If I suspect my ex-husband fathered a child with someone else while we were married, can I challenge our divorce ruling?
If, by this question, you mean that
you are the wife; and
you discovered, after you divorced, that your husband had fathered a child during the marriage, but this fact was not known or adjudicated during the divorce proceedings,
it is unlikely that raising the discovery of the bastard/illegitimate (whatever term you want to use to describe the innocent) child would benefit you as the wife, if you tried to assert the discovery of this child as the basis for “challenging” or modifying the terms of the decree of divorce. Why? Because unless you could show that the discovery of this child has led to the discovery that the terms of your decree of divorce are unfair to you and would have been different had the court been aware of and taken the child’s existence into consideration when entering the orders that comprise your decree of divorce, discovery of the child may be irrelevant.
However, it may be worth your while to raise the discovery of this child with the divorce court, if for no other reason than to protect yourself from being deemed the child’s mother, given that the child was born, or at least conceived, during your marriage because it is possible for your husband to claim that the child is now your legal responsibility.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Opinion
No. 20180732-CA
Filed January 24, 2020
First District Court, Logan Department
The Honorable Thomas Willmore
No. 094100623
David Pedrazas, Attorney for Appellant
Marlin J. Grant, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE GREGORY K. ORME concurred. JUDGE JILL M.
POHLMAN dissented, with opinion.
CHRISTIANSEN FORSTER, Judge:
¶1 Kevin Scott Peck appeals the district court’s denial of several motions aimed at correcting an alleged clerical error in a qualified domestic relations order (QDRO) entered by the court. We affirm the district court’s determination that the QDRO reflected the parties’ intent but reverse the court’s dismissal of Kevin’s[1] rule 60(b) motion on timeliness grounds and remand for further proceedings.
BACKGROUND
¶2 Kevin married Reggie Ann Peck on June 15, 2001, and the parties divorced on July 15, 2003. Their decree of divorce awarded Kevin all interest in his retirement pension.
¶3 After a short separation, the parties began cohabiting and then remarried on October 22, 2004. The parties divorced a second time on November 19, 2010. The parties’ second decree of divorce, which was based on the parties’ stipulation, referenced the prior marriage, stating that the parties “had previously been married to each other on June 15, 2001, then divorced.” With respect to retirement, the second decree provided, “Retirement will be divided according to the formula set forth in the case of Woodward v. Woodward.” It also provided that the division would be accomplished by the entry of a QDRO.
¶4 In early 2016, Reggie submitted a QDRO for approval, which stated, “The Member and the Alternate Payee were married on June 15, 2001. The Member and the Alternate Payee were divorced on November 19, 2010.” The QDRO further stated that “[t]he Alternate Payee is awarded 50% of the Member’s benefits accrued during the marriage.” Kevin did not object to the QDRO, and the court signed it on May 12, 2016.[2]
¶5 On October 24, 2017, seventeen months after the final QDRO was signed, Kevin filed a motion for a nunc pro tunc order to correct the date of the parties’ marriage in the QDRO from June 15, 2001, to October 22, 2004, asserting that the second decree divided only retirement accrued during the second marriage. Reggie objected, asserting that the date used in the QDRO reflected the parties’ intent to “use[] the [first] marriage to equitably divide the retirement” “[b]ecause there was not that much of a gap between the [first] marriage and the second remarriage.”
¶6 The court held a hearing on the matter on January 18, 2018. At the hearing, Reggie submitted a letter sent to her counsel from prior counsel that included a QDRO drafted in 2010 that had been approved as to form by Kevin’s prior attorney. Like the QDRO ultimately filed with the court, this QDRO included a marriage date of June 15, 2001. Reggie argued that the earlier QDRO demonstrated that the parties had “always” intended to “put the first marriage date as the date the QDRO would be divided and through the divorce period.” Her attorney explained that he “didn’t think [the Decree] needed [the date] because [Kevin’s prior attorney] signed off on the QDRO where it said that.” The district court found, based on the QDRO signed by Kevin’s attorney in 2010, “that there is enough evidence to show that the parties intended to use the first marriage date to split the retirement.” It therefore denied Kevin’s motion to enter a nunc pro tunc order amending the QDRO.
¶7 Kevin next filed a motion pursuant to rules 60(a) and 60(b) of the Utah Rules of Civil Procedure, requesting that the court either correct the date as a clerical error or set aside the QDRO using “the residuary clause of rule 60(b)” due to gross attorney negligence. (Quotation simplified.) The court denied this motion as well. First, the court rejected Kevin’s rule 60(a) argument because it found, “based upon the previous findings and ruling by the Court at the January 18, 2018, hearing,” “that there was no clerical mistake.” Second, the court rejected Kevin’s rule 60(b) argument because it determined that Kevin’s arguments on this point were “based on mistake or excusable neglect,” matters that must be raised, according to rule 60, “not more than 90 days after entry of the judgment or order.” Utah R. Civ. P. 60(c). The court found that Kevin was attempting to “circumvent the three month period” by framing his arguments under the rule 60(b)(6) residuary clause when his allegations as to the competence of his prior attorneys actually concerned mistake and excusable neglect. The court therefore found Kevin’s rule 60(b) motion to be untimely and denied it on that basis. Kevin now appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Kevin asserts that the district court erred in denying his
motion for a nunc pro tunc order, his rule 60(a) motion to correct a clerical mistake, and his rule 60(b) motion to set aside the QDRO. Because both the motion for a nunc pro tunc order and the rule 60(a) motion turned on the existence of a clerical error, we address Kevin’s arguments with respect to both motions as a single issue. In doing so, we accept the court’s factual findings unless they are shown to be clearly erroneous, Stonehocker v. Stonehocker, 2008 UT App 11, ¶¶ 9, 44, 176 P.3d 476, but review its ultimate determination regarding the existence of a clerical error for correctness, see State v. Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610; Behrman v. Behrman, 2006 UT App 257, ¶ 8, 139 P.3d 307. With respect to the court’s denial of Kevin’s rule 60(b) motion, the court “is afforded broad discretion . . . , and its determination will not be disturbed absent an abuse of discretion.” Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989).
