Opinion
NO. 2017 CA 1153 NO. 2017 CA 1154
04-06-2018
RONALD ANTHONY PEMBO, III v. DANA MONTECINO PEMBO CONSOLIDATED WITH DANA MONTECINO PEMBO v. RONALD ANTHONY PEMBO, III
NICOLE R. DILLION CELESTE H. SHIELDS HAMMOND, LA ATTORNEYS FOR PLAINTIFF-APPELLEE RONALD ANTHONY PEMBO, III JENNIFER C. CARTER NEW ORLEANS, LA ATTORNEY FOR DEFENDANT-APPELLANT DANA MONTECINO PEMBO
NOT DESIGNATED FOR PUBLICATION Appealed from the 21st Judicial District Court in and for the Parish of Tangipahoa, Louisiana
Trial Court Nos. 2011-0002832 and 2011-0003114
Honorable Jeffery T. Oglesbee, Judge NICOLE R. DILLION
CELESTE H. SHIELDS
HAMMOND, LA ATTORNEYS FOR
PLAINTIFF-APPELLEE
RONALD ANTHONY PEMBO, III JENNIFER C. CARTER
NEW ORLEANS, LA ATTORNEY FOR
DEFENDANT-APPELLANT
DANA MONTECINO PEMBO BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ. PETTIGREW, J.
In this community property partition case, the former wife appeals a judgment amending a Qualified Domestic Relations Order ("QDRO") to correct an error which resulted in an overpayment to the wife, ordering a recalculation of the amount due to the wife based on the correction, and ordering a repayment by the wife of any overpayment. Because the judgment appealed is not a valid final judgment, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
A Petition for Divorce was filed to terminate the marriage between Ronald Anthony Pembo ("Ronald") and Dana Montecino Pembo ("Dana") on August 26, 2011, and the community property regime was later terminated retroactive to that date. A partition order was signed by the district court on June 11, 2014. Among the property partitioned was a Dow Chemical Company Employees' Savings Plan ("the Plan") account. The partition order specified that Dana would receive $64,623.18 from the Plan and these funds would be segregated into an account in Dana's name pursuant to a QDRO to be prepared by Ronald's counsel. The QDRO, also signed on June 11, 2014, assigned $64,623.18 of the vested account balance under the Plan to Dana as of August 26, 2011, and provided that Dana "will be entitled to any interest and investment earnings or losses attributable thereto for periods subsequent to the assignment date [August 26, 2011] until the date of total segregation of [Dana's] assigned share into separate account(s)."
Both parties were notified by a letter dated July 15, 2014, from QDRO Consultants Company, LLC that the June 11, 2014 QDRO had been reviewed and was qualified under applicable Federal pension law. The letter explained how the QDRO would be interpreted, including that "Ms. Pembo will be entitled to any investment gains/losses attributable to her assigned share of the benefits for periods subsequent to August 26, 2011, until the date of total distribution," and instructed the parties to respond in writing within 60 days if they disagree with this interpretation of the QDRO. According to an August 8, 2014 letter to Dana from Fidelity Investments Institutional Operations Company, the total market value of the assets transferred to the account established for her was $105,862.28. This amount was eventually distributed to Dana.
On July 1, 2015, Ronald filed a Rule to Show Cause alleging that the partition order and the QDRO both contained errors, resulting in a payment to Dana from the Plan in the amount of $105,862.28. Ronald alleged that the partition order contained an error in the calculation of the equalization payment, which error was then carried over into the division of the Plan account. He further alleged that in calculating the amount Dana would receive from the Plan ($64,623.18), the district court relied on the value of the community interest in the Plan ($201,797.62) as of November 7, 2013. According to Ronald, the $201,797.62 already included interest and earnings made on the community portion of the account from August 26, 2011 to November 7, 2013; therefore, the provision in the QDRO stating that Dana would be entitled to interest and earnings for the period from the assignment date, August 26, 2011, until the date Dana's assigned share was segregated into a separate account, resulted in an overpayment. Ronald asked the district court to amend the partition order to reduce the equalization payment to $6,090.57 and recalculate the amount that Dana would receive from the Plan based on the correct equalization payment; to amend the QDRO to state the correct amount to be received by Dana from the Plan and to specify that she was not entitled to any additional interest or earnings subsequent to the assignment date; and to order Dana to return the amount of the overpayment to the Plan. Dana filed an Exception of Res Judicata, urging that the partition order and QDRO were final judgments and not subject to substantive amendments.
