The opinion
836
Argued and submitted December 1, 2020, affirmed April 6, 2022
In the Matter of the Marriage of
Elizabeth Louise PILLER,
Petitioner-Respondent,
and
Stephen Louis PILLER,
Respondent-Appellant.
Washington County Circuit Court
C033682DRA; A171362
508 P3d 553
In this dissolution case, husband appeals three supplemental judgments
dividing various deferred compensation accounts between the parties. Husband
and wife were divorced in 2004. The trial court issued a dissolution judgment
awarding wife half the value of husband’s PERS member’s account and directed
wife to submit a Qualified Domestic Relations Order (QDRO) to the court. Wife
did not submit the QDRO until almost 15 years later, resulting in three sup-
plemental judgments. Those judgments awarded wife her share of husband’s
deferred compensation accounts, a portion of the PERS benefit payments that
husband alone had received after his retirement, and a percentage of husband’s
gross monthly retirement benefit going forward. On appeal, husband argues that
the supplemental judgments are inconsistent with the unambiguous terms of the
dissolution judgment, and that the trial court used an incorrect rate of return in
calculating the growth of his deferred compensation account. Held: The Court of
Appeals concluded that the 2004 dissolution judgment did not unambiguously
preclude the trial court from entering supplemental judgments awarding wife
a share of husband’s retirement benefits. Husband’s interpretation of the 2004
judgment was at odds with the language of the administrative rules governing
the division of retirement benefits in place when the 2004 judgment was entered.
The court further concluded that the trial court did not err in calculating the
growth of husband’s deferred compensation account, because husband provided
no evidence to support that his proposed rate of return was more accurate than
the rate ultimately adopted by the trial court.
Affirmed.
Kathleen J. Proctor, Judge.
Chelsea D. Armstrong argued the cause for appellant.
Also on the briefs was Armstrong Chai, LLC.
Laura Graser argued the cause and filed the brief for
respondent.
Cite as 318 Or App 836 (2022) 837
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.*
KISTLER, S. J.
Affirmed.
______________
* Lagesen, C. J., vice DeVore, S. J.; Kistler, S. J., vice DeHoog, J. pro tempore.
838 Piller and Piller
KISTLER, S. J.
In this dissolution case, husband appeals three
supplemental judgments dividing various deferred compen-
sation accounts between the parties. He argues that the
supplemental judgments are inconsistent with the unam-
biguous terms of the dissolution judgment and that the
trial court used an incorrect rate of return in calculat-
ing wife’s share of one deferred compensation account. We
affirm.
Husband and wife were married from September 2,
1993 until August 17, 2004, when the Washington County
Circuit Court entered a stipulated dissolution judgment.
The dissolution judgment recites that, during their marriage,
wife was a member of the Public Employees Retirement
System (PERS) and that husband “ha[d] retirement accounts
established at PERS and ING[, later renamed Voya], and may
have an account with Aetn[a] Life Insurance and Annuity
Co.” The judgment sets out the approximate value of those
accounts at the time of dissolution: $5,498 for wife’s PERS
account and $141,581 for husband’s accounts. The judgment
then provides that, “[t]o the extent retirement accounts
exis[t], they shall be divided equally between the parties.”
Finally, the judgment directs wife to submit a Qualified
Domestic Relations Order (QDRO) and retains jurisdiction
“over these matters until the intent of this paragraph is car-
ried out.”1
Wife did not submit a QDRO to the court for 15
years. In the interim, husband retired. He elected to take a
“lump sum option 2” payment of his PERS pension benefits;
that is, at retirement, PERS paid husband a lump sum based
on the amount in his member’s account and a monthly ben-
efit based on the amount of contributions that his employer
1
Beyond the facts stated in the 2004 dissolution judgment, the record is
sparse. The supplemental judgments, which husband challenges, recite some his-
torical facts that we assume are based on information obtained by the attorney
who prepared the QDRO. However, except for a worksheet identifying some of the
attorney’s preliminary assumptions and statements that PERS sent to husband,
the information and methodologies that the attorney used to prepare the QDRO
are not included in the record. To the extent that the historical facts stated in the
supplemental judgments and the underlying documentation are undisputed, we
rely on them.
