may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Candace E. Hestad, petitioner,
Wayne E. Hestad,
Filed August 4, 1998
Anoka County District Court
William K. Goodrich, Randall, Dehn & Goodrich, 2140 Fourth Ave. N., Anoka, MN 55303 (for respondent)
Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.[*]
Appellant challenges a qualified domestic relations order requiring attorney fees the court previously awarded to respondent to be paid out of appellant's VIP account. Because we see no error of law in the order, we affirm.
As part of the dissolution judgment, the district court, in awarding respondent Candace Hestad $16,500 in attorney fees payable by appellant Wayne Hestad, provided:
Such award of attorney fees is payable within ninety (90) days of the entry of the Judgment and Decree herein. It is appropriate that [a] conditional ex parte money judgment be provided to [respondent] or her attorney in the event of [appellant's] default on this attorney fee obligation. The [appellant] is directed to pay this attorney fee award from his General Mill's VIP Account within the time frame above described.
Appellant challenged the award; this court affirmed it. See Hestad v. Hestad, No. C1-97-386 (Minn. App. Oct. 28, 1997), review denied (Minn. Dec. 16, 1997). Respondent sought to collect the award by moving for a qualified domestic relations order (QDRO) requiring a distribution from appellant's voluntary investment plan (VIP) account. The district court granted respondent's motion and issued a QDRO reading in relevant part:
As soon as may be administratively feasible after the Final Division Date, the [VIP] Plan Administrator shall cause the trustee of the Plan to distribute to the Alternate Payee [respondent] (1) $18,011 * * * and (2) $16,500 of the Account valued as of the Initial Division Date, or, if less than the sum of the amount determined in (1) and (2) above, the value of [appellant's] account as of the Final Division Date.
Appellant challenges provision (2) of this order for distribution; respondent seeks attorney fees on appeal.
Appellant argues first that the court did not have jurisdiction to order that the attorney fees award be paid from the VIP account because the decree provided that the court would retain jurisdiction over the VIP account "only for the purpose of establishing or maintaining such judicial distribution through a QDRO or Amendment to the Judgment and Decree herein." However, the QDRO simply implements and enforces the decree; it does not affect either party's rights. This court has upheld such orders. See, e.g., Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991) (holding that a trial court may issue appropriate orders enforcing a decree so long as it does not change a party's substantive rights), cited in Kornberg v. Kornberg, 542 N.W.2d 379, 388 (Minn. 1996). The QDRO implements payment of fees ordered by the district court and affirmed on appeal. Appellant does not assert either that he has paid any part of the fees or that he has an alternative means of payment. Absent any payment or payment proposal by appellant, the court had jurisdiction to order enforcement of the attorney fees award.
2. Terms of the QDRO
Appellant argues that because the decree specified $18,011 as the amount of the VIP account to be awarded to respondent, it is contrary to the decree to award her an additional $16,500 in attorney fees from that account. We disagree. The decree also ordered payment of $16,500 of respondent's attorney fees from the VIP account. There is no conflict between these provisions and no reason for the QDRO not to give effect to both.
3. Alleged Statutory Violations
Appellant contends that the QDRO violates Minn. Stat. § 518.58, subd. 4 (1996), for two reasons. First, he claims the statute prohibits payments beyond the amount payable under the terms of the plan, in respondent's case $18,011. Second, he claims that the statute prohibits lump-sum payments. Appellant does not refute, however, the facts that General Mills benefits counsel reviewed and revised the QDRO to be certain it conformed with the plan, that the plan itself specifically permits lump- sum payments, and that the QDRO prohibits respondent from electing any form of payment other than lump sum.
Appellant also cites Minn. Stat. § 550.02 (1996), arguing that a money judgment is unsecured and creates a lien only on real property and that the QDRO therefore cannot be used to create a lien on his VIP account. But appellant does not explain why ordering payment from the VIP account is not execution of the judgment, a permissible means of enforcement.
We conclude the QDRO violates no statute.
4. Attorney Fees on Appeal
Respondent seeks attorney fees on appeal. This court may make such an award in a dissolution action. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691-92 (Minn. App. 1989) (awarding attorney fees on appeal in a dissolution case against an appellant who asserted a position so unfounded that it could be advanced only to harass), review denied (Minn. June 21, 1989). While we do not agree with appellant's challenges to the QDRO mandating payment of the attorney fees award from his VIP account, we do not find those challenges so unfounded that they could have been advanced only to harass. Consequently, we deny respondent's motion for attorney fees on appeal.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
1 We decline to address appellant's argument that the court should have issued a domestic relations order (DRO) rather than a QDRO to enforce payment of a money judgment. Whether the document ordering distribution of part of the VIP account is a QDRO or a DRO is a matter relevant to ERISA, determinable by the General Mills plan administrator and reviewable by federal court, not state court. See U.S. Department of Labor publication, "QDROs: The Division of Pensions Through Qualified Domestic Relations Order" at 6. The determination is irrelevant to this appeal.