1. Divorce--equitable distribution--retirement account--findings
The trial court did not err in an equitable distribution action involving a retirement account
by finding that the parties had advised the court that the claim had been resolved, that the parties
had corresponded about the final form of a Qualified Domestic Relations Order, and that neither
party had tendered a QDRO to the court on the date on which plaintiff died.
2. Divorce--equitable distribution--retirement plan--conclusions supported by findings
Findings by the trial court in an equitable distribution action that plaintiff's obligation to
divide his retirement account survived his death and that plaintiff's UNCC retirement plan was a
“government plan” were conclusions rather than findings, as the third-party defendant contended;
however, both conclusions were supported by findings.
3. Divorce--equitable distribution--retirement plan--QDRO--not required
A defendant in an equitable distribution action did not lose all rights she may have had in
plaintiff's retirement account where plaintiff and defendant separated, the parties agreed in a
consent order to a Qualified Domestic Relations Order granting defendant 20% of plaintiff's
retirement account, plaintiff changed the beneficiary on the account to his new wife, and the
QDRO was never entered. Plaintiff's UNCC retirement plan is a governmental plan exempt from
the anti-assignment provisions of ERISA; while a QDRO constituted an approved method of
effectuating a court-ordered equitable distribution of retirement benefits under the state statute,
that language is permissive rather than mandatory; and language in the consent order in this case
satisfied the statutory requirements. The purpose of the QDRO was to preserve defendant's
interest rather than to create it; while entry of a QDRO may have been contemplated, defendant
acquired an interest in the retirement plan upon execution of the consent order and that interest
existed separate from any prospective QDRO.
4. Divorce--equitable distribution--retirement account--waiver and laches
An equitable distribution defendant's claims to a retirement account were not barred by
waiver or laches where plaintiff and defendant separated; they agreed that defendant should have
20% of plaintiff's retirement account; a Qualified Domestic Relations Order to that effect was
discussed but never entered, plaintiff remarried and made his new wife (the third-party defendant)
the beneficiary of the account, and plaintiff passed away 5 years later. The record is not clear
regarding the failure to enter the QDRO, but the intention to relinquish a right, necessary for
waiver, has not been shown, and laches requires prejudice, which is also missing because
defendant is entitled to her 20% share even without a QDRO.
Essex, Richards, Morris, Jordan & Matus, P.A., by G. Miller
Jordan, for plaintiff-appellee Karl D. Patterson. No brief
filed.
James, McElroy & Diehl, P.A., by Richard A. Elkins and Paul P.
Browne, for defendant-appellee Carolyn D. Patterson.
Odom & Groves, P.C., by Thomas L. Odom, Jr., for intervenorand third-party defendant-appellant Paula S. Patters
on.
Cansler, Lockhart, Campbell, Evans, Bryant & Garlitz, P.A., by
George K. Evans, Jr., for third-party defendant-appellee
Teachers Insurance Annuity Association - College Retirement
Equities Fund. No brief filed.
JOHN, Judge.
Intervenor and third-party defendant Paula S. Patterson
(Paula) appeals the trial court's order denying her motions for
judgment on the pleadings and summary judgment and granting
defendant's motion for entry of a Qualified Domestic Relations
Order (QDRO). We affirm.
Pertinent procedural and generally uncontested background
information includes the following: defendant Carolyn D. Patterson
(Carolyn) and Karl D. Patterson (Karl) were married 30 August 1963.
For many years during the marriage, Karl worked as a professor at
the University of North Carolina at Charlotte (UNCC). During his
employment at UNCC, Karl participated in a retirement plan offered
by the university (the UNCC retirement plan) and administered by
Teachers Insurance Annuity Association and College Retirement
Equities Fund (TIAA-CREF).
Carolyn and Karl separated 8 July 1986, Karl filed a divorce
complaint (the district court case) 22 February 1988, Carolyn
counterclaimed therein for equitable distribution, and the divorce
was granted 25 April 1988. Carolyn's equitable distribution claim
was subsequently settled by means of a “Consent Order and Judgment”
(the Consent Order) filed 18 March 1991.
