In RE the Marriage of Kathryn June Morris and Dennis Eugene Morris Upon the Petition of Kathryn June Morris

IN THE SUPREME COURT OF IOWA
No. 11–0118

Filed February 17, 2012

IN RE THE MARRIAGE OF KATHRYN JUNE MORRIS
AND DENNIS EUGENE MORRIS

Upon the Petition of
KATHRYN JUNE MORRIS,

Appellant,

And Concerning
DENNIS EUGENE MORRIS,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Clarke County,

Sherman W. Phipps, Judge.

Kathryn Morris appeals the denial of her request for an order

requiring Dennis Morris to designate her as the beneficiary of a military

retirement survivor benefits plan. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT RULINGS REVERSED; AND CASE

REMANDED.

Anjela A. Shutts of Whitfield & Eddy, P.L.C., Des Moines, and

Diana L. Miller of Whitfield & Eddy, P.L.C., Mount Pleasant, for

appellant.

John D. Hartung of Hartung & Schroeder, Des Moines, for

appellee.
 2

WATERMAN, Justice.

This case should serve as a vivid reminder to attorneys practicing

matrimonial law to specifically address survivor rights when dividing

retirement benefits. The fighting issue here is whether the award of “half

of the . . . Marine Corps Retirement” in the parties’ stipulated decree of

dissolution entitles the nonmilitary spouse to no more than fifty percent

of the monthly retirement pay while the retiree lives, without survivor

benefits. Trial counsel for Kathryn June Morris (Kathy), the petitioner,

and for Dennis Eugene Morris, the respondent, did not expressly address

the survivorship rights in their stipulation adopted by the district court

in the 2003 decree ending this twenty-three-year marriage. In 2010, new

counsel for each party disagreed whether the 2003 decree obligated

Dennis to designate Kathy for survivor benefits. Kathy would not receive

monthly retirement payments upon Dennis’s death without survivor

benefits. Kathy filed an application for a hearing to decide the issue.

Dennis resisted. The district court denied her relief, and the court of

appeals affirmed. On further review, we conclude the district court and

court of appeals erred and oversimplified the matter by characterizing

the issue solely as a request for modification of the 2003 decree. Rather,

this dispute should be treated as a request to interpret the 2003 decree.

Accordingly, we vacate the decision of the court of appeals and reverse

the 2010 rulings of the trial court. We remand the case for the district

court to determine its intent as to survivorship rights when it entered the

decree in 2003.

I. Background Facts and Proceedings.

Kathy and Dennis were married in the winter of 1980 in

Cedar Rapids, Iowa; the bride was age twenty and groom age twenty-two.
 3

They had three daughters while Dennis served in the Marine Corps all

but one or two years of their twenty-three-year marriage. Nearly all of

Dennis’s Marine Corps retirement benefits accrued during their

marriage. Dennis had the right to participate in the military’s survivor

benefit plan (SBP) pursuant to 10 U.S.C. §§ 1447–1455 (2006). 1 The SBP

plan, for a premium, provides monthly payments to the designated

survivor after the death of the military retiree. However, during their

marriage, the parties decided to forego the SBP benefit because electing

that benefit would have reduced Dennis’s monthly retirement benefit

payment. Instead, Dennis purchased a $350,000 life insurance policy on

his life with Kathy designated as the beneficiary. Dennis retired from the

Marine Corps late in the parties’ marriage.

Kathy filed for divorce in April 2003. That September, the parties

signed a ten-page “Stipulation and Agreement” on the terms for ending

their marriage. They agreed to joint legal custody of their minor children,

with Kathy to have physical care and Dennis to have specified visitation.

