                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0525
                              Filed May 11, 2016


IN RE THE MARRIAGE OF JULIA HEATH-CLARK
AND RICHARD ALAN CLARK

Upon the Petition of
JULIA HEATH-CLARK,
      Petitioner-Appellee,

And Concerning
RICHARD ALAN CLARK,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Husband appeals from the district court’s denial of his petition for a

declaratory order and his application for an order nunc pro tunc to amend the

parties’ qualified domestic relations order. AFFIRMED.



      Kodi A. Brotherson of Becker & Brotherson Law Offices, Sac City, for

appellant.

      Thomas P. Graves of Graves Law Firm, P.C., Clive, for appellee.



      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
                                        2


MCDONALD, Judge.

      Richard Clark appeals from the district court’s denial of his petition for a

declaratory order and his application for an order nunc pro tunc to amend the

parties’ qualified domestic relations order (QDRO). Richard maintains the QDRO

should be amended to reflect the intent of the parties at the time they entered the

dissolution decree.    Specifically, he contends the Iowa Public Employees’

Retirement System (“IPERS”) calculates retirement benefits in a way neither

party expected or intended and, as a result, Julia Clark receives more of his

retirement benefit than intended.

                                        I.

      Richard and Julia married on May 24, 1970.            They dissolved their

marriage by stipulated decree on September 23, 2002. In pertinent part, the

decree provides:

      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
      [Julia] shall receive a percentage of [Richard’s] IPERS asset as set
      forth in the Qualified Domestic Relations Order which shall be
      entered subsequent to the entry of this Decree. In regards to the
      IPERS benefit of [Richard] to be received by [Julia], when the
      member elects a payment option for IPERS benefits pursuant to
      any Qualified Domestic Relations Order, that member shall select
      fifty percent (50%) of the payment option for the contingent
      annuitant/alternate payee. The alternate payee shall not now or in
      the future designate a successor alternate payee. This Court shall
      retain jurisdiction for the filing and implementation of the Qualified
      Domestic Relations Order.

The same day, a QDRO was entered to divide Richard’s IPERS benefits. The

QDRO provides:

      IPERS is directed to pay benefits to the Alternate Payee as a
      marital property settlement under the following formula: fifty percent
      (50%) of the gross monthly or lump sum benefit payable at the date
      of distribution to the Member multiplied by the “service factor.” The
                                          3


       numerator of the service factor is the number of quarters covered
       during the marriage period of May 24, 1970 through the 23rd day of
       September, 2002, (the date of the filing of the Decree of Dissolution
       of Marriage), and the denominator is the Member’s total quarters of
       service covered by IPERS and used in calculating the Member’s
       benefit.

       On May 19, 2014, Richard filed a petition for declaratory judgment and/or

order nunc pro tunc, claiming the service factor was too large and, as a result,

Julia was receiving a greater percentage of his IPERS benefit. Richard claimed

the service factor was too large because IPERS caps the number of quarters

used in calculating the member’s benefit (the denominator) at 140, or thirty-five

years, even though Richard worked 165 quarters of service covered by IPERS.

He asked the district court to “affirmatively declare that the denominator in the

. . . formula fraction is [165],1 the total number of quarters [Richard] worked in

IPERS-covered employment.” Additionally, Richard asked the district court to

enter an order nunc pro tunc “correcting the error in the Qualified Domestic

Relations Order.”

       On July 17, 2014, Julia filed a motion for summary judgment and a

resistance to Richard’s petition. In it, Julia asserted declaratory relief was not

proper because there was not a “legal issue between [Richard and her] which

can be resolved between the parties. . . . He has brought this matter against the

wrong party with whom he does not have an actual issue of controversy.” Julia

also asserted an order nunc pro tunc was not appropriate because the QDRO

correctly expressed judicial intention as set forth in the decree. Lastly, Julia



1
 At the time of the petition, Richard had worked 164 quarters. He ultimately completed
another quarter of work before retiring.
                                          4


maintained the IPERS rule limiting the denominator to 140 quarters was

“appropriate under Iowa jurisprudence.”

       The matter came to trial on September 19, 2014. The general counsel for

IPERS testified the maximum number of quarters that could be used in

calculating the member’s benefit was 140. During cross-examination, IPERS’

general counsel testified that, while the denominator of the fraction was set at

140 by statute, IPERS had no position about what percentage was to be used

against the service factor and that it would accept a number other than fifty

percent if that was what the judge determined to be appropriate.

