2009-180, In the Matter of Pamela Taber-McCarthy and Ricky C. McCarthy

same. If it turns out that as of 1/16/06 the figure[ ] presented

entered in April 2007, provided, in pertinent part:

retirement and the effective date all parties utilized for figuring the C. Retirement. The parties agreed on the amount of the

January 16, 2006, the petitioner filed for divorce. Their final divorce decree, The record reveals the following facts. The parties married in 1998. On

(QDRO) proposed by the petitioner, Pamela Taber-McCarthy. We affirm. Court (Abramson, J.) that adopted the qualified domestic relations order recommended by a Marital Master (Green, M.) and approved by the Superior DALIANIS, J. The respondent, Ricky C. McCarthy, appeals an order

and orally), for the respondent. Walker & Buchholz, P.A., of Manchester (Kevin E. Buchholz on the brief

to press. Errors may be reported by E-mail at the following address: orally), for the petitioner. Mosca Law Office, of Manchester (Edward C. Mosca on the brief and

page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF PAMELA TABER-MCCARTHY AND RICKY C. MCCARTHY

No. 2009-180 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as requirements for a [QDRO] . . . .” p. 2 be necessary for the parties to obtain an amended order that meets the

court.

it to become a qualified order. This includes signing all documents which may QDRO that would address this concern, but were unable to agree. payment.” The parties attempted to negotiate an addendum to the stipulated the date of distribution or transfer or if the $33,979.96 is a lump sum

‘vested benefit’ under [his employer’s 401(k) plan] which was earned QDRO assigned to the petitioner “an amount equal to 50% of the [respondent’s] January 16, 2006; and the date of the divorce as July 13, 2007. The stipulated shall cooperate with the Plan Administrator to make the changes necessary for

whether or not gains (losses) should be applied from January 16, 2006 until

signing authorizations to obtain information, a motion for to this information. . . . If the Court finds that there is any delay in documents necessary to allow Petitioner’s counsel to have access

marriage as September 26, 1998; the date of filing of the divorce petition as Administrator determines that this order is not a [QDRO] . . . , both parties

plan administrator noted that the stipulated QDRO was “unclear [as] to $33,979.96.” concerns about it, which the parties were unable to resolve. Specifically, the because the administrator of the respondent’s retirement plan expressed The stipulated QDRO was never entered as a court order, however,

an appropriate QDRO. The Respondent shall execute all

2007, the parties stipulated to a QDRO. The stipulated QDRO gave the date of The stipulated QDRO further provided: “In the event the Plan

$4,735.04 . . . . [Accordingly,] [t]he net amount due [the petitioner] is One half of this amount is $38,715. This amount shall be reduced by . . . “This amount,” the stipulated QDRO provided, “is calculated to be $77,430. period of the marriage only from September 26, 1998 to January 16, 2006.”

information, valuation and forms that are necessary to effectuate contact the Respondent’s employer . . . and obtain the appropriate Petitioner. The counsel for the Petitioner shall have the right to The parties’ divorce decree became effective July 13, 2007. In August

or down reflecting the accurate figure.

QDRO needed to transfer funds from the Respondent to the The Petitioner agreed that her counsel will prepare the

accurate, the amount to be transferred can be adjusted either up relative to Respondent’s retirement plan of $105,070.65 is not the trial court improperly applied the

p. 3 understood the ambiguous language to mean.” amount agreed to less the losses incurred in the interim. He also asserts that court unsustainably exercised its discretion by failing to award her the original approved. He argues that given the delay caused by the petitioner, the trial 3

giving effect to the intention of the parties.

under an objective standard, what the parties, as reasonable people, mutually

could reasonably disagree as to the meaning of that language.” particularly given the petitioner’s delay in getting the stipulated QDRO

141.

and the object intended by the agreement, while keeping in mind the goal of reading the document as a whole. examine the contract as a whole, the circumstances surrounding execution 153 N.H. 498, 503 (2006). In applying the objective standard, a court should

governed by contract rules. omitted). “If the agreement’s language is ambiguous, it must be determined, Trust v. CC Enterprises, 147 N.H. 137, 139 (2001) (quotation and brackets

unequal division of property and that the trial court could not have reasonably be determined from the plain meaning of the language used in the contract. Id.

circumstances and the context in which the agreement was negotiated, and the language used by the parties its reasonable meaning, considering the which we review de novo. Id. When interpreting a written agreement, we give N.H. 368, 373 (2007). The interpretation of a contract is a question of law,

receive. A stipulated agreement is contractual in nature and, therefore, is awarded the petitioner more than the parties’ agreement called for her to We first address whether the QDRO the court ultimately ordered

turn. for [her] to receive.” He contends that the QDRO, therefore, effected an failed to grant his motion to compel. We address each of his arguments in RSA 458:16-a, I (2004). Finally, he argues that the trial court erred when it Hodgins, 126 N.H. 711, 716 (1985), superseded by statute on other grounds by

payable without any gains or losses thereon.” that the net amount due her ($33,979.96) “shall be a lump sum amount

to, which in effect awarded [her] more than what the parties’ agreement called portion of the funds in order to pay the petitioner the original amount agreed adopted caused him to suffer the “loss of approximately $12,000 . . . out of his On appeal, the respondent argues that the QDRO the court ultimately

adopted the petitioner’s proposed QDRO, which provided, in pertinent part, In December 2008, following numerous hearings on the issue, the court under the QDRO included gains and/or losses.