ANALYSIS
I. Clerical Error
¶9 “A clerical error is one made in recording a judgment that results in the entry of a judgment which does not conform to the actual intention of the court.” State v. Rodrigues, 2009 UT 62, ¶ 14, 218 P.3d 610 (quotation simplified). Rule 60(a) of the Utah Rules of Civil Procedure permits a court to “correct a clerical mistake . . . whenever one is found in a judgment, order, or other part of the record.” Utah R. Civ. P. 60(a). “On the other hand, a judicial error is one made in rendering the judgment and results in a substantively incorrect judgment.” Rodrigues, 2009 UT 62, ¶ 14 (quotation simplified). Judicial errors are not subject to correction under rule 60(a) but must be challenged either in the context of appeal or, in limited cases, through a rule 60(b) motion to set aside. See Fisher v. Bybee, 2004 UT 92, ¶¶ 10–11, 104 P.3d 1198 (explaining the limitations of rule 60(b) in challenging alleged legal errors); Thomas A. Paulsen Co. v. Industrial Comm’n, 770 P.2d 125, 130 (Utah 1989) (explaining that a district court may generally correct only clerical errors, not judicial errors). “The distinction between a judicial error and a clerical error does not depend upon who made it. Rather, it depends on whether it was made in rendering the judgment or in recording the judgment as rendered.” Lindsay v. Atkin, 680 P.2d 401, 402 (Utah 1984) (quotation simplified).
¶10 Kevin maintains that the use of the first marriage date, rather than the second marriage date, in the QDRO is a clerical error because it does not reflect the intention of the second decree. Reggie, on the other hand, asserts that this cannot be considered a clerical error because the court found that the parties intended to use that date in the QDRO.[3]
¶11 “[O]ur clerical error analysis generally focuses on (1) whether the order or judgment that was rendered reflects what was done or intended, (2) whether the error is the result of judicial reasoning and decision making, and (3) whether the error is clear from the record.” Rodrigues, 2009 UT 62, ¶ 14. Here, the court found that the parties intended to use the date of the first marriage in the QDRO based on Kevin’s prior attorney’s approval of the QDRO as to form. Kevin does not challenge this finding on appeal but instead asserts that any such intention is irrelevant because the QDRO must reflect the terms of the second decree, which contains no findings or conclusions indicating the parties’ or the court’s intent to divide the retirement based on the first marriage date. See supra note 3. But the fact that the plain language of the divorce decree suggests that it may have been legal error to use the first marriage date in the QDRO does not mean that the parties and the court did not intend to use that date. And Kevin has not challenged the court’s finding that the parties intended—erroneously or otherwise—to use the first marriage date. The fact that the parties stipulated to and the court approved a QDRO that contained a legal error ultimately demonstrates an error of judicial decision making, not a mistake in memorializing the QDRO. But Kevin did not object to the QDRO when it was proposed and therefore lost the opportunity to challenge this legal error directly. While this is unfortunate, he cannot now remedy his failure to timely object by reframing the error as clerical. Because we agree with the district court that Kevin cannot establish that the marriage date used in the QDRO was a clerical error, we affirm the district court’s refusal to enter a nunc pro tunc order reforming the QDRO.
II. Rule 60(b)
¶12 Kevin next asserts that the district court erred in denying his motion to set aside the QDRO pursuant to the residuary clause of rule 60(b) of the Utah Rules of Civil Procedure on the ground that his prior attorneys were grossly negligent in failing to notify him of hearings and orders, failing to appear at hearings, and failing to object to the QDRO in a timely manner. The district court determined that these arguments could not properly be raised under the residuary clause of rule 60(b) because Kevin’s prior attorneys’ actions “may constitute a mistake or excusable neglect” and therefore would be more properly addressed pursuant to rule 60(b)(1). Because a motion under rule 60(b)(1) must be brought within ninety days, the court dismissed Kevin’s motion as untimely.
¶13 “Rule 60(b)(6) [the residuary clause] is the ‘catch-all’ provision of rule 60(b).” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480. Therefore, “it may not be relied upon if the asserted grounds for relief fall within any other subsection of rule 60(b).” Id. Rule 60(b)(1) permits a court to set aside a judgment for “mistake, inadvertence, surprise, or excusable neglect.” Utah R. Civ. P. 60(b)(1). “In cases where subsection (b)(1) applies, a movant may not attempt to circumvent the three-month filing period by relying on another subsection.” Menzies, 2006 UT 81, ¶ 65.
¶14 Gross attorney negligence that is “too egregious and exceptional to be encompassed by rule 60(b)(1)” may be assessed under the residuary clause. Id. ¶ 74. Here, the district court did not consider whether the actions of Kevin’s attorneys constituted gross negligence. Instead, it determined that Kevin’s argument did not fall within the residuary clause because it believed the argument could be considered under rule 60(b)(1). See id. But our supreme court rejected this approach in Menzies: “The rule is that 60(b)(6) cannot be relied upon if the grounds for relief fall within another subsection, not that 60(b)(6) does not apply if the court has . . . considered another ground.” Id. The district court in this case did not find grounds under rule 60(b)(1). Instead, it found only that “if [Kevin’s] attorney failed to give him notice or object that may constitute a mistake or excusable neglect” and that “the issues raised . . . are possibly mistake or excusable neglect.”[4] (Emphases added.) Without a finding that grounds for relief existed under rule 60(b)(1), the district court should not have refused to consider Kevin’s gross attorney negligence argument under the residuary clause. We therefore must reverse the district court’s ruling on Kevin’s rule 60(b) motion and remand for further proceedings.[5]
¶15 On remand, the court should determine whether Kevin’s arguments establish mistake, excusable neglect, gross attorney negligence, or none of these. If the court does find that Kevin’s prior attorneys committed gross negligence, then the motion may be rejected as untimely only if the court determines that it was not “filed within a reasonable time.” Utah R. Civ. P. 60(c). See generally Crane-Jenkins v. Mikarose, LLC, 2015 UT App 270, ¶ 12, 374 P.3d 1024 (discussing the standard for determining whether a rule 60(b) motion has been brought within a reasonable time).
CONCLUSION
¶16 Because the marriage date listed in the QDRO was a legal error, rather than a clerical error, the district court did not err in declining to enter a nunc pro tunc order or in denying Kevin’s rule 60(a) motion. However, we reverse and remand the court’s ruling on Kevin’s rule 60(b) motion because the court’s findings were insufficient to support its determination that the motion was untimely.
———————————
POHLMAN, Judge (concurring and dissenting):
¶17 I would affirm. While I join the majority’s affirmance of the district court’s refusal to enter a nunc pro tunc order, supra ¶ 11, I would not reach the merits of the district court’s rule 60(b) decision, supra ¶¶ 12–15, or reverse on that basis.
¶18 The majority concludes that the district court erred in its rule 60(b) assessment because it failed to make sufficient findings to support its apparent determination that the motion fell under subsection (b)(1) rather than the catchall subsection, (b)(6), and was therefore untimely. Supra ¶¶ 12–15. The majority faults the court for failing in its rule 60(b) decision to find that grounds under subsection (b)(1) had “actually [been] established.” Supra ¶ 14 & n.4. But on appeal, Kevin has mounted no challenge to the sufficiency of the district court’s rule 60(b) findings, and he makes no argument that its decision should be reversed because it failed to find that rule 60(b)(1) grounds had been established. Thus, in my view, the majority’s conclusion on the rule 60(b) issue seems to stray into advocacy, essentially making for Kevin an argument that he did not make for himself and then reversing the matter on that ground.
