In the Matter of the Marriage of Gale TUCKER, Petitioner-Appellant, and John Vincent TUCKER, Respondent-Respondent.
and submitted October 26, 2017
County Circuit Court 150622695 Mustafa T. Kasubhai, Judge.
C. Moore argued the cause and fled the brief for appellant.
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.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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.
Or. 399] AOYAGI, J.
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.
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
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.
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
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