Workman v. WorkmanWorkman v. Workman
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Plаintiff-husband appeals from Qualified Domestic Relations Order (QDRO) dividing husband’s pension benefits based upon the benefits accumulated during the marriage. We affirm.
Husband and wife were married 3 April 1965, separated on 1 July 1987, and divorced on 7 September 1988. The parties agreed to a division of all the marital property except for the husband’s IBM pension and retirement benefits, survivor’s benefits, and preretirement benefits. The parties agreed that wife was entitled to one-half оf the marital portion. The parties further agreed to submit the disputed issues to the district court for resolution. On 6 April 1990 the district court entered a QDRO ordering the following:
1. As a part of the equitable distribution of the parties’ marital property, defendant shall be entitled to an assignment of a part of plaintiff’s retirement benefit plan to be calculated as follows:
(a) 22.25 years (representing the length of the parties’ marriage until the date of their separation contemporaneous with plaintiff’s IBM employment) divided by the total number of years of plaintiff’s actual employment earning the pension and retirement benefits times 50%.
(b) The percentage set forth within paragraph (a) shall be applied to the total retirement benefit to be received by the plaintiff from the IBM Retirement Plan before any reduction for purchase of a joint and survivor annuity for any party other than the defendant. . . .
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2. Defendant shall receive directly from the IBM Retirement Plan a portion of the plaintiff’s monthly retirement benefit based upon the percentage formula described in paragraph 1(a) above. Additionally, defendant shall participate in any improvements to and/or increases in the retirement benefit *565 payments received by the plaintiff after the entry of this order. Defendant’s entitlement to participate in these improvements and/or increases shall be based upon the formula set out in paragraph 1(a) above.
3. Defendant shall begin to receive the above percentage of plaintiff’s retirement benefits at the time plaintiff begins to receive his retirement benefits.
4. In the event plaintiff dies prior to plaintiff beginning to receive retirement benefits and the plaintiff is survived by defendant, then the defendant shall be a beneficiary of the Plan’s pre-retirement spouse protection option (PRSP) with benefits payable to the surviving spоuse of the plaintiff. Defendant shall participate in this PRSP option only with respect to the portion of plaintiff’s vested benefits earned during the marriage of the parties; the defendant to be treated as the plaintiff’s surviving spouse for the purposes of Section 401(a)(ll) and 417 of the Internal Revenue Code of 1986 as to the portion of vested benefits earned by the plaintiff during the marriage of the parties. Defendant shall receive that percentagе (to the nearest whole percentage) of the benefits paid under the PRSP as determined by the formula set out in paragraph 1(a) above.
5. Defendant shall remain continuously covered by the joint and survivor annuity option of the plaintiff’s Retirement Benefit Plan which option shall provide for continued monthly payments to the defendant in the event she is predeceased by the plaintiff and the plaintiff dies after be [sic] begins to receive retirement benefits under the Retirement Plan. For the purposes of the survivor annuity option the defendant shall be treated as a surviving spouse for the purposes of Section 401(a)(ll) and Section 417 of the Internal Revenue Code of 1986 as to the portion of the vested retirement benefits earned by the plaintiff during the marriage of the parties and the plaintiff shall not be entitled to elect a joint and survivor annuity option for the benefit of the defendant which will result in the defendant receiving а lesser payment after the death of the plaintiff than she received before the death of the plaintiff. . .. The defendant shall receive that percentage (to the nearest whole percentage) of the benefits paid under the joint and survivor annuity determined by the formula as follows:
*566 22.25 years (representing the length of the parties’ marriage until the date of their separation contemporaneous with the plaintiff’s IBM employment) divided by a numeral rеpresenting the total period of plaintiff’s actual employment with IBM earning pension and retirement benefits. In no event shall the benefit paid to the defendant following the death of the plaintiff exceed the amount which defendant was receiving during the period in which the plaintiff was alive and the defendant was receiving benefits pursuant to the IBM Retirement Plan as the alternate payee except for those plan improvements and/or increаses to which defendant is entitled. The costs of this joint and survivor annuity protection to be maintained for the benefit of the defendant shall be calculated separately for the defendant based solely upon defendant’s age. At the date of the entry of this order the defendant is 47 years old. . . .
6. Defendant shall not name a surviving beneficiary under the Plan; should defendant predecease plaintiff, her share of benefits under the Plan shall revert to plaintiff.
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8. Defendant is entitled to a portion of plaintiff’s IBM Retirement Plan benefits in the manner described above provided that:
(a) Payment of said sum does not require the Plan to provide any type or form of benefit or any option not otherwise provided under the Plan.
