PER CURIAM.
In Docket No. 294461, plaintiff appeals the trial court's August 12, 2009, opinion and order granting defendant's motion to clarify and amend a qualified domestic relations order (QDRO) that was previously entered on March 14, 1995. This Court originally denied plaintiff's application for leave to appeal, Neville v. Neville, unpublished order of the Court of Appeals, entered February 16, 2010 (Docket No. 294461), but our Supreme Court subsequently remanded the case to this Court for consideration as on leave granted, Neville v. Neville, 488 Mich. 899, 789 N.W.2d 177 (2010). In Docket No. 302946, plaintiff appeals by delayed leave granted the trial court's March 11, 2010, amended QDRO. This Court consolidated the two appeals. In Docket No. 294461, we reverse the trial court's August 12, 2009, decision granting defendant's motion to amend the March 14, 1995, QDRO. In Docket No. 302946, we vacate the March 11, 2010, amended QDRO and reinstate the March 14, 1995,
The parties were married in March 1978. On November 14, 1994, the trial court entered a default divorce judgment, which provided in pertinent part:
The March 14, 1995, QDRO also provided that "modifications of this Order shall be allowable for purposes of carrying out the intent of the parties."
In April 2009, defendant moved for clarification and amendment of the QDRO, relying in part on MCR 2.612(C)(1)(a) and (f). The motion alleged that an administrator of his employer's retirement plan had construed the QDRO in a manner that would provide more benefits to plaintiff than provided for in the divorce judgment (specifically a portion of defendant's early-retirement incentives and surviving-spouse benefits earned by defendant after the divorce). On August 12, 2009, the trial court treated defendant's motion as a request to amend the March 14, 1995, QDRO to be consistent with the divorce judgment and granted the motion. The court thereafter entered an amended QDRO on March 11, 2010, to correct what it determined to be inconsistencies between the original divorce judgment and the March 14, 1995, QDRO with respect to plaintiff's right to share in defendant's retirement benefits. The amended QDRO treated the original March 14, 1995, QDRO as a nunc pro tunc order entered as part of the November 14, 1994, divorce judgment.
Our Supreme Court's remand order concerning the trial court's August 12, 2009, opinion and order granting defendant's motion to amend the March 14, 1995, QDRO directs this Court to consider the following questions:
Although plaintiff asserts that the Supreme Court's questions in Docket No. 294461 only involve the survivorship benefit, we conclude that with the exception of the first question, which is directed specifically at the methodology for determining the survivorship benefit, the remaining questions are also pertinent to plaintiff's appeal in Docket No. 302946 regarding the formula adopted by the trial court to determine other benefits. Therefore, we shall consider these questions as they relate to both appeals.
We review de novo the trial court's decision interpreting the November 14, 1994, divorce judgment and the March 14, 1995, QDRO. Silberstein v Pro-Golf of America, Inc., 278 Mich.App. 446, 460, 750 N.W.2d 615 (2008). To the extent that the judgment and the QDRO were entered pursuant to the parties' agreement, questions involving the interpretation of the agreement, including whether any language is ambiguous, are also reviewed de novo because judgments entered pursuant to the agreement of parties are in the nature of a contract. Reed v. Reed, 265 Mich.App. 131, 141, 693 N.W.2d 825 (2005); Gramer v. Gramer, 207 Mich.App. 123, 125, 523 N.W.2d 861 (1994). In addition, we review de novo as a question of law issues involving a trial court's interpretation and application of court rules or statutes. Henry v. Dow Chem. Co., 484 Mich. 483, 495, 772 N.W.2d 301 (2009); Estes v. Titus, 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008).
