Sharon Marie Jenkins Hayes Versus Paul C. Hayes ( 2020 )


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  • SHARON MARIE JENKINS HAYES                           NO. 20-CA-90
    VERSUS                                               FIFTH CIRCUIT
    PAUL C. HAYES                                        COURT OF APPEAL
    STATE OF LOUISIANA
    ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
    PARISH OF ST. JAMES, STATE OF LOUISIANA
    NO. 36,731, DIVISION "A"
    HONORABLE JASON VERDIGETS, JUDGE PRESIDING
    December 02, 2020
    SUSAN M. CHEHARDY
    CHIEF JUDGE
    Panel composed of Judges Susan M. Chehardy,
    Fredericka Homberg Wicker, and Marc E. Johnson
    AFFIRMED
    SMC
    FHW
    MEJ
    COUNSEL FOR DEFENDANT/APPELLANT,
    PAUL HAYES
    DaShawn P. Hayes
    CHEHARDY, C.J.
    Appellant, Paul Hayes, appeals the denial of his petition to vacate certain
    Qualified Domestic Relations Orders (QDROs) and Amended QDROs signed by
    the trial court. For the reasons that follow, we affirm the trial court’s ruling
    denying Mr. Hayes’ petition to vacate.
    FACTS
    Sharon Marie Jenkins Hayes and Paul C. Hayes were married June 1, 2002.
    On December 4, 2014, Mrs. Hayes filed a petition for divorce. The trial court
    entered a judgment of divorce on January 19, 2016, terminating the community of
    acquets and gains, effective December 4, 2014.
    Mr. Hayes subsequently filed a Petition for Judicial Partition of Community
    Property and a Sworn Detailed Descriptive List of community assets and liabilities.
    He then filed a motion to deem his list a “Judicial Determination of Community
    Assets and Liabilities.” Mrs. Hayes filed her own Detailed Descriptive List and the
    matter was set for hearing on August 24, 2018. The parties reached a compromise
    in open court regarding the partition of their community property, and each signed
    the “Partition of Community Property Agreement” that same day. Attached to the
    Partition were Exhibits explicitly stating the parties’ assets and liabilities and how
    they were to be divided.1 The Partition further stated:
    1
    The relevant portion of Exhibit A to the Partition of Community Property Agreement provides
    that Mrs. Hayes is entitled to:
    5. Fifty per cent (50%) of any and all interest in and to the ArcelorMittal,
    LaPlace, LLC Pension Plan for Bargained Employees, in the name of Paul C.
    Hayes, participant, accrued between June 2, 2002 and December 4, 2014, as
    outlined in the Joint Motion and Order to Obtain Qualified Domestic Relations
    Order to be prepared according to Plan Procedure, and submitted to the Court by
    the date ordered by the Court.
    6. Any and all interest in and to the ArcelorMittal, LaPlace, LLC 401K
    Retirement Plan, in the name of Paul C. Hayes, participant, accrued between June
    2, 2002 and December 4, 2014, as outlined in the Joint Motion and Order to
    Obtain Qualified Domestic Relations Order to be prepared according to Plan
    Procedure, and submitted to the Court by the date ordered by the Court.
    20-CA-90                                      1
    The parties discharge each other from any further
    accounting for their separate and paraphernal funds, the
    community of acquets and gains being fully partitioned as
    above set forth; they are satisfied with reference to
    reservation of each party’s separate and paraphernal
    property; and they have agreed and do affirm that each has
    received full value for his or her entire interest in and to
    the community of acquets and gains and for
    reimbursement to their respective separate estates.
    Each party also signed an affidavit stating that they were represented by
    counsel, they read and understood the Partition of Community Property Agreement,
    and they had executed the instrument of their own free will. The trial court then
    entered a Judgment ordering the attorneys for the parties to submit proposed
    Qualified Domestic Relations Orders (QDROs) for (1) Mr. Hayes’ Arcelor Mittal,
    LaPlace, LLC Pension Plan; (2) Mr. Hayes’ Arcelor Mittal, LaPlace, LLC 401K
    Retirement Plan; and (3) Mrs. Hayes’ WalMart employees 401K Retirement Plan.2
    The Judgment also decreed that the Settlement of Community Property Agreement
    entered between the parties on August 24, 2018, was fair and equitable to both