       The district court filed its order denying Richard’s petition for declaratory

judgment and application for order nunc pro tunc on December 4, 2014. In it, the

court stated:

                In considering the intention of the court from 2002, the court
       in 2014 uses the decree, the QDRO, and the transcript from the
       hearing on May 29, 2002 to determine the intent of the court’s
       order. There is no indication that the court had any intent other
       than to put into place the agreement of the parties. The parties
       entered a stipulation of their agreement on the record on the date of
       trial . . . . It is clear that the parties agreed to divide Richard’s
       IPERS benefits pursuant to the Benson formula – the Benson
       formula was referenced on the transcript and the QDRO uses a
       formula consistent with Benson.
                ....
                While the Benson formula is clearly favored by the Iowa
       Supreme Court and was implemented by the parties and the court
       in the 2002 decree and QDRO, the Benson court did not fully define
       the denominator portion of the service factor fraction. The Benson
       decision does not answer the interpretation issue raised here. . . . .
                The weight of the evidence, as shown by the two orders and
       the transcript, shows that the parties and the court did not consider
       the precise issue whether the service factor fraction could include
       years of service beyond 35 years at the time the decree and QDRO
       were entered. . . .
                                         5


               In the absence of language in the decree, QDRO, or
        stipulation showing an intent to the contrary, the court views the
        language used in the QDRO as deferring to IPERS.

Richard appeals.

                                         II.

        Our review of an equitable action is de novo. See Iowa R. App. P. 6.907.

“We review the construction of a dissolution decree as a matter of law.” In re

Marriage of Goodman, 690 N.W.2d 279, 282 (Iowa 2004); but see In re Marriage

of Veit, 797 N.W.2d 562, 564 (Iowa 2011) (applying de novo review in

determining whether QDRO fulfilled terms of dissolution decree); In re Marriage

of Brown, 776 N.W.2d 644, 647 (Iowa 2009) (reviewing de novo whether district

court properly interpreted dissolution decree); In re Marriage of Pals, 714 N.W.2d

644, 646 (Iowa 2006) (reviewing de novo the court’s ruling in an equitable

“proceeding to modify or implement a marriage dissolution decree subsequent to

its entry”).

                                        III.

                                        A.

        Before we can examine the merits of Richard’s appeal, we must address

Julia’s jurisdictional argument.   She maintains the court lacked jurisdiction to

amend the QDRO. Julia claims Richard’s petition for a declaratory judgment

and/or order nunc pro tunc to amend the QDRO was untimely because he did not

appeal the QDRO pursuant to Iowa Rule of Appellate Procedure 6.101(1)(b), nor

did he file a petition to vacate or modify judgment pursuant to Iowa Rule of Civil

Procedure 1.1013. If Richard were requesting a modification of the property

division, we would agree because a property division generally is not modifiable.
                                          6

See In re Marriage of Morris, 810 N.W.2d 880, 886 (Iowa 2012); see also Iowa

Code § 598.21(7) (2013). But Richard’s request is not for modification of the

property division. He is asking the QDRO be modified to conform to the property

division as set forth in the decree.

       Normally, a property disposition that includes the division of retirement

benefits proceeds in two steps.        First, a dissolution of marriage decree—a

substantive order that equitably divides and assigns the parties’ property—is

entered.   See Brown, 776 N.W.2d at 647–48 (discussing finality of decrees,

property division, and QDROs). Second, for the division of retirement benefits to

be implemented, a QDRO is entered directing the plan administrator to make

certain specified payments to the ex-spouse.2        See id.; see also Breslin v.

Synnott, 54 A.3d 525, 527 (Vt. 2012) (citing 2 B. Turner, Equitable Division of

Property § 6:20, at 113 (3d ed. 2005)).

