Douglas S. Johnston v. Lorrie Johnston

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2019 VT 34
No. 2018-147
Douglas S. Johnston Supreme Court
On Appeal from
v. Superior Court, Windsor Unit,
Family Division
Lorrie Johnston December Term, 2018
Elizabeth D. Mann, J.
Melvin Fink, Ludlow, for Plaintiff-Appellant.
Emily S. Davis and Boolie Sluka (On the Brief) of Davis Steadman Ford & Mace, LLC,
White River Junction, for Defendant-Appellee.
PRESENT: Reiber, C.J., Skoglund and Robinson, JJ., and Teachout, Supr. J. and Howard,
Supr. J. (Ret.), Specially Assigned
¶ 1. SKOGLUND, J. This case asks us to examine that strange procedural device, the
Qualified Domestic Relations Order (QDRO), and how it intersects with the statute of limitations
for actions on judgments. The parties divorced in November 2004. As part of the divorce, the
court ordered wife to transfer funds from her retirement account to husband. In 2006, the court
approved a proposed QDRO to effectuate the transfer of said funds. The order was never
“qualified,” however, because there was no money in the retirement account that wife identified.
The court approved another proposed QDRO in February 2007 specifying a different retirement
account identified by wife. In August 2017, husband filed a motion to enforce, asserting that the
owed funds were never transferred to him and that there were no funds in the second retirement
account that wife identified. The court denied husband’s motion to enforce, finding it barred by
the eight-year statute of limitations for actions on judgments. As set forth below, we do not
consider husband’s attempt to effectuate a transfer of these retirement funds by QDRO to be an
action on a judgment, and we therefore reverse and remand.
¶ 2. We begin with an overview of the relevant law governing the division of retirement
accounts. A court must engage in a two-step process to divide retirement accounts governed by
the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461.
It first “enters a substantive order which equitably divides and assigns the parties’ property.”
Breslin v. Synnott, 2012 VT 57, ¶ 6, 192 Vt. 79, 54 A.3d 525. It then enters a Domestic Relations
Order (DRO) “directing the [retirement] plan administrator to make certain specified payments to
the ex-spouse.” Id. (citations omitted). We have described a DRO as a “procedural device that
enforces an underlying substantive order.” Id. ¶ 7; see also 2 B. Turner, Equitable Distribution of
Property § 6:20 (4th ed. 2019) (expressing similar sentiment).
¶ 3. “The [retirement] plan administrator determines whether the order is qualified—
whether a Q can be added to the DRO—subject to the right of either spouse to appeal the decision
to a state or federal court.” 2 Turner, supra, § 6:20. This results in a QDRO.1 “A qualified order
assures that a spouse receives benefits as an alternate payee.” Ochoa v. Ochoa, 71 S.W.3d 593,
596 (Mo. 2002) (citing 29 U.S.C. § 1056(d)(3)(A), (J)).
¶ 4. As Turner recognizes, “the requirements for qualification are difficult to meet.” 2
Turner, supra, § 6:20; see also Larimore v. Larimore, 362 P.3d 843, 849 (Kan. Ct. App. 2015)
(explaining that “valid QDRO must meet the comprehensive requirements of at least three federal
acts, as amended: the Internal Revenue Code, [ERISA], and the Retirement Equity Act of 1984”
1
For convenience and to avoid confusion, we refer to a DRO in some portions of this
opinion as a “proposed QDRO,” mindful that an order is not actually a QDRO until it is approved
by a plan administrator.
2
(alteration in original) (quotation omitted). When a plan receives a proposed QDRO, the plan
administrator must “promptly notify the participant and each alternate payee of the receipt of such
order and the plan’s procedures for determining the qualified status of domestic relations orders.”
29 U.S.C. § 1056(d)(3)(G)(i)(I). “[W]ithin a reasonable period after receipt of such order,” the
plan administrator must “determine whether such order is a qualified domestic relations order and
notify the participant and each alternate payee of such determination.” Id. § 1056(d)(3)(G)(i)(II).
