### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00118- CV

Eric Jonjak, Appellan t

v. Kat hye Marle ne Gr if

fi th, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -F M- 15- 0034 89, H ONO RAB LE GISELA D. TRI ANA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Eric J onjak appe al s fr om a divorce decr ee dissolving his marria g e to Kathy e Marlene Griff

ith and dividing their marital proper ty

. J onjak asser

ts the dec re e d i v ides
J onjak’s retire ment acc ount contrary to the terms of the parties’ mediated settlement ag ree ment (MSA). J onjak also challeng es a qualified d o m es t i c rela tions order (QDRO) implementing that division. W e will modify the dec ree and the QD RO and af firm as modified.

BACK GR OUND
J onjak filed for divorce from Griff ith in 2015 on the g rounds of insupportability

. On
J une 1, 2017, the parties signe d an MS A di viding most of t heir marital property . I n rele vant part, the MSA states Gri ffith “will rec eive $962,000 from the Bog Fa rm Profit Sharing 401k, which is 53% of the va lue of the acc ount a s repr esente d by [J onjak] on the day of the mediation via QDRO
prepa red by [J onjak].” The following day , the parties appea red befor e a district court and announce dthe ag ree ment. The district court pronounce d the divorce and instructed J onjak to prepa re a decr ee consistent with the MSA.

Approxim ately six months later, both parties filed their own motions t o enter judgme nt, e ach acc ompanied by a proposed divorc e dec ree and QDRO. J onjak’s proposed decr ee

awa rds Griff ith $962,000 from his 401k acc ount via QDRO. I n contra st, Griff ith’s proposed decr ee

awa rds her 53% of J onjak’s 401k acc ount as of J une 1, 2017, “tog ether with any interest, dividends,
g ains, or losses on that amount arising since that date” to be “more particula rly define d” in a QDRO.
T h e d is tr ic t c o u

r t h e ld a hear ing on the competing motions wher e the parties contested whether the MSA divided the 401k on the date of the mediation or when the court signe d a QDRO implementing the division. See Quijano v. Quijano , 347 S.W .3d 345, 353–54 (Tex. App.—Houston [14t h Dist.] 2011, no pet.) (“The purpose of a QDRO is to cre ate or rec og nize an alterna te pay ee’ s rig ht, or t o assig n an alternate pay ee the rig ht, to rece ive all or a portion of t he benefits pay able to
a par ticipant under a

retire ment plan.”)

. The dist rict court ruled that Gr iffith “g ets $962,000 as of
J une 1st, 2017, which is the date of the—the date of the mediation.” The district court then signe d Griff ith’s proposed decr ee and QDRO afte r striking cer tain lang uag e. The decr ee awa rds Griff ith:

A portion of Eric J onjak’s retirem en t b en efits in Bog Fa rm Profit Sharing 401k Acc t. No. 803508-00000 arising ou t of ERI C J ONJAK’S employ

ment wit h Bog Fa

rm as of J une 1, 2017, that portion being 53 perc ent or $962,000, whicheve r is g rea ter, toge ther with any interest, dividends, g ains, or losses on that amount arising since that date and more particularly define d in a set [ sic] out i n the Qualified Domestic Relations Orde r signe d by the Court in this case .

2J onjak filed a timely motion for new trial arg uing the district court err ed by making

the di vision eff

ective J une 1, 2017. He further arg ued that awa rding Griff

ith “intere st, dividends,
g ains, or losses” on the $962,000 was inconsistent with the MSA, w hich awa rded the specific sum only

