A05-1368

In re the Marriage of:

Janet Lee Marie Swanson,

f/k/a Janet Lee Marie Allyn, petitioner,

Appellant,

vs.

Michael Jerome Allyn,

Respondent.

Filed May 23, 2006

Affirmed

Willis, Judge

Ramsey County District Court

File No. F0-97-956

Beau D. McGraw, Joel Johnson, McGraw Law Firm, P.A., 600 Inwood Avenue North, Suite 200, Oakdale, MN 55128 (for appellant)

John R. Schulz, Christine L. Mennen, McGrann, Shea, Anderson, Carnival, Straughn & Lamb, 800 Nicollet Mall, Suite 2600, Minneapolis, MN 55402-7035 (for respondent)

Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

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

WILLIS, Judge

Appellant argues that the district court abused its discretion by amending a qualified-domestic-relations order (1) to award appellant one-half of only the marital interest in respondent’s retirement payments and (2) to allow appellant to benefit from respondent’s election of a joint-and-survivor option under the plan only if the resulting reduction in benefits during respondent’s lifetime is deducted entirely from her share. We affirm.

FACTS

In 1997, appellant Janet Lee Marie Swanson, formerly known as Janet Lee Marie Allyn, and respondent Michael Jerome Allyn dissolved their 25-year marriage. The judgment, which was based on a stipulation of the parties, provided in paragraph nine of its conclusions of law that “[Swanson] is awarded 50% of [Allyn’s] interest in his retirement benefits through Public Employees Retirement Association of Minnesota (PERA Retirement Plan) pursuant to a Qualified Domestic Relations Order to be entered by separate Order in conjunction with the Judgment and Decree.” When the parties entered into the stipulation, Swanson was represented by an attorney and Allyn was pro se. Allyn signed a waiver of independent counsel, which stated that he voluntarily signed the marital-termination-agreement stipulation and that he understood that Swanson’s attorney did not represent him in the proceeding.

On May 5, 1998, the district court issued a qualified-domestic-relations order [QDRO] “in order to effectuate Paragraph Nine (9) of the Judgment and Decree.” In the QDRO, the district court determined that Swanson was a “joint annuitant of [Allyn’s] interest in the PERA plan if, as and when benefits (retirement, disability and/or refund) become payable.” The QDRO further provided that the “amount of these monthly payments shall equal to those received by [Allyn]” and that “[Allyn] shall elect a 50 percent joint and survivor option on his application for benefits, naming [Swanson] as joint annuitant for all years of service.” In his affidavit, Allyn states that Swanson’s attorney drafted this QDRO and that the parties had not discussed the addition of the “joint and survivor option” language.

In March 1999, the parties submitted a stipulation to the district court, providing that parties wished to modify the QDRO to require Swanson to name Allyn as the survivor of the retirement benefits awarded to her in the event she died before he retired and applied for retirement benefits. On April 27, 1999, the district court issued an amended QDRO, reflecting the parties’ stipulation; the amended QDRO continued to name Swanson as a “joint annuitant,” to provide that her “monthly payments shall equal those received by [Allyn],” and to require Allyn to elect a joint-and-survivor option naming Swanson as “joint annuitant for all years of service.”

In September 1999, the parties again submitted a stipulation to the district court, providing that the parties wished to modify the amended QDRO so that Allyn would receive Swanson’s survivor benefits whether she died before or after he retired and applied for retirement benefits. On September 27, 1999, the district court issued a second amended QDRO, reflecting the parties’ stipulation; the second amended QDRO continued to name Swanson as a “joint annuitant,” to provide that her “monthly payments shall equal to those received by [Allyn],” and to require Allyn to elect a joint-and-survivor option naming Swanson as “joint annuitant for all years of service.”

On March 2, 2005, after Allyn obtained the advice of counsel, he brought a motion to amend the second amended QDRO to “divide the marital portion only of [Allyn’s] PERA account on a 50/50 basis.” Allyn asserted that the judgment contained no finding that Swanson was entitled to an award of any of Allyn’s nonmarital assets and that, thus, the second amended QDRO should be amended to make it consistent with the judgment. Allyn’s motion further sought an order allowing Swanson to benefit from the joint-and-survivor option under the plan only if the reduction in benefits during Allyn’s lifetime is deducted entirely from Swanson’s share of the benefits.

On May 13, 2005, the district court granted Allyn’s motion. Swanson appeals.

D E C I S I O N

The district court’s May 13, 2005 order provided that “[i]n this case, the Court is issuing appropriate Orders implementing or enforcing specific provisions of the Judgment and Decree. This decision does not modify the final property division as established in the Judgment and Decree.” While a district court may not modify a final property division, it may issue orders to implement, enforce, or clarify the provisions of a judgment, as long as it does not change the parties’ substantive rights. Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991). “A clarification does not result in a judgment different from the original, but serves only to express accurately the thoughts the judgment intended to convey.” Thompson v. Thompson, 385 N.W.2d 20, 22 (Minn. App. 1986). We will not reverse a district court’s order interpreting a dissolution judgment absent a clear abuse of discretion. Potter, 471 N.W.2d at 114.

Division of Allyn’s Retirement Benefits

The district court granted Allyn’s motion to amend the second amended QDRO to “make it consistent with the Judgment and Decree to divide the marital portion only of [Allyn’s] PERA account on a 50/50 basis.” Swanson asserts that the district court’s order limiting her award to the marital portion only of Allyn’s pension improperly changed her substantive rights under the judgment. Swanson maintains that the parties agreed to exchange their nonmarital interests in property; that at the time of the parties’ marriage, she had a nonmarital interest of approximately $10,000 in the parties’ home; and that she “gave up” her nonmarital interest in the home “in return for” one-half of Allyn’s interest in his pension, “which was to include a non-marital portion.” But as the district court found, nothing reflecting Swanson’s claims about exchanging nonmarital interests appears anywhere in the marital-termination agreement or the dissolution judgment.

