Blaine v. Blaine

• Decision Date: 15 February 2008
• Docket Number: No. S-06-927.,S-06-927.
• Citation: 744 N.W.2d 444,275 Neb. 87
• Parties: Stephanie BLAINE, appellant, v. Dennis BLAINE, appellee.
• Court: Nebraska Supreme Court

744 N.W.2d 444

275 Neb. 87

Stephanie BLAINE, appellant, v.Dennis BLAINE, appellee.

No. S-06-927.

Supreme Court of Nebraska.

February 15, 2008.

Charles M. Bressman, Jr., of Anderson & Bressman Law Firm, P.C., for appellant.

Donald A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

Stephanie Blaine and Dennis Blaine were divorced in 1998, and a consent decree divided the marital estate.Dennis was responsible for preparing qualified domestic relations orders to divide certain investments that Dennis held.Dennis failed to do so for several years, and some of the investments depreciated.The question presented in this appeal is whether, when the investments were finally divided in 2006, Stephanie should have been awarded her share based on the existing value of the investments or the value of the investments on the date specified in the decree.

BACKGROUND

The parties were divorced by a consent decree entered in the district court on October 5, 1998.The decree divided a substantial marital estate and included, as relevant, the following three provisions:

US Software Profit Sharing 401K Plan—This Plan will be divided pursuant to a Qualified Domestic Relations Order, equally between the parties as of February 3, 1998.

Sitel Corporation 401K Plan—This account shall be divided pursuant to a Qualified Domestic Relations Order equally between the parties as of February 3, 1998.

. . . .

Intrust IRA Account . . . — This account shall be divided pursuant to a Qualified Domestic Relations order equally between the parties as of February 3, 1998.

Other asset divisions, not at issue in this case, more specifically stated that accounts were to be divided "based upon [their] value as of February 3, 1998."The decree further ordered the parties to "execute any and all documents necessary or proper to fulfill the terms and/or requirements of their Property Settlement Agreement as hereinabove set forth."

On December 15, 1998, Stephanie moved for an order requiring Dennis to, among other things, complete a qualified domestic relations order (hereinafter QDRO) with respect to each of the following accounts: US Software, Inc.; Sitel Corporation(Sitel); and Intrust Independent Trust Corporation(Intrust).A hearing was held the next day, at which Dennis' attorney explained that with respect to the QDRO's, he was "preparing those for division of those assets."The court noted on the record that Dennis' attorney "has agreed that he will now prepare the qualified domestic relations orders."Stephanie's ' counsel clarified that she wanted "to make sure that all documents reflect that February 3rd, 1998 date."She requested that "all of those documents reflect that date specifically for division of those assets pursuant to the decree."Dennis'counsel replied, "We have no problem with that."The court explained that there isn't going to be any more fooling around with this case.We are getting it over with.After today the only thing I expect to see are those qualified domestic relations orders which I will have to sign.Other than that, I do not expect to see the parties down here going over things that they have already been ordered to do.

But it was not until February 27, 2001, that a QDRO was filed in the court with respect to the U.S. Software account, awarding "50% of the Plan as of February 3, 1998."However, U.S. Software's corporate successor informed Dennis' counsel in a letter dated March 12, 2001, that it could not honor the QDRO because Dennis had moved the account to Piper Jaffray in September 2000.We note at this point that all of the accounts either moved or changed names at various times between the entry of the original decree and the contempt proceeding that is the subject of this appeal.While the relevant transfers are discussed below in more detail, for clarity's sake, each account is generally referred to by its original designation.

On July 2, 2004, Stephanie filed an application to show cause, asking the court to order Dennis to show cause why he should not be held in contempt of court for preparing only one of the three QDRO's necessary to transfer Stephanie's share of the investments at issue.The court issued such an order.A hearing was eventually held on June 28, 2006, The issue at the hearing was not whether the QDRO's should finally be entered, but the value of the assets to be transferred.Stephanie sought 50 percent of the value of the accounts as of February 3, 1998, while Dennis argued that the accounts should be divided at their existing value.

