2018 UT App 169

THE UTAH COURT OF APPEALS

KATHLEEN O. POTTS,

Appellee,

v.

DUANE E. POTTS,

Appellant.

Opinion

No. 20170606-CA

Filed August 30, 2018

Second District Court, Ogden Department

The Honorable Scott M. Hadley

No. 900902738

David Pedrazas, Attorney for Appellant

Emilie A. Bean, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES KATE A. TOOMEY and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 This case involves not the benefit of the doubt, but some

doubt as to the benefit. After separating in 1992, the court 

entered a decree of divorce based in part on Duane1 and 

Kathleen’s stipulation. The decree awarded a portion of each

party’s retirement benefits to the other party. The decree 

directed the parties to cooperate in obtaining qualified domestic 

 

1. “As is our practice in cases where [multiple] parties share a 

last name, we refer to the parties by their first name[s] with no 

disrespect intended by the apparent informality.” Smith v. Smith, 

2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
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relations orders (QDRO)2 to effectuate the property distribution 

of the retirement accounts. Kathleen filed the QDRO related to 

her retirement account in 1995, but Duane waited until 2000 to 

file his corresponding QDRO. As it turned out, just before Duane 

filed, the Utah Retirement Systems’ rules regarding retirement

benefits changed, providing Duane with the advantage of new 

distribution rules. In 2015, Kathleen filed a motion to amend her 

1995 QDRO to reflect the updated rules. Duane objected, but the 

district court granted the motion. Duane then filed a motion to 

reconsider, which the court also denied. Duane appeals those 

rulings. We affirm.

BACKGROUND

¶2 When the parties divorced in November 1992, they both

were employees of the State of Utah. Pursuant to the decree of 

divorce, each party was awarded a Woodward share of the other’s 

retirement benefits: 50% of the retirement benefits that accrued 

during their marriage. See Woodward v. Woodward, 656 P.2d 431,

433 (Utah 1982) (holding that pension benefits accrued during 

the marriage are marital property subject to equitable

distribution). The decree directed the parties to cooperate in 

obtaining QDROs to effectuate the property distribution of the 

retirement accounts.

¶3 In March 1995, Kathleen filed her proposed qualified 

domestic relations order (1995 QDRO) for the court’s signature 

and then submitted the signed order to Utah Retirement Systems

(URS). The 1995 QDRO ordered URS to divide Kathleen’s share 

of Duane’s retirement based upon the rules in existence at that 

 

2. A qualified domestic relations order instructs “the trustee of a 

retirement plan and specifies how distributions should be made, 

to whom, and when.” Bailey v. Bailey, 745 P.2d 830, 832 (Utah Ct. 

App. 1987).
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time. Those rules left Kathleen’s share of Duane’s retirement in 

Duane’s shared-interest account. The 1995 QDRO also provided,

The [district court] retains jurisdiction to amend 

this Order so that it will constitute a domestic 

relations order under the plan even though all 

other matters incidental to this action or 

proceeding have been fully and finally adjudicated. 

If URS determines at any time that changes in the 

law, the administration of the plan, or any other 

circumstances make it impossible to calculate the 

portion of a distribution awarded to alternate 

payee by this Order and so notifies the parties, 

either or both parties shall immediately petition the 

Court for reformation of the Order.

¶4 Sometime in 2000,3 a URS rule revision occurred which, 

according to Kathleen, “changed the manner of distribution to 

more fully reflect Utah law on division of retirement property to 

what is common[ly] referred to as a separate interest.” Under 

these rules, Duane’s account would no longer be a 

shared-interest account, but instead would be divided into two 

separate accounts proportional to Kathleen’s marital interest.

Alteration of the 1995 QDRO would ultimately change the 

potential payout to the parties, depending upon who 

predeceases whom. If Kathleen were to predecease Duane under 

these rules, Kathleen’s payout would no longer revert to Duane, 

essentially divesting him of that benefit.

