                                                                              FILED
                                                                         May 19 2020, 5:53 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Cynthia A. Marcus                                         Stephenie K. Gookins
      Marcus Law Firm, LLC                                      Cate, Terry & Gookins LLC
      Carmel, Indiana                                           Carmel, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In Re the Marriage of:                                    May 19, 2020

      Rick Story,                                               Court of Appeals Case No.
                                                                19A-DC-2385
      Appellant-Petitioner,
                                                                Appeal from the Hamilton
              v.                                                Superior Court
                                                                The Honorable Andrew R. Bloch,
      Allyson Story,                                            Magistrate
                                                                The Honorable Jeffrey C. Eggers,
      Appellee-Respondent.
                                                                Magistrate
                                                                Trial Court Cause No.
                                                                29D02-1706-DC-5546



      Najam, Judge.


                                        Statement of the Case
[1]   Rick Story (“Husband”) and Allyson Story (“Wife”) entered into a mediated

      settlement agreement, which the dissolution court adopted and incorporated

      into the parties’ final dissolution decree. When Wife subsequently asked


      Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020                            Page 1 of 22
      Husband to sign an addendum to the settlement agreement and Husband

      refused, Wife requested that the dissolution court intervene to resolve the

      dispute. After a hearing, and after the court had issued an order on Wife’s

      motion, Husband filed a motion to clarify the order. Husband now appeals the

      dissolution court’s order on his motion to clarify. Husband presents two issues

      for our review:


              1.       Whether the dissolution court erred when it found that
                       Wife is entitled to a post-retirement survivor benefit
                       offered through Husband’s military retirement program.

              2.       Whether the dissolution court erred when it ordered
                       Husband and Wife to share the cost of the premiums for
                       that survivor benefit.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Husband and Wife were married in October 1992, and they have three adult

      children together. In May 2017, Husband, who was then fifty-one years old,

      “left the U.S. Army reserves” after multiple deployments and more than thirty

      years of service. Appellant’s Br. at 6. The next month, Husband filed a petition

      for dissolution of the marriage.


[4]   In February 2018, Husband and Wife entered into a mediated settlement

      agreement, which provided in relevant part as follows:


              24. Qualified Domestic Relations Order/Military Pension
              Division Order (QDRO/MPDO) [(“QDRO provision”)]. Wife
      Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020          Page 2 of 22
              shall be entitled to receive fifty percent (50%) of Husband’s
              accrued vested monthly benefit from his Military Reserve
              Annuity Retirement from the date of marriage through the value
              determined as of June 14, 2017. Wife shall be treated as Husband’s
              surviving spouse for the purpose of any pre-retirement survivor’s benefit
              and shall be entitled to receive her Military Reserve Survivor Pension,
              free and clear of any claim by Husband. In the event Husband is
              entitled to any cost-of-living adjustment, said COLA shall be
              applied to Wife’s interest in the plan as well.

                                                       ***

              Wife shall be treated as Husband’s irrevocable beneficiary for Husband’s
              Military Reserve Annuity Retirement and Husband shall make the
              necessary election in a timely manner to effectuate survivor coverage for
              Wife, if he has not already done so, and shall execute such
              paperwork as is required/necessary within seven (7) days after
              the Court’s approval of this Decree. The level of Wife’s survivor
              coverage shall be that which will provide her with the same
              benefit payments after Husband’s death that she was eligible to
              receive or receiving prior to his death, pursuant to this
              Agreement.


      Appellant’s App. Vol. 2 at 28-29 (emphases added). The dissolution court

      adopted and incorporated the settlement agreement into the final dissolution

      decree.


[5]   Husband was a member of the U.S. Army Reserves until May 2017. Unlike

      active duty members of the U.S. military, who generally receive their military

      retirement pay immediately upon retirement, reservists who leave the military

      prior to reaching retirement age must wait to receive their military retired pay.

      As used in the parties’ settlement agreement, it is undisputed that “Military


      Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020                Page 3 of 22
      Reserve Annuity Retirement” means Husband’s military retired pay, which will

      start when he reaches fifty-seven years of age (“retirement age”).


