This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1868

 

Janet Irene Kauppi,

f/k/a Janet Irene Gish, petitioner,

Respondent,

 

vs.

 

Ellwood Wesley Gish,

Appellant.

 

Filed August 17, 2004

Affirmed in part and remanded; motion granted

Hudson, Judge

 

St. Louis County District Court

File No. F7-84-001471

 

Paul D. Cerkvenik, Patrick J. Roche, The Trenti Law Firm, 1000 Lincoln Building, Virginia, Minnesota 55792 (for respondent)

 

Laura J. Schacht, Johnson, Killen & Seiler, P.A., 800 Wells Fargo Center, 230 West Superior Street, Duluth, Minnesota 55802 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant-husband argues that the trial court erred in finding that respondent-wife is entitled to one-half of his pension benefits because wife entered into a clear, unambiguous stipulation settling all of her claims, including releasing her interest in his pension benefits.  Because the stipulation is ambiguous and the extrinsic evidence shows that the stipulation settled only wife’s claims regarding money that husband owed wife for child-support arrearages, spousal-maintenance arrearages, and a judicial lien in the homestead, we affirm the district court’s determination that wife is entitled to an interest in husband’s pension benefits.  Husband also argues that if this court finds that wife is entitled to a portion of his pension benefits, her award should be calculated based on the value of the pension at the time of dissolution.  Because husband’s argument on this issue is premature, we remand for the district court to issue a qualified-domestic-relations order dividing husband’s pension benefits. 

FACTS

The parties divorced on December 9, 1985.  The property settlement portion of the judgment awarded respondent-Janet Irene Kauppi (wife) a cash sum of $5,650.  Appellant-Ellwood Wesley Gish (husband) could not immediately satisfy the cash award, and the judgment provided that the award accrue interest commencing one year after the date of the entry of the judgment.  The judgment also awarded wife, in a separate section from the property settlement, one-half of the marital interest in husband’s pension plan.

In 1993, the parties discussed settling wife’s claims against husband.  Wife contends that husband never paid the $5,650 cash settlement and that, with interest, it had risen to more than $10,000.  Wife also contends that husband failed to make certain spousal-maintenance and child-support payments as required by the judgment.  Wife contends that, in total, husband owes her at least $12,000.  Husband contends that he agreed to pay wife for a release of all her claims against him so that he would have no further contact with wife.  Husband’s attorney drafted a letter that stated wife would “accept the sum of $6,500 as total and complete settlement of any interest that [wife] may have against [husband], including but not limited to, spousal maintenance, child support, and property settlement.”  The letter also advised wife that if she had any questions she should contact an attorney.  Wife contends that the parties never discussed husband’s pension benefits in the settlement discussions.  Husband contends that the parties did discuss his pension benefits in the settlement discussions and that wife stated she “could care less about” the pension benefits.  Wife signed the release. 

In 2000, husband was faced with health problems and elected to take an early pension.  Husband testified that he considered the 1993 stipulation, and his understanding that the stipulation released wife’s interest in his pension benefits, in his decision about whether he could afford an early retirement.

In 2003, wife initiated an action to enforce the pension division provided in the original judgment.  The district court heard wife’s motion, and on October 30, 2003, issued its order, determining that the stipulation did not clearly provide for disposition of the pension benefits.  The district court concluded that wife is entitled to one-half of the marital portion of husband’s pension benefits as set out in the judgment.  This appeal follows.

D E C I S I O N

I

            A stipulation in a dissolution action is treated as a binding contract that cannot be repudiated without the parties’ consent.  Angier v. Angier, 415 N.W.2d 53, 56 (Minn. App. 1987).  The general rules of contract construction apply to dissolution stipulations and agreements.  Blonigen v. Blonigen, 621 N.W.2d 276, 281 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  If no ambiguity exists, interpretation of a stipulation or agreement in the marital dissolution context presents legal questions that are subject to de novo review.  Id.  A court must consider the stipulation or agreement as a whole to determine whether an ambiguity exists.  Id.  A contract is ambiguous if the written document “by itself, is reasonably susceptible to more than one meaning.”  Trondson v. Janikula, 458 N.W.2d 679, 681 (Minn. 1990).  Where an ambiguity exists a court may resort to extrinsic evidence and rules of construction in order to ascertain the meaning of the agreement.  In re Estate of Rock, 612 N.W.2d 891, 894 (Minn. App. 2000).  “[A]ny ambiguity in a contract will be resolved against the draftsman.”  Cherne Indus., Inc. v. Grounds & Assoc., Inc., 278 N.W.2d 81, 89 (Minn. 1979).  This rule is applied in instances where a party claims that it intended a specific matter to be included in the agreement but failed to make that clear or express in the language of the agreement.  See id.

            Husband argues that wife should not be awarded an interest in his pension because she entered into a clear, unambiguous contract settling all of her claims.  Husband argues that, even if the agreement is ambiguous, it is enforceable because the parties’ intent at the time of the agreement was clear.  Wife contends that the plain language of the agreement did not release her interest in husband’s pension benefits.  Further, wife argues that the agreement is ambiguous and it must be construed in light of the judgment and in light of the money husband owes her for the property settlement, support arrearages, and maintenance arrearages.  Wife argues that if this court finds that the agreement released her interest in husband’s pension benefits, the agreement is invalid and should be vacated because the agreement was an extra-judicial modification of the judgment without subsequent judicial approval.  In the alternative, wife contends that the agreement should be vacated because it was “improvidently made,” and there was no meeting of the minds concerning the pension benefits.  The district court found that the parties had no clear agreement on the pension benefits and noted that the stipulation did not specifically include a reference to the pension benefits.  The district court also found that “no instrument of conveyance, no amended order, and no definitive agreement was executed, provided or approved by the Court.”

