Johnson v. Zoric

• Citation: 763 Utah Adv. Rep. 25,330 P.3d 704
• Decision Date: 20 June 2014
• Docket Number: No. 20120229.,20120229.
• Parties: Mark Lawrence JOHNSON, Respondent and Appellant, v. Elizabeth JOHNSON nka Elizabeth Zoric, Petitioner and Appellee.
• Court: Supreme Court of Utah

330 P.3d 704

763 Utah Adv. Rep. 25

Mark Lawrence JOHNSON, Respondent and Appellant,

v.Elizabeth JOHNSON nka Elizabeth Zoric, Petitioner and Appellee.

No. 20120229.

Supreme Court of Utah.

June 20, 2014.

Troy L. Booher, Erin K. Burke, Salt Lake City, for appellant.

Bryce M. Froerer, Ogden, for appellee.

On Certiorari to the Utah Court Appeals.

Associate Chief Justice NEHRING, opinion of the Court:

INTRODUCTION

¶ 1 On certiorari, we consider whether our court of appeals erred when it held that an action to enforce the ongoing right to collect a portion of pension retirement benefits was not barred by the statute of limitations. We also consider whether the court of appeals erred when it determined that the petitioner's argument concerning laches was inadequately briefed according to the standards set by the Utah Rules of Appellate Procedure. Lastly, we consider whether a panel majority of the court of appeals erred in applying the “marital foundation” approach to determine the amount of a pension that constitutes marital property. We affirm the court of appeals in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

BACKGROUND ¹

¶ 2 Petitioner Mark Lawrence Johnson and Respondent Elizabeth Ann Johnson, nee Zoric, married in 1974 and divorced in 1984. During the parties' ten-year marriage, Mr. Johnson accrued approximately ten years of service in the United States Air Force. At the time of the divorce, he was a staff sergeant with a pay grade of E–5. Because Mr. Johnson's pension required twenty years to vest, at the time of the divorce the district court was unable to determine a specific monetary amount that would be owed to Ms. Zoric as her marital property portion of Mr. Johnson's potential future retirement benefit. ² The district court's decree instead awarded Ms. Zoric “1/2 of 10 years of [Mr. Johnson]'s retirement.”

¶ 3 Ms. Zoric first attempted to enforce her right to a portion of Mr. Johnson's future retirement benefits in 1998, but her application was denied by the Defense Financing and Accounting Service (DFAS) on the grounds that the divorce decree lacked specificity. Ms. Zoric is alleged to have made statements around this time to the parties' son to the effect that she did not intend to seek her marital portion of Mr. Johnson's retirement. Mr. Johnson claims that the parties' son conveyed these statements to him and he consequently “made substantial changes to his life financially.”

¶ 4 At the time of his retirement in 1999, Mr. Johnson was a master sergeant with a pay grade of E–7, having completed twenty-four years of service. His monthly payment under the pension was calculated based on his pay grade and number of years of service at retirement. In September 2000, Mr. Johnson received a veteran's disability award for ailments that arose after his divorce from Ms. Zoric. Mr. Johnson's final retirement benefit was reduced by the amount that he received under the disability award.

¶ 5 In October 2008, Ms. Zoric filed in district court for a Qualified Domestic Relations Order (QDRO) in another attempt to secure her portion of Mr. Johnson's retirement benefit. The district court, in an effort to comply with the 1984 divorce decree, awarded Ms. Zoric her marital share of Mr. Johnson's actual monthly benefit, based on his salary at the time of retirement and his number of years of service, less the disability reduction.³ The district court determined the doctrine of laches barred Ms. Zoric from recovering any portion of the benefits that had already been paid to Mr. Johnson before she filed for the clarifying order in October 2008. Mr. Johnson appealed. The court of appeals affirmed the district court's order awarding Ms. Zoric ongoing payments based on Mr. Johnson's actual retirement benefit. ⁴

¶ 6 Mr. Johnson petitioned this court for review of the statute of limitations and laches issues, and in the alternative, which approach should apply to determine the amount owed to Ms. Zoric from Mr. Johnson's retirement benefit. We granted his petition and have jurisdiction pursuant to Utah Code section 78A–3–102(3)(a).