[6]   After the decree was entered, Husband executed “DD Form 2656-1,” 1 which is

      entitled “Survivor Benefit Plan (SBP) Election Statement for Former Spouse

      Coverage.” 2 Table Exs. Vol. 3 at 218. 3 The SBP is optional and provides

      survivor benefits to Wife should Husband predecease her. The premiums for

      the SBP are to be deducted from Husband’s military retired pay. Because the

      SBP starts before Husband will receive his military retired pay, the premiums

      for survivor coverage during the pre-retirement period “accrue” and will be due

      when Husband starts receiving his retirement pay. Tr. Vol. 2 at 16. The total

      amount of the premiums due for the SBP, including the “post-retirement”

      period (after Husband attains retirement age), is not yet ascertainable, but that

      coverage could cost as much as $100,000 over Husband’s life.


[7]   In order to implement the QDRO provision, Wife submitted an application to

      the Department of Finance and Accounting Services (“DFAS”), a division

      within the United States Department of Defense (“DOD”). In response to

      Wife’s application, in July, DFAS wrote Wife a letter requesting additional

      information necessary to “calculate the division of the retirement,” including




      1
          Wife also signed this form.
      2
        In the “Remarks” section of this form, Husband stated that he was a “gray area retiree not yet reaching
      retirement age, but a member of the retired reserves.” Table Exs. Vol. 3 at 218.
      3
          Our pagination of the Exhibits Volume is based on the .pdf pagination.


      Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020                                 Page 4 of 22
      Husband’s “years of creditable service at the time of the divorce.” Table Exs.

      Vol. 3 at 208. The DFAS letter also stated: “If your divorce decree specifies

      that you are to be designated as a former[-]spouse beneficiary for the Survivor

      Benefit Plan (SBP), you must make a ‘deemed election’ for coverage . . . using a

      DD Form 2656-10.” Id. at 208-09. Wife’s counsel requested that Husband

      provide the additional information requested in the letter, which he did by

      email in September. And even though Husband had previously made the

      survivor benefit plan election using DD Form 2656-1, Husband signed DD

      Form 2656-10 and sent it to Wife, who also signed it and submitted it to DFAS.

      DD Form 2656-10 is entitled “Survivor Benefit Plan (SBP)/Reserve

      Component (RC) SBP Request for Deemed Election.” Id. at 216.


[8]   Wife’s counsel then prepared an addendum to the mediated settlement

      agreement for the parties’ signatures “that included the necessary information

      to meet the DFAS requirements” for calculating the division of Husband’s

      military retired pay. Appellee’s Br. at 8. Despite his initial cooperation,

      Husband refused to sign the addendum. Husband told Wife’s attorney that

      Husband “would not be willing to sign [the addendum] because the cost of the

      premiums for the Survivor Benefit Plan had not been accounted for in the

      settlement agreement.” 4 Tr. Vol. 2 at 7-8.




      4
          Neither party has included a copy of the proposed addendum in the appendix on appeal.


      Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020                            Page 5 of 22
[9]    In December 2018, Wife filed a request for the dissolution court’s intervention

       to secure Husband’s cooperation in signing the agreed addendum. In the

       meantime, in March 2019, DFAS sent a letter to Wife stating in relevant part:


               Your request has been honored and the Deemed Election is
               complete. You will be entered as the former spouse SBP
               [Survivor Benefit Plan] beneficiary when the member retires and
               begins to receive retired/retainer pay.

               By law, the monthly SBP premiums must be deducted from the
               member’s military retirement pay. DFAS cannot deduct
               premiums from the former spouse, regardless of the terms of the
               applicable court order.


       Table Exs. Vol. 3 at 227.


[10]   At a hearing on Wife’s request for the court’s intervention in May 2019, the

       parties’ counsel presented oral argument, the parties each testified briefly, and

       both parties offered exhibits that were admitted without objection. Wife’s

       counsel advised the court that the DFAS documentation to secure her survivor

       benefit had been submitted and approved, and she stated: “this really comes

       down to an argument of who’s going to pay for it. The decree is silent on who

       pays for it.” Tr. Vol. 2 at 8. The parties also disputed whether their agreement

       included both pre-retirement and post-retirement survivor benefit coverage.

