In re the Marriage of Mau

IN THE COURT OF APPEALS OF IOWA

No. 20-1422

Filed April 28, 2021

IN RE THE MARRIAGE OF JEFFERY MAU

AND ANN MARIE MAU

Upon the Petition of

JEFFERY MAU,

Petitioner-Appellant,

And Concerning

ANN MARIE MAU,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,

Judge.

Jeffery Mau appeals from the district court’s ruling on the entry of the

parties’ qualified domestic relations order. REVERSED AND REMANDED.

Paul L. Macek of Hopkins & Huebner, P.C., Davenport, for appellant.

Ryan M. Beckenbaugh of H.J. Dane Law Office, Davenport, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.

2

VAITHESWARAN, Presiding Judge.

This is an appeal from the denial of a motion to approve a qualified domestic

relations order (QDRO).

The facts are essentially undisputed. Jeffery and Ann Marie Mau married

in 2011 and divorced in 2020. The parties, both represented by counsel, stipulated

to division of their assets. The relevant portion of the stipulation stated:

ASSETS

IT IS FURTHER STIPULATED AND AGREED the Petitioner,

JEFFERY MAU, is awarded all right, title, and interest in the following

assets: . . . the petitioner’s Ameriprise Account. Provided that the

Ameriprise qualified accounts (the retirement accounts) shall be

divided as follows: $100,000 of the qualified accounts shall be rolled

over into a 401k, IRA or other retirement account to be established

or designated by the Respondent and shall be the property of the

Respondent. $11,000.00 of the qualified accounts shall remain in

the qualified account and shall be the property of the petitioner. In

respect to this sum of $11,000.00, the Petitioner shall benefit by any

increase in value of this sum or incur any reduction in value. The

balance of the qualified accounts shall be divided between the

parties pursuant to the Benson Formula, The Court reserves

jurisdiction of the Ameriprise qualified accounts to enter any

subsequent Orders that are necessary to do equity or implement this

portion of the Decree.[1]

The parties further stipulated that the “agreement [did] justice between the parties

and [was] an equitable division of the parties’ assets and liabilities and [was] in the

1 In In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996), the court

expressed the equation as follows:

[Wife]’s # of years [Husband] was

share = both married and covered by x 50% x value of

the pension plan monthly pension

benefit

# of years covered by plan

prior

to conclusion (maturity)

545 N.W.2d at 255.

3

best interest of the parties.” (Emphasis added.) The district court filed a dissolution

decree making “the terms and provisions” of the parties’ “Stipulation and

Agreement . . . a part of [the] Decree” and incorporating them and making them

“enforceable as if same were set forth verbatim.”

Following entry of the decree, Jeffrey sought the court’s approval of a

QDRO to divide the balance of the Ameriprise individual retirement account. His

proposed QDRO provided:

FIRST AWARD: The Custodian is directed to transfer directly

into a separate account to be established by the Alternate Payee one

hundred thousand dollars ($100,000) from the value of the Account

Holder’s account as of the date of account segregation/transfer. The

transfer shall be made as soon as practicable after this Order has

been served upon the Custodian. The amount awarded to the

Alternate Payee in this paragraph shall be transferred in cash after a

proportionate share of the underlying investments are liquidated.

Said transfer shall be made directly into a separate account for the

Alternate Payee. The determination of the exact division and transfer

of funds shall be made by the Custodian to the best of their ability.

SECOND AWARD: After deducting Eleven Thousand Dollars

($11,000) from the remaining funds, after the “First Award”, the

Custodian is directed to transfer directly into a separate account to

be established by the Alternate Payee Fifty Percent (50%) of the

value of the Account Holder’s account as of February 14, 2020

multiplied by a fraction the numerator of which represents the years

of marriage from November 11, 2011 to the parties date of divorce

February 14, 2020 (8.27 yrs.) divided by the number of years the

account existed. The amount awarded to the Alternate Payee in this

paragraph shall be adjusted for any market value and/or investment

gains or losses from February 14, 2020 to the date a separate

(temporary) account is established on behalf of the Alternate Payee.

Recognizing that the account balance consists of publicly registered

securities and/or cash equivalents, said account and/or securities

transferred shall be determined on a proportionate basis to the

amount assigned to the Alternate Payee and the market value of

each security, account or cash equivalent in the account as of the

date of transfer directly into a separate account for the Alternate

Payee. The determination of the exact division and transfer of funds

shall be made by the Custodian to the best of their ability.

4

At a hearing on the application, the parties agreed the total amount in the

account as of the dissolution date was $372,454. After subtraction of the $100,000

and $11,000, there remained a balance of $261,454 to be divided pursuant to the

formula. Ann Marie’s attorney explained that an equal division of the balance

would afford each party an additional $130,727, whereas application of “the

Benson formula [would leave] Ms. Mau with $78,436 instead of the 130.” Jeffrey’s

attorney responded that “would reflect [his] understanding.” He stated “the net

impact if the second Benson application is made nets Ms. Mau about $53,000

less.”2

The district court agreed with the parties that “the net effect of applying the

Benson formula to the remaining portion of the Ameriprise account resulted in Jeff

receiving roughly $53,000 more than Ann Marie does.” The court then stated:

This case presents a difficult situation for the Court. This

Court believes strongly in the parties’ ability to bargain and construct

an agreement. The Court understands that there may be portions of

an agreement that subjectively look unfair or inequitable, but for lack

of a better term, “get the deal done.” This situation is complicated

further by the fact that counsel for both parties signed off on the

stipulation assenting to the provisions in the agreement, and the

Court approved the settlement on the record.

