In re Piller
| Decision Date | 06 April 2022 |
| Docket Number | A171362 |
| Citation | 318 Or.App. 836,508 P.3d 553 |
| Parties | In the MATTER OF the MARRIAGE OF Elizabeth Louise PILLER, Petitioner-Respondent, and Stephen Louis Piller, Respondent-Appellant. |
| Court | Oregon Court of Appeals |
Chelsea D. Armstrong, Salem, argued the cause for appellant. Also on the briefs was Armstrong Chai, LLC.
Laura Graser, Portland, argued the cause and filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and Kistler, Senior Judge.*
In this dissolution case, husband appeals three supplemental judgments dividing various deferred compensation accounts between the parties. He argues that the supplemental judgments are inconsistent with the unambiguous terms of the dissolution judgment and that the trial court used an incorrect rate of return in calculating wife's share of one deferred compensation account. We affirm.
Husband and wife were married from September 2, 1993, until August 17, 2004, when the Washington County Circuit Court entered a stipulated dissolution judgment. The dissolution judgment recites that, during their marriage, wife was a member of the Public Employees Retirement System (PERS) and that husband "ha[d] retirement accounts established at PERS and ING [later renamed Voya], and may have an account with Aetn[a] Life Insurance and Annuity Co." The judgment sets out the approximate value of those accounts at the time of dissolution: $5,498 for wife's PERS account and $141,581 for husband's accounts. The judgment then provides that, "[t]o the extent retirement accounts exis[t], they shall be divided equally between the parties." Finally, the judgment directs wife to submit a Qualified Domestic Relations Order (QDRO) and retains jurisdiction "over these matters until the intent of this paragraph is carried out."1
Wife did not submit a QDRO to the court for 15 years. In the interim, husband retired. He elected to take a "lump sum option 2" payment of his PERS pension benefits; that is, at retirement, PERS paid husband a lump sum based on the amount in his member's account and a monthly benefit based on the amount of contributions that his employer made to the PERS Fund.2 Husband also received a distribution from his deferred compensation plan and a distribution from his PERS Individual Account Plan (IAP). Because neither husband nor wife notified PERS or the custodian of husband's deferred compensation plan of the 2004 dissolution judgment, all the benefits from those accounts were paid directly to husband after he retired in 2014. Husband rolled the lump-sum payment, the distribution from his deferred compensation plan, and the distribution from his IAP into an IRA at Raymond James.
In 2019, wife retained an attorney, Ann Mercer, to prepare a QDRO, which resulted in three proposed supplemental judgments. The first proposed supplemental judgment was directed to Raymond James. It awarded wife $187,237.22 for her share of the retirement benefits that husband had rolled into his Raymond James IRA—the lump-sum payment from PERS, the distribution from husband's IAP account, and the distribution from his deferred compensation account. Additionally, the first proposed supplemental judgment awarded wife $36,576.89 for her share of the monthly PERS benefit payments that husband alone had received from 2014 to 2019.
The second proposed supplemental judgment was directed to PERS and awarded wife prospectively 29.54 percent of the "gross monthly retirement benefit currently being paid to" husband. The second supplemental judgment does not disclose the methodology Mercer used to determine that wife was entitled to 29.54 percent of husband's monthly PERS benefit.
The third proposed supplemental judgment was directed to PERS and awarded husband a share of wife's PERS benefits. We do not describe that judgment further. As explained below, having stipulated to the third supplemental judgment, husband may not challenge it on appeal.
Before wife submitted the proposed supplemental judgments to the court, husband filed an anticipatory objection.
Later, wife filed a motion to show cause why the proposed supplemental judgments should not be signed; the court ordered husband to show cause; and husband filed an answer in response to the court's show-cause order. Husband's answer expanded on his anticipatory objection. Essentially, he argued that the terms of the 2004 dissolution judgment can be read only one way: the value of the parties’ retirement accounts at the time of dissolution should be divided equally between the parties. Husband reasoned that, because the dissolution judgment referred to retirement accounts and did not mention retirement benefits, it permitted division of the value of the retirement accounts at the time of dissolution but not the benefits that flowed from those accounts. He also appeared to take the position that wife was not entitled to any interest or growth on her share of those accounts between the entry of the dissolution judgment in 2004 and his retirement in 2014. Finally, he raised a separate objection to the rate of return that Mercer supposedly used to calculate the growth of his deferred compensation account between 2004 and 2009.