    parties.
    On December 12, 2018, counsel for Mrs. Hayes submitted QDROs for Mr.
    Hayes’ Pension Plan and his 401K Retirement Plan, which the trial court signed the
    following day. The trial court signed an Amended QDRO for Mr. Hayes’ 401K
    Retirement Plan on February 19, 2019, and an Amended QDRO for Mr. Hayes’
    7. 100% interest in and to all cash in the WALMART 401K Plan, in the name of
    Sharon Marie Jenkins Hayes.
    2
    The Internal Revenue Code, 
    26 U.S.C. § 414
    (p)(1), defines a Qualified Domestic
    Relations Order (QDRO) as an order that “creates or recognizes the existence of an alternate
    payee’s right to, or assigns to an alternative payee the right to, receive all or a portion of the
    benefits payable with respect to a participant under a retirement plan.” A state authority,
    generally a court, must actually issue a judgment, order, or decree or otherwise formally approve
    a property settlement agreement before it can be a “domestic relations order.” See also U.S.C. 29
    § 1056 (d)(3)(B)(ii).
    Mr. Hayes’ petition to vacate judgment filed in the trial court complained that at no point
    was a QDRO for Mrs. Hayes’ WalMart 401K retirement plan submitted, but the Partition of
    Community Property Agreement signed by both parties clearly established that Mrs. Hayes was
    entitled to 100% of her WalMart 401K. Because no benefits are being assigned to another payee,
    a QDRO for the WalMart plan is not necessary.
    20-CA-90                                         2
    Pension Plan on April 22, 2019.3 Each QDRO was prepared by counsel for Mrs.
    Hayes, and the original QDROs appear to have been presented to Mr. Hayes’ counsel
    for review.4
    Mr. Hayes filed a “Petition to Vacate Judgment with Incorporated
    Memorandum” on May 3, 2019. He argued that the QDROs submitted by plaintiff
    regarding defendant’s Pension Plan and 401k Plan failed to account for the
    reimbursements and credits he is owed, to which, Mr. Hayes alleges, they agreed in
    open court on August 24, 2018. Mr. Hayes further alleged that the QDROs and
    Amended QDROs were submitted to the trial court without the signature of Mr.
    Hayes or his counsel, yet the court signed the QDROs anyway. He argues these
    QDROs were based upon error and mistake and therefore present grounds for
    nullity. The trial court denied Mr. Hayes’ petition to vacate judgment. Mr. Hayes
    timely filed this devolutive appeal.
    DISCUSSION
    3
    The relevant portion of the original Pension Plan QDRO provided: “The Alternate Payee
    is awarded (50 per cent) of the Participant’s Accrued Benefit under the Plan as of (the 1st day of
    June, 2002) through (the 4th day of December, 2014) [multiplied by a fraction, the numerator of
    which is (174) the number of [months] of marriage during which benefits were accumulated
    prior to the Division Date and the denominator of which is 228) the total number of [months]
    during which benefits were accumulated prior to such date].” (Emphasis added).
    The Amended Pension Plan QDRO provides: “The Alternate Payee is awarded 50% (fifty
    per cent) of the Participant’s Accrued Benefit under the Plan earned from the period of 1st day of
    June, 2002 through the 4th day of December 2014. (Emphasis added).
    The relevant portion of the original 401K Plan QDRO provided: “(g) The Plan
    Administrator of the Plan shall transfer to the Alternate Payee the sum of $29,343.00 (twenty-
    nine thousand three hundred forty-three) dollars of the Participant’s vested account balance as of
    December 11, 2014.” (Emphasis added).
    The Amended 401K Plan QDRO provides: “(g) The Plan Administrator of the Plan shall
    transfer to the Alternate Payee the sum of $29,343.00 (twenty-nine thousand three hundred forty-
    three) dollars of the Participant’s vested account balance as of January 26, 2018.” (Emphasis
    added).
    4
    Counsel for Mrs. Hayes included Rule 9.5 Certificates with the December 12, 2018
    QDROs submitted to the trial court, which indicate that she prepared the QDROs according to
    plan procedure and circulated the proposed QDROs to counsel for Mr. Hayes, both by facsimile
    and by hand delivery under his office door; that no opposition was received; and that she allowed
