This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0637

                                  Carleen Kaye Theno,
                       n/k/a Carleen Kaye Starkovich, petitioner,
                                      Respondent,

                                           vs.

                                  John Marvin Theno,
                                      Appellant.

                                Filed February 1, 2016
                                       Affirmed
                                   Connolly, Judge

                             St. Louis County District Court
                                File No. 69-F5-93-101382


Jill I. Frieders, O’Brien & Wolf, L.L.P., Rochester, Minnesota (for respondent)

Linda S.S. de Beer, de Beer & Associates, P.A., Lake Elmo, Minnesota (for appellant)


      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

CONNOLLY, Judge

      The district court denied appellant’s motion to modify the monthly payment to

respondent. Appellant contends the district court erred by construing his motion as an

attempt to reopen the judgment and decree rather than as an attempt to implement or clarify

the judgment and decree. We conclude the district court correctly construed and denied

appellant’s motion. Therefore, we affirm.

                                         FACTS

      John Marvin Theno (Theno) and Carleen Kaye Theno, now Carleen Kaye

Starkovich (Starkovich) were married in May 1982. Their marriage was dissolved in

October 1994. The dissolution was formalized in a judgment and decree, which was based

upon a stipulated agreement negotiated by the parties. The judgment and decree included

a provision addressing distribution of Theno’s retirement benefits, which Theno earned

working at U.S. Steel from 1975 to 1982 and from 1989 until he retired in March 2010.

      The provision of the judgment and decree addressing Theno’s retirement benefits

provided:

             The Court shall enter a separate Qualified Domestic Relations
             Order which shall provide that [Starkovich] shall receive a
             portion of each monthly or other benefit paid to [Theno] under
             the [retirement] plan payable as, if and when received by
             [Theno]. [Starkovich’s] share of each monthly or other benefit
             shall be determined by multiplying the monthly or other benefit
             by one-half times a fraction the numerator of which shall be
             the number of months that [Theno] accumulated benefits in
             [the retirement] plan while married to [Starkovich] and the
             denominator of which shall be the total number of months that



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              [Theno] accumulates benefits in the plan prior to their being
              paid.

This payment formula is commonly referred to as the Janssen formula. See Janssen v.

Janssen, 

 (Minn. 1983) (describing pension division formula). The

retirement provision of the judgment and decree was drawn, verbatim, from the stipulated

agreement of the parties.

       In March 2010, Theno retired from U.S. Steel. In July 2010, he began collecting

retirement benefits. In January 2011, the district court issued the Qualified Domestic

Relations Order (QDRO) provided for in the judgment and decree, which required Theno’s

pension administrator to pay Starkovich a portion of Theno’s benefits. The payment

formula from the judgment and decree was included in the QDRO. Theno reviewed and

signed the QDRO as part of the district court’s review and approval process. Theno did

not challenge the QDRO at the time it was prepared and issued, even though he knew his

monthly retirement benefit payment and could have figured out how the QDRO would

apply to the payment.

       In May 2014, more than three years after the QDRO was issued, Theno brought a

motion to amend the QDRO. He requested that the district court reduce his monthly

payment to Starkovich from $381.91 to $98.43 and order Starkovich to reimburse him for

excessive payments already made. His calculation was based on the report of an actuary

he enlisted to determine the benefits attributable to the marriage. Theno argued that the

reduction was appropriate because of his personal post-dissolution efforts to enhance the

value of his pension and institutional changes to the pension plan that increased the value



                                            3
of the pension after dissolution. During the district court’s hearing on Theno’s motion,

Theno’s attorney noted that Theno was “not asking that the formulaic amount” from the

judgment and decree “be changed.” Rather, his attorney noted that Theno wanted the

formula to be “accurately applied to the benefit as determined by what occurred in the

marriage.” In September 2014, the district court denied Theno’s motion. The district court

construed Theno’s motion as an attempt to reopen the judgment and decree and determined

that Theno did not meet the statutory requirements necessary to do so.

       In October 2014, Theno brought a motion for amended findings. Theno argued that

the district court erred by determining that he sought to reopen and amend the judgment

and decree. Rather, he argued that he was seeking a new order to implement the terms of

the judgment and decree, which he claimed did not contemplate inclusion of retirement

benefits accrued after dissolution. Theno requested that the district court reverse its order

and award Theno the relief requested in his initial motion. In February 2015, the district

court denied Theno’s motion. Theno appeals.

                                     DECISION

I.     Reopening or implementing and clarifying the judgment and decree

       The district court construed Theno’s motion as an attempt to reopen the judgment

and decree. Theno contends that the district court erred by construing his motion in this

way. Theno argues that his motion should be construed as an attempt to implement or

clarify the QDRO. Resolution of this portion of the case requires us to navigate between

these alternative standards.




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      “Subject to the right of appeal, a dissolution judgment and decree is final when

entered, unless in a timely motion a party establishes a statutory basis for reopening the

judgment and decree.” Thompson v. Thompson, 

 (Minn. App. 2007);

see also Minn. Stat. § 518A.39, subd. 2(f) (2014). The statutory bases for reopening of a

judgment and decree are enumerated in 

, subd. 2 (Supp. 2015). These

bases provide the “sole relief from the judgment and decree.” Shirk v. Shirk, 

 (Minn. 1997). A district court’s decision not to reopen a judgment and decree is

subject to an abuse of discretion standard of review. Kornberg v. Kornberg, 

 (Minn. 1996).

      “While a district court may not modify a final property division,” such as the

division of pension benefits in a judgment and decree, “it may issue orders to implement,

enforce, or clarify the provisions of a decree, so long as it does not change the parties’

substantive rights.” Nelson v. Nelson, 

 (Minn. App. 2011) (quotation

omitted). “An order implementing or enforcing a dissolution decree does not affect the

parties’ substantive rights when it does not increase or decrease the original division of

marital property.” 

