In Re the Marriage of Joseph Vincent Colarusso and Karyl Jean Colarusso Upon the Petition of Joseph Vincent Colarusso, and Concerning Karyl Jean Colarusso, N/K/A Karyl Jean Hughes

IN THE COURT OF APPEALS OF IOWA

No. 15-0177
Filed December 9, 2015

IN RE THE MARRIAGE OF JOSEPH VINCENT COLARUSSO
AND KARYL JEAN COLARUSSO

Upon the Petition of
JOSEPH VINCENT COLARUSSO,
Petitioner-Appellee,

And Concerning
KARYL JEAN COLARUSSO, n/k/a KARYL JEAN HUGHES,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.

Karyl Hughes appeals the district court’s ruling denying her motion to

amend the 1999 Qualified Domestic Relations Order to reflect the intent of the

court’s division of their marital property in their 1990 dissolution of marriage

decree. AFFIRMED.

Elliott R. McDonald III and Ryan F. Gerdes of McDonald, Woodward

& Carlson, P.C., Davenport, for appellant.

Christine Frederick of Zamora, Taylor, Woods & Frederick, Davenport,

and Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellee.

Considered by Doyle, P.J., and Mullins and Bower, JJ.
 2

DOYLE, Presiding Judge.

In contention here is whether a Qualified Domestic Relations Order

(QDRO), entered some nine years after Joseph and Karyl Colarusso’s 1990

decree of dissolution of marriage, correctly reflects the intent of the decree’s

division and disposition of Joseph’s retirement benefits. The decree provides

that when and if Joseph begins to receive his government pension benefits, Karyl

is to be paid forty percent of a fraction of the benefits. The QDRO fixes the value

of Karyl’s forty percent by the amount of accrued benefits as of the date of the

dissolution, January 30, 1990.

Joseph retired in September 2011, and his pension went into “pay status.”

The parties then began collecting benefits pursuant to the QDRO’s provisions.1

In 2014, Karyl moved to amend the QDRO, contending the QDRO was in

error because the decree provided that the value of her share of the pension was

to be determined as of the date of Joseph’s retirement, not the date of

dissolution. The district court denied Karyl’s motion concluding “the pension’s

value was meant to be determined at the time of the dissolution, not more than

[twenty] years later.” Karyl appeals the court’s ruling. Ultimately, we affirm.

I. Background Facts and Proceedings.

Joseph and Karyl were married on May 31, 1970. They divorced some

twenty years later on January 30, 1990. Joseph worked for the Department of

the Army for nineteen of the parties’ twenty-year marriage. His pension benefits

1
The record before us does not reflect the amount of the monthly benefits now
being paid to the parties, nor does it reflect the basis upon which Karyl’s payments are
calculated.
 3

at the time of the dissolution of marriage were valued at $37,340—representing

his contributions. Karyl also had a pension, apparently valued at $6660.

In its decree, the dissolution court found:

Both pensions are assets earned during the marriage, and should
be considered in any property distribution. No evidence concerning
present value has been presented. Total pension value is $44,000
which is valuable to each party at the time pension benefits are
paid, and to which they should share equally based upon their
contribution during the period of the marriage and the total number
of years contribution to the respective funds.

In its division of the parties’ property, the dissolution court ordered the following

with regards to the parties’ pensions:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
that [Karyl] be awarded all right, title and interest in and to her
pension plan and benefits, free and clear of any claim of [Joseph].
[Joseph] shall be awarded all right, title and interest in and to his
pension plan and fund, except that when and if [Joseph]
commences to receive his government pension, he shall pay to
[Karyl] an amount equal to 40% of a fraction of his pension; the
numerator[2] of the fraction being 19, the number of years of
marriage during which [Joseph] worked for the government, and the
denominator[3] of the fraction being the total number of years during
which the pension benefits were accumulated prior to being paid.

The decree made no provision for the entry of a QDRO.

In July 1999, Karyl filed a motion for entry of a domestic relations order.

The motion indicates a copy of the proposed QDRO was attached, but that

attachment is not a part of the record before us. Joseph resisted the motion.