    five working days before presenting the proposed QDRO to the Court. The record does not
    include Rule 9.5 Certificates with the February 19, 2019 and April 22, 2019 Amended QDROs,
    but includes the Clerk of Court’s Notice of Mailing for all QDROs, including the Amended
    QDROs, to Mr. Hayes’ counsel.
    20-CA-90                                         3
    Mr. Hayes argues without specificity that the trial court should have vacated
    the QDROs because they do not reflect the terms of the parties’ stipulated
    agreement. Mr. Hayes states in his brief: “the consent judgment or compromise
    was not perfected in writing, however, it was recited in open court and there was a
    full discussion on the record.” In addition, Mr. Hayes contends that because neither
    he nor his attorney signed the QDROs and Amended QDROs, there was no
    meeting of the minds as to their contents and they are void.
    At the December 2019 hearing on the petition to vacate judgment, counsel
    for Mr. Hayes introduced into evidence a portion of the transcript from the August
    24, 2018 hearing at which he represented to the trial court that the parties discussed
    a change in certain calculations and that those changes “will [be] put in a more
    complete order for you, but as far as the judgement [sic] is concerned, … there is
    an exhibit attached to that which basically corroborates what we’ve done on that
    more detailed list.” Mr. Hayes did not object to the trial court’s signing of the
    August 24, 2018 judgment memorializing Mr. and Mrs. Hayes’ Partition
    Agreement, nor did he move to amend that judgment based on any alleged
    calculation error under La. C.C.P. art. 1951 or by moving for a new trial under La.
    C.C.P. art. 1973.5 The transcript excerpt that counsel for Mr. Hayes introduced as
    evidence at the December 2019 hearing also reflects the trial court’s questioning of
    Mr. Hayes and Mrs. Hayes at the August 2018 hearing, asking if they understood
    the contents of the proposed judgment and exhibits attached, and if the parties
    agreed to their contents. Each party indicated his or her agreement.
    A judgment may be annulled for vices of form or vices of substance. La.
    C.C.P. art. 2001. For purposes of the annulment articles, vices of form are limited
    to judgments (1) against an incompetent person not represented as required by law;
    5
    Generally there is no appeal from a consent judgment. La. Civ. Code art. 2085; Hicks v.
    Hicks, 
    561 So.2d 188
     (5th Cir.), writ denied, 
    564 So.2d 327
     (La. 1990).
    20-CA-90                                       4
    (2) against a defendant who has not been served with process as required by law;
    and (3) by a court lacking subject matter jurisdiction. La. C.C.P. art. 2002. Under
    La. C.C.P. art. 2003, a defendant who voluntarily acquiesced in the judgment, or
    who was present in the parish at the time of its execution and did not attempt to
    enjoin the enforcement, may not annul the judgment on any of the grounds
    enumerated in La. C.C.P. art. 2002.
    There are no allegations that Mr. Hayes is incompetent; even if there were, it
    is clear from the record that Mr. Hayes continuously has been represented by
    counsel. Moreover, there is no suggestion that the trial court lacked subject matter
    jurisdiction to rule in this case. Finally, Mr. Hayes does not allege that he failed to
    receive notice of the proposed QDROs when presented to the trial court, nor does
    he claim that he did not receive notice that the trial court signed the QDROs
    presented. The record contains the Clerk of Court’s Notice of Signing sent to Mr.
    Hayes’ counsel, Mr. Ford, for all four QDROs. None of the conditions in La.
    C.C.P. art. 2002 is satisfied here.
    La. C.C.P. art. 2004 governs annulment of a judgment for vices of
    substance. It provides that a party may bring an action to annul a final judgment
    obtained by fraud or ill practices within one year of the discovery by the plaintiff in
    the nullity action of the fraud or ill practices. Mr. Hayes has not alleged that the
    QRDOs were presented to or signed by the trial judge through fraud or ill
    practices, however.
    Mr. Hayes lastly argues that the QDROs are invalid because neither he nor
    his attorney had executed them, yet the trial court signed them anyway. Mr. Hayes
