Clements v. Clements

Decision Date12 May 2020
Docket NumberCase No. 117,592
Citation478 P.3d 938
Parties In re the Marriage of: Margaret A. CLEMENTS, Plaintiff/Appellant, v. Richard D. CLEMENTS, Defendant/Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

George H. Brown, Tony Gould, BROWN & GOULD, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant

Betsy Ann Brown, Brayden Jennings, BIC LEGAL PLLC, Norman, Oklahoma, for Defendant/Appellee


¶1 Wife Margaret A. Clements appeals the trial court's order of November 16, 2018, in which it determined the division of Husband Richard D. Clements' OG&E retirement in an earlier decree awarded Wife "one-half (1/2) of the marital portion" rather than one-half of Husband's total OG&E pension. After review, we affirm as modified and remand with directions.


¶2 On April 29, 1999, Husband and Wife entered into an agreed divorce decree which in part granted her (1) "One-half (1/2) [Husband's] Chamber retirement," (2) "One-half (1/2) [Husband's] OG&E stock and 401K investments," and (3) "One-half (1/2) [Husband's] OG&E retirement." After the divorce in June 1999, the trial court approved two Qualified Domestic Relations Orders (QDROs) for Husband's Chamber retirement and for the OG&E stock and 401K investments. Husband had worked for OG&E for only four years as of that time, and he had not yet vested in the retirement plan, which required five years. Therefore no qualified QDRO for this benefit could be approved. Husband continued to work for OG&E, ultimately retiring in July 2017.

¶3 On March 8, 2017, Husband filed a QDRO for his OG&E retirement, which defined Wife's benefit as "50% of the Participant's accrued benefit between the date of marriage and the date of separation/divorce." Wife asserts she did not receive notice of the QDRO and it failed to include a certificate of mailing showing she received notice.

¶4 On December 29, 2017, Husband filed a motion to settle the QDRO stating that although Wife had already received half of both his Chamber retirement and OG&E stock and 401K investments, a QDRO was needed to distribute his OG&E retirement because he retired in July 2017. Husband, arguing Wife is entitled to half of the marital portion of the retirement, not half of his total retirement, asserted that based on the marital portion of his retirement, Wife was entitled to 9.8% of the total pension payment.

¶5 Wife responded that because she and Husband entered into a consent decree in which they specifically agreed Wife "would be entitled to a full one-half of [Husband's] OG & E retirement if he stayed long enough to become vested," she is entitled to this amount, not simply half of the marital portion. She emphasizes that the language in the decree unambiguously states she is to receive "One Half (1/2) [Husband's] OG & E retirement," not half of the marital portion of his retirement. The consent decree, she argues, is valid and enforceable with "the same force and effect as a contract" as long as it does not contravene public policy. And because the decree is a final order which was never appealed, the trial court, according to Wife, lacks jurisdiction to modify it. In her counter-motion to settle the QDRO, Wife asks the trial court to deny Husband's QDRO and to approve her attached QDRO.

¶6 After a hearing on February 9, 2018, the trial court directed the parties to include the language from the decree in the QDRO and did not determine whether the language in the decree meant half only of the marital portion of Husband's retirement or of all of it. The trial court concluded in part:

... I've got to go with the language that's in there, if there's a dispute as to what language that's to be in there. You're saying add "the marital portion," which very well may have been their intent. But then on the other hand, it may not. You know, we don't know. ... So the language that's here may be unfortunate, but it is, you know, it is the language that they used at the time.

¶7 On July 24, 2018, Husband filed a motion to settle journal entry asserting, "The parties have been unable to agree as to the language to be contained in the Journal Entry and as such, request the court make a determination as to which Journal Entry should be executed by the court."

¶8 Wife filed a response and cross-motion to settle journal entry with an attached QDRO arguing in part:

4. Following this Court's [February 2018] decision, counsel for Plaintiff ... submitted the QDRO to the third-party administrator for the OG&E Pension as to QDRO matters, Fidelity, for preapproval. The draft QDRO included the language ordered by this Court.
5. As this Court predicted, Fidelity rejected the QDRO as written for a lack of specificity. In fact, in its two-page rejection letter, Fidelity stated as follows:
"Please be advised, the Order must state the award as a specified percentage or amount of the Participant['s] vested accrued benefit in the Plan. ... Additionally, the Order does not state a valuation date on which to value that benefit in order to determine the Alternate Payee's one half share."

Wife asked the trial court to settle the journal entry and enter the attached QDRO which she claimed "accurately reflects the orders of this Court entered on February 9, 2018."