(b) This order does not require the Plan to pay out more benefits to the payee than the participant is entitled to.
(c)This order does not require the Plan to pay any benefits already required to be paid to another alternate payee under a previous QDRO.
On appeal, plaintiff-husband presents three issues: (1) whether the QDRO violates
The distributive award of vested pension, retirement, and other deferred compensation benefits may be made payable:
a. As a lump sum by agreement;
b. Over a period of time in fixed amounts by agreement;
c. As a prorated portion of the benefits made to the designated recipient at the time the party against whom the award is made actually begins to receive the benefits; or
d. By awarding a larger portion of other assets to the party not receiving the benefits, and a smaller share of other assets to the party entitled to receive the benefits.
. . . The award shall be determined using the proportion of time the marriage existed, (up to the date of separation of the parties), simultaneously with the employment which earned the vested pension, retirement, or deferred compensation benefit, to the total amount of time of employment. The award shall be based on the vested accrued benefit, as provided by the plan or fund, calculated as of the date of separation, and shall not include contributions, years of service or compensation which may accrue after the date of separation. The award shall include gains and losses on the prorated portion of the benefit vested at the date of separation. No award shall exceed fifty percent (50%) of the benefits ....
Id. Prior to the’ 1987 amendment the statutе provided in pertinent part:
The award shall be based upon the proportion of the amount of time the marriage existed, simultaneously with the employment which earned the vested pension or retirement rights to the total amount of time of employment. Said award shall not be based on contributions made after the separation, but *568 shall include any growth on the amount of the pension or retirement account vested at the time of the separatiоn.
In Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986), aff’d, 319 N.C. 367, 354 S.E.2d 506 (1987), we addressed two methods for determining the division of pension and retirement benefits. Plaintiff-wife brought action for equitable distribution of marital property. Although both parties had vested pensions and retirement rights, the trial court considered only the division of the husband’s pension and retirement benefits. The trial court first determined that, if the defendant had retired on the date of separation, he would have been entitled to receive 62.5% of his basic monthly pay. The trial court then determined that defendant had served in the United States Army for 24 years and 11 months, and for 22 years and 3 months of that time defendant was married to plaintiff. Next, the trial court determined that 87% of defendant’s pension and retirement benefits were earned during the marriage. Taking the life expectancy of defendant and a rate of return of investment, the trial court calculated the present lump sum value of defendant’s pension and retirement benefits. The trial court concluded that an equal division of the property would be equitable. In addition to the full amount of her vested pension, the trial court awarded plaintiff a lump sum as the present value of defendant’s vested military pension to be distributed to plaintiff in monthly installments once defendant began receiving his retirement pay.
On appeal we reversed. We first discussed the advantages and disadvantages of the two primary methods of evaluating and distributing pension and retirement benefits — present discounted value method and fixed percentage method. Under the first method, the trial court must calculate “the present value of the vested pension, as of the date of separation . . . discounted for interest in the future and taking into account the employee spouse’s life expectancy.” Seifert, 82 N.C. App. at 334, 346 S.E.2d at 506-07. The trial court must further calculate “the percentage of present value attributable to the marriage period . . . and the аppropriate equitable share to which the nonemployee spouse is entitled.” Id. at 334, 346 S.E.2d at 507. Under the second method
the court should award to the nonemployee spouse a percentage of that portion of the pension benefits attributable to the *569 marriage period. The portion attributable to the marriage is determined by multiplying the net pension benefits by a fraction, the numerator of the fraction being the total period of time the employee spouse was a participant in the plan within the marriage period (from date of marriage to date of separation) and the denominator being the total period of the employee spouse’s participation in the plan.
Id.
at 336, 346 S.E.2d at 508. We found the latter method consistent with
On appeal, the North Carolina Supreme Court affirmed. The Court agreed with the majority of the Court of Appeals that
Under the fixed percentage method, deferral of payment is possible without unfairly reducing the value of the award. The present value of the pension or retirement benefits is not considered in determining the percentage to which the nonemployee spouse is entitled. Moreover, because the nonemployee spouse receives a percentage of the benefits actually paid to the employee spouse, the nonemployee spouse shares in any growth in the benefits. . . . Yet, the formula gives the nonemployee spouse a percentage only of those *570 benefits attributable to the period of the marriage, and that spouse does not share in benefits based on contributions made after the date of separation.