¶19 As our supreme court has explained, “our appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves, while allowing an impartial tribunal to determine the merits of those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443 (cleaned up); see also id. ¶ 74 (Lee, J., concurring) (“Ours is an adversary system. Within it judges are sworn to follow the law in an evenhanded, objective manner. We sidestep that system when we take on a role of advocacy.”). In such a system, values of fairness and judicial economy dictate that our appellate courts “will not independently root around in the record to try to figure out whether” the district court “got it right.” Living Rivers v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶ 51, 417 P.3d 57; see also Johnson, 2017 UT 76, ¶ 8 (stating that our adversarial system “preserves judicial economy and fairness between the parties”).
¶20 Instead, in our system, appellants carry the burden to persuade a reviewing court through reasoned, supported argument that the district court committed harmful, reversible error—a burden that necessarily requires the appellant to address the reasoning and basis of the district court’s ruling and to explain why that court got it wrong. See Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51; Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (“Because [the appellants] have not addressed the actual basis for the district court’s ruling, they have failed to persuade us that the district court’s ruling constituted error . . . .”); see also Utah R. App. P. 24(a)(8). If an appellant fails to carry this burden, our appellate courts have repeatedly held that the desire to correct what may amount to legal error must give way to the well-established “institutional constraints” and values underlying our adversarial system. Goldenwest Fed. Credit Union v. Kenworthy, 2017 UT App 191, ¶ 16, 406 P.3d 253 (affirming the district court’s grant of summary judgment where the appellant failed to demonstrate error in the district court’s decision, observing that principles of “preservation and adequate briefing must prevail over legal correctness”); see also Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51 (affirming the decision below where the appellant “utterly” failed to point out any error in that decision or explain why the decision was wrong, instead merely restating the same legal position that was rejected below); Allen v. Friel, 2008 UT 56, ¶¶ 7, 14, 194 P.3d 903 (setting forth an appellant’s burden on appeal, which requires addressing the district court’s reasoning and demonstrating the error in that reasoning and the court’s ultimate ruling, and dismissing the appellant’s appeal where he failed to address the district court’s actual holdings).
¶21 These same principles, in my view, should dictate affirmance of the district court’s rule 60(b) ruling here. Kevin merely restates to us the same reasons why he should be entitled to relief under rule 60(b) that were rejected by the district court’s ruling. See Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51. He makes no attempt to explain why the basis for the district court’s decision is wrong, and he makes no argument that its findings fail to sufficiently support its ultimate conclusion. See id. Indeed, Kevin’s opening brief is virtually identical to the motion to set aside that the district court rejected.
¶22 The majority’s conclusion on the rule 60(b) issue may be correct as a matter of law. But, in my view, Kevin has not met his burden to persuade us to even reach the merits of the issue. In such circumstances, as we have held before, “our institutional constraints [ought to] prevent us from reversing on the basis of a winning argument that [Kevin] did not make.” See Goldenwest Fed. Credit Union, 2017 UT App 191, ¶ 16. On this basis, I would affirm the district court’s rule 60(b) decision.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] “As is our practice in cases where both parties share a last name, we refer to the parties by their first name with no disrespect intended by the apparent informality.” Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
[2] 2. Actually, three versions of the QDRO were submitted to the court and signed—one on February 4, 2016, one on March 18, 2016, and one on May 12, 2016. All three versions contained the June 15, 2001 marriage date and purported to divide Kevin’s defined benefit plan. As any differences between the orders are not relevant to the issue presented on appeal, we refer to the most recent version of the order for simplicity.
[3] Based on the plain language of the second divorce decree, which was based on the parties’ stipulation, the use of the first marriage date in the QDRO does seem to be an error. A QDRO must conform to the terms of the decree that it effectuates. Indeed, a QDRO is merely a mechanism by which the retirement provisions of a divorce decree are enforced. See In re Kiley, 2018 UT 40, ¶ 4, 427 P.3d 1165 (defining a QDRO as “the document that would permit [an alternate payee] to access [the plan participant’s] retirement funds”); Bailey v. Bailey, 745 P.2d 830, 832 (Utah 1987) (explaining that a QDRO “furnishes instructions to the trustee of a retirement plan and specifies how distributions should be made”); Potts v. Potts, 2018 UT App 169, ¶ 1 n.2, 436 P.3d 263 (“A [QDRO] instructs the trustee of a retirement plan and specifies how distributions should be made, to whom, and when.” (quotation simplified)); see also Johnson v. Johnson, 2014 UT 21, ¶ 17 n.28, 330 P.3d 704 (rejecting the assertion that a QDRO must be filed for a beneficiary “to enforce her right to payments,” explaining that the party’s entitlement to a share of the benefits is established by the decree itself, not subsequent documents filed to enforce the payment by a plan administrator). And there are no findings or other explanation in the second decree indicating that the parties or the court intended for the retirement to be divided as of the date of the first marriage. The only mention of the previous marriage in the decree is the bare factual statement, in an early paragraph outlining the historical background of the parties’ marriage, that the parties “had previously been married to each other on June 15, 2001, then divorced.” The decree does not assign any relevance to this factual statement, let alone link it specifically to the retirement division. The retirement provision states only that “[r]etirement will be divided according to the formula set forth in the case of Woodward v. Woodward,” 656 P.2d 431 (Utah 1982), and in fact, the decree’s alimony provision explicitly states, “This is a 5 year marriage . . . .” Further, we have previously required courts attempting to divide assets from a previous marriage in a second divorce to make specific findings supporting either a modification of the first divorce or a division of premarital assets based on “the existence of exceptional circumstances.” Kelley v. Kelley, 2000 UT App 236, ¶¶ 22–24, 9 P.3d 171. No such findings were contained in the decree here.
[4] In its conclusion, the court states, “Rule 60(b)(6) cannot be used to circumvent the three month period when Respondent is laying blame upon his attorney, which allegations the Court has found amounts to mistake or excusable neglect.” (Emphasis added.) However, the court’s actual findings are equivocal on this point, as noted above, and the court did not make any findings regarding the efficacy of the attorneys’ actions or inaction, how the prior attorneys’ representation affected Kevin, or whether any mistake or neglect on the part of the prior attorneys was excusable. Thus, we cannot construe this final summation in the district court’s order as a finding that the attorneys’ actions actually established grounds of mistake or excusable neglect.