Relevant provisions of the Consent Order included the
following:
The parties stipulate and agree that in order
to effectuate the terms of this Consent Order
and Judgment, a [QDRO] will need to be
prepared and entered by the Court so as togrant to [Carolyn] a twenty percent (20%)
interest in [Karl's] retirement plan with
TIAA-CREF, valued as of the date of the
separation of the parties. The parties
stipulate and agree that the Court shall
retain jurisdiction so as to enter such QDRO
when prepared.
. . . .
This Court expressly retains jurisdiction to
enter all such [QDRO's] as may be necessary to
preserve to [Carolyn] a twenty percent (20%)
interest in [Karl's] TIAA-CREF retirement
plan, further preserving to [Carolyn] all of
her rights to such retirement plan as set
forth under the provisions of N.C.G.S. § 50-
20[(b)(3) (1987)].
In addition, a Property Settlement Agreement (the Agreement)executed by Carolyn and Karl was incorporated by refere
nce into the
Consent Order. The Agreement contained the following pertinent
provisions:
[Karl] is a participant in a retirement plan
[the TIAA-CREF plan] . . . . The parties have
stipulated and agreed that [Carolyn] shall be
granted a twenty percent (20%) share of said
retirement plan, valued as of the date of
separation of the parties . . . . In order to
preserve to [Carolyn] her twenty percent (20%)
share of the TIAA-CREF [plan], it will be
necessary to have the Court enter a [QDRO] . .
. . [Carolyn] shall be responsible for the
preparation of said QDRO, and [Karl] shall
cooperate with [Carolyn] so that such
preparation may be done expeditiously. [Karl]
shall execute all such documents as may be
necessary to place such QDRO in effect.
. . . .
Except [as] otherwise provided herein, all the
provisions of this Agreement shall be binding
upon the heirs, next of kin, executors and
administrators of each party.
Meanwhile, Karl married Paula 16 February 1990 and named her
sole beneficiary of the UNCC retirement plan. Karl died intestate
19 November 1996. No QDRO had been entered pursuant to the
Agreement and Consent Order prior to Karl's death.
Paula was named administratix of Karl's estate 31 January1997. On 26 March 1997, Carolyn filed a motion in the dis
trict
court case, requesting “entry of a mandatory injunction requiring
[Karl's estate] to consent to the entry of the [QDRO]” envisioned
earlier. Carolyn thereby sought preservation of her twenty percent
interest in the proceeds of the UNCC retirement plan, valued as of
the date she and Karl separated, see N.C.G.S. § 50-20(b)(3) (1987)
(award of pension benefits shall be determined “using the
proportion of time the marriage existed . . . up to the date of
separation of the parties”); see also 1987 N.C. Sess. Laws ch. 663,
§§ 1, 2 (amendments to G.S. § 50-20(b)(3) effective 1 October 1987
and applicable to actions for absolute divorce filed on or after
that date (Karl's divorce action herein filed 22 February 1988)).
Carolyn's interest hereinafter will be denominated simply as
“twenty percent” without specifying that such interest must be
valued as of the date of separation.
On 21 May 1997, Paula initiated a separate action in superior
court (the superior court case) against Carolyn and TIAA-CREF,
“requesting a declaratory judgment as to the TIAA-CREF funds in
dispute.” In a subsequent motion to intervene in the district
court case, Paula alleged that, in consequence of Carolyn's March
1997 motion, “TIAA-CREF has not disbursed to [Paula] funds she is
entitled to as primary beneficiary” of the UNCC retirement plan.
A stay was entered in the superior court case 6 August 1997
pending resolution of Carolyn's motion in the district court case.
By order dated 29 December 1997, the district court (1) substituted
Karl's estate, Miller Jordan by that point having been designatedadministrator, as named plaintiff in lieu of Karl in the underlying
district court case; (2) allowed Paula to intervene therein; and,
(3) joined both Paula and TIAA-CREF as third-party defendants.
