      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00118-CV



                                     Eric Jonjak, Appellant

                                                 v.

                               Kathye Marlene Griffith, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-FM-15-003489, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Eric Jonjak appeals from a divorce decree dissolving his marriage to

Kathye Marlene Griffith and dividing their marital property. Jonjak asserts the decree divides

Jonjak’s retirement account contrary to the terms of the parties’ mediated settlement agreement

(MSA). Jonjak also challenges a qualified domestic relations order (QDRO) implementing that

division. We will modify the decree and the QDRO and affirm as modified.


                                        BACKGROUND

               Jonjak filed for divorce from Griffith in 2015 on the grounds of insupportability. On

June 1, 2017, the parties signed an MSA dividing most of their marital property. In relevant part,

the MSA states Griffith “will receive $962,000 from the Bog Farm Profit Sharing 401k, which is

53% of the value of the account as represented by [Jonjak] on the day of the mediation via QDRO

prepared by [Jonjak].” The following day, the parties appeared before a district court and announced
the agreement. The district court pronounced the divorce and instructed Jonjak to prepare a decree

consistent with the MSA.

                Approximately six months later, both parties filed their own motions to enter

judgment, each accompanied by a proposed divorce decree and QDRO. Jonjak’s proposed decree

awards Griffith $962,000 from his 401k account via QDRO. In contrast, Griffith’s proposed decree

awards her 53% of Jonjak’s 401k account as of June 1, 2017, “together with any interest, dividends,

gains, or losses on that amount arising since that date” to be “more particularly defined” in a QDRO.

                The district court held a hearing on the competing motions where the parties contested

whether the MSA divided the 401k on the date of the mediation or when the court signed a QDRO

implementing the division. See Quijano v. Quijano, 347 S.W.3d 345, 353–54 (Tex. App.—Houston

[14th Dist.] 2011, no pet.) (“The purpose of a QDRO is to create or recognize an alternate payee’s

right, or to assign an alternate payee the right, to receive all or a portion of the benefits payable to

a participant under a retirement plan.”). The district court ruled that Griffith “gets $962,000 as of

June 1st, 2017, which is the date of the—the date of the mediation.” The district court then signed

Griffith’s proposed decree and QDRO after striking certain language. The decree awards Griffith:


                A portion of Eric Jonjak’s retirement benefits in Bog Farm Profit
                Sharing 401k Acct. No. 803508-00000 arising out of ERIC
                JONJAK’S employment with Bog Farm as of June 1, 2017, that
                portion being 53 percent or $962,000, whichever is greater, together
                with any interest, dividends, gains, or losses on that amount arising
                since that date and more particularly defined in a set [sic] out in the
                Qualified Domestic Relations Order signed by the Court in this case.




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                 Jonjak filed a timely motion for new trial arguing the district court erred by making

the division effective June 1, 2017. He further argued that awarding Griffith “interest, dividends,

gains, or losses” on the $962,000 was inconsistent with the MSA, which awarded the specific sum

only. The district court issued findings and conclusions explaining why the parties intended to

divide the 401k on June 1, 2017, but did not address the award of “interest, dividends, gains, or

losses.” Jonjak’s motion for new trial was overruled by operation of law. This appeal followed.

                 The plan administrator of the 401k account subsequently determined the order did

not meet the statutory requirements of a QDRO.1 The district court then signed a modified QDRO

with substantially the same relevant language as the first.2 Paragraph 2 provides that Griffith:


                 shall be entitled to an interest in the [Bog Farm Profit-Sharing 401k]
                 Plan equal to $962,000 of [Jonjak’s] Vested Account Balance under
                 the Plan as of the date of transfer, which is June 1, 2017. [Griffith’s]
                 interest in the Plan shall be adjusted for investment earnings and
                 losses allocable thereto in accordance with the terms of the Plan
                 thereafter. [Griffith] shall be permitted to make any elections
                 regarding the form of payment which would be available to a
                 Participant receiving the same payment. Once the benefits assigned
                 to [Griffith] hereunder have been disbursed, [Griffith] shall have no
                 further interest of any kind whatsoever in the remaining balance of
                 [Jonjak’s] account(s) under the Plan.




       1
           The administrator’s exact reasons for rejecting the first QDRO do not appear in the record.
       2
          If a plan administrator rejects an order for not meeting statutory requirements, “the court
retains continuing, exclusive jurisdiction over the parties and their property to the extent necessary
to render a qualified domestic relations order.” Tex. Fam. Code § 9.104.