 A district court’s order implementing, enforcing, or clarifying the

terms of a judgment and decree is subject to an abuse of discretion standard of review. 

      As between these two standards, we conclude that the district court correctly

construed Theno’s motion as an attempt to reopen the judgment and decree. A stipulated

judgment and decree is a binding contract. Shirk, 

. The language in

a stipulated judgment and decree is generally construed according to its plain meaning.

Starr v. Starr, 

, 

 (1977). The plain language


                                            5
of the judgment and decree granted Starkovich “a portion of each monthly or other benefit

paid to [Theno] under the [retirement] plan.” The plain language does not exclude any

portion of Theno’s retirement benefit.       Nor does the plain language provide for

recalculation of the benefit at the time of retirement. Instead, the plain language simply

states that Starkovich shall receive a monthly payment from the total “monthly or other

benefit paid to [Theno].” Thus, a new order addressing the monthly payment would expand

upon the plain language of the judgment and decree and change its plain meaning. This

constitutes a reopening of the judgment and decree. Accordingly, we conclude that the

district court did not err in concluding that Theno was attempting to reopen the district

court’s prior judgment and decree.

       Because we conclude that Theno was attempting to reopen the judgment and decree,

we must determine whether doing so was justified. See 

, subd. 2.

Relevant to this appeal is 

, subd. 2(5), which provides, “the court may

relieve a party from a judgment and decree . . . [if] it is no longer equitable that the

judgment and decree or order should have prospective application.” A party bringing a

motion under this subdivision must do so within “a reasonable time.” 

 Reopening a

judgment and decree under this provision requires “more than merely a new set of

circumstances or an unforeseen change of a known circumstance.” Thompson, 

. We conclude that reopening the judgment and decree was not justified under

, subd. 2(5), for two reasons.

       First, we conclude that reopening the judgment and decree was not justified because

Theno cannot show that he brought his motion based on something “more than merely a


                                             6
new set of circumstances or an unforeseen change of a known circumstance.” Theno

understood prospective application of the QDRO at the time he signed it and during the

more than three years he acquiesced to payments under the QDRO. In this case, there was

nothing more than a new set of circumstances or unforeseen change of a known

circumstance. Indeed, there was not even a new set of circumstances; Theno knew exactly

how the QDRO applied prospectively. Second, we conclude that reopening the judgment

and decree was not justified because Theno failed to bring his motion within “a reasonable

time.” We are aware of no caselaw establishing a firm rule regarding what constitutes a

“reasonable time” under 

, subd. 2(5). However, on the facts of this

case, we note that more than three years was an inappropriate amount of time, especially

because Theno acquiesced to payment under the QDRO and allowed an alleged $11,055.72

in overpayments to accrue during that time.

      In sum, we conclude that the district court did not err by concluding Theno’s motion

was an attempt to reopen the judgment and decree. Likewise, the district court did not

abuse its discretion by refusing to reopen the judgment and decree.

II.   Reserved jurisdiction

      Alternatively, Theno contends that the district court erred in refusing to address the

QDRO because the district court retained reserved jurisdiction over the matter.

      There are two main methods for dividing pension benefits in Minnesota: (1) the

present cash value method and (2) the reserved jurisdiction method. DuBois v. DuBois,

 (Minn. 1983). Under the present value method, the court awards the

non-employee spouse the present value of a pension based upon what the court expects it


                                              7
will be worth in the future. 

 Under the reserved jurisdiction method, pension benefits

are paid upon the employee spouse’s retirement if and when the employee spouse actually

receives the benefits. 

 The reserved jurisdiction “approach may necessitate the trial

court’s retention of jurisdiction to oversee the marital property division.” Janssen, 

. These two methods are not exclusive; the district court retains broad

discretion when dividing pension benefits. DuBois, 

.

       Theno argues that the reserved jurisdiction method always allows a court to revisit

the distribution of pension benefits upon retirement to accurately allocate the benefits

according to the portion attributable to the marriage. Theno relies heavily on a statement

from Petschel v. Petschel, which provides, “once the pension becomes payable, the

pensioner may present evidence showing what part of the post-dissolution salary increases

are attributable solely to his own efforts, such as increments resulting from promotions.

Those amounts may be excluded from division.” 

 (Minn. App. 1987).

Theno contends that, under the reserved jurisdiction method and our court’s statement in

Petschel, the district court had the ability and obligation to reassess the division of his

pension benefits. We disagree.

       In Petschel and the other Petschel-type cases cited by Theno, distribution of pension

benefits was resolved by the district court after litigation, not by stipulation of the parties.

See 

; see also Kuriger v. Kuriger, No. CX-00-169, 

, at *1

(Minn. App. Sept. 12, 2000); Arts v. Arts, No. C6-89-1066, 

, at *1-2

(Minn. App. Nov. 21, 1989). This is important because the parties in those cases did not

have the opportunity to expressly reserve jurisdiction by stipulation. Rather, the parties


                                               8
needed a court to order reassessment of the division of pension benefits at retirement.

Unlike the parties in those cases, Theno could have contracted to expressly reserve

jurisdiction to reassess the division of pension benefits at retirement by stipulation. His

failure to do so must be held against him here, especially considering that he acquiesced to

payment of benefits under the QDRO for more than three years before making his Petschel

argument. Those more than three years of silence suggest that even Theno believed

payment under the QDRO was appropriate and that he had not reserved jurisdiction to

reassess the division of retirement benefits.

       In sum, we conclude that reserved jurisdiction does not apply in this case to allow

Theno to modify monthly retirement benefits paid to Starkovich.

       Affirmed.




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