¶ 5. “If the administrator refuses to qualify the DRO, the court may amend it to address
the source of the problem.” 2 Turner, supra, § 6:20 (explaining that “[e]ssentially all jurisdictions”
agree, with respect “to revision of DROs and other attempts to draft qualified orders dividing
retirement benefits,” that “[t]hose orders are subject to future changes without limitation, so long
as the modification only enforces the court’s previous substantive order, without modifying that
order’s substantive terms”). As indicated, “the modern rule is that the court may modify its DRO
any number of times.” Id. This modifiability is a strength of a DRO’s “limited status . . . as [a]
procedural device[] rather than [a] substantive order[].” Id. “[T]he weakness is that the DRO
cannot reach a result inconsistent with the underlying substantive order.” Id.
¶ 6. “In short,” Turner explains:
when dividing retirement benefits, the law of equitable distribution
is not playing on its home field. Because of ERISA, pension issues
are litigated in material part upon the home field of the plan
administrator. . . . Because the plan administrator is not required to
play by normal state court rules, normal state court procedures must
be adapted to the unique setting of DROs under ERISA.
Id.
¶ 7. With this overview in mind, we turn to the facts. The parties here divorced in
November 2004 after a twenty-five-year marriage. The court ordered an equal division of the
marital assets. Both parties had pensions and various retirement accounts. As relevant here, the
3
court ordered wife to transfer $27,655 from one or both of her retirement accounts to husband
within forty-five days of the date of the final divorce order.
¶ 8. No funds were transferred to husband within this period by QDRO or otherwise.
In mid-2006, husband’s attorney filed with the court a proposed QDRO, drafted by wife’s attorney
and edited by husband’s attorney, to effectuate the transfer. The court approved the proposed
QDRO in May 2006, identifying a particular retirement account from which a lump-sum payment
should be made to husband as the “alternative payee.” This order was then presumably sent to the
plan administrator to determine if it should be qualified; if it was deemed qualified, the plan
administrator would segregate the retirement funds and transfer them to husband’s retirement
account.
¶ 9. In September 2006, husband moved for enforcement of the divorce order and
contempt. He asserted that there were no funds in the retirement account that wife identified in
the proposed QDRO and, thus, there were no funds available to transfer to him. Wife’s attorney
acknowledged that wife had removed the funds from the retirement account she identified. She
proposed a modified QDRO that identified a different retirement account.
¶ 10. The parties then engaged in a back-and-forth over the proposed QDRO’s terms.
Husband objected to the use of a QDRO at all, arguing that he was entitled to an immediate lump
sum payment from wife. If a QDRO was warranted, husband argued that he was entitled to interest
given wife’s delay in transferring the funds to him. In late February 2007, at the parties’ request,
the court clarified that the final divorce order contemplated a transfer by QDRO from one
retirement account to another. The following month, the court approved the second proposed
QDRO drafted by wife’s attorney; the order stated it was intended as a QDRO requiring wife to
transfer the $27,655 from her retirement account to husband. The court denied husband’s request
to include accrued interest. The proposed QDRO, approved by the court, stated, among other
things, that the court “shall retain jurisdiction with respect to this Order to the extent required to
4
maintain its qualified status and the original intent of the parties as provided herein.” There is
nothing in the record to show that a plan administrator ever approved this proposed QDRO.
¶ 11. Ten years later, in August 2017, husband filed a motion to enforce the final
judgment of divorce. See generally V.R.F.P. 4.2 (describing process for filing post-judgment
proceedings in divorce actions, including motions to enforce). He recounted the history of the two
proposed QDROs. Husband averred that wife had forwarded the proposed QDRO to her plan
administrator and that husband had assumed that the transfer occurred. He stated that he had
recently learned that no retirement funds were transferred to him and that there were no funds
available for transfer in the second retirement account that wife identified in the 2007 QDRO.
Husband asked the court to compel wife to transfer the retirement funds to him with interest. Wife
opposed the motion, arguing that husband’s request was time-barred.