Dennis agreed to pay specified alimony for five years and child support to

the age of eighteen or through high school. Under the heading

“DIVISION OF PROPERTY AND DEBTS,” the stipulation in great detail

1Through the Uniformed Services Former Spouses’ Protection Act (USFSPA),
Congress recognized the right of state courts to distribute military retirement pay to a
former spouse and provided a method of enforcing these orders through the
Department of Defense if the former spouse is awarded a portion of a member’s military
retirement pay as property in his or her final divorce decree. 10 U.S.C. § 1408(a), (f)(8).
As part of its effort to protect former spouses of military personnel, Congress also
created the survivor benefit plan. See 10 U.S.C. §§ 1447–1455. The legislative history
of this statute “reveals that Congress intended to provide state courts with the option of
ordering military service members to participate in the [SBP] and to designate a former
spouse as beneficiary as part of a divorce agreement.” Matthews v. Matthews, 647 A.2d
812, 814 (Md. 1994) (citation and internal quotation marks omitted). Under 10 U.S.C.
section 1450(f)(4), state courts have the authority “to compel service members to elect
. . . certain persons as beneficiaries of their SBP’s.” Id.
 4

awarded each party particular vehicles, farmland, farm products, farm

equipment, and other farm-related assets and liabilities. The stipulation

further provided:

8. PENSIONS AND TRUSTS: Each party shall receive
half of the Respondent’s Marine Corps Retirement and any
Trans. World Airlines pension received in the future. The
Petitioner is awarded $31,500 cash in lieu of any interest she
has in the Respondent’s United Airlines Directed Account
Plan, with the Respondent awarded any remainder. The
Respondent is awarded his United Airlines Defined Pension
Benefits, while the Petitioner is awarded all proceeds from
her interest in the T.A. Cross Trust. The Respondent and
Petitioner will split equally any funds in IRA accounts owned
by either party.

9. STOCKS, BONDS, MUTUAL FUNDS, LIFE
INSURANCE: The Petitioner is awarded control over the
children’s mutual funds. The Petitioner and Respondent are
awarded equal amounts of the remaining brokerage
accounts, bonds (except savings bonds), stocks and mutual
funds, which shall be divided immediately upon entry of the
decree in such manner as to minimize any tax consequence.
Savings Bonds shall be awarded to the parties in whose
name the bond is currently in. The Parties are awarded the
life insurance policies in the party’s name. [Dennis] shall
immediately procure life insurance until age 60 in the amount
of $350,000, and each party shall pay half of the monthly
premium for $350,000 in coverage, with [Kathy] designated as
the primary Recipient and the Parties [sic] current children
secondary beneficiaries.

(Emphasis added.)

The final term of the stipulation states, “This agreement is the

entire agreement between the parties and cancels all prior agreements,

whether written or oral or implied.” The trial counsel for each party

signed the stipulation under the handwritten phrase, “Approved as to

Form Only.”

The stipulation was filed at 2 p.m. on September 18, 2003, with

notarized verifications signed by each party. At 2:37 p.m. the same day,

the District Court for Clarke County entered a three-page decree of
 5

dissolution that was also signed as “Approved by” Kathy and Dennis and

signed as “Approved as to form only” by their respective lawyers. The

decree stated the parties’ stipulation “has been presented to this Court

for its approval, is hereby approved, and the terms, agreements,

undertakings and conditions of such Stipulation and Agreement are

hereby incorporated in this Decree.” The decree expressly entered

judgment on “all the terms of the Stipulation.” The decree included a

finding and conclusion that “[t]he division of marital assets and liabilities

and spousal support provisions contained in the parties’ Stipulation and

Agreement are fair and equitable.” Kathy was then age forty-four and

Dennis age forty-six.

The parties are now age fifty-two and fifty-four, respectively.

Dennis has remarried. Dennis will begin receiving monthly retirement

benefits from his Marine Corps pension when he reaches age sixty in

May 2017. Kathy will receive half of those monthly payments. However,

unless Dennis affirmatively designates Kathy as the survivor under the

SBP, the retirement payments to each of them will end upon his death.

Federal law permits Dennis to designate a survivor when he reaches age

sixty. 10 U.S.C. § 1448(a)(1); id. § 12731. If Dennis does designate

Kathy as the survivor, his monthly retirement pay would be lowered by

approximately 6.5% to cover the premium for the survivor benefits. Id.

§ 1452(a)(1). Kathy has agreed to pay the difference in what Dennis

would receive. Under federal law, however, Dennis could designate his

new wife as the survivor, which would lower the monthly benefits he is to

share with Kathy during his remaining life starting at age sixty. Id.