               A QDRO is defined in relevant part by [ERISA] as a
       domestic relations order “which creates or recognizes the existence
       of an alternate payee’s right to, or assigns to an alternate payee the
       right to, receive all or a portion of the benefits payable with respect
       to a participant under a plan.” 29 U.S.C. § 1056(d)(3)(B)(i)(I). In
       order for the QDRO to be qualified—for the Q to be added to the
       DRO—certain requirements must be met. See id. § 1056(d)(3)(C)-
       (D). Once the plan administrator qualifies the QDRO, payments
       are made in accordance with the requirements contained in the
       QDRO. Id. § 1056(d)(3)(A). It is from this statutory scheme and
       general description of QDRO practice that we draw the conclusion
       that a QDRO is characterized properly as a procedural device that
       enforces an underlying substantive order. See Kremenitzer v.
       Kremenitzer, [838 A.2d 1026, 1028 (Conn. Ct. App. 2004)]
2
 “Because of certain anti-alienation restrictions in the Employee Retirement Income
Security Act (ERISA) and the federal tax code, a QDRO must be filed for every pension
division undertaken pursuant to a divorce.” Brown, 776 N.W.2d at 647–48 (citing
Rohrbeck v. Rohrbeck, 566 A.2d 767, 768–71 (Md. 1989)). “ERISA does not require a
QDRO to be a part of the actual judgment in a case.” In re Marriage of Bruns, 535
N.W.2d 157, 162 (Iowa Ct. App. 1995) (citing Baird v. Baird, 843 S.W.2d 388, 392 (Mo.
Ct. App. 1992), and Rohrbeck, 566 A.2d at 771).
                                          7


       (explaining that a QDRO is vehicle for enforcing court judgment);
       see also Turner, § 6:20, at 113–14 (noting “strong general rule” that
       QDRO is not substantive order, but rather “procedural device[ ] for
       enforcing the terms of the underlying substantive order”).

Breslin, 54 A.3d at 527–28.

       We too draw the conclusion that a QDRO is characterized properly as a

procedural device required by federal law and entered to effectuate the property

division made in the dissolution decree. We conclude the QDRO is not a “final

judgment” subject to the variety of deadlines imposed to challenge a final

judgment. See Veit, 797 N.W.2d at 564 (“[T]he QDRO is not itself a property

settlement, but is merely a method of effectuating the property division contained

in a dissolution decree and may be modified later without affecting the finality of

the underlying decree.”). Additionally, a district court retains authority to interpret

and enforce its prior decree. See Morris, 810 N.W.2d at 886. We are therefore

not persuaded by Julia’s argument that the court lacks jurisdiction to amend the

QDRO to reflect the property division set forth in the decree accurately.

                                          B.

       “A stipulation and settlement in a dissolution proceeding is a contract

between the parties.”      In re Marriage of Jones, 653 N.W.2d 589, 593 (Iowa

2002). However, the parties' stipulation is not binding on the court, “as the court

has the responsibility to determine whether the provisions upon which the parties

have agreed constitute an appropriate and legally approved method of disposing

of the contested issues.” Id. Consequently, once the court enters a decree

adopting the stipulation, “[t]he decree, not the stipulation, determines what rights

the parties have.” Id. at 594. “Therefore, in ascertaining the rights of the parties
                                           8


after final judgment, it is the intent of the district court that is relevant, not the

intent of the parties.” Id.

       The district court found, and the parties agree, that the intent of the

decretal court was to put the parties’ agreement into effect. The parties agreed

at the time of the stipulation that they would use the Benson formula to divide

Richard’s defined benefit plan. Thus, the inquiry is whether the decree and the

QDRO implement the Benson formula or whether the QDRO must be modified to

reflect the decretal court’s intent. See id.

       We first discuss the Benson formula. In In re Marriage of Benson, 545

N.W.2d 252 (Iowa 1996), the court discussed the valuation and division of a

defined benefit plan for the purposes of marital property settlement. The court

identified two methods of valuing and dividing the property. “One method is to

determine the present value of the benefits and allocate a share to the

pensioner's spouse (the present-value method).” Benson, 545 N.W.2d at 255.

The second method “is to award the spouse a percentage of the pension,

payable when benefits become matured (the percentage method).”                Id.   “A

straight percentage method divides the member’s lump sum or gross monthly

benefit according to a percentage determined by the parties.” Faber v. Herman,

731 N.W.2d 1, 8 (Iowa 2007). “A service factor percentage method divides the

pension according to a percentage multiplied by a factor based on the member’s

service during the marriage and the member’s total service.” Id. The present

case involves the service factor percentage method of valuation and division.

The Benson court set forth the formula as follows:
                                           9


       A fraction is first computed, the numerator being the number of
       years during the marriage [benefits accrued] under the pension
       plan . . . and the denominator being the total number of years. . .
       benefits accrued prior to maturity (i.e., receipt of payments upon
       retirement). This fraction represents the percentage of [the]
       pension attributable to the parties' joint marital efforts. This figure is
       then multiplied by [the spouse's] share of the marital assets (fifty
       percent). Finally this second figure is multiplied by [the] total
       accrued monthly benefit upon maturity (retirement) to calculate [the
       spouse's] share.
Benson, 545 N.W.2d at 255.