¶ 12. The court construed husband’s motion as seeking enforcement of the November
2004 final divorce order and concluded that it was time-barred. The court determined that the
eight-year limit for actions on judgments applied. See 12 V.S.A. § 506 (“Actions on judgments
and actions for the renewal or revival of judgments shall be brought by filing a new and
independent action on the judgment within eight years after the rendition of the judgment, and not
after.”). It found that unlike child-support orders, there was no specific statute shielding
enforcement actions in divorce cases from the eight-year limit set forth in § 506. See 15 V.S.A.
§ 606(a), (c) (addressing enforcement of child-support orders).
¶ 13. The court also looked to a Nevada case applying similar statutes. It found
compelling the Nevada Supreme Court’s holding that a judgment-action limitations period applied
to the enforcement of a divorce decree’s property distribution, regardless of whether enforcement
was brought “through motion practice or through an independent action.” Davidson v. Davidson,
382 P.3d 880, 881, 884 n.2 (Nev. 2016) (stating that court did “not distinguish between a motion
and an independent action to enforce a divorce decree because a party is not bound by the label he
5
puts on his papers,” and that “[a] motion may be treated as an independent action or vice versa as
is appropriate” (citation and brackets omitted)); but cf. Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt.
550, 956 A.2d 1117 (mem.) holding, as now made clear in 12 V.S.A. § 506, that to be an “action”
for renewal of judgment under § 506, party must file “new and independent suit commenced in
accordance with [Vermont Rule of Civil Procedure] 3” and motion does not suffice).
¶ 14. The Davidson court considered the timeliness of a wife’s action to enforce a
provision in a divorce decree requiring her ex-husband to pay her one-half of the equity in the
marital home. The court concluded that, “other than child support orders,” Nevada law did not
exclude family division orders from the state’s six-year limitation for actions on judgments.
Davidson, 382 P.3d at 883. It reasoned that had the legislature “intended to vest the courts with
continuing jurisdiction over property rights in divorce cases, it would have done so expressly.” Id.
at 884 (quotation and brackets omitted). The court emphasized the need for finality and certainty
and noted that the wife could have renewed her judgment and “avoid[ed] the harsh results that
could accompany the expiration of a statute of limitations.” Id. It found its holding “consistent
with several other states that apply limitations periods to enforcement of property distribution
provisions in divorce decrees.” Id. (citing cases).
¶ 15. Finally, the court in this case cited Iannarone v. Limoggio, where we held that the
doctrine of claim preclusion barred the wife from filing successive motions to enforce her ex-
husband’s obligation to pay her a certain sum under a final divorce order. 2011 VT 91, ¶ 23, 190
Vt. 272, 30 A.3d 655. It noted that in Iannarone, we described the wife’s second motion to enforce
the terms of the final divorce order as beginning “a new or ‘subsequent’ case” for claim preclusion
purposes and characterized the first motion to enforce as an “action.” Id. ¶ 18. The court here
reasoned that analogous policy considerations encouraged a similar result in this case because
claim preclusion and statutes of limitation both ensured timely finality of disputes. It concluded
that husband was trying to do by motion what would be barred by the statute of limitations for
6
actions on judgments. It found this inconsistent with Iannarone’s characterization of these types
of motions as beginning new cases. The court thus found husband’s motion to enforce barred by
§ 506. Husband appealed.2
¶ 16. Husband challenges the trial court’s decision on multiple grounds. He first argues
that the court erred in relying on claim preclusion to deny his request. He argues that claim
preclusion is inapplicable here because he lacked a prior opportunity to litigate his claim. Husband
further argues that § 506 should not apply because he filed a motion to enforce, not an “action on
a judgment.” He asserts that applying § 506 ignores the proposition, referred to favorably in our
cases, that a trial court retains indefinite jurisdiction to enforce its own orders. Husband also
contends that the Legislature and this Court have never expressly stated that § 506 governs motions
to enforce a court’s own order. Finally, husband cites various equitable principles and argues that
wife should not be allowed to benefit from repeatedly disobeying a court order.
