noting that a latent ambiguity may arise when, although an asset’s description appears clear on its face, “it turns out that there is more than one [asset] to which the description applies”
How later courts described this case
- noting that a latent ambiguity may arise when, although an asset’s description appears clear on its face, “it turns out that there is more than one [asset] to which the description applies”
- “When a contract is unambiguous, its construction is a question of law for the court, and the intent of the parties is not relevant.”
Written by the judges who cited it.
The opinion
Andree Layton roaf Judge, dissenting. I would reverse and remand this case with instructions that the trial court divide appellee Thomas Oliver’s 401k retirement plan as provided by the clear and explicit language in paragraph nine of the parties’ property settlement agreement, that this plan be divided “equally as of the date of the divorce.”
The chancellor found that the language of the property-settlement agreement is unambiguous. If that be the case, equally means equally, and to allow the appellee to retain all of the earnings and dividends accrued to the plan between the July 1997 date of the divorce decree and the entry of the Qualified Domestic Relations Order (QDRO) some sixteen months later does not provide for equal division. It is illogical to employ the language found in a separate provision dealing with interim division of profits from stocks to interpret the clear directives in paragraph nine. Moreover, the QDRO is simply the mechanism that allows retirement-plan administrators to implement court-ordered division of retirement plans, and is in no way analogous to a one-time division of stocks.
Conversely, if the absence of specific language in the settlement agreement providing for division of the retirement-plan earnings pending the entry of the QDRO creates a latent ambiguity, parol testimony about the intent of the parties should therefore be admissible. See Dodson v. Dodson, 37 Ark. App. 86 , 825 S.W.2d 608 (1992). This testimony clearly established that appellee understood that he was supposed to pay one-half of the accrued 401k dividends to appellant, agreed to do so in writing, advised her to pay income taxes on her one-half share, and then reneged on his agreement after his attorney suggested that the decree did not specifically require him to share this money.
The appellant is entitled to one-half of the profits earned by the retirement plan after the date of the divorce decree, no matter how you cut it. I would reverse and remand.
Robbins, C.J., joins.