p. 4 or distribution.” The QDRO is not ambiguous in this respect, however.

failed to state in their agreement that the amount the petitioner was to receive

petitioner $33,979.96.

petitioner’s] distribution from the date of calculation to the date of segregation

was detailed in many respects, “[w]hether by accident or design,” the parties rental.

agreed-upon valuation date. it was silent.

the payment of sewer rental, when the parties did not.” See id. Contrary to the respondent’s assertions, the did not err by applying the plain language of the stipulation awarding the “not ambiguous in this respect; it [was] simply silent.” Id. Thus, the trial court

applicable here. In this case, while the parties’ stipulation regarding the QDRO Although regarding whether the tenant or landlord was responsible for the cost of sewer Dow arose in a different context, we find its reasoning to be

$33,979.96” based upon the values of the parties’ retirement benefits as of the Id. stipulated QDRO stated that “[t]he net amount due [the petitioner] is not ambiguous with regard to who was responsible for paying the sewer rental; QDRO valued the parties’ retirement benefits as of January 16, 2006. The Id. The agreement was court could not “supply the deficiency by writing into the lease a provision for tenant’s refusal to pay the sewer rental did not breach the lease. Id. The trial agreement was silent upon this issue, the trial court properly ruled that the electricity bills.” Id. at 383 (quotation omitted). We held that because the [this figure] . . . is not accurate, the amount to be transferred can be adjusted receive a net amount equal to $33,979.96. As the respondent concedes: not state which party was responsible for payment of water, sewer, and Id. at 382-83. The parties’ lease, “while detailed in many respects, did

interpretation of a lease. In that case, a dispute between the parties arose We first articulated this principle in Dow, which concerned the

silent on this issue. See id. the parties’ agreement, as reflected in their divorce decree, the stipulated Dow Associates, Inc. v. Gulf Oil Corp., 114 N.H. 381, 383 (1974). It is simply

$105,070.65, however, the parties’ decree stated that “[i]f it turns out that . . . The plain meaning of the stipulated QDRO was that the petitioner was to 16, 2006. As of that date, the respondent’s retirement plan was valued at retirement benefits. The parties agreed that the valuation date was January

Thereafter, the parties entered into a stipulated QDRO. Consistent with

amount of the retirement and the effective date” for valuing the parties’ According to the parties’ final divorce decree, “[t]he parties agreed on the p. 5 5

plan. As such, it had an ascertainable value.

awarded the petitioner less than the amount stipulated in the QDRO. the respondent’s retirement account. Nor was it required to do so.

determine the value of the retirement benefit at the time of divorce.

spouse. as of the date benefits commence and awarding half of this amount to each See id. Therefore, the trial court respondent’s retirement benefit, a 401(k) account, was a defined contribution number of credits the employee will have earned toward the retirement benefit

retirement. Thus, he claims that what was fair and equitable in 2007 is no Although the trial court’s order referred to the Hodgins formula, the stock market have effectively made the $33,979.96 a larger portion of his misrepresentation, or mutual mistake.” apply when the value of the retirement benefit is ascertainable. See id. misapplied the Matter of Watterworth & Watterworth, 149 N.H. at 4 p. 5 52. The formula does not

to warrant modifications to the original property division. Id.; see Hodgins, 126 N.H. at 716. The Hodgins formula is designed to

employed during the marriage and before divorce commenced by the total parties’ property settlement was required for any of the foregoing reasons. employee’s former spouse by dividing the number of months the employee was 149 N.H. at 4 p. 5 52. The Hodgins formula calculates a percentage to be paid to an values are unascertainable. See In the Matter of Watterworth & Watterworth, equitably apportioning retirement benefits when the actual and contingent that in the nearly three years since the divorce became final, changes in the that the distribution is invalid due to fraud, undue influence, deceit,

Hodgins formula. In Hodgins, we established a formula for

We next address whether, as the respondent claims, the trial court

of money or a specific portion of the spouses’ property and is not subject to See id. changed circumstances, such as the decline of the stock market, is insufficient property settlement was necessary. See id. The respondent’s reliance upon id. Accordingly, he has failed to demonstrate that modification of the parties’

The respondent has neither argued nor demonstrated that modification of the

impermissibly effected an unequal division of property. The respondent argues a property distribution will not be modified unless the complaining party shows Birmingham & Birmingham, 1 p. 5 54 N.H. 51, 57 (2006) (quotation omitted). “Such

“A property settlement in a divorce decree is a final distribution of a sum

We next turn to the respondent’s assertions that the trial court’s order

called for her to receive. trial court’s order awarded the petitioner precisely what the parties’ agreement p. 6 6

the trial court committed no reversible error by failing to grant his motion. disputed the amount of the petitioner’s own retirement benefit, we hold that actually obtained the information she sought, and since the parties never

to the gains/losses to his retirement benefit. Since the petitioner never

motion because the court allowed the petitioner to seek information pertaining retirement accounts. He argues that the trial court should have granted his the petitioner to sign a form allowing him access to information about her BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

the respondent’s motion to compel. The respondent’s motion sought to compel Finally, we address whether the trial court erred when it failed to grant

See id. actual value of the respondent’s retirement benefit as of the valuation date. did not, and had no need to, resort to the Hodgins formula to ascertain the