Hogle v. Hogle, 02A04-9907-CV-332.

• Decision Date: 15 August 2000
• Docket Number: No. 02A04-9907-CV-332.,02A04-9907-CV-332.
• Citation: 732 N.E.2d 1278
• Parties: Wallace L. HOGLE, Appellant, v. Shirley A. HOGLE, Appellee.
• Court: Indiana Appellate Court

732 N.E.2d 1278

Wallace L. HOGLE, Appellant, v. Shirley A. HOGLE, Appellee.

No. 02A04-9907-CV-332.

Court of Appeals of Indiana.

August 15, 2000.

Douglas Dormire Powers, Frederick B. Jonassen, Baker & Daniels, Richard J. Thonert, Fort Wayne, Indiana, Attorneys for Appellant.

Ward W. Miller, More & Miller, Fort Wayne, Indiana, Attorney for Appellee.

OPINION

MATTINGLY, Judge

Wallace Hogle appeals the trial court's entry of a Qualified Domestic Relations Order ("QDRO"). He raises a single issue on appeal, which we restate as whether the trial court properly entered, some twenty years after the parties' marriage was dissolved, a QDRO which transfers to Wallace's former wife, Shirley Hogle, benefits from Wallace's pension plan in order to satisfy a California judgment on an alimony arrearage.

We affirm.

FACTS

Wallace's marriage to Shirley was dissolved by a California court in 1979. That judgment provided that Wallace was to pay Shirley $1000 per month in spousal support. Wallace did not pay, and by 1999 his support arrearage had reached over $375,000.

The California dissolution court reduced the spousal support arrearages to money judgments by writs of execution in 1983 and 1991, and in 1989 and 1991 Shirley sought enforcement of the writs in the Allen County, Indiana Superior Court ("the Indiana court"). In 1992, the Indiana court granted Shirley's motion to register the 1991 California writ of execution as an Indiana judgment in her favor. In 1998, Shirley moved for entry of a QDRO and in 1999, the Indiana court issued an order that satisfied the technical requirements of a QDRO and purported to

Transfer, by court process, to [Shirley] all of [Wallace's] (1) vested accrued benefits payable under a defined pension benefit plan, and (2) total account balance under a defined contribution benefit plan, both qualified under 26 U.S.C. § 401 and the Employee Retirement Income Security Act of 1974, to the extent necessary to satisfy a California state domestic relations order and judgment....

(R. at 54-55.)

DISCUSSION AND DECISION

Through the Employee Retirement Income Security Act of 1974 ("ERISA"), Congress established a detailed federal framework for the regulation of pension and welfare benefit plans. Von Haden v. Supervised Estate of Von Haden, 699 N.E.2d 301, 303 (Ind.Ct.App.1998). ERISA provides that alienation or assignment of benefits is generally prohibited under a pension plan. 29 U.S.C. § 1056(d)(1). Since these anti-alienation provisions were causing difficulties in domestic relations settings, especially where ERISA-governed pensions had to be divided, the Retirement Equity Act (REA) amendments to ERISA in 1984 created a limited exception for a state domestic relations order if it is a "qualified domestic relations order." 699 N.E.2d at 304.

Wallace argues the Indiana court's order was improper because a QDRO must be a "domestic relations order" made pursuant to a state's domestic relations law, and that neither the California writ of execution nor the related Indiana judgments and orders can be so characterized. We disagree.

A "domestic relations order" is defined in ERISA as follows:

The term "domestic relations order" means any judgment, decree, or order (including approval of a property settlement agreement) which—

(I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and

(II) is made pursuant to a State domestic relations law (including a community property law).

29 U.S.C. § 206(d)(3)(B). Wallace offers three reasons why the purported QDRO is not a "domestic relations order" even though it "relates to . . . alimony payments" insofar as it seeks to enforce a writ of execution concerning an arrearage arising out of an alimony obligation established by the Hogles' 1979 divorce decree.

First, Wallace notes that the QDRO could not be related to Indiana domestic relations law because it was issued pursuant to the domestication of a California writ of execution and that no domestic relations matters had been filed in Indiana. Second, he argues the purported QDRO does not arise out of California domestic relations law. He concedes the 1991 California writ of execution that the QDRO is intended to enforce "may arise under California domestic relations law," (Br. of Appellant at 12),¹ but he correctly notes that the writ of execution itself does not meet the technical requirements of a QDRO. Finally, he argues that the various California and Indiana orders cannot be combined to support a QDRO.

