Summary
applying S. Ariz. Sch. to a QDRO in a dissolution case
Summary of this case from Danko v. DankoOpinion
No. 1 CA-CV 14-0143
02-24-2015
In re the Matter of: BARBARA SULLIVAN (f/k/a Logue), Petitioner/Appellee, v. JAMES LOGUE, Respondent/Appellant.
COUNSEL The Harrian Law Firm, PLC, Glendale By Daniel Riley Counsel for Appellee Popp Law Firm, PLC, Tempe By James S. Osborn Popp Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. DR1995-009617
The Honorable Sam J. Myers, Judge
VACATED AND REMANDED
COUNSEL The Harrian Law Firm, PLC, Glendale
By Daniel Riley
Counsel for Appellee
Popp Law Firm, PLC, Tempe
By James S. Osborn Popp
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined. CATTANI, Judge:
¶1 James Logue ("Husband") appeals the superior court's denial of his motion to set aside qualified domestic relations orders ("QDROs") regarding the allocation of his retirement benefits. Husband argues that the QDROs are void because they award Barbara Sullivan ("Wife") 100% of Husband's retirement benefits, rather than the 50% allocation ordered in a default judgment entered against Husband, and therefore violate Rule 44(G) of the Arizona Rules of Family Law Procedure. For reasons that follow, we vacate the superior court's order.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 1995, Wife filed for divorce from Husband after twenty-five years of marriage. During the marriage, Husband worked and accrued retirement benefits from several plans. Husband and Wife's divorce decree contained a provision awarding Wife "One-half of any and all pension, profit sharing, retirement or deferred compensation through Respondent/Husband's union." Further, the decree ordered both Husband and Wife to "execute any and all documents necessary, and [] turn over to the other party any and all paperwork necessary for carrying out the intent of this Decree and the provisions therein."
¶3 Husband applied for and was granted early retirement in 2010. Without notifying Wife, Husband liquidated one of his retirement plans into a separate account under his name only, and began receiving pension distributions from the other plans. Upon learning this, Wife petitioned the court to find Husband in contempt for not abiding by the terms of the decree, and requested that she be reimbursed for her share of the benefits received by Husband. The superior court ordered both parties to attend a hearing, and directed that "failure of [Husband] to appear may result in an order granting all relief requested in the petition."
¶4 Husband failed to attend the hearing. Husband's previously retained counsel was allowed to withdraw representation at the hearing due to Husband's failure to keep in contact with him. In a default judgment, the superior court granted Wife's petition, finding Husband in contempt for his "knowing and purposeful failure" to adhere to the terms of the divorce decree by collecting the retirement benefits for his exclusive use, and ordering that Husband reimburse Wife for her share of the benefits. The court further ordered the implementation of QDROs to reflect the proper division of retirement benefits as per the terms of the divorce decree.
¶5 Wife submitted three proposed QDROs to the superior court and sent copies to Husband. Each QDRO referred to Wife as the "Alternate Payee" and specified that she was to receive 100% of the payable benefits under each of Husband's retirement plans. Husband did not file an objection to the proposed QDROs, and the court signed them.
¶6 Husband subsequently filed a motion to set aside the QDROs, arguing they were void. He asserted that the QDROs violated the rules regarding default judgments and ERISA's anti-alienation provisions, and exceeded the jurisdiction and statutory authority of the superior court. Husband also moved for the entry of three amended QDROs. Wife responded, asserting that the default judgment was valid, and that even if it was not, Husband waived his right to object because of his previous inaction.
¶7 The superior court denied Husband's motion, and he timely appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 12-2101(A)(1).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
¶8 We review the superior court's decision regarding whether a judgment is void de novo. Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8, 282 P.3d 428, 432 (App. 2012). Under the rules governing family law proceedings, "[a] judgment by default shall not . . . exceed the amount requested." Ariz. R. Fam. Law P. 44(G). And, a judgment is void to the extent it exceeds the relief requested. S. Ariz. Sch. for Boys, Inc. v. Chery, 119 Ariz. 277, 283, 580 P.2d 738, 744 (App. 1978).
¶9 Here, the QDROs authorized by the superior court improperly granted Wife 100% of Husband's retirement benefits for an indeterminate period; she only petitioned for, and was awarded, 50% in the decree. Although Wife may be entitled to a greater percentage of future retirement benefits if Husband does not repay the arrearages owed, the indefinite award of 100% of Husband's future benefits does not properly account for Husband's remaining interest in the accounts. Accordingly, the superior court erred by denying Husband's motion to set aside the QDROs.
¶10 We note that on remand, Wife may be assigned a percentage greater than 50% of future benefits. Although Husband asserts that any such assignment would violate ERISA's anti-alienation provisions under 29 U.S.C. § 1056(d), the statute specifically permits orders garnishing retirement benefits if the "order is determined to be a qualified domestic relations order."
¶11 Moreover, by receiving a larger percentage from the retirement accounts than he was entitled to receive, Husband has diminished his own interest in the remaining funds. Thus, awarding Wife a greater percentage of the remaining value in the retirement accounts (assuming that Husband has not repaid the arrearages he owes) would not be improper. Once Wife has received the amount owed in arrears, however, her share of the retirement benefits should be set at 50% as per the decree.
¶12 Husband has requested attorney's fees and costs on appeal under A.R.S. § 25-324. In our discretion, we award him his reasonable attorney's fees and costs upon compliance with ARCAP 21.
CONCLUSION
¶13 Accordingly, we vacate the superior court's order and remand for further proceedings consistent with this decision.