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In re Marriage of Tucker

Court of Appeals of Oregon

August 15, 2018

In the Matter of the Marriage of Gale TUCKER, Petitioner-Appellant, and John Vincent TUCKER, Respondent-Respondent.

          Argued and submitted October 26, 2017

          Lane County Circuit Court 150622695 Mustafa T. Kasubhai, Judge.

          Bruce C. Moore argued the cause and fled the brief for appellant.

          Kevin M. Fong, California, argued the cause for respondent. On the brief were Kenneth E. Keller, California, Keller, Sloan, Roman & Holland LLP; and Eric S. DeFreest, Luvaas Cobb.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Wife and husband divorced in 2007. In the dissolution judgment, the court awarded wife half of any future distribution from husband's "deferred compensation." In 2014, husband received a substantial payment in connection with the sale of the company for which he had worked in 2007. Wife moved for an order to show cause, asserting that husband had not complied with the "deferred compensation" provision of the dissolution judgment. Husband disagreed. The trial court ultimately ruled in husband's favor and entered a supplemental judgment denying relief to wife. Wife appeals, arguing that the trial court erred when it ruled that the 2014 payment was not "deferred compensation" within the meaning of the dissolution judgment. Held: The dissolution judgment is unambiguous, and the trial court correctly concluded that wife is not entitled to share in the 2014 payment to husband. The trial court did not err.

         Affirmed.

         [293 Or. 399] AOYAGI, J.

         Wife and husband divorced in 2007. Husband was employed at that time by Turtle Mountain, LLC (TMLLC), and, under the dissolution judgment, wife was awarded half of any future distribution from husband's "deferred compensation." In 2014, wife moved for an order to show cause, asserting that husband had not complied with that aspect of the dissolution judgment. Husband responded that he had fully complied with the judgment. The trial court ultimately ruled in favor of husband and entered a supplemental judgment denying wife the requested relief. Wife appeals the supplemental judgment. On appeal, we conclude that the trial court did not err in denying relief to wife. Accordingly, we affirm.

         The relevant facts are undisputed. The parties married in 1995. In 1999, husband began working for Turtle Mountain, Inc. (TMI). At some point, TMI adopted an Incentive Compensation Plan, under which it established deferred compensation accounts for eligible employees, including husband. The plan provided for annual deferred compensation awards. It also provided for special deferred compensation awards in certain circumstances.

         Around 2005, TMI received substantial outside investment. The company soon reorganized, which, among other things, led to the creation of TMLLC, and husband began working for TMLLC. Significant changes were made to the incentive compensation program. As a result of those changes, husband entered into two agreements in 2005. First, husband and TMI entered into an "Amendment and Release of Rights Under Turtle Mountain, Inc. Incentive Compensation Plan." Under the terms of that agreement, TMI paid husband a lump sum of $35, 000 "in full satisfaction of all of [his] vested and unvested Account balance in the Plan," and husband agreed to no longer receive annual deferred compensation awards. Husband remained eligible for a special deferred compensation award upon the sale of TMLLC, as provided in the agreement. Husband released "any rights under the Plan based on the future growth of the Company in exchange for profits interest units in [TMLLC]." Second, husband and TMLLC entered into a "profit interest [293 Or. 400] units" agreement (PIU Agreement), under which husband received 205, 454 profits interest units of TMLLC.

         In 2007, husband and wife divorced. They agreed how to divide some assets and disagreed as to others. Of relevance here, they had already agreed to divide equally the $35, 000 lump sum payment that husband had received in 2005 in connection with the deferred compensation amendment-and-release agreement, and it is undisputed that wife received half of that amount. They also stipulated to divide equally any "deferred compensation" that husband received in the future. That agreement was effectuated in paragraph 5.1 of the dissolution judgment:

"5.1 Husband's Turtle Mountain. LLC Deferred Compensation. The net balance (after payment of all taxes by Husband that result from this distribution) shall be divided equally between the parties. If Revenue Ruling 2002-22 applies, each party will pay his or her own taxes on the distribution. If necessary to prepare a QDRO, the costs of retaining an expert to divide this account will be shared equally by each party. The parties have agreed to retain Dave Gault at Jones and Roth for this purpose. The date of distribution is subject to the terms of the Deferred Compensation agreement which requires a triggering event."[1]

         By contrast, the parties disagreed about the division of husband's TMLLC profits interest units. Husband argued that he should be awarded that asset solely, while wife advocated for equal division. Both parties put on evidence at the dissolution trial regarding the TMLLC profits interest units. After hearing both parties' arguments and evidence, the trial court ultimately awarded the profits interest units solely to husband. Section 5.5 of the dissolution judgment provides that "Husband shall retain all interest in the Turtle Mountain, LLC PIUs which the Court ...


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