Kuba v. Kuba

• Decision Date: 18 June 2013
• Docket Number: No. WD 75041.,WD 75041.
• Citation: 400 S.W.3d 869
• Parties: Elizabeth KUBA, Appellant, v. Mark KUBA, Respondent.
• Court: Missouri Court of Appeals

400 S.W.3d 869

Elizabeth KUBA, Appellant,

v.Mark KUBA, Respondent.

No. WD 75041.

Missouri Court of Appeals,

Western District.

June 18, 2013.

Michael C. McIntosh, Independence, MO, for appellant.

Jeffrey S. Royer, Blue Springs, MO, for respondent.

Before Division Two: ALOK AHUJA, P.J., and KAREN KING MITCHELL and CYNTHIA L. MARTIN, JJ.

ALOK AHUJA, Judge.

In 2008, the circuit court entered a decree dissolving the marriage of Elizabeth Kuba (Wife) and Mark Kuba (Husband). The decree awarded Wife a portion of Husband's military retirement benefits, and the court subsequently entered a “Military Qualifying Judgment Court Order” to implement the division of Husband's retirement benefits. Three years later, Wife filed a motion to modify the Qualifying Order, to add a provision requiring Husband to designate her as the beneficiary of survivor benefits associated with his military retirement. The circuit court denied the motion, and Wife appeals. We affirm.

Background

Mark and Elizabeth Kuba had been married for twenty-two years when their marriage was dissolved by a Judgment of Dissolution in February 2008. The couple had three children during the marriage. At the time of the dissolution, their eldest son was a sophomore in college; their other two sons were minors who lived with Wife.

Husband, who was fifty-one years old at the time of the dissolution, was a member of the Army Reserves and on active duty. He began serving in the military on March 8, 1985, approximately a year before the parties married on April 6, 1986.

The parties agreed to a property settlement and a stipulated parenting plan, both of which were incorporated into the dissolution judgment. With respect to Husband's military retirement benefits, the judgment provided:

The husband has pension and military retirement with the Army. Wife shall receive one-half of the marital interest in Husband's pension and military retirement with the Army which accrued through Husband's employer during the time of the marriage. Wife shall receive her marital interest in said plans through a Qualified Domestic Relations Order which will be signed by the Court.

In April 2008, the court entered a “Military Qualifying Judgment Court Order” (the “Qualifying Order”) that implemented the division of Husband's military retirement benefits. The Order stated that it was intended to be a qualifying order under the Uniformed Services Former Spouses' Protection Act (“USFSPA”), 10 U.S.C. § 1408. The Qualifying Order provided:

7. Amount of Payments: The Former Spouse is awarded fifty percent (50%) of the disposable military retired pay the Member would have received had the Member become eligible to receive retired pay on the date he attained age sixty (60), with the rank of Colonel (0–6), with [2,178] reserve retirement points, and with [22] years of service for basic pay purposes.

In addition to the above, the Former Spouse shall receive a proportionate share of any post-retirement cost of living adjustments (“COLA”) made to the Member's benefits on or after the date of his retirement.

8. Duration of Payments: The monthly payments set forth above shall commence to the Former Spouse as soon as administratively feasible following the commencement of Member's disposable retired pay and shall continue during the joint lives of the parties and to the extent permitted under law, irrespective of the future marital status of either of them. Payments shall terminate only upon the death of either Member or Former Spouse.

Neither the dissolution judgment nor the Qualifying Order specifically addressed any survivor benefits associated with Husband's military retirement benefits. The Qualifying Order necessarily excluded such survivor benefits, however, since it provided that payments to Wife would cease on Husband's death.

In 2011, Wife filed a motion to modify the Qualifying Order, to add the following language:

ELIZABETH A. HUNGERFORD–KUBA, former spouse of Mark M. Kuba, shall be designated as beneficiary of Mark M. Kuba, with respect to the awarded portion of Mark M. Kuba's interest in the United States Army Retirement System, for purposes of the Reserve Component Survivor Benefit Plan (“RCSBP”) and/or the Survivor Benefit Plan (“SBP”) coverage for the benefit of Elizabeth A. Hungerford–Kuba following the death of Mark M. Kuba.

Husband opposed Wife's motion, arguing that Wife was seeking a substantive modification of the property division in the parties' dissolution decree, and that the trial court lacked authority to modify the Qualifying Order in this fashion, three years after its entry.