¶ 17. First, we find it unnecessary to address claim preclusion because it is inapplicable
here and because the trial court did not rely on claim preclusion (other than by analogy) to deny
husband’s claim. We agree with husband, however, that this case is not like Iannarone, where one
spouse could have, and should have, raised her current theory of recovery in a prior proceeding
and failed to do so. Cf. 2011 VT 91, ¶ 13 (crediting husband’s argument that “wife’s 2005
enforcement action preclude[d] consideration of her 2008 enforcement action because the theory
of the 2008 proceeding was available to her and recognized in 2006”); see also 3 B. Turner, supra,
2
Wife moves to strike portions of husband’s brief and printed case, including, apparently,
husband’s motion to enforce and the affidavit that accompanied his motion. These materials are
plainly part of the trial court record and they are properly included in husband’s printed case. See
V.R.A.P. 10 (explaining that record on appeal includes, among other things, “the original
documents . . . and exhibits filed . . . in the superior court”); V.R.A.P. 30(a)(1) (describing contents
of printed case to include “relevant parts of the pleadings,” and “other parts of the record to which
the parties wish to direct the Court’s attention”). Wife also asks this Court to strike portions of
husband’s arguments that she contends rely on “allegations outside the evidentiary record.” The
Court has not relied on any evidence outside the record in reaching its decision. We therefore
deny wife’s motion as moot.
7
§ 9:19 (“Principles of issue and claim preclusion clearly apply to enforcement of property division
orders. Rulings on enforcement issues are binding if the same exact issue is raised by a later
motion.”). This is husband’s first attempt to enforce the 2007 proposed QDRO, brought when he
discovered that the transfer anticipated to occur pursuant to that order did not occur.
¶ 18. We note, moreover, that the statute of limitations for actions on judgments was not
at issue in Iannarone, nor did we discuss QDROs and their unique role in transferring retirement
funds. Instead, we considered if the trial court’s denial of the wife’s first motion to enforce
payment of a certain sum reflecting her share of the value of the marital home constituted “a
previous final judgment on the merits,” one of the elements of claim preclusion. 2011 VT 91,
¶ 15. We concluded that the first denial was a final appealable judgment. We rejected the wife’s
argument that claim preclusion was inapplicable because her second motion should be considered
a “subsequent case[] . . . in continuing litigation in the same action.” Id. It was in this context that
we stated that the wife’s second motion to enforce “began a new or ‘subsequent’ case” and that “it
was not a continuation of the action that [the] wife began when she filed her [first] motion to
enforce” three years earlier. Id. ¶ 18. We do not find this language particularly helpful here.
¶ 19. We thus turn to husband’s remaining arguments. We review de novo whether the
statute of limitations set forth in § 506 bars husband’s motion. See In re D.C., 2016 VT 72, ¶ 6,
202 Vt. 340, 149 A.3d 466 (“Questions of statutory interpretation are pure questions of law that
we review de novo.” (quotation and alteration omitted)). We need not decide in this case if, as a
general matter, a motion to enforce constitutes an “action on a judgment” for purposes of § 506.3
3
We note that we did not address this question in Breslin, 2012 VT 57, ¶ 10, although we
cited out-of-state cases standing for the proposition that courts have “ancillary” or “indefinite”
jurisdiction to enforce their orders. Cf. 3 B. Turner, supra, § 9:19 (“Property division orders are
subject to the normal statute of limitations on enforcement of judgments generally.”). In Breslin,
a wife argued that the court was modifying a final divorce order by requiring her to sign a waiver
to correct an existing QDRO and that it lacked jurisdiction to do so. We rejected the notion that
the court was modifying the order, finding that the court’s order was “necessary to enforce the
correct terms of the divorce decree, and the court had jurisdiction to issue it.” 2012 VT 57, ¶ 10.
8
We consider husband’s motion as one that seeks to effectuate the final judgment through entry of
an adjunct order and our decision turns on the unique nature of these procedural devices. We
conclude that husband’s request is not an “action on a judgment” under § 506 and that the court
therefore erred in finding it time-barred.