The stipulation does grant the Court continuing jurisdiction to

“enter any subsequent orders that are necessary to do equity or

implement this portion of the Decree.” This is the hook the Court is

hanging its hat on to modify the terms of the parties’ agreement. The

Court finds application of the Benson formula results in a second

offset for premarital contributions and creates an inequitable result.

2 At the hearing, Jeffrey’s attorney explained “[t]he retirement account existed for

approximately 13 years and predated the marriage. So the . . . marital formula

would be 9 over 13” and [t]hat then gets divided by half.” In fact, the proposed

QDRO for the Ameriprise account states the “years of marriage” during the life of

the account was actually “8.27” years. To come up with the $53,000 difference

between an equal division of the account balance and a Benson formula division

of the account balance, we would have to presume the Ameriprise account existed

for 13.78 years.

5

The Iowa Court of Appeals has affirmed the concept that a function

of the Benson formula is to create an offset for premarital

contributions. See In re Marriage of Freudenberg, 926 N.W.2d 569

(Iowa Ct. App. 2018) and In re Marriage of Wattonville, 817 N.W.2d

32 (Iowa Ct. App. 2012). These cases are persuasive authority for

the proposition that the goal of the Benson formula is to account for

premarital contributions.

The Court finds an equitable distribution would be each party

receiving one-half of the remaining balance in the Ameriprise

account.

Jeffrey appealed. Our review is de novo. See In re Marriage of Veit, 797

N.W.2d 562, 564 (Iowa 2011) (applying de novo review in determining whether

QDRO fulfilled terms of dissolution decree); In re Marriage of Brown, 776 N.W.2d

644, 647 (Iowa 2009) (reviewing de novo whether district court properly interpreted

dissolution decree).

Preliminarily, Jeffrey argues the district court lacked authority to modify the

property provisions of the dissolution decree. We find the district court had

authority to enter a QDRO to effectuate the terms of the stipulation. See Brown,

776 N.W.2d at 648. There, the court began by noting, “[w]e have never decided

whether a QDRO is a necessary part of the judgment of dissolution or if it should

be regarded as supplemental to the divorce proceeding.” Brown, 776 N.W.2d at

648. The court held a QDRO was “supplemental and not a part of the underlying

decree.” Id.; see also Veit, 797 N.W.2d at 564 (noting a party’s abandonment of

the identical argument in light of Brown); In re Marriage of Heath-Clark, No. 15-

0525, 2016 WL 2753779, at *3 (Iowa Ct. App. May 11, 2016) (“Richard’s request

is not for modification of the property division. He is asking the QDRO be modified

to conform to the property division as set forth in the decree.”). Applying Brown,

the district court possessed authority to enter the QDRO.

6

To the extent Jeffrey argues the district court incorrectly modified the

property division of the decree, we agree. Jeffrey contends the stipulation

incorporated into the dissolution decree provided that the balance would be divided

by the Benson formula and the QDRO implemented that language. In his view, if

the parties wanted an equal division of the balance, they could have said so and

Ann Marie’s argument to the contrary “is asking this Court to either ignore or delete

two words in the decree, to-wit: Benson formula.” Ann Marie responds that

application of the Benson formula is inequitable because the stipulation “already

separates the premarital portion of Jeffrey’s Ameriprise account.” She asserts that

equity dictates an equal division of the balance.

The district court approved the stipulation, which plainly and unambiguously

provided that “[t]he balance of the qualified accounts shall be divided between the

parties pursuant to the Benson [f]ormula.” See In re Marriage of Jones, 653

N.W.2d 589, 594 (Iowa 2002) (“[O]nce the court enters decree, the stipulation, as

a practical matter, has no further effect.”); In re Marriage of Lawson, 409 N.W.2d

181, 182 (Iowa 1987) (“When the stipulation is merged in the dissolution decree it

is interpreted and enforced as a final judgment of the court, not as a separate

contract between the parties.” (quoting Prochelo v. Prochelo, 346 N.W.2d 527, 529

(Iowa 1984))). The QDRO implemented that language. See Heath-Clark, 2016

WL 2753779, at *4 (“[T]he inquiry is whether the decree and the QDRO implement

the Benson formula or whether the QDRO must be modified to reflect the decretal

court’s intent.”). “There is nothing inequitable in enforcing the bargained-for

agreement.” Id. at *7. We reverse the district court’s ruling and remand with

instructions to approve the proposed QDRO.

7

Ann Marie seeks appellate attorney fees of $2500. Because she was not

the prevailing party, we deny her request. See In re Marriage of Hoffman, 891

N.W.2d 849, 852 (Iowa Ct. App. 2016).

REVERSED AND REMANDED.