Apparently the parties took the matter up before a district court judge, for in a

second motion for entry of a QDRO, Karyl represented that the parties had

2
The numerator is “the part of a fraction that is above the line and signifies the
number of parts of the denominator taken.” Webster’s Seventh New Collegiate
Dictionary 578 (1967).
3
The denominator is “the part of a fraction that is below the line signifying
division.” Webster’s Seventh New Collegiate Dictionary 221 (1967).
 4

previously appeared before a district court judge, “who indicated that a [QDRO]

should be entered to effectuate and enforce the Decree.” The motion also states

that “immediately following the hearing” Karyl’s attorney mailed a QDRO to

Joseph’s attorney. The motion further states that “since mailing said Order,”

Karyl’s attorney mailed to Joseph’s attorney a letter asking for the QDRO to be

returned, “however it has not been returned.” Karyl asked that the court enter the

QDRO “without approval of counsel.” Six days later, on September 28, 1999, the

district court entered the “Domestic Relations Order” prepared by Karyl’s

attorney. Although the order had a provision for each party’s counsel to sign

“approved as to form,” neither attorney signed.

At issue in this appeal is the following QDRO provision:

Alternate Payee [Karyl] is entitled to a portion of Participant’s
[Joseph’s] gross annuity as set forth in the formula below:

40% of the accrued pension benefit to the credit of the
Participant [Joseph] as of January 30, 1990

X Number of months of marriage during which benefits
were being accumulated

OVER Total months during which benefits were
accumulated

EQUALS Actual Payments of Distribution to Alternate
Payee [Karyl]

Karyl’s motion for entry of an amended QDRO asked the court to correct

an error in this provision of the QDRO. She asserted that the QDRO violated the

language of the decree because the QDRO provides for valuation of her share of

the pension to be fixed as of the date of dissolution and not the date of Joseph’s

retirement when he started receiving benefits. Joseph resisted, arguing, among
 5

other things, the QDRO complied with the decree’s language. A hearing was

held but not reported because of court reporter unavailability.

“Considering the case law at the time of [the] decree, 1990, and the

equitable effect of [Karyl’s] request,” the district court found the “decree clearly

intended [Karyl] to receive a portion of the value of the pension at the date of the

entry of the decree.” As to the equity piece of the ruling, the court stated:

It is only fair to divide the value of the pension at the time of
the divorce. This proposition is supported by the equities in this
case: (1) this dissolution was granted almost [twenty-five] years
ago; (2) in 1999, the QDRO was entered; (3) [Joseph] began
collecting his retirement benefits since March of 2012; (4) [Karyl]
has been receiving her share of [Joseph’s] benefits since March of
2012; [Joseph’s] retirement plan was based on [Karyl] receiving a
share of his pension plan as of the date of the decree.

It was the court’s “inescapable conclusion [that] the pension’s value was meant

to be determined at the time of the dissolution, not more than [twenty] years

later.” Karyl’s motion was denied. When asked to clarify its ruling, the court

stated: “The court’s ruling finds that the [QDRO], which was entered in 1999,

accurately reflected the intentions of the court at the time of the entry of the

decree, which was 1990.” The court declined to amend or enlarge its original

ruling any further.

Karyl now appeals.

II. Discussion.

A. Jurisdiction.

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

Joseph’s jurisdictional argument, for he maintains the court lacked jurisdiction to

amend the QDRO. He asserts the QDRO is a final judgment and “all time limits
 6

and opportunities to challenge the QDRO have long expired.” He claims Karyl’s

motion to amend the QDRO was untimely because she did not file an appropriate

post-trial motion pursuant to Iowa Rule of Civil Procedure 1.904(2), nor appeal

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

petition to vacate or modify judgment pursuant to Iowa Rule of Civil Procedure

1.1013. If Karyl was requesting a modification of the property division, we would

agree because a property division generally is not modifiable. See In re Marriage

of Morris, 810 N.W.2d 880, 886 (Iowa 2012); see also Iowa Code § 598.21(7)

(2013). But the import of Karyl’s request is not for modification of the property

division. She is asking that the QDRO be modified to conform to the property

division as provided 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 which equitably divides and assigns the parties’ property, is

entered. See In re Marriage of Brown, 776 N.W.2d 644, 647-48 (Iowa 2009)

(discussing finality of decrees, property division, and QDROs); 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)). Second, in order for the division of

retirement benefits to be implemented, a QDRO is entered as a court order

directing the plan administrator to make certain specified payments to the ex-

spouse.4 See id.