¶ 20. Other courts have reached similar conclusions under similar facts. See Jordan v.
Jordan, 147 S.W.3d 255, 262 (Tenn. Ct. App. 2004) (concluding that “the approval of [a] proposed
QDRO is adjunct to the entry of the judgment of divorce and not an attempt to ‘enforce’ the
judgment”); see also Joughin v. Joughin, 906 N.W.2d 829, 832-33 (Mich. Ct. App. 2017)
(similarly concluding that “act to obtain entry of a proposed QDRO is a ministerial task done in
conjunction with the divorce judgment itself” and it is “not an act to enforce a judgment or
obligation”). The reasoning of these courts is persuasive.
¶ 21. In Jordon, a wife was awarded a certain percentage of her husband’s employment
benefits in a final divorce order and the court directed the parties to prepare and submit a QDRO.
More than ten years later, the wife did so. Her former husband objected, arguing that entry of a
QDRO was barred by the ten-year statute of limitations applicable to actions on judgments. The
trial court ultimately agreed with the husband. It reasoned that the wife “could have tried to force
an immediate transfer,” and it found no statute that would “delay the finality” of final divorce
decrees with respect to the division of assets. Jordon, 147 S.W.3d at 258-59. The court likened
wife’s submission of a proposed QDRO “to a request for an execution or garnishment” and
observed that she had not tried to enforce the order through a contempt petition nor had she tried
to execute upon the judgment for more than ten years. The court also found that “the judgment
expired because it was not renewed within ten . . . years.” Id. at 259.
¶ 22. The appeals court reversed. It noted the dearth of case law on the “core question”
before it of “whether an attempt to secure the approval of and entry of a QDRO is ‘an action on a
judgment’ within the contemplation of” the ten-year statute of limitations for actions on judgments.
9
Id. (alterations omitted). After reviewing ERISA and existing authority, the court concluded that
the wife’s attempt to secure entry of a QDRO was not barred. Id. It rejected the notion “that the
submission of a proposed QDRO was akin ‘to a request for an execution or garnishment.’ ” Id.
¶ 23. The court recognized the difficulties inherent in drafting a DRO that would be
qualified and noted the absence of a statute of limitations for entry of a QDRO under ERISA. Id.
at 260 (“Under ERISA, there is no statute of limitations for the entry of a QDRO.”); see also 29
C.F.R. § 2530.206(c)(1) (explaining that DRO that meets qualification requirements “shall not fail
to be treated as a qualified domestic relations order solely because of the time at which it is
issued”). It emphasized that until a plan administrator approved a proposed QDRO, the wife’s
right to receive benefits under her husband’s plan—created by the final divorce order and
recognized by the proposed QDRO—was unenforceable under ERISA. Jordan, 147 S.W.3d at
261-62 (“[B]efore the plan administrator finds and reports that the domestic relations order is
qualified, the division [of funds] decreed by the court cannot be enforced—regardless of what the
court, the parties, or one of the parties, does or attempts to do—without resort to the provisions of
ERISA.”). The wife could not, for example, simply send a certified copy of the final divorce order
to her husband’s employer and successfully demand payment of her share of the husband’s
benefits. Id. “ERISA and the other pertinent statutes stand in the way of enforcement until the
plan administrator acts favorably upon the proposed QDRO submitted to it.” Id. at 262.
¶ 24. Because the plan administrator had not yet approved the proposed QDRO, “the trial
court’s decree [could not] be enforced against the ‘holder of the purse strings,’ ” and “[a]ny attempt
to ‘enforce’ the trial court’s validly entered division of [h]usband’s pension plan would be futile.”
Id. Based on its analysis, the court concluded that “the approval of the proposed QDRO [was]
adjunct to the entry of the judgment of divorce and not an attempt to ‘enforce’ the judgment.” Id.
It thus was not barred by the statute of limitations. Id. at 263.
