Halbert v. Halbert

469 S.E.2d 534, 220 Ga. App. 615, 96 Fulton County D. Rep. 1249, 1996 Ga. App. LEXIS 291

• Court: Court of Appeals of Georgia
• Decided: March 12, 1996
• Docket: A95A2802
• Status: Published

Opinions

Pope, Presiding Judge.

The question in this case is whether an ex-wife, under the terms of a qualified domestic relations order (“QDRO”), has the option of continuing to receive alimony beyond her ex-husband’s unreduced retirement date, or whether she must instead accept 35 percent of the retirement funds to which the husband would be entitled if he retired. Concluding that the QDRO was ambiguous on this issue, the trial court considered parol evidence and ruled that the ex-wife had the option to choose whether to continue to receive alimony or to collect her portion of the retirement funds. We cannot agree that the QDRO was ambiguous, however, and therefore reverse.

Paragraph 3 of the QDRO provides: “The Wife shall be entitled to 35% of the Husband’s interest in the retirement benefits payable under the Plan. Upon the earlier to occur of (i) the Husband’s retirement or (ii) the Husband’s Unreduced Retirement Date (as such term is defined in the Plan), the Plan shall pay to the Wife, whether or not the Husband has retired, an amount equal to 35% of all funds from the Plan to which the Husband is entitled or would be entitled if he retires . . . The Wife shall also be entitled to receive 35% of any early retirement subsidy available to the Husband when the Husband actually retires.” (Emphasis supplied.) This language clearly mandates that the ex-wife begin receiving the retirement benefits upon the ex-husband’s retirement or unreduced retirement date, whichever occurs earlier. No option is mentioned.

The trial court nonetheless found an ambiguity was created by the following language from paragraph 7 of the QDRO: “The Wife further reserves the right to obtain any benefits that may be available to her under the Plan, subject to any applicable reduction, at any time that the Husband may have had the right to retire from Lexmark with vested pension benefits under the Plan.” But this sentence is taken from the middle of a paragraph about benefits which may become available in the future; the full paragraph states: “The Wife reserves the right to obtain any benefits which may in the future become available to her under the Plan in the event that future federal legislation mandates, or Lexmark elects to permit, such benefits be made available to her (such as, for example, the right to obtain benefits in a lump sum). The Wife further reserves the right to obtain any benefits that may be available to her under the Plan, subject to any applicable reduction, at any time that the Husband may have had the right to retire from Lexmark with vested pension benefits under the Plan. Wife acknowledges that she will no longer be eligible for plan updates once she has begun to receive benefits under the Plan.” While paragraph 7 itself is not well written, the only reasonable way to read it is that its provisions refer only to rights or benefits which may become available as the result of a future change in the law or the plan. The trial court’s reading of this paragraph strains logic and creates a conflict with paragraph 3 that need not exist. See Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641) (1989) (phrases must be read in context with surrounding language, and each provision should be read to harmonize with others if possible).

As the QDRO was not ambiguous and clearly mandated that the ex-wife begin collecting retirement benefits from the time of the ex-husband’s unreduced retirement date, the trial court’s ruling giving her the option of collecting them or not was error.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., dissents.