[5] 5. The dissent disagrees with our decision to address this argument, asserting that Kevin has not adequately challenged the court’s findings on appeal. While Kevin has certainly not developed his rule 60(b) argument as thoroughly as we would like to see, he is clear in asserting that Menzies places gross attorney negligence within the residuary clause of rule 60(b) and that the district court erred in declining to consider his arguments under the residuary clause. As the dissent points out, this is the same argument he made to the district court, but that is not inherently a basis to reject the argument or to consider it inadequate. On appeal, Kevin asks us to correct what he perceives as the district court’s error in rejecting his argument in the first place. While our analysis is ultimately a bit more nuanced, in that we acknowledge that analysis under the residuary clause may be precluded by a finding that the facts actually fall under another provision, Kevin’s assertion that gross attorney negligence falls under the residuary clause is well-taken.
DEIDRE SUE JANSON,
Appellant,
v.
JEFFREY ALAN JANSON,
Appellee.
Opinion No. 20170541-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 164906327
Jamie Carpenter, Attorney for Appellant
Kara L. Barton and Ashley Wood, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Deidre Sue Janson appeals the district court’s order denying her motion to set aside a written stipulation (the Stipulation) entered in her divorce action against Jeffrey Alan Janson. We affirm.
BACKGROUND
¶2 The parties entered into the Stipulation following mediation on November 14, 2016, to resolve the issues in their divorce. As part of the Stipulation, Deidre[1] agreed to pay Jeffrey alimony of $2,500 per month for eighteen months and $1,500 per month for an additional eighteen months.
¶3 The Stipulation awarded the marital home to Jeffrey.
Deidre was awarded half of the equity in the home, less $45,000 that constituted Jeffrey’s inherited funds. The Stipulation also divided the equity in the parties’ vehicles, requiring Deidre to pay Jeffrey $13,178 from her share of the parties’ bank accounts to equalize the vehicle equity disparity.
¶4 The parties had a number of retirement funds and accounts. Regarding the retirement, the parties agreed as follows:
[Deidre] has the following retirement accounts: Utah Retirement in the amount of approximately $72,440; General Electric in the approximate amount of $100,435; Roth IRA in the approximate amount of $18,252; FDIC in the approximate amount of $16,719 and $17,431; and Utah Pension in the amount of $15,281.
[Jeffrey] has the following retirement accounts: Fidelity in the approximate amount of $22,012; Bernstein in the approximate amount of $18,305.
The above retirement accounts will be divided equally between the parties. In addition [Deidre] has a premarital IRA in the approximate amount of $17,682 which is her separate property.
[Jeffrey’s] Alliant Technical Systems Pension plan which will be divided pursuant to the Woodward formula.
The parties will share equally the cost of any qualified domestic relation order.
¶5 On January 12, 2017, Deidre moved to set aside the Stipulation on the ground that there was not a meeting of the minds regarding various provisions in the agreement. She asserted that she “did not receive [Jeffrey’s] financial disclosures until the morning of mediation and was not able to consult with her attorney prior to mediation.” She asserted that because her Utah pension was listed with its approximate value alongside the other retirement accounts, her understanding was that Jeffrey was to receive only half of the listed $15,281 partial lump sum value of that pension rather than half of the entire monthly payment amount as determined by a qualified domestic relations order (QDRO). According to Deidre, the total value of Jeffrey’s half of the pension if the monthly payment option were utilized would amount to approximately $80,000. Deidre claimed that had she understood that Jeffrey would be entitled to half of the entire Utah pension, she would not have agreed to provisions granting Jeffrey premarital equity in the home. She pointed to the lack of specific dates for the accounts to be divided and the impracticality of preparing a QDRO for every retirement account as support for her assertion that the Stipulation should be interpreted as granting Jeffrey only half of the stated partial lump sum value of her Utah pension account.[2]
¶6 Jeffrey opposed the motion to set aside the Stipulation, pointing out that his financial declaration was provided to Deidre well in advance of mediation and that she was represented by counsel at the mediation. He also explained the discrepancy between how the Stipulation described the division of his pension account and how it described the division of Deidre’s—his account had been partially accrued prior to the marriage, whereas Deidre’s had been accrued entirely during the period of the marriage. He asserted that Deidre was aware that an equal division of her pension could result in him receiving half of the monthly payments rather than half of the partial lump sum payout value because her own financial declaration included a summary of the various payout options. Jeffrey also asserted that only three QDROs, at maximum, were necessary to divide the retirement accounts.
¶7 In responding to Jeffrey’s memorandum in opposition to her motion, Deidre raised additional issues impacting the Stipulation’s alimony award—she indicated that after filing the motion to set aside, she was involuntarily terminated from her job without notice, that the loss of her job precluded her from continuing to pay alimony, and that Jeffrey had become eligible to draw on his social security and retirement accounts to support himself. She asserted that these changes in circumstances justified setting aside the Stipulation.
¶8 Following a hearing, the district court denied Deidre’s motion. The court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit. The court determined that the language in the Stipulation dividing the pension equally was clear as to how the retirement accounts would be treated and contained sufficient detail to enforce the Stipulation. The court stated that it was reasonable to anticipate that additional details would be filled in when the QDROs were prepared. The court also determined that issues related to Deidre’s alleged change in circumstances should be handled separately as a petition to modify.
¶9 Deidre now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Deidre asserts that the Stipulation is unenforceable because there was no meeting of the minds regarding various aspects of the Stipulation.[3]
Whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact, which we review for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.
LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d 867 (quotation simplified).
¶11 Deidre also asserts that the district court erred in declining to consider her substantial change in circumstances argument as a basis for setting aside the Stipulation and instead determining that a petition to modify was the necessary route for her to pursue this argument. Whether a district court erred in accepting and enforcing a proffered stipulation is reviewed for an abuse of discretion. See In re N.M., 2018 UT App 141, ¶ 17, 427 P.3d 1239.
ANALYSIS
The District Court Did Not Clearly Err in Rejecting Deidre’s Assertion That There Was No Meeting of the Minds.
¶12 “It is a basic principle of contract law there can be no contract without a meeting of the minds.” Granger v. Granger, 2016 UT App 117, ¶ 14, 374 P.3d 1043 (quotation simplified). “A binding contract exists where it can be shown that the parties had a meeting of the minds as to the integral features of the agreement and that the terms are sufficiently definite as to be capable of being enforced.” LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867 (quotation simplified). “Whether there is a meeting of the minds depends on whether the parties actually intended to contract, and the question of intent generally is one to be determined by the trier of fact.” Terry v. Bacon, 2011 UT App 432, ¶ 21, 269 P.3d 188 (quotation simplified).
¶13 “[I]n divorce cases, the ability of parties to contract is constrained to some extent by the equitable nature of the proceedings . . . .” Granger, 2016 UT App 117, ¶ 15. “Because retirement funds are prospectively marital property if acquired or contributed to during the marriage, the distribution of such marital funds must fit within the overarching principle of equity unless the parties have freely and knowingly agreed to a different result that has been appropriately sanctioned by the court.” Id. ¶ 16. Nevertheless, “it is not the court’s prerogative to step in and renegotiate the contract of the parties. Instead, courts should recognize and honor the right of persons to contract freely and to make real and genuine mistakes when the dealings are at arms’ length.” Id. ¶ 14 (quotation simplified).