STANDARDS OF REVIEW

¶ 7 “On certiorari, we review the decision of the court of appeals, not the decision of the trial court.” ⁵ We review the court of appeals' determination of the question of whether the statute of limitations ⁶ bars Ms. Zoric's claim for correctness, granting no deference to the court of appeals.⁷

¶ 8 Mr. Johnson alleges that the court of appeals erred when it refused to consider his laches argument because the court determined the argument to be inadequately briefed. “On certiorari, we review the decision of the court of appeals for correctness.” ⁸ “It is well established that a reviewing court will not address arguments that are not adequately briefed.” ⁹ “In deciding whether an argument has been adequately briefed, we look to the standard set forth in rule 24(a)(9) of the Utah Rules of Appellate Procedure.” ¹⁰ If this court determines that the laches argument was briefed satisfactorily, the question of laches presents a mixed question of law and fact.¹¹

¶ 9 The parties also dispute whether the district court's application of the marital foundation approach should be reviewed for an abuse of discretion or correctness.¹² We answer this question below.

ANALYSIS

I. THE STATUTE OF LIMITATIONS DOES NOT BAR THE RIGHT TO FUTURE PAYMENTS

¶ 10 The parties' divorce decree states: “That [Ms. Zoric] be, and is hereby awarded 1/2 of 10 years of [Mr. Johnson]'s military retirement.” In 1998, before Mr. Johnson retired from the military, Ms. Zoric attempted to file the decree with DFAS in an effort to secure her portion of Mr. Johnson's future pension payments. DFAS denied the request on the basis that the decree lacked the required specificity. Ms. Zoric did not take any further action to secure payment until October 2008, when she filed the underlying action requesting a clarifying order or QDRO.¹³ In that action, the district court held the doctrine of laches barred Ms. Zoric from recovering her portion of the benefits that had been paid to Mr. Johnson from the time of his retirement until she filed for a clarifying order, but awarded her a share of the ongoing benefits paid to Mr. Johnson from when she filed the action for the clarifying order.¹⁴

¶ 11 Mr. Johnson alleges that the statute of limitations serves to wholly bar Ms. Zoric's claim to any portion of Mr. Johnson's retirement benefit.¹⁵

¶ 12 The statute of limitations for judgments states that “[a]n action may be brought within eight years upon a judgment or decree of any court of the United States, or of any state ... within the United States” ¹⁶ and is intended to “reflect our understanding that a party will generally choose to pursue a valid claim, rather than waiting indefinitely to do so.” ¹⁷ Mr. Johnson contends that Ms. Zoric's claim should be denied because she “failed to do anything to secure any kind of payment on that decree until 2008, nearly twenty-four (24) years after the decree had been entered, but more importantly, more than nine (9) years after [Mr. Johnson's] retirement.”

¶ 13 To assess whether the statute of limitations bars Ms. Zoric's claim to ongoing payments,¹⁸ we must first determine whether the claim that she is asserting is discrete or continuing. The United States Court of Federal Claims addressed a similar issue in Baka v. United States,¹⁹ wherein a former member of the military filed suit against the United States, alleging that DFAS improperly awarded a portion of his military pension to his former spouse.²⁰ The court held that each payment challenged by Mr. Baka was subject to its own statute of limitations:

The continuing claims doctrine operates to save parties who have pled a series of distinct events—each of which gives rise to a separate cause of action—as a single continuing event. In such cases, the continuing claims doctrine operates to save later arising claims even if the statute of limitations has lapsed for earlier events.²¹

¶ 14 The court clarified that “[i]n order for the continuing claim doctrine to apply, the plaintiff's claim must be inherently susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages.” ²² “In military pay cases, a threshold question can be framed as whether the plaintiff is challenging the quantum of pay to which he is undisputedly entitled, or whether he is challenging his right to receive pay at all.” ²³ The court concluded that Mr. Baka's claim was continuing because “[t]he claim can be divided into discrete wrongs, each of which is deemed to have accrued in the month when the Government withheld a portion of Mr. Baka's retirement pay for the benefit of his former wife.” ²⁴

¶ 15 Mr. Johnson argues that because the parties' 1984 divorce decree did not specify an amount owed by him, Baka does not serve to establish a continuing claim. Specifically, Mr. Johnson attempts to find support for his argument in a footnote of Baka:

Cases in which a plaintiff undisputedly is entitled to some pay more plainly fall into the continuing claims category. On the other hand, where a plaintiff has received no pay for the limitations period, and plaintiff's entitlement to pay is itself disputed, the Government's failure to pay plaintiff has not been regarded as periodic Government action for purposes of the continuing claims doctrine.²⁵

¶ 16 Mr. Johnson requests that this court “hold that where the legal right unexercised within the limitation period is the right to establish payment obligations, the failure to exercise that right forfeits all benefits.” We decline to do so.

¶ 17 While it is clear that Ms. Zoric could, and likely should, have taken action to secure Mr. Johnson's payment obligations before she filed for the QDRO in 2008,²⁶ she was granted a clear and unequivocal right to “1/2 of 10 years of [Mr. Johnson]'s military...