After hearing argument of counsel, the circuit court denied Wife's motion to modify the Qualifying Order. Wife appeals.

Analysis

I.

Wife contends that the trial court misapplied the law in denying her motion to modify the Qualifying Order to provide her with survivorship benefits. She claims that the modification she requested “would have merely given to [Wife] what was her expected portion of marital property as determined by the original Judgment of Dissolution.”

Husband argues that, whatever the substantive merits of Wife's argument, the trial court lacked the authority to modify the Qualifying Order, because that Order is not a “Qualified Domestic Relations Order” or “QDRO” subject to modification under § 452.330.5, RSMo. If Husband were correct, we would be required to affirm without addressing the merits of Wife's arguments. We accordingly begin by addressing Husband's argument concerning the trial court's authority to modify the Qualifying Order.

Section 452.330.5, RSMo, provides:

The court's order as it affects distribution of marital property shall be a final order not subject to modification; provided, however, that orders intended to be qualified domestic relations orders affecting pension, profit sharing and stock bonus plans pursuant to the U.S. Internal Revenue Code shall be modifiable only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.

Thus, except for “orders intended to be qualified domestic relations orders ... pursuant to the U.S. Internal Revenue Code,” orders affecting the distribution of marital property are non-modifiable once they become final.

Husband argues that the Qualifying Order is not considered to be a QDRO under the Internal Revenue Code, and that it is therefore not subject to modification under § 452.330.5. Husband cites 26 U.S.C. § 414(p), the provision of the Internal Revenue Code governing Qualified Domestic Relations Orders. In particular, Husband relies on 26 U.S.C. § 414(p)(9), which provides that “[t]his subsection shall not apply to any plan to which section 401(a)(13) does not apply.” The Treasury Department's implementing regulations specify that 26 U.S.C. § 401(a)(13) “ does not apply to a governmental plan, within the meaning of section 414(d)[.]” 26 C.F.R. § 1.401(a)–13(a) (emphasis added). 26 U.S.C. § 414(d), provides, in turn, that “[f]or purposes of this part, the term ‘governmental plan’ means a plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.” Husband argues that, because the Qualifying Order entered in this case addresses benefits payable under a “governmental plan,” the Order is excluded from the definition of a “QDRO” by operation of 26 U.S.C. § 414(p)(9).

Husband's argument ignores 26 U.S.C. § 414(p)(11), which provides:

[f]or purposes of this title, a distribution or payment from a governmental plan (as defined in subsection (d)) ... shall be treated as made pursuant to a qualified domestic relations order if it is made pursuant to a domestic relations order which meets the requirement of clause (i) of paragraph (1)(A).

Clause (i) of paragraph (1)(A) provides:

The term “qualified domestic relations order” means a domestic relations order—

(i) 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....

26 U.S.C. § 414(p)(1)(A)(i). This would appear to encompass the Military Qualifying Judgment Court Order at issue in this case.

Platt v. Commissioner, 95 T.C.M. (CCH) 1084, 2008 WL 268588 (2008), confirms this. In Platt, the Tax Court explained that although orders affecting “governmental plans” were initially excluded from treatment as QDROs by 26 U.S.C. § 414(p)(9), that exclusion was eliminated when § 414(p)(11) was enacted in 1989:

The QDRO provisions that Congress enacted in 1984 did not apply to governmental plans. See sec. 414(p)(9).... In 1989, Congress added section 414(p)(11) to the Code.... Section 414(p)(11) provides that “a distribution or payment from a governmental plan ... shall be treated as made pursuant to a qualified domestic relations order if it is made pursuant to a domestic relations order which meets the requirement of clause (i) of paragraph (1)(A)” of section 414(p).

....

Congress added sec. 414(p)(11) to the Code in order “to conform generally [the tax rules relating to transfers of interests in a governmental plan] to the tax rules applicable to other qualified plans pursuant to the Retirement Equity Act.”

2008 WL 268588, at *6 & n. 31 (other footnotes and citations omitted; bracketed text added by Platt ). Platt holds that,

[w]ith respect to governmental plans, ... a domestic relations order qualifies under sec. 414(p) as a QDRO if that order creates or recognizes the existence of an alternate payee's right, 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. See sec. 414(p)(11).

Id. at *6 n. 32.

Under 26 U.S.C. § 414(p)(11), the Qualifying Order is treated as a...