       Wife testified that she expected survivor benefit coverage for “[t]he rest of [her]

       life.” Id. at 10. But Husband testified that he had made the election required by

       the settlement agreement, which, according to Husband, provided that he may

       cancel Wife’s survivor benefit coverage at his option after he reaches retirement

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020          Page 6 of 22
       age. Husband testified that there is “nothing in the agreement” that would

       prevent him “from doing that.” Id. at 18.


[11]   Following the hearing, on May 29, the dissolution court issued an order stating:


               1. It is clear from the Mediated Settlement Agreement that Wife
               is entitled to pre-retirement survivor’s benefits. See Page 24.

               2. The best evidence indicates the actual title for those benefits is
               “The Reserve Component Survivor Benefit Plan (RCSBP).”

               3. The Agreement is silent as to how the premium would or will
               be paid.

               4. Evidence presented to the Court is that the premium must be
               withheld solely from the soldier’s paid benefits, not the ex-
               spouse’s benefits.

               5. Equity is best served, since neither party mentioned payment
               nor is it mentioned in the Mediated Settlement Agreement, that
               each party should pay one-half of the premium.

               6. Therefore, it is ORDERED, that the Wife shall reimburse
               Husband 50% of what is withheld from his benefit each time it is
               withheld for the premium.


       Appellant’s App. Vol. 2 at 46-47 (emphasis added).


[12]   On June 3, Husband filed a motion to clarify the court’s May 29 order:


               1. The Court heard evidence at the hearing of May 23, 2019[,]
               regarding whether the parties[’] Settlement Agreement provided
               that Wife was entitled to either the “pre-retirement annuity”
               (RCSBP) and/or “post-retirement annuity” (SBP).


       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020            Page 7 of 22
               2. The Court ruled that Wife was entitled to the pre-retirement
               Reserve Component Survivor’s Benefit Plan (RCSBP).

               3. [Husband] respectfully requests that the Court clarify that
               Wife is not entitled to the post-retirement Survivor’s Benefit Plan[,]
               or SBP.

               WHEREFORE, [Husband] respectfully requests clarification that
               [Wife] is not entitled to [Husband’s] retired military pay SBP and
               for all other relief just and proper in the premises.


       Id. at 48 (emphasis added). After a change of judge, the court ruled on

       Husband’s motion as follows:


               The Court’s May 29, 2019 Order is clarified as follows:

               a. [Wife] is entitled to receive a portion of [Husband’s] post-retirement
               survivor benefit plan, or SBP, as well as the pre-retirement, and RC-SBP.
               In Order to be consistent, [Wife] shall reimburse [Husband] fifty
               percent of what is withheld from [Husband’s] benefit each time it
               is withheld for his RC-SBP and SBP.


       Id. at 50-51 (emphasis added). This appeal ensued.


                                       Discussion and Decision
                                    Issue One: Wife’s Survivor Benefit

[13]   Husband first contends that the dissolution court erred when it interpreted the

       parties’ settlement agreement to require that he maintain survivor coverage for

       Wife after he reaches retirement age. Initially, we note that Husband refers to a

       “pre-retirement” survivor benefit, which he calls the “RCSBP,” and a “post-

       retirement” survivor benefit, which he calls the “SBP,” as though they were two

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020               Page 8 of 22
       separate and unrelated plans. 5 And the dissolution court adopted those labels in

       its orders. However, as discussed below, Husband elected one survivor benefit

       plan, which covers both the pre- and post-retirement periods. The question

       presented on appeal is whether, as Husband asserted at the evidentiary hearing,

       the settlement agreement permits him to cancel the survivor benefit election after

       he reaches retirement age.


[14]   As our Supreme Court has observed, “[w]hen a party asks a court to clarify a

       settlement agreement, the court’s task is one of contract interpretation.” Ryan v.

