Trial courts have the discretion to enforce their decrees and may issue orders to give effect to portions of dissolution decrees.  Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991); Jensen v. Jensen, 414 N.W.2d 742, 746 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).  A clarification may not alter the substantive rights of the parties.  Ulrich v. Ulrich, 400 N.W.2d 213, 218 (Minn. App. 1987).  Clarifications “serve[] only to express more accurately the thought which, at all times, the judgment was intended to convey.”  Stieler v. Stieler, 244 Minn. 312, 320, 70 N.W.2d 127, 132 (1955).  Interpretations of ambiguous judgments are questions of fact that this court reviews under a clearly erroneous standard.  See Landwehr v. Landwehr, 380 N.W.2d 136, 139-40 (Minn. App. 1985) (applying a “clearly erroneous” standard to the trial court’s interpretation of an alimony provision). 

While not dispositive of the issue, it is notable that the trial court’s January 4, 2001 order was in response to appellant’s request for a clarificationas to whether the award should be made in cash or securities.  Nevertheless, appellant now asserts that the original award was unambiguous.

Appellant relies on Thompson v. Thompson, 385 N.W.2d 20, 23 (Minn. App. 1986),for the proposition that the January 4, 2001 order was a modification, rather than a clarification.  In Thompson, we held that a motion to reapportion a property judgment was impermissible because it constituted a modification.  Id.  In Thompson, appellant was awarded the parties’ homestead.  Id. at 21.  Appellant sold the home for less than its market value and then moved for a clarification of the property award, claiming that the parties should equally share the loss from the sale.  Id.  This court rejected appellant’s argument as an improper modification because the property decree did not state that the parties should share any loss from the sale of the home.  Id. at 23.  Thompson is distinguishable from the case at hand in that the appellant there was seeking to insert a new provision into the dissolution post-decree.  Id

Here, the trial court that interpreted the judgment and decree is the same court that authored the judgment.  This court gives “great weight” to a trial court’s construction of its own judgment.  Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).  As the trial court stated in its memorandum: 

The Court did not intend to have [appellant] receive any more or less than $558,864.00 in value.  * * *  However, if the Court does not sign the QDRO in its present form and insists on a QDRO that transfers $558,864.00 in value unaltered by investment losses, Respondent will retain a substantially smaller portion of her retirement account value – which is also a result not envisioned by the Court.

 

Therefore, under Steiler, the trial court’s ruling is a valid attempt to “express more accurately the thought which, at all times, the judgment was intended to convey.”  Stieler, 244 Minn. at 320, 70 N.W.2d at 132.

2.         Alleged Delay in Transferring Retirement Account Funds

            Appellant argues that the trial court erred in finding that he delayed in his attempts to obtain his award of respondent’s retirement account.  Appellant claims respondent was the party who delayed, arguing that he submitted a QDRO within two weeks of the completion of posttrial motions. 

            After reviewing the evidence, the trial court found that appellant delayed in obtaining a QDRO or in seeking the court’s assistance to effect a direct transfer.  The court noted that the responsibility for preparing a QDRO fell on counsel for appellant, not respondent.  No evidence was presented to the trial court that appellant ever promptly submitted the language of the decree to the retirement plan administrator, asked for and was refused a prompt direct transfer of the funds, or sought the trial court’s assistance.

In order to successfully challenge a district court’s findings of fact, appellant

must show that despite viewing [the] evidence in the light most favorable to the trial court’s findings * * * the record still requires the definite and firm conviction that a mistake was made. 

 

Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Appellant has made no such showing.  As the trial court stated, appellant’s evidence demonstrated some misinformation about the necessity of a QDRO and some missed phone messages, but nothing more.  There was no evidence of active or intentional thwarting on the part of respondent or her attorney.  The trial court’s finding that appellant’s delay resulted in the decline in the retirement account’s value is supported by the record and is not error.

3.         Trial Court Order as a QDRO; ERISA Fiduciary Duties

            Appellant argues that he did not delay in presenting respondent with a QDRO because the second amended judgment and decree constituted a QDRO.  QDROs must meet certain requirements as specified in 29 U.S.C. § 1056(d)(3)(B)-(E) (1999).  According to the statute, a QDRO must specify the name and last known mailing address of the participant, the name and mailing address of the alternate payee, the amount or percent of the benefits the payee is to receive or the method of calculating the amount or percent, the number of payments to which the order applies or the time period to which the order applies, and the name of the plan to which the order applies.  Id.  Appellant further argues that his presentation of the second amended judgment and decree placed respondent under ERISA fiduciary duties to make the award immediately upon receipt of the judgment and decree and that her failure to do so breached this duty.

            Neither of these arguments was presented to the trial court.  This court “must generally consider ‘only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.’”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quoting Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982)).  Thus, we decline to rule on whether the dissolution decree constituted a QDRO or whether appellant has a claim for breach of fiduciary duty.

Affirmed.