We conclude that the stipulation at issue is ambiguous.  Husband argues that the stipulation “released” wife’s interest in the pension benefits, but the term “release” is never used in the stipulation.  Further, while we acknowledge that the stipulation indicates it is a “complete settlement of any interest that [wife] may have against [husband] . . .,” we find it significant that the stipulation purports to terminate wife’s right to a pension benefit worth potentially hundreds of thousands of dollars, yet it never mentions the word “pension” or otherwise refers to it.  In addition, given that husband owed wife approximately $12,000 in child-support arrearages, spousal-maintenance arrearages, and a judicial lien on the homestead, the language in the stipulation specifically referencing these items would suggest that these were the only claims wife was releasing.  Thus, the stipulation could reasonably be interpreted to mean either that wife settled only her interests in the property settlement debts and support-related arrearages that husband owed wife; or it could be interpreted to mean that wife settled all of her property interests, including her pension benefits.  Accordingly, we conclude that the agreement is ambiguous because it is “reasonably susceptible to more than one meaning.”

Given this ambiguity, we must look to extrinsic evidence to ascertain the meaning of the agreement.  In so doing, we note that, normally, pension benefits are part of the property settlement.  Minn. Stat. § 518.54, subd. 5 (2002).  However, here, husband’s pension benefits were treated as an entirely separate term in the judgment, strongly suggesting that the pension benefits were not part of the property settlement.

Our conclusion is borne out by the fact that the term “property settlement” was only used in paragraph 8 in the judgment’s “Conclusions of Law.”  In paragraph 8, the term “property settlement” referred to the $5,650 awarded to wife from husband in order to equalize the in-kind property division ordered by the court.  The judgment also noted that the “property settlement amount shall be secured by a lien against the above described homestead real estate.”  Therefore, the term “property settlement,” as used in the dissolution decree, is limited to the cash sum of $5,650, which was secured by the lien on the homestead.  The pension benefit was a completely separate term, listed and described in a separate paragraph – paragraph 11 of the judgment.  Based on this record, it is clear that the district court’s division of marital property and the corresponding “property settlement” was structured and implemented exclusive of and without reference to the pension benefits. 

Because the term “property settlement” in the judgment and in the stipulation did not include the pension benefits, the stipulation settled only the money that husband owed wife for child-support arrearages, spousal-maintenance arrearages, and a judicial lien on the homestead.  Therefore, we affirm the district court’s determination that wife is entitled to an interest in husband’s pension benefits.

Because we affirm on this issue, we need not reach wife’s other arguments.

II

            Husband argues that if this court finds that wife is entitled to a portion of his pension, her award should be calculated based on the value of the pension benefits at the time of dissolution – not the date of husband’s retirement.   Husband contends that this valuation method is required by the terms of the judgment, and therefore this court should remand with instructions to the district court to apply the valuation formula in the judgment.  Wife contends that the judgment requires the court to value the pension benefits at the time of husband’s retirement; but submits that husband’s appeal of this issue is premature because the district court has not yet issued an order determining the actual division of the pension benefits.  The district court noted that it would “execute an appropriate Qualified Domestic Relations Order consistent with the decree upon submission of same from counsel for the Petitioner.”  The district court also found that wife is entitled to benefits dating back to the date of husband’s retirement.  The district court concluded that husband “shall pay a lump sum in the amount determined by the ordered formula for the period during which [wife] was entitled to a monthly benefit.” 

            We conclude that husband’s argument on this issue is premature.  Husband is appealing from the October 30, 2003, order that held the stipulation did not release wife’s interest in husband’s pension benefits and provided that the district court “will execute an appropriate Qualified Domestic Relations Order consistent with the decree upon submission of the same” from wife’s attorney.  The district court has not issued the qualified-domestic-relations order that determines the actual division of the pension benefits, and therefore the district court has not yet determined wife’s share of husband’s pension benefits.  Because an order has not been issued, husband still has the opportunity to make arguments to the district court on the proper method to use to divide his pension benefits.  Until the district court rules on this matter, this court cannot consider it.  See Weinzierl v. Lien, 296 Minn. 539, 539-40, 209 N.W.2d 424, 424 (1973) (holding an order is not appealable until it finally determines the action or some positive legal right).  Because husband’s argument on this issue is premature, we remand for the district court to issue a qualified-domestic-relations order dividing husband’s pension benefits.

III

 

            Husband moves to strike portions of wife’s brief, arguing that there are materials included in the appendix to her brief that are outside the record on appeal.  See Minn. R. Civ. App. P. 110.01 (defining record on appeal).  “The court will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).  And references in a party’s brief to stricken extra-record material are also stricken.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001).  Here, because the challenged materials are not in the record on appeal, we grant husband’s motion to strike.

Affirmed in part and remanded; motion granted.