Dadu and Dadu ( 2022 )

499
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted September 26, reversed and remanded
December 29, 2022
In the Matter of the Marriage of
Sheetal DADU,
Petitioner-Respondent,
and
WASHINGTON COUNTY DISTRICT
ATTORNEY CHILD SUPPORT,
Petitioner,
and
Saurabh DADU,
Respondent-Appellant.
Washington County Circuit Court
18DR03555; A175295
Keith R. Raines, Judge.
Ruth A. Casby argued the cause for appellant. Also on
the briefs were Janet M. Schroer and Hart Wagner LLP.
Andrew W. Newsom argued the cause and filed the brief
for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
JAMES, P. J.
Reversed and remanded.
500 Dadu and Dadu
JAMES, P. J.
This appeal involves the interpretation of a stip-
ulated supplemental judgment governing the division of
two of husband’s defined-contribution retirement accounts.
The principal issue is whether wife’s marital portion of the
accounts includes earnings (defined as gains, losses, divi-
dends, and interest) accumulated between the dissolution
date and the date of disbursement via Qualified Domestic
Relations Orders (QDROs). On appeal, husband argues
that when the trial court approved wife’s proposed QDROs
awarding her earnings on her one-half share of the mari-
tal portion, the trial court impermissibly modified the par-
ties’ property settlement agreement that was reduced to
the stipulated supplemental judgment. Alternatively, hus-
band assigns error to the trial court failing to effectuate the
unambiguous terms of the parties’ intended property settle-
ment agreement. Conversely, wife argues that she is enti-
tled to earnings on her share of the two accounts, and that
although the language of the supplemental judgment seems
ambiguous, it is resolved in her favor through interpretation
of the text and context of the judgment. We conclude that
the trial court incorrectly interpreted the parties’ property
settlement agreement, and therefore impermissibly modi-
fied the stipulated supplemental judgment. Accordingly, we
reverse and remand.
We review the trial court’s interpretation of a stip-
ulated judgment for legal error. Tucker and Tucker, 293 Or
App 398, 402, 428 P3d 945 (2018). The initial question of
whether a judgment provision is ambiguous is also a ques-
tion of law. Harris v. Warren Family Properties, LLC, 207 Or
App 732, 737, 143 P3d 548 (2006). Where the court’s inter-
pretation depends on extrinsic evidence, “we review the
court’s explicit and implicit findings of fact for any evidence
in the record to support them, and the legal consequences of
those facts for legal error.” Id. (quoting Batzer Construction,
Inc. v. Boyer, 204 Or App 309, 319, 129 P3d 773, rev den, 341
Or 366 (2006) (internal quotations marks omitted)).
Husband and wife were divorced on December 28,
2018, through a general dissolution judgment. The gen-
eral judgment resolved maintenance spousal support, child
Nonprecedential Memo Op: 323 Or App 499 (2022) 501
support, custody, and parenting plan issues; however, it left
some issues unresolved and, thus, warranted supplemental
judgments, including the division of the property at issue
in this case—husband’s Intel 401(k) Savings Plan and Intel
Retirement Contribution Plan. On October 3, 2019, the
trial court received both a mediated settlement agreement
and exhibits outlining the division of the two accounts. In
February 2020, the court entered a supplemental judgment
incorporating the settlement terms, which read, in perti-
nent part:
“1. Property Awarded to Wife:
“* * * * *
“1.2 One-half of the marital portion of Husband’s Intel
401(k) Savings Plan as of December 31, 2018[,] to be trans-
ferred to Wife by the terms of an appropriate Qualified
Domestic Relations Order;
“1.3 One-half of the martial portion of Husband’s Intel
Retirement Contribution plan as of December 31, 2018[,]
to be transferred to Wife by the terms of an appropriate
Qualified Domestic Relations Order;
“* * * * *
“2. Property Awarded to Husband:
“* * * * *
“2.2 The remainder of Husband’s Intel 401(k) Savings
Plan after transfer of Wife’s one-half interest in the mari-
tal portion of the plan as of December 31, 2018;
“2.3 The remainder of Husband’s Intel Retirement
Contribution plan after transfer of Wife’s one-half inter-
est in the marital portion of the plan as of December 31,
2018[.]”
In September 2020, wife filed two proposed QDROs
to which husband objected. Both QDROs had identical provi-
sions, each corresponding to one of the retirement accounts
reading “[wife’s] award is entitled to earnings (defined as
gains, losses, dividends and interest) from [December 31,
2018,] to the date that the award is segregated from [hus-
band’s] account.” Husband objected to those provisions and
correspondingly to the calculation of wife’s award from each
account.