A. Retirement Funds
1. The Court Did Not Err in Accepting Jeffrey’s Interpretation of the Stipulation.
¶14 At the evidentiary hearing, the district court considered both parties’ testimonies regarding their understanding of the Stipulation and their intent regarding the division of their retirement funds. Having considered this evidence, the district court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit and that the Stipulation was clear that the listed retirement accounts were to be divided equally between the parties. Deidre asserts that this conclusion was clearly erroneous because it is inconsistent with the principle that retirement funds that can be “presently valued” should be equally divided.
¶15 As a general matter, equitable division of a defined benefit plan is accomplished by the Woodward formula[4] and equitable division of a defined contribution plan is accomplished by dividing the value contributed during the marriage. Granger Granger, 2016 UT App 117, ¶ 23, 374 P.3d 1043. While Deidre’s pension fund had a “partial lump sum” payout option—which was listed as the “approximate value”[5] in the Stipulation—it also had a monthly payment option. Because pension funds are presumptively divided according to the Woodward formula, an interpretation of the Stipulation that requires dividing the entire fund rather than only the partial lump sum amount is more consistent with equity. It is also the most logical approach in light of Deidre’s own financial declaration, which acknowledged that her Utah pension had a monthly payment option.
¶16 Deidre also asserts that Jeffrey himself testified that he believed the “approximate” amount listed for Deidre’s pension, rather than the entire pension, would be divided equally. But the record does not support Deidre’s characterization of Jeffrey’s testimony. At the hearing, Jeffrey was asked, “So it was your understanding that [the] specific value you listed would be, at least with 401-Ks or whatnot, would be divided. You would get half of that value?” (Emphasis added.) Jeffrey responded, “It would be half the value as identified by the amounts listed in the stipulation.” Jeffrey was asked specifically about the division of the 401(k)s, not the pension. Thus, his answer to this question cannot be construed as a statement that he expected and agreed that the pension would be divided only according to the amount listed in the Stipulation.
¶17 Indeed, Jeffrey testified that based on the document Deidre produced in her financial declaration outlining the various options for the distribution of the Utah pension, he understood that Deidre’s pension could be taken either “as a partial lump sum” or as “monthly payments” and that he “would have a choice” either to take half of the monthly payments or to add half of the partial lump sum to his share of the distributions of the other IRA and 401(k) accounts. Deidre also testified that she knew that a monthly payment could be an option for payout of her pension. Thus, the court’s interpretation of the Stipulation is supported by the evidence and is not clearly erroneous.
2. The Court Did Not Err in Enforcing the Stipulation.
¶18 Deidre also asserts that the Stipulation should not be enforced because it was not equitable. She argues that the district court should have considered the Stipulation as a whole and recognized that she had given up other valuable assets in exchange for treating the pension as a lump sum rather than as a monthly benefit calculated by utilizing the Woodward formula. However, there is nothing on the face of the Stipulation to indicate that such an exchange was made. The Stipulation states that Jeffrey was granted an extra $45,000 of equity in the home because he had contributed inherited funds to the home, not in exchange for the retirement.
¶19 Even if the court had accepted Deidre’s argument, it is by no means clear that she gave up anything in exchange for the pension, let alone something of comparable value such that the court should have recognized the retirement division as inequitable. Presumably, Jeffrey would have contested Deidre’s assertion that the inheritance funds were comingled, and she has not established that she was equitably entitled to share in the portion of the equity gained by investing the inheritance funds. Further, her half of that portion of the equity was significantly smaller than the amount of the pension Jeffrey would be giving up by accepting half of the partial lump sum value rather than half of the monthly payments. Additionally, Deidre herself asserted only that her belief regarding the pension made her “a little more flexible” on the issue of the allegedly comingled inheritance, not that she bargained for an exchange of one for the other.
¶20 To require the district court to examine and evaluate the Stipulation to the degree recommended by Deidre would be to undermine the parties’ right to contract freely. While courts should ensure that the provisions of a divorce stipulation comply with “the overarching principle of equity,” Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043, they are also to “respect[] and give[] considerable weight” to the parties’ agreement, Maxwell v. Maxwell, 796 P.2d 403, 406 (Utah Ct. App. 1990). Thus, weighing every provision of a stipulation against every other to ensure that the parties have reached a perfectly fair agreement is beyond the scope of the court’s mandate.
¶21 Indeed, the court’s equity analysis generally focuses “not on the contract’s subject matter, but rather on whether the contract was fairly negotiated and does not result in an outcome so severely one sided that it prevents the district court from fulfilling its equitable obligations.” Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246. We see nothing in the record to suggest that the district court was presented with such a situation. Both parties were represented by counsel, and the terms of the Stipulation were not so one-sided as to give the court reason to believe that the parties’ agreement had violated the principles of equity. Thus, the court did not exceed its discretion in determining that the Stipulation’s division of the retirement funds was enforceable.
B. Deidre’s Arguments Regarding Alimony and Vehicles Were Not Preserved for Appeal.
¶22 On appeal, Deidre renews the arguments made in her motion to set aside that there was no meeting of the minds with respect to the Stipulation’s provisions regarding alimony and the division of equity in the vehicles. However, the district court made no ruling on these issues.[6]
¶23 “[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “[O]nce trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal.” Id. (emphasis added).
¶24 We agree with Jeffrey that Deidre’s reference to the alimony and vehicle issues in her motion to set aside was not sufficient to preserve them for appeal when she did not present evidence or argue these issues to the district court at the evidentiary hearing and the district court did not rule on them. “[T]he mere mention of an issue in the pleadings, when no supporting evidence or relevant legal authority is introduced at trial in support of the claim, is insufficient to raise an issue at trial and thus insufficient to preserve the issue for appeal.” LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 (Utah Ct. App. 1991). Further, a party may waive an issue by relinquishing or abandoning it before the district court, either expressly or impliedly. State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443.
¶25 “The fundamental purpose of the preservation rule is to ensure that the district court had a chance to rule on an issue before an appellate court will address it.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 42, 361 P.3d 63. Because the district court did not rule on the alimony and vehicle issues, and Deidre made no attempt to remedy that omission before raising the issues on appeal, her arguments regarding these issues are unpreserved, and we will not consider them for the first time on appeal. See Vandermeide v. Young, 2013 UT App 31, ¶¶ 8–9, 296 P.3d 787 (holding that a challenge to a district court’s failure to rule on an issue raised in the pleadings was not preserved for appeal, because the appellants did not object to the court’s findings or file a post-judgment motion requesting additional findings).
