Katherine RYAN, Appellant, v. Larry JANOVSKY, Appellee.
No. 45A03-1304-DR-145
Court of Appeals of Indiana.
Dec. 5, 2013.
901 N.E.2d 895
As IBM did in its appeal, ACS points to the large number of time entries IBM submitted in support of its motion for sanctions and contests the amount of the award the trial court granted in favor of IBM. Also as IBM did, ACS singles out specific time records that it contends bear no relationship to ACS‘s opposition to IBM‘s motions or to any failure on ACS‘s part to comply with the trial court‘s discovery orders. That is, as did IBM, ACS identifies a small number of time entries, speculates that there are larger problems with the trial court‘s determination of the amount of sanctions, and encourages this court to reweigh the evidence and reassess the trial court‘s award.
The amount of sanctions specified in the trial court‘s order is less than the total amount IBM requested, and within the range of the time record evidence IBM submitted in support of its motion for sanctions. Thus, as we did with IBM‘s appeal, we decline ACS‘s invitation to second-guess the trial court‘s judgment, and affirm the trial court‘s determination of the amount of sanctions to be paid by ACS.
Conclusion
The trial court did not abuse its discretion when it awarded ACS some, but not all, of the damages it requested as a result of its participation in discovery as a non-party under Trial Rule 34. Nor did the trial court abuse its discretion when it awarded IBM some, but not all, of the attorney‘s fees and other damages it incurred as a result of ACS‘s failure to comply with the trial court‘s discovery orders. We therefore affirm the trial court‘s orders on both matters.
Affirmed.
MAY, J., and BRADFORD, J., concur.
Michael W. Bosch, Highland, IN, Attorney for Appellee.
OPINION
ROBB, Chief Judge.
Case Summary and Issue
The marriage of Katherine Ryan and Larry Janovsky was dissolved in 1991 pursuant to a settlement agreement that included a provision dividing Janovsky‘s pension. Over twenty years later, Ryan presented a proposed Qualified Domestic Relations Order (“QDRO“) for Janovsky‘s signature. Janovsky refused to sign, and Ryan filed a Verified Petition for Contempt and Rule to Show Cause, alleging Janovsky was in contempt of the parties’ settlement agreement for failing to sign the QDRO. Ryan appeals the trial court‘s denial of her petition, raising one issue for our review: whether the trial court abused its discretion in finding her efforts to secure a QDRO were barred by the statute of limitations and the equitable doctrines of laches and waiver. Concluding the entry of a QDRO is not time-barred, we reverse and remand.
Facts and Procedural History
Ryan and Janovsky were married in 1974 and divorced on December 9, 1991 pursuant to a decree of dissolution and agreed property settlement that provided, in relevant part:
Wife shall receive a Qualified Domestic Relations Order for her share of Husband‘s pension which shall be computed as a sum equal to one-half (1/2) of his monthly benefit as of December 1, 1991. It is understood that Wife‘s benefits will be payable at such time as Husband receives his benefit.
Appendix of Appellant at 11.
In 2012, Ryan‘s attorney prepared a QDRO and forwarded it to Janovsky for his signature. Janovsky did not sign the document, and on October 30, 2012, Ryan filed a Petition for Contempt and Rule to Show Cause alleging Janovsky had willfully disregarded the trial court‘s December 9, 1991, order by failing to sign the QDRO. Janovsky responded that there was no legal basis to require him to sign a QDRO more than twenty years after the dissolution decree was issued. The trial court held a hearing and thereafter issued the following order:
6. Former Wife, by counsel, argued to the Court that Janovsky, the Former Husband would not be prejudiced if presently ordered to execute at this time the Qualified Domestic Relations Order.
