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PONALD |. GARBRECHT
STATE Of MAINE LAW LIESARY - SUPERIOR COURT
WALDO, SS. Docket No. AP 00-009

sep 7 2000 Fem —WAL- 4] (| aces

Doris Smart,
Plaintiff, )
yo
)
Vv ORDER ON APPEAL _
STATE OF MAINE 4
Waldo County Superior COU
Kenneth R. Smart , Jr., )
Defendant. )

- 019 AND FILED
RE mM. Page, Clerk

This matter is before the Court on the appeal of a single issue
remaining from the dissolved marriage of the parties. It emanates from
the award to Plaintiff of an equal portion of the pension of the Defendant
who is the appellant here. The actual language giving rise to the problem
in the original decree (French, J.) is: "The marital portion of this pension is
divided equally between the parties, including cost of living or other
increases." The issue is succinctly described in the Statement filed
pursuant to Rule 76F(c).

Defendant seeks to reduce the gross amount to be awarded to
Plaintiff by reducing the pension because some of his time was in the -
reserves but more because, after his pension was fixed, a portion of it was
reclassified because of a disability.! The facts are not in dispute and the
issue was argued on the law.

The District Court, (Nivison, J.) found for the Plaintiff on both issues

1 Mr. Peterson filed a proposed decree which would have prevented
the issue now being raised from coming into being. The language of the
proposed decree provided, inter alia: "Defendant shall not . . . waive any
portion of his retirement pay to receive disability." The trial court used
its own language which did not patently foreclose that possibility. Yet not
using Mr. Peterson's language does not mean the issue had not been
determined.
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briefed. He reasoned that the difference between the 80% sought by
Plaintiff and the 77% claimed by Defendant was controlled by logic. "[I]t is
logical to compute the portion of the pension to which Plaintiff is entitled
in a similar manner." He also found for Plaintiff on the disability issue
because, he reasoned, a third party should not be able to change "the
obvious intent of the Court's ruling".

Defendant relies on Austin v. Austin, 748 A.2d 996 (Me. 2000) which
was decided by the Maine Law Court one week after the opinion in the
Court below. It re-iterated the two part test first delineated in MacDonald
v. MacDonald, 582 A.2d 976 (Me. 1990). Austin dealt with an issue
different from the one in the case at bar. There, after a decree issued in
which the pension instrument was not frozen on the date of the award,
Husband invested the funds, as he had a right to do under the instrument
in question, in a way which led to their increase. He claimed the additional
funds to be his alone.

All of the Courts disagreed. Each disagreement was for a different
reason but the Law Court has now spoken. Its decree mandates a look at
the agreement and a threshold determination of whether or not the
agreement is ambiguous. "It is clear that the original decree sought to
award Valerie one half of the 401(k) account. The court, however, erred in
fixing the date of valuation as the date of the decree, rather than the date
of the actual division of the asset." Id, at 999.

As was the case in Austin, the order here was clear on its face but
subsequent events led to questions. It awarded the Plaintiff one half of the
pension account. The difference in the effective date is gleaned from the
fact that in Austin there was an implied understanding that there might be
changes because of the Defendant's retained power over the management
of both his and Valerie's share of the account. In the instant case, the
District Court (Nivison, J.) correctly reasoned that the pension could not be
changed from its format as of the date of the decree, thus requiring the

decree to operate on the pension as it was fixed by the date of the Court's
order.

That action was possible because there was no language prohibiting
that conclusion; it had not become the law of the case. See Raymond _v.

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Raymond, 480 A.2d 718, 720 (Me. 1984). Moreover, Judge Nivison made
clear the "meaning of a prior decree where necessary to guide the conduct
of the parties." Randlett_v. Randlett, 401 A.2d 1008 (Me. 1979).

The first prong of the inquiry called for by MacDonald, supra, must
be answered in the affirmative. The prior judgment was ambiguous as a
matter of law.

A caveat could be claimed to arise from the words "including costs of
living or other increases" but those words spoke clearly about the future.
The trial court's (French, J.'s) use of those words emphasized the Court's
view of the division. The date of the award was the date of the decree
because it was not otherwise ordered but the Court wanted it clear that
such future increases of benefits as might accrue would not be limited. By
implication the present amount was fixed and could not be diminished.