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We treat Jonjak’s appeal as challenging this QDRO. See Tex. R. App. P. 27.3 (providing that when

trial court replaces or modifies order that has been appealed, “the appellate court must treat the

appeal as from the subsequent order or judgment”).


                                            DISCUSSION

                  Jonjak argues first that the decree conflicts with the MSA by awarding Griffith

“interest, dividends, gains, or losses” on the $962,000 rather than the flat sum. In his remaining

issues, Jonjak asserts the district court erred by concluding the MSA divides the 401k effective

June 1, 2017. Griffith responds that Jonjak failed to preserve his first issue and that neither issue

is meritorious.


Preservation of Error

                  We first address whether Jonjak preserved his argument that the divorce decree varies

from the terms of the MSA. To preserve an issue for appellate review, a party must make a timely

request, motion, or objection stating the grounds for the ruling “with sufficient specificity to make

the trial court aware of the complaint, unless the specific grounds were apparent from the context.”

Tex. R. App. P. 33.1(a). The trial court must rule or the party urging the objection must object

to its failure to rule. Id. The preservation-of-error requirement “conserves judicial resources

by giving trial courts an opportunity to correct an error before an appeal proceeds.” In re B.L.D.,

113 S.W.3d 340, 350 (Tex. 2003). Griffith argues Jonjak never gave the district court this

opportunity because he never challenged whether awarding “interest, dividends, gains, or losses” was

proper. Jonjak did not explicitly make this argument in the hearing but submitted a proposed decree



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that awarded Griffith the flat sum of $962,000 and argued she was entitled to only that sum. In his

motion for new trial, Jonjak argued more explicitly that this language was improper because the

MSA “did not mention what would happen to gains and losses in the account for payment from the

401k.” We conclude Jonjak raised this issue clearly enough to preserve error. See Arkoma Basin

Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008) (“[T]he cardinal rule for

preserving error is that an objection must be clear enough to give the trial court an opportunity to

correct it.”); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018)

(warning appellate courts against imposing “too strict a view of error preservation”).


The Decree Varies from the MSA

               Having concluded Jonjak preserved error, we turn to whether the divorce decree

varies from the MSA. A mediated settlement agreement in a divorce case “meeting certain statutory

formalities[] is binding on the parties and requires the rendition of a divorce decree that adopts the

parties’ agreement.” Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012) (citing Tex. Fam. Code

§ 6.602). Trial courts have no discretion to modify the MSA’s terms but must render judgment “in

strict or literal compliance with that agreement.” R.H. v. Smith, 339 S.W.3d 756, 765 (Tex.

App.—Dallas 2011, no pet.). The MSA here meets the statutory requirements, so we look to see

whether the divorce decree divides the 401k differently than the parties agreed in the MSA.

               “Because an MSA is a contract, we look to general contract-interpretation principles

to determine its meaning.” Loya v. Loya, 526 S.W.3d 448, 451 (Tex. 2017). When construing a

contract we must “ascertain the true intentions of the parties as expressed in the writing itself.” Id.

(quoting Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex.

                                                  5
2011)). We do not focus on isolated provisions but “examine and consider the entire writing in an

effort to harmonize and give effect to all the provisions of the contract.” Apache Deepwater, LLC

v. McDaniel Partners, Ltd., 485 S.W.3d 900, 906 (Tex. 2016) (quoting J.M. Davidson, Inc.

v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)). The construction of an unambiguous contact is a

question of law reviewed de novo. URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763 (Tex. 2018).

                The MSA provides that Griffith “will receive $962,000 from the Bog Farm Profit

Sharing 401k, which is 53% of the value of the account as represented by [Jonjak] on the day of the

mediation via QDRO prepared by [Jonjak].” The agreement does not address gains or losses after

that date even though the parties were aware that time would pass before the district court signed the

decree. For example, Jonjak agreed to transfer the utilities in the marital residence to Griffith within

thirty days of the mediation and agreed to pay her $20,000 “on the date the Final Decree is entered.”

