In re Welter, No. A04-710 (MN 9/28/2004)

• Court: Minnesota Supreme Court
• Writing for the Court: Robert H. Schumacher
• Decision Date: 28 September 2004
• Docket Number: No. A04-710.,A04-710.
• Citation: In re Welter, No. A04-710 (MN 9/28/2004), No. A04-710. (Minn. Sep 28, 2004)
• Parties: In re Barbara Welter, n/k/a Barbara Koepp, now deceased, petitioner, Respondent, v. Gary Welter, Appellant.

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Unpublished Opinion

In re Barbara Welter, n/k/a Barbara Koepp, now deceased, petitioner, Respondent, v. Gary Welter, Appellant.

No. A04-710.

Court of Appeals of Minnesota.

Filed September 28, 2004.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).

Appeal from the District Court, Redwood County, File No. F698438.

Patrick A. Lowther, Somsen, Mueller, Lowther & Franta, P.A., (for respondent)

Gary Welter, (pro se appellant)

Considered and decided by Anderson, Presiding Judge; Schumacher, Judge; and Halbrooks, Judge.

UNPUBLISHED OPINION

ROBERT H. SCHUMACHER, Judge

The judgment dissolving appellant-husband Gary Welter's marriage to respondent-wife Barbara Welter, n/k/a Barbara Koepp, now deceased, awarded to wife an interest in husband's pension by naming her the alternate payee in a qualified domestic relations order. After wife died, both adult children of the marriage sought to be named alternate payees of wife's interest in the pension. The district court granted the motion of one child but did not address the motion of the other. We affirm.

FACTS

Husband and wife were married on June 1, 1968, and the marriage was dissolved in May 1999. The parties have two daughters, Dana Gohr and Stacy Hipskind. Both Gohr and Hipskind were adults at the time of the dissolution. The dissolution judgment included a division of property, in part awarding one-half of husband's pension to wife.

To effect the pension portion of the property division, a qualified domestic relations order (QDRO) was filed with the district court on June 14, 1999. The QDRO names wife as alternate payee of husband's pension and "irrevocably" assigns to her 50% of the value of husband's accrued benefit as determined on December 31, 1998.

Wife died on May 20, 2003, and named Gohr as the sole heir of her estate. After wife's death, Gohr filed a motion in the dissolution action requesting that the district court amend the QDRO to name her as the new alternate payee. Husband opposed Gohr's motion. He argued the QDRO was a binding contract that could not be amended, changing the named-alternate payee would violate pension bylaws, and federal law disallows wife from transferring by will her interest in the pension. Hipskind also opposed Gohr's motion, arguing that she and Gohr should be named co-alternate payees.

The district court framed the issue before it as whether the pension benefit, which was properly allocated to wife in the dissolution action, should pass to husband or to Gohr. The district court concluded the benefit should pass to Gohr because the pension award was part of a property settlement and Gohr was named by wife as her sole beneficiary. By order filed February 27, 2004, the district court granted Gohr's motion, directed Gohr be named the new alternate payee, but did not respond to Hipskind's motion.

DECISION

1. The district court may not modify a final division of property, but it may issue orders to implement, enforce, or clarify the provisions of a dissolution decree so long as it does not change the parties' substantive rights. Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999). The district court's implementation of a decree is reviewed under an abuse-of-discretion standard. Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991). Purely legal issues are reviewed de novo. Haefele v. Haefele, 621 N.W.2d 758, 761 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).

Husband argues the district court's February 27, 2004 order is contrary to the Supreme Court's opinion in Boggs v. Boggs, 520 U.S. 833, 117 S. Ct. 1754 (1997), and therefore must be reversed. We disagree.

In Boggs, Isaac and Dorothy Boggs were married in Louisiana, a community property state, and remained married until Dorothy's death. Id. at 836, 117 S. Ct. at 1758. Isaac then married a second wife, Sandra. Id. Upon retirement, Isaac received various benefits from his employer's retirement plans, including a lump-sum distribution, which he rolled over into an Individual Retirement Account (IRA). Id. The three sons of Isaac's first marriage claimed that under Louisiana community property law a portion of the IRA benefits belonged to Dorothy and therefore were now the property of her heirs, as designated in her will. Id. at 836-37, 117 S. Ct. at 1758.