¶9 On September 20, 2018, the trial court denied Husband's motion to settle and granted in part Wife's counter-motion to settle the QDRO, stating:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that [Wife's] Qualified Domestic Relations Order is approved in all respects except Paragraph 8 which will award Plaintiff "One-half of defendant's OG&E retirement." The Court's complete ruling is found within the Transcript of Proceedings from February 9, 2018.

¶10 This ruling did not resolve the parties' dispute and was insufficient for the plan administrator to calculate Wife's award of benefits. On September 27, 2018, Wife filed a motion to reconsider this order stating:

In light of Fidelity's rejection of the QDRO ordered by the Court (ultimately filed herein on September 27, 2018), [Husband's] commencement of his OG&E Pension benefit is on hold and [Wife] cannot receive her share of the same. Therefore, for the reasons stated herein, [Wife] respectfully requests that the Court reconsider its Order entered herein on February 9, 2018, and the QDRO filed September 27, 2018 which adhered to this Court's Order.

Wife asked the trial court to "amend the QDRO filed September 27, 2018 by instead entering the QDRO proposed by [Wife] in her Counter-Motion to Settle" and grant Wife any further relief the court deemed just and equitable including attorney fees and costs.

¶11 In response to Wife's motion to reconsider, Husband argues her request "requires the Court to divide future earnings which is outside of the court's jurisdiction." Husband urges the trial court to "either (1) use the date of marriage to the date of divorce as the division dates as this incorporates the time the parties' property is lawfully divisible; or (2) determine the marital portion of the whole pension upon retirement which equates to 17% of [Husband's] pension." Husband further urges the trial court to "review the intent of the parties to determine the true meaning of the orders entered" as it was not Husband's "intent to divide an additional 18 years of accrued benefit after divorce."

¶12 On November 16, 2018, the trial court considered Wife's motion to reconsider and concluded:

The Court orders that [Husband's] OG&E Pension shall be divided by Qualified Domestic Relations Order [QDRO] awarding [Wife] one-half (1/2) of the marital portion. The parties were married on June 19, 1976 and the parties were divorced on April 29, 1999.

The trial court then ordered Husband's counsel to prepare an amended QDRO which was filed that same day stating as to the provision in question:

8. The Court Orders that the Alternate Payee is entitled to one-half (1/2) of the Participant's vested accrued benefit in the Plan from the date of marriage June 19, 1976 to the date of divorce, April 29, 1999.

¶13 Wife appeals.


¶14 On September 20, 2018, the trial court denied Husband's motion to settle and granted in part Wife's counter-motion. On September 27, 2018, Wife filed a motion to reconsider this order. Because the motion to reconsider was filed within 10 days of the filing of the order, we will treat it as a motion for new trial. The Oklahoma Supreme Court in Fox v. Mize , 2018 OK 75, ¶ 5, 428 P.3d 314, held:

If timely filed ... a motion to reconsider may be regarded as one for new trial under 12 O.S. 2011 § 651 (if filed within ten (10) days of the filing of the judgment, decree, or appealable order), or it may be treated as a motion to modify or to vacate a final order or judgment under the terms of 12 O.S.2011 § ... 1031.1 (if filed after ten (10) days but within thirty (30) days of the filing of the judgment, decree, or appealable order).

"The standard of review for ... denial of a motion for a new trial ... is abuse of discretion." Id . ¶ 6. "A trial court abuses its discretion when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Id.

¶15 A court has jurisdiction to enter a QDRO that clarifies a decree but may not enter one that modifies or alters the decree. "In that a question concerning the jurisdictional power of the trial court to act as it did is implicated[,] our standard of review is de novo ." Jackson v. Jackson , 2002 OK 25, ¶ 2, 45 P.3d 418. Whether an ambiguity exists "in the language of the decree is a decision made by the trial court." Ryan v. Ryan , 2003 OK CIV APP 86, ¶ 8, 78 P.3d 961. "If the court determines that the language is not ambiguous, the construction of the decree is also a matter of law for the court." Id . Matters of law invoke a de novo review "which involves a plenary, independent and non-deferential examination of a trial court's legal rulings." Jack...

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1 books & journal articles
  • Review of the Year 2020 in Family Law: COVID-19, Zoom, and Family Law in a Pandemic
    • United States
    • ABA General Library Family Law Quarterly No. 54-4, January 2021
    • 1 janvier 2021
    ...129 N.Y.S.3d 177, 179 (App. Div. 2020). 401. Id. (citing Majauskas v. Majauskas, 463 N.E.2d 15 (N.Y. 1984)). 402. Clements v. Clements, 478 P.3d 938, 940, 945 (Okla. Civ. App. 2020). 403. Dobbins v. Dobbins, 234 A.3d 223, 225–26 (Me. 2020). 404. Id. at 228. Published in Family Law Quarterly......

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