4
“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
 7

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)]
(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 entered to effectuate the property

division made in the underlying substantive dissolution decree, and for that

reason, we conclude the QDRO is not a “final judgment” subject to the variety of

deadlines imposed to challenge a final judgment. See also In re Marriage of Veit,

797 N.W.2d 562, 564 (Iowa 2011) (“[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.”).

Joseph also claims the very language of the QDRO divests the court of

jurisdiction to amend the QDRO. The QDRO provides: “Jurisdiction is retained

by this court until all benefits awarded have been accepted by the Associate

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).
 8

Director according to this order.” The QDRO was accepted by the Office of

Personnel Management, so, according to Joseph, it follows that the court no

longer has jurisdiction to modify the QDRO. That cannot be. A QDRO is a

procedural device for enforcing the terms of the underlying decree. If the

QDRO’s provisions contravene the provisions of the underlying decree, the court

must necessarily retain jurisdiction to correct the error so that its decree may be

properly enforced. 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 Joseph’s argument that the court lacks jurisdiction to modify the QDRO, and

we move on to the merits of the appeal.

B. QDRO.

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 Veit, 797

N.W.2d at 564 (applying de novo review in determining whether QDRO fulfilled

terms of dissolution decree); Brown, 776 N.W.2d at 647 (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”). The parties agree our review is de novo.

On appeal Karyl argues the district court erred in concluding the QDRO

accurately reflected the intent of the dissolution decree. “A dissolution decree is

construed like any other written instrument.” Brown, 776 N.W.2d at 650.
 9

“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.”

Goodman, 690 N.W.2d at 283 (quoting In re Estate of Roberts, 131 N.W.2d 458,

461 (Iowa 1964)). “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.” Brown, 776 N.W.2d at 650. But, when a

document is unambiguous, intent is determined by the words of the document

itself. See Hofmeyer v. Iowa Dist. Ct., 640 N.W.2d 225, 228 (Iowa 2001).

The decree’s language in question here is

when and if [Joseph] commences to receive his government
pension, he shall pay to [Karyl] an amount equal to 40% of a
fraction of his pension; the numerator of the fraction being 19, the
number of years of marriage during which [Joseph] worked for the
government, and the denominator of the fraction being the total
number of years during which the pension benefits were
accumulated prior to being paid.

The unresolved question is the time at which we are to set the “value” of the

benefit for purposes of calculating the equation. Is it the vested value accrued at

the time of dissolution (i.e., the amount Joseph would be entitled to receive if he

were to retire immediately and begin drawing benefits), or the value accrued at

maturity (i.e., the amount Joseph actually received when he began to draw

benefits at retirement)? The decree is silent.

In support of his position that the value of Karyl’s pension benefit is to be

fixed at the time of dissolution, Joseph argues the decree’s language must be

interpreted in light of the case law extant in 1990, the year the decree was
 10

entered, not as the law exists today. In support of her position that the value of

her pension benefit is to be determined at the time of maturity (retirement), Karyl

relies on In re Marriage of Benson, 545 N.W.2d 252 (Iowa 1996), but she also

argues the case law in existence at the time the decree was entered also

supports her position.

Pension plans are divisible marital property. In re Marriage of Mott, 444

N.W.2d 507, 510 (Iowa Ct. App. 1989). Before retiring, Joseph worked in a civil

service position for the United States Army and participated in the Civil Service

Retirement System (CSRS). This is a “defined benefit” plan, under which an

employee is entitled to a specified monthly benefit based on years of service and

pay. See In re Marriage of Kiser, 32 P.3d. 244, 245 (Or. Ct. App. 2001); see also

Pulliam v. Pulliam, 796 P.2d 623, 624 (Okla. 1990). One scheme for dividing

pension benefits is to award the spouse a portion of the pension benefits if and

when they accrue. Mott, 444 N.W.2d at 511. This is called the “percentage

method.”5 Benson, 545 N.W.2d at 255. This was the method employed here.