       Having set forth the Benson formula we turn to the language of the decree

and QDRO to determine whether it divided Richard’s IPERS benefit in accord

with the Benson formula. A dissolution decree is construed like any other written

instrument. In re Marriage of Lawson, 409 N.W.2d 181, 182 (Iowa 1987).

       The decree should be construed in accordance with its evident
       intention. Indeed the determinative factor is the intention of the
       court as gathered from all parts of the decree. Effect is to be given
       to that which is clearly implied as well as to that which is expressed.
       Of course, in determining this intent, we take the decree by its four
       corners and try to ascertain from it the intent as disclosed by the
       various provisions of the decree.

In re Marriage of Goodman, 690 N.W.2d 279, 283 (Iowa 2004). In construing a

dissolution decree, we give force and effect to every word, if possible, in order to

give the decree a consistent, effective and reasonable meaning in its entirety.

Lawson, 409 N.W.2d at 182–83.

       We conclude the plain language of the decree and QDRO expresses the

decretal court’s intent to use the Benson formula and correctly sets forth the

Benson formula. The QDRO provides:

       IPERS is directed to pay benefits to the Alternate Payee as a
       marital property settlement under the following formula: fifty percent
       (50%) of the gross monthly or lump sum benefit payable at the date
       of distribution to the Member multiplied by the “service factor.” The
                                        10


       numerator of the service factor is the number of quarters covered
       during the marriage period of May 24, 1970 through the 23rd day of
       September, 2002, (the date of the filing of the Decree of Dissolution
       of Marriage), and the denominator is the Member’s total quarters of
       service covered by IPERS and used in calculating the Member’s
       benefit.

There is little else that needs to be said. The district court reached the same

conclusion, stating, “It is clear that the parties agreed to divide Richard’s IPERS

benefits pursuant to the Benson formula—the Benson formula was referenced on

the transcript and QDRO uses a formula consistent with Benson.”

       Nonetheless, Richard maintains the QDRO should be amended because

the parties meant to use the total number of covered quarters worked as the

denominator in the fraction. He cites Julia’s testimony from the 2002 hearing as

support. Julia testified as follows:

               Q: Rich has a rather substantial IPERS benefit, that is, he
       has worked for the City of Des Moines for 29 years of service? A:
       Yes, that’s correct.
               Q: Now, it’s your understanding that the agreement is that
       whenever Rich retires or dies or leaves the City of Des Moines or
       makes a claim for his IPERS benefit, under his eligibility, that you
       will receive an amount equal to 29 years, that’s over a period of
       time that transpires to that date that the IPERS is paid? A: That’s
       correct.
               Q: And that, say, for example, at age 62 it was 29 years of
       service over 37.5 years of actual service, on that date that Rich
       would become eligible at 62? A: That is correct.

Richard contends this “clearly indicates Julia and her attorney understood the

denominator used to determine her monthly share of Richard’s IPERS benefit

would be the total years Richard worked in IPERS-covered employment and

would not be limited to 140 quarters or any other number.”

       Richard’s argument regarding the parties’ purported intent is largely

immaterial to the issue.     IPERS uses “a percentage of earnings per year of
                                        11


service formula, which provides a benefit that is related to the employee's

earnings and length of service.” In re Marriage of Sullins, 715 N.W.2d 242, 249

(Iowa 2006). Richard concedes the decretal court intended to use the Benson

formula. The Benson formula is used to value and divide the portion of the

defined benefit accrued during the parties’ marriage “in relation to the total years

of benefits accrued at maturity.” Benson, 545 N.W.2d at 255 (emphasis added).

The court reemphasized the denominator is “the total number of years . . .

benefits accrued prior to maturity (i.e., receipt of payments upon retirement).”

There is a distinction between total number of covered quarters worked and the

total number of covered quarters in which additional benefit accrues.          See

McDonald v. Pension Plan of NYSA-ILA Pension Fund, 320 F.3d 151, 156 (2d

Cir. 2003) (providing “accrued benefits” are those benefits earned); Hoover v.