502 Dadu and Dadu
In October 2020, the trial court heard husband’s
objections to the QDRO terms. At the hearing, husband
and wife provided conflicting testimony about whether the
inclusion of earnings in wife’s awards was discussed during
mediation. The trial court characterized the situation as
“a swearing contest between husband and wife.” The court
identified that a presence of a specific dollar amount in the
judgment is straightforward, whereas a lack thereof war-
rants inclusion of “pluses and minuses.” Accordingly, the
trial court highlighted the significance of the two accounts
in issue lacking specified dollar amounts, unlike one of hus-
band’s other accounts that was awarded to wife in full in
the February 2020 supplemental judgment. Ultimately, the
court held in wife’s favor, ordering in December 2020 that
she was “entitled to earnings (defined as gains, losses, divi-
dends and interest) incurred on [her] one-half of the marital
portion of Husband’s Intel Retirement Savings Account and
Intel 401(k) from December 31, 2018[,] to the date that the
award is segregated from [Husband’s] account” and corre-
spondingly approved wife’s proposed QDROs. In its order,
the trial court stated that it is “fair” that wife’s one-half
award incur earnings between the date of divorce and date
that the accounts are divided via QDROs. On December 30,
2020, the trial court entered supplemental judgments that
contained QDROs entitling wife to earnings on both of the
retirement accounts.
When the terms of a property settlement agree-
ment are incorporated in a marital dissolution judgment,
construction, operation, and the effect of the terms are to be
construed in the same way as any other contractual terms.
Moon v. Moon, 140 Or App 402, 407, 914 P2d 1133, rev den,
323 Or 484; 324 Or 305 (1996); McDonnal and McDonnal,
293 Or 772, 780, 652 P2d 1247 (1982). Contract interpreta-
tion presents a question of law that we review for legal error.
Eagle-Air Estates Homeowners Assn. v. Haphey, 272 Or App
651, 656, 354 P3d 766 (2015), rev den, 359 Or 166 (2016).
In interpretating a contract, we first “examine[ ] the text of
the disputed provision, in the context of the document as a
whole,” inquiring whether the provision at issue is ambig-
uous. Yogman v. Parrott, 325 Or 358, 361-64, 937 P2d 1019(1997); see also Batzer, 204 Or App at 315-17 (explaining
Nonprecedential Memo Op: 323 Or App 499 (2022) 503
that, in determining whether a contract term is ambiguous,
a court must consider evidence of the circumstances of con-
tract formation, if provided by the parties, and that Yogman
omitted that step only because no such evidence was pre-
sented in Yogman). In the absence of an ambiguity, the court
construes the words of a contract as a matter of law, and the
analysis ends. May v. Chicago Insurance Co., 260 Or 285,
292, 490 P2d 150 (1971).
If the text and context are ambiguous—meaning
capable of more than one reasonable interpretation or
having no definite significance—then extrinsic evidence
of the parties’ intentions may be examined. Id. at 292-93.
Extrinsic evidence can include the circumstances under
which the agreement was made, including the situation of
the parties and the subject. ORS 42.220. As a last resort, we
may employ maxims of construction to interpret the ambig-
uous terms. Baertlein and Stocks, 303 Or App 51, 61, 464
P3d 433 (2020).1
We begin with the text of the supplemental judg-
ment, specifically, the phrase “as of December 31, 2018,”
which appears in Paragraphs 1.2, 1.3, 2.2, and 2.3 of the
judgment. The parties present different interpretations of
the phrase on appeal. Husband interprets the phrase “as of
December 31, 2018” as a valuation date for wife’s one-half
interest in the marital portion. Wife argues that husband’s
interpretation would render “as of December 31, 2018” mean-
ingless surplusage. Rather, wife interprets the phrase as a
date upon which her award should be effective, because the
judgment’s inclusion of “marital portion” creates a valuation
1
Extrinsic evidence is permissibly considered to determine ambiguity, and
to resolve ambiguity. When applying the “three steps” of contract interpretation
described in Yogman, 325 Or at 361-65, it is important not to forget the clarifi-
cation in Batzer. 204 Or App at 316-17 (synthesizing Yogman with Abercrombie
v. Hayden Corp., 320 Or 279, 883 P2d 845 (1994)). On its face, Yogman could be
read to suggest that extrinsic evidence cannot be considered at the first step of
interpretation, but as explained in Batzer, that would be a misreading of Yogman.