¶5 In September 2000, Duane filed his own qualified 

domestic relations order (2000 QDRO). Because he filed after the 

rule change, Duane received the benefit of the new, separate 

account distribution rules. Duane’s 2000 QDRO had no effect on 

Kathleen’s 1995 QDRO, which was still subject to the old rules.

 

3. Neither party cites any specific URS rule changes, but both 

parties agree that a rule change did occur “in or about 2000.”
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In December 2015, Kathleen filed a Motion for an Amended 

Qualified Domestic Relations Order (Motion to Amend) 

requesting alteration of the 1995 QDRO “on the ground that the 

rules for Utah Retirement Systems [had] changed since the entry 

of the [1995 QDRO].”

¶6 After lengthy objections from Duane, the district court 

conducted a telephone conference in September 2016 and 

thereafter granted Kathleen’s Motion to Amend, stating, “It 

seems like the orders were meant to divide each of the [parties’]

retirements in the same way.” The court held that Kathleen

should “be granted the same benefits on the method of division 

as Duane.” That same day, Duane filed a motion to reconsider,

but the district court denied the motion. Duane appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 Duane appeals on three bases. First, he argues that the 

district court lacked jurisdiction to amend the 1995 QDRO. 

“Whether the district court has jurisdiction is a question of law 

that we review for correctness, giving no deference to the lower 

court.” State v. Norris, 2007 UT 6, ¶ 10, 152 P.3d 293.

¶8 Second, Duane contends that even if the district court had 

jurisdiction to amend the 1995 QDRO, Utah Code section 68-3-3, 

which governs the effect of retroactive code provisions, prevents 

the court from doing so. See Utah Code Ann. § 68-3-3 

(LexisNexis 2016). “The [district] court’s interpretation of a 

statute is a question of law that we review for correctness.” Cox

v. Cox, 2012 UT App 225, ¶ 10, 285 P.3d 791.

¶9 Third, Duane asserts that it was inequitable for the district 

court to allow amendment of the 1995 QDRO. A district court’s 

equitable orders are reviewed for abuse of discretion and should 

be “accorded substantial deference,” with the court being given 

“considerable latitude.” Kidd v. Kidd, 2014 UT App 26, ¶ 15, 321 

P.3d 200 (cleaned up).
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ANALYSIS

I. Jurisdiction

¶10 Duane contends that the district court “did not have the 

jurisdiction and/or the ability to amend” the 1995 QDRO because 

Kathleen failed to file a petition to modify, which, he alleges, is a 

requirement to retain jurisdiction. Duane’s argument fails for 

three reasons.

¶11 First, Kathleen did not seek modification of the decree 

and therefore was not required to file a petition to modify, which 

must be based on a change in circumstance. See Durfee v. Durfee, 

796 P.2d 713, 716 (Utah Ct. App. 1990). While Duane is correct in 

asserting that succeeding on a petition to modify a divorce 

decree typically depends upon the moving party showing that a 

substantial material change of circumstances has occurred since 

the entry of the decree, Fish v. Fish, 2016 UT App 125, ¶ 17, 379 

P.3d 882, that proposition has no bearing on this case. Here, 

Kathleen seeks not to modify the decree, but only to alter the 

1995 QDRO—an order collateral to the decree. In reality,

Kathleen’s motion sought to enforce the identical treatment of 

the parties’ retirement accounts as expressly provided for in the 

decree. Therefore, Duane’s contention that the district court 

lacked jurisdiction due to Kathleen’s failure to file a petition to 

modify is incorrect.

¶12 Second, jurisdiction regarding QDROs has been granted 

to district courts by statute. Utah Code section 30-3-5(3) governs 

the disposition of, among other things, property interests such as 

retirement accounts. The provision states,

The [district] court has continuing jurisdiction to 

make subsequent changes or new orders for the 

custody of the children and their support, 

maintenance, health, and dental care, and for 

distribution of the property and obligations for 

debts as is reasonable and necessary.
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Utah Code Ann. § 30-3-5(3) (LexisNexis Supp. 2017). Pursuant to 

the statute, the award of retirement funds—a property 

distribution made by the court, see Woodward v. Woodward, 656

P.2d 431, 433 (Utah 1982)—is properly subject to the court’s 

continuing jurisdiction, so long as the “subsequent changes or 

new orders” are “reasonable and necessary,” Utah Code Ann.

