In Re the Marriage of Jamie Tekippe N/K/A Jamie Weiss and Joseph Tekippe Upon the Petition of Jamie Tekippe N/K/A Jamie Weiss, and Concerning Joseph Tekippe ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1297
Filed February 8, 2017
IN RE THE MARRIAGE OF JAMIE TEKIPPE n/k/a JAMIE WEISS
AND JOSEPH TEKIPPE
Upon the Petition of
JAMIE TEKIPPE n/k/a JAMIE WEISS,
Petitioner-Appellee,
And Concerning
JOSEPH TEKIPPE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, John J.
Bauercamper, Judge.
Joseph TeKippe appeals from an order approving the language of a
qualified domestic relations order. AFFIRMED.
Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, LLP, Charles
City, for appellant.
Erik W. Fern of Putnam, Fern & Thompson Law Office, P.L.L.C., Decorah,
for appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
2
DOYLE, Judge.
“This case should serve as a vivid reminder to attorneys practicing
matrimonial law to specifically address survivor rights when dividing retirement
benefits,” our supreme court warned in In re Marriage of Morris, 810 N.W.2d 880,
881 (Iowa 2012). Unfortunately, in reaching the property settlement they
stipulated to be part of the decree dissolving their marriage, the parties here
failed to specifically address whether the alternate payee of a retirement plan
could designate a successor alternate payee. This appeal is the result.
Joseph and Jamie TeKippe1 were married in 1994, and Jamie petitioned
to dissolve the marriage in 2015. The parties reached a settlement agreement
and filed a stipulation outlining the division of their property and debts, the award
of spousal support, and their responsibilities regarding court costs and attorney
fees. They further agreed that Joseph would receive a portion of Jamie’s IPERS
account acquired during the marriage using a service factor percentage method
and divided in accordance with In re Marriage of Benson, 545 N.W.2d 252 (Iowa
1996). However, they were unable to agree to “the exact language of the
[qualified domestic relations order (QDRO)].” With regard to the QDRO, the
stipulation submitted to the district court states that “[i]f the impasse persists, it
will be submitted to the District Court for decision at a later time.”
The district court entered a decree dissolving the parties’ marriage, which
approved the terms and provisions of the stipulation and incorporated them into
the decree. With regard to the IPERS account, the decree reflected the
language contained in the parties agreement and stipulation, stating:
1
Jamie is now known as Jamie Weiss.
3
[Joseph] shall receive a portion of [Jamie]’s IPERS account. The
division of this IPERS account will be by QDRO to be prepared by
the attorney for [Joseph]. It shall be the responsibility of the
attorney for [Jamie] to timely review the QDRO and approve it if
appropriate. At present, the parties cannot agree on the exact
language of the QDRO. If the impasse persists, it will be submitted
to the district court for decision at a later time.
Twenty-four minutes before the dissolution decree was entered, Joseph
filed an application requesting a hearing on the QDRO, stating, “The parties
cannot agree on the exact language required by IPERS to be included in a
[QDRO].” Although the application did not provide further elaboration on the
nature of the dispute, Joseph wanted to include language that would allow him to
obtain some information about the account without Jamie’s consent; name a
successor alternate payee; and bar Jamie from taking a refund without the
alternate payee’s consent.
In her response, Jamie countered that the disputed provisions “were not
bargained for nor provided in the parties’ stipulation.” Jaimie attached an IPERS
manual outlining both the mandatory language required for a QDRO as well as
optional provisions2 that may be included. Jamie asked that the court prepare a
QDRO using the mandatory language without any optional provisions, asserting
that the court should construe any ambiguity in the terms and conditions of the
stipulated agreement against Joseph because his attorney drafted it.
2
These include an award of a share of dividends to an alternate payee, naming a
successor alternate payee, requiring the member’s lifetime benefits be paid under a
particular option, barring the member from taking a refund without the consent of the
alternate payee, and requiring the member to name the alternate payee as a beneficiary
of the member’s death benefits.
