1. Divorce_equitable distribution--retirement plan_fees and penalties for
transfer_correction of omission
The trial court did not err by ordering a divorce plaintiff to pay all of the fees and
penalties associated with a lump sum transfer of funds from defendant's retirement account.
There were three qualified domestic relations orders concerning division of the parties'
retirement plans, with taxes or fees assigned in the last two but not the first. This suggests that
the failure to assign taxes and fees in the first was an oversight; moreover, the amount at stake
stems from incidental fees or penalties, not from the underlying substantive matter. The court's
conclusion was supported by the findings and was a proper correction under Rule 60(a).
2. Divorce_equitable distribution--retirement plan_formula for share of
benefit_unclear
There was credible evidence before the court in a divorce proceeding to support a finding
about the calculation of additional pension payments from plaintiff to defendant. An order in the
matter provided evidence of a telephone conversation with the company administrator in which
the actuarial formula was set out.
3. Divorce_equitable distribution--
early retirement benefit_calculation_evidence
insufficient
Findings in an equitable distribution order regarding a pension benefit were not supported
by the evidence where plaintiff retired at an earlier date than anticipated due to a disability. The
correct value of defendant's share of plaintiff's pension as of the separation date is unclear from
the evidence in the record.
4. Divorce_equitable distribution--
retirement distribution_change in stock market
The trial court did not abuse its discretion in a divorce proceeding by denying a Rule
60(b) motion to set aside a judgment regarding a pension distribution. A change in the value of
the stock market over the course of 5 years does not amount to an extraordinary or even
unforeseeable circumstance.
Mills & Economos, L.L.P., by Larry C. Economos, for plaintiff-
appellant.
W. Gregory Duke for defendant-appellant.
HUNTER, Judge.
Edna Barfield Lee (plaintiff) appeals from an order entered
20 May 2003 pursuant to a hearing on a Rule 60(b)(6) motion. On
appeal, plaintiff contends error in the trial court's order that
plaintiff pay all fees and penalties associated with the lump sum
transfer of funds from Linwood Earl Lee Sr.'s (defendant)
retirement account, and that plaintiff pay defendant an additional
sum of money monthly from her pension benefits. Defendant appeals
from the same order, contending the trial court abused its
discretion in denying defendant's Motion to Set Aside Judgment
pursuant to Rule 60. As we find insufficient evidence to support
the trial court's conclusion as to the additional payments by
plaintiff, we reverse the order in part and remand for additional
findings.
On 11 June 1998, plaintiff and defendant entered into a
consent order to settle all outstanding claims between the parties
pursuant to their separation and divorce. This consent order
included settlement of all equitable distribution claims and
specified that [t]he parties' respective retirement plans shall be
divided pursuant to qualified domestic relations order (QDRO) as
outlined and detailed in the Findings of Fact contained in this
Order.
The relevant findings of fact specified preparation of three
QDROs, the first and third of which were contested by defendant in
this action. The first (QDRO 1), divided defendant's retirement
account. Plaintiff, on the five-year anniversary of the account,1 January 2003, was to receive the greater of $402,393.00
(hereinafter lump sum payment) or one-half of whatever monies
were in the account on that date. The third QDRO (QDRO 3)
provided defendant with thirty-six percent of the plaintiff's
monthly pension upon her retirement. After review and consent of
the respective parties of each order, QDRO 1 was entered on 27 June
1998 and QDRO 3 was entered on 27 June 2001. QDRO 2 was not
contested by either party.
On 10 March 2003, defendant filed a Motion in the Cause for
Rehearing, and in the alternative, a Rule 60 Motion to Set Aside
the terms of the equitable distribution settlement. Plaintiff
responded with a motion for contempt. The trial court heard the
respective motions on 23 April 2003 and entered an order on 20 May
2003 which: (1) denied defendant's request for judgment pursuant
to his Rule 60(b) motion; (2) granted plaintiff's motion for
contempt for failure to sign the necessary forms to effectuate the
distribution of the lump-sum payment; (3) ordered all fees and
penalties associated with the transfer of the lump sum payment to
be paid by plaintiff; and (4) ordered plaintiff to pay defendant
the difference between the actual amount received from plaintiff's
pension plan and thirty-six percent of her current monthly benefit,
a sum of $326.96 per month. Both parties appeal from this order.
[1] Plaintiff contends in her first assignment of error that
the trial court erred in ordering plaintiff to pay all fees and
penalties associated with the lump sum transfer of funds from
defendant's retirement account. Plaintiff argues that the trial
court's conclusion of law was not supported by the evidence and
findings of fact. We disagree.
It is well settled in this jurisdiction that when the trial
court sits without a jury, the standard of review on appeal is
whether there was competent evidence to support the trial court's
findings of fact and whether its conclusions of law were proper in
light of such facts. Shear v. Stevens Building Co., 107 N.C. App.
