Opinion
No. 93661
Decided: June 30, 2000 Rehearing Denied August 25, 2000 Certiorari Denied January 23, 2001 Modified: February 21, 2001 Mandate Issued: February 16, 2001
APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE TODD WILLIAM SINGER, JUDGE.
AFFIRMEDN. Scott Johnson, Tulsa, Oklahoma, for Appellants.
Jon E. Brightmire, Richard J. Eagleton, Tulsa, Oklahoma, for Appellee.
OPINION
¶ 1 Appellant, James F. Taylor, appeals the order of the trial court denying his Motion For New Trial And/Or In the Alternative Motion to Reconsider its order approving a Qualified Domestic Relations Order (QDRO). The order was entered to effect the transfer of the award of the marital interest in Appellant's retirement fund, pursuant to the divorce decree of the parties, to Appellee, Elizabeth A. Taylor. The order of the trial court provides:
The parties' divorce decree provides, with regard to the division of Appellant's retirement:
15. The Court further finds as a division of the parties' jointly acquired property, the Plaintiff should be awarded as her separate property, free and clear of any right, claim, and interest of the Defendant, the following, to-wit:
. . .
The marital interest in Defendant's Teachers' Retirement System of Oklahoma . . . accumulated, accrued, and earned from June 23, 1985, through April 19, 1994, along with all gains, losses, appreciation, or interest thereon from and after April 19, 1994, which the Court values at $39,514.37 (by Qualified Domestic Relations Order);. . . .
1. THIS COURT FINDS that the Qualified Domestic Relations Order (the "QDRO") requested by Plaintiff effects the transfer of the marital interest in Defendant's Oklahoma Teachers' Retirement System Benefits Plan in the Decree of Divorce entered October 3, 1997, and that the same should be, and thereby is, entered over the objection of Defendant.
2. THIS COURT FURTHER FINDS that, upon the request of Defendant, this Court hereby authorizes Plaintiff to file the QDRO entered today with the Court Clerk in and for Tulsa County, but not to serve the QDRO on the Oklahoma Teachers' Retirement System until further order of this Court.
¶ 2 The QDRO, issued pursuant to 70 O.S.Supp. 1999 § 17-109[ 70-17-109](B) for dividing retirement benefits under the Oklahoma Teachers' Retirement System (OTRS) provides, inter alia:
2. Amount or Percentage:
The Alternate Payee [Appellee] is awarded 100% of the benefit accrued from June 23, 1985, to April 19, 1994.
3. Number of Payments:
The Alternate Payee shall receive the above-referenced percentage of the value of all parts of the Member's account over the Member's lifetime payable in lifetime monthly payments by OTRS.
4. Applicable Plan:
This Qualified Domestic Order shall apply to the General Defined benefit plan authorized by 70 O.S. 1991 § 17-101[ 70-17-101], et seq., of the Oklahoma Teachers' Retirement System. § 17-109(B)(5)(d)
¶ 3 The order also provides that the payment of benefits to an alternate payee is not required prior to Appellant's actual retirement date and that the obligation of OTRS to pay an alternate payee shall cease upon Appellant's death.
¶ 4 He also contends the order incorrectly awards Appellee retirement benefits which are his separate property. Appellant was allowed to purchase five years of eligibility for teaching in another state after he had achieved ten years of service at the Oklahoma College of Osteopathic Medicine. He contends that the five years represents experience received prior to the marriage. Therefore, Appellant argues Appellee would receive benefits which were earned prior to marriage and which are his non-divisible, separate property, although the five years' experience was purchased during the marriage.
¶ 5 For reversal, Appellant contends:
1. The trial court's rewriting of the parties' substantive stipulation is contrary to law and an abuse of discretion.
2. The trial court's modification of the division of property after the expiration of the term time to include Appellant's separate property in the division of the marital estate and the awarding of Appellant's separate property to Appellee is contrary to Oklahoma law, against the clear weight of the evidence and an abuse of discretion.
¶ 6 Appellant contends that the trial court rewrote the divorce decree provision relating to the division of retirement benefits in a specified sum, and that the order is an improper modification of a divorce decree which had become final and unappealable. In so doing, Appellant contends, the trial court disregarded a stipulation of the parties made pursuant to a property settlement which should be treated as a contract between himself and Appellee.
¶ 7 At the time of the divorce, the parties stipulated the marital portion of the OTRS fund had a value of $39,514.37. Appellee proposed that each party receive 50%, and Appellant proposed that he receive the entire fund. However, the court awarded the entire marital portion to Appellee. The language used by the court in the divorce decree awards the marital interest which is represented by the benefits "accumulated, accrued, and earned" for a particular period, rather than a specific sum. The court's valuation on the marital interest was the stipulated amount submitted by the parties for purposes of property settlement. We note the decree does not award Appellee "the sum of $39,514.37 contained in the fund", or "the retirement fund up to $39,514.37." The decree provides:
The marital interest in Defendant's Teachers' Retirement System of Oklahoma . . . accumulated, accrued, and earned from June 23, 1985, through April 19, 1994, along with all gains, losses, appreciation, or interest thereon from and after April 19, 1994, which the Court values at $39,514.37 (by Qualified Domestic Relations Order); . . . [Emphasis supplied.]
