In re Taber-McCarthy, 2009–180.

• Court: Supreme Court of New Hampshire
• Writing for the Court: DALIANIS, J.
• Citation: 160 N.H. 112,993 A.2d 240
• Parties: In the Matter of Pamela TABER–McCARTHY and Ricky C. McCarthy.
• Docket Number: No. 2009–180.,2009–180.
• Decision Date: 09 April 2010

160 N.H. 112
993 A.2d 240

In the Matter of Pamela TABER–McCARTHY and Ricky C. McCarthy.

No. 2009–180.

Supreme Court of New Hampshire.

Argued: Feb. 18, 2010.
Opinion Issued: April 9, 2010.

993 A.2d 242

Mosca Law Office, of Manchester (Edward C. Mosca, on the brief and orally), for the petitioner.

Walker & Buchholz, P.A., of Manchester (Kevin E. Buchholz, on the brief and orally), for the respondent.

DALIANIS, J.

160 N.H. 113

The respondent, Ricky C. McCarthy, appeals an order recommended by a Marital Master (Green, M.) and approved by the Superior Court (Abramson, J.) that

993 A.2d 243

adopted the qualified domestic relations order (QDRO) proposed by the petitioner, Pamela Taber–McCarthy. We affirm.

The record reveals the following facts. The parties married in 1998. On January 16, 2006, the petitioner filed for divorce. Their final divorce decree, entered in April 2007, provided, in pertinent part:

160 N.H. 114

C. Retirement. The parties agreed on the amount of the retirement and the effective date all parties utilized for figuring the same. If it turns out that as of 1/ 16/06 the figure[ ] presented relative to Respondent's retirement plan of $105,070.65 is not accurate, the amount to be transferred can be adjusted either up or down reflecting the accurate figure.

The Petitioner agreed that her counsel will prepare the QDRO needed to transfer funds from the Respondent to the Petitioner. The counsel for the Petitioner shall have the right to contact the Respondent's employer ... and obtain the appropriate information, valuation and forms that are necessary to effectuate an appropriate QDRO. The Respondent shall execute all documents necessary to allow Petitioner's counsel to have access to this information.... If the Court finds that there is any delay in signing authorizations to obtain information, a motion for contempt and appropriate sanctions will be entertained by the court.

The parties' divorce decree became effective July 13, 2007. In August 2007, the parties stipulated to a QDRO. The stipulated QDRO gave the date of marriage as September 26, 1998; the date of filing of the divorce petition as January 16, 2006; and the date of the divorce as July 13, 2007. The stipulated QDRO assigned to the petitioner "an amount equal to 50% of the [respondent's] ‘vested benefit’ under [his employer's 401(k) plan] which was earned during the period of the marriage only from September 26, 1998 to January 16, 2006." "This amount," the stipulated QDRO provided, "is calculated to be $77,430. One half of this amount is $38,715. This amount shall be reduced by ... $4,735.04.... [Accordingly,] [t]he net amount due [the petitioner] is $33,979.96."

The stipulated QDRO further provided: "In the event the Plan Administrator determines that this order is not a [QDRO] ..., both parties shall cooperate with the Plan Administrator to make the changes necessary for it to become a qualified order. This includes signing all documents which may be necessary for the parties to obtain an amended order that meets the requirements for a [QDRO]...."

The stipulated QDRO was never entered as a court order, however, because the administrator of the respondent's retirement plan expressed concerns about it, which the parties were unable to resolve. Specifically, the plan administrator noted that the stipulated QDRO was "unclear [as] to whether or not gains (losses) should be applied from January 16, 2006 until the date of distribution or transfer or if the $33,979.96 is a lump sum payment." The parties attempted to negotiate an addendum to the stipulated QDRO that would address this concern, but were unable to agree.

160 N.H. 115

In December 2008, following numerous hearings on the issue, the court adopted the petitioner's proposed QDRO, which provided, in pertinent part, that the net amount due her ($33,979.96) "shall be a lump sum amount payable without any gains or losses thereon."

On appeal, the respondent argues that the QDRO the court ultimately adopted caused him to suffer the "loss of approximately $12,000 ... out of his portion of the funds in order to pay the petitioner the

993 A.2d 244

original amount agreed to, which in effect awarded [her] more than what the parties' agreement called for [her] to receive." He contends that the QDRO, therefore, effected an unequal division of property and that the trial court could not have reasonably found any special circumstances to warrant such a division. He further contends that the division of property, as effected by the QDRO, is inequitable, particularly given the petitioner's delay in getting the stipulated QDRO approved. He argues that given the delay caused by the petitioner, the trial court unsustainably exercised its discretion by failing to award her the original amount agreed to less the losses incurred in the interim. He also asserts that the trial court improperly applied the Hodgins formula. See Hodgins v. Hodgins, 126 N.H. 711, 716, 497 A.2d 1187 (1985), superseded by statute on other grounds by RSA 458:16–a, I (2004). Finally, he argues that the trial court erred when it failed to grant his motion to compel. We address each of his arguments in turn.

We first address whether the QDRO the court ultimately ordered awarded the petitioner more than the parties' agreement called for her to receive. A stipulated agreement is contractual in nature and, therefore, is governed by contract rules. Czumak v. N.H. Div. of Developmental Servs., 155 N.H. 368, 373, 923 A.2d 208 (2007). The interpretation of a contract is a question of law, which we review de novo. Id. When interpreting a written agreement, we give the language used by the parties its reasonable meaning, considering the circumstances and the context in which...