Opinion
No. ED78368
Opinion Filed: May 1, 2001
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HONORABLE THEA A. SHERRY
Edward C. Vancil, 700 Office Parkway, David G. Kullman, Suite 230, St. Louis, MO 63141, for appellant.
Lawrence Wittels, 7701 Forsyth, Suite 950, Clayton, MO 63105, for respondent.
Before Russell, J., and Teitelman, J.
Paulette M. Ochoa (Wife) appeals the circuit court's denial of her Motion for Approval of Qualified Domestic Relations Order. The circuit court found the motion was barred pursuant to Section 516.350, RSMo 2000 , because the judgment had not been revived within the ten-year period. Wife contends the circuit court erred in denying her motion to approve the qualified domestic relations order (QDRO) because Section 452.330 authorizes the circuit court to modify a QDRO to establish or to maintain the court's order as a QDRO or to revise its terms to effectuate the intent of the order. We affirm.
All further statutory references are to RSMo 2000 unless otherwise indicated.
Wife and Marco A. Ochoa (Husband) were legally separated by a decree on March 6, 1987. Pursuant to the Decree of Legal Separation, Wife was awarded seventy-five percent of Husband's Chrysler Corporation pension and supplemental savings plan including all additions and increases. Over the years, the parties have filed various post-decree motions, none of which is germane to this appeal.
On June 30, 2000, Wife filed a Motion for Approval of Qualified Domestic Relations Order. Wife filed copies of her June 2, 1987, letters to Chrysler Corporation and Merrill Lynch, the plan administrator for the Chrysler Savings Plan, in which she requested that a copy of the court's decree be placed in Husband's records. Wife also submitted a letter dated August 13, 1987, from Merrill Lynch acknowledging receipt of a copy of the decree, but stating it could take no further action regarding Husband's savings plan account without an "additional court order." Wife did not present any evidence of an attempt to file a QDRO on the Chrysler Pension Plan until January and February 2000.
The circuit court entered its judgment denying Wife's motion, filed thirteen years after the original judgment, finding it was barred under Section 516.350 because the judgment had not been revived within the ten-year period. This appeal follows.
In her sole point, Wife contends the circuit court erred in denying her motion to approve the QDRO because Section 452.330 authorizes the circuit court to modify a QDRO to establish or to maintain the court's order as a QDRO or to revise its terms to effectuate the intent of the order. Wife, thus, asserts that Section 516.350 does not bar her motion.
Section 516.350 allows for a presumption that judgments are deemed paid unless there is revival of the judgments. Section 516.350 reads, in pertinent part:
1. Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, except for any judgment, order, or decree awarding child support or maintenance which mandates the making of payments over a period of time, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.
(Emphasis added.) Under Section 516.350.1, judgments are conclusively presumed to be paid within ten years of the original judgment unless there has been a revival of the judgment within the ten-year time period or a payment has been entered on the record. Pirtle v. Cook, 956 S.W.2d 235, 238 (Mo. 1997). Our court has held that the failure to revive a judgment within the ten-year period provided by the statute precludes any action outside the ten-year period. Starrett v. Starrett, 24 S.W.3d 211, 213 (Mo.App.E.D. 2000) (citing Hanff v. Hanff, 987 S.W.2d 352, 356 (Mo.App.E.D. 1998)). The ten-year limitation period begins to run when the judgment is rendered, not when the debt becomes certain, due, or enforceable. Id. Here, Wife seeks to get approval of a QDRO for language included in the parties' Decree of Legal Separation, which was entered in 1987 and was never revived.
Wife asserts that the language in the Decree of Legal Separation intended to establish a QDRO was not final and was subject to modification pursuant to Section 452.330. Section 452.330 provides, in pertinent part:
5. 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.
Wife argues the language in the 1987 separation agreement and incorporated by the circuit court into its Decree of Legal Separation was denominated and intended to serve as a QDRO, and thus, the circuit court could modify the decree pursuant to Section 452.330.5. We agree that Section 452.330.5 allows a circuit court to modify an order to establish or maintain a QDRO. However, the cases cited by Wife pertaining to Section 452.330.5 have been cases in which the circuit courts have modified existing QDROs within the ten-year time period and are, therefore, not persuasive. See Wells v. Wells, 998 S.W.2d 165 (Mo.App.W.D. 1999); Seal v. Raw, 954 S.W.2d 681 (Mo.App.W.D. 1997).
In Wells, the court reversed the circuit court's dismissal of the husband's motion to modify a QDRO two years after the circuit court entered the QDRO. Wells, 998 S.W.2d at 166. The court found that Section 452.330.5 authorized the circuit court to modify the QDRO. Id. at 167. In Seal, eight years after the decree dividing the husband's pension benefits, the wife filed a motion to enter a QDRO to enforce her rights to receive her share of the husband's retirement benefits and the court entered a QDRO. Seal, 954 S.W.2d at 682. The Seal court relied on Section 452.330.5 in upholding the circuit court's action. Id. at 684. The Seal court stated that Section 452.330.5 gives the circuit court authority to modify orders intended to be QDROs for the purposes set forth in Section 452.330.5. Id. at 685. The Seal court further stated, "[a]ny question regarding a variation between the terms of the QDRO and the original decree does not void the entry of the QDRO, but the circuit court may address the issue because of its continuing jurisdiction to modify the QDRO for the purposes stated in [Section] 452.330.5."Id.
In Starrett, the court addressed the issue of whether, after ten years, a decree of dissolution could be enforced and whether the circuit court could enter a QDRO and direct husband to reinstate the wife as survivor beneficiary of military retirement benefits. Starrett, 24 S.W.3d at 212-13. The Starrett court relied on Section 516.350.1 in finding that the wife's action was barred, and the circuit court erred in enforcing the decree and entering a QDRO because the judgment was presumed paid and final after ten years from the original rendition and the judgment had not been revived. Id.
This case is similar to Starrett. Although here there was already language in the judgment indicating the parties agreement to establish a QDRO, a QDRO was not approved by the plan administrator within ten years from the rendition of the judgment. Here, as in Starrett, the judgment is deemed paid and final after ten years from its original rendition, absent a revival. Wife has not revived her judgment within the ten-year time period for revival. Therefore, pursuant to Section 516.350.1, Wife cannot now maintain any action pertaining to that judgment.
"Once the conclusive presumption of payment arises, the judgment cannot be revived and no suit can be maintained." Pirtle, 956 S.W.2d at 238.
We acknowledge the harsh result occasioned by Section 516.350, especially for obligations such as these that do not become payable until after ten years from the date of the rendition of the original judgment. We agree with the sentiments raised in the concurring opinion inStarrett authored by Judge James Dowd. The legislature has found reason to allow exceptions to Section 516.350 for child support and maintenance presumably because they may be obligations that extend for an indeterminate period of time. We agree with Judge James Dowd that the legislature may need to re-examine Section 516.350 with respect to obligations that do not become due and payable during the ten-year time period.
The denial of Wife's motion is affirmed.