IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE 

ROBERT C. 

and 

MARRIAGE OF 

WOODFORD, 

Petitioner and Appellant, 

LORRAINE L. WOODFORD, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. Russell Plath, Halverson, Sheehy & Plath, P.C., 

Billings, Montana 

For Respondent: 

Damon L. Gannett, Gannett & Ventrell, Billings, 

Montana 

Filed: 

Submitted on Briefs: June 4, 1992 

Decided: October 15, 1992 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

This is an appeal from an order of the Thirteenth Judicial 

District Court, Yellowstone County, denying appellant Robert C. 

Woodfordls motion to enter a Qualified Domestic Relations Order. 

We affirm. 

The following issues are raised on appeal. 

1. Does the District Court's "Order On Petitioner's Motion 

to Enter a Qualified Domestic Relations Order" constitute a final 

judgment or order from which an appeal may be taken? 

2. Do retirement benefits earned and contributed to a 

retirement account after the date of the decree of dissolution 

become part of the marital estate? 

The parties were married in Reno, Nevada, on October 17, 1952. 

Four children were born to the marriage, all of whom are now 

emancipated. Robert filed for dissolution on May 25, 1989. 

Respondent Lorraine L. Woodford filed her response on July 20, 

On December 29, 1989, the parties entered into a separation 

agreement. The separation agreement contained the following 

provision: 

8. MAINTENANCE PAID TO WIFE: The parties agree 

that the Husband will make monthly maintenance payments 

to the Wife in the amount of $500.00 per month until the 

Husband retires from the United States Navy. Upon the 

Husband taking full retirement, the monthly federal 

government retirement benefit paid to the Husband shall 

be split equally with the Wife for the balance of her 

life. It is agreed between the parties that when the 

Wife receives an increase in her Social Security 

Retirement benefit, the monthly amount of maintenance 
paid to the Wife shall be reduced by the same amount as 

the Wife's Social Security benefit has been increased. 

Also on December 29, 1989, the District Court entered its 

findings of fact, and conclusions of law and decree of dissolution. 

The court approved of the parties' separation agreement, found it 

not unconscionable, and incorporated it into the court's decree. 

On September 26, 1991, Robert filed a Motion for Entry of a 

Qualified Domestic Relations Order (QDRO). A QDRO allows someone 

other than the person who earned a federal pension to directly 

receive a part of that pension. Along with the motion, Robert 

filed a proposed QDRO which contained the following provision: 

Lorraine L. Woodford is awarded an amount equal to 

fifty percent (50%) of the monthly retirement benefits 

attributable to the Participant's CSRS Participation 

through December 29, 1989. At her option, the Assignee 

can have her payments begin at any date after the 

Participant is eligible to receive benefits under the 

CSRS . 

The amount of Lorraine L. Woodford's monthly benefit 

shall be reduced by the same amount as her social 

security benefit has been increased since December 29, 

1989. Pursuant to Section 831.1705 of the CSRS 

regulations the Assignee's December 29, 1989 social 

security earnings of two hundred twenty five dollars 

($225.00) is the basis for calculating reduction of the 

Assignee's monthly benefit. 

On December 20, 1991, the District Court entered its order. 

The court concluded that the proposed QDRO did not conform with the 

parties' separation agreement and ordered Robert to submit a QDRO 

which conformed with the separation agreement. Robert never filed 

another proposed QDRO, and instead filed a notice of appeal with 

this Court. 
I. 

Does the District Court's "Order On Petitioner's Motion to 

Enter a Qualified Domestic Relations Ordern constitute a final 

judgment or order from which an appeal may be taken? 

Lorraine contends that the District Court did not intend that 

its order denying Robert's motion to enter a QDRO be considered a 

final order. We disagree. 

