In Re the Marriage of Tamara D. Veit and Gregory H. Veit Upon the Petition of Tamara D. Veit

IN THE SUPREME COURT OF IOWA

No. 09–1312

Filed March 18, 2011

IN RE THE MARRIAGE OF TAMARA D. VEIT

AND GREGORY H. VEIT

Upon the Petition of

TAMARA D. VEIT,

Appellee,

And Concerning,

GREGORY H. VEIT,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Adair County, Gregory A.

Hulse, Judge.

On further review, petitioner contends court of appeals erred in

reversing the district court’s order requiring respondent to fulfill terms of

dissolution decree. DECISION OF THE COURT OF APPEALS

VACATED; DISTRICT COURT DECISION AFFIRMED.

Rodney H. Powell of The Powell Law Firm, P.C., Norwalk, for

appellant.

Willard W. Olesen of Olesen Law Firm, PLC, Greenfield, for

appellee.

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HECHT, Justice.

On further review, we are asked to determine whether a Qualified

Domestic Relations Order (QDRO) fulfilled the terms of a property

division prescribed in a dissolution decree. Because we conclude the

QDRO did not fulfill the terms of the decree, we vacate the court of

appeals’ decision and affirm the district court.

I. Background Facts and Proceedings.

Tamara Veit filed a petition for the dissolution of her marriage to

Gregory Veit. On the day of trial, February 15, 2008, the parties reached

an agreement resolving all pending issues in their dissolution, including

the division of property. A stipulation detailing the agreement provided

“[a] monetary property settlement has been reached wherein [Gregory]

shall pay [Tamara] the amount of $127,000.00 for her rights to any of the

marital property not specifically set out by this Stipulation.” The court

approved the stipulation and incorporated it in the dissolution decree,

requiring Gregory to make the property settlement payment within sixty

days of the entry of the decree. Neither party appealed.

About a month after the decree was entered, Gregory’s attorney

contacted Tamara’s attorney and offered to pay the $127,000 property

division with funds from Gregory’s Cemen Tech employee stock

ownership account.1 The attorneys discussed the possibility of tax

consequences attendant to this solution. Gregory’s attorney assured

Tamara’s attorney there would be no tax consequences. Gregory’s

1Gregory had an ownership interest in two retirement accounts at the time of the

dissolution. One of the accounts was derived from Gregory’s employment with

Firestone and the other from his employment with Cemen Tech. The decree allocated to

Tamara fifty percent of the Firestone account, but the Cemen Tech account was not

mentioned in the decree.

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attorney drafted a QDRO which Tamara’s attorney signed on her behalf.

The QDRO provided, in pertinent part,

WHEREAS, the Decree awards the amount of

$127,000 to [Tamara] to be paid by [Gregory]; and

WHEREAS, the parties have agreed that the

$127,000.00 award to [Tamara] shall be paid through a

Qualified Domestic Relations Order (QDRO) from [Gregory’s]

vested interest in Cemen Tech, Inc., Employee Stock

Ownership Plan;

....

NOW, THEREFORE, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED as follows:

....

4. [Tamara] shall be and is hereby awarded one hundred

twenty-seven thousand dollars ($127,000) of

[Gregory’s] vested interest in [Gregory’s] account,

however, the same may not be increased by earnings

nor decreased by losses from this date until

distribution is made by the Plan.

....

7. [Tamara] shall be fully responsible for any and all tax

consequences resulting from the award and payment

of Plan benefits to [Tamara].

The QDRO was approved by the court on March 17, 2008. When

Tamara tried to withdraw the funds from the plan, however, she

discovered that a tax in excess of $27,000 would be imposed. Upon

advice of counsel, she did not withdraw the money and instead filed a

motion to set aside or modify the QDRO or in the alternative to enforce

the dissolution decree. She argued the parties had been mutually

mistaken as to the tax consequences of the withdrawal. Gregory resisted

the motion. Although the parties stipulated that the attorneys had been

mistaken about the tax consequences of the withdrawal of funds from

the Cemen Tech account, Gregory maintained the QDRO was a property

settlement that could not be modified. Gregory relied in part upon an

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email message he sent to his attorney during the dissolution negotiations

indicating his awareness of potential tax consequences of a withdrawal

from the Cemen Tech account. The email message indicates Gregory had

completed a property settlement worksheet at the request of his attorney,

proposing values for various items of property and suggesting how the

assets and liabilities should be divided. Gregory’s message included the

following reference to his Cemen Tech account: “if she is going to take

half early she can also pay the taxes and penalties.”

The district court concluded the disposition proposed in the QDRO

did not fulfill Gregory’s obligation to Tamara under the divorce decree.