At the hearing on wife's show-cause motion, the court initially spoke with the parties, their counsel, and Mercer in chambers. That discussion was not recorded.3 The court then went on the record and announced its decision. It disagreed with husband that the terms of the dissolution judgment unambiguously limited each party to half the value of the retirement accounts at the time of dissolution but none of the benefits that flowed from those accounts. In the court's view, the 2004 judgment permitted an equitable division of the parties’ interest in both their retirement accounts and the benefits flowing from those accounts. The court did not expressly address husband's objection regarding the rate of return that Mercer supposedly had used. After announcing its ruling, the court asked husband if he wished to make a further record, and husband chose to rely on the arguments raised in his answer.
On appeal, husband assigns error to two rulings. In his first assignment of error, he argues that the trial court erred in interpreting the 2004 dissolution judgment. In his view, that judgment unambiguously limited wife to half the value of his PERS member's account at the time of dissolution and, as he now acknowledges on appeal, interest on her half of that account. However, he reiterates that, under the terms of that judgment, she is not entitled to any part of the benefits that flowed from her share of his PERS member's account.4
Wife raises two procedural objections to husband's first assignment of error. She notes initially that each of the three supplemental judgments that the court signed is captioned as a "stipulated supplemental judgment." Based primarily on the caption, she argues that husband stipulated to the supplemental judgments and cannot challenge them on appeal. However, husband never signed or otherwise affirmatively manifested his assent to the first and second supplemental judgments. Indeed, he raised multiple objections to the entry of those judgments. We are not persuaded that husband is precluded from challenging those judgments on appeal. Cf. State v. James , 303 Or. App. 481, 482, 464 P.3d 464 (2020) ().5
Wife raises a second procedural objection. She argues that husband failed to preserve his argument that she is entitled to only half the value of his PERS account at the time of dissolution. It may be, as wife argues, that the premises of husband's argument could have been stated more clearly. However, we are persuaded that husband sufficiently preserved the issue he seeks to raise on appeal—that the dissolution judgment unambiguously limits wife to half his PERS member's account at the time of dissolution and none of the associated benefits. See State v. Walker , 350 Or. 540, 551, 258 P.3d 1228 (2011) ().
We accordingly turn to the merits of husband's argument that the dissolution judgment unambiguously provides that the value of his PERS member's account at the time of dissolution but not the associated PERS benefits shall be divided equally with wife. Husband's argument rests on the unexplained assumption that, in 2004, a judgment that referred only to dividing a PERS account necessarily foreclosed dividing the associated PERS benefits. In determining the meaning of the 2004 dissolution judgment, we begin with a brief discussion of the statutory and rule-based right to PERS benefits, as they existed in 2004, that flowed from husband's PERS member's account and wife's right to share in those benefits. Attempting to determine the meaning of the 2004 dissolution judgment without an understanding of the legal context that existed when the trial court entered that judgment is simply shooting in the dark.
Husband became a PERS member in 1991 and, as a result, was a Tier I PERS member. See State v. Strunk , 338 Or. 145, 158, 108 P.3d 1058 (2005) (defining Tier I PERS members). Before the 2003 PERS reform legislation went into effect, a Tier I PERS member contributed six percent of his or her salary to a regular "member" account,6 and the member's employer paid an equivalent amount to the PERS Fund based on an actuarial evaluation. See id. at 158-60, 164, 108 P.3d 1058 (). When a Tier I PERS member became eligible for retirement, the member would receive a pension benefit calculated using one of two formulas: money match or full formula. Id. at 160, 108 P.3d 1058.7 By statute, PERS used the formula that resulted in the higher benefit to the member. Id. at 161, 108 P.3d 1058.
Essentially, under money match, PERS doubled the amount of...
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