Cite as 318 Or App 836 (2022) 839
made to the PERS Fund.2 Husband also received a distri-
bution from his deferred compensation plan and a distribu-
tion from his PERS Individual Account Plan (IAP). Because
neither husband nor wife notified PERS or the custodian
of husband’s deferred compensation plan of the 2004 disso-
lution judgment, all the benefits from those accounts were
paid directly to husband after he retired in 2014. Husband
rolled the lump-sum payment, the distribution from his
deferred compensation plan, and the distribution from his
IAP into an IRA at Raymond James.
In 2019, wife retained an attorney, Ann Mercer, to
prepare a QDRO, which resulted in three proposed supple-
mental judgments. The first proposed supplemental judg-
ment was directed to Raymond James. It awarded wife
$187,237.22 for her share of the retirement benefits that
husband had rolled into his Raymond James IRA—the
lump-sum payment from PERS, the distribution from hus-
band’s IAP account, and the distribution from his deferred
compensation account. Additionally, the first proposed sup-
plemental judgment awarded wife $36,576.89 for her share
of the monthly PERS benefit payments that husband alone
had received from 2014 to 2019.
The second proposed supplemental judgment was
directed to PERS and awarded wife prospectively 29.54
percent of the “gross monthly retirement benefit currently
being paid to” husband. The second supplemental judgment
does not disclose the methodology Mercer used to determine
that wife was entitled to 29.54 percent of husband’s monthly
PERS benefit.
The third proposed supplemental judgment was
directed to PERS and awarded husband a share of wife’s
PERS benefits. We do not describe that judgment further.
As explained below, having stipulated to the third supple-
mental judgment, husband may not challenge it on appeal.
Before wife submitted the proposed supplemental
judgments to the court, husband filed an anticipatory objection.
2
Wife asks us to take judicial notice of a booklet prepared by PERS explain-
ing various payment options at retirement, including a “lump sum option 2” pay-
ment. Husband has not objected to wife’s request, and we take judicial notice of
the booklet, which is consistent with ORS 238.305.
840 Piller and Piller
Later, wife filed a motion to show cause why the proposed
supplemental judgments should not be signed; the court
ordered husband to show cause; and husband filed an answer
in response to the court’s show-cause order. Husband’s
answer expanded on his anticipatory objection. Essentially,
he argued that the terms of the 2004 dissolution judgment
can be read only one way: the value of the parties’ retirement
accounts at the time of dissolution should be divided equally
between the parties. Husband reasoned that, because the
dissolution judgment referred to retirement accounts and
did not mention retirement benefits, it permitted division
of the value of the retirement accounts at the time of disso-
lution but not the benefits that flowed from those accounts.
He also appeared to take the position that wife was not enti-
tled to any interest or growth on her share of those accounts
between the entry of the dissolution judgment in 2004 and
his retirement in 2014. Finally, he raised a separate objec-
tion to the rate of return that Mercer supposedly used to
calculate the growth of his deferred compensation account
between 2004 and 2009.
At the hearing on wife’s show-cause motion, the
court initially spoke with the parties, their counsel, and
Mercer in chambers. That discussion was not recorded.3 The
court then went on the record and announced its decision.
It disagreed with husband that the terms of the dissolution
judgment unambiguously limited each party to half the
value of the retirement accounts at the time of dissolution
but none of the benefits that flowed from those accounts. In
the court’s view, the 2004 judgment permitted an equita-
ble division of the parties’ interest in both their retirement
accounts and the benefits flowing from those accounts. The
court did not expressly address husband’s objection regard-
ing the rate of return that Mercer supposedly had used.
After announcing its ruling, the court asked husband if he
wished to make a further record, and husband chose to rely
on the arguments raised in his answer.
3
The parties did not ask the court to record their discussion in chambers,
nor did they summarize or otherwise memorialize their in-chambers discussion
once the court went back on the record. Cf. State v. Y. B., 296 Or App 781, 785, 439
P3d 1036 (2019) (explaining that ordinarily it is the appellant’s obligation to put
on the record an account of any critical proceedings occurring off the record).
