Willis v. Willis

• Decision Date: 09 March 2012
• Docket Number: No. 2010–CA–002328–MR.,2010–CA–002328–MR.
• Citation: 362 S.W.3d 372
• Parties: Larry WILLIS, Appellant, v. Ruby WILLIS, Appellee.
• Court: Kentucky Court of Appeals

362 S.W.3d 372

Larry WILLIS, Appellant,

v.Ruby WILLIS, Appellee.

No. 2010–CA–002328–MR.

Court of Appeals of Kentucky.

March 9, 2012.

Susan Hanrahan McCain, Springfield, KY, for appellant.

Janet L. Staton, Danville, KY, for appellee.

Before TAYLOR, Chief Judge; DIXON and LAMBERT, Judges.

OPINION

LAMBERT, Judge:

Larry Willis has appealed from the November 30, 2010, order of the Boyle Family Court modifying a Qualified Domestic Relations Order (“QDRO”) entered on July 16, 2009. Because we hold that the family court abused its discretion in modifying the QDRO under the circumstances of this case, we must reluctantly reverse the family court's order.

Larry and Ruby Willis were married on November 28, 1992, in Cynthiana, Kentucky. They separated in March 2007, and Ruby filed a petition to dissolve the marriage on March 29, 2007. Pursuant to court order, the parties participated in mediation on July 30, 2007, and were able to reach an agreement. While Larry proved reluctant to sign the agreement, he ultimately did so. However, what transpired over the next few weeks changed the course of the proceedings.

It is apparent from the record that the proceedings were fraught with violence. This violence ultimately led to the tragic shooting of Ruby by Larry on August 22, 2007, when she returned to the marital residence to retrieve her personal items and furniture. Larry shot Ruby twice, once in the shoulder and once in the abdomen, and Ruby also sustained a massive head injury, apparently from being kicked. Ruby is permanently disabled from the injuries she sustained that day and has been appointed guardians and conservators to care for her needs.

As a result of his actions, Larry was charged with attempted murder and first-degree assault. The attempted murder charge was amended to second-degree assault, and Larry was convicted on both counts following a jury trial. He received ten- and five-year sentences, which were ordered to be served concurrently for a total of ten years. This Court affirmed Larry's conviction in Willis v. Commonwealth, 304 S.W.3d 707 (Ky.App.2010). We note tangentially that the family court found Larry in contempt for sending Ruby a birthday card in 2009, along with a disturbing, four-page, handwritten letter. He was sentenced to an additional 176 days in jail for this contemptuous behavior, to be served consecutively to his felony criminal sentence. Larry attempted to appeal the family court's ruling to this Court, but his appeal was dismissed as untimely on March 8, 2011. See Willis v. Willis, appeal No. 2010–CA–001162–MR.

Meanwhile, the dissolution proceedings continued. Prior to the final hearing on September 26, 2008, the parties were able to reach an agreement on most issues. On December 12, 2008, Ruby filed a motion attaching the property and separation agreement as drafted by Larry's attorney and requesting several modifications. These modifications included substituting the word “property” for “maintenance” to avoid potential tax consequences as well as addressing tax liability and bankruptcy. Ruby did not raise any objection to the section addressing Larry's nonmarital portion of his retirement. Paragraph 4(A) specifically provided that Larry had $292,536.05 in his retirement account at the time of the marriage, which was to be assigned to him, less a $91,000.00–offset to Ruby related to his February 2008 payout from Bluegrass Energy. In response, Larry indicated that he was not opposed to the substitution of words or to removing the bankruptcy provision as requested by Ruby, but he did oppose being held responsible for the tax consequences on the $91,000.00 he received from Bluegrass Energy. In addition to filing the property and settlement agreement, Ruby also filed her written deposition, which provided the family court with the statutory factors to dissolve the marriage. In the deposition, Ruby stated that she had reviewed the terms of the decree, including the agreement, and that the decree fairly disposed of all issues related to marital and nonmarital property and debts as well as maintenance.