Seifert v. Seifert, 319 N.C. 367, 370-71, 354 S.E.2d 506, 509 (emphasis added). Finally, the Court noted that the fixed percentage method does not “violate the mandate that the court must identify the marital property, ascertain its net value, and then equitably distribute it,” Seifert, 319 N.C. at 371, 354 S.E.2d at 509, because “valuation of these benefits, together with other marital property, is necessary to determine the percentage of these benefits that the nonemployee spouse is equitably entitled to receive.” Id.
Plaintiff challenges the trial court’s use of the
Seifert
formula on two grounds: (1) that the legislature intended to modify the
Seifert
decision by amending the language of
Plaintiff also contends that the trial court awarded defendant benefits in excess of the 50% limit set forth in
Plaintiff further contends that the trial court improperly awarded defendant joint and survivor annuity benefits and pre-retirement benefits. The trial court ordered in pertinent part:
10. Defendant shall remain continuously covered by the joint and survivor annuity option of the plaintiff’s Retirement Benefit Plan which option sháll provide for continued monthly payments to the defendant in the event she is predeceased by the plaintiff and the plaintiff dies after he begins to receive retirement benefits under the Retirement Plan. . . . The plain *572 tiff shall not be entitled to elect a joint and survivor annuity option for the benefit of the defendant which will result in the defendant receiving a lesser payment after the death of the plaintiff than she received before the death of the plaintiff.
... In no event shall the benefit paid to the defendant following the death of the plaintiff exceed the amount which the defendant was receiving during the period in which the plaintiff was alive and the defendant was receiving benefits pursuant to the IBM Retirement Plan as the alternate payee, except for those plan improvements and/or increases to which defendant is entitled. . . .
11. In the event plaintiff dies prior to plaintiff’s beginning to receive retirement benefits and the plaintiff is survived by defendant, then the defendant shall be a beneficiary of the Plaintiff’s pre-retirement spouse protection option (PRSP) with benefits payable to the surviving spouse of the plaintiff. Defendant shall participate in this PRSP option only with respect to the portion of plaintiff’s vested benefits earned during the marriage of the parties .... (Emphasis in original.)
We find the trial court’s order consistent with
In the event the person receiving the award dies, the unpaid balance, if any, of the award shall pass to the beneficiaries of the recipient by will, if any, or by intestate succession. In the event the person against whom the award is made dies, the award to the recipient shall remain payable to the extent permitted by the pension or retirement system or deferred compensation plan or fund involved.
Plaintiff next assigns as error the trial court’s exclusion of the parties’ separation agreement and failure “to take into consideration the impact of relevant facts in the determination of an appropriate qualified domestic relations order.” Plaintiff argues that in determining defendant’s share of the IBM benefits the trial, court should have taken into consideration the parties’ intent in the separation agreement to provide defendant with decreasing income up to plaintiff’s retirement. We disagree. In the divorce judgment, the trial court found:
[T]he parties have agree that a QDRO (qualified domestic relations order) shall be entered in this matter making a division of the marital portion of the IBM pension and retirement benefits, and the survivor’s benefits and pre-retirement survivor’s benefits, to which the Defendant may be entitled, if any. . . . This subsequent order shall further address whether the Defendant is entitled to any post-retirement or preretirement survivor’s benefits from IBM and whether, if she is so entitled, there should be an adjustment to her one-half marital portion to reflect the entitlement to such benefits.
The district court undertook to determine defendant’s share of the marital portion of the IBM benefits. In calculating defendant’s share, the district court had no need to consider the separation agreement, since the method of division was in no way dependent upon the terms of the separation agreement. We find the trial court also properly excluded evidenсe concerning defendant’s education and ability to support herself, because such factors are to be considered only if the parties disagreed whether the property is to be divided equally or unequally. See Miller v. Miller, 97 N.C. App. 77, 387 S.E.2d 181 (1990). Here, the parties agreed to an equal division.
Plaintiff contends that the trial court erred in excluding evidence of alimony payments because under the QDRO defendant will receive a double benefit since “defendant would receive her share of plaintiff’s pension as a property,division and another part of his pension
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as alimony.”
Lastly, plaintiff contends that the trial court erred in admitting into evidence letters from IBM concerning proposed QDRO. Plaintiff’s claim that the letters were irrelevant has no merit. Plaintiff’s own expert testified that he used the letters in forming his opinion and that he advised plaintiff’s counsel based upon material in the letters. We find the letters admissible pursuant to
For the reasons set forth above, the trial court’s order is
Affirmed.
Judges Arnold and Lewis concur.