To resolve the issue, the Supreme Court noted that a QDRO is a type of domestic relations order that assigns to an alternate payee the right to receive all or a portion of a participant's pension plan benefits. Id. at 846, 117 S. Ct. at 1763; see also 29 U.S.C. § 1056(d)(3)(B) (2000). QDROs, unlike domestic relations orders in general, are exempted from ERISA's anti-alienation and preemption provisions. Boggs, 520 U.S. at 846, 117 S. Ct. at 1763; see also 29 U.S.C. §§ 1056(d)(3)(A), 1144(b)(7) (2000). But in Boggs there was no QDRO. Thus, because the limited QDRO exception did not apply, the Supreme Court determined that state law creating Dorothy's community property interest in Isaac's IRA was preempted by ERISA, and therefore the community property interest could not be subject to testamentary transfer. Boggs, 520 U.S. at 854, 117 S. Ct. at 1767. As noted in the dissenting opinion, had there been a QDRO assigning Dorothy an interest in Isaac's pension, she could have left that interest to her children. Id. at 868, 117 S. Ct. at 1773 (Breyer, J., dissenting).

Here, unlike Boggs, there is a QDRO. The parties do not contest that the document filed June 14, 1999, is a valid QDRO. Husband now contends the document resulting from the district court's February 27, 2004 order is not a valid QDRO. But the opinion in Boggs does not reach the issue of what qualifies as a QDRO. See id. at 848, 117 S. Ct. at 1764 (stating sons "do not even attempt to argue that they are beneficiaries by virtue of the judgment of possession qualifying as a QDRO"). The opinion in Boggs is not applicable to this case. Thus, the district court's February 27, 2004 order is not contrary to federal law as stated in that opinion.

2. On appeal, husband for the first time argues the document resulting from the district court's February 27, 2004 order, which names Gohr as alternate payee, is not a valid QDRO because Gohr does not meet the definition of "alternate payee" and the district court failed to include her address. See 29 U.S.C. §§ 1056(d)(3)(K) (stating term "alternate payee" means "any spouse, former spouse, child, or other dependent of a participant"), (d)(3)(C)(i) (2000) (stating QDRO must include name and mailing address of each alternate payee).

We decline to review these arguments because they were not presented to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts generally will not considered matters not argued and considered in court below). Furthermore, we note that whether a document is a QDRO is a matter relevant to ERISA, determinable by the plan administrator, and reviewable by a federal court. See 29 U.S.C. § 1056(d)(3)(G)(i)(II) (2000) (stating, "plan administrator shall determine whether such order is a qualified domestic relations order"); 29 U.S.C. § 1132(a) (2000) (stating civil action may be brought by participant or beneficiary to recover benefits due); 29 U.S.C. § 1132(e) (2000) (stating, except for actions under section 1132(a)(1)(B), federal courts shall have exclusive jurisdiction of civil actions under this subchapter brought by participant or beneficiary); see also U.S. Department of Labor, Pension and Welfare Benefits Administration, QDROs: The Division of Pensions Through Qualified Domestic Relations Order, 6, 9 (1997).

3. Citing Krollman v. City of Hibbing, 550 N.W.2d 314, 316 (Minn. App. 1996), husband argues the QDRO filed June 14, 1999, was a binding contract that incorporated the pension plan's bylaws. Husband contends the district court erred because the order naming Gohr as alternate payee violates the bylaws and therefore violates the parties' contract.

But Krollman does not stand for the proposition that a QDRO is a binding contract. See id. at 316 (applying standard of review for interpreting contract to interpretation of language in pension plan). Assignment of error in a brief based on mere assertion and not supported by authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). Prejudicial error is not obvious in this case. Thus, we decline to address...