7. Counsel for Janovsky replied that while he would not be prejudiced, the Court should also consider the equitable defenses of laches and waiver and further submitted a Memorandum relying upon Needham v. Suess, 577 [N.E.2d] 965 ([Ind.Ct.App.1991]). Further, counsel for Janovsky relied upon various statutes of limitations.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Katherine Ryan‘s Petition for Contempt and Rule to Show Cause is denied. She waited an inordinate amount of time to attempt to perfect her interest in Janovsky‘s pension. The Court finds Janov
sky‘s Response and Memorandum is well taken and holds that Ryan is not entitled to any portion of Janovsky‘s pension.
Id. at 22-23. Ryan filed a motion to correct error, pointing out that no evidence had been presented that Janovsky is receiving his pension benefits yet and arguing that neither the equitable defenses of laches and waiver nor the statute of limitations are applicable. Ryan‘s motion to correct error was also denied, and Ryan now appeals.
Discussion and Decision
I. Standard of Review
Whether a person is in contempt of a court order is a matter left to the trial court‘s discretion, and we will reverse a trial court‘s decision only for an abuse of that discretion. Evans v. Evans, 766 N.E.2d 1240, 1243 (Ind.Ct.App.2002). An abuse of discretion occurs when the trial court‘s decision is against the logic and effect of the facts and circumstances before it or when the decision is contrary to law. In re Adoption of M.P.S., Jr., 963 N.E.2d 625, 629 (Ind.Ct.App.2012).
II. Timeliness of QDRO
To meet the legislative goal of regulating and protecting pension plan funds, the Employee Retirement Income Security Act of 1974 (“ERISA“) provides that benefits may not be assigned or alienated.
The particular question of when a QDRO must be submitted is an issue of first impression in Indiana. The parties’ dissolution decree provided for an equal division of Janovsky‘s monthly pension benefits calculated as of the date of the decree. However, because no QDRO securing Ryan‘s right to this portion of Janovsky‘s pension was prepared and submitted for over twenty years, Janovsky argued, and the trial court agreed, that Ryan had forfeited her right. We agree with Janovsky and the trial court that the delay was “inordinate,” App. of Appellant at 23, and we note that Ryan offered no explanation for the extremely lengthy delay in preparing the QDRO. Nonetheless, we cannot agree that the delay has caused the forfeiture of Ryan‘s right to a portion of Janovsky‘s pension benefits. Ryan‘s right to part of Janovsky‘s pension benefits arises from the settlement agreement; the QDRO only creates her right to be paid directly from the pension plan. And neither of these rights is yet enforceable because Janovsky‘s pension benefits are not yet payable to anyone. Allowing Janovsky to retain the entirety of his pension benefits because of the delayed preparation of a QDRO is supported by neither law nor equity: the statute of limitations and caselaw relied upon by Janovsky do
Janovsky cites to
Needham is inapposite to the case before us. The ex-wife in that case was granted a money judgment for a specific sum which she recorded, thereby procuring a judgment lien on her ex-husband‘s real property. Here, we are not presented with a question about the timeliness of enforcing a judgment lien against real property. The ten-year expiration of judgment liens imposed by
Our decision that the statute of limitations does not bar the entry of a QDRO in this case is supported by the reasoning of other courts which have considered this issue. In Jordan v. Jordan, 147 S.W.3d 255 (Tenn.Ct.App.2004), the Tennessee appeals court considered whether a proposed QDRO filed more than ten years after a divorce was granted was barred by the statute of limitations.3 The court explained the process of dividing a pension plan that falls within ERISA‘s provisions:
[R]egardless of whether the parties agree to a division [of a pension plan] or the court has to decree one, an order must be entered memorializing the division. Even assuming the valid entry of an appropriate order, that order cannot be enforced in the absence of action by the plan administrator. While it is up to a court to decide how a pension plan is equitably divided in a divorce, it is clear, beyond any doubt, that, under ERISA, it is up to the plan administrator to determine whether the proposed QDRO complies with the terms of ERISA.... Once a plan administrator determines that a proposed QDRO meets the requirements of ERISA ..., the division decreed by the court, as memorialized in the now-approved QDRO, can be enforced ...; but, before the plan administrator finds and reports that the domestic relations order is qualified, the division decreed by the court cannot be enforced—regardless of what the court, the parties, or one of the parties, does or attempts to do....