Rule l(b)(2), M.R.App.P., grants an appeal "from any special 

order made after final judgment . . . . " In Butler v. Brownlee 

(1969), 152 Mont. 453, 451 P.2d 836, this Court held that an order 

modifying child custody and support award in a divorce decree is a 

"special order made after a final judgment." The decree of 

dissolution entered on December 29, 1989, was a final judgment in 

this case. Section 40-4-108(1), MCA, provides that a decree of 

dissolution is "final when entered, subject to the right of 

appeal." Tn its order of December 20, 1991, the District Court 

ordered Robert to submit within twenty days a QDRO that conformed 

to the order denying Robert's motion to enter a QDRO. Although on 

its face the order appeared interlocutory, the order constituted a 

"special order made after final judgment" and failure to file a 

notice of appeal within 30 days would have closed Robert's right to 

an appeal. If the effect of the order is to destroy an appellant's 

right to an appeal, then that order, though interlocutory should be 

appealable. Bowen v. True Valu Stores, Inc. (1987), 229 Mont. 84, 
745 P. 2d 330. We hold that the appeal is properly before this 

Court. 

Do retirement benefits earned and contributed to a retirement 

account after the date of the decree of dissolution become part of 

the marital estate? 

We have stated that retirement benefits are part of the 

marital estate, and therefore, constitute marital property. In re 

Marriage of Rolfe (1985), 216 Mant. 39, 699 P.2d 79 (Rolfe I). 

Under Montana law, property settlement agreements are considered 

contracts, and therefore. must be construed under the law of 

contracts. In re Marriage of Quinn (1981), 191 Mont. 133, 622 P.2d 

230; Section 40-4-201(5), MCA. If the language of a property 

settlement agreement is clear and explicit, it controls the 

agreementqs interpretation. puinn, 622 P.2d at 232. This case is 

analogous to a recent case decided by this Court in In re Marriage 

of McKeon (Mont. 1992), 826 P.2d 537, 49 St. Rep. 127. In that 

case, the District Court ruled that the property settlement 

agreement provided that the husband pay maintenance to the wife for 

the remainder of her life regardless of whether she remarried. 

Husband appealed the District Court's interpretation of the 

separation agreement. We affirmed the District Court's 

interpretation that the contract contained plain and unambiguous 

language that maintenance was to extend for the remainder of the 

wife's life. 
Section 28-3-303, MCA, provides that the writing contained in 

the contract generally determines the intention of the parties: 

When a contract is reduced to writing, the intention of 

the parties is to be ascertained from the writing alone 

if possible, subject, however, to the other provisions of 

this chapter. 

Section 40-4-201(3), MCA, governs separation agreements, and 

the standard that would warrant a reopening of a judgment is a 

finding of unconscionability by the District Court. Robert fails 

to provide any facts, or to allege on appeal, that the property 

settlement agreement is unconscionable. Instead, Robert argues 

that his retirement benefits earned and contributed to his 

retirement account after the date of the decree dissolving the 

marriage are not part of the marital estate. This is not what the 

parties agreed to in their property settlement agreement. 

The plain and unambiguous language of the contract provided 

that Robert's monthly federal government retirement pension "shall 

be split equally with the Wife for the balance of her life." It 

does not state on what date Robert's earnings or contributions to 

his retirement fund should not be taken into account for the 

division and distribution of retirement payments. The original 

agreement only speaks for deductions in maintenance payments for 

social security increases and not for deductions in retirement 

benefits. 

The parties were represented by counsel and understood the 

terms of the agreement. See generally, In re Marriage of Laskey 

(Mont. 1992), 829 P.2d 935, 49 St. Rep. 322. Lorraine is entitled 
to the benefit of her bargain. Robert's proposed QDRO was nothing 

more than an attempt to modify the original separation agreement. 

This Court has held that where there is no ambiguity, the 

court is without power to insert new provisions into the contract. 

McKeon, 826 P.2d at 540. We have also held that "it is the duty of 

the district court to enforce contracts not to make new ones for 

the parties, however unwise the terms may appear. 'I McKeon, 826 

P.2d at 540. We hold that the District Court did not err in 

concluding that the proposed QDRO did not conform to the separation 

agreement. 

We affirm. 

We concur: 

Chief Justice 
I October 15, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

R. Russell PIath 

HALVERSON, SHEEHY & PLATH, P.C. 

P.O. Box 1817 

Billings, MT 59103-1817 

Damon L. Gannett 

GANNETT & VENTRELL 

P.O. Box 1375 

Billings, MT 59103-1375 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA