Breslin v. Synnott, No. 11–336.

• Docket Nº: No. 11–336.
• Citation: 2012 VT 57, 54 A.3d 525
• Case Date: July 20, 2012
• Court: United States State Supreme Court of Vermont

54 A.3d 525
2012 VT 57

Maura E. BRESLIN
v.
James SYNNOTT III.

No. 11–336.

Supreme Court of Vermont.

July 20, 2012.

[54 A.3d 526]

Catherine E. Clark of Clark, Werner & Flynn, P.C., Burlington, for Plaintiff–Appellant.

Julie A. Frame, Robert W. Katims and Emily Bayer–Pacht of Hoff Curtis, Burlington, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND and BURGESS, JJ., and JOHNSON, J. (Ret.), Specially Assigned.

REIBER, C.J.

¶ 1. Wife appeals from a superior court, family division order requiring her to sign a waiver to correct a previously filed Qualified Domestic Relations Order (QDRO), which erroneously gave her survivorship benefits in her former husband's pension. We affirm.

¶ 2. The underlying facts are not in dispute. Wife and husband were married in 1976, legally separated in 2001, and divorced in 2003. The divorce order, fully incorporating the terms of the separation agreement, awarded wife “one half of the pension, as of the date of separation and the [husband] is awarded the remainder.” A QDRO signed by wife's attorney was filed in 2009 to implement the terms of the order. The QDRO mistakenly awarded wife survivorship benefits in husband's pension, contrary to the divorce order which merely provided wife with one-half of the pension, with remainder to husband. The family division approved the QDRO,

[54 A.3d 527]

and the plan administrator implemented it, which resulted in payments being made to wife. Husband did not object to the submission of the 2009 QDRO, and did not appeal its approval.

¶ 3. In 2010, wife and husband jointly filed a new QDRO, which omitted the erroneous section regarding survivorship benefits. The family division approved the QDRO. In January 2011, the plan administrator rejected the QDRO because payments had already begun under the 2009 QDRO. The plan administrator noted that wife could fix this problem by “waiv[ing] away her right” to the survivorship benefits. Husband's attorney contacted wife's attorney numerous times between January and March, inquiring as to her position on the waiver issue. Having not heard anything, husband filed a motion to enforce in March 2011.

¶ 4. The court held a chambers conference in August 2011 and issued an entry order the same month concluding that wife is not entitled to the survivorship benefits. The court found that the divorce order merely granted wife “a defined, independent right to one half the pension,” while husband was granted his own separate pension rights. The court ordered wife to execute the waiver to restore to husband and his family the sole right to any survivorship benefits. Wife appeals.

¶ 5. On appeal, wife contends that: (1) claim preclusion prevents altering the 2009 QDRO; (2) the court lacked jurisdiction to enter its order because husband had not filed a motion to modify; and (3) the court improperly failed to hold a hearing.¹ Husband argues that the QDRO is not a court order, but merely a tool to implement the divorce order, and here the waiver is required to implement the final order.

¶ 6. Normally, a property disposition that includes the division of retirement benefits proceeds in two steps. First, the family division enters a substantive order which equitably divides and assigns the parties' property. See 15 V.S.A. § 751. Second, in order for the division of retirement benefits to be implemented, a QDRO is entered as a court order directing the plan administrator to make certain specified payments to the ex-spouse. See 2 B. Turner, Equitable Division of Property § 6:20, at 113 (3d ed.2005).

¶ 7. A QDRO is defined in relevant part by the Employee Retirement Income Security Act (ERISA) as a domestic relations order “which creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 29 U.S.C. § 1056(d)(3)(B)(i)(I). In order for the QDRO to be qualified—for the Q to be added to the DRO—certain requirements must be met. See id. § 1056(d)(3)(C)-(D). Once the plan administrator qualifies the QDRO, payments are made in accordance with the requirements contained in the QDRO. Id. § 1056(d)(3)(A). It is from this statutory scheme and general description of QDRO practice that we draw the conclusion that a QDRO is characterized properly as a procedural device that enforces an

[54 A.3d 528]

underlying substantive order. See Kremenitzer v. Kremenitzer, 81 Conn.App. 135, 838 A.2d 1026, 1028 (2004) (explaining that a QDRO is vehicle for enforcing court judgment); see also Turner, § 6:20, at 113–14 (noting “strong general rule” that QDRO is not substantive order, but rather “ procedural device[ ] for enforcing the terms of the underlying substantive order ”). Accordingly, the QDROs in this instance were entered to effectuate the property disposition made...