       Ryan, 972 N.E.2d 359, 363 (Ind. 2012). And as we have stated:


               “The goal of contract interpretation is to determine the intent of
               the parties when they made the agreement.” Tender Loving Care
               Mgmt., Inc. v. Sherls, 14 N.E.3d 67, 72 (Ind. Ct. App. 2014). This
               court must examine the plain language of the contract, read it in
               context and, whenever possible, construe it so as to render every
               word, phrase, and term meaningful, unambiguous, and
               harmonious with the whole. Id. Construction of the terms of a
               written contract generally is a pure question of law. Id. If,
               however, a contract is ambiguous, the parties may introduce
               extrinsic evidence of its meaning, and the interpretation becomes
               a question of fact. Broadbent v. Fifth Third Bank, 59 N.E.3d 305,
               311 (Ind. Ct. App. 2016), trans. denied. “A word or phrase is
               ambiguous if reasonable people could differ as to its meaning.”




       5
         Husband avers, without any citation to the record or authority, that the pre-retirement Reserve Component
       Survivor Benefit Plan is “separate” and “has no effect after the servicemember begins receiving retired pay.”
       Appellant’s Br. at 7. But, as Husband testified, and as we discuss later, the survivor benefit is a single
       election with an option of canceling the coverage after the servicemember reaches retirement age. The
       relevant DOD regulations do not refer to a “pre-retirement survivor benefit” or a “post-retirement survivor
       benefit.”

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020                                 Page 9 of 22
               Id. A term is not ambiguous solely because the parties disagree
               about its meaning. Id.

                                                        ***

               If the language is deemed ambiguous, the contract terms must be
               construed to determine and give effect to the intent of the parties
               when they entered into the contract. [Tender Loving Care Mgmt.,
               14 N.E.3d at 72]. “Courts may properly consider all relevant
               evidence to resolve an ambiguity.” Id. “‘Extrinsic evidence is
               evidence relating to a contract but not appearing on the face of
               the contract because it comes from other sources, such as
               statements between the parties or the circumstances surrounding
               the agreement.’” Id. (quoting CWE Concrete Const., Inc. v. First
               Nat’l Bank, 814 N.E.2d 720, 724 (Ind. Ct. App. 2004), trans.
               denied).


       Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App.

       2017), trans. denied.


[15]   Here, for the first time on appeal, the parties assert that the settlement

       agreement is unambiguous, that the plain meaning of the agreement supports

       his or her interpretation, respectively, and that the resort to extrinsic evidence is

       unnecessary. However, at the hearing, the parties submitted, and asked the

       dissolution court to consider, extrinsic evidence relevant to the survivor benefit

       coverage, namely, their testimony and exhibits admitted at the hearing. In its

       first order on Wife’s request for court intervention, the court stated that it relied

       upon “the best evidence” to determine “the actual title” for the survivor

       benefits, which does not appear in the agreement. Appellant’s App. Vol. 2 at

       46. And in his motion to clarify, Husband acknowledged that the dissolution

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020             Page 10 of 22
       court “heard evidence . . . regarding whether the parties’ settlement agreement

       provided that Wife was entitled to either the ‘pre-retirement annuity’ . . .

       and/or ‘post-retirement annuity[.]’” Id. at 48. Thus, it is clear that the

       dissolution court found the settlement agreement ambiguous and considered

       extrinsic evidence when it relied on testimony and exhibits to interpret the

       survivor benefit provisions in the agreement.


[16]   Again, the parties’ mediated settlement agreement provides in relevant part as

       follows:


               24. Qualified Domestic Relations Order/Military Pension
               Division Order (QDRO/MPDO) [(“QDRO provision”)]. Wife
               shall be entitled to receive fifty percent (50%) of Husband’s
               accrued vested monthly benefit from his Military Reserve
               Annuity Retirement from the date of marriage through the value
               determined as of June 14, 2017. Wife shall be treated as Husband’s
               surviving spouse for the purpose of any pre-retirement survivor’s benefit
               and shall be entitled to receive her Military Reserve Survivor Pension,
               free and clear of any claim by Husband. In the event Husband is
               entitled to any cost-of-living adjustment, said COLA shall be
               applied to Wife’s interest in the plan as well.

