Opinion
No. 05-16-01037-CV
11-30-2017
BRETT GOW, Appellant v. SHEILA EVA SEVENER, Appellee
On Appeal from the 255th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-16-02864
MEMORANDUM OPINION
Before Justices Francis, Myers, and Whitehill
Opinion by Justice Whitehill
This case involves the trial court's denial of a post-divorce decree request to amend a Qualified Domestic Relations Order (QDRO) to address a discrepancy between the QDRO's valuation date and the underlying decree's valuation date. In three issues, Husband argues that: (i) the trial court abused its discretion by refusing to enter the amended QDRO; (ii) he was denied due process when the trial court denied his requested relief without providing notice of the hearing; and (iii) the trial court's failure to record the hearing constitutes reversible error. We affirm the trial court's order.
I. BACKGROUND
The trial court's July 24, 2015 rendition granted Husband and Wife's divorce. The rendition's property to wife list said she was to receive $120,000 out of Husband's 401(k): "14) Portion of Husband's IBM 401K $120,000.00." Husband was to receive "11) Portion of Husband's IBM 401K $186,756.66." Husband's portion appeared to be the remaining balance after Wife's $120,000share was subtracted from the then total balance.
The final decree, signed on August 21, 2015, provided that Wife's portion of Husband's IBM 401(k) would be as of July 23, 2015 and would include "any interest, dividends, gains, or losses on that amount [$120,000.00] arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed." Again, Husband was to receive "that portion being as of July 23, 2015 approximately $186,756.66, together with any" gains or losses since the date specified in the QDRO.
That same day, the court entered a QDRO awarding Wife $120,000 out of Husband's IBM 401(k) as of the "Valuation Date," which the QDRO defined to be August 21, 2015. The QDRO further provided that Wife's "award is entitled to earnings (gains and losses) from the Valuation Date to the date the award is segregated from [Husband's] account."
Neither party appealed from the decree or the QDRO. More specifically, Husband did not file any post-judgment challenges to the decree or the QDRO while the court retained plenary power.
But, 123 days later, on December 22, 2015, Husband filed a motion to modify or clarify the QDRO. On January 27, 2016, the court conducted a hearing on that motion, which it "dismissed for lack of jurisdiction."
Subsequently, on February 8, 2016, Husband filed a petition requesting an amended QDRO under Family Code § 9.101. The petition stated only that valuation date was wrong in the original QDRO, and requested an amendment of the QDRO to effectuate the property division stated in the divorce decree and asked for attorney's fees, expenses, costs, and interest. Wife answered with a general denial.
The court held a May 31 hearing at which counsel for both parties appeared, and the parties stipulated to several facts, including that Wife had already received her $120,000 payment from the plan. When the hearing concluded, the trial court found that no subsequent or extraneous event rendered the QDRO ambiguous and denied the requested amendment. Husband timely requested findings of fact and conclusions of law, which were filed. The findings state, inter alia, that the QDRO division date was August 21, 2015, the date of the judgment. This appeal followed.
II. ANALYSIS
A. Did the trial court err by refusing to amend the QDRO?
1. Standard of Review
We review a trial court's property division for an abuse of discretion. Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex. App.—Houston [14th Dist.] 2008, pet. dism'd w.o.j.). We likewise review the trial court's ruling on a post-divorce motion to enforce or clarify a divorce decree under an abuse of discretion standard. See in re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.—Texarkana 2003, pet. denied).
In a family law case, legal and factual sufficiency of the evidence are not independent grounds for reversal, but they are relevant factors in assessing whether the trial court abused its discretion. Moore v. Moore, 383 S.W.3d 190, 198 (Tex. App.—Dallas 2012, pet. ref'd).
To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient to support the trial court's decision, we consider whether the trial court (i) had sufficient evidence upon which to exercise its discretion and (ii) erred in applying that discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). We conduct the applicable sufficiency review when considering the first prong of the test. Id. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Id.
2. Amending a QDRO
A qualified domestic relations order is a post-divorce enforcement order. Gainous v. Ganious, 219 S.W.3d 97, 107 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Its purpose is to create or recognize an alternate payee's right to receive all or a portion of the benefits payable to a participant under a retirement plan. Quijano v. Quijano, 347 S.W.3d 345, 353-54 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see 26 U.S.C. § 414 (P)(i)(A); 29 U.S.C. §§ 1056(d)(3)(B)(i).
A party may petition the court for a QDRO in two circumstances: (i) the court has not previously issued a QDRO or similar order permitting payment of benefits from a pension, retirement, or other employee-benefits plan or (ii) the plan administrator (or person acting in equivalent capacity) has determined that a previously entered QDRO does not satisfy the requirements for a QDRO. TEX. FAM. CODE §§ 9.103, 9.104; McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 132 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (refusing to affirm entry of amended QDRO when original QDRO did not conflict with terms of divorce decree).
Like a final divorce decree, a final QDRO may be clarified. See TEX. FAM. CODE §§ 9.1045, 9.002, 9.008. But, "[a]s with any post-divorce enforcement or clarification order, a QDRO may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment." Gainous, 219 S.W.3d at 107; see also McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 132 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (refusing to affirm entry of amended QDRO when original QDRO did not conflict with terms of divorce decree).
An order that amends, modifies, alters, or changes the actual, substantive property division made or approved in a final decree of divorce is beyond the trial court's jurisdiction and is void. TEX. FAM. CODE § 9.007(b); DeGroot v. DeGroot, 260 S.W.3d 658, 663 (Tex. App.—Dallas 2008, no pet.). A party challenging a QDRO has the burden to establish that it is void. See Beshears v. Beshears, 423 S.W.3d 493, 500 (Tex. App.—Dallas 2014, no pet.).