154, 160, 418 S.E.2d 841, 845 (1992). While findings of fact by
the trial court in a non-jury case are conclusive on appeal if
there is evidence to support those findings, conclusions of law are
reviewable de novo. Id.
Here, plaintiff contends there was no competent evidence to
support the trial court's findings of fact No. 8 and 9. The trial
court found in No. 8 that: [t]he QDRO which provides for the
distribution of $402,393.00 to Plaintiff does not specify who will
be assessed any taxes and/or surrender penalties. A review of
QDRO 1 supports such a finding, as the order contains no mention of
taxes or penalties. Plaintiff also contends there is no evidence
to support Finding No. 9: [t]here will be no tax consequences asa result of the transfer, but there will be a surrender fee of
approximately $10,000.00. Here, after a careful review by this
Court of both the record on appeal and the trial transcript, it
appears that there is no competent evidence to support Finding No.
9. None of the evidence before the trial court addressed the issue
of surrender fees, nor established the lack of tax consequences.
However, this Court concludes upon de novo review that Finding
No. 8 supports the trial court's correction of the order in
concluding that any fees, penalties, etc[.] associated with the
transfer of the $402,393.00 to Plaintiff shall be paid by
Plaintiff.
'[T]he court has inherent power to amend
judgments by correcting clerical errors or
supplying defects so as to make the record
speak the truth. The correction of such
errors is not limited to the term of court,
but may be done at any time upon motion, or
the court may on its own motion make the
correction when such defect appears.'
Snell v. Board of Education, 29 N.C. App. 31, 32, 222 S.E.2d 756,
757 (1976) (quoting Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d
791, 795 (1958)). Although Rule 60(a) clearly grants the
authority to the trial court to make clerical corrections, our
appellate courts have consistently rejected attempts to change
substantive provisions under the guise of making clerical changes.
Buncombe County ex rel. Andres v. Newburn, 111 N.C. App. 822, 825,
433 S.E.2d 782, 784 (1993). A change in an order is considered
substantive and outside the boundaries of Rule 60(a) when it alters
the effect of the original order. Id. In Ice v. Ice, this Court found that an award of interest on
a distributive award was not a substantive change, as [t]he
subject of the litigation . . . was the amount of the distributive
award; interest was only incidental and tangential[.] Ice, 136
N.C. App. 787, 792, 525 S.E.2d 843, 847 (2000). The Ice Court
found the situation analogous to that in Ward v. Taylor, 68 N.C.
App. 74, 314 S.E.2d 814 (1984), where a previous order was amended
to allow a surveyor to recover costs associated with the surveying
work done for trial, on the grounds that the '[initial] failure to
allow and tax costs may be considered an oversight or omission in
an order.' Ice, 136 N.C. App. at 792, 525 S.E.2d at 846 (quoting
Ward, 68 N.C. App. at 80, 314 S.E.2d at 819-20).
Here, fees and penalties arising from the transfer of the lump
sum payment were not assigned to either party or addressed in QDRO
1. However, such an assignment of taxes was made in both QDROs 2
and 3. The failure to include such an assignment in QDRO 1, while
including it in QDROs 2 and 3, suggests that such an exclusion was
an oversight or omission. Additionally, as in Ice, the issue of
fees or taxes related to the distribution do not affect the
substance of the award itself. [T]he amount of money involved is
not what creates a substantive right; rather, it is the source from
which this money is derived. Ice, 136 N.C. App. at 792, 525
S.E.2d at 847. Here, any amount at stake would stem from the
incidental fees or penalties, not from the underlying substantive
matter of the distributive award. Accordingly, the trial court'sconclusion of law was supported by the findings of fact and was a
proper correction effectuated through Rule 60(a).
[2] Plaintiff contends in her second assignment of error that
the trial court's order of additional pension payments by plaintiff
to defendant was not properly supported by evidence and findings of
fact, and that the trial court lacked authority to make such an
order. The trial court ordered that:
4. Plaintiff shall pay to Defendant the
difference between the $118.00 per month
Defendant currently receives and 36% of her
current monthly benefit, which is $1,236.00.
In other words, $1,236.00 x 36% = $444.96-
118.00 = $326.96. Plaintiff shall pay the sum
of $326.96 per month commencing June 1, 2003.