The court ordered Gregory to perform the obligation within sixty days,

leaving it to Gregory’s discretion whether to reform the QDRO and pay

the full amount due to Tamara from the Cemen Tech account or to utilize

other assets of Gregory’s choice.

Gregory appealed, and the court of appeals reversed the district

court, concluding Tamara had not proved a mutual mistake in the

formation of the QDRO and had borne the risk of mistake by agreeing, in

the QDRO, to be responsible for any tax consequences. We granted

Tamara’s application for further review.

II. Scope of Review.

Our review of dissolution cases is de novo. In re Marriage of

Brown, 776 N.W.2d 644, 647 (Iowa 2009).

III. Discussion.

Tamara urges on further review that the district court correctly

determined the QDRO did not fulfill Gregory’s obligation under the

decree. Gregory, however, contends the parties entered into an oral

agreement that the QDRO would satisfy his obligation under the decree,

and the court of appeals correctly determined that under the terms of the

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oral agreement, as evidenced by the QDRO, Tamara assumed the risk of

any tax burden.

Although Gregory argued to the district court and on appeal that

the QDRO was a property settlement not subject to modification, he has

abandoned that claim in the wake of our decision in In re Marriage of

Brown, filed shortly after the district court issued its ruling on Tamara’s

motion to modify the QDRO. The parties now agree the QDRO is not

itself a property settlement, but is merely a method of effectuating the

property division contained in a dissolution decree and may be modified

later without affecting the finality of the underlying decree. Brown, 776

N.W.2d at 648–49.

The decree provided Gregory “shall pay [Tamara] the amount of

$127,000 for her rights to any property not specifically set out by this

Stipulation.” Neither party appealed the decree, and the property

division contained therein is not subject to modification. Iowa Code

§ 598.21(7) (2007). Notably, the decree does not specify a source of the

funds for the payment to Tamara. The clear implication of this provision

is that if any tax consequences were incurred as Gregory liquidated

assets to obtain the funds to make the payment to Tamara, Gregory

would bear them. See In re Marriage of Goodman, 690 N.W.2d 279, 283

(Iowa 2004) (in construing a dissolution decree “ ‘[e]ffect is to be given to

that which is clearly implied as well as to that which is clearly

expressed’ ” (quoting In re Roberts’ Estate, 257 Iowa 1, 6, 131 N.W.2d

458, 461 (1964))). Under the decree, Tamara is entitled to $127,000—

nothing more, nothing less.

Gregory, however, does not seek to modify the terms of the decree

directly. Instead, he asserts the parties reached an oral agreement that

the payment from his Cemen Tech account would fulfill his obligation

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under the decree—specifically that Tamara agreed to accept less than she

was entitled to by accepting the risk of any tax consequences of a

withdrawal from the stock ownership plan. The party seeking to

establish the existence of a contract, oral or otherwise, bears the burden

of proving the existence of a contract. Anderson v. Douglas & Lomason

Co., 540 N.W.2d 277, 283 (Iowa 1995). Our review of the record

indicates Gregory has not sustained his burden. At the hearing on

Tamara’s motion to modify or set aside the QDRO, the parties stipulated

as to their understanding at the time the QDRO was formed. The

stipulation established that prior to the formation of the QDRO,

Gregory’s attorney represented to Tamara’s attorney there would be no

tax consequences to either party if Tamara were to withdraw $127,000

from the Cemen Tech account, and Tamara’s attorney believed this

representation was true.

Gregory argues his email message to his attorney, dated a month

before the property settlement was entered and two months before the

parties first discussed the QDRO, demonstrates he personally knew there

would be tax consequences and he expected Tamara to bear them if she

took money out of the Cemen Tech account. This argument fails,

however, because the parties’ stipulation binds Gregory to the contrary

understanding that Tamara would suffer no adverse tax consequence if

the Cemen Tech account were used to fund Tamara’s share of the

property under the dissolution decree. Bales v. Murray, 186 Iowa 649,

651, 171 N.W. 747, 748 (1919).

Gregory contends the language of the QDRO itself is evidence that

Tamara agreed to accept less than that to which she was entitled under

the decree because the QDRO states that Tamara would be responsible

for any tax consequences. Again, however, the stipulation established

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that the parties shared a mutual understanding there would be no tax

consequences upon the withdrawal from the Cemen Tech account.

Accordingly, we conclude the language of the QDRO does not establish

that Tamara agreed to accept less than the $127,000 that was due her

under the property settlement.

As the allocation contemplated in the QDRO does not fulfill

Gregory’s obligation under the decree, the district court correctly granted

Tamara’s motion and allowed Gregory to determine how to pay the full

amount due to Tamara, either by reforming the QDRO or by utilizing

other assets. Accordingly, we vacate the opinion of the court of appeals

and affirm the district court’s decision enforcing the dissolution decree.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT DECISION AFFIRMED.