Cite as 318 Or App 836 (2022) 841
On appeal, husband assigns error to two rulings. In
his first assignment of error, he argues that the trial court
erred in interpreting the 2004 dissolution judgment. In his
view, that judgment unambiguously limited wife to half the
value of his PERS member’s account at the time of dissolution
and, as he now acknowledges on appeal, interest on her half
of that account. However, he reiterates that, under the terms
of that judgment, she is not entitled to any part of the benefits
that flowed from her share of his PERS member’s account.4
Wife raises two procedural objections to husband’s
first assignment of error. She notes initially that each of the
three supplemental judgments that the court signed is cap-
tioned as a “stipulated supplemental judgment.” Based pri-
marily on the caption, she argues that husband stipulated to
the supplemental judgments and cannot challenge them on
appeal. However, husband never signed or otherwise affir-
matively manifested his assent to the first and second sup-
plemental judgments. Indeed, he raised multiple objections
to the entry of those judgments. We are not persuaded that
husband is precluded from challenging those judgments on
appeal. Cf. State v. James, 303 Or App 481, 482, 464 P3d 464
(2020) (discussing the relative weight to be given the caption
and body of a judgment).5
Wife raises a second procedural objection. She argues
that husband failed to preserve his argument that she is
4
Mercer’s preliminary notes suggest that she recommended (and the trial
court divided) the value of husband’s IAP and deferred compensation accounts at
the time of dissolution equally between the parties and awarded wife earnings
on her share of those accounts. Husband does not argue otherwise on appeal.
Rather, his first assignment of error appears to focus on the trial court’s decision
to award wife a share of the retirement benefits that flowed from his PERS mem-
ber’s account.
5
After husband filed this appeal, PERS discovered an error in the third
supplemental judgment giving husband a share of wife’s PERS benefits. To cor-
rect that error, the court entered a judgment captioned “Stipulated Corrected
Supplemental Judgment (Domestic Relations Order - Award to [Husband]).” Unlike
the first two supplemental judgments, which were merely captioned “stipulated,”
both parties or their agents signed the corrected third supplemental judgment.
We conclude that husband did, in fact, stipulate to the corrected third supplemen-
tal judgment, and we may not review his challenge to that judgment on appeal.
See Jensen and Jensen, 169 Or App 19, 22, 7 P3d 691 (2000). We may, however,
review his challenge to the first two supplemental judgments, which awarded
wife a share of the lump sum payment and monthly payments that husband
received from PERS.
842 Piller and Piller
entitled to only half the value of his PERS account at the
time of dissolution. It may be, as wife argues, that the prem-
ises of husband’s argument could have been stated more
clearly. However, we are persuaded that husband suffi-
ciently preserved the issue he seeks to raise on appeal—that
the dissolution judgment unambiguously limits wife to half
his PERS member’s account at the time of dissolution and
none of the associated benefits. See State v. Walker, 350 Or
540, 551, 258 P3d 1228 (2011) (holding that an abbreviated
reference to an issue was sufficient to preserve it).
We accordingly turn to the merits of husband’s argu-
ment that the dissolution judgment unambiguously provides
that the value of his PERS member’s account at the time
of dissolution but not the associated PERS benefits shall
be divided equally with wife. Husband’s argument rests on
the unexplained assumption that, in 2004, a judgment that
referred only to dividing a PERS account necessarily fore-
closed dividing the associated PERS benefits. In determin-
ing the meaning of the 2004 dissolution judgment, we begin
with a brief discussion of the statutory and rule-based right
to PERS benefits, as they existed in 2004, that flowed from
husband’s PERS member’s account and wife’s right to share
in those benefits. Attempting to determine the meaning of
the 2004 dissolution judgment without an understanding of
the legal context that existed when the trial court entered
that judgment is simply shooting in the dark.
Husband became a PERS member in 1991 and, as
a result, was a Tier I PERS member. See State v. Strunk,
338 Or 145, 158, 108 P3d 1058 (2005) (defining Tier I PERS
members). Before the 2003 PERS reform legislation went
into effect, a Tier I PERS member contributed six percent
of his or her salary to a regular “member” account,6 and the
member’s employer paid an equivalent amount to the PERS
Fund based on an actuarial evaluation. See id. at 158-60, 164
(discussing PERS members’ and PERS employers’ respective
obligations). When a Tier I PERS member became eligible
for retirement, the member would receive a pension benefit
6
The regular member account consisted of the employee’s contributions and
the earnings that the PERS Board credited annually to those contributions.
