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In re Marriage of Tough

Court of Appeals of Oregon

October 30, 2013

In the Matter of the Marriage of BRADLEY J. TOUGH, Petitioner-Appellant, and MARGARET A. TOUGH, Respondent-Respondent.

Submitted on April 12, 2013.

Lincoln County Circuit Court 850363 Charles P. Littlehales, Judge.

B. Kevin Burgess and Watkinson Laird Rubenstein Baldwin & Burgess, P.C., filed the briefs for appellant.

Michael C. Peterson and Heltzel, Williams, Yandell, Roth, Smith, Petersen & Lush, P.C., filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

EGAN, J.

Husband appeals a supplemental judgment ordering entry of a qualified domestic relations order (QDRO), [1] contending that the trial court erred in its calculation of wife's interest in his pension plan. Specifically, he contends that the QDRO divides his pension benefits in a manner that is inconsistent with the division provided for in the parties' dissolution judgment. We agree and, accordingly, reverse and remand.

Husband and wife were married for just over 10 years, during which time husband was employed by Georgia Pacific. Husband's employment provided him with a defined benefit pension plan. When the parties divorced, their property was divided according to a dissolution judgment, which provides, in relevant part:

"[Wife] shall be entitled to receive one-half of the monthly benefits that [husband] is entitled to receive from his pension, as set forth in Exhibit 'C, ' which is by this reference incorporated herein, if and when he receives those payments pursuant to the terms of his agreement with the union. [Wife] shall not have any right to claim any retirement benefits which accrue to [husband] after March 1, 1985."

Exhibit C provides that husband was "100% vested" in the benefit that he had accrued as of December 31, 1984, which was a monthly pension benefit of $215.25. It further estimated the monthly benefit that husband could potentially earn by continuing to work until he was 65 years old to be $971.25.

Husband continued to work for Georgia Pacific for more than 13 years following the dissolution. During that time, the value of his retirement benefits increased. After he had filed for retirement, but before he began to receive any benefits, wife petitioned the court for a QDRO that would effectuate the dissolution judgment's division of husband's pension benefits.

At a show cause hearing on wife's petition, wife contended that the trial court should enter a QDRO that calculated her interest in husband's pension according to the "time rule." Typically, the time rule is used to calculate a nonemployee spouse's interest in the benefits of a defined benefit plan. Kiser and Kiser, 176 Or.App. 627, 632 n 1, 32 P.3d 244 (2001). The time rule provides that the nonemployee spouse's interest is determined by dividing the marital portion of the retirement benefits, at the time of retirement, in half.[2] "The marital portion is determined by multiplying the benefit to be divided by a fraction, the numerator of which is the years (or months) of service during which the couple were married and the denominator is the total years (or months) of employment." Id. Thus, under the time rule, the nonemployee spouse's interest in the retirement benefits is calculated by multiplying the employee spouse's benefits at the time of retirement by a fraction representing the portion of the number of years worked during which the parties were married and dividing the resulting number in half.

Husband challenged wife's petition, contending that she was seeking to circumvent the division of his pension benefits that the dissolution judgment provided for. Husband contended that the dissolution judgment provided that wife was entitled to one half of the pension benefits that he had accrued at the time of dissolution and that wife was not entitled to any benefits that accrued under husband's pension after that point.

In essence, the parties' dispute focused on whether the dissolution judgment provided that wife's interest in husband's pension was to be determined based on husband's pension benefits at the time of dissolution or by applying the time rule to husband's benefits at the time that he retired. Under husband's construction of the dissolution judgment, wife would have a ...


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