Joseph contends the case law “in 1990 clearly provided for the division of

the value of pensions at the time of the dissolution of marriage, not at the time of

retirement.”6 The law was not as “clear” as Joseph asserts. As the Benson court

5
The other method is called the “present-value” method which determines the
present value of benefits and allocates a share to the pensioner’s spouse. See Benson,
545 N.W.2d at 255. This method is advantageous for the immediate distribution of a
lump sum payment. See id. For examples of present-value method cases, see In re
Marriage of Bevers, 326 N.W.2d 896, 900 (Iowa 1982); In re Marriage of Wheeler, 418
N.W.2d 362, 363 (Iowa Ct. App. 1987); and In re Marriage of Voss, 396 N.W.2d 801,
803 (Iowa Ct. App. 1986).
6
Joseph also asserts “[t]he decretal court relied on Bevers and Mott, which
evidences its intention to use the formula set forth therein to value the pension as of the
date of the decree.” However, the decretal court cited Bevers and Mott only for the
proposition that “[p]ension funds accumulated during the marriage are marital property,
 11

recognized, a series of court of appeal cases from 1989 to 1991 reached

inconsistent results in applying the percentage method to dividing pensions. Id.

at 256 (citing Mott, 444 N.W.2d at 511; In re Marriage of Curfman, 446 N.W.2d

88, 90 (Iowa Ct. App. 1989); and In re Marriage of Oler, 451 N.W.2d 9, 12 (Iowa

Ct. App. 1989)). Our own review of pre-decree pension division cases finds the

waters murky, if not downright muddy.

Of the pre-decree percentage-method pension cases reviewed, we

discern two lines of analysis. The first line of cases involves pension division

when the monthly benefit is known at the time of trial, i.e., the monthly benefit is

already being paid or a projected monthly benefit is calculated based upon

accrued benefits at the time of entry of the decree. In those cases, the court first

establishes the marital property portion of the pension by multiplying the monthly

benefit (either currently being paid or accrued benefit as of the dissolution), by

the martial portion fraction. See In re Marriage of Howell, 434 N.W.2d 629, 633

(Iowa 1989); Mott, 444 N.W.2d at 511; In re Marriage of Williams, 449 N.W.2d

878, 882 (Iowa Ct. App. 1989); Oler, 451 N.W.2d at 12 (husband’s pension). The

resulting amount is the amount of marital pension to be divided. This figure is

then multiplied by the percentage of the marital pension awarded to the

pensioner’s spouse. See id. The resulting amount is a fixed monthly amount the

spouse is to be paid when the monthly pension benefits are paid to the

pensioner. See id. As a practical matter, under this scheme, the numerator and

the denominator are fixed as of the date of the decree because the amount paid

may be considered as such, and should be addressed in any property distribution.” The
parties do not dispute this proposition.
 12

to the spouse is fixed at the time of decree. See id. Here, unlike the courts in

Howell, Mott, Williams, and Oler, the decretal court was hobbled by the fact that

the parties did not provide it with the present value of Joseph’s plan or the

amount of Joseph’s accrued benefit at the time of dissolution. So, we find

Howell, Mott, Williams, and Oler are not dispositive in this case.

We turn to the other line of cases, much like the one before us. These

cases involve pension divisions where the accrued benefits are unknown at the

time of trial. In In re Marriage of Woodward, this court approved a decree that

provided for division of a defined benefit plan as follows:

when [the pensioner] draws his pension, then [he] shall pay to
[spouse] an amount equal to one-half of a fraction of the pension,
the numerator of the fraction being fourteen (the years of marriage
during which the benefits were accumulated) and the denominator
being the total number of years during which benefits were
accumulated prior to when paid.

426 N.W.2d 668, 670-71 (Iowa Ct. App. 1988). The language is nearly identical

to the Colarusso decree.