§ 1448(a). Under that scenario, his designated second wife would get the

monthly survivor benefits, even though Kathy effectively pays half the

premium.
 6

In March 2010, Kathy filed an application for an order setting

hearing, which stated in its entirety:

1. On September 18, 2003, this Court entered a
Decree of Dissolution of Marriage (hereinafter “Decree”),
which approved the Stipulation and Agreement between the
parties.

2. Pursuant to the parties’ dissolution decree, “Each
party shall receive half of Dennis’s Marine Corps
Retirement.”

3. Kathy has applied for and received verification on
August 18, 2008 that she will receive one-half of the retired
pay pursuant to the Uniformed Services Former Spouses’
Protection Act.

4. However, Dennis failed to designate Kathy as the
surviving spouse to his military pension. Therefore, upon
Dennis’s death, Kathy will no longer receive any retirement
benefits.

5. Due to the length of the parties’ marriage (23 years)
and the fact that Dennis’s entire military pension was
accumulated during the parties’ marriage, it is equitable for
Dennis to be required to designate Kathy as the surviving
spouse and/or maintain life insurance to insure Kathy
receives the retirement following Dennis’s death.

6. A hearing should be set on this Application.

WHEREFORE, Petitioner Kathryn J. Morris prays this
Court grant her Application for an Order Setting Hearing.
Petitioner prays for any other and further relief as the Court
deems just and equitable in the premises.

This application was filed by Kathy’s current appellate counsel, who had

not represented her in 2003. Dennis also retained new counsel (his

current appellate counsel) to file a resistance.

The district court, after an unreported, nonevidentiary hearing,

entered a two-page ruling denying Kathy’s application, stating:

The Petitioner in her Application for an Order Setting
Hearing (Application), and in her counsel’s argument
thereon, requests the court to order the Respondent to
designate Petitioner as surviving spouse to his military
pension. She argues that she is not asking the court to
 7
modify the original Decree of Dissolution (Decree) by making
such request but, rather, asking the court to exercise its
equitable power to enter an order effectuating a provision of
the Decree as contemplated by the parties at the time of
stipulating to the provisions of the Decree. The provision
she has reference to is paragraph 8, “Pensions and Trust,”
on page 5 of the Stipulation and Agreement (Stipulation)
signed by the parties on September 17, 2003. Said
paragraph is a subparagraph under the heading “Division of
Property and Debts” (see page 2 thereof).

Subparagraph 12 on page 6 of the Stipulation
specifically addresses spousal support as a separate issue.

It is clear that the provision of the Decree and the
Stipulation addressing the interest of the Respondent and
the Petitioner in Respondent’s Marine Corps retirement is a
part of the property division and therefore not subject to
modification. (See Iowa Code sec. 598.21(7)).

On June 28, Kathy filed a motion pursuant to Iowa Rule of Civil

Procedure 1.904(2) to enlarge or amend the district court’s findings of

fact and conclusions of law. This motion was denied in a ruling filed

December 21, stating in pertinent part:

In this Motion the Petitioner specifically asks the court to
“. . . vacate or modify . . .” (p. 5(1) of the Petitioner’s Motion)
certain provisions of the Stipulation and Agreement adopted
by the September 18, 2003, Decree, even though the
Petitioner has not filed a Petition to Modify. The court has
no jurisdiction in this proceeding to modify the Decree or the
underlying Stipulation and Agreement entered into by the
parties.

In the alternative, the Petitioner asks the court, once
again, to exercise its equitable powers to require the parties
to abide by the intent of the parties as set forth in what it
describes as the unambiguous provisions of the Stipulation
and Agreement of the parties re Respondent’s Marine Corps
pension benefits, which provisions were adopted at the
request of the parties, without further clarification, by the
September 18, 2003, Decree. It is most likely that if the
provisions of the Stipulation and Agreement were clearly
unambiguous and required Respondent to do certain acts
which he has failed or refused to perform that the Petitioner
could have and would have filed an application for rule to
show cause. The Petitioner has not done so.
 8
The court declines the opportunity to enlarge or
amend its findings of fact and conclusions of law previously
entered except to find that the issue which the Petitioner has
asked the court to rule on herein is not ripe for ruling in that
it asks the court to speculate as to what the facts might be
at some future unspecified date. The court cannot do so on
the record herein.