Cumberland, Maryland Area Teamsters Pension Fund, 756 F.2d 977, 981–82

(3d Cir. 1985) (providing an “accrued benefit” represents the interest in a

retirement benefit earned each year).     Iowa Code section 97B.49A(1)(a) and

Iowa Administrative Code rule 495–16.2(3)(m) provide a covered member does

not accrue additional benefit beyond 140 quarters of covered service. The legal

distinction between the total number of covered quarters worked and the total

number of covered quarters in which additional benefits accrue is reflected in the

plain language of the QDRO.       The QDRO provides the denominator “is the

Member’s total quarters of service covered by IPERS and used in calculating the

Member’s benefit.” Richard’s interpretation of the decree and QDRO render the

phrase “and used in calculating the Member’s benefit” without meaning. His

interpretation cannot contradict the plain language of the decree and QDRO.
                                        12


       Richard also seems to contend that the administrative rule limiting the

denominator to 140 quarters of covered service should not control over the

parties’ agreement. As set forth above, the argument fails because the decretal

court intended to use the Benson formula and because the Benson formula uses

only covered quarters in which additional benefit accrues. The argument fails for

an additional reason.    Richard appears to misapprehend the purpose of the

Benson formula and the purpose of the administrative rule. The purpose of the

formula is to determine the percentage of the benefit accrued during the marriage

for the purpose of determining the marital share of the benefit to be paid upon

maturity.   The administrative rule reflects the maximum number of covered

service quarters resulting in the accrual of additional benefit; a covered employee

accrues no additional service benefit after 140 quarters of covered service.

There is thus no reason to include in the denominator quarters of covered service

that do not add value to the property at issue. Other courts have reached the

same conclusion. See, e.g., Marriage of Henkle, 234 Cal. Rptr. 351, 352 (Cal.

Ct. App. 1987) (reversing property division where denominator was set at 32 to

reflect total years of service and remanding to the district court to use 30 as the

denominator where the final two years of the covered employee’s service did not

count toward service credit); Halverson v. Halverson, 589 So.2d 1153, 1155 (La.

Ct. App. 1991) (affirming district court order limiting denominator to the number of

years resulting in service credit and stating, “We conclude the trial court was

correct in finding that 25 years was the maximum amount of creditable service

Mr. Halverson could earn under the plan. Although the dollar amount of his
                                         13


retirement benefits may increase if his salary increases, the total proportion to

which he is entitled cannot increase because it is at the maximum now, 60%.”).

       Richard next contends Julia inequitably received additional benefit

because his earnings increased over time due to promotions and raises he

received after surpassing 140 quarters of covered service                 without a

corresponding fractional reduction in Julia’s marital share for his quarters of

service beyond the 140-quarter cap.           There is nothing inequitable in the

application of the Benson formula under these circumstances. First, Richard

concedes the parties intended to use the service factor percentage method to

divide his pension. There is nothing inequitable in enforcing the bargained-for

agreement. Second, the argument was rejected by the Benson court. The court

explained, because of the way contributions are managed within a defined

benefit plan, Richard’s benefit increased due to the plan’s use of Julia’s property

left within the plan that might otherwise have been distributed to her at the time of

the dissolution:

              During the time from [dissolution] to retirement . . . the entire
       fund—comprised of the employee spouse’s separate property
       interests and the nonemployee spouse’s separate property
       interests—continues to establish its earnings profile over time.
       Since these separate property interests are combined until
       retirement, the plan administrator can invest [both] the employee
       spouse’s [and the nonemployee spouse's] separate property in the
       fund. This “added” investment value increases the fund’s earning
       power, which in turn is used (and may be necessary) to create the
       employee’s future “defined” benefit . . . . The “defined” benefit
       received by the employee spouse is made possible ... in part by the
       use of the nonemployee spouse’s separate property interest in the
       fund.    The entire amount of earnings attributable to the
       nonemployee spouse’s separate property interest remains within
       the fund, committed to create the “defined” benefit. [If] [t]he
       nonemployee spouse receives only his [or her] value as calculated
       and “frozen” on the date of [dissolution], [it] allows the employee
                                        14


      spouse to reap the benefits of the earnings attributable to the
      nonemployee spouse’s separate property interest in the fund. The
      actual earnings attributable to the nonemployee spouse’s separate
      property interest cannot be awarded to the nonemployee spouse,
      as a separate value, because they are needed to generate the
      value of the ultimate “defined” benefit. [I]t seems inequitable for a
      . . . court to “freeze” the value of the nonemployee's interests in the
      pension benefits at [dissolution] and prohibit that spouse from
      realizing any investment income generated from his [or her]
      separate property interest.

Benson, 545 N.W.2d at 257 (quoting Steven R. Brown, An Interdisciplinary

Analysis of the Division of Pension Benefits in Divorce and Post-Judgment

Partition Actions: Cures for the Inequities in Berry v. Berry, 39 Baylor L. Rev.