Strunk, 338 Or at 158.
Cite as 318 Or App 836 (2022) 843
calculated using one of two formulas: money match or full
formula. Id. at 160.7 By statute, PERS used the formula that
resulted in the higher benefit to the member. Id. at 161.
Essentially, under money match, PERS doubled the
amount of money in the member’s regular account at the time
of retirement. Id. A member could elect to annuitize the dou-
bled amount, receive it as a lump sum, or receive it as a com-
bination of the two. See ORS 238.305. Under the full formula
approach, PERS calculated the pension benefit a member
would receive by multiplying the member’s final average sal-
ary by a statutorily determined percentage (1.67 percent for
most members), and then multiplying the resulting number
by the member’s years of service. Strunk, 338 Or at 160-61.
By 2003, the gross annual pension benefit pro-
duced by using the money match formula approached and
sometimes exceeded a member’s gross annual wages. See
id. at 162-63. The legislature became concerned that pay-
ing the increased pension benefits resulting from the money
match formula threatened the fiscal integrity of the PERS
Fund, and it enacted legislation that, over time, effectively
reduced the use of that formula. See id. Among other things,
the 2003 legislation created an IAP for each member and
directed that, after the effective date of the 2003 act, six
percent of each member’s salary would be credited to the
member’s IAP rather than being credited to the member’s
regular account. Id. at 164. The court upheld that statutory
change against a claim that it impaired PERS members’
state constitutional rights. Id. at 192.
Given those statutory principles, the trial court rea-
sonably could have found that, as a result of the 2003 PERS
legislation, no employee contributions were credited to hus-
band’s regular member’s account after the dissolution judg-
ment.8 It follows that, under the terms of the 2004 dissolution
7
A third formula was available for PERS members who began service before
1981. See Strunk, 338 Or at 160. Because husband became a PERS member in
1991, that formula could not be used to calculate his retirement benefits.
8
As noted above, the record includes a worksheet in which Mercer set out
some of her assumptions in calculating each party’s share of the other’s retire-
ment benefits. One of her assumptions, which is consistent with the 2003 legis-
lation, is that no employee contribution was credited to husband’s regular mem-
ber’s account after the parties’ 2004 divorce.
844 Piller and Piller
judgment, wife was entitled to half the amount in husband’s
regular member’s account plus accrued earnings.
The question that husband raises, however, is
whether the 2004 dissolution judgment granting wife half
his member’s account also granted her a share of the asso-
ciated benefits. On that issue, the 2003 version of the PERS
statutes specified that a dissolution judgment may provide
“[t]hat the alternate payee [the member’s former spouse]
may elect to receive payment in any form of pension, annu-
ity, retirement allowance * * * or other benefit [except a
joint and survivor annuity] that would be available to the
member under this chapter.”9 ORS 238.465(2)(b) (2003).
The statute also authorized the PERS Board to adopt rules
to carry out that legislative intent. See ORS 238.465(3)
(2003).
Pursuant to ORS 238.465(3) (2003), the PERS
Board adopted rules that were in effect in 2004; among
other things, the 2004 rules authorized a trial court to enter
a preretirement order directing PERS to establish a sepa-
rate account in the former spouse’s name as an alternate
payee and to fund that account by transferring a percentage
of the member’s account to the alternate payee’s separate
account. OAR 459-045-0010(1)(c) - (g) (2004).10 Once the sep-
arate account was established, the alternate payee would be
entitled to interest on that account and also “would be eli-
gible for benefits based on the member’s eligibility for bene-
fits regardless of whether or not the member elects to begin
receiving benefits.” OAR 459-045-0010(1)(h) - (j) (2004). Put
in the context of this case, if wife had filed a QDRO shortly
after the court entered the 2004 dissolution judgment, OAR
459-045-0010(1) (2004) would have authorized the trial
court to enter a preretirement supplemental judgment that
directed PERS to take half of husband’s regular member’s
account at the time of dissolution and use it to fund a new
separate account for wife, which would have entitled her to
9
ORS 238.465 has been amended numerous times since the judgment in
the underlying case was entered. We refer to the version of the statute that was
effective as of August 17, 2004.
