Fry v. Fry

281 Neb. 1001

800 N.W.2d 671

Ronald FRY, appellant,

v.Janet R. FRY, appellee.

No. S–10–698.

Supreme Court of Nebraska.

July 29, 2011.

Syllabus by the Court

1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the trial court.

David A. Domina and, of counsel, Mark D. Raffety, of Domina Law Group, P.C., L.L.O., Omaha, for appellant.Susan A. Anderson and Molly M. Blazek, of Anderson & Bressman Law Firm, P.C., L.L.O., Omaha, for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.

NATURE OF CASE

Ronald Fry appeals orders of the district court for Douglas County filed June 14, 2010. The court entered an amended qualified domestic relations order (QDRO) which, in addition to stating that Janet R. Fry was entitled to an absolute amount from Ronald's profit-sharing plan, awarded Janet postjudgment interest thereon for the period commencing with entry of the decree of dissolution on July 17, 2006, during the pendency of a previous appeal which had challenged an earlier version of the QDRO and concluding on June 10, 2010. The district court did not err when it ordered postjudgment interest. We affirm.

STATEMENT OF FACTS

Ronald and Janet's marriage was dissolved pursuant to a decree of dissolution entered by the district court on July 17, 2006. The decree included the following provision:

14. Profit[-]Sharing Plan. [Ronald] enjoys an American Bar Association AKC Profit[-]sharing plan with an accumulated value of $635,243 as of January 1, 2005. All of the accumulation has occurred during the course of the marriage. There are tax consequences for withdrawals from the plan by either party, but either party will determine by their own choices how and when the taxable events will occur. [Ronald] is awarded the profit[-]sharing plan. [Janet] is awarded a portion of the plan which is $182,599.00. Counsel shall prepare a [QDRO] to facilitate transfer of the funds.

No QDRO was entered prior to September 2008, when Ronald filed a motion to reopen the case, and Ronald and Janet filed separate motions to compel entry of their respective competing proposed QDROs. After an initial hearing, subsequent motions to amend by each party, and an additional hearing, the district court on December 15, 2008, entered an amended QDRO, which awarded Janet $182,599, together with interest thereon at the rate of 6.849 percent from July 17, 2006, until December 8, 2008.

Ronald appealed the December 15, 2008, QDRO and related orders to the Nebraska Court of Appeals. Ronald claimed, inter alia, that the district court had erred when it treated the division of retirement funds as a monetary judgment consisting of an absolute dollar amount rather than as a judgment for a percentage of the funds and when it awarded postjudgment interest on Janet's share of the retirement funds accruing from the date of the decree of dissolution. See Fry v. Fry, 18 Neb.App. 75, 775 N.W.2d 438 (2009). The Court of Appeals determined that the decree of dissolution “plainly awarded Ronald the profit-sharing plan and awarded Janet $182,599 from the plan” and concluded therefore that the QDRO properly awarded Janet the dollar amount of $182,599 rather than a particular percentage of the plan. 18 Neb.App. at 79, 775 N.W.2d at 442. The Court of Appeals cited Kullbom v. Kullbom, 215 Neb. 148, 337 N.W.2d 731 (1983), for the proposition that interest on the unpaid balance of pension and profit-sharing funds shall accrue from the date of the divorce decree and concluded that “the district court did not err in awarding interest from July 17, 2006—the date of the divorce decree—because that is when Janet was assigned her share of Ronald's profit-sharing plan.” 18 Neb.App. at 81, 775 N.W.2d at 443. The Court of Appeals affirmed the orders appealed.

After the affirmance, Janet filed motions in the district court to reopen the case and to enter an amended QDRO. She sought to amend the QDRO which had been affirmed in Fry to provide for interest that had accrued during the appeal of the prior orders. Ronald opposed the amendment on the basis that he had not filed a supersedeas bond during the appeal or taken any action that would have prevented Janet from executing on the prior QDRO. Janet noted in response that one of the issues on appeal was whether the QDRO properly provided that she was to receive a specific dollar amount from the retirement funds or whether the QDRO should have provided that she was to receive a certain percentage of the plan. She argued that it would have been unwise to execute on the QDRO before that issue was resolved because if it had been resolved in Ronald's favor, she could have owed him money back.

Following a hearing, on June 14, 2010, the district court ordered the case reopened and entered the amended QDRO proposed by Janet. It is this QDRO and related orders which are at issue in this appeal. The QDRO provided for interest from the date of the decree of dissolution through June 10, 2010, the date of the hearing on the motions before the court. The QDRO provided in part as follows:

[Janet] shall be awarded the sum of One Hundred Eighty Two Thousand Five Hundred Ninety Nine and no/100 Dollars ($182,599.00) from [Ronald's] 401(k) Profit[-]Sharing Plan, together with interest thereon at the rate of 6.849% from July 17, 2006, until June 10, 2010, for a total of $231,385.24, said amount representing the total amount awarded to [Janet]. ($182,599 + $48,786.24 interest). Said amount shall be paid from [Ronald's] Income Plus Fund to assure that said funds are paid in cash as opposed to equities, and [Janet] is entitled to an immediate distribution from the Plan of the entire balance of [Janet's] account and any earnings thereon in accordance with the directions specified by [Janet].

Ronald appeals the order to reopen the case and the amended QDRO entered by the district court.

ASSIGNMENT OF ERROR

Ronald claims, summarized and restated, that the district court erred when it awarded Janet postjudgment interest for the period after the decree encompassing the pendency of a prior appeal of an earlier QDRO and up to June 10, 2010.

STANDARD OF REVIEW

Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the trial court. State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010).

ANALYSIS

Ronald claims that the district court erred when it awarded Janet additional postjudgment interest following the remand from the Court of Appeals' decision in Fry v. Fry, 18 Neb.App. 75, 775 N.W.2d 438 (2009). The earlier QDRO that had been appealed and affirmed by the Court of Appeals in Fry awarded postjudgment interest from the date of the decree through December 8, 2008. On remand, the district court extended the award of postjudgment interest through June 10, 2010, which period included the pendency of the appeal resulting in Fry. We conclude that the award of additional postjudgment interest up to June 10, 2010, now challenged on appeal, was not error.

In Fry, the Court of Appeals determined that the district court did not err when it awarded interest from the date of the divorce decree “because that is when Janet was assigned her share of Ronald's profit-sharing plan.” 18 Neb.App. at 81, 775 N.W.2d at 443. The Court of Appeals reasoned that the award was required by Neb.Rev.Stat. § 45–103.01 (Reissue 2010), which provides that postjudgment interest “shall accrue on decrees and judgments for the payment of money from the date of entry of judgment until satisfaction of judgment.” The Court of Appeals cited Bowers v. Lens, 264 Neb. 465, 648 N.W.2d 294 (2002), and noted that the language of § 45–103.01 is mandatory and that a court of equity does not have discretion to withhold interest on decrees or judgments for the payment of money. The Court of Appeals also relied on Kullbom v. Kullbom, 215 Neb. 148, 337 N.W.2d 731 (1983), in which this court concluded that interest on the unpaid balance of a specific dollar amount of a pension and profit-sharing trust awarded in a divorce decree should accrue from the date of the decree. Based on these authorities, the Court of Appeals concluded in Fry that the divorce decree in this case awarded Janet a specific dollar amount from Ronald's profit-sharing plan and that sh...