On 16 October 1998, the district court (hereinafter, the trial
court), upon rendering extensive factual findings, (1) granted
Carolyn's motion for entry of a QDRO and ordered Karl's estate “to
authorize TIAA-CREF to transfer to [Carolyn] 20% of the value of
the TIAA-CREF account;” (2) “declare[d] Carolyn . . . to be the
owner of a 20% share of the TIAA-CREF account;” (3) denied Paula's
previously submitted motions for judgment on the pleadings and
summary judgment; and, (4) retained jurisdiction over the cause for
the purpose of entering the QDRO. Paula timely appealed, citing
seven assignments of error.
[1]Preliminarily, we address Paula's contentions relating to
certain of the trial court's findings of fact (findings). Paula
first challenges the following portions of findings 9 and 13
“because these findings of fact are not supported by competent
evidence:”
9. Prior to [Carolyn's] claim for equitable
distribution being called for trial, [Karl and
Carolyn] advised the Court, through counsel,
that the claim had been resolved and
compromised. The parties' attorneys at that
time were Alan P. Krusch for [Karl] and Paul
A. Reichs for [Carolyn]. The parties, through
counsel, submitted a Consent Order and
Judgment to the Court which was entered on
March 18, 1991. . . .
. . . .
13. For a number of months following the
entry of the Consent Order and Judgment, the
parties' attorneys . . . corresponded with oneanother regarding the final form of the [QDRO]
as contemplated by the parties in their
settlement. Drafts of a proposed [QDRO] were
prepared and exchanged. [Carolyn] remained in
contact with her attorney throughout this
period, inquiring about the status of the
[QDRO]. Nevertheless, as of the date on which
[Karl] died . . ., neither party had tendered
to the Court a [QDRO] effecting the division
of the TIAA-CREF [plan] as agreed and ordered.
With respect to finding 9, Paula asserts
there is no affidavit from Carolyn, [or either
of the named attorneys] to support the alleged
conversation with the Court. Neither is there
a transcript to support these findings.
Paula's first argument borders on the frivolous.
The Consent Order itself, filed 18 March 1991 and signed by
Carolyn, Karl and Judge William G. Jones, the trial judge in the
case sub judice, expressly stated that the parties
advised the Court that all matters in
controversy between the parties with respect
to their claims for equitable distribution of
marital property have been settled,
compromised and agreed . . . .
This provision alone, attested to by Carolyn and Karl, suffices to
sustain the challenged portion of finding 9. See Brandon v.
Brandon, 132 N.C. App. 646, 652, 513 S.E.2d 589, 593 (1999)
(findings of trial court are conclusive on appeal if supported by
competent evidence).
Likewise, competent evidence in the record supports finding
13. Carolyn submitted copies of correspondence between original
counsel for Karl and Carolyn as part of her response to Paula's
request for production of documents (the document response). The
letters, dating from 1988 until April 1992, indicated counsel hadcommunicated regarding the QDRO for more than a year following
filing of the Consent Order, and that Carolyn had been in contact
with her attorney during this period as well. Included among the
correspondence was a proposed QDRO, and Carolyn stated in the
document response that, upon reviewing her attorney's files, she
had “determined that a number of drafts of the [QDRO] were
exchanged between the attorneys.”
While not necessarily insisting the foregoing fails to support
finding 13, Paula instead attacks the competency thereof, arguing
(1) Carolyn's document response was unverified and therefore not an
affidavit, and that, (2) even if considered an affidavit, Carolyn's
assertions in her document response constituted hearsay and the
attached documents were unauthenticated. These contentions lack
merit.
First, Paula neglected to raise the issues of hearsay or
authentication in the trial court, thereby failing to preserve such
matters for appellate review. See N.C.R. App. P. 10(b)(1) (“[i]n
order to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion . . . .”).
Moreover, assuming arguendo both preservation of the question
for our consideration and that an affidavit was indeed required,
the record contains an affidavit by Carolyn specifically
incorporating by reference her document response as well as the
attachments thereto.