                                                        ***

               Wife shall be treated as Husband’s irrevocable beneficiary for Husband’s
               Military Reserve Annuity Retirement and Husband shall make the
               necessary election in a timely manner to effectuate survivor coverage for
               Wife, if he has not already done so, and shall execute such
               paperwork as is required/necessary within seven (7) days after
               the Court’s approval of this Decree. The level of Wife’s survivor
               coverage shall be that which will provide her with the same benefit
               payments after Husband’s death that she was eligible to receive or
               receiving prior to his death, pursuant to this Agreement.

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020                Page 11 of 22
       Id. at 28-29 (emphases added).


[17]   On appeal, Husband contends that the plain language of the agreement

       provides for a survivor benefit to Wife only until he reaches retirement age, or

       during the “pre-retirement” period. But Wife maintains that “the totality of the

       [agreement’s] language” shows that the parties intended that Wife would also

       have survivor benefit coverage after Husband reaches retirement age, or “post-

       retirement.” Appellee’s Br. at 11. Nevertheless, Wife points out, and Husband

       agrees, that the agreement uses terminology that differs from that used by the

       DOD in describing Husband’s retirement benefits, especially the optional

       survivor benefit coverage. The QDRO provision uses the following terms that

       do not appear in any relevant DOD document: “Military Reserve Annuity

       Retirement”; “pre-retirement survivor’s benefit”; and “Military Reserve

       Survivor Pension.” Thus, in order to determine whether the parties intended

       Wife’s survivor benefit coverage to continue after Husband reaches retirement

       age, we must first understand how Husband’s military retirement program is

       structured.


[18]   Because that structure is not discernible on the face of the settlement agreement,

       and because the parties’ agreement uses terms that differ from the DOD

       documents explaining survivor benefit coverage, the dissolution court resorted

       to extrinsic evidence to resolve the ambiguity in the agreement. We consider

       the extrinsic evidence most favorable to the dissolution court’s judgment to

       unpack and interpret the QDRO provision. Celadon Trucking Servs., Inc., 70



       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020        Page 12 of 22
       N.E.3d at 839. In particular, we consider the same exhibits and testimony

       presented to the dissolution court on the issue of survivor benefit coverage.


[19]   At the hearing on Wife’s request for court intervention, Husband submitted to

       the dissolution court his Exhibit A, which included excerpts from the DOD’s

       “Financial Management Regulations” explaining the structure of his military

       retirement program. The relevant excerpts provide as follows:


       •      “[The Survivor Benefit Plan (“SBP”) was established] to provide
       a survivor benefit program for military personnel in retirement . . . [that
       would] provide [a retiree’s] survivors an annuity payable after the retiree’s
       death.” Table Exs. Vol. 3 at 83 (emphasis added).

       •      “[The Reserve Component Survivor Benefit Plan, or] RCSBP[,]
       extends eligibility to the Survivor Benefit Plan (SBP) to Reserve
       Component members who would otherwise be eligible to receive retired
       pay except they have not yet reached retirement age. RCSBP allows
       members to provide an annuity based on their retired pay to qualified
       survivors.” Id. at 168.

       •      “The RCSBP is a benefit plan that enables members who served
       in the Reserve Components to leave a benefit called an ‘annuity.’ An
       annuity is a monthly payment that normally lasts the lifetime of the
       beneficiary after the member passes away. The amount of the monthly
       payment is a percentage of the retired pay, and that percentage depends
       upon the election the member made when the member signed up for
       RCSBP.” Id. at 169.

       •       “A member electing to participate must designate an immediate election,
       a deferred election, or indicate a decision to delay the election until reaching
       retirement age. These are described as Options A, B, or C.

               A. Option A. The member defers a survivor annuity
               election or declines coverage until retirement age. There is

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020              Page 13 of 22
        no coverage for the years between becoming eligible for
        retirement and reaching retirement entitlement age. If a
        member dies before reaching retirement age, no survivor
        annuity is payable. . . .

