Douglas S. Johnston
Appeal from Superior Court, Windsor Unit, Family Division
Elizabeth D. Mann, J.
Fink, Ludlow, for Plaintiff-Appellant.
S. Davis and Boolie Sluka (On the Brief) of Davis Steadman
Ford & Mace, LLC, White River Junction, for
PRESENT: Reiber, C.J., Skoglund and Robinson, JJ., and
Teachout, Supr. J. and Howard, Supr. J. (Ret.), Specially
1. This case asks us to examine that strange procedural
device, the Qualified Domestic Relations Order (QDRO), and
how it intersects with the statute of limitations for actions
on judgments. The parties divorced in November 2004. As part
of the divorce, the court ordered wife to transfer funds from
her retirement account to husband. In 2006, the court
approved a proposed QDRO to effectuate the transfer of said
funds. The order was never "qualified," however,
because there was no money in the retirement account that
wife identified. The court approved another proposed QDRO in
February 2007 specifying a different retirement account
identified by wife. In August 2017, husband filed a motion to
enforce, asserting that the owed funds were never transferred
to him and that there were no funds in the second retirement
account that wife identified. The court denied husband's
motion to enforce, finding it barred by the eight-year
statute of limitations for actions on judgments. As set forth
below, we do not consider husband's attempt to effectuate
a transfer of these retirement funds by QDRO to be an action
on a judgment, and we therefore reverse and remand.
2. We begin with an overview of the relevant law governing
the division of retirement accounts. A court must engage in a
two-step process to divide retirement accounts governed by
the federal Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. §§ 1001-1461. It first
"enters a substantive order which equitably divides and
assigns the parties' property." Breslin v.
Synnott, 2012 VT 57, ¶ 6, 192 Vt. 79, 54 A.3d 525.
It then enters a Domestic Relations Order (DRO)
"directing the [retirement] plan administrator to make
certain specified payments to the ex-spouse."
Id. (citations omitted). We have described a DRO as
a "procedural device that enforces an underlying
substantive order." Id. ¶ 7; see also 2 B.
Turner, Equitable Distribution of Property § 6:20 (4th
ed. 2019) (expressing similar sentiment).
3. "The [retirement] plan administrator determines
whether the order is qualified- whether a Q can be added to
the DRO-subject to the right of either spouse to appeal the
decision to a state or federal court." 2 Turner,
supra, § 6:20. This results in a
QDRO. "A qualified order assures that a
spouse receives benefits as an alternate payee."
Ochoa v. Ochoa, 71 S.W.3d 593, 596 (Mo. 2002)
(citing 29 U.S.C. § 1056(d)(3)(A), (J)).
4. As Turner recognizes, "the requirements for
qualification are difficult to meet." 2 Turner,
supra, § 6:20; see also Larimore v.
Larimore, 362 P.3d 843, 849 (Kan.Ct.App. 2015)
(explaining that "valid QDRO must meet the comprehensive
requirements of at least three federal acts, as amended: the
Internal Revenue Code, [ERISA], and the Retirement Equity Act
of 1984" (alteration in original) (quotation omitted).
When a plan receives a proposed QDRO, the plan administrator
must "promptly notify the participant and each alternate
payee of the receipt of such order and the plan's
procedures for determining the qualified status of domestic
relations orders." 29 U.S.C. § 1056(d)(3)(G)(i)(I).
"[W]ithin a reasonable period after receipt of such
order," the plan administrator must "determine
whether such order is a qualified domestic relations order
and notify the participant and each alternate payee of such
determination." Id. §
5. "If the administrator refuses to qualify the DRO, the
court may amend it to address the source of the
problem." 2 Turner, supra, § 6:20
(explaining that "[e]ssentially all jurisdictions"
agree, with respect "to revision of DROs and other
attempts to draft qualified orders dividing retirement
benefits," that "[t]hose orders are subject to
future changes without limitation, so long as the
modification only enforces the court's previous
substantive order, without modifying that order's
substantive terms"). As indicated, "the modern rule
is that the court may modify its DRO any number of
times." Id. This modifiability is a strength of
a DRO's "limited status . . . as [a] procedural
device rather than [a] substantive order."
Id. "[T]he weakness is that the DRO cannot
reach a result inconsistent with the underlying substantive
6. "In short," Turner explains:
when dividing retirement benefits, the law of equitable
distribution is not playing on its home field. Because of
ERISA, pension issues are litigated in material part upon the
home field of the plan administrator. . . . Because the plan
administrator is not required to play by normal state court
rules, normal state court procedures must be adapted to the
unique setting of DROs under ERISA.
7. With this overview in mind, we turn to the facts. The
parties here divorced in November 2004 after a
twenty-five-year marriage. The court ordered an equal
division of the marital assets. Both parties had pensions and
various retirement accounts. As relevant here, the court
ordered wife to transfer $27, 655 from one or both of ...