. The district court issued finding s an d conclusions explaining why the parties intended to divide the 401k on J une 1, 2017, but did not addre ss the awa rd o f “i ntere st, dividends, g ains, or losses.” Jonj ak’s motion for ne w trial wa s overr uled by opera tion of law. This appe al followed. The plan administrator of the 401k acc ount subsequently deter mined the order did
not meet the statutory require ments of a QDRO. The district court then signe d a modified QDRO 1 with substantially

the same r eleva

nt lang uag e as the first. Parag raph 2 pr ovides that Griff ith: 2

shall be entitled to an interest in the [Bog Fa rm Profit-Sharing 401k] Plan equal to $962,000 of [J onjak’s] Vested Acc ount Ba lance under the Plan as of the date of transfe r, which is J une 1, 2017. [Griffith’s] interest in the Plan s h al l be adjusted for investment ear nings and losses allocabl e there to in acc ordanc e with the terms of the Plan there afte r. [Griffith] shal l be permitted to make any elec tions reg arding the form of pay ment which would be available to a Participant rec eiving the same pay ment. Once the benef

its a ssigne d to [ Griff ith] here under have been disbursed, [Griffith] shall have no further interest of any kind whatsoeve r in the rema ining b al an ce of [J onjak’s] acc ount(s) under the Plan.

The administrator’s exact rea sons for reje cting the first QDRO do not appea r in the rec ord. 1
I f a plan administrator reje cts an order for not me eting statutory require ments, “the c ourt 2 reta ins continuing, exclusive jurisdiction over the parties and their proper ty to the extent nece ssary to rende r a qua lified domestic re lations order.” Tex. Fam. Code § 9.104. 3We trea t J onjak’s appea l as challeng ing this QDRO. See Tex. R. App. P. 27.3 (providing that when

trial court repl ac es o r modifies order that has been appea led, “the appellate court must trea t the
appea l as from the subse quent orde r or judg ment”).

DISCUSSIO N
J onjak arg ues first that the decr ee conflicts with the MSA b y aw ar d ing Griff ith “intere st, dividends, g ains, or losses” on the $962,000 rathe r than th e fl at sum. I n his rema ining iss u es , J o n

j ak asser ts the district court err ed by concluding the MSA divides the 401k eff ective
J une 1, 2017. Griff

ith responds that J onjak failed t o p re s er v e his first issue and that neither issue is meritorious.

P rese rvation of E rror

We first addre ss whether J onjak prese rved his a r g u me n t th at the divorce decr ee varie s from the terms of the MSA. To prese rve an issue for appellate revie w, a party must make a timely
reque st, motion, or objection stating the g rounds for the ruling “with sufficie nt spe cificity to make the trial court awa

re of the complaint, unless the specific g rounds wer e appar ent from the context.”
Tex. R. App. P. 33.1(a)

. The trial cou rt m u s t rul e or the party urg ing the objection must object
to its failure to rule. Id. The prese rvation-of -er ror require ment “conse rves j u d i ci al resour ces by g iving trial courts an opportunity to corr ect an err or befor e an appea l proce eds.” In re B.L.D. , 113 S.W .3d 340, 350 (Tex. 2003). Griff ith arg ues J o n j ak n ever g ave the district court this opportunity beca

use he never c h a ll e n g e d w h e th e r a w a r d in g “ in te rest, dividends, g ains, or losses” was
proper . J onjak did not expli citly make this arg ument in the hear ing but submitt ed a proposed decr ee

4that awa

rded Griff ith the flat sum of $962,000 and arg ued she was entitled to only that sum. I n his motion for new trial, J onjak arg ued more expli citly that this langua ge was improper beca use the
MSA “did not mention what would happen to g ains and losses in the acc ount for pay ment from the 401k.” We conclude J onjak ra ised this issue clear ly enoug h to prese rve error . See Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd. , 249 S.W .3d 380, 387 (Tex. 2008) (“[T]he car dinal rule for
prese rving err or i s that an o b j ec t i o n must be clear enoug h to g ive t he trial court an opportunity to

corr ect it.”) ; see also Adams v. Starside Custom Builders, LL C , 547 S.W .3d 890, 896 (Tex. 2018) (wa rning appellate courts ag ainst imposing “too strict a vie w of e rror prese rvation”)

.