Stephanie testified that at the time of the hearing, she had not been presented with any QDRO's for any of the three accounts.She explained that the QDRO filed in 2001 had never been provided to her.Stephanie said she had, over, the years, made several efforts to try to get her share of the accounts transferred to her.She testified that in 1999, she had called U.S. Software, and that in 2000, she had written a letter, enclosing a copy of the divorce decree, but had not received a reply.Stephanie had also called Sitel in 1999 and written a letter in 2000.In response, Sitel had sent a letter to Dennis, copied to Stephanie instructing him how to divide the account.Stephanie said she wrote Dennis in 2000, asking him to help her transfer the accounts, but Dennis did not respond.

In 2000, Dennis attempted to transfer the Intrust account to Piper Jaffray.Intrust refused, informing Dennis that one of the reasons for the refusal was that Stephanie had sent Intrust a copy of the decree of dissolution.Dennis moved the Sitel account to Piper Jaffray in 2000, and then to Robert W. Baird & Co. Inc.The U.S. Software account was also moved from U.S. Software's corporate successor to Piper Jaffray and then to Robert W. Baird & Co. Dennis testified that he"assume[d]" that someone had prepared the QDRO's on his behalf and did not recall receiving a call or written communication suggesting that the U.S. Software account could not be transferred.Nor did he recall receiving a letter from Stephanie asking him to help her transfer the accounts.Dennis explained that when he moved the accounts, he believed that Stephanie had already received her half.Dennis testified that although some of the accounts had been moved, he had not withdrawn any assets from any of the accounts.

George Morgan, a financial advisor, testified for Stephanie at the hearing and evaluated the worth of the U.S. Software account as of February 3, 1998, as $360,963.The Sitel account had a value of $9,900 on January 1, 1998, but as of March 31, 1998, had a balance of $14,836.76.The Intrust account was valued, in a statement for the period from October 1 to December 31, 1998, at $17,880.58.Stephanie testified that the valuations for the Sitel and Intrust accounts were the closest dates of valuation to February 3, 1998, available in the records for each company.

The Intrust account, as of March 31, 2006, had appreciated in value to $42,400.17.The Sitel account, at the time of trial, had a value of "about $10,000."The value of the U.S. Software account at the time of trial is more uncertain.As previously noted, Morgan valued the account at the time of the decree at $360,963.When the account was moved in September 2000, it was worth $147,176.And Dennis' counsel argued at the contempt hearing that "the account today is worth about $83,000."But there does not appear to be testimony or evidence in the record to substantiate that figure.

The district court found that since February 3, 1998, the value of the three accounts had decreased because of conditions in the stock market.But the court found that Stephanie had failed to prove that had the QDRO's been properly executed, she would have been able to increase the value of the assets from their present value.Thus, the court concluded that Dennis' one-half of the accounts was of equal value to Stephanie's at the time of trial and that Dennis had not increased his value over that to which Stephanie was entitled.The court concluded that Dennis was in contempt for failing to prepare the QDRO's and that Stephanie was entitled to "one-half of the current value" of the accounts.

On July 20, 2006, the court entered an order finding Dennis to be in contempt.On August 9, 2006, two QDRO's were filed in the court, apparently with respect to the Sitel and Intrust accounts, although this is not entirely clear from the record because of the movement of accounts to Robert W. Baird & Co.Each of these QDRO's awarded Stephanie "50% of the Plan," without specifying a date of valuation or division.On August 15, the court entered an order finding that Dennis had complied with the earlier order of the court and purged himself of contempt.On August 17, Stephanie appealed.

ASSIGNMENT OF ERROR

Stephanie assigns, as consolidated, that the district court erred in awarding her one-half the current value of the accounts, instead of one-half the value as of February 3, 1998.

ANALYSIS

As a general principle, the date upon which a marital estate is valued should be rationally related to the property composing the marital estate,¹ and the date of valuation is reviewed for an abuse of the trial court's discretion.²But the issue in this case is not the date upon which the accounts were to be valued for division.Instead, the issue is whether the QDRO's should have incorporated the February 3, 1998, date specified in the decree.A QDRO is, generally speaking, simply an enforcement device of the decree of dissolution.³Arid Dennis has not argued in this proceeding that the original decree should be modified based on fraud or gross inequity.Thus, Stephanie argues that the QDRO should reflect the date of valuation she contends was expressed in the decree.⁴

We note that Stephanie's notice of appeal was filed on August 17, 2006—...