Clarifying Judgments Clarified

June 24, 2013 § Leave a comment

You may recall Eddie and Fannie Cotton’s first trip to the COA. In Cotton v. Cotton, 44 So.2d 371 (Miss. App. 2010), the court affirmed the chancellor’s equitable distribution in a case where the judge found the marriage void as bigamous. The case is of interest not only for that point, but also because the chancellor did not apply — or even mention — the Ferguson factors in her division. It’s a case you should go back and read when you have time.

Part of that affirmed 2010 division was an award of 40% of Eddie’s retirement from employment with Solae LLC during the void marriage. It seems that Eddie omitted the retirement account on his 8.05 financial statement, mentioning it only in his testimony, so the judge did the best she could do and simply awarded the percentage based on his employment with the company.

The problem with that award, as anyone who has dealt with the backwash of a divorce can tell you, is that no plan administrator will honor a QDRO that does not specifically and accurately identify the plan. So, a judgment that says something like “40% of any retirement plan that Eddie participated in while employed with Solae LLC,” is going to be met with a firm “uh-uh” by the plan administrator, which is exactly what happened here. What to do?

Fannie’s lawyers scurried back to court and asked the judge to “interpret” her prior judgment to provide that the retirement account was with the Bakers and Confectioners Union (B&CU), which was the actual plan in which Eddie participated during his employment with Solae LLC.

The chancellor granted the motion, concluding that the prior judgment had intended to award Fannie 40% of whatever retirement fund Eddie had participated in while employed with Solae LLC, and since Eddie himself had failed to provide the specific information, the court could and should clarify its prior ruling to specify that it pertained to the B&CU account, which was, in fact, the retirement account he had accumulated during his Solae employment.

Eddie appealed, taking the position that the chancellor impermissibly changed and broadened the scope of the original judgment.

In Cotton v. Cotton, handed down December 11, 2012, the COA affirmed, concluding that the trial court’s order ” … is neither an improper reconsideration nor an alteration of the prior judgment … ” and was not an abuse of discretion.

I call this decision to your attention for several points:

  • This case highlights a way you can solve that QDRO dilemma that so many practitioners face when trying to put the divorce judgment in effect. It’s not that uncommon to get that letter from the plan admin that denies your client any relief.
  • It seems that a subpoena duces tecum instanter might just have produced the information that was needed. I believe that I would have authorized it from the bench.
  • I wonder why the accurate account information was not fleshed out in discovery? Remember this: if you come to trial with incomplete information, the chancellor will only have two ways to proceed: (1) stop everything and make you go back and do what you should have done in the first place; or (2) proceed and do the best she can with the faulty record before her. A caveat: before you put the burden on the judge to do your work for you, go back and read the MSSC decision in Collins v. Collins. It might persuade you to go a different route.

The real story here is not so much that chancellors can go back and elucidate their judgments to make them do what they were intended to do, but also that lawyers need to be diligent to foil the opposing party’s efforts to conceal and evade disclosure. If you leave it solely up to the judge, you might be disappointed in the outcome.

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