Plaintiff argues that the evidence recited in Finding No. 4,
regarding the formula used by the plan's administrators in
calculation of the amount sent to defendant was not properly before
the trial court. She therefore contends it was not competent
evidence to support Finding No. 4 or, by extension, Findings No. 15
and 16, which rely upon it. Finding No. 4 states:
4. That DuPont determined Plaintiff's
accrued retirement benefits as of December 31,
1997 to be $1,051.98 per month. Plaintiff
subsequently left the employment of DuPont on
disability as of November 30, 2001. DuPont
subsequently determined that Defendant's
thirty-six percent (36%) of the monthly
benefit was $118.00 per month. DuPont's
Benefits Department arrived at this figure by
multiplying the monthly benefit of $1,051.98
by the lesser of the Plaint's [sic] conversion
factor for determining actuarial equivalence
(32.99042%) or the Plan's early retirement
reduction factor (100%) = $1,501.98 [sic] x
32.99042% = $347.05. This amount was thenmultiplied by the 36% specified in the Order;
#347.05 x 36% = $124.94. This amount is
payable over the Defendant's lifetime. The
plan's conversion factor for converting a
payment from the Plaintiff/participant's
lifetime to the Defendant/alternate payee's
lifetime (based on the birthdates of
participant and alternate payee) is 93.81626%.
The resulting benefit payable to Defendant is
$124.94 x 93.81626% = $117.21. This amount
was rounded up to $118.00 per month.
A trial court may take judicial notice of earlier proceedings
in the same cause. In re Isenhour, 101 N.C. App. 550, 553, 400
S.E.2d 71, 73 (1991). Here, an order filed 22 October 2002 in this
matter provided evidence of a telephone conversation with a Dupont
administrator, in which the actuarial formula used by Dupont for
calculating defendant's share of the benefit was set out. As there
was credible evidence properly before the trial court to support
Finding No. 4, it is therefore deemed conclusive.
[3] Findings No. 15 and 16, both of which are mixed findings
of fact and conclusions of law, are not supported by credible
evidence, however. The trial court found in No. 15 that:
15. In regard[s] to Defendant's motion
regarding the payment of thirty-six percent
(36%) of Plaintiff's monthly retirement
benefit to Defendant, the Court finds that
DuPont's benefits administrator's
calculations do not reflect 36% of the monthly
benefit of $1,051.98.
QDRO 3 awarded defendant thirty-six percent of plaintiff's
accrued pension benefit as follows:
1. Defendant/Alternate Payee is awarded
thirty-six (36%) of the Participant's accrued
benefit as of December 31, 1997, that being
the parties' date of separation.
2. The Defendant/alternate payee shall
receive his benefit payable in the form of a
monthly annuity over the alternate payee's
lifetime. The alternate payee shall begin
receiving his share of the accrued benefit
upon the Participant's retirement date.
The evidence submitted showed that as of the parties' separation
date, plaintiff's pension was valued at $1,051.98 per month,
however plaintiff took early retirement for health reasons and was
granted incapability pension benefits by her employer, Dupont, on
31 November 2001. The value of defendant's monthly annuity, as
calculated by the plan administrator at that time, was $118.00 per
month. Defendant moved for a contempt motion on 9 October 2002 for
plaintiff's failure to pay a full thirty-six percent of the pension
amount. An order on the matter was issued on 22 October 2002,
finding the parties had not yet received a satisfactory explanation
from the plan administrator as to the calculation of plaintiff's
retirement benefits and defendant's monthly share under QDRO 3, and
demanding a detailed and written explanation as to the calculation
be submitted to the trial court by the plan administrator by
November of 2002. The record on appeal does not reflect that any
such satisfactory explanation was submitted to the trial court on
this matter.
QDRO 3 specified that defendant's share was limited to the
value of the pension as of the retirement date, but that defendant
was not eligible to receive the share until plaintiff's retirement.
Plaintiff's retirement at a date earlier than anticipated by the
parties due to disability therefore raises an unanswered question
as to the correct valuation of the pension amount under the termsof QDRO 3. In light of plaintiff's early retirement, the correct
value of defendant's share of plaintiff's pension as of the
separation date is unclear based on the evidence of record. We
therefore find that Finding No. 15 is not supported by competent
evidence.
In Finding No. 16, the trial court stated:
16. Further the Court finds that the 36%
amount should be paid from Plaintiff's current
monthly benefit which is $1,236.00 per month
rather than the $1,051.98 per month as
specified in the Qualified Domestic Relations
Order.
QDRO 3 expressly specified that defendant's share of
plaintiff's accrued benefit was to be determined as of the date of
the parties' separation, although distributed upon retirement. An
increase in value which occurred after the date of separation due
to plaintiff's disability would therefore not be properly
considered in determining defendant's share of the pension. As
competent evidence does not exist to support this finding, the
trial court's conclusion that the benefit calculated was not
equitable and was inconsistent with QDRO 3 is in error.
As we find a lack of competent evidence in the record to
support Findings No. 15 and 16 and the resulting conclusions of
law, we reverse this portion of the order and remand for the trial
court to receive additional evidence and make further findings as
to the value of defendant's thirty-six percent share of plaintiff's
retirement benefits as of 31 December 1997.
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