The Decr ee V aries from the MSA

Having conclude d J onjak prese rved err or, we turn to whether the divorce decr ee varie s from the MSA. A mediated settlement ag ree ment in a divorce case “mee ting cer tain statutory formalities[] is binding on the parties and require s the rendition of a divorce decr ee that adopts the parties’ ag ree ment.” Milner v. Milner , 361 S.W .3d 615, 618 (Tex. 2012) (c i t i n g T ex . Fam. Code § 6.602). Trial courts have no discretion to modify the MSA’s terms but must rende r judgme nt “in strict or literal compliance with that ag ree ment.” R.H. v. Smith , 339 S.W .3d 756, 7 6 5 (Tex. App.—Dallas 2011, no pet.). The MSA here meets the statutory require ments, so we l o o k to see whether the divorce decr ee divides the 401k differ ently than the par

ties ag ree d in the MSA.
“B eca use an MSA is a contra ct, we look to g ener al contra ct-interpr etation principles
to deter mine its meaning .” Loya v. Loya , 526 S

. W

. 3 d 4 4 8, 451 (Tex. 2017). When construing a
contra ct we must “asc erta in the true intentions of the parties as expressed in the writing itself.” Id. (quoting Ital i a n C owboy Partners, Ltd. v. Prudential Ins. C o. of Am. , 341 S.W .3d 323, 333 (Tex.

52011)). We do not focus on isolated provisions but “examine and consider the entire writing in an

eff ort to ha rmonize a nd g ive eff

ect to a ll the provisions of the contra ct.” Apache Dee pwater, LL C

v. McD aniel Partners, Ltd. , 485 S.W .3d 900, 906 (Tex. 2016) (quoting J. M. Davidson, Inc.

v. W ebster , 128 S.W .3d 223, 229 (Tex. 2003)). The construction of an unambig uous cont ac t is a question of law revie wed de novo. URI, Inc. v. Kleberg County , 543 S.W .3d 755, 763 (Tex. 2018).

The MSA provides that Griff ith “will rec eive $962,000 from the Bog Fa rm Profit Sharing 401k, which is 53% of the value of the acc ount as repr esente d by [J onjak] on the day of the mediation via QDRO prepa red by [J onjak].” The ag ree ment does not a ddress g ains or losses afte r that date even though the parties wer e awa re that time would pass befor e the district court signe d the decr ee. For example, J onjak ag ree d to transfe r the utilit ies in the marital residenc e to Griff ith within thirty day s of the mediation and ag ree d to pay her $20,000 “on the date the Final Dec ree is enter ed.” The MSA pla inly states Griff ith is entitled to rec eive $962,000 by QDRO. We ma

y not r ewr ite or add t o their ag ree ment to apply the acc ount’s g ains or losses to Griff ith’s awa rd. See Fischer

v. CTMI, L.L.C

. , 479 S.W .3d 231, 239 (Tex. 2016) (“[I ]t is fundame ntal that ‘we may neither rew rite the parties’ contra ct nor add to its lang uag e.’” (quoting American Mfrs. Mut. Ins. C o. v. Schaefer , 124 S.W .3d 154, 162 (Tex. 2003)). The divorce decr ee divides the 401k differ ently than the MSA.

Griff ith arg ues the err or is ha

rmless beca

use even if we modify the decr ee to awa rd her the flat sum of $962,000, the QDRO could proper ly “cla rify ” that the sum fluct uates with the value of the acc ount. A court that rende rs a div o rc e decr ee has the power to “ente r a ‘cla rify ing order ’ to ‘enf

orce compliance with an insufficiently specific decr ee,’ but ‘it may not amend, modify , alter, or chang e the division of proper ty made or approv ed in the decr ee of divorce .’” Dalton

6v. Dalton , 551 S.W .3d 126, 140 (Tex. 2018) (quoting Shanks v. Treadway , 110 S.W

