                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-0601

                                 Leon Asle Baxter, petitioner,
                                        Respondent,

                                              vs.

                                      Debra Kay Baxter,
                                         Appellant.

                                    Filed March 28, 2016
                                          Affirmed
                                         Kirk, Judge

                                Ramsey County District Court
                                 File No. 62-F4-01-000674

Elizabeth A. Schading, Beverly K. Dodge, Barna, Guzy & Steffen, Ltd., Minneapolis,
Minnesota (for respondent)

Linda S.S. de Beer, Jennifer L. Ibanez, de Beer & Associates, P.A., Lake Elmo, Minnesota
(for appellant)

         Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Kirk,

Judge.

                           UNPUBLISHED OPINION

KIRK, Judge

         Appellant-wife challenges the district court’s denial of her motion to amend an order

dividing her pension benefits following the dissolution of her marriage to respondent-
husband. Because the order effectuates the intent of the parties, as expressed in their

stipulated judgment and decree, we affirm.

                                         FACTS

      Appellant-wife Debra Kay Baxter and respondent-husband Leon Asle Baxter were

married from June 1981 until April 2002, when the marriage was dissolved pursuant to a

marital-termination agreement. The judgment and decree included a provision addressing

distribution of wife’s benefits under the United States Civil Service Retirement System

(CSRS), which she earned during her employment by the United States Postal Service from

October 1980 until her retirement in January 2013.

      With respect to retirement benefits, the judgment and decree provided:

             [Husband] is awarded 50% of [wife]’s retirement and pension
             fund through her employment at United States Postal Service,
             as they exist as of October 25, 2001, which was the date of the
             original pre-hearing conference and the date of valuation set by
             Minn. Stat. § 518.58, subd. 1. These accounts shall be awarded
             and distributed pursuant to a Qualified Domestic Relations
             Order (QDRO), which shall be set forth in a separate
             document. . . . The [c]ourt shall retain jurisdiction to carry out
             and effectuate the assignment of said retirement benefits. The
             responsibility of preparing said QDRO shall be solely that of
             [husband].

                     It does not appear that [husband] has any vested pension
             or retirement accounts with cash value, however, if he does
             have any vested pension or retirement accounts with cash value
             as of October 25, 2001, [wife] shall be entitled to an award of
             50% of the cash value of those plans as of October 25, 2001.

(Emphasis added.)




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       In September 2003, the district court signed a domestic relations order (DRO1)

drafted by husband’s attorney and approved by wife’s attorney. In November 2014, wife

moved to amend the DRO by reducing husband’s monthly benefit payments to a fixed

amount based upon an estimation of the monthly payment wife had earned as of October

25, 2001. Wife argued that the current DRO’s division of benefit payments did not follow

the language of the judgment and decree. The district court denied wife’s motion. Wife

appeals.

                                     DECISION

I.     The district court did not err in concluding that the DRO accurately effectuates
       the parties’ intent to divide the monetary value of wife’s pension at the time of
       payout.

       “The valuation and division of pension rights is generally a matter for the [district]

court’s discretion.” DuBois v. DuBois, 335 N.W.2d 503, 505 (Minn. 1983). However, the

interpretation of stipulations in a dissolution judgment is a question of law subject to de

novo review. Ertl v. Ertl, 871 N.W.2d 410, 414 (Minn. App. 2015). Stipulated judgments

in dissolution cases are “accorded the sanctity of binding contracts,” Shirk v. Shirk, 561

N.W.2d 519, 521 (Minn. 1997), and we therefore construe a stipulation using the ordinary



1
  The order was captioned “Domestic Relations Court Order.” For ease of reference, it is
referred to as the DRO. Courts may review a plan administrator’s determination that a
proposed qualified domestic relations order (QDRO) is “qualified” for purposes of the
Employee Retirement Security Act of 1974 (ERISA). See Langston v. Wilson McShane
Corp., 776 N.W.2d 684, 693 (Minn. 2009); 29 U.S.C. § 1056(d)(3)(B)(i) (2012 & Supp.
2014) (defining QDRO). However, CSRS is exempt from ERISA because it is a
“governmental plan.” See 29 U.S.C. §§ 1003(b)(1), 1051 (2012) (exempting a
“governmental plan” from ERISA); 29 U.S.C. § 1002(32) (2012) (defining “governmental
plan”).

