IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
ROBERT C. WOODFORD,
Petitioner and Appellant,
and
LORRAINE L. WOODFORD,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. Russell Plath, Halverson, Sheehy & Plath, P.C.,
Billings, Montana
For Respondent:
Damon L. Gannett, Gannett & Ventrell, Billings,
Montana
Submitted on Briefs: June 4, 1992
Decided: October 15, 1992
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
This is an appeal from an order of the Thirteenth Judicial
District Court, Yellowstone County, denying appellant Robert C.
Woodfordls motion to enter a Qualified Domestic Relations Order.
We affirm.
The following issues are raised on appeal.
1. Does the District Court's "Order On Petitioner's Motion
to Enter a Qualified Domestic Relations Order" constitute a final
judgment or order from which an appeal may be taken?
2. Do retirement benefits earned and contributed to a
retirement account after the date of the decree of dissolution
become part of the marital estate?
The parties were married in Reno, Nevada, on October 17, 1952.
Four children were born to the marriage, all of whom are now
emancipated. Robert filed for dissolution on May 25, 1989.
Respondent Lorraine L. Woodford filed her response on July 20,
On December 29, 1989, the parties entered into a separation
agreement. The separation agreement contained the following
provision:
8.MAINTENANCE PAID TO WIFE: The parties agree
that the Husband will make monthly maintenance payments
to the Wife in the amount of $500.00 per month until the
Husband retires from the United States Navy. Upon the
Husband taking full retirement, the monthly federal
government retirement benefit paid to the Husband shall
be split equally with the Wife for the balance of her
life. It is agreed between the parties that when the
Wife receives an increase in her Social Security
Retirement benefit, the monthly amount of maintenance
paid to the Wife shall be reduced by the same amount as
the Wife's Social Security benefit has been increased.
Also on December 29, 1989, the District Court entered its
findings of fact, and conclusions of law and decree of dissolution.
The court approved of the parties' separation agreement, found it
not unconscionable, and incorporated it into the court's decree.
On September 26, 1991, Robert filed a Motion for Entry of a
Qualified Domestic Relations Order (QDRO). A QDRO allows someone
other than the person who earned a federal pension to directly
receive a part of that pension. Along with the motion, Robert
filed a proposed QDRO which contained the following provision:
Lorraine L. Woodford is awarded an amount equal to
fifty percent (50%) of the monthly retirement benefits
attributable to the Participant's CSRS Participation
through December 29, 1989. At her option, the Assignee
can have her payments begin at any date after the
Participant is eligible to receive benefits under the
CSRS .
The amount of Lorraine L. Woodford's monthly benefit
shall be reduced by the same amount as her social
security benefit has been increased since December 29,
1989. Pursuant to Section 831.1705 of the CSRS
regulations the Assignee's December 29, 1989 social
security earnings of two hundred twenty five dollars
($225.00) is the basis for calculating reduction of the
Assignee's monthly benefit.
On December 20, 1991, the District Court entered its order.
The court concluded that the proposed QDRO did not conform with the
parties' separation agreement and ordered Robert to submit a QDRO
which conformed with the separation agreement. Robert never filed
another proposed QDRO, and instead filed a notice of appeal with
this Court.
I.
Does the District Court's "Order On Petitioner's Motion to
Enter a Qualified Domestic Relations Ordern constitute a final
judgment or order from which an appeal may be taken?
Lorraine contends that the District Court did not intend that
its order denying Robert's motion to enter a QDRO be considered a
final order. We disagree.