    fails to point to any statute or rule indicating that his or his agent’s signature is
    necessary to render the QDROs valid and enforceable. La. R. Dist. Ct., App. 25 for
    Ascension, Assumption, and St. James Parishes, “Court-Specific Rules on
    20-CA-90                                    5
    Preparation and Submission of Judgments in Family Law Proceedings,” states, in
    pertinent part:
    3.     The party or attorney responsible for preparing the
    judgment or order must circulate the proposed judgment
    or order to all counsels of record and self-represented
    parties to allow five working days for comment before
    presentation to the Court in accordance with Uniform
    District Court Rule 9.5.
    4.     When submitted, the proposed judgment or order
    must be accompanied by a certificate regarding the date
    of mailing, hand delivery, or other method of delivery of
    the document to other counsel of record and to
    unrepresented parties, and stating whether any opposition
    was received and the basis for the opposition. The
    certificate must also contain a request for execution of
    the judgment over the opposition or in the absence of
    signature of the other counsels of record or self-
    represented party.
    5.     Counsel for the parties or self-represented litigants
    shall prepare and submit a Qualified Domestic Relations
    Order or other plan for employee benefits, along with the
    judgment to be signed if required. If the order involved
    self-represented parties, the documents shall be
    notarized.
    These Local District Court Rules do not require each litigant and/or their attorneys
    to sign the QDRO before submitting it to the trial court for signature; they require
    only that the attorney preparing the proposed Order also include a Rule 9.5
    Certificate. While the record does not include Rule 9.5 Certificates for the
    Amended QDROs, the original QDROs, presented to the court for its signature on
    December 12, 2018, did include Rule 9.5 Certificates signed by counsel for Mrs.
    Hayes, and the portion of the QDROs to which Mr. Hayes objects did not change
    in the Amendments. Finally, the United States Department of Labor indicates there
    is no requirement “that both parties to a marital proceeding sign or otherwise
    endorse or approve [a qualified domestic relations] order.”6 Cf. 
    29 U.S.C. § 1056
    (d)(3)(C), (D), and (E).
    6
    See https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-
    center/faqs/qdro-overview.pdf.
    20-CA-90                                      6
    DECREE
    Mr. Hayes has failed to establish that the Qualified Domestic Relations
    Orders signed by the trial court should be vacated. Accordingly, we affirm the trial
    court’s ruling denying Mr. Hayes’ petition to vacate judgment.
    AFFIRMED
    20-CA-90                                 7
    SUSAN M. CHEHARDY                                                             CURTIS B. PURSELL
    CHIEF JUDGE                                                                   CLERK OF COURT
    MARY E. LEGNON
    FREDERICKA H. WICKER
    CHIEF DEPUTY CLERK
    JUDE G. GRAVOIS
    MARC E. JOHNSON
    ROBERT A. CHAISSON                                                            SUSAN BUCHHOLZ
    STEPHEN J. WINDHORST
    FIRST DEPUTY CLERK
    HANS J. LILJEBERG
    JOHN J. MOLAISON, JR.                          FIFTH CIRCUIT
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    NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
    I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
    IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
    DECEMBER 2, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
    NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
    20-CA-90
    E-NOTIFIED
    23RD JUDICIAL DISTRICT COURT (CLERK)
    HON. JASON VERDIGETS (DISTRICT JUDGE)
    DASHAWN P. HAYES (APPELLANT)
    MAILED
    DEMETRIE E. FORD (APPELLANT)            DEBORAH E. DUGAS (APPELLEE)
    ATTORNEY AT LAW                         ATTORNEY AT LAW
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    GRETNA, LA 70053                        RESERVE, LA 70084
    

Document Info

Docket Number: 20-CA-90

Judges: Jason Verdigets

Filed Date: 12/2/2020

Precedential Status: Precedential

Modified Date: 10/21/2024