In re the Marriage of Neal

45 P.3d 1011, 181 Or. App. 361, 2002 Ore. App. LEXIS 739
CourtCourt of Appeals of Oregon
DecidedMay 8, 2002
Docket8701-60272; A110603
StatusPublished
Cited by13 cases

This text of 45 P.3d 1011 (In re the Marriage of Neal) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Neal, 45 P.3d 1011, 181 Or. App. 361, 2002 Ore. App. LEXIS 739 (Or. Ct. App. 2002).

Opinion

ARMSTRONG, J.

Wife appeals from a trial court order that determined that her one-third share of husband’s pension is based on the pension distribution formula applicable at the time of the parties’ dissolution rather than on the formula applicable at the time that husband began to receive his pension benefits. She contends that her share should be based on the later rather than on the earlier distribution formula. We agree with wife and reverse.

The facts are undisputed. The parties were married in June 1972. Shortly thereafter, husband was drafted by the Portland Trail Blazers of the National Basketball Association (NBA). Husband played in the NBA for approximately seven years until his retirement in 1979. In January 1988, an Oregon court dissolved the parties’ marriage. At the time of the dissolution, husband was 37 years old and wife was 35 years old.

One of the issues in the dissolution proceeding was whether wife was entitled to any of husband’s NBA pension benefits. Wife argued in her trial memorandum that “an appropriate division of the pension plan is to provide for [her] to receive one half of the retirement benefits at the time the retirement benefits are paid.” The dissolution court ruled in a letter opinion that wife was entitled to “one-third of the [NBA] pension benefits, when received by [husband].”

Wife’s lawyer drafted the dissolution judgment that the court entered. The section pertaining to husband’s NBA pension provides in relevant part:

“Wife shall be awarded 33-1/3 percent of that certain pension plan available to Husband through the National Basketball Association pursuant to a Qualified Domestic Relations Order * * *. The court shall retain jurisdiction of this qualified domestic relations order for the purposes of modification or amendment as required by the pension plan administrators. Each party shall sign the appropriate documents to effect the provisions of this qualified domestic relations order.”

The issue of wife’s share of the pension did not arise again until 2000, when husband contacted the administrator [364]*364of the pension plan to inquire about his ability to receive his pension benefits. At that time, husband learned that wife had not prepared a qualified domestic relations order (QDRO) and, hence, that the plan administrator was unaware of wife’s entitlement to a share of husband’s pension. After husband sent a copy of the dissolution judgment to the plan administrator, the administrator determined that wife’s share of the pension plan should be based on the distribution formula in effect at the time of the dissolution (1987 distribution formula) and not on the formula in effect at the time husband was to receive his pension benefits (2000 distribution formula). He sent wife a letter informing her of that decision and notifying her that, “[i]f the Pension Committee does not receive a written request to review this Preliminary Determination within 60 days after the date of this letter, then this Preliminary Determination shall automatically become the final determination.”

In response, wife sent a letter to the plan administrator objecting to the formula used to calculate her benefits. Eventually, after consulting with the pension plan’s attorney, wife drafted a proposed QDRO that granted wife one-third of husband’s pension plan based on the 2000 distribution formula. Wife then filed a motion with the trial court seeking entry of her proposed QDRO.

At the hearing on her motion, wife presented evidence that the increase in pension benefits from the date of the dissolution to the date that husband was entitled to receive his pension had nothing to do with any post-dissolution labor by husband. Instead, the increase was the result of decisions by the NBA to increase husband’s benefits based on the labor that he had performed before the parties’ dissolution. Wife’s attorney testified that, in his discussions with the pension plan’s attorney, the plan’s attorney indicated that, if the court entered wife’s proposed QDRO, the pension plan administrator would consider it to be a valid QDRO and would implement it accordingly. On cross-examination, wife’s attorney stated that the plan administrator was also willing to treat the language in the dissolution judgment as a QDRO, and, if the court did not enter wife’s proposed QDRO, she would be entitled to her one-third share of husband’s pension at the 1987 distribution formula rate.

[365]*365The trial court concluded that the pension provision of the dissolution judgment was ambiguous. It then applied rules of contract construction to the judgment, and, because wife’s attorney had drafted the dissolution judgment, the court construed the ambiguity in the judgment against her. It therefore awarded wife one-third of husband’s pension based on the 1987 distribution formula.

On appeal, wife argues that the trial court erred by using rules of contract construction to interpret the parties’ dissolution judgment, thereby erroneously awarding her pension benefits based on the 1987 distribution formula. Husband responds that the trial court ruled correctly, based on the language in the dissolution judgment and the interpretation of that language by the pension plan administrator. We agree with wife and reverse.

We begin by examining the language of the parties’ dissolution judgment to determine whether the provision concerning the division of husband’s NBA pension is ambiguous. A provision in a judgment is ambiguous if it is capable of more than one reasonable interpretation. Blomquist and Blomquist, 126 Or App 319, 322, 868 P2d 1356 (1994).

Husband contends that the “determination of whether an ambiguity exists should be made by the [NBA pension] plan administrator” and, because the “attorney for the plan had no problem applying the language in the [dissolution judgment] to award Wife a benefit,” the provision must be unambiguous. Wife counters that the plan administrator recognized that the provision might be ambiguous “when he invited a written request to review the preliminary determination.” Neither argument is persuasive.

The simple answer to husband’s argument is that the construction of the judgment ultimately presents an issue for the court. Although pension plan administrators and others may have to interpret dissolution judgments and QDROs in order to implement them, when a dispute arises about the meaning of those documents, it is the court’s role to resolve that dispute if the issue is properly presented to the court for [366]*366resolution. Here, husband would have the plan administrator assume the court’s role. By allowing the plan administrator to determine whether an ambiguity exists, the administrator would, in effect, decide for the court what the judgment requires. It is our role, not the administrator’s, to make that determination. In doing so, we must examine the text of the provision in the context of the dissolution judgment as a whole.

The pension provision provides that “Wife shall be awarded 33-1/3 percent of that certain pension plan available to Husband through the National Basketball Association,” but it fails to specify at what time wife’s share should be calculated. Nothing else in the judgment sheds light on that question. We conclude that the provision is ambiguous because wife’s one-third share reasonably could be based on either the formula in effect at the time of the judgment or that in effect at the time of the distribution.

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Cite This Page — Counsel Stack

Bluebook (online)
45 P.3d 1011, 181 Or. App. 361, 2002 Ore. App. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-neal-orctapp-2002.