Id. At the first step of interpretation, a “court can properly consider the text of the
provision in the context of the agreement as a whole and in light of the circum-
stances underlying the formation of the contract.” Id. at 317 (emphasis added);
see also ORS 42.220 (“In construing an instrument, the circumstances under
which it was made, including the situation of the subject and of the parties, may
be shown so that the judge is placed in the position of those whose language the
judge is interpreting.”).
504 Dadu and Dadu
date in and of itself. Wife argues that the inclusion of “as of
December 31, 2018” is an unnecessary modifier of the noun
phrase “marital portion” and contends that its inclusion as
a fixed effective date ensures wife could receive earnings
after that date on her portion in light of an unspecified date
for the QDRO transfer.
As wife explained during oral argument, her argu-
ment surrounding “as of December 31, 2018” as an effec-
tive date rather than a valuation date requires the marital
portion to be treated, for division purposes, as shares that
will accrue earnings and fluctuate in value as opposed to
discrete dollar values as of that date. In contrast, husband
explained that the marital portion is a discrete cash value
set on December 31, 2018, the valuation date. Looking to
the context of the agreement, we conclude that husband’s
interpretation—as a cash valuation date—is correct.
First, we note as context other portions of the judg-
ment, specifically Paragraph 1.7, which states that wife
is awarded “[o]ne-half of the 6,784 marital shares (3,392
shares) of Intel Common Stock in Husband’s * * * account.”
Paragraph 1.7 is an example of a division of shares that are
capable of accumulating earnings and fluctuating in value
until the time of disbursement. The portions of the judgment
at issue on appeal are not written in this manner, and wife’s
interpretation would render that distinction meaningless.
Even if ambiguity in the agreement existed, how-
ever, extrinsic evidence supports husband’s interpretation.
At trial, the parties submitted as an exhibit a mediation
agreement memorandum prepared in September 2019, con-
taining a spreadsheet breaking down various property into
dollar values and outlining the portion allocated to hus-
band and to wife. Row numbers 4 and 5 in the asset col-
umn provide helpful information; each row contains a dol-
lar amount circled as the “divisible amount.” For the Intel
401(k) Savings Plan, the divisible amount is $379,239, and
the Intel Retirement Contribution Plan’s divisible amount
is $106,243. Those amounts were calculated by subtract-
ing the premarital value from the value on December 31,
2018; hence, the divisible amounts presumably translate to
the “marital portion” values in the judgment. Because the
Nonprecedential Memo Op: 323 Or App 499 (2022) 505
marital portions associated with the two accounts are dis-
crete cash values—not assets or stock holdings—husband’s
interpretation, that setting December 31, 2018, is included
as the valuation date, is correct.
In view of our conclusion that husband’s interpre-
tation is correct, we now consider the issue of whether the
trial court impermissibly modified the parties’ property set-
tlement agreement as reduced to the February 2020 stip-
ulated supplemental judgment, reviewing for legal error.
St. Sauver and St. Sauver, 196 Or App 175, 188, 100 P3d
1076 (2004). It is well settled that parties to marital dis-
solution proceedings may enter into settlement agreements
dictating the dissolution terms. McInnis and McInnis, 199
Or App 223, 230, 110 P3d 639 (2005). Trial courts review
settlement agreements for fairness and equity and once the
agreements are approved, they “are to be enforced as a mat-
ter of public policy.” Id. Ordinarily, courts do not have the
power to modify a property division incorporated into a dis-
solution judgment. St. Sauver, 196 Or App at 178.
The trial court, in its December 2020 order regard-
ing the form of the QDROs, ordered that wife should be enti-
tled to earnings on her share because “it is fair.” Whether
fairness was a perceived issue at that time is immaterial,
as the trial court had already approved the property set-
tlement agreement and incorporated it into the February
2020 supplemental judgment. No party is arguing that the
agreement is unenforceable due to contravening the law or
public policy.
Because we agree with husband’s interpretation of
the February 2020 supplemental judgment terms, we con-
clude that the trial court erred in interpreting the terms of
the property settlement agreement and consequently erred
when it awarded wife earnings in its December 2020 order,
impermissibly modifying the February 2020 stipulated sup-
plemental judgment. Thus, we reverse the supplemental
judgments regarding the QDROs and remand for the court
to enter new supplemental judgments that are consistent
with the February 2020 stipulated supplemental judgment.
Reversed and remanded.