To incorporate a separate document by
reference is to declare that the formerdocument shall be taken as part of the
document in which the declaration is made, as
much as if it were set out at length therein.
Booker v. Everhart, 294 N.C. 146, 152, 240 S.E.2d 360, 363 (1978).
Carolyn's document response therefore must be regarded as part of
her later affidavit. See id.
[2]Paula next maintains the following portions of findings 11
and 16 “are not findings of fact but conclusions of law [and are]
not supported by competent evidence”:
11. The above provisions, as part of the
Court's Consent Order and Judgment dated March
18, 1991, establish that [Karl's] obligation
to divide the TIAA-CREF account survived his
death, and that this obligation is binding
upon his heirs, including [Paula].
. . . .
16. . . . The UNCC plan was established by
the State of North Carolina for the employees
of its university, and therefore constitutes a
“governmental plan” within the meaning of the
Employees Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1002(32). Since
“governmental plans” are expressly excluded
from coverage by [ERISA], 29 U.S.C. §
1003(b)(1), the UNCC plan is not subject to
the requirements of ERISA.
(emphasis added).
Paula correctly characterizes the preceding italicized
portions as conclusions of law and we therefore treat them as such
on appeal. See Britt v. Britt, 49 N.C. App. 463, 470, 271 S.E.2d
921, 926 (1980) (“[a]lthough designated as a finding of fact, the
character of this statement is essentially a conclusion of law and
will be treated as such on appeal”). However, she further suggests
the italicized conclusions are not supported by the trial court'sfindings. See Brandon, 132 N.C. App. at 653, 513 S.E.2d at
594
(“trial court's findings of fact must support its conclusions of
law”). We do not agree.
The challenged conclusion in “finding” 11 is amply supported
by finding 10, which contains “[t]he above provisions” referred to
in finding 11. The reference is to sections of the Consent Order
and Agreement previously set out herein, and it appears the trial
court was simply interpreting those provisions in reaching its
legal conclusion.
The conclusion of law included in “finding” 16 describes the
UNCC retirement plan as a government plan and therefore exempt from
ERISA. However, this conclusion is supported by the remaining
portions of finding 16 reciting that the UNCC retirement plan “was
established by the State of North Carolina for the employees of its
university,” and by certain other findings unchallenged by Paula.
Finding 21, for example, states that
TIAA-CREF provides funding for a retirement
plan established pursuant to Chapter 135 of
the North Carolina General Statutes, which
covers professors employed at
UNCC, and finding 29 makes reference to Karl's “optional retirement
plan adopted by the University of North Carolina,” both supporting
the court's conclusion that the UNCC retirement plan was
governmental.
[3]We turn now to the heart of the instant appeal, Paula's
third assignment of error asserting
Carolyn lost all possible rights she may have
had to the TIAA-CREF funds by her failure to
have a QDRO entered prior to Karl's death . .. .
According to Paula, she “is entitled to the TIAA-CREF funds by
virtue of her status as sole beneficiary” of the UNCC retirement
plan, and further this Court should reverse the trial court and
remand for entry of judgment “declaring [Paula] as a matter of law
the sole owner of and solely entitled to the death benefits payable
from the TIAA-CREF annuities.” Paula is mistaken.
We first emphasize that the trial court correctly determined
that the UNCC retirement plan was a “governmental plan” not subject
to federal regulation under provisions of the Employee Retirement
Income Security Act, codified at 29 U.S.C. § 1001 et seq. (1994)
(ERISA). ERISA contains a preemption clause stating that the
provisions thereof “shall supersede any and all State laws insofar
as they may now or hereafter relate to any employee benefit plan,”
29 U.S.C. § 1144(a), unless specifically exempted from coverage.
Governmental plans are defined in the federal statute as
plan[s] established or maintained for its
employees by the Government of the United
States, by the government of any State or
political subdivision thereof, or by any
agency or instrumentality of any of the
foregoing.