In Curfman, another defined benefit plan was at issue. See 446 N.W.2d at

89. The district court in that case found the pension plan had no current value

and gave the entire plan to [the pensioner]. See id. [The spouse] claimed this

was inequitable, and this court agreed. See id. Even though payment of benefits

was contingent upon [the pensioner’s] survival, we found the plan had value, with

the “present interest . . . derived from the amount of monthly benefits promised at

retirement rather than a present interest.” Id. We noted;

Where it is difficult to place a present value on pension or profit
sharing due to uncertainties regarding vesting or maturity, each
spouse may be awarded an appropriate percent to be paid if and
when pension is payable, apportioning benefits only if and when
 13

paid. This allocates equally between spouses the risk that the
pension may never be paid.

Id. at 90 (internal citations omitted). We then modified the decree to provide

when and if [the pensioner] commences to receive his pension he
shall pay to [the spouse] an amount equal to fifty percent of a
fraction of his pension; the numerator of the fraction being twenty-
three years, the number of years [the pensioner] worked for [his
employer] during the marriage, the years of marriage, and the
denominator of the fraction being the total number of years during
which benefits were accumulated prior to being paid.

Id. The language in the Colarusso’s decree is virtually identical.

In Oler, this court modified the division of the wife’s IPERS benefits

to provide when and if [the pensioner] commences to receive her
[benefits] she shall pay to [the spouse] an amount equal to fifty
percent of a fraction of her benefits, the numerator of the fraction
being fourteen years, the number of years [the pensioner] worked
during the marriage, and the denominator of the fraction being the
total number of years during which benefits were accumulated prior
to being paid.

451 N.W.2d at 12. Again, this language is virtually the same as the Colarusso

decree. But, unfortunately, the Woodward, Curfman, and Oler line of cases

provide no beacon of guidance to us, as they are aphotic concerning the

question here; At which time is the “value” of the benefit to be set for purposes of

calculating the equation? So, looking only at pre-1990 cases, we are left without

a paddle in murky uncharted waters.

The valuation question we face today was addressed by the Benson court

in 1996 under very similar circumstances. See 545 N.W.2d at 255. There, like

here, the district court utilized the percentage method when dividing the

pensioner’s pension benefits, and fashioning a formula not unlike the formulas

used in Woodward, Curfman, Oler, and here. See id. Robert, the pensioner,
 14

asserted the formula was faulty in that it enabled his ex-spouse, Camy, to receive

a percentage of any post-dissolution increases in pension benefits—increases to

which he claimed he alone was entitled. See id. at 256. He maintained the court

should have awarded Camy only a percentage of the pension plan’s present

value at the date of trial. See id. Camy pointed out “that the more years Robert

works beyond the dissolution, the smaller the fraction becomes which is used to

compute her share of the benefits.”7 Id. The court agreed that

[u]nder the percentage method, Robert receives an advantage
because payment of Camy’s share of his pension is deferred until
his benefits mature. Because payment is deferred, if [the court]
“lock[ed] in” the value of Camy’s interest at the time of dissolution, it
would prevent her from earning a reasonable return on her interest.

Id. at 257. In order to prevent this inequity, the court found it “preferable to set

the value of the benefit for purposes of the equation at the time of maturity.” Id.

After an explanation, the court held that “[f]or the purposes of calculation under

the percentage method, we think the value of the pension benefit is to be

determined at the time of maturity (here retirement). We therefore hold the trial

court was correct in employing this method.” Id.

We are in the same boat as the Benson court. Although the Benson

holding was not available to the decretal court, we are not required to turn a blind

eye to Benson’s analysis, for even without Benson, we would employ the same

7
This can be illustrated by the following example. If Joseph retired at the time of
the 1990 dissolution, the marital-portion fraction would have been 19/19 (number of
years of marriage Joseph worked for the government/number of years during which
pension benefits were accumulated prior to being paid). If, for example, Karyl’s forty-
percent share was $1000 per month, she would have been entitled to $1000/month in
1990 ($1000 x 19/19 = $1000). Joseph worked another twenty-two years and retired in
2012. The fraction would now be 19/41. So, if the value of Karyl’s forty-percent share of
the monthly benefit was fixed at $1000 at the time of dissolution, her benefit would be
reduced to $463.41 a month in 2012 ($1000 x 19/41 = $463.41), even though her share
of the pension would have presumably grown over the twenty-two post-dissolution years.
 15

analysis and reach the same conclusion. There being no reason to reinvent the

wheel, we adopt Benson’s persuasive analysis and apply it to the case before us.