The MSA plainly states Griffith is entitled to receive $962,000 by QDRO. We may not rewrite or

add to their agreement to apply the account’s gains or losses to Griffith’s award. See Fischer

v. CTMI, L.L.C., 479 S.W.3d 231, 239 (Tex. 2016) (“[I]t is fundamental that ‘we may neither rewrite

the parties’ contract nor add to its language.’” (quoting American Mfrs. Mut. Ins. Co. v. Schaefer,

124 S.W.3d 154, 162 (Tex. 2003)). The divorce decree divides the 401k differently than the MSA.

                Griffith argues the error is harmless because even if we modify the decree to award

her the flat sum of $962,000, the QDRO could properly “clarify” that the sum fluctuates with the

value of the account. A court that renders a divorce decree has the power to “enter a ‘clarifying

order’ to ‘enforce compliance with an insufficiently specific decree,’ but ‘it may not amend, modify,

alter, or change the division of property made or approved in the decree of divorce.’” Dalton



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v. Dalton, 551 S.W.3d 126, 140 (Tex. 2018) (quoting Shanks v. Treadway, 110 S.W.3d 444, 449

(Tex. 2003)). Griffith argues this Court held in Vaughn v. Vaughn that a QDRO could appropriately

make the amount of a party’s share of a retirement account fluctuate with the value of the account.

See No. 03-04-00030-CV, 2005 WL 1115965 (Tex. App.—Austin May 12, 2005, no pet.) (mem.

op.). The decree in Vaughn awarded one spouse a specific percentage of two retirement accounts,

the details to be “more particularly defined” in a QDRO. Id. at *1–2. The trial court then signed a

QDRO awarding the spouse a certain number of the units in each plan “including earnings thereon

and less losses thereon.” Id. This Court held the QDRO appropriately clarified how the spouse

would receive her share. Id. at *7. Here, by contrast, the parties have already agreed how Griffith

will receive her share and what her share will be: $962,000 “via QDRO.” This language leaves

nothing for a QDRO to clarify regarding how Griffith will receive her share. Thus, even if the decree

tracked the language of the MSA, the QDRO could not properly provide that Griffith takes her share

“together with any interest, dividends, gains, or losses on that amount.” We sustain Jonjak’s first

two issues.

               In his remaining issues, Jonjak challenges the district court’s conclusion that the

parties intended to divide the 401k on the date of the mediation. However, Jonjak makes this

argument only to the extent the court impliedly concluded Griffith was entitled to $962,000 plus

“any interest, dividends, gains, or losses” on the date of the mediation. We need not address this

argument because, under our holding above, Griffith receives $962,000 from Jonjak’s 401k

regardless of when the division occurs. We therefore do not decide Jonjak’s remaining issues. See




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Tex. R. App. P. 47.1 (requiring appellate courts to hand down opinion “that addresses every issue

raised and necessary to final disposition of the appeal”).


                                         CONCLUSION

               Jonjak asks us to modify the decree and QDRO to comply with the MSA. See id.

R. 43.2(b) (allowing appellate court to modify trial court’s judgment and affirm as modified). We

modify the divorce decree so that paragraph R-5 reads as follows:


               A portion of Eric Jonjak’s retirement benefits in Bog Farm Profit
               Sharing 401k Acct. No. 803508-00000 arising out of ERIC
               JONJAK’S employment with Bog Farm as of June 1, 2017, that
               portion being 53 percent or $962,000, whichever is greater, together
               with any interest, dividends, gains, or losses on that amount arising
               since that date and more particularly defined in a set out in the
               Qualified Domestic Relations Order signed by the Court in this case.


We modify paragraph 2 of the QDRO to state Griffith:


               shall be entitled to an interest in the [Bog Farm Profit-Sharing 401k]
               Plan equal to $962,000 of [Jonjak’s] Vested Account Balance under
               the Plan as of the date of transfer, which is June 1, 2017. [Griffith’s]
               interest in the Plan shall be adjusted for investment earnings and
               losses allocable thereto in accordance with the terms of the Plan
               thereafter. [Griffith] shall be permitted to make any elections
               regarding the form of payment which would be available to a
               Participant receiving the same payment. Once the benefits assigned
               to [Griffith] hereunder have been disbursed, [Griffith] shall have no
               further interest of any kind whatsoever in the remaining balance of
               [Jonjak’s] account(s) under the Plan.


We affirm the divorce decree and QDRO as modified.




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                                            _________________________________________
                                            Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith

Modified and, as Modified, Affirmed

Filed: April 12, 2019




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