On December 22, 2008, the family court entered the final decree of dissolution of marriage incorporating the parties' property and settlement agreement. Pursuant to the terms of the agreement, Ruby received all of the marital property, including the marital home, her retirement, and all personal property, with the exception of items that had been retrieved by Larry's family. Included in the personal property were Larry's truck and her Lexus automobile. Ruby was also awarded Larry's retirement in Paragraph 3(C):

With the exception of the non-marital portion of the Husband's retirement account, detailed in Paragraph 4, the Wife shall be entitled to retain all amounts contained in the Husband's account with Wachovia. She has already received the proceeds from the account with Edward Jones. In the event that a Qualified Domestic Relations Order is necessary for the Wife to receive said money, any such Order/s shall be prepared by counsel for the Wife.

In addition, Ruby was awarded $91,000.00 from the nonmarital portion of Larry's retirement as an offset as detailed above. This amount was to be paid via a QDRO prepared by Ruby's attorney.

The family court assigned Larry his nonmarital property, including rental properties and personal property in his or his family's possession. Larry was also assigned the nonmarital portion of his retirement as follows: “At the time of the marriage, the Husband had $292,536.05 in his retirement account. This amount, minus any offset to the Wife provided for in Paragraph 3(D) [the $91,000.00–offset] of this Agreement, shall be assigned to the Husband.” The agreement provided that it contained the entire understanding of the parties, that it would not be subject to modification by the parties or the court unless in writing and signed by the parties, and that it accomplished a full restoration of nonmarital property “except to the extent one party has freely transferred to the other nonmarital property in consideration of the terms of this Agreement.” ¹

On July 15, 2009, Ruby filed a motion requesting the family court to enter a tendered QDRO. The family court entered the QDRO the following day. We shall set forth the applicable provisions of the QDRO below:

1. That the name of the affected qualified retirement account is the Wachovia Securities account held in the name of the Respondent, Larry Nelson Willis....

2. That the Petitioner, Ruby Stamper Willis, is entitled to received [sic] all of the marital amounts contained in the Wachovia Securities account held in the name of Larry Nelson Willis as well as an additional $91,000.00 from the non-marital accounts contained in said account. That the Respondent had $292,536.05 in the Wachovia Securities account at the time of the marriage. That the Petitioner is entitled to $91,000.00 of that $292,536.05 as set forth in paragraph 3(d) in the Settlement Agreement. Therefore the Respondent shall be entitled to retain $201,536.05 of the account as his non-marital portion and the Petitioner shall receive all of the remaining amounts contained in said account.

....

6. Pursuant to the Decree of the Dissolution of Marriage entered on December 22, 2008, which approved, and incorporated by reference therein, a Settlement Agreement executed by the parties hereto, Wachovia Securities is instructed to pay directly to the Edward D. Jones Trust Company, Trustee of the account held for the benefit of Ruby Stamper Willis, the following sum: all of the amounts contained in the Wachovia Securities account held in the name of Larry Nelson Willis with the exception of the amount of $201,536.05.

....

12. The court reserves the right to amend or modify this Order, if necessary, in order to carry out the intent of this Qualified Domestic Relations Order through compliance with the requirements of the Equity Retirement Act of 1984 and/or any other state or federal law dealing with this subject, compliance with which is necessary in order to carry out the parties' intention to permit the Petitioner to share in Respondent's Wachovia Securities Account to the precise extent provided herein.

Fifteen months later, on October 14, 2010, Ruby moved the family court to modify the QDRO, which had carved out $201,536.05 from the Wachovia Securities retirement account and specifically designated this amount as Larry's nonmarital property. Ruby explained in her motion that Larry had two Wachovia Securities accounts and that an overall accounting of the accounts from the date of the marriage in 1992 until the date the QDRO was entered revealed a 17% loss in value in one and a 23% loss in...