Consequently, in construing the parties’ decree, we find that the value of the

pension benefit should be determined at the time of Joseph’s retirement in 2012.

In fixing the value of the pension benefit as of January 30, 1990, the QDRO does

not correctly reflect the intent of the decree’s provision for division and disposition

of Joseph’s retirement benefits. The district court was mistaken in holding

otherwise. The question now becomes, what do we do about it?

We are sitting as a court of equity. “A court of equity is a court of

conscience; it seeks to do justice and equity between all parties; it seeks to strike

a balance of convenience as between litigants; and it looks at the whole

situation.” In re Marriage of Williams, 199 N.W.2d 339, 350 (Iowa 1972). Thus,

“the equities on both sides are to be considered.” Id. To that end, a court “of

equity may exercise broad powers in applying equitable principles.” In re

Marriage of Gallagher, 539 N.W.2d 479, 481 (Iowa 1995). “The court sitting in

equity has the power and flexibility to impose equitable terms upon parties as

conditions of granting equitable relief.” In re Marriage of Zeliadt, 390 N.W.2d

117, 120 (Iowa 1986). “Wherever a situation exists which is contrary to the

principles of equity and which can be redressed within the scope of judicial

action, a court of equity will devise a remedy to meet the situation, though no

similar relief has been given before.” Moser v. Thorp Sales Corp., 312 N.W.2d

881, 893 (Iowa 1981) (citation and internal quotation marks omitted).

Karyl’s attorney drafted the QDRO. Some years later, when Joseph was

planning his retirement, he sought the services of an attorney. That attorney
 16

telephoned both of the parties’ dissolution attorneys. Both agreed that it was

their interpretation of the QDRO that Joseph’s interest was to be determined as

of the date of the decree, not the date of his retirement. According to Joseph, he

relied on that information and the QDRO’s language in making his retirement

plans. Joseph retired in September 2011. His pension went into “pay status,”

and the parties began collecting benefits pursuant to the provisions of the QDRO.

Years later, in April 2014, Karyl filed a motion requesting entry of an amended

QDRO and, for the first time, asserted the language in the original QDRO was

“incorrect.” Considering the equities on both sides, and the unique facts of this

case, we agree with the district court that “[i]t is only fair to divide the value of the

pension at the time of the decree.” Under all the circumstances, it would be

unfair to reverse course at this late date. We therefore affirm the district court’s

denial of Karyl’s motion.

C. Appellate Attorney Fees.

Joseph asks this court to award him appellate attorney fees. Such an

award rests in our discretion and is based on the merits of the appeal, the

parties’ needs, and their ability to pay. See In re Marriage of Sullins, 715 N.W.2d

242, 255 (Iowa 2006). After considering all appropriate factors, we decline to

award appellate attorney fees. Each party should be responsible for his or her

own attorney fees. Karyl is assessed the costs of this appeal.

III. Conclusion.

Although we conclude the district court was mistaken in holding the 1999

QDRO correctly reflected the intent of the decree’s provision for division and

disposition of Joseph’s retirement benefits, considering the equities on both sides
 17

and the unique facts of this case, we agree with the district court that to modify

the QDRO now would be inequitable. Accordingly, we affirm the district court’s

denial of Karyl’s motion. Each party should be responsible for his or her own

attorney fees. Karyl is assessed the costs of this appeal.

AFFIRMED.

Bower, J., concurs; Mullins, J., concurs in part and dissents in part.
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MULLINS, Judge. (concurring in part and dissenting in part)

I write separately to concur in part and dissent in part. I concur in the

thorough and well-reasoned analysis of the law applicable to the pension issue

and concur with the decision concerning appellate attorney fees. I dissent from

the conclusion that the equities on both sides require a result that was based on

misunderstandings of existing legal principles. I would conclude that the

application of the law as analyzed by the majority opinion would render an

equitable result, notwithstanding the administrative problems that would have to

be untangled. I would reverse and remand.