In re the Marriage of Richard v. Green And Sigrid v. Green.Richard v. Green

• Decision Date: 03 May 2011
• Docket Number: No. ED 94417.,ED 94417.
• Citation: 341 S.W.3d 169
• Parties: In re the MARRIAGE OF Richard V. GREEN and Sigrid V. Green.Richard V. Green, Petitioner/Appellant,v.Sigrid V. Green, Respondent/Respondent.
• Court: Missouri Court of Appeals

341 S.W.3d 169

In re the MARRIAGE OF Richard

v. GREEN and Sigrid

v. Green.Richard

v. Green, Petitioner/Appellant,

v.Sigrid

v. Green, Respondent/Respondent.

No. ED 94417.

Missouri Court of Appeals, Eastern District, Division Two.

May 3, 2011.

Denise Watson–Wesley Coleman, Watson–Wesley Coleman, L.C., St. Louis, MO, for appellant.Sigrid Green, Deerfield Beach, FL, pro se.KATHIANNE KNAUP CRANE, Judge.

Husband appeals from a judgment entered by the trial court granting wife's motion for entry of a “fourth amended qualified domestic relations order” for the distribution of the marital portion of one of husband's pension accounts. This judgment modified the original dissolution judgment with respect to the division of the marital portion of the pension account and entered a fourth amended qualified domestic relations order (QDRO IV) ¹ that modified the original QDRO (QDRO I), which had been approved as “qualified.” The plan administrator determined that QDRO IV was not a “qualified” order. We reverse and remand with directions.

Richard Green (husband) and Sigrid Green (wife) were married on July 7, 2001, and separated on or around February 7, 2004. On September 15, 2005, the trial court entered a Judgment of Dissolution. As relevant to this appeal, it ordered:

4. Each party shall receive as their portion of the marital property, free and clear from the claims of the other party the property specified on Attachment B. To achieve an equitable division of the marital estate of the parties, the SBC pension account shall be divided by QDRO such that Husband shall receive 20.9% of the account and Wife shall receive 79.1% of that account.

One of the attachments to the judgment was “SCHEDULE B—MARITAL PROPERTY.” It listed “assets” in the first column and the “equity value” for each asset in the second column. The third column listed which of the assets were allocated to husband, and the fourth column listed which of the assets were allocated to wife. Schedule B showed that the marital portion of the SBC pension account had an “equity value” of $54,894, that $11,483 of this amount was allocated to husband, and that $43,411 of this amount was allocated to wife. These dollar amounts represented 20.9% and 79.1%, respectively, of the marital portion of the SBC pension account. Apart from the $11,483, husband was allocated assets with an “equity value” of $54,153. When the $11,483 was added to the $54,153, the “equity value” of husband's total allocated assets were $65,636. Apart from the $43,411, wife was allocated assets with an “equity value” of $22,225. When the $43,411 was added to the $22,225, the “equity value” of wife's total allocated assets was also $65,636.

On January 26, 2006, the trial court entered QDRO I pursuant to the dissolution judgment. QDRO I contained a finding that a portion of husband's SBC pension plan had accrued during the marriage and constituted marital property. It designated wife as “Alternate Payee” and ordered in paragraph 1.d.:

d. The Alternate Payee is hereby assigned, and the plan administrator shall pay directly to the Alternate Payee 79.1% of the marital portion of the benefits payable to the Participant from the Plan. The “marital portion” is that portion accrued between July 7, 2001 (the date of marriage) and September 15, 2005 (the date of the dissolution of the marriage).

It further provided that payments to wife shall be made at husband's normal retirement date, whether or not he has retired, or at the time husband retires and begins receiving benefits, if he retires at an earlier date. Husband was employed by SBC Services at the time the dissolution was pending in 2005, and he was 49 years old when the dissolution decree was entered. Normal retirement age under the SBC pension account was 65. The SBC pension account was administered by Fidelity Employer Services Company LLC (the plan administrator).² On March 27, 2006, the plan administrator approved QDRO I as “qualified.”