II. Deidre Will Have the Opportunity to Pursue Her Change of Circumstances Argument in the Context of a Petition to Modify.
¶26 Deidre also argues that the district court erred in declining to consider the change in her employment status as a basis for setting aside the Stipulation before a final order was entered. Although Deidre filed her motion to set aside prior to the entry of the final Decree of Divorce (the Decree), the court declined to consider whether the Stipulation should be modified based on a change of circumstances, stating, “[O]ur procedural rules contemplate that a petition to modify has to be made when the parties reached this state of the proceeding. The Parties reached a resolution in this case and new situations are handled differently.”
¶27 The district court has the discretion to reconsider a prior ruling any time before a final judgment is entered. See Utah R. Civ. P. 54(b); see also Hafen v. Scholes, 2014 UT App 208, ¶ 3, 335 P.3d 396 (per curiam); Durah v. Baksh, 2011 UT App 159, ¶ 5, 257 P.3d 458 (per curiam). However, to seek a modification of a divorce decree, a movant must show “a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself.” Gardner v. Gardner, 2012 UT App 374, ¶ 38, 294 P.3d 600 (emphasis added) (quotation simplified).
¶28 The change in Deidre’s employment status occurred after the Stipulation was signed but before the Decree was entered. Thus, Deidre asserts that the district court’s refusal to reconsider the alimony portion of the Stipulation as part of her motion to set aside was an abuse of discretion because it put her in a catch-22—the court would not let her seek a modification prior to the entry of the Decree, but she would be precluded from seeking one afterward because her alleged change in circumstances occurred before the entry of the Decree.
¶29 We agree with Deidre that the district court, contrary to its own assertion, had the discretion to reconsider whether to accept the parties’ Stipulation as to alimony prior to the entry of the Decree, since the alleged change in circumstances occurred prior to a final judgment being entered. This issue was relevant to the court’s consideration of whether the Stipulation complied with the “overarching principle of equity.” See Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043. The court may have determined that the Stipulation as to alimony was no longer equitable in light of the change in circumstances and that the parties would not have entered into the Stipulation as to alimony had they been aware that Deidre would lose her employment.
¶30 However, while considering Deidre’s alleged substantial change of circumstances at an earlier stage of the proceedings may have been desirable as a matter of judicial economy, Deidre has not been prejudiced by the district court’s refusal to do so. Deidre filed a Petition to Modify on January 9, 2018, which is currently pending in the district court. The district court gave Deidre leave to pursue her substantial change of circumstances argument subsequent to the entry of the Decree, and Jeffrey has conceded that she should be allowed to do so. These circumstances avoid the catch-22 scenario Deidre feared. Because Deidre has not actually been precluded from raising her substantial change of circumstances claim, any error on the part of the district court in declining to consider her motion to set aside the alimony portions of the Stipulation on that basis was harmless.
CONCLUSION
¶31 The district court’s interpretation of the Stipulation’s retirement provisions is supported by the evidence presented at the evidentiary hearing. Deidre’s arguments concerning other aspects of the Stipulation were not preserved, and we therefore do not consider them. Further, while the district court could have considered Deidre’s arguments concerning her alleged change in circumstances in the context of the motion to set the Stipulation aside, the court’s refusal to do so was not prejudicial. Deidre will be permitted to pursue her claim in the context of the petition to modify already filed with the district court. Accordingly, we affirm the district court’s denial of Deidre’s motion to set aside the Stipulation.
Utah Family Law, LC | divorceutah.com | 801-466-9277
———————————————————–
[1] Because the parties share the same last name, we refer to them by their first names to avoid confusion, meaning no disrespect by the apparent informality.
[2] Deidre also challenged other provisions of the Stipulation that she asserted were inartfully drafted. Specifically, she claimed that there was a mathematical error in the calculation of the vehicle equity and that a lack of language regarding the parties’ incomes and needs in the alimony provision had the potential to preclude a future modification. However, she did not present argument or evidence on these issues at the evidentiary hearing, and the district court ultimately made no ruling on them. See infra ¶¶ 22–25.
[3] Deidre also asserts that the district court erred in determining that the Stipulation was unambiguous. Although the court stated that it considered the Stipulation’s language to be “clear,” it did not make an explicit ruling regarding whether the Stipulation was ambiguous. In fact, the district court’s consideration of extrinsic evidence suggests that the court actually did consider the Stipulation to be ambiguous, since the purpose of considering extrinsic evidence is to clarify ambiguous terms in the contract. See Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 (Utah 1995) (explaining that if a court determines that a contract is ambiguous, the next step is to admit extrinsic evidence “to clarify the ambiguous terms”). We therefore review only the district court’s evaluation of the extrinsic evidence and its determination that Jeffrey’s interpretation of the Stipulation was more reasonable, that there was a meeting of the minds regarding how the retirement was to be divided, and that the
Stipulation was enforceable.
[4] The Woodward formula grants a spouse one-half of the “portion of the retirement benefits represented by the number of years of the marriage divided by the number of years of the [acquiring spouse’s] employment.” Woodward v. Woodward, 656 P.2d 431, 433–44 (Utah 1982).
[5] Incidentally, the fact that the parties listed only the “approximate” values of the various retirement funds also undermines Deidre’s assertion that the parties intended to effectuate the division based on the listed values rather than the actual values of the funds.
[6] Deidre asserts that the court’s ruling that “[i]n order to have a contract, the Court doesn’t need perfect clarity on every factual point” constituted a ruling on all the issues she raised. However, Deidre omits vital language from the court’s ruling. The court actually stated, “In order to have a contract, the Court doesn’t need perfect clarity on every factual point that might fill in a QDRO here.” (Emphasis added.) Thus, it is clear from the context that the court’s ruling contemplated only the issues Deidre raised with respect to the retirement, not the alimony and vehicle issues.
What kind of lawyer handles disputes regarding disbursement of pension for a divorced couple? When the amount being paid out to the spouse is more than the amount agreed to in the divorce?
What kind of lawyer handles disputes regarding disbursement of pension for a divorced couple? When the amount being paid out to the spouse is more than the amount agreed to in the divorce?: a divorce lawyer, working with a financial planner, is likely all that most people would ever need.
Utah Family Law, LC | divorceutah.com | 801-466-9277
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 This case involves not the benefit of the doubt, but some doubt as to the benefit. After separating in 1992, the court entered a decree of divorce based in part on Duane[1] and Kathleen’s stipulation. The decree awarded a portion of each party’s retirement benefits to the other party. The decree directed the parties to cooperate in obtaining qualified domestic relations orders (QDRO)[2] to effectuate the property distribution of the retirement accounts. Kathleen filed the QDRO related to her retirement account in 1995, but Duane waited until 2000 to file his corresponding QDRO. As it turned out, just before Duane filed, the Utah Retirement Systems’ rules regarding retirement benefits changed, providing Duane with the advantage of new distribution rules. In 2015, Kathleen filed a motion to amend her 1995 QDRO to reflect the updated rules. Duane objected, but the district court granted the motion. Duane then filed a motion to reconsider, which the court also denied. Duane appeals those rulings. We affirm.
