" In response to a statement by the court to Husband that under the current law, as represented by Wife's counsel, Wife was entitled to her benefits when Husband became eligible for retirement, Husband responded, "Okay." In response to a statement by the court to Husband that under the case of Ruggles v. Ruggles, 116 N.M. 52, 860 P.2d 182 (1993), as it was represented by Wife's attorney, Wife was entitled to receive the amounts that Wife's attorney had represented earlier, and to a follow-up inquiry whether he understood that, Husband replied, "I understand that." "[S]ympathetic to a degree" that Husband did not have an attorney, the court indicated that if Husband chose to get legal counsel "to dispute that amount," Husband would have to have his attorney file a motion in that regard, suggesting that the court would not "go back and redo" the formula, but that perhaps "the figures that [Wife would] receive . . . would change.
"A QDRO is a mechanism by which a nonemployee spouse can receive his or her community share of an employee spouse's retirement benefits directly from the employer." Ruggles v. Ruggles, 116 N.M. 52, 55 n. 3, 860 P.2d 182, 185 n. 3 (1993). "QDRO[s] were created by the Retirement Equity Act of 1984."
{14} Husband argues that the relevant date to commence a lawsuit to divide retirement benefits for statute of limitation purposes is the date of divorce regardless of vesting or maturation because, as stated in several New Mexico cases, the right to divide retirement benefits arises at the time of divorce. See, e.g., Copeland v. Copeland, 91 N.M. 409, 412-13, 575 P.2d 99, 102-03 (1978) (holding that vested retirement rights earned during the marriage are a community asset subject to division at time of divorce, even though the husband has not yet retired); see also Ruggles v. Ruggles, 116 N.M. 52, 58, 860 P.2d 182, 188 (1993) ("In Hurley [v. Hurley, 94 N.M. 641, 615 P.2d 256 (1980), overruled on other grounds by Ellsworth v. Ellsworth, 97 N.M. 133, 637 P.2d 564 (1981),] we simply reaffirmed the Copeland principle that a spouse is entitled to his or her community share of that portion of a retirement plan which is vested but unmatured as of the date of divorce."). We reject Husband's argument.
18. Wife's response to Husband's claim relies in part on this Court's decision in Ruggles v. Ruggles, 114 N.M. 63, 834 P.2d 940 (Ct.App. 1992) ( Ruggles I), rev'd, 116 N.M. 52, 860 P.2d 182 (1995). Ruggles I, in accord with our Supreme Court's decision in Schweitzer v. Burch, 103 N.M. 612, 711 P.2d 889 (1985), held, inter alia, that unless the parties agree otherwise, the trial court in a divorce proceeding must apportion the community interest in a spouse's retirement plan on a " 'pay as it comes in' basis."
845 P.2d at 1236citing American Bank of Commerce v. M GBuilders, Ltd. 92 N.M. 250 252 586 P.2d 1079 1081McNeil v. Rice Engineering and Operating, Inc. 133 N.M. 804 808 70 P.3d 794 798cert.denied 133 N.M. 771 70 P.3d 761i.e.SeeC.R. Anthony Co. 112 N.M. at 509 817 P.2d at 243 and cf. McNeill 133 N.M. at 812 70 P.3d at 802citing C.R. Anthony Co. 112 N.M. at 507 817 P.2d at 241See Ruggles v. Ruggles 116 N.M. 52 69 860 P.2d 182 199C.R.Anthony Co. 112 N.M. at 504 817 P.2d at 242Ruggles 116 N.M. at 69 860 P.2d at 199 1. The parol evidence rule does not bar this Court's hearing evidence of the circumstances surrounding the making of a contract and of any relevant usage of trade, course of dealing, and course of performance in order to decide whether the meaning of a term or expression in the contract is actually unclear. , , , , (1993) ( , , , , (1991).
In response, PERA cites Ruggles v. Ruggles to support its argument that “the benefits themselves do not vest in the survivor.” See116 N.M. 52, 860 P.2d 182 (1993). To the extent that Mrs. Martinez attempts to distinguish Ruggles on grounds that it is a divorce case not focused on survivor benefits, we are not persuaded.
In response, PERA cites Ruggles v. Ruggles to support its argument that "the benefits themselves do not vest in the survivor." See 116 N.M. 52, 860 P.2d 182 (1993). To the extent that Mrs. Martinez attempts to distinguish Ruggles on grounds that it is a divorce case not focused on survivor benefits, we are not persuaded.
In the alternative, he sought a Qualified Domestic Relations Order awarding Wife her community property interest in his retirement fund. See Ruggles v. Ruggles, 116 N.M. 52, 55 n. 3, 860 P.2d 182, 185 n. 3 (1993) (describing Qualified Domestic Relations Orders). Among the district court's findings were the following:
We recognize that approximately half of the community property jurisdictions have expressed a preference for application of the present value methodology to value and divide pension rights upon divorce. See Ruggles v. Ruggles, 860 P.2d 182 (N.M. 1993); Gemma v. Gemma, 778 P.2d 429 (Nev. 1989); Koelsch v. Koelsch, 713 P.2d 1234 (Ariz. 1986); In re Gillmore, 629 P.2d 1 (Cal. 1981).
¶17 The PSA is silent as to division of the pension and the terms of the QDRO. See, e.g., Ruggles v. Ruggles, 860 P.2d 182, 199 (N.M. 1993) (the absence of a provision from an agreement concerning when payments from a retirement plan would begin does not mean the parties agreed to wait until the employee spouse retired to begin making payments). Because the agreement is silent about when payments would begin and what formula would be used, the agreement did not prohibit the superior court from ordering direct payments prior to Husband's retirement.