1131, 1188–89 (1987)).

      Numerous courts have considered and rejected the same argument that

Richard makes here—that it is inequitable to allow the non-employee spouse to

collect a percentage of the defined benefit due to increased earnings—for the

same or similar rationale set forth in Benson. See Hartley v. Hartley, 205 P.3d

342, 349–50 (Alaska 2009) (recognizing the “marital foundation” approach and

concluding it is equitable to allow the former spouse to share in the increased

benefit); Halverson, 589 So.2d at 1155; In re White, 809 A.2d 1286, 1290 (N.H.

2002) (stating the court’s goal in applying the service percentage “formula is

equitable, though not necessarily equal, property distribution” and rejecting

argument the non-employee spouse is inequitably receiving the benefit of post-

marital salary increases); Thompson v. Thompson, 965 N.E.2d 377, 386 (Ohio

Ct. App. 2011) (rejecting equitable argument and concluding the service

percentage method “does not deprive the member spouse of her separate
                                             15

property or otherwise unfairly disadvantage the member spouse”); see also In re

Marriage of Hunt, 909 P.2d 525, 533–34 (Colo. 1995) (collecting cases).

                                             IV.

       The plain language of the decree and qualified domestic relations order

expresses the decretal court’s intent to use the service percentage method for

dividing Richard’s IPERS benefit. The decree and QDRO correctly sets forth the

service percentage formula as expresses in Benson.       The application of the

Benson formula is equitable under the circumstances. For these reasons, we

affirm the judgment of the district court.

       AFFIRMED.

       Mullins, J., concurs; Danilson, C.J., dissents.
                                           16


DANILSON, Chief Judge. (dissenting)

         I respectfully dissent.    I view the majority opinion as effectuating a

modification of the Benson formula3 for dividing the pension benefits of long-term

IPERS employees. Here, Julia stands to gain and Richard to lose about $600

per month in pension benefits.

         Richard’s Iowa Public Employees Retirement System (IPERS) account

was a marital asset and, for purposes of an equitable distribution, was divided

between the parties. Here, the decree and Qualified Domestic Relations Order

(QDRO) must be interpreted to determine the proper division of the account.

IPERS administrative rules must yield to the property rights of each party. And if

not, then an order could be entered to require Julia to pay, on a monthly basis, to

Richard the overpayment of benefits so that each party may receive the amount

awarded to them by the decree.

         The purpose of the hearing held in district court on May 29, 2002, was to

present testimony of the parties’ settlement “on the record for the basis for entry

of this decree,” according to the decree. Several subsequent hearings were held

before the decree was entered on September 23, 2002.

         The parties’ dispute on appeal now centers upon the proper interpretation

of the decree and the QDRO entered in connection with Richard’s IPERS

account. The decree provides only that “the petitioner shall receive a percentage

of the respondent’s IPERS asset as set forth in the [QDRO] which shall be

entered subsequent to the entry of the decree.” Because the decree, in essence,

incorporates the language in the QDRO, it must be concluded the QDRO was not

3
    See In re Marriage of Benson, 545 N.W.2d 252, 255-56 (Iowa 1996).
                                         17


supplemental or collateral to the decree, but rather a part of the underlying

decree. Cf. In Re Marriage of Brown, 776 N.W.2d 644, 648-49 (Iowa 2009)

(concluding a QDRO is supplemental if it intends to enforce the earlier decree

dividing the parties’ property).   We are faced with interpreting a decree that

includes the incorporated language of the QDRO, not a modification of an earlier-

entered decree.

       The district court clearly determined the parties intended—and the

decretal court shared the same intent4—to divide Richard’s IPERS benefits

pursuant to the Benson formula in concluding:

       In considering the intention of the court from 2002, the court in
       2014 uses the decree, the QDRO, and the transcript from the
       hearing on May 29, 2002, to determine the intent of the court’s
       order. There is no indication that the court had any intent other
       than to put into place the agreement of the parties. The parties
       entered a stipulation of their agreement on the record on the date of
       trial. They followed up by presenting a proposed decree and
       proposed QDRO. The portion of the decree that addresses
       Richard’s IPERS benefits expressly incorporated the terms of the
       QDRO, which set out the division of IPERS in more detail. The
       QDRO was also referenced in the stipulation. It is clear that the
       parties agreed to divide Richard’s IPERS benefits pursuant to the
       Benson formula—the Benson formula was referenced on the
       transcript and the QDRO uses a formula consistent with Benson.
       Accordingly, if Benson answers the question at issue here, then
       Benson should so apply.

