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NO. 23531 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I CONRAD DANIEL WAGGENER, Plaintiff-Appellant, v. BEVERLY JO WAGGENER, Defendant-Appellee APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-D NO. 94-1704) MEMORANDUM OPINION Burns, C.J., Watanabe and Foley, JJ.)

(By:

Plaintiff-Appellant Conrad Daniel Waggener (Plaintiff, Conrad, or Husband) appeals from the April 12, 2000 Order Granting in Part and Denying in Part Defendant's Motion Re: Enforcement of the Divorce Decree Filed February 25, 2000 (April 12, 2000 Order), and May 17, 2000 Order Denying Plaintiff's Motion for Reconsideration (May 17, 2000 Order), entered by Per Diem District Family Judge Paul T. Murakami. affirm in part, vacate in part, and reverse in part. BACKGROUND Conrad and Defendant-Appellee Beverly Jo Waggener (Defendant, Beverly, or Wife) were married on March 25, 1975. They have three children. on May 12, 1994. On January 6, 1995, a partial settlement was stated on the record and orally ordered. The written document was not Conrad filed a Complaint for Divorce We

entered until January 11, 1996, when a Partial Agreement Re:

Divorce Settlement; Order (January 11, 1996 Order), approved as to form and content by Conrad and Beverly and approved as to form by the attorneys for Conrad and Beverly, was entered by District Family Judge Marjorie Higa Manuia. relevant part, as follows:
6. RETIREMENT. All of the parties' IRA accounts, including but not limited to Defendant's United Federal Credit Union IRA, Defendants's Twentieth Century IRA, Defendant's Mutual Qualified IRA, and her United Airlines 401(k) plan, as well as Plaintiff's Aloha Airlines 401(k) plan, Plaintiff's United Federal Credit Union IRA, and Plaintiff's Twentieth Century Mutual Fund IRA Account shall be divided equally by the parties as to all amounts earned and accrued during the parties' marriage. Each party shall promptly provide all verification of account information, including account values, for this purpose. The Aloha Airlines defined benefit retirement plan earned by Plaintiff and Plaintiff's U.S. Air Force retirement benefit, as well as Defendant's United Airlines Pension Plan, 1 shall be divided by the "Linson" formula, that is, each party shall receive one-half (1/2) times (years or points accrued in the plan during the marriage) divided by (total years or points accrued in the plan at the date of retirement) times the gross benefit available to recipient. Specific wording of the awards of retirement is reserved for further agreement and/or order of the Court.

This document stated, in

(Footnote added.) In other words, it was agreed and ordered that the defined benefit retirement plans shall "be divided by the "Linson" formula, that is, each party shall receive one-half (1/2) times (years or points accrued in the plan during the marriage) divided by (total years or points accrued in the plan at the date of retirement) times the gross benefit available to recipient." It was also agreed and ordered that the defined

1 It appears that the "United Airlines Pension Plan" and the "United Airlines defined benefit plan" referred to subsequently are the same plan.

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contribution retirement plans "shall be divided equally by the parties as to all amounts earned and accrued during the parties' marriage." In a letter to District Family Judge Darryl Choy, dated April 9, 1996, the attorney for Beverly stated that she and Conrad's attorney
have consulted extensively on the wording and provisions of the Decree for the above-referenced case. To the best of my knowledge, our wording is identical except as follows. . . . . . . . Other areas. With respect to other issues, [Conrad's attorney] and I have no further disputes regarding wording. believe wording is identical in all other areas.