Swanson further argues that Allyn’s affidavit in support of his motion to amend the QDRO provides “clear proof” that he understood that he would provide Swanson with nonmarital retirement benefits earned for some period of time of service after the dissolution. In his affidavit, Allyn stated that the agreement that the parties reached at the time of the judgment was that “[Swanson] would receive one-half of [Allyn’s] PERA retirement; [Allyn] anticipated retiring within two (2) years after [their] divorce. It was never the agreement between [the parties] that [Swanson] would receive one-half of [his] PERA retirement should [he] have to continue to work past age 50.” But Allyn also states in his affidavit that he believes that paragraph nine of the judgment awarded Swanson 50% of his retirement benefits “through the date of divorce” and that his understanding of the parties’ agreement was “that [Swanson] would receive one-half of [Allyn’s] then-accrued retirement at the time [he] retired, but that [he] alone would receive the credit for years of service after divorce.” Thus, we conclude that, because of internal inconsistencies, Allyn’s affidavit does not provide “clear proof” that he understood the parties’ agreement to provide Swanson with nonmarital property in the form of one-half of increases in his retirement benefits based on service after the dissolution.

We determine that the district court did not abuse its discretion by granting Allyn’s motion to amend the second amended QDRO. The second amended QDRO, which provided that when Allyn started receiving retirement benefits, Swanson was to receive “equal monthly payments” was inconsistent with finding 11 of the judgment, which provides that “[Swanson] is in need of financial assistance from [Allyn], and [Allyn] has the financial ability to contribute to [Swanson’s] support. The combined spousal maintenance as herein provided, together with the award of marital property, is sufficient to financially maintain [Swanson].” (Emphasis added.) The record further supports the district court’s finding in its May 13, 2005 order that “[n]either the Marital Termination Agreement nor the Judgment and Decree contained any language to support a finding that [Swanson] is entitled to an award of [Allyn’s] non-marital assets.”

In addition, because the judgment did not contain the finding of undue hardship required by statute to support an award to Swanson of any of Allyn’s nonmarital property, such an award in the QDRO would have been an abuse of discretion. Section 518.58, subdivision 2 (2004), provides that if, in a dissolution, a district court finds that either spouse’s resources, including marital property awarded to that spouse, are “so inadequate as to work an unfair hardship,” the district court may apportion to that spouse up to one-half of the other spouse’s nonmarital property “to prevent the unfair ha rdship.” A district court so apportioning one spouse’s nonmarital property to the other spouse to avoid an unfair hardship “shall” make findings addressing certain statutory factors. Minn. Stat. § 518.58, subd. 2; see Minn. Stat. § 645.44, subd. 16 (2004) (stating “‘[s]hall’ is mandatory”). Failing to follow the requirements of the statute when distributing property is an abuse of discretion. Dammann v. Dammann, 351 N.W.2d 651, 652 (Minn. App. 1984). Swanson asserts, however, that “this was a stipulated agreement, where the parties are free to divide up property in any way they see fit.” But a specific finding of unfair hardship was required for Swanson to be awarded any part of Allyn’s nonmarital property, and a review of the judgment shows that it contains no such finding. See Minn. Stat. § 518.58, subd. 2. And entering into a stipulation does not preclude the need for findings that are required by statute. Santillan v. Martine, 560 N.W.2d 749, 751 (Minn. App. 1997) (determining that parties’ stipulation to divest court of the jurisdiction to modify their spousal-maintenance provision was ineffective because the district court, in adopting the stipulation, failed to make statutorily required findings that the stipulation was fair and equitable, was supported by consideration, and that full disclosure of each party’s financial circumstances had occurred). Therefore, adoption of Swanson’s argument would require this court to assume that the district court erred in the dissolution judgment by awarding Swanson an interest in the nonmarital portion of Allyn’s retirement benefits without making the findings required by statute to support an award of nonmarital property. On appeal, error is never presumed. Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949); see also Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (applying Loth, stating that appellate court “cannot assume that the district court will neglect its duty to independently evaluate the proposed judgment or will err or abuse its discretion in performing that evaluation”).

Joint-and-Survivor Option

Swanson further asserts that the district court abused its discretion by granting Allyn’s motion to amend the second amended QDRO to allow Swanson to benefit from a joint-and-survivor option only if “the reduction in benefits during [Allyn’s] lifetime are deducted from [Swanson’s] share of the benefits.” Swanson argues that it was “implicit in the parties’ agreement” that the parties intended for her to be named as a joint-and-survivor annuitant and cites in support of this claim, a March 5, 2002 letter that her attorney sent to Allyn’s attorney. In that letter, Swanson’s attorney stated, “Each QDRO accurately reflected Mr. Allyn’s wishes that [Swanson] be named as a joint and survivor annuitant.” But the record shows that the provision in the second amended QDRO awarding Swanson the benefit of the joint-and-survivor option was not a provision included in the judgment. Thus, we conclude that the district court did not abuse its discretion by clarifying the QDRO to allow Swanson to benefit from Allyn’s election of a joint-and-survivor option under the plan only if the resulting reduction in benefits during his lifetime is deducted entirely from her share.

Affirmed.