29 U.S.C. § 1002(32). “Governmental plans” are pointedly exempted
from ERISA coverage, 29 U.S.C. § 1003(b)(1), and notably from the
“anti-assignment” provision allowing benefits to be distributed to
the spouse of a participant only pursuant to a court order meeting
certain specified criteria, 29 U.S.C. § 1056(d)(3)(A), i.e., a
QDRO.
The trial court's determination in finding 16 that the UNCCretirement “plan was established by the State of No
rth Carolina for
the employees of its university” has been discussed above.
Significantly, Paula has not maintained this portion of the finding
was not supported by competent evidence; it is therefore binding on
appeal. See Steadman v. Pinetops, 251 N.C. 509, 514-15, 112 S.E.2d
102, 106 (1960) (findings of fact to which no exceptions are made
“are presumed to be supported by competent evidence and are binding
on appeal”).
In addition, Paula concedes in her appellate brief that the
UNCC retirement plan was “established pursuant to Chapter 135 of
the North Carolina General Statutes.” Paula is referring to
N.C.G.S. § 135-5.1 (1999), originally enacted in 1971, which
provides:
(a) An Optional Retirement Program provided
for in this section is authorized and
established and shall be implemented by the
Board of Governors of The University of North
Carolina . . . for the benefit of
administrators and faculty . . . .
In short, the UNCC retirement plan is a governmental plan
exempt from the anti-assignment provisions of ERISA. See 29 U.S.C.
§§ 1002(32), 1003(b)(1); see also Roy v. Teachers Ins. and Annuity
Ass'n, 878 F.2d 47 (2nd Cir. 1989) (plan established by New York
State Legislature for benefit of professional employees of State
University of New York, with TIAA-CREF as the designated insurer,
was a governmental plan and thus exempt from ERISA); cf. In re
Marriage of Norfleet, 612 N.E.2d 939 (Ill. App. Ct. 1993)
(retirement account subject to ERISA may be “assigned or alienated”
only by means of a QDRO, 29 U.S.C. § 1056(d)(3)(A)). We therefore turn to applicable provisions of state law.
N.C.G.S. § 135-9 (1999) provides that
[e]xcept . . . in connection with a court-
ordered equitable distribution under G.S. [§]
50-20, the right of a person to a pension, or
annuity, or a retirement allowance, to the
return of contributions, the pension, annuity
or retirement allowance itself, any optional
benefit or any other right accrued or accruing
to any person under the provisions of this
Chapter . . . are exempt from levy and sale,
garnishment, or any other process whatsoever,
and shall be unassignable except as in this
Chapter specifically otherwise provided.
(emphasis added). Karl's interest in the UNCC retirement plan was
therefore assignable “in connection with a court-ordered equitable
distribution” pursuant to G.S. § 50-20. Id.
Compared with the rigid limitation on assignment in ERISA, see
29 U.S.C. § 1056(d)(3)(A), the broad language of G.S. § 135-9,
coupled with the relevant provisions of G.S. § 50-20 considered
below, indicate that assignment of a state retirement plan under
the North Carolina statutory scheme may be effected by court orders
other than a QDRO. In this context, we note Congress added the
anti-assignment exception for QDROs to ERISA in 1984. See
Retirement Equity Act of 1984, Pub. L. No. 98-397, § 104, 98 Stat.
1426, 1433-36 (1984) (codified at 29 U.S.C. § 1056(d)(3)(A)). G.S.
§ 135-9 was amended the next year to incorporate the anti-
assignment exception for “court-ordered equitable distribution[s].”
See 1985 N.C. Sess. Laws ch. 402, § 1. Had the General Assembly
wished to limit the exception to QDROs, it could have followed the
example presented in ERISA and employed much narrower language.
See Edmisten, Attorney General v. Penney Co., 292 N.C. 311, 316,233 S.E.2d 895, 898 (1977) (by modifying language from similar
federal act, “North Carolina legislature must have intended to
alter its meaning”).
The version of G.S. § 50-20 applicable to the instant case
provides that
[t]he distributive award of vested pension,
retirement, and other deferred compensation
benefits may be made payable:
. . . .
c. As a prorated portion of the benefits
made to the designated recipient at the time
the party against whom the award is made
actually begins to receive the benefits . . .