Wallace first asserts, without citation to ERISA or any decision applying or interpreting it,² that "only a court in the state that granted the divorce may issue a QDRO." (Id. at 15.) Next, Wallace asserts "the impossibility of using [the 1991 California writ of execution] as a means of supporting the [QDRO]."³ (Id. at 18.) He appears to argue that the QDRO is improper because the California statute under which the writ of execution was issued itemizes the categories of property subject to levy by such a writ, and pension benefits are not included under that statute. However, any state statute that purported to include ERISA-governed pension benefits as property subject to levy by a writ of execution would presumably be preempted by ERISA itself. To the extent ERISA establishes the QDRO as the sole means of establishing an alternate payee's right to pension benefits, the fact that the writ of execution does not also address such benefits has no legal effect.

Finally, Wallace argues, again without explanation or citation to authority, that because the QDRO is intended to satisfy a California state domestic relations order it could not have been made pursuant to California domestic relations law. Because this argument is not explained or supported it is waived. Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind.Ct. App.1999). Notwithstanding the waiver, we note that ERISA does not necessarily require that a QDRO be a part of the actual judgment in a case, In re Marriage of Bruns, 535 N.W.2d 157, 162 (Iowa Ct. App.1995), and that a retirement plan may be garnished to satisfy a past-due alimony obligation based on a post-decree QDRO, id.

It is well-established that, under certain circumstances, a pension may be attached or garnished as a means of satisfying a support arrearage. Prior to the enactment of the REA, a number of courts had held that garnishment of a pension in order to satisfy a support arrearage was not even an "alienation" to which the ERISA anti-alienation provision applied. Under the reasoning of those decisions, an attachment or garnishment for purposes of satisfying an alimony arrearage would presumably not be subject to the QDRO exception to the anti-alienation rule, because it would not be subject to the rule itself.

In American Tel. & Tel. Co. v. Merry, 592 F.2d 118 (2d Cir.1979), for example, the court acknowledged the plain language of the ERISA anti-alienation provision, but still found an implied exception to that provision for orders to garnish pension payments so that family support payments might be made. The court first addressed the broad language of the ERISA preemption clause, which included "all laws, decisions, rules, regulations, or other State action having the effect of law." 29 U.S.C. § 1144(c)(1). A strict, literal construction of that provision, the court held, would "lead to the unreasonable conclusion that Congress intended to preempt even those state laws that only in the most remote and peripheral manner touch upon pension plans." 592 F.2d at 121. A more reasonable interpretation, it believed, would be "that a garnishment order used to satisfy court ordered family support payments is impliedly excepted from preempted state law relating `to any employee benefit plan,' and also from the alienation and assignment proscription." Id. (citations omitted).

The post-REA decisions indicate that state domestic relations orders concerning pension benefits must now comply with the requirements for QDROs; otherwise, they are pre-empted by ERISA. E.g., Metropolitan Life Ins. Co. v. Wheaton, 42 F.3d 1080 (7th Cir.1994)

. And see Brosamer v. Mark, 561 N.E.2d 767 (Ind. 1990). There, our supreme court determined that the anti-alienation provision does not protect pension funds from garnishment after they are deposited in a pensioner's bank account. The court stated that ERISA is intended to ensure that pension benefits will be available for distribution to pensioners, id. at 770, but went on to note that:

There is nothing to indicate that Congress intended to provide pension beneficiaries a shield against the legitimate demands of creditors. . . . We refuse to stretch ERISA to make Brosamer and other beneficiaries like him judgment proof. Consequently, we hold that 29 U.S.C. § 1056(d)(1) protects ERISA-qualified pension benefits from garnishment only until they are received by a beneficiary.

Id. at 771 (emphasis supplied). This dicta suggests our supreme court would not follow those pre-REA decisions which held that garnishment of a pension in order to satisfy a support arrearage is not an "alienation" to which the anti-alienation rule, and thus the QDRO exception, would apply.

It is also clear from the post-REA decisions that pension funds may in some circumstances be garnished or attached by means of a QDRO in order to satisfy a past-due support obligation. See, e.g., In re Marriage of Rife, 529 N.W.2d 280 (Iowa 1995)

. When the Rife marriage was dissolved in 1982, the wife was awarded alimony in the amount of $500 per month.

The husband made only two payments over the next twelve years. He was held in contempt twice during that period, and all attempts to collect from him were unsuccessful. In 1993 the wife obtained a QDRO that ordered the arrearage of nearly $120,000 be satisfied by means of garnishment of the corpus of the husband's pension plan. In upholding the...