. 3 d 4 4 4 , 449

(Tex. 2003)). Griff

ith arg ues this Court held in Vaughn v. Vaughn that a QDRO could appropr iately make the amount of a party ’s share of a retire ment acc ount f luctuate with the value of the acc ount. See No. 03-04-00030- CV, 2005 WL 1115965 (Tex. App.—Austin May 12, 2005, no pet.) (mem. op.). The decr ee in Vaughn awa rded one spouse a specific perc entag e of two retire ment acc ounts, the details to be “more particula rly define d” in a QDRO. Id. at *1–2. The trial court then signe d a QDRO awa

rding the spouse a cer

tain number of the units in eac h plan “including ear nings there on and less losses there on.” Id. This Court held the QDRO appropr iately clar ified how the spouse would rec eive he r share

. Id. at *7. Her e, by contra st, the parties have alre ady ag ree d how Griff ith will rec eive her share and what her s h ar e wi ll be: $962,000 “via QDRO.” This lang uag e leave s nothing for a QDRO to clar ify reg arding how Griff ith will rec eive her share

. Thus, even if the decr ee
trac ked the lang uag e of the MSA, the QDRO could not proper ly provide that Griff ith takes her share “tog ether with any interest, divi dends, gains, or losses on that amount.” We sustain J onjak’s first two issues.
I n his rema ining i s s u es , J onjak challeng es the district court’s conclusion that the parties intended to divide the 401k on the date of the m ed i at i o n . Howeve r, J onjak makes this
arg ument only to the extent the court impliedly conclude d Griff ith was entitled to $962,000 plus “any interest , d ividends, g ains, or losses” on the date of the mediation. We need not addre ss this
arg ument beca

use, under our holding above, Griff ith rec eives $ 9 6 2 ,000 from J onjak’s 401k
reg ardle ss of when the division occur s. We there fore do not decide J onjak’s rema ining issues. See

7Tex. R. App. P . 47.1 (re quiring appellate courts to hand down opinion “tha t addre sses eve ry issue raised a nd nece ssary

to final dispositi on of the a ppeal” ).

CONCLUSION
J onjak asks us to modify the decr ee and QD R O t o co m p ly with the MSA. See id. R. 43.2( b) (allowing appellate court to modify trial court’s judgme nt a nd aff irm as modified). We modify the divorce decr ee so tha t para g raph R-5 r eads a s follows:

A portion of Eric J onjak’s retire ment benef i t s i n Bog Fa

rm Profit Sharing 401k Acc t. No

. 803508-00000 arising out of ERI C J ONJAK’S employ

ment with Bog Fa

rm as of J une 1, 2 017, that portion being 53 perc ent or $962,000, whicheve r is g rea ter, toge ther with any interest, dividends, g ains, or losses on that amount arising s i n ce that date and more particula rly define d in a set out in t h e Qualified Domestic Relations Orde r signe d by the Court in this case . We modify

para g raph 2 of

the QDRO to state Gr iffith:

shall be entitled to an interest in the [Bog Fa rm Profit-Sharing 401k] Plan equal to $962,000 of [J onjak’s] Vested Acc ount Ba lance under the Plan as of the date of transfe r, which is J une 1, 2017. [Griffith’s] interest in the Plan shall be adjusted for investment ea rn i n g s and losses allocable there to in acc ordanc e with the terms of the P l an there aft er . [Griffith] shall be permitted to make any elec tions reg arding the form of pay ment which would be available to a Participant rec eiving the same pay ment. Once the benef

its assig ned to [Griff ith] here under have been disbursed, [Griffith] shall have no further int er es t o f any kind whatsoeve r in the rema ining balanc e of [J onjak’s] acc ount(s) under the Plan.

We affir m the divorce decr ee a

nd QDRO as modified.

8_________________________________________ Edwar d Smit h, J ustice
Be fore J ustices Goodwin, B aker , and Smith Modified and, a s Modified, Aff irmed Filed: Apr il 12, 2019

9