        B. Option B. The member elects to provide a deferred
        survivor annuity that begins on the date that the member
        would have attained the age of 60, or on the day after the
        member’s death, whichever is later. . . .

        C. Option C. The member elects to provide an immediate
        survivor annuity beginning on the day after the member’s death,
        whether before or after reaching retirement age.”

•     “Elections [of the RCSBP coverage] . . . are generally irrevocable unless
revoked before the expiration of the 90-day period[ for filing the elections].”

•      “[One exception to the irrevocability of the RCSBP coverage is
that a] member may change the beneficiary election to . . . remove
former spouse coverage as shown in Chapter 43, section 4306[, which
requires a court order that permits such a change.]”

Id. at 119, 173-79 (emphases added).


Further, at the hearing, Husband testified as follows: “I had to elect SBP to get

the Reserve Component Survivor Benefit Plan[,] which is the pre-retirement.

They’re not severable in election. However, I have the option to cancel the SBP

soon after reaching retirement age.” Tr. Vol. 2 at 18. In other words, Husband

elected Option C, which provides for immediate survivor coverage for Wife that

will continue after Husband has reached retirement age, unless he cancels that

coverage.



Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020          Page 14 of 22
[20]   Turning to the QDRO provision in the settlement agreement, the parties do not

       dispute that “Military Reserve Annuity Retirement” refers to Wife’s share in

       and entitlement to a coverture fraction of Husband’s “military retired pay,”

       which he will start receiving when he turns fifty-seven years old. Appellant’s

       Br. at 6. The provision then continues and states that Wife “shall be treated as

       Husband’s surviving spouse for the purpose of any pre-retirement survivor’s

       benefit and shall be entitled to receive her Military Reserve Survivor Pension,

       free and clear of any claim by Husband.” 6 Appellant’s App. Vol. 2 at 28

       (emphasis added). Thus, again, while the parties do not dispute that Wife is

       entitled to the pre-retirement survivor benefit, the QDRO provides that Wife is

       also entitled to receive her “Military Reserve Survivor Pension.” The term

       “survivor pension” does not appear in the DOD documents. Rather, as

       discussed below, the survivor benefit is an annuity which includes post-

       retirement survivor benefit coverage.


[21]   Husband’s counsel told the dissolution court that “a military reserve survivor

       pension doesn’t exist” but argued that it can be construed to mean the Reserve

       Component Survivor Benefit Plan, or “RCSBP,” which counsel equated with

       “a pre-retirement survivor benefit and not a post-retirement benefit.” Tr. Vol. 2

       at 21. In a memorandum submitted to the dissolution court, Husband asserted




       6
         In his brief on appeal, Husband modifies the meaning of this sentence by substituting the word “those” for
       the word “and” when he states that, “The sentence goes on to state that Wife shall receive those ‘Military
       Reserve Survivor Pension’ or proceeds of the RCSPB free and clear of any claim by Husband.” Appellant’s
       Br. at 12 (emphasis added). In so doing, Husband equates the pre-retirement survivor benefit with the
       Military Reserve Survivor Pension, as if they were one and the same and co-extensive. They are not.

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020                               Page 15 of 22
       that the “only reserve annuity available to Wife is the RCSBP,” Table Exs. Vol.

       3 at 8, and, likewise, in his brief on appeal Husband asserts that use of the word

       “Reserve” is a reference to the RCSBP, which, according to Husband includes

       only the pre-retirement benefit. Appellant’s Br. at 12. As explained below, we

       cannot agree.


[22]   The erroneous use of the term “survivor pension” rather than “survivor

       annuity” in the agreement does not affect our analysis. Regardless of the

       terminology, and accepting Husband’s contention that the “Military Reserve

       Survivor Pension” mentioned in the agreement refers to the RCSBP, his

       contention that the RCSBP includes only a pre-retirement survivor benefit

       cannot be reconciled either with his own testimony or with the DOD evidence

       of the survivor annuity available under the Reserve Component Survivor

       Benefit Plan.