                                             3
rules of contract interpretation. See Ertl, 871 N.W.2d at 415 (considering a stipulated

QDRO to be part of the stipulated judgment).

       “We review the language of a contract to determine the intent of the parties.” Caldas

v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 832 (Minn. 2012). When the

language of a contract is clear and unambiguous, “its language must be given its plain and

ordinary meaning.” 301 Clifton Place L.L.C. v. 301 Clifton Place Condo. Ass’n, 783

N.W.2d 551, 564 (Minn. App. 2010). “[A] dissolution provision is unambiguous if its

meaning can be determined without any guide other than knowledge of the facts on which

the language depends for meaning.” Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn.

App. 1985) (alteration in original) (quotation omitted). A writing is ambiguous if it is

reasonably subject to more than one interpretation. Halverson v. Halverson, 381 N.W.2d

69, 71 (Minn. App. 1986).

       When a judgment and decree is entered, it is final, subject to the right of appeal,

unless a party establishes in a timely motion a basis for reopening the judgment. Minn.

Stat. § 518.145, subds. 1, 2 (2014). Such bases include newly discovered evidence, fraud,

mistake, or excusable neglect. Id., subd. 2. Still, the district court may, in its discretion,

issue an order that implements or enforces specific provisions of the judgment and decree,

so long as the order does not alter the terms of the original judgment and decree or affect

the parties’ substantive rights. Erickson v. Erickson, 452 N.W.2d 253, 255-56 (Minn. App.

1990); see Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991) (observing that the

district court has the power to clarify and construe the judgment and decree so long as the

parties’ substantive rights are unchanged); Fastner v. Fastner, 427 N.W.2d 691, 698


                                              4
(Minn. App. 1988) (recognizing that the district court has the discretion to enter a QDRO

to implement division of pension right).

       Under the terms of the DRO, the “marital portion” of the CSRS benefits includes

“benefits from all employment and service between” the date of the parties’ marriage and

October 25, 2001, the date of the valuation. The DRO states that husband “is entitle[d] to

a pro[ ]rata share of [wife]’s monthly self-only annuity based on service between [those

dates] under CSRS.” Under federal regulations, the “pro rata share” is defined as follows:

              [O]ne-half of the fraction whose numerator is the number of
              months of Federal civilian and military service that the
              employee performed during the marriage and whose
              denominator is the total number of months of Federal civilian
              and military service performed by the employee through the
              day before the effective date of phased retirement or separation
              for retirement, as applicable to the annuity calculation.

5 C.F.R. § 838.621(a) (2014).

       In support of her motion to amend the DRO, wife submitted actuarial calculations

of her “accrued monthly benefit” on October 25, 2001, reduced by 25% to account for

social security benefits that she would have accrued had she not been earning retirement

benefits through CSRS.      The actuary calculated husband’s proposed fixed monthly

payment by multiplying this “accrued monthly benefit” “by 50% times 20.25 years of

marital service divided by 20.9167 total years of service at October 25, 2001.” The actuary

did not explain how she calculated wife’s “accrued monthly benefit,” nor whether she

included any adjustments, such as for the cost of living.

       Retirement benefits are usually divided using one of two methods. DuBois, 335

N.W.2d at 505. Under the “present cash value” method, the value of the pension for


                                             5
property-division purposes is set at its “present value,” which discounts an award to be

received in the future to that amount which, if presently received, could be invested in order

to yield the future sum. Johnson v. Johnson, 627 N.W.2d 359, 362 (Minn. App. 2001),

review denied (Minn. Aug. 15, 2001). In other words, the “present value” is the amount

that “a person would take now in return for giving up the right to receive an unknown

number of monthly checks in the future.” DuBois, 335 N.W.2d at 506. Under this method,

the pension is awarded to the employee spouse at its “present value” and the non-employee

spouse is awarded an offsetting amount of non-pension property. Johnson, 627 N.W.2d at

362.

       Under the “reserved jurisdiction” method, the district court reserves jurisdiction

over the division of the pension until the employee’s retirement and divides the actual

monetary benefit at that time. DuBois, 335 N.W.2d at 505. This method requires a

“determination of a fixed percentage for the non-employee spouse of any future payments

the employee receives under the plan.” Taylor v. Taylor, 329 N.W.2d 795, 799 (Minn.

1983). It “should be used where present value determinations are unacceptably speculative

or there are not enough assets to equitably require that benefits due in the future be split

presently.” Id. Here, neither party disputes that the judgment and decree used the “reserved

jurisdiction” method in dividing wife’s pension benefits.