.
. . . The award shall be based on the vested
accrued benefit . . . calculated as of the
date of separation . . . .
. . . .
The Court may require distribution of the
[pension] award by means of a qualified
domestic relations order, as defined in
section 414(p) of the Internal Revenue Code of
1986. . . .
G.S. § 50-20(b)(3) (1987) (emphasis added).
Thus the plain meaning of the applicable version of the
statute, see Frye Reg'l Med. Ctr. v. Hunt, 350 N.C. 39, 45, 510
S.E.2d 159, 163 (1999) (if language of statute is clear, courts
must give statute its plain meaning), is that trial courts might
utilize QDROs to distribute pension awards, but that QDROs were not
the sole mechanism available. As our Supreme Court has stated,
the use of “may” generally connot
es permissive or
discretionary action and does not mandate or compel
a particular act.Campbell v. Church, 298 N.C. 476, 483, 259 S.E.2d 558, 563 (1979).
To summarize, while QDROs constituted an approved method of
effectuating a “court-ordered equitable distribution” of retirement
plan benefits under G.S. § 135-9, the governing statutory language
was permissive (presumably to allow trial courts to observe the
strictures of ERISA) rather than mandatory.
(See footnote 1)
In the case sub judice, the Consent Order, once signed and
entered by the trial judge, became a “court-ordered equitable
distribution” for purposes of G.S. § 135-9. See White v. White,
289 N.C. 592, 596, 223 S.E.2d 377, 380 (1976) (“[t]hat the order is
based on an agreement of the parties makes it no less an order of
the court once it is entered”). Carolyn and Karl therein
stipulated and agreed that [Carolyn] shall be
granted a twenty percent (20%) share of
[Karl's] retirement plan, valued as of the
date of separation of the parties . . . .
This language alone, incorporated into the Consent Order executed
by the trial court pursuant to an equitable distribution claim,
satisfied the requirements of G.S. § 135-9 to effectuate a valid
assignment of retirement benefits. No QDRO was required.
Although decided under ERISA, Evans v. Evans, 111 N.C. App.
792, 434 S.E.2d 856, disc. review denied, 335 N.C. 554, 439 S.E.2d
144 (1993), supports this conclusion. Robert and Peggy Evans
entered into a property settlement agreement which was incorporatedinto a consent judgment. Id. at 793, 434 S.E.2d at 858. The
agreement provided Peggy would “receive as alimony thirty percent
(30%) of all income from [Robert's] pension or retirement plan” at
his retirement. Id. at 794, 434 S.E.2d at 858. Although complying
with other alimony provisions during his employment, Robert failed
to make the required payments upon his retirement and Peggy filed
motions seeking an order of compliance and that Robert be held in
contempt. Id.
Robert's private pension plan was subject to ERISA and he
argued that any purported assignment thereof was void under the
version of the federal statute (not containing the current
exemption allowing assignment by means of a QDRO) in effect at the
time the parties' agreement was executed. Id. at 795, 434 S.E.2d
at 858-59. This Court, however, construed the applicable version
of ERISA as containing
an implied exemption to the anti-assignment
provision . . . for domestic relation decrees
authorizing the transfer of retirement
benefits in satisfaction of support
obligations. . . .
Since the 1981 [consent] judgment in the
case at bar and the implied exception followed
by the majority of jurisdictions, Congress has
amended the anti-alienation clause of ERISA.
Known as the Retirement Equity Act of 1984 . .
. Congress amended [29 U.S.C.] § 1056(d) by
creating an exception for certain domestic
relations orders . . . which were determined
to be qualified domestic relations orders . .
. . The 1984 amendment, however, has no
retroactive effect on the 1981 judgment at
issue.
Id. at 796-97, 434 S.E.2d at 859-60.