[23]   Husband testified, correctly, that pre-retirement survivor coverage and post-

       retirement survivor coverage are “not severable” when an election for pre-

       retirement coverage is made. Tr. Vol. 2 at 18. In other words, there is no

       stand-alone pre-retirement survivor benefit. The DOD documents admitted

       into evidence at the hearing show that Husband had three options when he

       signed up for the Reserve Component Survivor Benefit Plan, or RCSBP.

       Option A allows the member to defer a survivor annuity election until

       retirement age, and Option B allows the member to elect survivor annuity

       coverage that begins at retirement age. Husband chose Option C, the one

       option that provides survivor annuity coverage during both the pre-retirement

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020        Page 16 of 22
       and post-retirement periods. Thus, the RCSBP does not limit survivor coverage

       to the pre-retirement period, and all three options contemplate and provide for

       post-retirement coverage. And, as the DOD regulations make clear, an election

       under Option C, the option that Husband selected, provides a survivor benefit

       that pays an annuity “after the member’s death, whether before or after

       reaching retirement age.” Table Exs. Vol. 3 at 173-74.


[24]   Husband equates and conflates pre-retirement survivor benefit coverage with

       the Reserve Component Survivor Benefit Plan. However, while the RCSBP

       extends eligibility for survivor coverage to retired reservists who have not yet

       reached retirement age, pre-retirement-age survivor benefits are only one feature

       of the plan. Each of the three options for the RSCBP includes a post-retirement

       survivor annuity. Thus, Husband either misunderstands or misconstrues the

       RCSBP.


[25]   Further, the QDRO provision in the parties’ agreement states explicitly both

       that “Wife shall be treated as Husband’s irrevocable beneficiary for Husband’s

       Military Reserve Annuity Retirement” and that “Husband shall make the

       necessary election in a timely manner to effectuate survivor coverage for

       Wife[.]” Appellant’s App. Vol. 2 at 29. The first clause of this sentence is a

       declaration that Wife has an irrevocable present vested interest in a coverture

       fraction of Husband’s military retired pay. The second clause of this sentence

       expressly provides that Husband shall elect “survivor coverage for Wife.” There

       is no adjective modifying or qualifying the term “survivor coverage.” The

       presence of these two clauses within the same sentence indicates that the

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020         Page 17 of 22
       survivor coverage is contemporaneous with and appurtenant to Husband’s

       retirement pay. As such, this sentence connects Wife’s survivor benefit

       coverage directly to Husband’s military retired pay, which is, of course, his

       post-retirement annuity. And this provision corresponds exactly with the post-

       retirement coverage under Option C, which Husband elected.


[26]   Likewise, the evidence does not support Husband’s contention that under the

       settlement agreement he has a unilateral, unqualified right to cancel Wife’s

       survivor benefit coverage after he reaches retirement age. First, there is no

       provision within the agreement to that effect. Second, Husband’s military

       retirement plan states that if a plan participant is required to provide former

       spouse coverage based on a court order, he can only change the election by

       providing “a certified copy of a court order that permits such a change.” Table

       Exs. Vol. 3 at 119 (“Changes to a Former Spouse Election”). Husband’s

       contention fails to account for DOD restrictions on the cancellation of former

       spouse survivor coverage.


[27]   Thus, contrary to Husband’s assertions that the settlement agreement does not

       provide for a post-retirement survivor benefit and that he is entitled to “cancel”

       the survivor benefit “after reaching retirement age.,” Tr. Vol. 2 at 18, Wife’s

       survivor coverage will continue after Husband attains retirement age. And the

       settlement agreement provides that Husband shall not “take any action which

       defeats or impairs the value which Wife is to receive pursuant to the provisions

       hereunder” including any “subsequent designation” that “may impair or

       diminish Wife’s benefit.” Appellant’s App. Vol. 2 at 29. This means that

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020         Page 18 of 22
       Husband may not cancel or alter his election for Wife’s survivor benefit

       coverage.


