ANTICIPATION IS KEEPING ME WAITING...

Mullins v. Mullins, NO. 2013-CA-000605-MR (Ky. App. 2014)
Is a QDRO Time Barred When Entered 15 Years Past the Date of Decree, Pursuant to KRS 413.190(1)?

Rendered: July 18, 2014
Not To Be Published
Opinion and Order Dismissing Appeal

I feel like I can already hear a collective “uh oh” ‘round the Commonwealth.  Sadly, this is actually an issue.  Meaning, it is shameful that QDROs – securing spousal rights to what is often a couple’s largest and most important asset – are not entered contemporaneously with a dissolution decree, much less more than fifteen years later.

The facts in Mullins are undisputed.  The parties were married almost 20 years.  On July 25, 1995, the Greenup Circuit Court granted Wife’s petition and dissolved the marriage.  The Decree set forth Findings of Fact, including:

The Respondent [Husband] has presently a pension through his employer and when the Respondent is entitled to draw any portion of the pension, either lump sum or periodic, at that time the Petitioner [Wife] shall be entitled to a portion of said payment... .

On January 31, 2013, nearly 20 years from the date of decree, I SAID NEARLY 20 YEARS FROM THE DATE OF THE DECREE, Wife filed a motion seeking discovery regarding Husband's pension so that she could enter a QDRO to obtain her marital property distribution.  Husband responded that Wife's motion was time barred under KRS 413.090(1).  

Is it that easy?  See for yourself, KRS 413.090(1), reads:

[T]he following actions shall be commenced within fifteen (15) years after the cause of action first accrued:
(1) An action upon a judgment or decree of any court of this state or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon;  ...

(Emphasis added).

Husband’s argument, in a nutshell, was that a QDRO is an “action upon a judgment or decree”. Thus, Wife's motion to have the court enter a QDRO more than 15 years after the issuance of the decree would be time barred under KRS 413.190.

The trial court said ‘not so fast’, agreeing with Wife that her interest in the retirement account was in fact a property right, which vested with her at the time of the entry of decree.  Thus, the trial court determined KRS 413.190 did not apply, allowing discovery on the matter to proceed.

If I can’t wait to see what the Court of Appeals will eventually do with this case, Husband must be even more anxious:  Husband appealed the trial court’s order to allow discovery.  Of course, the Court of Appeals appropriately determined such was not a final appealable order subject to the Court’s jurisdiction.

So we have to wait (goodness, I hope not ANOTHER TWENTY YEARS), as the trial court has not yet granted Wife the ultimate relief she seeks, that is, entry of the QDRO.  But as the Court of Appeals observed, husband is not left without a remedy, and the issue is likely to come back before the Court of Appeals after entry of the QDRO by the trial court:

In the event the trial court enters a Qualified Domestic Relations Order, he may pursue a direct appeal at that time. See Goff v. Goff, No. 2009-CA-000902, 2010 WL 3810735, at *7 n.8 (Ky. App. Oct 1, 2010) ("A party who believes a QDRO fails in its purpose to enforce the judgment consistently with the judgment's terms may appeal that order to this Court.") (citing Perry v. Perry, 143 S.W.3d 632, 632-33 (Ky. App. 2004)).

I’m going with the trial court on this one; I believe the QDRO merely effectuates the transfer of a vested property interest.  But I feel like the lesson here is loud and clear.  Why test KRS 413.190(1)?  Just do it.