Thus, under the earlier version of ERISA which did notspecifically require a QDRO to assign an interest in pension
benefits, the simple language of the parties' agreement
incorporated into a court order adequately secured Peggy's interest
in Robert's pension. Robert was ordered to pay Peggy one-third of
his retirement payout. Id. at 797, 434 S.E.2d at 860.
Similarly, in the instant case, because the applicable
versions of G.S. §§ 135-9 and 50-20(b)(3) did not mandate entry of
a QDRO to assign a retirement plan, the plain language of the
Agreement incorporated into the Consent Order served to secure
Carolyn's twenty percent interest.
[S]eparation agreements incorporated into
court decrees are construed and interpreted in
the same manner as other contracts,
Britt, 49 N.C. App. at 468, 271 S.E.2d at 925, as are assignment
clauses, Martin v. Ray Lackey Enterprises, 100 N.C. App. 349, 354,
396 S.E.2d 327, 330 (1990).
When parties use clear and unambiguous terms,
a contract can be interpreted by the court as
a matter of law.
Id.
The provisions of the Agreement are indeed “clear and
unambiguous,” id.: Carolyn “shall be granted a twenty percent
(20%) share of [Karl's] retirement plan.” Further, while entry of
a QDRO may have been contemplated, the Consent Order reflects that
Carolyn's interest existed separate from any prospective QDRO:
In order to preserve to [Carolyn] her said
twenty percent (20%) share of the TIAA-CREF
Retirement Plan, it will be necessary to have
the Court enter a [QDRO] . . . .
The purpose of the QDRO was to “preserve” Carolyn's interest, notcreate it.
Parenthetically, we observe that insertion of the QDRO
provision at issue may have been for the purpose of avoiding the
circumstance in Evans. The pension benefits therein were disbursed
to the husband, who in turn was required to disburse a thirty
percent share to his former spouse. Evans, 111 N.C. App. at 794,
434 S.E.2d at 858. Use of a QDRO permits pension benefits to flow
directly from the insurer to both parties in the proportion ordered
by the court, thereby “preserving” the rights of the assignee
(herein Carolyn) without having to rely upon the assignor to
effectuate distribution.
In any event, we conclude it to be immaterial whether a QDRO
was entered before Karl's death because Carolyn acquired an
interest in the UNCC retirement plan upon execution of the Consent
Order. Paula's argument therefore fails. As the trial court
properly stated in its 16 October 1998 order,
by contractually agreeing to transfer 20% of
the TIAA-CREF accounts to [Carolyn], and by
consenting to the entry of the March 18, 1991
Order, [Karl] transferred at that time all of
his right, title and interest in that portion
of the accounts to [Carolyn]. Any interest
that Paula Patterson had in the accounts as of
the date of [Karl's] death was taken subject
to the terms of the Court's prior order.
[4]Having determined Carolyn retained an interest in the UNCC
retirement plan, we now consider whether the trial court erred in
granting Carolyn's motion for entry of a QDRO to facilitate payment
thereof. Addressing this issue, Paula contends in her remaining
assignments of error that “Carolyn's claims are barred by theequitable doctrines of waiver and laches,” and that the trial court
lacked subject matter jurisdiction (1) “to substitute the estate of
Karl as a defendant;” (2) “to enter a QDRO;” or, (3) “to require
the estate to enter into a QDRO after Karl's death.” Paula's
concluding arguments are unavailing.
Although more than five years passed between entry of the
Consent Order and Karl's death, we cannot agree with Paula that
failure to enter the QDRO “was due solely to [Carolyn] or
[Carolyn's] then attorneys' negligence and neglect.” The trial
court rendered no such finding, but, as noted above, simply recited
in finding 13 that counsel for Karl and Carolyn had “corresponded
with one another” for “a number of months” with no QDRO being
entered. Moreover, although the Agreement designated Carolyn and
her attorney as “responsible for the preparation of said QDRO,”
Karl and his attorney were similarly required to “cooperate” so
that the QDRO might be prepared “expeditiously.”
