This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-682

In Re the Marriage of:

Charles Lee Williams, petitioner,

Respondent,

vs

Sandra Kay Williams,

Appellant.

Filed October 8, 1996

Affirmed

Parker, Judge

Rice County District Court

File No. F293743

James R. Korman, James R. Korman, Ltd., 504 Central Avenue, Faribault, MN 55021 (for respondent)

J. Scott Braden, J. Scott Braden, P.A., 415 Second Avenue Northwest, Faribault, MN 55021 (for appellant)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

PARKER, Judge

Appellant Sandra Kay Williams challenges a post-decree order denying her motion to clarify the language of a domestic relations/apportionment order (DRO). Ms. Williams argues that the trial court erred in determining that the term "basic annuity" in the marital termination agreement is synonymous with the term "basic annuity, after survivor benefits" in the DRO. We affirm.

D E C I S I O N

"Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. If a trial court's decision in a dissolution case has a reasonable and acceptable basis in fact and principle, an appellate court must affirm. DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983)

1. Ms. Williams argues that the trial court's order clarifying her entitlement to 20.25 percent of Mr. Williams' annuity constituted an improper modification of their dissolution order, in violation of Minn. Stat. § 518.64, subd. 2(d) (1994). She contends that the trial court's determination that she is not entitled to 20.25 percent of his "total annuity" is in error. She argues that the language "employee or basic" annuity does not limit her to the reduced annuity less the survivor benefits. Ms. Williams contends that Mr. Williams should not have the choice to elect a reduced benefit less survivor benefits, because that will unfairly reduce her annuity share. Therefore, Ms. Williams argues, she is entitled to 20.25 percent per month of the entire annuity benefit that Mr. Williams would receive if he were precluded from electing to take survivor benefits.

Minn. Stat. § 518.64, subd. 2(d) (1994), provides in part:

Except for an award of the right of occupancy of the homestead, provided in section 518.63, all divisions of real and personal property provided by section 518.58 shall be final, and may be revoked or modified only where the court finds the existence of conditions that justify reopening a judgment under the laws of this state * * *.

However, a district court may issue an order implementing or enforcing a provision of the decree. Erickson v. Erickson, 452 N.W.2d 253, 255 (Minn. App. 1990). Furthermore, our courts have determined that

[i]nterpretation of a divorce decree that is ambiguous or uncertain on its face and, because of its language, is of doubtful meaning or open to diverse constructions, may be clarified by the tribunal that ordered it.

Mikoda v. Mikoda, 413 N.W.2d 238, 241 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987) (citations omitted). The trial court may receive and consider parol evidence to determine what was intended by the judgment and to express the judgment more definitely. Id. at 242. The whole record may be examined to ascertain the meaning of an ambiguous judgment. Id. On appeal, the trial court's construction of its own decree has great weight. Id.

The trial court found there was evidence to support the finding that Ms. Williams was not entitled to an interest in her former spouse's "basic annuity" before survivor benefits. In support of this finding, he cited the language contained in the parties' antenuptial agreement, which denied either party an interest in the retirement benefits of the other upon dissolution, and the language of their marital termination agreement and DRO, which assigned Ms. Williams a 20.25 percent per month interest in Mr. Williams' "basic annuity" and "basic annuity, after survivor benefits." He concluded that these documents adequately demonstrated the parties' intention that Ms. Williams was entitled to only a portion of the "basic annuity, after survivor benefits."

The trial court observed that, had Ms. Williams been entitled to an interest in the survivor benefits, appropriate explicit language would have been used in all of these relevant documents. The trial court also found that the DRO specifically noted that Ms. Williams was entitled to 20.25 percent of $2,906 per month and noted that the $2,906 figure correlated to the "basic annuity, after survivor benefits" amount on the DRO calculation sheet. Concluding that a common-sense interpretation of the express language "basic annuity, after survivor benefits" meant to exclude Ms. Williams from any interest in the survivor benefits, the trial court determined that all relevant documents supported the finding that Ms. Williams was not entitled to the basic annuity before deduction for survivor benefits.

We cannot say that the trial court's reasoning was in error. The trial court's order clarifying the terms of the DRO does not affect the division of property or the dissolution order and therefore does not violate the provisions of Minn. Stat. § 518.64, subd. 2(d). The DRO does, however, contain terms that are somewhat ambiguous. The DRO itself refers to (1) Ms. Williams' grant of 20.25 percent of Mr. Williams' "basic annuity;" (2) her entitlement to 20.25 percent of his "net monthly annuity;" and (3) as alternate payee, she is assigned a 20.25 percent interest in his "basic annuity, after survivor benefits * * * the annuity with survivor benefits as of November 1, 1993 is $2906 per month." Then, attached to the DRO is a calculations sheet that states the following:

CALCULATED ANNUITY:

Basic annuity: $38,447 per year ($3203 per month)

Annuity with Survivor Benefits

Basic Annuity = $34,872 per year ($2906 per month)

Survivor Annuity = $21,146 per year ($1762 per month)

Notwithstanding the interchange of terms, none of the relevant documents implies an award to Ms. Williams of a 20.25 percent interest in the "basic annuity" at $3,203 per month. All of the documents upon which the trial court relied more specifically refer to Ms. Williams' interest as 20.25 percent of the "basic annuity, after survivor benefits," or 20.25 percent of $2,906 per month. We also note that both parties participated in the formulation of an antenuptial and a marital termination agreement to resolve property division upon dissolution. Had the parties intended that Ms. Williams receive a 20.25 percent share of the basic annuity of $3,203 per month, there was ample opportunity to include this specific, clarifying language in the termination agreement.

Furthermore, in her brief, Ms. Williams discusses survivor benefits as though that benefit will accrue to her former spouse. This analysis is incorrect. None of the relevant documents restricts Mr. Williams' ability to elect a lesser monthly amount so that he may provide survivor benefits for a person he will later identify upon retirement. Absent any indication that the parties intended Ms. Williams to receive a 20.25 percent share of the "basic annuity" before survivor benefits, she is entitled to only 20.25 percent of the "basic annuity, after survivor benefits." Therefore, we conclude that the trial court's order clarifying the terms of the DRO is not in error.

Affirmed.