We first address plaintiff's challenge to the timeliness of defendant's motion for clarification and amendment of the March 14, 1995, QDRO (and the Supreme Court's directive that we consider whether defendant's motion to have the QDRO amended was not time-barred.) As authority for the motion, defendant cited MCR
The trial court determined that MCR 2.612(C) was inapplicable to defendant's motion in its entirety because he was "not seeking relief from the [divorce judgment]. On the contrary, Defendant is requesting that the QDRO be amended to be consistent with the [divorce judgment]." Citing Lee v. Lee, unpublished opinion per curiam of the Court of Appeals, issued April 8, 2004 (Docket No. 246183), 2004 WL 755479, the trial court also held that because the QDRO did not conform to the judgment of divorce, the QDRO was invalid. However, at the time the divorce judgment was entered, MCL 552.101(4) required that a divorce judgment determine all rights of the husband and wife in "[a]ny pension, annuity, or retirement benefits." In Mixon v. Mixon, 237 Mich.App. 159, 166, 602 N.W.2d 406 (1999), this Court construed the statute as requiring that pension rights be decided conclusively. Consistently with this obligation, entry of a QDRO was explicitly required by the terms of the November 14, 1994, divorce judgment. As such, the trial court should have treated the March 14, 1995, QDRO as part of the divorce judgment when ruling on defendant's motion. Id. at 166-167, 602 N.W.2d 406. Instead, the trial court erroneously treated the QDRO as a completely separate order, thus dismissing the application of MCR 2.612 to defendant's motion as a whole.
The trial court's reliance on Lee was misplaced because unpublished decisions are not precedentially binding under the rules of stare decisis. MCR 7.215(C)(1). While an unpublished decision may be considered for its persuasive reasoning, Beyer v. Verizon North, Inc., 270 Mich.App. 424, 430-431, 715 N.W.2d 328 (2006), the decision in Lee is not persuasive as applied to this case because it did not substantively treat a QDRO as part of the divorce judgment. Rather, relying on Quade v. Quade, 238 Mich.App. 222, 224, 226, 604 N.W.2d 778 (1999), and Roth v. Roth, 201 Mich.App. 563, 506 N.W.2d 900 (1993), the Lee Court concluded that separate and distinct components of a pension plan must be specifically included in a divorce judgment in order to be included in a QDRO. And the two cases relied on by the Lee Court are also factually distinguishable.
This case is factually distinguishable from Roth, 201 Mich.App. at 564-565, 506 N.W.2d 900, because the 1983 divorce judgment in that case did not contain any provision requiring entry of a QDRO. Rather, the plaintiff moved in 1990 for
The divorce judgment in this case does not contain the type of waiver language used in Quade. There is also no evidence that the March 14, 1995, QDRO was a contested order as opposed to a consensual one. Keeping in mind the requirement that a divorce judgment conclusively determine the parties' rights, Mixon, 237 Mich. App. at 166, 602 N.W.2d 406, we conclude that the March 14, 1995, QDRO must be treated as part of the property settlement in the divorce judgment. Cf. Thornton v. Thornton, 277 Mich.App. 453, 457-458, 746 N.W.2d 627 (2007) (holding that a QDRO executed contemporaneously with a divorce judgment and required by the terms of the judgment must be considered part of the property settlement). The QDRO and the divorce judgment are thus two parts of a whole. Because MCR 2.612 applies to relief from final judgment or orders and the March 14, 1995, QDRO is properly treated as part of the final divorce judgment, we conclude that the trial court erred by determining that MCR 2.612(C) did not apply to defendant's request for substantive changes to the March 14, 1995, QDRO to make it consistent with the property-settlement provisions contained in the November 14, 1994, divorce judgment.
This is not to say that the trial court could not interpret and clarify the parties' agreement without considering MCR 2.612. It may do so provided it does not change the parties' substantive rights as reflected in the parties' agreement. See Bers v. Bers, 161 Mich.App. 457, 464, 411 N.W.2d 732 (1987). In order to determine the parties' agreement, a court must consider all of its terms, including any modifications agreed to by the parties. See Forge v. Smith, 458 Mich. 198, 207, 580 N.W.2d 876 (1998) (noting that when one writing refers to another instrument for additional terms, the two writings should be read together), and Adell Broadcasting Corp. v. Apex Media Sales, Inc., 269 Mich.App. 6, 11, 708 N.W.2d 778 (2005) (stating that contracting parties may modify their contract through mutual assent). Because the trial court failed to construe as a whole the terms of the parties' agreement, which consisted of the property settlement terms in the divorce judgment and the March 14, 1995, QDRO that was made part of the judgment, its conclusion that MCR 2.612 did not apply to defendant's motion was affected by an error of law.