[28]   In sum, Husband elected survivor coverage for Wife effective during his pre-

       retirement period. By its terms, that coverage continues until Husband’s death

       and provides survivor benefit coverage for Wife, whether Husband dies before

       or after his retirement age. And the parties’ settlement agreement nullifies and

       supersedes any option Husband might have otherwise had to cancel Wife’s

       post-retirement survivor benefits once he reaches retirement age. We hold that

       the dissolution court did not err when it found that Wife is entitled to the

       survivor benefit during both the pre-retirement and post-retirement periods.


                                             Issue Two: Premiums

[29]   Husband next contends that the dissolution court erred when it modified the

       parties’ settlement agreement to add a missing term, namely, the parties’

       obligation to share the cost of the premiums for the post-retirement survivor

       coverage. Indiana Code Section 31-15-2-17 (2019) provides in relevant part as

       follows:


               (a) To promote the amicable settlements of disputes that have
               arisen or may arise between the parties to a marriage attendant
               upon the dissolution of their marriage, the parties may agree in
               writing to provisions for:

                                                        ***

                        (2) the disposition of any property owned by either or
                        both of the parties; . . . .

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020           Page 19 of 22
               (b) In an action for dissolution of marriage:

                        (1) the terms of the agreement, if approved by the
                        court, shall be incorporated and merged into the
                        decree and the parties shall be ordered to perform the
                        terms; . . . .

               (c) The disposition of property settled by an agreement described
               in subsection (a) and incorporated and merged into the decree is
               not subject to subsequent modification by the court, except as the
               agreement prescribes or the parties subsequently consent.


       (Emphasis added).


[30]   Husband consented to the court’s determination of how survivor benefit

       premiums will be paid and does not challenge the dissolution court’s order that

       each party pay fifty percent of the premiums for the pre-retirement survivor

       benefits. On appeal, however, Husband contends that he “never agreed to

       designate Wife as the beneficiary” of post-retirement survivor benefits and that,

       “[a]bsent an express provision in the agreement to the contrary,” Wife has

       “waived any entitlement to [a] survivor or a beneficiary right” derived from

       Husband’s military retired pay. Appellant’s Br. at 16. In other words, Husband

       contends that after he reaches retirement age, Wife is entitled only to her

       coverture fraction of his military retired pay and nothing else.


[31]   As with Issue One, Husband’s challenge to the order that he pay premiums for

       post-retirement coverage turns on the premise that the settlement agreement

       provides for only pre-retirement survivor benefits. We have concluded

       otherwise, that the QDRO provides without qualification that Husband shall

       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020          Page 20 of 22
       elect “survivor coverage for Wife” and that the agreement includes both pre-

       retirement and post-retirement survivor benefits. And Wife has not waived her

       entitlement to those benefits expressly provided for in the agreement. We

       conclude that the court has properly interpreted the agreement and, with the

       consent of the parties, has only modified the agreement to provide for how the

       survivor benefit coverage premiums will be paid.


                                                    Conclusion

[32]   At the hearing on Wife’s motion for court intervention, the parties agreed that

       the cost of the premiums for the survivor benefit plan had not been accounted

       for in the settlement agreement, and they consented to have the court determine

       who should pay the premiums for that coverage. As such, on the question of

       who should pay the premiums, the parties consented to the court’s subsequent

       modification of their agreement. Husband’s assertion on appeal that the

       modification violated the terms of the parties’ agreement because he only

       agreed to pre-retirement survivor coverage is incorrect. Both the text of the

       agreement and the corresponding DOD regulations providing for former spouse

       survivor coverage demonstrate otherwise. In response to Husband’s motion to

       clarify, the dissolution court did not err when it held that under the agreement

       Wife is entitled to both pre-retirement and post-retirement survivor benefits and

       that the parties shall each pay fifty percent (50%) of the premiums for that

       coverage.


[33]   Affirmed.



       Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020        Page 21 of 22
Kirsch, J., and Brown, J., concur.




Court of Appeals of Indiana | Opinion 19A-DC-2385 | May 19, 2020   Page 22 of 22