BACKGROUND
¶2 When the parties divorced in November 1992, they both were employees of the State of Utah. Pursuant to the decree of divorce, each party was awarded a Woodward share of the other’s retirement benefits: 50% of the retirement benefits that accrued during their marriage. See Woodward v. Woodward, 656 P.2d 431, 433 (Utah 1982) (holding that pension benefits accrued during the marriage are marital property subject to equitable distribution). The decree directed the parties to cooperate in obtaining QDROs to effectuate the property distribution of the retirement accounts.
¶3 In March 1995, Kathleen filed her proposed qualified domestic relations order (1995 QDRO) for the court’s signature and then submitted the signed order to Utah Retirement Systems (URS). The 1995 QDRO ordered URS to divide Kathleen’s share of Duane’s retirement based upon the rules in existence at that time. Those rules left Kathleen’s share of Duane’s retirement in Duane’s shared-interest account. The 1995 QDRO also provided,
The [district court] retains jurisdiction to amend this Order so that it will constitute a domestic relations order under the plan even though all other matters incidental to this action or proceeding have been fully and finally adjudicated. If URS determines at any time that changes in the law, the administration of the plan, or any other circumstances make it impossible to calculate the portion of a distribution awarded to alternate payee by this Order and so notifies the parties, either or both parties shall immediately petition the Court for reformation of the Order.
¶4 Sometime in 2000,3 a URS rule revision occurred which, according to Kathleen, “changed the manner of distribution to more fully reflect Utah law on division of retirement property to what is common[ly] referred to as a separate interest.” Under these rules, Duane’s account would no longer be a shared-interest account, but instead would be divided into two separate accounts proportional to Kathleen’s marital interest. Alteration of the 1995 QDRO would ultimately change the potential payout to the parties, depending upon who predeceases whom. If Kathleen were to predecease Duane under these rules, Kathleen’s payout would no longer revert to Duane, essentially divesting him of that benefit.
¶5 In September 2000, Duane filed his own qualified domestic relations order (2000 QDRO). Because he filed after the rule change, Duane received the benefit of the new, separate account distribution rules. Duane’s 2000 QDRO had no effect on Kathleen’s 1995 QDRO, which was still subject to the old rules.
Neither party cites any specific URS rule changes, but both parties agree that a rule change did occur “in or about 2000.”
In December 2015, Kathleen filed a Motion for an Amended Qualified Domestic Relations Order (Motion to Amend) requesting alteration of the 1995 QDRO “on the ground that the rules for Utah Retirement Systems [had] changed since the entry of the [1995 QDRO].”
¶6 After lengthy objections from Duane, the district court conducted a telephone conference in September 2016 and thereafter granted Kathleen’s Motion to Amend, stating, “It seems like the orders were meant to divide each of the [parties’] retirements in the same way.” The court held that Kathleen should “be granted the same benefits on the method of division as Duane.” That same day, Duane filed a motion to reconsider, but the district court denied the motion. Duane appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 Duane appeals on three bases. First, he argues that the district court lacked jurisdiction to amend the 1995 QDRO. “Whether the district court has jurisdiction is a question of law that we review for correctness, giving no deference to the lower court.” State v. Norris, 2007 UT 6, ¶ 10, 152 P.3d 293.
¶8 Second, Duane contends that even if the district court had jurisdiction to amend the 1995 QDRO, Utah Code section 68-3-3, which governs the effect of retroactive code provisions, prevents the court from doing so. See Utah Code Ann. § 68-3-3 (LexisNexis 2016). “The [district] court’s interpretation of a statute is a question of law that we review for correctness.” Cox v. Cox, 2012 UT App 225, ¶ 10, 285 P.3d 791.
¶9 Third, Duane asserts that it was inequitable for the district court to allow amendment of the 1995 QDRO. A district court’s equitable orders are reviewed for abuse of discretion and should be “accorded substantial deference,” with the court being given “considerable latitude.” Kidd v. Kidd, 2014 UT App 26, ¶ 15, 321 P.3d 200 (cleaned up).
ANALYSIS
I. Jurisdiction
¶10 Duane contends that the district court “did not have the jurisdiction and/or the ability to amend” the 1995 QDRO because Kathleen failed to file a petition to modify, which, he alleges, is a requirement to retain jurisdiction. Duane’s argument fails for three reasons.
¶11 First, Kathleen did not seek modification of the decree and therefore was not required to file a petition to modify, which must be based on a change in circumstance. See Durfee v. Durfee, 796 P.2d 713, 716 (Utah Ct. App. 1990). While Duane is correct in asserting that succeeding on a petition to modify a divorce decree typically depends upon the moving party showing that a substantial material change of circumstances has occurred since the entry of the decree, Fish v. Fish, 2016 UT App 125, ¶ 17, 379 P.3d 882, that proposition has no bearing on this case. Here, Kathleen seeks not to modify the decree, but only to alter the 1995 QDRO—an order collateral to the decree. In reality, Kathleen’s motion sought to enforce the identical treatment of the parties’ retirement accounts as expressly provided for in the decree. Therefore, Duane’s contention that the district court lacked jurisdiction due to Kathleen’s failure to file a petition to modify is incorrect.
¶12 Second, jurisdiction regarding QDROs has been granted to district courts by statute. Utah Code section 30-3-5(3) governs the disposition of, among other things, property interests such as retirement accounts. The provision states,
The [district] court has continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.
Utah Code Ann. § 30-3-5(3) (LexisNexis Supp. 2017). Pursuant to the statute, the award of retirement funds—a property distribution made by the court, see Woodward v. Woodward, 656 P.2d 431, 433 (Utah 1982)—is properly subject to the court’s continuing jurisdiction, so long as the “subsequent changes or new orders” are “reasonable and necessary,” Utah Code Ann. § 30-3-5(3); see also A.S. v. R.S., 2017 UT 77, ¶¶ 2, 4, 416 P.3d 465 (maintaining that “the district court ha[s] continuing jurisdiction over . . . divorce proceedings” and “is able to make changes . . . to ensure the appropriate needs of the . . . parties are met”); Johnson v. Johnson, 2014 UT 21, ¶ 31, 330 P.3d 704 (stating that “[d]istrict courts are charged with making an equitable distribution of marital property, including pension benefits”); Murphy v. Moyle, 53 P. 1010, 1012 (Utah 1898) (“The court ha[s] the right to enforce the former decrees . . . .”); Osborne v. Osborne, 2011 UT App 150, ¶ 4, 260 P.3d 202 (holding that a district court’s enforcement of a decree of divorce, by way of entering a QDRO, was correct); Bayles v. Bayles, 1999 UT App 128, ¶ 14, 981 P.2d 403 (explaining that “a court has continuing jurisdiction over its decree in a divorce proceeding for the division of property” (cleaned up)). Therefore, having determined that it was reasonable and necessary to effectuate the terms of the decree, the court had jurisdiction to amend the 1995 QDRO.