       In this case, the DRO applies the formula laid out in Janssen v. Janssen, 331 N.W.2d

752 (Minn. 1983), which has been favorably cited as an equitable way to divide a pension

that contains marital and non-marital property. See McGowan v. McGowan, 532 N.W.2d

258, 260-61 (Minn. App. 1995); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985);


                                              6
Kottke v. Kottke, 353 N.W.2d 633, 637 (Minn. App. 1984), review denied (Minn. Dec. 20,

1984). This formula is often used when there are “contingencies on the actual payment of

pension benefits.” Janssen, 331 N.W.2d at 756. It provides:

              The marital interest in each payment will be a fraction of that
              payment, the numerator of the fraction being the number of
              years (or months) of marriage during which benefits were
              being accumulated, the denominator being the total number of
              years (or months) during which benefits were accumulated
              prior to when paid.

Id. Wife does not dispute the district court’s finding that she was not eligible to receive

retirement-benefit distributions at the time of the divorce. See 5 CFR § 838.211(a)(3)

(2014); Minn. Stat. § 518.58, subd. 4(5) (2014).

       The judgment and decree’s award to husband of “50% of [wife]’s retirement and

pension fund . . . as they exist as of October 25, 2001,” is similar to language in Mikoda v.

Mikoda, 413 N.W.2d 238 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987). In

that case, the husband asserted that the dissolution court’s award of “20% of all the right,

title and interest in the pension plans, profit sharing plans . . . which [the husband] has with

his employer” clearly indicated an intent to award the wife 20% of his vested interest as it

existed at the time of dissolution, and not a share in the increase in his pension interest

occurring after the dissolution. Mikoda, 413 N.W.2d at 242 (emphasis in original). We

agreed with the district court’s conclusion that use of the present tense showed an intent

for the wife to receive 20% of the benefits accrued at the time of dissolution, and not of

their value at that time. Id. The Mikoda court noted that the “record contains no valuation

or proposed valuation of the pension benefit contemporaneous with the dissolution decree.”



                                               7
Id.; see Faus v. Faus, 319 N.W.2d 408, 413 (Minn. 1982) (affirming an award to wife of

50% of husband’s retirement units existing at time of dissolution, although the value of

pension per unit increased with each of husband’s subsequent pay increases).

       As in Mikoda, the record in this case contains no valuation of wife’s pension at the

time of the judgment and decree. Even now, the record includes only a conclusory

statement about husband’s portion of the monthly pension payment based upon the

pension’s value on October 25, 2001; it does not name the value of the pension at that time

or describe the method of calculating husband’s portion. Further, the fact that the judgment

and decree explicitly provides for division of the “cash value” of any pension or retirement

account that husband may have strongly indicates that the parties intended a different

method of division for wife’s retirement and pension fund. We conclude that, by the clear

terms of the judgment and decree, the DRO properly divides the pension’s monetary value

at the time of the payments. Therefore, the district court did not err in denying wife’s

request to modify the DRO to divide the estimated monetary value on October 25, 2001.

See Erickson, 452 N.W.2d at 255-56.

II.    The district court did not err in denying wife’s request to reduce husband’s
       payments by the portion that replaces social security benefits.

       Wife argues that the portion of her pension payment to be divided with husband

should not include the amount intended to replace social security benefits that she would

have received if she were not covered by the CSRS. Nothing in the judgment and decree

indicates that this part of her payment is excluded from her “retirement and pension fund

through her employment at United States Postal Service.” To the contrary, in notifying



                                             8
wife of her benefits, the Office of Personnel Management did not differentiate between

benefits replacing social security and other benefits. By the clear terms of the judgment

and decree, the DRO should not reduce husband’s payments by the amount attributable to

social security replacement. Ertl, 871 N.W.2d at 414. Therefore, the district court did not

err in denying wife’s request to amend the DRO to do so. See Erickson, 452 N.W.2d at

255-56.

III.   Any issues regarding additional terms in the DRO are waived.

       Wife asserts that the district court erred by retaining a DRO that “overreach[es] well

beyond” the terms of the judgment and decree by including provisions such as a former-

spouse survivor annuity and for division of any disability payments. She did not request

relief from these terms at the district court. Because these issues were not raised below,

they are not properly before this court on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582

(Minn. 1988).

       Affirmed.




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