Judge Nivison's reasoning is also supported by the language in {2:
"Plaintiff shall sign any paperwork necessary to accomplish this order
within thirty days after this order becomes final." {] 1 would have had
similar language if the effective date of the order was not the date of the
decree. Instead, the preparation date of the QDRO was not mentioned and
no inference should have been drawn that the day it was accomplished
would be the date Judge French had in mind. As stated, the QDRO would
have been prepared with the date of the judgment as the effective date.
Thus the language used first by Judge French and then Judge Nivison is
fully consistent with Austin and supports the conclusion of the District
Court.

Looking at the second question in Austin, (the second prong of
MacDonald) it is equally clear that the order needed to be clarified. A
review of the Nivison construction of the French judgment is " consistent
with its language read as a whole and is objectively supported by the
record".

Neither party disputes that the Court's finding of 80% as opposed to
77% was within the scope of the original finding by Judge French. This
issue was raised after the fact and the Court (Nivison, J.) found that the
order related to a stipulated chart which provided that 59 months were

 4

non-marital out of the 299 months of service. He rejected the calculation
based on 72 months out of 312 months which would have generated the
77% sought by Defendant based on reserve time. The genesis of the figures
is affected by the finding of Judge French that the monthly payment was
approximately $1665.002 of which 1/2 of the marital portion was to be
paid by Defendant to Plaintiff. The $1665.00 was the entire monthly
pension benefit, both marital and non-marital.

Stated otherwise, the question is whether Judge French's findings
were "sufficiently ambiguous" so as to generate a need for analysis, they
were, and whether Judge Nivison's findings were a "construction of [the
Court's}] prior judgment [which] is consistent with its language read as a
whole and .. . objectively supported by the record." MacDonald, supra, at
977. As is obvious, this Court concludes they were.

There is the view that there was no ambiguity. There was no right
for the Defendant to create one and no basis for any award except for 50%
of the 80% of the entire pension, increased by "cost of living or other
increases". Moreover there was no right for Defendant to restructure the
basis of the pension so as to create the issue he has now raised. But if that
were the case the matter would not now be before the Court and Plaintiff
wold have received what Judge French ordered. Austin mandates no more
than an explanation of the hypotheses included in the French judgment
which the District Court did. |

A word needs to be said about Christmas _v. Christmas, 787 P.2.d
1267 (Okla 1990). Judge Nivison rejected it as being irrelevant. This Court
agrees that its holding is irrelevant. The reasoning in Christmas is similar
to the Law Court's opinion in Cummings v. Cummings, 540 A.2d 778 (Me.
1988) which dealt with worker's compensation. There the Law Court
recognized that there might be different consequences which would attach
depending on the source of the funds. In Cummings the Law Court
recognized that future lost earnings were not marital property. Here, there
was a restructure of the same benefit to achieve tax savings. That act did

2. By March 6, 2000 that figure had increased to $1747.00. The District
Court did not use that figure in any relevant way. Thus the Court did not
run afoul of Austin.

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not create a new type of property and did not impact the Court's order
which was to seek a sum fixed by the entitlement. See Sanborn v. Sanborn,
552 A.2d 551 (Me. Mem.Dec. 1989).

Judge Nivison's ruling was based on the third party's intervention in
which Plaintiff had no part as well. It echoed the concern that Mr.
Peterson's proposed decree attempted to foreclose. Cummings makes it
clear that in order to prevail on his point, Defendant had the burden of
proof in the divorce case. Otherwise the presumption of its being marital
property (19-A M.R.S.A §953(3)) would dictate the result found by the
Court below and by this Court. Christmas does not suggest that the
presumption can be avoided by arranging a change in the character of the
property. See Lee v. Lee, 595 A.2d 408 (Me. 1989).

Neither Lee nor Cummings suggests the type of property analysis
called for by the Defendant relying on Christmas. Had the original award to
be divided by the French Court been a benefit partly disability and partly
pension a different result might have obtained but the percentage of the
pension benefit awarded to Plaintiff might well have been different too.
Cummings is sufficient authority to support the Nivison rejection of
Christmas.

The entry must be: APPEAL DENIED, case remanded to the
District Court for entry of final judgment. The Clerk is directed

to incorporate this Order into the docket by reference pursuant ~
to M.R.Civ.P Rule 79 (a).

Dated: September 1, 2000

wd

2
FRANCIS C. MARSANO
JUSTICE, SUPERIOR COURT