Here, Husband argues that the QDRO is "void" and required amendment because the final divorce decree awarded Wife $120,000 as of "July 24, 2015," but the QDRO stated that Wife's portion would be calculated on August 21, 2015 (the QDRO's date).
Husband's brief, and the trial court's findings refer to July 24 as the date the divorce was rendered. The court's order, however, is dated July 23, 2015, and the final decree refers to July 23. We use the July 23 date and note that the date discrepancy is immaterial to our analysis.
However, Husband did not adduce any evidence supporting his claim that the QDRO was void. For example, he does not identify, nor does the record reflect, how the date discrepancy between the decree and the QDRO affected the amount of Wife's distribution under the 401(k) or the property division.
The QDRO, which defines Wife as the "Alternate Payee," provides that:
The Alternate Payee's award will be calculated as of the date of this Domestic Relations Order. The date of the Order shall hereinafter be referred to as the "Valuation Date."
The Alternate Payee's interest in the Plan shall be $120,000.00 of the Participant's total vested account balance under the Plan as of the Valuation Date.
The Alternate Payee's award is entitled to earnings (gains and losses) from the Valuation Date to the date that the award is segregated from the Participant's account. From and after the date of segregation, the Alternate Payee's award shall be held in an account under the Plan and shall be entitled to all earnings attributable to the investments therein.
But there is no evidence showing the valuation of Wife's interest on July 23 or on August 21, nor does the record reflect when Wife's interest was segregated from the account. Likewise, there is no evidence showing that the total vested account balance changed between July 23 and August 21. Because there is no evidence showing that the QDRO impacted the property division, there is nothing to show that the order was void.
Husband's reply brief insists that Wife "did in fact benefit from significant gains [in the account] between July 23, 2015 and August 21, 2015," and that he "received significantly less than the amount awarded in the decree." But there is no evidence supporting these contentions as fact.
There is also nothing to establish that the QDRO required clarification or amendment. The record affirmatively reflects that the August 21, 2015 QDRO was submitted to Fidelity, the plan administrator, and Fidelity determined that the QDRO met the requirements for a qualified domestic relations order and was not defective. The parties stipulated that Wife received payment of the defined contribution employee benefit awarded to her. Thus nothing showed that this complied-with order required clarification. See TEX. FAM. CODE § 9.007(b).
After the hearing, Wife filed a letter from the plan administrator saying that an order superseding the QDRO was not possible because Wife had already received her full distribution from the plan.
Because Husband adduced no evidence supporting the requested amendment, the trial court did not err by denying it. We resolve Husband's first issue against him.
B. Was Husband denied due process?
Husband complains that he was denied due process because the court started the May 31 hearing without him and denied his requested relief. Specifically, Husband claims that the hearing was set for 9:00 a.m. but the court started the hearing at 8:30 a.m. The record, however, does not establish that this occurred.
At times throughout his argument, Husband refers to a "default judgment." But there is no evidence of a default judgment being entered against any party in this case.
Although there is a notice of hearing stating that the hearing would begin at 9:00 a.m., and the docket sheet shows the hearing set for 8:30 a.m., nothing shows when the court actually started the hearing or when Husband's counsel appeared. The order denying Husband's petition recites that he appeared at the hearing:
Paula J. Gaus, attorney for Sheila Sevener, appeared and announced ready.
Brett Gow did not appear. Christie M. Phan, attorney for Brett Gow, did finallynotappear.
The "finally" was interlined in the order.
Likewise, the court's findings, to which Husband did not object or request supplementation, state that a hearing was held and "Counsel for Wife appeared. Counsel for Husband (finally) appeared." The findings also reflect that the parties stipulated to certain facts, but Husband did not offer any evidence, thus further showing that Husband's counsel was present for the hearing and had an opportunity to be heard.
Although the court's order and finding suggests that the court may have deemed Husband's counsel late, both say that his counsel was there. And nothing establishes that the hearing started at 8:30, or that it started without Husband's counsel. Thus, the record shows only that Husband was present and participated in the hearing, regardless of when it was scheduled or actually started. We resolve Husband's second issue against him.
C. Does the lack of a reporter's record constitute reversible error?
Husband also argues that since neither he nor his attorney were present at the May 31, 2016 hearing, they could not waive making the record that rule 13 requires and we thus must reverse the judgment. See TEX. R. APP. P. 13.1(a) (court reporter must take a full record of all proceedings unless excused by agreement of the parties). However, to preserve an error for appeal, a party must object to the court reporter's failure to record the proceedings. See TEX. R. APP. P 33.1(a); Altesse Healthcare Solutions, Inc. v. Wilson, No., 05-15-00906-CV, 2016 WL 4443762, at *6 (Tex. App.—Dallas Aug. 23, 2016, pet. filed) (mem op. not designated for publication).
As we have noted, the record shows that Husband's counsel was present at the hearing. And it is not accurate to say that counsel had no notice of the hearing—she obtained the hearing setting and served the notice. Although Husband's counsel was present, nothing shows that she requested a record or objected to the court reporter's failure to make one. Moreover, the trial court's unchallenged findings state that Husband presented no evidence, and Husband does not explain how a record might facilitate our review.
Under these circumstances, we cannot conclude that the absence of a record requires reversal, and we resolve Husband's third issue against him.
III. CONCLUSION
Having resolved all of Husband's issues against him, we affirm the trial court's order.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 161037F.P05
JUDGMENT
On Appeal from the 255th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-16-02864.
Opinion delivered by Justice Whitehill. Justices Francis and Myers participating.
In accordance with this Court's opinion of this date, the order of the trial court is AFFIRMED.
It is ORDERED that appellee SHEILA EVA SEVENER recover her costs of this appeal from appellant BRETT GOW. Judgment entered November 30, 2017.