10
¶ 25. The Michigan Court of Appeals reached a similar conclusion in Joughin, 906
N.W.2d at 832. In that case, a wife submitted a proposed QDRO approximately twelve years after
a divorce judgment, seeking to obtain her interest in her former husband’s profit-sharing annuity
plan. The husband objected, arguing that the filing was an attempt to enforce the final divorce
order and that it was barred by the ten-year statute of limitations for actions to enforce
noncontractual money obligations founded upon court judgments. The trial court entered the
QDRO and the appeals court upheld its decision.
¶ 26. The appeals court considered a QDRO “as part of the divorce judgment,” and thus,
it could not “be viewed as enforcing that same judgment.” Id. (quotation omitted). The court cited
Jordan and agreed with its conclusion that “ ‘the approval of the proposed QDRO is adjunct to the
entry of the judgment of divorce and not an attempt to ‘enforce’ the judgment.’” Id. (quoting
Jordan, 147 S.W.3d at 262).
¶ 27. As in Jordan, the court emphasized that entry of a proposed QDRO “did not compel
the payment of any money to plaintiff,” which further demonstrated that it was “not equivalent to
the enforcement of a noncontractual money obligation.” Id. (reiterating that proposed QDRO
would not be “enforceable until the plan administrator determines that the proposed QDRO is
‘qualified’ under ERISA”). It reasoned that compliance with the divorce court’s instructions on
securing a QDRO was merely compliance with “ministerial obligations under the judgment—
nothing more, noting less.” Id. at 833. “Though such actions ultimately will have the effect of
allowing one party to share in the retirement benefits of the other,” the court explained, “this
procedure is not an enforcement of a money judgment in the sense covered by the statute.” Id.4
4
Some states have enacted laws explicitly providing courts with continuing jurisdiction to
establish, maintain, or revise DROs to ensure that they are qualified, or stating that divisions of
retirement benefits are not final until a DRO is qualified by the plan administrator. See 2 B. Turner,
supra, § 6:20 (citing statutes and cases applying such statutes).
11
¶ 28. We reach a similar conclusion here. As discussed at the outset of this opinion, the
trial court’s division of the parties’ assets and its approval of a DRO is only the first step in
obtaining the transfer of retirement funds under ERISA; a spouse has no right to payment from a
particular retirement account until a plan administrator determines that a QDRO has been created,
that is, the court’s DRO is qualified. Thus, although husband was awarded the right to a particular
amount of retirement funds in the 2004 divorce order, he had no effective ability to enforce that
portion of the order through an “action on the judgment.” See Koerber v. Middlesex Coll., 136
Vt. 4, 7, 383 A.2d 1054, 1056 (1978) (explaining that “[w]here a plaintiff has obtained a valid and
final money judgment against a defendant, a debt for the amount so awarded is created,” and
“judgment creditor not only can maintain execution proceedings for the enforcement of the
judgment, but also can maintain an action upon the judgment”); see also Jordon, 147 S.W.3d at
263 (concluding that “[u]ntil the proposed QDRO is approved by the plan administrator and
entered by the trial court, the act of the trial court in dividing the pension plan is not complete and
hence not enforceable,” and describing division as “inchoate in nature”). “Enforcement” under
these circumstances would be a futile act.5
¶ 29. We agree with the courts above that “the approval of [a] proposed QDRO is adjunct
to the entry of the judgment of divorce and not an attempt to ‘enforce’ the judgment.” Joughin,
906 N.W.2d at 832 (quoting Jordan, 147 S.W.3d at 262). In reaching our conclusion, we are also
mindful of the modern rule that “the court may modify its DRO any number of times,” 2 B. Turner,
5
We note the availability of contempt proceedings under 15 V.S.A. § 603(b). Under
§ 603(b), “[i]f a person disobeys a lawful order of the Family Division made under the provisions
of this chapter and the order creates a financial obligation, including payment of child support,
spousal maintenance, or a lump sum property settlement, the person may be subject to proceedings
for civil contempt as provided by 12 V.S.A. § 122 and the provisions set forth herein.” See also
V.R.F.P. 16 (addressing civil contempt proceedings in family division cases). The availability of
contempt proceedings, however, does not show that husband had the ability to take an “action on
the judgment” under § 506, which requires the “filing of a new and independent action on the
judgment.”