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None of the exceptions involved the wording of the Divorce Decree governing the division of any of the defined benefit or defined contribution retirement plans. On May 14, 1996, Judge Choy entered the Divorce Decree, prepared by the attorneys for Conrad and approved as to form by the attorney for Beverly, and decided in section 5, in relevant part, as follows:
(iv) Husband's U.S. Air Force Reserve Retired Pay. Defendant shall be awarded a monthly percentage share of Plaintiff's U.S. Air Force Reserve retired pay when Plaintiff commences to receive the same. Defendant's monthly percentage share shall be as determined by the following formula: 1 2 X x (total retirement X credit points accrued by Plaintiff from the date of marriage to December 31, 1994) y (total retirement credit points accrued by Plaintiff at the time of his retirement) Plaintiff's monthly disposable retired pay = Defendant's monthly percentage share

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. . . . (v) Other Retirement Interests. Defendant shall be awarded and assigned a share of the retirement benefits under Plaintiff's Aloha Airlines defined benefit plan according to the formula below. As the Alternate Payee, Defendant shall have the right to elect to receive benefit payments under Plaintiff's Aloha Airlines defined benefit plan at the first date that payments to an Alternate Payee (Defendant) are allowed under the plan or any time thereafter. The share which Defendant shall be awarded shall be computed according to the following formula: 1 2 X x (total number of X years of Plaintiff's participation in the plan during the marriage as of December 31, 1994) y (total number of years of Plaintiff's participation in the plan at the time Defendant elects to receive her share of Plaintiff's benefits) Plaintiff's = gross retirement benefits at the time of Defendant's election Defendant's share

Each party shall be taxed on his or her share of the Aloha Airlines defined benefit payments. Plaintiff shall be awarded and assigned a share of the retirement benefits under Defendant's United Airlines defined benefit plan according to the formula below. As the Alternate Payee, Plaintiff shall have the right to elect to receive benefit payments under Defendant's United Airlines defined benefit plan at the first date that payments to an Alternate Payee (Plaintiff) are allowed under the plan or any time thereafter. The share which Plaintiff shall be awarded shall be computed according to the following formula: 1 2 X x (total number of X years of Defendant's participation in the plan during the marriage as of December 31, 1994) y (total number of years of Defendant's participation in the plan at the time Plaintiff elects to receive his share of Defendant's benefits) Defendant's gross retirement benefits at the time of Plaintiff's election = Plaintiff's share

Each party shall be taxed on his or her share of the United Airlines defined benefit payments.

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Qualified Domestic Relations Orders shall be prepared to effect the division of the foregoing defined benefit plans. The division of his retirement benefits under the Aloha Airlines defined benefit plan notwithstanding, Plaintiff shall be awarded all of his Aloha Airlines defined contribution plan, his Aloha Airlines 401(k) plan account, his United Airlines Federal Credit Union IRA, his 20th Century Mutual Fund IRA's [sic], and his Merrill Lynch IRA. The division of her retirement benefits under the United Airlines defined benefit plan notwithstanding, Defendant shall be awarded all of her United Airlines 401(k) plan account (which includes her former United Airlines defined contribution plan), her United Airlines Federal Credit Union IRA, and her 20th Century Mutual Fund IRA. To the extent that as of December 31, 1994 the value of either party's total combined interest in the retirement accounts identified herein (excluding the Aloha Airlines defined benefit plan, the USAFR retired pay, and the United Airlines defined benefit plan) exceeded the value of the other party's total combined interest in the retirement accounts identified herein (excluding the Aloha Airlines defined benefit plan, the USAFR retired pay, and the United Airlines defined benefit plan), one-half (1/2) of the difference in that value as of December 31, 1994 shall be transferred by way of a Qualified Domestic Relations Order, if necessary, from the retirement account(s) of the party having the greater total combined interest as of December 31, 1994 to the retirement account(s) of the party having the lesser total combined interest as of December 31, 1994.

(Emphasis added.)2 On June 3, 1996, Beverly filed a motion for reconsideration regarding issues unrelated to the formulas for the division of the retirement accounts. This motion was initially An amended order

decided by an order entered on October 24, 1996. was entered on November 18, 1996.

"All or any portion of the interest in a qualified plan that is awarded to a spouse by a QDRO may be rolled over tax free to an IRA or to another qualified plan, subject to the same rules that apply in the case of a distribution to a participant (see IRC [Internal Revenue Code]

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