Rule l(b)(2), M.R.App.P., grants an appeal "from any special
order made after final judgment . . . ." In Butler v. Brownlee
(1969), 152 Mont. 453, 451 P.2d 836, this Court held that an order
modifying child custody and support award in a divorce decree is a
"special order made after a final judgment." The decree of
dissolution entered on December 29, 1989, was a final judgment in
this case. Section 40-4-108(1), MCA, provides that a decree of
dissolution is "final when entered, subject to the right of
appeal." Tn its order of December 20, 1991, the District Court
ordered Robert to submit within twenty days a QDRO that conformed
to the order denying Robert's motion to enter a QDRO. Although on
its face the order appeared interlocutory, the order constituted a
"special order made after final judgment" and failure to file a
notice of appeal within 30 days would have closed Robert's right to
an appeal. If the effect of the order is to destroy an appellant's
right to an appeal, then that order, though interlocutory should be
appealable. Bowen v. True Valu Stores, Inc. (1987), 229 Mont. 84,
745 P.2d 330. We hold that the appeal is properly before this
Court.
Do retirement benefits earned and contributed to a retirement
account after the date of the decree of dissolution become part of
the marital estate?
We have stated that retirement benefits are part of the
marital estate, and therefore, constitute marital property. In re
Marriage of Rolfe (1985), 216 Mant. 39, 699 P.2d 79 (Rolfe I).
Under Montana law, property settlement agreements are considered
contracts, and therefore. must be construed under the law of
contracts. In re Marriage of Quinn (1981), 191 Mont. 1 3 3 , 622 P.2d
230; Section 40-4-201(5), MCA. If the language of a property
settlement agreement is clear and explicit, it controls the
agreementqsinterpretation. puinn, 622 P.2d at 232. This case is
analogous to a recent case decided by this Court in In re Marriage
of McKeon (Mont. 1992), 826 P.2d 537, 49 St. Rep. 127. In that
case, the District Court ruled that the property settlement
agreement provided that the husband pay maintenance to the wife for
the remainder of her life regardless of whether she remarried.
Husband appealed the District Court's interpretation of the
separation agreement. We affirmed the District Court's
interpretation that the contract contained plain and unambiguous
language that maintenance was to extend for the remainder of the
wife's life.
Section 28-3-303, MCA, provides that the writing contained in
the contract generally determines the intention of the parties:
When a contract is reduced to writing, the intention of
the parties is to be ascertained from the writing alone
if possible, subject, however, to the other provisions of
this chapter.
Section 40-4-201(3), MCA, governs separation agreements, and
the standard that would warrant a reopening of a judgment is a
finding of unconscionability by the District Court. Robert fails
to provide any facts, or to allege on appeal, that the property
settlement agreement is unconscionable. Instead, Robert argues
that his retirement benefits earned and contributed to his
retirement account after the date of the decree dissolving the
marriage are not part of the marital estate. This is not what the
parties agreed to in their property settlement agreement.
The plain and unambiguous language of the contract provided
that Robert's monthly federal government retirement pension "shall
be split equally with the Wife for the balance of her life." It
does not state on what date Robert's earnings or contributions to
his retirement fund should not be taken into account for the
division and distribution of retirement payments. The original
agreement only speaks for deductions in maintenance payments for
social security increases and not for deductions in retirement
benefits.
The parties were represented by counsel and understood the
terms of the agreement. See generally, In re Marriage of Laskey
(Mont. 1992), 829 P.2d 935, 49 St. Rep. 322. Lorraine is entitled
to the benefit of her bargain. Robert's proposed QDRO was nothing
more than an attempt to modify the original separation agreement.
This Court has held that where there is no ambiguity, the
court is without power to insert new provisions into the contract.
McKeon, 826 P.2d at 540. We have also held that "it is the duty of
the district court to enforce contracts not to make new ones for
the parties, however unwise the terms may appear.'I McKeon, 826
P.2d at 540. We hold that the District Court did not err in
concluding that the proposed QDRO did not conform to the separation
agreement.
We affirm.
We concur:
Chief Justice
I October 15, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
R. Russell PIath
HALVERSON, SHEEHY & PLATH, P.C.
P.O. Box 1817
Billings, MT 59103-1817
Damon L. Gannett
GANNETT & VENTRELL
P.O. Box 1375
Billings, MT 59103-1375
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA