02-0118 In Re: the Marriage of Daniel R. Taylor v. Susan M. Taylor

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Accordingly, we reject her claim that she should receive a sum equal to 35 percent of the market value as of the date of her divorce without any deduction for the losses which ensued.

“We conclude the language at issue is not ambiguous. The property division section of the agreement, which was signed by the parties on the date of their divorce, specifies that ‘the parties are awarded’ the property thereafter enumerated for each. The itemization under the heading ‘To Daniel’ includes ‘Sixty-five percent (65%) of his … 401(k) plan, to be divided by …

(QDRO).’ Similarly, among the items under the heading ‘To Susan’ is ‘Thirty-five percent (35%) of Daniel’s … 401(k) plan, to be divided by QDRO.’ The only reasonable interpretation of these provisions is that they grant Daniel a 65% share and Susan a 35% share of the 401(k) plan as of the date of the agreement and divorce. …

“Had [Susan] wanted to lock in a certain dollar figure, the parties could have agreed to that in their Marital Settlement Agreement. …

“Daniel’s 401(k) was invested in a number of different funds. It is the nature of such investments that their value fluctuates. By opting to take a percentage of the 401(k) Susan could enjoy the benefits of an increase in the value of the funds. At the same time, though, she had to assume the risk of decrease in value.”

Affirmed.

Recommended for publication in the official reports.

Dist IV, Dane County, Foust, J., Deininger, J.

Attorneys:

For Appellant: Gregg A. Auby, Sun Prairie; Michael D. Engleson, Sun Prairie

For Respondent: Nancy Wettersten, Madison