The difference in the value of the assets received by the parties in the partition was $12,181.15. However, rather than awarding one-half of that amount to Dana to equalize the values of the assets received by the parties, the district court awarded the entire $12,181.15 to Dana. The amount to be received by Dana under the Plan was then calculated by the district court based on one-half of the community funds in the Plan, less a net sum that took into account assumed liabilities and reimbursements owed (including the equalization payment) between the parties, and, according to Ronald, this resulted in a miscalculation of the portion of the account to be received by Dana.
The matter was submitted to the district court on briefs, and on April 24, 2017, the district court signed a judgment ordering that the QDRO be amended to reflect an assignment date of November 7, 2013, rather than August 26, 2011; that the amount due to Dana be recalculated using the correct assignment date; and that Dana return any funds received in excess of the recalculated amount. The court denied all other relief requested by Ronald, i.e., the correction of the calculation of the equalization payment in the Order Partitioning Community Property, as well as Dana's Exception of Res Judicata. The district court signed an amended QDRO on April 24, 2017, replacing all provisions of the June 11, 2014 QDRO and designating the assignment date as November 7, 2013.
Dana filed a suspensive appeal from the April 24, 2017 judgment ordering the amendment, recalculation, and repayment, alleging that the district court erred in substantively amending the partition order after all delays for a new trial or appeal had run and in denying her exception of res judicata.
Dana's motion for suspensive appeal requested an appeal from the "final judgment . . . rendered . . . on April 24, 2017, and notice issued by the Clerk of Court [on] April 25, 2017." The order of appeal granted an appeal from the "Judgment rendered in the above cause on April 24, 2017." Both the judgment rendered by the district court on the rule to show cause and exception of res judicata, as well as the amended QDRO, were rendered on April 24, 2017, with notice issued April 25, 2017, therefore it was unclear which April 24, 2017 judgment Dana intended to appeal. This court issued a Rule to Show Cause ordering the parties to show cause by brief as to which Judgment is properly before this court on appeal. Dana filed a brief with this court in response, clarifying that she intended to appeal only the April 24, 2017 judgment on the rule to show cause and exception of res judicata, and did not intend to appeal the amended QDRO because it was merely an interlocutory order, which was a by-product of the April 24, 2017 judgment, and need not be appealed directly. --------
DISCUSSION
Appellate courts have the duty to determine, sua sponte, whether their subject matter jurisdiction exists, even when the parties do not raise the issue. Perkins v. BBRC Investments, 14-0298, p. 3 (La.App. 1 Cir. 10/17/14), 205 So.3d 930, 932-33. Under Louisiana law, a final judgment is one that determines the merits of a controversy, in whole or in part. La. C.C.P. art. 1841. A final judgment must be identified as such by appropriate language. La. C.C.P. art. 1918. A valid judgment must be precise, definite, and certain. Gaten v. Tangipahoa Parish School System, 11-1133, p. 3 (La.App. 1 Cir. 3/23/12), 91 So.3d 1073, 1074. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. The amount of recovery should be determinable from a judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Crockerham v. Weyerhaeuser Holden Wood Products, 16-0331, pp. 15-16 (La.App. 1 Cir. 6/2/17), 223 So.3d 533, 543, writ denied, 17-1121 (La. 10/27/17), 228 So.3d 1232; Vanderbrook v. Coachmen Industries, Inc., 01-809, p. 12 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 913.
The April 24, 2017 judgment orders the recalculation of the amounts to be received by Dana to reflect the corrected assignment date. The judgment then orders Dana to pay Ronald "any sums previously received by [Dana] in excess of the recalculated amount . . . within ninety (90) days of the signing of this Judgment and . . . include judicial interest from the date of the original distribution." The amount awarded by this judgment, "any sums previously received by [Dana] in excess of the recalculated amount," is an amount that is determinable only by reference to an extrinsic source, i.e., the recalculation to be done based on the amended QDRO. Thus, the judgment is ambiguous, lacks appropriate decretal language, and cannot be considered a final judgment. See Perkins, 14-0298 at pp. 3-4, 205 So.3d at 933 (Judgment awarding "attorney's fees of 33 1/3% of [principal] and interest on [prior] judgment" was ambiguous, lacked appropriate decretal language, and cannot be considered a final judgment.). In the absence of a final judgment, this court lacks appellate jurisdiction to review this matter. Gaten, 11-1133 at p. 4, 91 So.3d at 1074.
CONCLUSION
For the foregoing reasons, the appeal of the April 24, 2017 judgment of the district court ordering the amendment of the QDRO, recalculation of the amount to be received by Dana, and repayment of sums received in excess of the recalculated amount is dismissed. Costs of this appeal are assessed to appellant, Dana Montecino Pembo.
APPEAL DISMISSED.