10
As noted, we look to the version of the administrative rules that existed in
2004 because they provided the backdrop against which the trial court and the
parties crafted the 2004 stipulated dissolution judgment.
Cite as 318 Or App 836 (2022) 845
interest and PERS benefits based on her share of husband’s
PERS member’s account.
Alternatively, the trial court could have entered a
supplemental judgment awarding wife “a portion of future
benefits that become due and payable by PERS to [husband].”
OAR 459-045-0010(2) (2004). One method the 2004 rules
provided for determining the former spouse’s share of the
benefits that would become due and payable to the member
was to “award [the former spouse] a percentage of the total
PERS funds that were accrued during the marriage.” OAR
459-045-0010(2)(a); see OAR 459-045-0010(2)(b)(B) (2004)
(illustrating that methodology). We express no opinion on
whether that methodology would be appropriate here. Our
point is narrower. That rule is at odds with husband’s argu-
ment that the reference in the 2004 dissolution judgment to
dividing the amount of husband’s retirement accounts nec-
essarily precluded wife from sharing in the benefits flowing
from husband’s PERS member’s account.
To be sure, wife did not submit a QDRO until after
husband had retired, and the trial court did not enter either
a preretirement order or one that directed PERS to divide
husband’s benefits at the time of payment. However, both
methodologies set out in the 2004 rules directly refute the
assumption that underlies husband’s argument—that a
2004 dissolution judgment that referred only to dividing the
value of a PERS member’s account necessarily reflected an
intent to preclude the member’s spouse from sharing in the
associated PERS benefits. If anything, that context leads to
precisely the opposite conclusion.
Beyond that context, we note that, simply as a mat-
ter of text, the absence of an express statement in the 2004
dissolution judgment regarding wife’s entitlement to partic-
ipate in husband’s PERS retirement benefits undercuts hus-
band’s argument that the dissolution judgment unambigu-
ously precluded a supplemental judgment that awarded her
a share of those benefits. The 2004 judgment is simply silent
on that issue. Finally, the 2004 judgment provides that “[t]he
court shall have jurisdiction over these matters until the
intent of this paragraph is carried out.” (Emphasis added.)
By referring to the “intent” of the paragraph, the judgment
846 Piller and Piller
suggests that the court retained jurisdiction to ensure that
later supplemental judgments reflected the dissolution judg-
ment’s intent, not a specific plan of distribution, or at least
the text and context permit that inference.
Our holding in this case is narrow. Husband has
argued only that the 2004 dissolution judgment unambigu-
ously precluded the trial court from entering supplemental
judgments that gave wife a share of his retirement benefits.
For the reasons explained above, we do not read the judg-
ment that restrictively. Beyond that, we express no opin-
ion on whether the supplemental judgments that the court
entered divided husband’s PERS benefits appropriately
between husband and wife. Beyond arguing that wife was
not entitled to any part of his PERS benefits, husband has
not argued on appeal that the court erred in calculating the
amount of those benefits that it awarded her.
In his second assignment of error, husband argues
that the trial court used an incorrect rate of return to
determine the growth of his deferred compensation account
from 2004 to 2009. On that issue, the record discloses that
Voya was the custodian of husband’s deferred compensation
account at all relevant times. However, as Mercer noted in
setting out her preliminary assumptions, “no records [we]re
available [from Voya] for earnings in [husband’s deferred
compensation account] between August 12, 2004 and
December 31, 2009.”11 Mercer also noted that husband’s “IAP,
which is also invested with Voya, had a return of 29.27%”
from 2004 to 2009. She proposed using the same rate of
return to determine the growth of husband’s deferred com-
pensation account and asked husband’s attorney whether he
agreed.
The record does not disclose what communications,
if any, husband’s attorney had with Mercer before she pre-
pared the first supplemental judgment. It also does not dis-
close whether Mercer, in fact, ended up using the IAP rate of
return or some other rate of return to determine the growth
in husband’s deferred compensation account between 2004
and 2009.