4
A hearing on the QDRO was held nearly two months after the dissolution
decree was entered.3 The district court entered an order approving the language
of Jamie’s proposed QDRO and an IPERS QDRO. The court agreed that if the
parties had wanted to include the optional QDRO provisions, they should have
specifically negotiated them as part of their settlement agreement. In the
absence of an agreement regarding those specific provisions, the court declined
to include them in the QDRO, holding that to do so would be “superimpos[ing]
terms beyond the express agreement of the parties.” Joseph appeals, and
requests the court to order that the QDRO include a paragraph allowing him to
name a successor alternative payee.
Our review of the order approving the QDRO language is de novo. See
Morris, 810 N.W.2d at 885. On appeal, Joseph argues that as part of the marital
property to be divided, the IPERS account “should carry with it the ordinary
incidents of ownership” like the ability to transfer the interest at death. In
contrast, Jamie’s argument concerns interpretation of the parties’ settlement
agreement and stipulation. Neither party’s approach is correct.
The dissolution decree is the final order adjudicating the parties’ property
rights. See In re Marriage of Thatcher, 864 N.W.2d 533, 538 (Iowa 2015). The
orders on appeal, which determined the appropriate form of the QDRO and the
QDRO, are supplemental orders to enforce the property division and are not a
part of the underlying decree. See In re Marriage of Brown, 776 N.W.2d 644,
3
The hearing was not reported, and a statement of the proceedings was never prepared
and filed. See Iowa R. App. P. 6.806 (providing a mechanism by which a party may
create a record of a hearing for which a transcript is unavailable if a party deems it
necessary to complete the record on appeal).
5
649 (Iowa 2009). The decree’s provisions regarding the property division are not
modifiable. See Iowa Code § 598.21(7) (2015). Therefore, Joseph’s argument
regarding whether alternate-successor-payee rights should be included in the
QDRO is irrelevant to the extent the parties’ rights were determined by the
decree.4
Jamie’s focus on the parties’ intent in entering the agreement and
stipulation also misses the mark. It is true that a stipulation and settlement in a
dissolution proceeding is a contract between the parties that is entitled to all the
sanctity of an ordinary contract. See In re Marriage of Briddle, 756 N.W.2d 35,
40 (Iowa 2008). However, once the district court adopts the parties’ stipulation
and incorporates it into the dissolution decree, it is the decree—not the parties’
agreement and stipulation—that determines the parties’ rights. See Morris, 810
N.W.2d at 886.
The decree, like the stipulation, is silent as to whether a successor
alternate payee may receive Joseph’s share of the IPERS account if he
predeceases Jamie. Faced with a similar situation in Morris, our supreme court
“decline[d] to speculate whether the parties might have negotiated a different
division of property” if survivorship rights had been addressed. See id. Instead,
the court found “the better alternative at this juncture is to remand this action to
the district court to determine the court’s intent as to survivor benefits in the
[decree].” But since Morris, we now have a clear guidance that all property
issues must be incorporated into the decree and the district court may not enter
4
Joseph’s notice of appeal states he appeals only “the Order Regarding Qualified
Domestic Relations Order filed July 20, 2016, and the IPERS Qualified Domestic
Relations Order.” He did not file a notice of appeal of the dissolution decree.
6
serial final judgments. See In re Marriage of Thatcher, 864 N.W.2d 533, 538
(Iowa 2015). Joseph is not asking for an interpretation of the decree as in Morris,
rather he is asking the court to exercise its reservation of jurisdiction as set forth
in the decree and order inclusion of a paragraph in the QDRO allowing him to
name a successor alternate payee. To do so would bifurcate the property
distribution issues contrary to Thatcher. We cannot grant the relief Joseph
requests and we therefore affirm the district court.
Jamie requests that she be awarded $1500 in appellate attorney fees
incurred in defending this appeal. This court has broad discretion in awarding
attorney fees on appeal. See In re Marriage of Okland, 699 N.W.2d 260, 270
(Iowa 2005). In determining whether to award appellate attorney fees, we
consider the needs of the party seeking the award, the ability of the other party to
pay, and the relative merits of the appeal. See In re Marriage of Sullins, 715
N.W.2d 242, 255 (Iowa 2006). Considering these factors, we decline to award
appellate attorney fees.
AFFIRMED.