As a matter of law, we conclude that MCR 2.612 was applicable to defendant's motion to the extent that defendant sought, and the trial court granted, relief in the form of substantive modifications to the provisions of the parties' agreement. Because defendant has neither argued nor otherwise established on appeal that his motion—brought more than 14 years after entry of both the November 14, 1994, divorce judgment and the March 14, 1995, QDRO—could be considered
With regard to the trial court's decision that the divorce judgment limited plaintiff's survivorship benefit to a proportionate interest based on years of marriage, we agree with plaintiff that the judgment contains no such limitation. The treatment and distribution of pension benefits may vary. Pickering v. Pickering, 268 Mich.App. 1, 8, 706 N.W.2d 835 (2005). The property settlement in this case provides only that "[t]he plaintiff shall be deemed `surviving spouse' for pre and post benefit purposes." Because the contract language is unambiguous, we must apply it as written. Coates, 276 Mich.App. at 503, 741 N.W.2d 539; Reed, 265 Mich.App. at 141, 147-148, 693 N.W.2d 825.
This construction of the divorce judgment is consistent with the March 14, 1995, QDRO agreed upon by the parties, except that the QDRO specifies that plaintiff is to be treated as "the surviving spouse under the Plan(s)." Improperly assuming the existence of some substantive conflict between the November 14, 1994, divorce judgment and the March 14, 1995, QDRO with respect to survivorship benefits, the trial court erred by finding that the terms of the November 14, 1994, divorce judgment were controlling. As discussed previously, the March 14, 1995, QDRO is properly treated as part of the final divorce judgment. Given that the parties were free to modify the terms of their November 1994 property settlement through mutual assent, any changes to those property-settlement provisions as reflected in the March 1995 QDRO are controlling. Adell Broadcasting, 269 Mich. App. at 11, 708 N.W.2d 778. Because the trial court's August 12, 2009, decision modifying plaintiff's survivorship benefits under the March 14, 1995, QDRO affected plaintiff's substantive rights and defendant's motion was untimely under MCR 2.612(C), we reverse the trial court's decision.
With respect to plaintiff's challenge in Docket No. 302946 to the formula crafted by the trial court to determine her share of defendant's other retirement benefits, we note that no one method for valuing a pension plan is required in a divorce action, even when the division of the pension plan is to be determined by the trial court rather than by agreement of the parties. Heike v. Heike, 198 Mich.App. 289, 292, 497 N.W.2d 220 (1993). When, as in this case, the division is established by agreement of the parties, a court's task is to determine the parties' intent as manifested in their agreement through application of principles of contact construction. Coates, 276 Mich.App. at 503, 741 N.W.2d 539; Gramer, 207 Mich. App. at 125, 523 N.W.2d 861.
The November 14, 1994, divorce judgment purports to use a "present value" method of valuation for defendant's "general retirement pension" and awards plaintiff ½ of the present value of that pension.
At the same time, the November 14, 1994, divorce judgment provides little direction on how to determine present value or the distribution. It specifies that "value" is to be based on "contributory, noncontributory and supplemental, if applicable," but fails to specify the applicable period for accumulating these value factors or whether they could be based on future accumulations. The judgment entitles plaintiff to a "percentage based upon years worked during the marriage (16.5 years) over total years worked," but fails to specify what factor the percentage is applied to for purposes of determining her payment.
In addition, the parties' agreement that a QDRO would be entered at a subsequent date was inconsistent with any intent for immediate distribution because it would allow plaintiff to receive defendant's pension benefits as an alternate payee under the Employee Retirement Income Security Act. 29 U.S.C. § 1056(d). As discussed previously, the requirement that a QDRO be subsequently entered also establishes that the November 14, 1994, divorce judgment did not conclusively establish the terms of the property division.
In Docket No. 294461, we reverse the trial court's decision granting defendant's motion to amend, and in Docket No. 302946 we vacate the trial court's March 11, 2010, amended QDRO and reinstate the March 14, 1995, QDRO.
SERVITTO, P.J., and TALBOT and K.F. KELLY, JJ., concurred.