§ 30-3-5(3); see also A.S. v. R.S., 2017 UT 77, ¶¶ 2, 4, 416 P.3d 465 

(maintaining that “the district court ha[s] continuing jurisdiction 

over . . . divorce proceedings” and “is able to make changes . . . 

to ensure the appropriate needs of the . . . parties are met”);

Johnson v. Johnson, 2014 UT 21, ¶ 31, 330 P.3d 704 (stating that 

“[d]istrict courts are charged with making an equitable 

distribution of marital property, including pension benefits”); 

Murphy v. Moyle, 53 P. 1010, 1012 (Utah 1898) (“The court ha[s] 

the right to enforce the former decrees . . . .”); Osborne v. Osborne, 

2011 UT App 150, ¶ 4, 260 P.3d 202 (holding that a district 

court’s enforcement of a decree of divorce, by way of entering a 

QDRO, was correct); Bayles v. Bayles, 1999 UT App 128, ¶ 14, 981 

P.2d 403 (explaining that “a court has continuing jurisdiction 

over its decree in a divorce proceeding for the division of 

property” (cleaned up)). Therefore, having determined that it 

was reasonable and necessary to effectuate the terms of the 

decree, the court had jurisdiction to amend the 1995 QDRO.

¶13 Third, Duane fails to recognize that divorce courts are 

well established as courts of equity, see Dority v. Dority, 645 P.2d 

56, 58 (Utah 1982), that retain jurisdiction over the parties and 

subject matter for the purposes equity may demand, see Salt Lake 

City v. Ohms, 881 P.2d 844, 849 (Utah 1994) (“Core judicial 

powers include the authority to hear and determine justiciable 

controversies as well as the authority to enforce any valid 

judgment, decree or order.” (cleaned up)); Consolidated Wagon 

& Machine Co. v. Kay, 21 P.2d 836, 840 (Utah 1933) (stating that 

“when a court of equity has jurisdiction over a cause for any 

purpose, it may retain the cause for all purposes, and proceed to 

a final determination of all the matters at issue.”). The court in 

this instance was exercising its equitable jurisdiction.
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¶14 Utah courts have long held that district courts retain 

jurisdiction to remedy scenarios exactly like the one presented in 

this case. See Ohms, 881 P.2d at 849; see also Osborne, 2011 UT App 

150, ¶ 4. Here, Kathleen sought the equitable powers of the 

district court to allow application of the rule change to both 

parties, and the court properly retained jurisdiction over the 

parties and subject matter for the purpose of effectuating a fair 

and equitable division of retirement. To hold otherwise would 

allow unequal treatment of the parties, which is inconsistent 

with the decree’s award of 50% of each party’s retirement 

benefits to the other party.

¶15 For these reasons, Duane’s contention that the district 

court lacked jurisdiction to amend the 1995 QDRO fails.4

II. Retroactive Rule Changes

¶16 Duane next contends that amending the 1995 QDRO 

amounts to a retroactive application of law, in violation of Utah 

Code section 68-3-3, which states, “A provision of the Utah Code 

is not retroactive, unless the provision is expressly declared to be 

retroactive.” Utah Code Ann. § 68-3-3 (LexisNexis 2016).

However, amendment of the 1995 QDRO has no effect on the 

application of the law, let alone a retroactive application. 

¶17 District courts have the power to enforce a decree of 

divorce by entering collateral orders—including orders 

effectuating the allocation of retirement benefits. See Osborne v. 