¶13 Third, Duane fails to recognize that divorce courts are well established as courts of equity, see Dority v. Dority, 645 P.2d 56, 58 (Utah 1982), that retain jurisdiction over the parties and subject matter for the purposes equity may demand, see Salt Lake City v. Ohms, 881 P.2d 844, 849 (Utah 1994) (“Core judicial powers include the authority to hear and determine justiciable controversies as well as the authority to enforce any valid judgment, decree or order.” (cleaned up)); Consolidated Wagon & Machine Co. v. Kay, 21 P.2d 836, 840 (Utah 1933) (stating that “when a court of equity has jurisdiction over a cause for any purpose, it may retain the cause for all purposes, and proceed to a final determination of all the matters at issue.”). The court in this instance was exercising its equitable jurisdiction.
¶14 Utah courts have long held that district courts retain jurisdiction to remedy scenarios exactly like the one presented in this case. See Ohms, 881 P.2d at 849; see also Osborne, 2011 UT App 150, ¶ 4. Here, Kathleen sought the equitable powers of the district court to allow application of the rule change to both parties, and the court properly retained jurisdiction over the parties and subject matter for the purpose of effectuating a fair and equitable division of retirement. To hold otherwise would allow unequal treatment of the parties, which is inconsistent with the decree’s award of 50% of each party’s retirement benefits to the other party.
¶15 For these reasons, Duane’s contention that the district court lacked jurisdiction to amend the 1995 QDRO fails.[3]
Retroactive Rule Changes
¶16 Duane next contends that amending the 1995 QDRO amounts to a retroactive application of law, in violation of Utah Code section 68-3-3, which states, “A provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.” Utah Code Ann. § 68-3-3 (LexisNexis 2016). However, amendment of the 1995 QDRO has no effect on the application of the law, let alone a retroactive application.
¶17 District courts have the power to enforce a decree of divorce by entering collateral orders—including orders effectuating the allocation of retirement benefits. See Osborne v. Osborne, 2011 UT App 150, ¶ 4, 260 P.3d 202 (determining that the district court’s order granting the distribution of retirement funds “merely enforced the [decree of divorce] under Utah Law,” and that “[t]he district court therefore correctly enforced the [decree of divorce] by entering the . . . [o]rder”). In Osborne, a respondent challenged the court’s order awarding his former spouse a portion of his retirement, pursuant to a QDRO. Id. ¶1. There, the court held that the QDRO at issue “merely effectuated the allocation of . . . benefits to [ex-wife] by instructing the Railroad Retirement Board to disburse the funds as the [decree of divorce] allocated them.” Id. ¶4.
¶18 Similarly, in this case, amendment of the 1995 QDRO merely effectuates the allocation of benefits to Kathleen by instructing URS to disburse the funds as the decree allocated in 1992. The decree was established, with regard to each party’s share of retirement, in 1992, pursuant to the Woodward formula. See supra ¶2. The proposed amendment does not attempt to change or retroactively apply new law because it does not involve any statutes at all. Duane does not point to a single statute being retroactively applied. The amendment to the 1995 QDRO simply enforces the already-existing decree—which treats the parties identically—and asks the court to identically apply the change in administrative rules to the retirement accounts as well. Kathleen did not seek any alteration of retirement benefits that may have accrued between the entry of the original decree and present-day; she instead requested that moving forward, the court grant her QDRO the same status as Duane’s QDRO. Therefore, Duane’s argument that the district court retroactively applied a change to the Utah Code fails.
III. Inequitable Amendment
¶19 Finally, Duane argues that it was inequitable for the court to amend the 1995 QDRO because Duane “stands the chance of losing more.” Under the new rules, if the amended order stands and Kathleen predeceases Duane, he would suffer a diminishment in benefits. But Kathleen asserts, “Equity demands that both parties be under the same application of the rules for division of their respective retirement accounts.” We do not see the question as whether the equities of the parties’ positions should be re-evaluated. Instead, we view this collateral order through the lens of enforcement, specifically enforcing the equitable distribution of property established by the court many years ago.
¶20 In a stipulated divorce, the point at which the court weighs the equities is when it accepts the parties’ stipulation and uses it as the basis for the decree. See Newmeyer v. Newmeyer, 745 P.2d 1276, 1278 (Utah 1987) (stating that in determining marital property distribution, “[t]he overriding consideration is that the ultimate division be equitable—that property be fairly divided between the parties.”); Maxwell v. Maxwell, 796 P.2d 403, 406 (Utah Ct. App. 1990) (“While a property settlement agreement is not binding upon a [district] court in a divorce action, such agreement should be respected and given considerable weight in the [district] court’s determination of an equitable division of property.”).
¶21 Where there is no petition for modification of the decree itself, the court does not bear the responsibility of re-weighing the equities for the parties after they have assented to the decree; the court’s responsibility is to enforce the provisions of the decree as they exist. See Bayles v. Bayles, 1999 UT App 128, ¶ 15, 981 P.2d 403 (“Stipulations entered into in contemplation of a divorce are conclusive and binding on the parties unless, upon timely notice and for good cause shown, relief is granted therefrom.” (cleaned up)). Here, by allowing amendment of the 1995 QDRO—a collateral order—to reflect the current rules and apply them identically to the parties, the decree remained unchanged. Accordingly, there is no need for the court to weigh the equities once more. Therefore, the district court properly enforced the decree by allowing the amendment.
CONCLUSION
¶22 The district court properly exercised jurisdiction over the parties and the 1995 QDRO. The district court did not retroactively apply any part of the Utah Code to the 2015 QDRO. And finally, the district court did not need to reassess the equity arguments of the parties in entering a collateral order enforcing the original decree.
¶23 Affirmed.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] 1. “As is our practice in cases where [multiple] parties share a last name, we refer to the parties by their first name[s] with no disrespect intended by the apparent informality.” Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
[2] 2. A qualified domestic relations order instructs “the trustee of a retirement plan and specifies how distributions should be made, to whom, and when.” Bailey v. Bailey, 745 P.2d 830, 832 (Utah Ct. App. 1987).
[3] 4. The parties agree that “neither Rule 59(e) nor 60(b) [of the Utah Rules of Civil Procedure] applies [regarding] the amendment of . . . [Kathleen’s] QDRO.”