JOHN B. ROBBINS, Judge.
This appeal involves the division of the husband's pension account following a divorce where the value of the account had declined between the time of the divorce and the distribution of the funds. The Cleburne County Circuit Court interpreted the parties' settlement agreement as providing appellee Cheryl Duncan with a fixed sum from the account and ordered appellant Mark Duncan to pay appellee approximately $116,000 representing the difference between her share of the balance as of the date the parties executed their property settlement agreement and the amount she had already received. Appellant contends
In 2006, appellee filed suit for divorce after sixteen years of marriage. After negotiations, the parties entered into a property-settlement agreement dated May 30, 2007. The agreement addressed the parties' retirement and investment accounts, including appellant's pension plan. In relevant part, it provides as follows:
The divorce decree was entered on June 15, 2007. It approved the property settlement agreement and incorporated it by reference without merging the agreement into the decree.
The court subsequently entered a Qualified Domestic Relations Order (QDRO) on August 23, 2007, which, in pertinent part, provided as follows:
On October 9, 2008, appellee instituted the present case and filed a Petition for Citation for Contempt and for Judgment, later amended,
After a hearing, the circuit court issued a letter opinion on August 31, 2009. The court found that the terms of the parties' property-settlement agreement were unambiguous. The circuit court also ruled that the intent of the parties was that appellee was to receive one-half of the value of appellant's share in the plan, less the premarital amount, fixed as of May 30, 2007; and that the value of her share on that date was $319,097.81. The court granted judgment in favor of appellee against appellant for the difference in the amount of $115,936.81. The court found that appellee disputed that her share was correctly valued at $319,097.81 and, therefore, refused to accept a distribution of that amount in April 2008. The court held that, although this did not result in appellee waiving her share of appellant's account, it did preclude her from receiving interest on her share or her attorney's fees. The court entered its written judgment on October 1, 2009. On October 13, 2009, appellant filed his notice of appeal.
A "qualified domestic relations order" is a domestic relations order which creates or recognizes the existence of an alternate payee's right to receive all or a portion of the benefits payable to a participant in a pension plan. Mitchell v. Mitchell, 40 Ark.App. 81, 842 S.W.2d 66 (1992). It is the mechanism by which a divorce decree awarding retirement benefits to a spouse is enforced and collected with regard to the particular retirement program covered by the decree. Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008); Elliott v. Elliott, 217 P.3d 147 (Okla.Civ.App. 2008). A QDRO must conform to the terms of the underlying decree. Elliott, supra.
Appellant argues that the circuit court erred in finding that appellee was entitled to one-half of the fixed dollar amount of appellant's account as of May 30, 2007. We agree. As noted earlier in this opinion, the value of appellant's pension plan had declined from the May 30, 2007 execution of the settlement agreement until appellee received approximately $203,000 in February 2009. Neither the parties' briefs nor our own research have disclosed an Arkansas case that addresses the specific issue in this case.
Courts in a number of jurisdictions have held that, absent express language to the contrary, the party receiving the plan distribution shares in any interim increase or decrease in the value of the account. See Buchanan v. Buchanan, 936 So.2d 1084, 1088-89 (Ala.Civ.App.2005) (awarding wife half of the shares comprising her husband's retirement account, pursuant to an agreement, despite their decrease in value between the time of judgment and the time of distribution because she was equally responsible for the delay in their distribution); Shorter v. Shorter, 851 N.E.2d 378, 385-86 (Ind.App.2006) (finding even though the divorce decree referred to a specific valuation date for the pension plan, in the absence of express language otherwise, the decree implicitly contemplated that both parties would share equally in gains or losses occurring after the valuation date and before division was accomplished); Beike v. Beike, 805 N.E.2d 1265, 1268-69 (Ind.App.2004) (holding "absent express language to the contrary, the risks and losses associated with the pension plan should be borne by both parties as their respective interests were allocated by the trial court"); Austin v. Austin, 748 A.2d 996, 999 (Me.2000) (establishing the valuation date of the 401(k) as of the date of distribution rather than the date of the decree to award gains and losses in proportion to the parties' share in the fund); Rivera v. Zysk, 136 Md.App. 607, 766 A.2d 1049, 1056 (Md.Spec.App.2001) (holding that trial court's decision awarding the wife half of the gains in the husband's 401(k) plan from the date of the divorce until the date of distribution approximately one year later was "eminently fair"); Taylor v. Taylor, 258 Wis.2d 290, 653 N.W.2d 524, 527-28 (2002) (holding that the wife's thirty-five percent share of the husband's 401(k) plan as of the date of the divorce
When the principle is applied to the present case, the circuit court clearly erred when it construed the parties' settlement agreement and the QDRO as awarding appellee a fixed sum of appellant's retirement account. The parties agreed that, after subtracting any premarital balances, each would receive one-half of all accounts in either party's name based upon the account balances as of the May 30, 2007 execution of the agreement. The QDRO sets forth the percentage appellee was awarded as 38.551 percent as of the execution date. Both the settlement agreement and the QDRO awarded appellee a percentage of appellant's retirement account, not a fixed sum. If the parties had intended for appellee to receive a fixed sum from appellant's retirement account, it would have been easy for the parties to do so. It was undisputed that Charles Haynes, the accountant for the plan, followed the QDRO when he created a separate account on the plan's books in appellee's name. Haynes awarded appellee a share valued at $319,097.81 as of the May 30, 2007 date specified in the settlement agreement. The fact that appellee disputed the amount she received and did not formally request distribution of the funds until February 2009, after the market had declined, does not mean that she was not the owner of those funds or that her share was not subject to increase or decrease the same as any other plan participant. Appellee testified that she knew that the value of the plan could increase or decrease. A court may not use the mechanism of construction to review an unambiguous contract in order to relieve a party from any disadvantageous terms to which the party has agreed; nor may a court revise a divorce judgment with respect to a final property division. Rogers v. Rogers, 83 Ark.App. 206, 121 S.W.3d 510 (2003).
Appellee argues that the circuit court should be affirmed because, in accordance with the parties' agreement, it awarded her one-half of the balance of the account as of May 30, 2007. We disagree. The "based upon the balances as of the date of execution" language in the settlement agreement does not establish that the parties agreed that appellee was to receive a fixed sum. The specification of a valuation date does not act to bar appellee from sharing in the growth or loss in the plan attributable to her share; instead, it merely provides a mutually agreed upon base amount to which any growth is added or loss is subtracted and bars appellee from benefitting from any contributions appellant makes to the plan after the valuation date. See Shorter, 851 N.E.2d at 386 (quoting Niccum v. Niccum, 734 N.E.2d 637, 640 (Ind.Ct.App.2000)). Otherwise, the effect would be to award one party the
Appellee asserted in the present case that appellant was responsible for the delay in her receiving her distribution of the funds because he refused to sign the necessary paperwork. The circuit court held otherwise, finding that appellee disagreed with the amount of her share as determined by the plan's accountant and refused to request a distribution because of that disagreement. Moreover, appellee admitted that she did not submit a written request for her share to be distributed to her until February 2009.
Appellee also relies on parol evidence that she asserts shows that the parties intended to equally divide their accounts as of the date of their settlement agreement. The reliance on such evidence is misplaced. The court found that the agreement was unambiguous. Yet, the court considered extrinsic evidence as to the parties' intent. Parol evidence is inadmissible except when a written agreement is ambiguous or when necessary to bring out a latent ambiguity. Oliver v. Oliver, 70 Ark.App. 403, 19 S.W.3d 630 (2000). Appellee does not argue that the agreement was ambiguous.
Reversed and remanded.
GLADWIN and BAKER, JJ., agree.