Osborne, 2011 UT App 150, ¶ 4, 260 P.3d 202 (determining that 

the district court’s order granting the distribution of retirement 

funds “merely enforced the [decree of divorce] under Utah Law,” 

and that “[t]he district court therefore correctly enforced the 

[decree of divorce] by entering the . . . [o]rder”). In Osborne, a 

 

4. The parties agree that “neither Rule 59(e) nor 60(b) [of the 

Utah Rules of Civil Procedure] applies [regarding] the 

amendment of . . . [Kathleen’s] QDRO.”
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respondent challenged the court’s order awarding his former 

spouse a portion of his retirement, pursuant to a QDRO. Id. ¶ 1. 

There, the court held that the QDRO at issue “merely effectuated 

the allocation of . . . benefits to [ex-wife] by instructing the 

Railroad Retirement Board to disburse the funds as the [decree

of divorce] allocated them.” Id. ¶ 4.

¶18 Similarly, in this case, amendment of the 1995 QDRO 

merely effectuates the allocation of benefits to Kathleen by 

instructing URS to disburse the funds as the decree allocated in 

1992. The decree was established, with regard to each party’s 

share of retirement, in 1992, pursuant to the Woodward formula. 

See supra ¶ 2. The proposed amendment does not attempt to 

change or retroactively apply new law because it does not

involve any statutes at all. Duane does not point to a single

statute being retroactively applied. The amendment to the 1995 

QDRO simply enforces the already-existing decree—which 

treats the parties identically—and asks the court to identically 

apply the change in administrative rules to the retirement 

accounts as well. Kathleen did not seek any alteration of 

retirement benefits that may have accrued between the entry of 

the original decree and present-day; she instead requested that 

moving forward, the court grant her QDRO the same status as

Duane’s QDRO. Therefore, Duane’s argument that the district 

court retroactively applied a change to the Utah Code fails.

III. Inequitable Amendment

¶19 Finally, Duane argues that it was inequitable for the court 

to amend the 1995 QDRO because Duane “stands the chance of 

losing more.” Under the new rules, if the amended order stands

and Kathleen predeceases Duane, he would suffer a 

diminishment in benefits. But Kathleen asserts, “Equity 

demands that both parties be under the same application of the 

rules for division of their respective retirement accounts.” We do 

not see the question as whether the equities of the parties’ 

positions should be re-evaluated. Instead, we view this collateral 

order through the lens of enforcement, specifically enforcing the 
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equitable distribution of property established by the court many 

years ago.

¶20 In a stipulated divorce, the point at which the court 

weighs the equities is when it accepts the parties’ stipulation and 

uses it as the basis for the decree. See Newmeyer v. Newmeyer, 745 

P.2d 1276, 1278 (Utah 1987) (stating that in determining marital 

property distribution, “[t]he overriding consideration is that the 

ultimate division be equitable—that property be fairly divided 

between the parties.”); Maxwell v. Maxwell, 796 P.2d 403, 406

(Utah Ct. App. 1990) (“While a property settlement agreement is 

not binding upon a [district] court in a divorce action, such 

agreement should be respected and given considerable weight in 

the [district] court’s determination of an equitable division of 

property.”).

¶21 Where there is no petition for modification of the decree 

itself, the court does not bear the responsibility of re-weighing 

the equities for the parties after they have assented to the decree; 

the court’s responsibility is to enforce the provisions of the 

decree as they exist. See Bayles v. Bayles, 1999 UT App 128, ¶ 15, 

981 P.2d 403 (“Stipulations entered into in contemplation of a 

divorce are conclusive and binding on the parties unless, upon 

timely notice and for good cause shown, relief is granted 

therefrom.” (cleaned up)). Here, by allowing amendment of the 

1995 QDRO—a collateral order—to reflect the current rules and 

apply them identically to the parties, the decree remained 

unchanged. Accordingly, there is no need for the court to weigh 

the equities once more. Therefore, the district court properly

enforced the decree by allowing the amendment.

CONCLUSION

¶22 The district court properly exercised jurisdiction over the 

parties and the 1995 QDRO. The district court did not 

retroactively apply any part of the Utah Code to the 2015 QDRO. 

And finally, the district court did not need to reassess the equity 
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arguments of the parties in entering a collateral order enforcing 

the original decree.

¶23 Affirmed.