Frankly, the record is not clear regarding the reasons
underlying failure of the QDRO to be entered prior to Karl's death,
five years after execution of the Consent Order. Nonetheless, it
goes without saying that the present controversy could have been
avoided in its entirety had original counsel diligently fulfilled
their responsibilities.
In any event, the doctrines of waiver and laches do not serve
to block the trial court's belated directive that a QDRO be
entered. Waiver
is always based upon an express or implied
agreement. There must always be an intentionto relinquish a right, advantage, or benefit.
The intention to waive may be expressed or
implied from acts or conduct that naturally
lead the other party to believe that the right
has been intentionally given up.
Klein v. Insurance Co., 289 N.C. 63, 68, 220 S.E.2d 595, 598-99
(1975) (emphasis added). Paula has presented no evidence of an
intent on Carolyn's part to waive her right under the Consent Order
and Agreement to entry of a QDRO or of any action by Carolyn that
would imply such intent, but rather insists that “neglect” by
Carolyn caused the failure of the QDRO to be entered. Waiver is
thus not present herein.
Regarding laches, this Court has held that
[t]he defense of laches will bar a claim when
the plaintiff's delay in seeking a known
remedy or right has resulted in a change of
condition which would make it unjust to allow
the plaintiff to prosecute the claim. . . .
. . . The doctrine of laches, however, is not
based upon mere passage of time; it will not
bar a claim unless the delay is (I)
unreasonable and (ii) injurious or prejudicial
to the party asserting the defense.
Cieszko v. Clark, 92 N.C. App. 290, 297, 374 S.E.2d 456, 460
(1988).
Although the party asserting laches bears the burden of proof
thereon, Harris & Gurganus v. Williams, 37 N.C. App. 585, 588, 246
S.E.2d 791, 794 (1978), neither Paula's appellate brief nor the
record contain any indication of prejudice. Given our holding that
Carolyn is entitled to her twenty percent share of the UNCC
retirement plan even absent a QDRO, moreover, we cannot envision
how the trial court's order requiring a QDRO to be entered wouldwork any prejudice to Paula. With or without a QDRO, Paula would
receive only her eighty percent share of the proceeds of the UNCC
retirement plan. Absent prejudice, there can be no defense of
laches. Cieszko, 92 N.C. App. at 297, 374 S.E.2d at 460.
Regarding Paula's challenge to the trial court's subject
matter jurisdiction, we note initially that she has failed in her
appellate brief to support her argument with relevant citations to
authority. See N.C.R. App. P. 28(b)(5) (“[a]ssignments of error .
. . in support of which no . . . authority [is] cited will be taken
as abandoned”); see also Peace River Electric Cooperative v. Ward
Transformer Co., 116 N.C. App. 493, 510, 449 S.E.2d 202, 214 (1994)
(this Court not required to consider assignments of error
unsupported by citation to authority), disc. review denied, 339
N.C. 739, 454 S.E.2d 655 (1995).
In any event, suffice it to point out that the Consent Order
expressly provided that the trial court retained jurisdiction to
enter a QDRO:
[this court] retain[s] jurisdiction to enter
such Qualified Domestic Relation Order or
Orders as may be necessary to effectuate the
terms of the agreement of the parties.
. . . .
This cause is retained pending further orders
of the Court.
See also Wildcatt v. Smith, 69 N.C. App. 1, 11, 316 S.E.2d 870, 877
(1984) (trial court “retains jurisdiction to correct or enforce its
judgment”).
Further, the Agreement executed by Karl and Carolyn andincorporated by reference into the Consent Order denominated
not
only the grant of Carolyn's twenty percent interest in the UNCC
retirement plan, but also expressly anticipated the court's entry
of a QDRO to “preserve” that interest. Significantly, the
Agreement also stated that
all the provisions of this Agreement shall be
binding upon the heirs, next of kin, executors
and administrators of each party,
thus binding Karl's estate to the terms of the Consent Order.
To conclude, any assignments of error or arguments not
addressed are overruled, and the order of the trial court appealed
from is affirmed.
Affirmed.
Chief Judge EAGLES and Judge HUNTER concur.
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