I agree.

       The district court then concluded the Benson court did not fully define the

denominator portion of the service factor fraction. Ultimately, the district court

determined the parties and the decretal court did not “consider the precise issue

whether the service factor fraction could include years of service beyond 35

4
 The intent of the parties is irrelevant unless it is shared by the court.   See In re
Marriage of Morrris, 810 N.W.2d 880, 886 n.2 (Iowa 2012).
                                        18


years at the time the decree and QDRO were entered,” and without language to

the contrary, the language in the QDRO defers to IPERS.

       I disagree with the district court that the Benson court did not fully define

the denominator.      I acknowledge the majority in Benson described the

denominator as “the total number of years” the “benefits accrued prior to maturity

(i.e., receipt of payments upon retirement),” see 545 N.W.2d at 255, and this

description could lend itself to some confusion where contributions are no longer

required, but the employee has not yet retired and begun receiving benefits.

Moreover, the confusion is compounded by other case law using different

terminology to describe the denominator. See In re Marriage of Sullins, 715

N.W.2d 242, 250 (Iowa 2006) (“[T]he denominator is the total number of years of

benefit accrual.”); In re Marriage of Mott, 444 N.W.2d 507, 511 (Iowa 1989)

(stating the denominator is the total number of years employee “worked and

accumulated pension benefits”).

       However it is quite clear, the dissent in Benson was concerned about the

denominator being the date of retirement by its various references to retirement.

See 545 N.W.2d at 258-61 (Lavorato, J., dissenting) (Larson and Ternus, JJ.,

joining). The dissent noted, “[S]etting the value of the pension benefit at the time

the employee spouse retires does violence to the principle that marriage partners

are entitled to a just and equitable share of the property accumulated through

their joint efforts.” Id. at 261 (first emphasis added). And again noted, “Setting

the value of the pension benefit at the time the employee spouse retires can also

prove to be unfair.” Id. (emphasis added).
                                         19

       The dissent in Benson argued that allowing the non-covered spouse to

benefit from post-dissolution increases in pension benefits was contrary to the

principle that only the property accumulated through their joint efforts should be

divided. Id. If the denominator was determined at the time contributions ceased

and the covered employee could have retired, the dissent would have had an

even stronger argument. Yet, this is the position taken by the majority in this

case. Clearly, the Benson formula incorporates a denominator fixed generally by

the date of retirement but specifically when he or she “actually receives or begins

to draw benefits.” Id. at 256.

       Two factors determine the amount of benefits—the number of quarters

worked and the highest five years of income.          See Iowa Code §§ 97B.1A

(defining “final average covered wage”); .49A (calculation of monthly allowance);

Sullins, 715 N.W.2d at 250. If the denominator’s increase stops when Richard

could have retired, then Julia’s share should be calculated as if Richard had

retired and begun receiving benefits. Instead, under the majority’s approach,

Julia stands to benefit from any raises Richard received in his last five years or

so of employment, but Richard is forced to use a denominator fixed when he was

eligible to retire and before he ever was receiving benefits.

       The district court and the majority attempt to support their conclusion of

such an inequitable resolution by interpreting the QDRO and applying IPERS’

administrative rules.    I submit the QDRO, and therefore the decree, are

ambiguous, and should be interpreted consistent with the decretal court’s intent

and in the only fair and reasonable manner as described above. Our rules of

interpretation and construction have been aptly stated in In re Marriage of
                                       20

Lawson, 409 N.W.2d 181,182 (Iowa 1987), and Berryhill v. Berrryhill, 428 N.W.2d

647, 653-55 (Iowa 1988), and need not be restated here.

       Before discussing the interpretation of the decree, I must address Julia’s

argument that this action must be dismissed because IPERS is not a party.

Here, the parties clearly dispute the proper interpretation of the language

contained in the QDRO and incorporated into the decree. The dispute relates to

the proper percentage of Richard’s IPERS benefits each party was entitled to

receive under the property settlement. On this issue, IPERS has no standing.