Thereafter, on April 20, 2007, wife filed a motion with the trial court for entry of an amended QDRO. She alleged that, according to calculations she made from documentation that she had received from the plan administrator, the marital portion of the SBC pension account should be $86,831.15. She further alleged that husband had received correspondence from the plan administrator indicating that the marital portion was $48,810.07. She sought an amended QDRO that would clarify the value of the SBC pension account. She attached a proposed QDRO. Husband filed a motion in opposition. After a hearing, the trial court entered a judgment dated June 26, 2007. It concluded:

The court retains jurisdiction to order the entry of an amended QDRO to clarify the court's award of the respective portions of [husband's] SBC Pension Benefit Plan that was intended by the court's judg[ ]ment of September 15, 2005. The marital interest to be divided is the difference between the value of [wife's] interest in the Plan as of the date of the marriage (July 7, 2001) which has now been documented to be $167,790.65 and the value of that interest as of the date of the dissolution judg[ ]ment (September 15, 2005) which has now been documented to be $248,975.11. Since the marital interest in the Plan is larger than originally presented to the court, in order to preserve the court's equitable division of the marital property and debts of the parties, [wife] should properly receive 68.3% of the marital interest and [husband] should properly receive 31.7% of the marital interest.

It ordered wife to submit an amended QDRO consistent with the terms of the judgment.

On July 9, 2007, the trial court entered a second amended QDRO (QDRO II). QDRO II changed paragraph 1.d. to the following:

d. The Alternate Payee is hereby assigned, and the plan administrator shall pay directly to the Alternate Payee 68.3% of the marital portion of the benefits payable to the Participant from the Plan. The “marital portion” to be divided is the difference between the value of Participant's interest in the Plan as of the date of the marriage, July 7, 2001, which was $167,790.65 and the value of that interest as of the date of the Dissolution Judgment, September 15, 2005, which was $248,975.11.

On September 12, 2007, the plan administrator sent a letter rejecting QDRO II because it was not “qualified.” Among the reasons given for lack of qualification, the plan administrator specified:

Alternate Payee's Awarded Benefit

• The Order fails to provide a clear and calculable award. Specifically Paragraph 1.d provides dollar values of the Participant's accrued benefit as of the date of marriage and the date of Dissolution Judgment which do not correspond to the values in the Plan's records. Please review Section 2.E of the QDRO Guidelines regarding how the Alternate Payee's awarded benefit should be stated. Please amend the Order to state clearly the Alternate Payee's award as a fraction, percentage OR specific dollar amount of the Participant's vested accrued benefit as a specified date or accrued between two dates, in accordance with the Parties' intent.

Wife's attorney then sent a draft of a third amended QDRO (QDRO III) to the plan administrator. On October 25, 2007, the plan administrator informed wife's attorney that the draft did not contain the necessary requirements for qualification. Among other reasons, the plan administrator advised that the draft still failed to provide a clear and calculable award, repeating the language from its September 12, 2007 letter set out above.

On December 3, 2007, wife filed a motion for entry of a third amended QDRO with the trial court. The record does not disclose any action taken with respect to this motion.

On August 24, 2009, the trial court entered an order requesting husband to submit a memorandum of law challenging its June 26, 2007 ³ judgment along with a proposed QDRO, and it ordered wife to submit a reply and her proposed QDRO. On September 16, 2009, husband filed a memorandum of law that opposed any modification of QDRO I not in compliance with section 452.330.5 RSMo (2000),⁴ requested a hearing on the value of the pension benefits, and requested the trial court use a division formula approach approved in prior Missouri cases. He attached an expert's affidavit on the value of the account.

On January 6, 2010, the trial court granted wife's motion for a fourth amended QDRO (QDRO IV) and entered a judgment ordering QDRO IV. This judgment provided:

The judg[ ]ment entered on June 26, 2007 was for a sum certain which represents the marital portion of the total pension benefits based on the final judg[ ]ment of the court in the dissolution judg[ ]ment. Under Missouri law, the interest income on separate property which accrues during the marriage is marital property. The stated figure of $55,448.99 represents the value of [wife's] portion of the marital portion as of the date of the judg[ ]ment, which is the proper date of valuation as it is the date upon which the division of property was to become effective. Therefore, this figure has been entered in paragraph 1d of the fourth amended qualified domestic relations order.

However, neither the dissolution decree of September 15, 2005 nor the modification judg[ ]ment of June 26, 2007 was intended to order the plan administrator to immediately issue a check in a specified amount to [wife] as the alternate payee. Instead, [wife's] right to receive her share of the total benefits is subject to whatever form and conditions are provided under the plan as specified in paragraph 1e of the fourth amended qualified domestic relations order.

The court ordered QDRO IV, which changed paragraph 1.d. to the following:

d. The alternate payee is hereby assigned and the plan administrator shall pay the alternate payee $55,448.99 as of June 26, 2007 of the benefits payable to the participant from the Plan.

On January 22, 2010, the plan administrator rejected QDRO IV on the...