Kathy’s timely appeal was transferred to the court of appeals and

decided by that court on July 27, 2011. The court of appeals correctly

observed that “a district court retains jurisdiction after a final order to

enforce the judgment, but ‘does not have the authority to revisit and

decide differently the issues concluded by that judgment.’ ” (Quoting

Franzen v. Deere & Co., 409 N.W.2d 672, 674 (Iowa 1987)). The court of

appeals affirmed the 2010 rulings that denied Kathy relief. The

unanimous three-judge panel of that appellate court concluded:

We cannot construe [Kathy’s] argument as seeking an
enforcement of a judgment already in place, particularly
where (1) the parties chose not to participate in the SBP
during their marriage, and (2) the SBP remains an option to
Dennis.

We granted Kathy’s application for further review.

II. Scope of Review.

We review this marital dissolution appeal de novo. In re Marriage

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

district court properly interpreted dissolution decree); see also 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 Pals, 714 N.W.2d 644, 646 (Iowa 2006) (“ ‘A

proceeding to modify or implement a marriage dissolution decree

subsequent to its entry is triable in equity and reviewed de novo on

appeal.’ ” (quoting In re Marriage of Mullen-Funderburk, 696 N.W.2d 607,

609 (Iowa 2005))). The parties agree our review is de novo.
 9

III. Analysis.

We are asked to decide whether the district court and court of

appeals erred in denying Kathy the relief she sought—an order

compelling Dennis to designate her as the survivor for his Marine Corps

retirement benefits. “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). The parties’ stipulation, however,

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.’ ” Accordingly, if the stipulation is unfair or contrary
to law, the court has the authority to reject the stipulation.

Id. at 593–94 (quoting In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa

1996)). 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 (citing Bowman v. Bennett, 250 N.W.2d 47, 50

(Iowa 1977)). “Therefore, in ascertaining the rights of the parties after

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

the intent of the parties.” Id. 2

Both the district court and the court of appeals rejected Kathy’s
request for relief because they treated it as an attempt to modify the

decree’s division of property. We agree that a property division generally

is not modifiable. Iowa Code § 598.21(7) (2011). Nevertheless, the

district court retains authority to interpret and enforce its prior decree.

2For that reason, we have concluded the intent of the parties and their counsel

is irrelevant without a showing their intent was shared with the judge entering the
decree that adopted their stipulation. Bowman, 250 N.W.2d at 51; see also Prochelo v.
Prochelo, 346 N.W.2d 527, 529 (Iowa 1984) (“We note parenthetically that it was
inappropriate to consider evidence of the parties’ private intentions regarding their
stipulation.”).
 10

See In re Marriage of Brown, 776 N.W.2d at 650. The district court and

court of appeals short-circuited the matter by characterizing Kathy’s

claim as a “modification.” See Sieren v. Bauman, 436 N.W.2d 43, 45

(Iowa 1989) (noting that a party’s contention that a judge improperly

modified a decree “is simply another way of saying that he believes the

judge erred in the interpretation he placed on that decree”).

Resolution of Kathy’s appeal turns on the disputed issue of

whether she is entitled to survivor benefits under the 2003 decree. That

begs the question whether survivorship rights were included in that

decree’s award to her of “half . . . the Marine Corps Retirement.” The

stipulated decree is ambiguous. If the district court intended the award

of “half the Marine Corps Retirement” to include survivorship rights,

Kathy is not seeking to impermissibly modify the dissolution decree as

Dennis contends. See In re Marriage of Brown, 776 N.W.2d at 648 (“ ‘We

. . . expressly recognize the ability of a party otherwise entitled to a

QDRO to obtain one as an aid to enforcing a previously entered

judgment.’ ” (quoting Rohrbeck v. Rohrbeck, 566 A.2d 767, 774 (Md.

1989))). We lack a ruling by the district court in this case determining its

intent in 2003 as to survivor benefits.

