DAVID F. THOMSON, Appellant,
MARJORIE W. THOMSON, Appellee.
from the Superior Court No. 1JU-06-00608 CI of the State of
Alaska, First Judicial District, Juneau, William B. Carey,
Appearances: Michael A. D. Stanley, Juneau, for Appellant.
H. Grant, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
a divorcing couple agreed to divide the husband's
retirement benefit based on its present value and implemented
the division with a Qualified Domestic Relations Order
(QDRO). In 2014, after the husband received an updated
benefit projection that calculated the wife's share of
the benefit using his salary at retirement instead of at
divorce, he sought to modify the QDRO. He asked the court to
require that her benefit be based upon the same salary data
used in the 2006 calculation. The superior court denied the
motion. Because the settlement did not contain clear language
establishing the use of the earlier salary as required by
Hartley v. Hartley,  we affirm.
FACTS AND PROCEEDINGS
The 2006 Divorce And Property Settlement
and Marjorie Thomson married in 1982 and permanently
separated on December 31, 2004. Working with a mediator, they
developed a property settlement agreement that was
incorporated into their August 9, 2006 divorce decree. David
retained the marital home, so the property settlement
assigned about 53% of the net estate to Marjorie to help her
establish adequate housing for the couple's minor
children. They agreed that this division "fairly
allocate[d] the economic effect of their divorce" as
required by AS 25.24.160(a)(4).
the assets divided were retirement accounts belonging to
both, including their State of Alaska Public Employees'
Retirement System (PERS) retirement accounts. David was still
working for the State and had accrued a little more than 20
years of PERS service credit when the parties separated. The
parties agreed on a value for David's PERS account based
on its present value as calculated by a third party company.
The company used David's most recent average earnings for
2003-2005 to calculate a projected benefit if he retired at
the expected date of April 1, 2015. It then determined that
the March 2006 present value of his benefits was $286, 882
and that the marital portion was $271, 316. That amount was
based on the proportion of David's PERS service that
occurred between their 1982 marriage and their separation on
December 31, 2004.
parties allocated the agreed-upon value of David's PERS
benefit along with the agreed values of their other assets
between themselves in a chart of their marital assets. Once
they reached what they considered a fair distribution of the
entire estate in dollar terms, they calculated what
percentage of David's PERS benefit was on Marjorie's
side of the ledger.
on these calculations, the property settlement agreement
provided that Marjorie would receive 46.96% of "the
marital portion of David's account" to be
distributed via a QDRO. The settlement also provided that
each party would "solely . . . retain other property
acquired after their 31 December 2004 permanent separation.
That property is agreed to be non-marital and neither party
is making a claim to it." The QDRO submitted by the
parties said, in relevant part, that "Marjorie W.
Thomson, as the Alternate Payee, shall receive from the Plan,
from the final monthly retirement benefit which otherwise
would be payable to the Member, 46.96% of the total monthly
benefit which is based on credited service accrued from
August 7, 1982 to December 31, 2004." (Emphasis in
original.) The court signed this QDRO along with the divorce
decree and settlement on August 9, 2006.
The Present Dispute Over The QDRO Distribution
fall of 2014 David obtained an updated projection of his PERS
benefits from the state Division of Retirement and Benefits
(DRB). The projection estimated his benefits as of a
retirement date of May 1, 2015 and showed how those benefits
would be affected by the QDRO. The benefits were calculated
using David's average earnings for his final three years
of employment, 2013-2015. Due to his significantly increased
salary and about ten additional years of credited service,
David's retirement benefit was projected at about 80%
more than the 2006 projection. Under the QDRO Marjorie would
receive "nearly double" what David had expected
based on the earlier projection. When David questioned why
the salary years from the 2006 projection were not used to
calculate Marjorie's payment, DRB reportedly responded
that he might need to amend the QDRO to do so.
then moved to amend the QDRO to have Marjorie's benefit
calculated using the salary years from the 2006 projection.
He argued that such an amendment would "conform [it] to
the parties' property settlement and effectuate the
agreed distribution of David's PERS benefit." He
argued that the parties had relied upon the 2003-2005 salary
data when they divided their assets. According to David, the
settlement language and QDRO demonstrated that Marjorie's
payment had to be calculated based on the 2006 figures
"so that her share would be limited to the 'marital
portion' of his account." He further argued that
using the 2014 figures would allow her to benefit from
non-marital property he had acquired after their divorce,
contrary to their settlement agreement.
responded that Hartley v. Hartley barred David's
interpretation of the settlement and his proposed amendment
of the QDRO: "Absent clear language to the contrary in a
property division agreement, a court should base the division
of retirement benefits on the employee spouse's
high-three salary years at the time of
superior court agreed with Marjorie and found the
Hartley rationale "persuasive and controlling
in this instance." It further stated that "no
language in the QDRO or in the property agreement... requires
a different conclusion" and denied the motion to amend.
David moved for reconsideration, arguing that the court had
overlooked evidence of the parties' intent and that its
decision would result in Marjorie receiving more of the
marital estate than the parties had agreed. The superior