12
supra, § 6:20, and that the court here expressly reserved jurisdiction to modify the DRO “to the
extent required to maintain its qualified status and the original intent of the parties as provided
herein.” We conclude that husband is entitled to seek modification of the DRO here.
¶ 30. We acknowledge that other courts have reached conclusions different from those
set forth above, albeit in a slightly different context. See Larimore, 362 P.3d at 850-51 (concluding
that division of retirement accounts in divorce decree was judgment subject to dormancy, and
judgment became dormant and was extinguished under Kansas law due to passage of time); In re
Marriage of Porterfield, No. 118,479, 2019 WL 847671, at *9 (Kan. Ct. App. Feb. 22, 2019)
(unpub. mem.) (reviewing holdings in out-of-state cases, including Jordan and Joughin, but
adhering to Larimore as it followed plain language of Kansas dormancy and revivor statutes)6; see
also Joughin, 906 N.W.2d at 834-39 (Jansen, J., dissenting) (arguing that entry of QDRO “is an
action to enforce a judgment of divorce and subject to the applicable statute of limitations,” and
that “claim” accrues when spouse “became entitled to initiate proceedings to secure her [or his]
right to enter a QDRO,” and agreeing with Larimore, 362 P.3d at 843, that “while federal law
[does] not provide a statute of limitations for the filing of a QDRO, the plaintiff could only obtain
a QDRO if she had a valid right or interest created under Kansas domestic relations law to enforce”
(alteration omitted)); 2 Turner, supra, § 6:20 (stating, without elaboration, that because “a DRO is
6
We note that the Larimore court construed a dormancy statute, the application of which
was not limited to money judgments, rather than a statute of limitations for actions on judgments.
See 362 P.3d at 850-51 (noting that, under Kansas law, dormant judgments may be revived “by a
combination of (1) a motion for revivor, coupled with (2) a request for the immediate issuance of
an execution, garnishment or attachment” and noting that “[i]n this regard, dormancy and revivor
statutes are different than statutes of limitation and they demand strict compliance” (citation
omitted)). It held that “court-ordered transfers of retirement benefits are amenable to execution
and, thus, they are not exempt from the dormancy statute.” Id. at 851. The court reasoned that the
wife “was required to execute upon the judgment by filing a QDRO in order to enforce her right
to receive benefits under [her husband’s] retirement accounts.” Id. Because she waited “until after
the district court’s judgment dividing the parties’ retirement benefits was extinguished by the
dormancy statute before attempting to procure a QDRO,” however, the court concluded that the
wife was left “without a judgment to enforce.” Id. at 852.
13
generally viewed as an enforcement device, the better option [is] to hold that a motion for entry of
a DRO is governed by the state’s normal statute of limitations on enforcing judgments”).7 We
simply disagree with the conclusion that entry of a DRO is an attempt to enforce the underlying
final divorce order or that the filing of a DRO constitutes an execution upon the judgment. As
previously discussed, the right to obtain the retirement funds awarded in a final divorce order
depends upon the approval of a third-party, the plan administrator. There is no “judgment” to
execute or enforce until that step has been taken.
¶ 31. Thus, for the reasons stated above, we reverse the trial court’s decision and remand
for entry of a revised DRO. We do not decide at this juncture if the revised DRO should include
interest. We note, however, that “[s]ome courts are starting to award interest on QDROs and
similar orders transferring retirement benefits.” 2 Turner, supra, § 6:20 (citing cases). We leave
it to the trial court to decide this question in the first instance on remand.
Reversed and remanded for additional proceedings consistent with this opinion.
FOR THE COURT:
Associate Justice
7
We note that Davidson, cited by the trial court, does not involve entry or modification of
a QDRO and the cases cited by the Davidson court similarly do not involve QDROs. See
Davidson, 362 P.3d at 884 n.3. We thus do not rely on this case here.
14