Further, “the existence of another remedy does not preclude a judgment for

declaratory relief.” Iowa R. Civ. P. 1.1101. There is a substantial controversy

between the parties who have adverse interests. See Greenbriar Group, L.L.C.

v. Elkco Props., Inc., 854 N.W.2d 46, 51 (Iowa Ct. App. 2014). If the judgment is

not accepted by IPERS then subsequent legal proceedings may be initiated

against IPERS, or a separate order could be sought and entered to effectuate the

judgment. Such an order could require Julia to pay Richard on a monthly basis

the difference between what she is receiving from IPERS and what our judgment

provides she is entitled to receive.

       Here, the language in the QDRO and as incorporated into the decree

includes two divergent sentences when defining the fraction to apply in dividing

Richard’s benefits.    The first sentence provides, “IPERS is directed to pay

benefits to the Alternate payee as a marital property settlement under the

following formula: fifty percent (50%) of the gross monthly or lump sum benefit at

the date of distribution to the Member multiplied by the ‘service factor.’”

(emphasis added).      Under our supreme court’s definition, “A service factor
                                           21


percentage method divides the pension according to a percentage multiplied by a

factor based on the member’s service during the marriage and the member’s

total service.” Faber v. Herman, 731 N.W.2d 1, 8 (Iowa 2007). The phrase,

“member’s total service” clearly means what it says, and includes the time until

Richard retired and began receiving benefits consistent with the Benson formula.

       I concede the second sentence is more troublesome and causes the

ambiguity in these proceedings. The second sentence describes the numerator

and then states, “and the denominator is the Member’s total quarters of service

covered by IPERS and used in calculating the Member’s benefits.” However, the

QDRO makes no reference to a maximum number of quarters that may be used

in calculating the member’s benefits. There is also no reference to statutory or

regulatory authority to supplant the language other than language later in the

order that says the parties intend the order to be a QDRO under federal law, and

“Iowa Code section 97B.39 and the administrative rules.”

       Subsequent to the entry of this order, specifically in February 2015, an

administrative-rule change explicitly provided that the denominator of a fractional

share per a QDRO could not exceed 140 quarters. Iowa Admin. Code r. 495-

16.2(3)(m). At one juncture, but also subsequent to the entry of the order, the

number was 120 quarters.         Property divisions are generally not modifiable.

Morris, 810 N.W.2d at 886.         Yet by administrative rule, IPERS facilitates a

modification of the parties’ property distribution and rights, each and every time

the denominator is revised.5


5
  IPERS is obligated to comply “with the provisions of a marital property order requiring
the selection of a particular benefit option, designated beneficiary, or contingent
                                           22


       Because IPERS is not a party to this action and this is a declaratory

judgment action, all that can be done is to declare the parties’ rights. I would

reverse and remand with directions that the parties’ shares of Richard’s IPERS

benefits be determined by the Benson formula, and the denominator of Julia’s

fractional share be determined by Richard’s total years of service (i.e., ending

when he retired and began to receive benefits).6            Further litigation may be

necessary to implement or facilitate such a declaration of rights.                  This

interpretation of the terms of the QDRO as incorporated in the decree is

consistent with the decretal court’s intent and the parties’ intent at the time the

decree was entered. It is also consistent with the Benson formula and with the

laws and rules in effect at the time the decree was entered. Any modification of

the Benson formula should be deferred to the supreme court. And, finally, it is

fair and just with respect to both parties.




annuitant if the selection is otherwise authorized by this chapter and the member has not
received payment of the member’s first retirement allowance.” Iowa Code § 97B.39.
The administrative rule requires the denominator of the Benson formula to be fixed at
140 quarters notwithstanding the fact that the “alternate payee,” the former spouse, was
not a covered “employee” as defined in Iowa Code section 97B(8). Iowa Admin. Code r.
495-16.2(3)(m). Ironically, according to the testimony of the IPERS representative at the
hearing in these proceedings, the representative acknowledged that IPERS accepts a
percentage established in a decree as a proper method to divide benefits. However, if
the division is expressed as a fraction, IPERS determines the denominator if it exceeds
140 quarters. The difference in the shares is significant depending on the denominator
used, as noted in Richard’s exhibit H. Upon a pure Benson formula calculation, Julia’s
share is $3913.46 a month, but if the formula is modified as IPERS calculates, Julia’s
share is $4612.29 a month.
6
  The record made in these proceedings is somewhat murky as Julia filed a motion for
summary judgment, which was granted by the district court’s order filed December 4,
2014. However, the same order also provided that the petition for declaratory order and
application for order nunc pro tunc were denied. Subsequently, an amended order was
entered acknowledging that Julia’s motion for summary judgment had been orally denied
prior to the trial on the merits of the petition.