The parties’ 2003 stipulated decree divided extensive property

holdings accumulated over their twenty-three-year marriage and

provided for specified alimony, child support, and visitation. Negotiation

of stipulated decrees of dissolution involves give and take. The

provisions of the decree presumably are interrelated. We know from the

record that during their marriage the parties chose to purchase a

$350,000 life insurance policy to pay Kathy that amount upon Dennis’s

death, in lieu of his designation of her as the survivor under his Marine

Corps retirement SBP. And, we know that in their stipulated decree, the
 11

parties agreed Dennis would maintain the $350,000 life insurance policy

until he reached age sixty—the age Dennis’s Marine Corps retirement

would begin monthly payments. Their stipulated decree cryptically

awards Kathy “half . . . of the Marine Corps Retirement.” What we do not

know is whether the district court intended the award of half his Marine

Corps retirement to include survivor benefits or, instead, simply an equal

division of the monthly payments he would receive during his remaining

life. There was no trial or evidentiary hearing in 2003, nor is any

extrinsic evidence offered to interpret this ambiguous decree.

Other courts in this situation have adopted a default rule by

holding that a decree dividing retirement benefits includes survivorship

benefits. See, e.g., Zito v. Zito, 969 P.2d 1144, 1147–48 (Alaska 1998); In

re Smith, 56 Cal. Rptr. 3d 341, 349 (Ct. App. 2007); In re Marriage of

Payne, 897 P.2d 888, 889 (Colo. App. 1995); Conaway v. Conaway, 899

S.W.2d 574, 576 (Mo. Ct. App. 1995); Harris v. Harris, 621 N.W.2d 491,

498 (Neb. 2001). Several of these courts have allowed postdissolution

orders compelling the retiree to designate his former spouse as the

survivor to effectuate the division of retirement benefits in the original

decree. Zito, 969 P.2d at 1147–48; In re Smith, 56 Cal. Rptr. 3d at 349.

Other courts, however, have refused to allow postdissolution orders

awarding a former spouse survivorship rights when the decree does not

expressly contemplate the survivorship benefit. See, e.g., Potts v. Potts,

790 A.2d 703, 714–15 (Md. Ct. Spec. App. 2002); Williams v. Williams, 37

So. 3d 1196, 1202 (Miss. Ct. App. 2009), aff’d, 37 So. 3d 1171 (Miss.

2010); Stiel v. Stiel, 348 S.W.3d 879, 891–92 (Tenn. Ct. App. 2011).

Kathy invites us to presume the original decree includes the

survivorship benefits as part of her award of “half . . . the Marine Corps

Retirement.” Kathy notes her receipt of monthly retirement payments
 12

that begin in 2017 (when Dennis reaches age sixty) will end upon his

death unless he designates her as the survivor. Because Kathy offers to

pay the premium (the reduction in the monthly payments upon her

designation as survivor), Dennis would see no reduction in his own

monthly retirement payments. Under Kathy’s interpretation, Dennis

cannot designate his current spouse as the survivor. Should he do so,

he would unilaterally lower the retirement benefits to be paid to Kathy

while he remained alive and, of course, divert the survivor benefits to his

current spouse upon his death.

Regrettably, the parties’ trial counsel failed to specifically address

survivorship rights in the 2003 stipulated decree. We decline to

speculate whether the parties might have negotiated a different division

of property, for example, in exchange for Dennis’s express agreement to

designate Kathy as the survivor and, thereby, forfeit his right to

designate his current spouse. In our view, the better alternative at this

juncture is to remand this action to the district court to determine the

court’s intent as to survivor benefits in the 2003 decree.

IV. Appellate Attorney Fees.

Dennis requested an award of attorney fees incurred in this

appeal. The court of appeals awarded him $750 in appellate attorney

fees. We vacate that award. Following the hearing on remand, the

district court shall determine whether to award attorney fees to either

party and, if so, the amount to be awarded for fees incurred in this

appeal and in the postappeal district court proceedings.

V. Conclusion.

We vacate the decision of the court of appeals and reverse the 2010

rulings of the district court. We remand this case to district court for

further proceedings to interpret the 2003 decree by determining the
 13

court’s intent at that time as to the Marine Corps retirement survivorship

benefits. We assess the costs of this appeal equally to each party.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT RULINGS REVERSED; AND CASE REMANDED.