¶ 8 The QDRO, as well, gives Appellee the entire marital interest in the fund for the period of the marriage. We, therefore, find the decree and the QDRO are consistent. Also, the court did not rewrite the parties' stipulation as to the value of the fund, because the parties stipulated the entire marital interest was valued at $39,514.37.
¶ 9 Appellant also complains that the trial court's QDRO modified the divorce decree by including his separate property in the award to Appellee. His purchase of five years' experience from another state to apply to his OTRS fund occurred during the marriage, although the experience it represented occurred prior to the marriage. Appellee responds that this evidence was raised too late. At the hearing on the motion for new trial and/or motion to reconsider, the trial court also questioned why the issue was not raised earlier:
THE COURT: I just think that if you had access at the time to go behind the numbers of this retirement fund, I don't see how you have a right — if there was an opportunity to gather new evidence later on that wasn't available to you at the time of trial, that would be one thing.
. . .
THE COURT: Back to — okay. Back to this argument. If you had the ability to find out that it was worth more at the time of trial, and you weren't impeded in any way, and now we find out suddenly it is worth more, do you think you can come in and ask — or that you can complain?
¶ 10 It was argued at the above hearing that Appellant had requested a provision in the divorce decree that, of the OTRS fund, he would be awarded the interest earned or accumulated prior to the marriage, and that the subject five years' experience was "earned or accumulated" prior to the marriage. The court asked if the term "purchased" was included in the divorce decree, and stated, "Because we all agree now that it was purchased presumptively by marital funds in `86; is that right?" Appellant's counsel answered that he considered it "earned", that they had stipulated as to the value of the marital interest, and that it was, therefore, unnecessary to indicate in the decree that it was "purchased". In other words, there apparently was no request by Appellant to distinguish the five years of service from the rest of the fund, and no evidence was offered about the five years to bring the issue to the court's attention.
¶ 11 Appellant was apparently willing to stipulate that the value of the marital interest in the fund was a particular amount, i.e., $39,514.37, thinking he would receive the funds attributable to the five years in question as funds "earned or accumulated" prior to the marriage. However, he failed to present evidence or to raise any issue about the nature of the funds, or how he believed they should be characterized. The failure to raise the issue resulted in the funds becoming part of the marital interest. This Court will not entertain a theory for reversal advanced for the first time on appeal unless the error is fundamental. Moreover, it is undisputed the five-year period was purchased during the marriage, presumably with marital funds, and he was not eligible to purchase it until sometime during the marriage. In its ruling, the trial court stated:
Gallagher v. Enid Regional Hosp., 1995 OK 137, 910 P.2d 984, 986; McKinney v. Harrington, 1993 OK 88, 855 P.2d 602, 604.
Westlake Presbyterian Church, Inc. v. Cornforth, 1996 OK CIV APP 159, 940 P.2d 1208, 1210.
[I] understand that I am ruling from today on — my decision today is strictly this, without any other innuendo, without any other infusion of opinion or comments or interpretations. That this Court is awarding the marital interest in the defendant's Teachers Retirement System of Oklahoma, . . . accumulated, accrued, and earned from June 23rd, 1985, to April 19th, 1994, to the plaintiff, period. Whatever it is, it is.
¶ 12 The Supreme Court has held many times that retirement funds of either spouse, to the extent they were acquired during coverture, are subject to division as jointly acquired property. Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646; Stokes v. Stokes, 1987 OK 56, 738 P.2d 1346; Gates v. Albin, 1983 OK 42, 662 P.2d 1370. However, the portion of the fund actually acquired during coverture and its value are factual issues for the court's determination based on the circumstances of each case. See Rice v. Rice, 1988 OK 83, 762 P.2d 925.
¶ 13 A QDRO constitutes the mechanism by which the terms of a domestic relations order is enforced and collected, with regard to covered retirement programs. See Ozment v. Ozment, 2000 OK CIV APP 52, 891 P.2d 1303, citing Nichols v. Nichols, 1995 OK CIV APP 22, 891 P.2d 1303. The trial court has authority to conform a QDRO to the terms of the underlying divorce decree, where there is an apparent conflict, as long as no impermissible modification of the property division of the decree is effected. Ozment v. Ozment, supra, citing with approval, Elsasser v. Elsasser, 989 P.2d 106 (Wy. 1999). We find the trial court's QDRO, awarding the entire marital interest in the OTRS funds to Appellee, was consistent with the divorce decree and was not against the weight of the evidence presented.
¶ 14 AFFIRMED.