Id. at 262 (emphasis in original). The court also noted that under ERISA, there is no statute of limitations for the entry of a QDRO. Id. at 260. The court concluded that “[u]ntil the proposed QDRO is approved by the plan administrator and entered by the trial court, the act of the trial court in dividing the pension plan is not complete and hence not enforceable.” Id. at 263. Accordingly, the wife‘s attempt to obtain approval of the proposed QDRO more than ten years after the divorce decree was not an action to enforce the divorce judgment and was not barred by the ten-year statute of limitations. Id.; see Ochoa v. Ochoa, 71 S.W.3d 593, 596-97 (Mo.2002) (explaining that statutory presumption that a judgment is satisfied after ten years does not prevent entry of a QDRO past the ten-year period); Bayen v. Bayen, 81 A.D.3d 865, 917 N.Y.S.2d 269, 270 (2011) (noting that “a request to compel the equitable distribution of the agreed-upon percentage of the former husband‘s pension pursuant to an ERISA-compliant QDRO is not time-barred” al-
Janovsky also invoked the equitable doctrines of laches and waiver. Laches is an equitable defense that stops a person from asserting a claim she would otherwise be entitled to assert. Angel v. Powelson, 977 N.E.2d 434, 445 (Ind.Ct.App.2012). The defendant raising such a defense must establish: “(1) inexcusable delay in asserting a known right; (2) an implied waiver arising from knowing acquiescence in existing conditions; and (3) a change in circumstances causing prejudice to the adverse party.” Id. A mere lapse of time is insufficient to show laches; “it is also necessary to show an unreasonable delay that causes prejudice or injury.” Id. Here, Janovsky has not yet retired and therefore he is not yet receiving his pension benefits. As the trial court stated in its order, Janovsky acknowledged that he would not be prejudiced by the late entry of the QDRO. The parties will be in the same position if a QDRO is entered tomorrow as they would have been if it had been entered twenty years ago. Absent a showing of prejudice, laches cannot be established. Similarly, waiver is the “voluntary and intentional relinquishment of a known right.” M.O. v. Indiana Dep‘t of Ins. Patient‘s Compensation Fund, 968 N.E.2d 254, 261 (Ind.Ct.App.2012) (citation omitted), trans. denied. “[W]aiver is an affirmative act and mere silence, acquiescence or inactivity does not constitute waiver unless there was a duty to speak or act.” Pohle v. Cheatham, 724 N.E.2d 655, 659 (Ind. Ct.App.2000). As Ryan is not yet entitled to her share of the pension benefits, any duty she has to act to secure her right to receive them has not yet inured. There is no evidence that in the twenty-plus years since the divorce, Ryan has affirmatively volunteered to relinquish her right to receive in due time the agreed-upon portion of Janovsky‘s pension.
The result of the trial court‘s order—which not only denies the entry of the QDRO but affirmatively states that Ryan is no longer entitled to a portion of Janovsky‘s pension—is a windfall to Janovsky, who agreed as part of the dissolution of his marriage to Ryan to share a portion of his pension benefits when he began receiving them. And we note that even if the statute of limitations did bar the entry of a QDRO at this late date, all that would mean is that Ryan was not entitled to receive her share of the benefits directly from Janovsky‘s pension plan. She would still be entitled to payment of those amounts directly from Janovsky pursuant to the terms of the settlement agreement.
Conclusion
Because Ryan‘s request for the entry of a QDRO securing her right to payment from Janovsky‘s pension plan is not time-barred by law or equity, the trial court abused its discretion in denying Ryan‘s motion and ordering that she was not entitled to the previously-agreed portion of Janovsky‘s pension benefits. The trial court‘s order is therefore reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
RILEY, J., and KIRSCH, J., concur.