11
Mercer noted that records were available from Voya after 2009.
Cite as 318 Or App 836 (2022) 847
When husband filed his answer to the show-cause
order, his answer assumed that Mercer had used the IAP
rate of return. Husband’s lawyer asserted, in the answer,
that husband’s
“IAP is known to have been invested in a much more conser-
vative set of funds in that period than other Voya-managed
plans including the [deferred compensation account] in
question. [Husband’s] accounts were invested largely in
stocks and not more conservative assets. [Husband’s] Voya-
managed fund investments track more closely to the S&P
500 during this period, which had a return for the period
of 4.88%.”
It followed, husband’s lawyer argued, that Mercer should
have used the return for the S&P 500 to calculate the
growth of husband’s deferred compensation account from
2004 to 2009.
We assume from husband’s answer that Voya offered
employees, such as husband, a menu of funds in which the
employee’s deferred compensation account could be invested
until retirement. However, other than arguing that his
deferred compensation account was invested in riskier
stocks than his IAP account, husband failed to identify the
funds or types of funds in which his deferred compensation
account was invested and how those funds compared to the
S&P 500. For all that the record reveals, husband’s deferred
compensation account could have been invested in interna-
tional stocks, emerging market stocks, or small cap funds
while the S&P 500 could have focused on a different seg-
ment of the market.12 Not only did husband’s argument fail
to identify the nature of his investments beyond asserting
that he invested in less conservative stocks than his IAP,
but he offered no evidence, not even an affidavit, to support
the factual assertions that his lawyer made in the answer.
We do not question the good faith of husband’s trial
lawyer, nor are we unaware that, sometimes, parties tacitly
agree to rely on factual assertions that their lawyers make
in argument without offering supporting evidence, or at
12
Moreover, the record does not disclose whether husband could have moved
his deferred compensation from one fund to another in Voya, which would have
permitted him to time the market in a way that the S&P 500 could not.
848 Piller and Piller
least choose to acquiesce in that practice. However, the trial
court faced a difficult problem. As no one disputes, there
was no way to determine the actual rate of return on hus-
band’s deferred compensation account from 2004 to 2009.
The records were missing. Neither rate of return proposed
by the parties necessarily matched the rate of return that
husband’s deferred compensation account actually realized,
and the trial court had to choose between two imperfect
solutions.
We cannot say that, in these circumstances, the
trial court erred in relying on Mercer’s proposed rate of
return. Although wife had retained Mercer to prepare the
QDRO, the dissolution judgment provided that husband and
wife would share her fee equally. The trial court reasonably
could have regarded Mercer as a neutral expert, whose rec-
ommendation was not tinged by an advocate’s perspective.
Conversely, the trial court reasonably could have recognized
that the factual assertions underlying husband’s proposed
rate of return reflected a litigation position. That is partic-
ularly true since husband offered no evidence to support
his lawyer’s factual assertions.13 In these circumstances,
the trial court did not abuse its discretion to the extent it
accepted Mercer’s recommendation to use the rate of return
in husband’s IAP from 2004 to 2009.14 Cf. City of Bend v.
Juniper Utility Co., 242 Or App 9, 21, 252 P3d 341 (2011)
(recognizing trial court’s discretion to choose between com-
peting valuation methods in a condemnation proceeding).
Affirmed.
13
On appeal, husband asserts that the trial court erred in not allowing him
to offer evidence to support his rate-of-return argument. Husband, however, iden-
tifies no instance in which he sought to offer evidence on that issue, nor has he
identified any ruling by the trial court prohibiting him from doing so. To the
extent that husband is referring to rulings, if any, that occurred in chambers
before the hearing, it was husband’s obligation, as the appellant, to put those
rulings on the record if he wished to assign error to them on appeal. See Dorn v.
Three Rivers School Dist., 306 Or App 103, 118, 473 P3d 122 (2020) (stating gen-
eral proposition); Y. B., 296 Or App at 785 (same).
14
Given our resolution of this issue, we need not decide whether husband’s
argument fails for another reason—namely, the record does not clearly disclose
what rate of return Mercer ultimately used to determine the growth in husband’s
deferred compensation account.