Equitable Distribution, COAA818-11o, Sept. 4, 2018
Thomas Steven Henson v. Robin Black Henson
After an equitable distribution hearing, Defendant/Wife (“Wife”) was awarded the value of $51, 524.00 contained in a SEP IRA, which was the value at the date of separation. The SEP IRA had gained $30,000 – $40,000 of passive gains from the date of separation to the date of trial. The court declined to award Wife the passive gains, and only the date of separation value of the SEP IRA.
Wife appealed but did not challenge the trial court’s distribution of the SEP IRA in her appeal.
On June 6, 2017, the COA filed an opinion affirming in part and reversing and remanding in part the trial court’s order. The mandate was issued on June 26, 2017.
On June 2, 2017, four days prior to the court’s opinion, Wife’s counsel sends Husband’s trial and appellate counsel an email of a Domestic Relations Order (“QDRO”) which conveyed the entirety (rather than just the date of separation value) of the SEP IRA account to Defendant Wife.
Here is where it gets interesting: On June 15, 2017 – Counsel for Wife submitted the proposed QDRO to the trial court along with a ‘Verification of Consultation With Opposing Counsel” indicating that Husband’s counsel has not responded, and this proposed judgment/order is submitted for your consideration.” The trial court entered Wife’ s proposed QDRO on June 20, 2017. Important to note that Wife’s counsel also submitted to the trial court a “read receipt” of the email which indicated that counsel for Husband read but did not respond to Wife’s counsel’s email.
Husband filed a Rule 60, which was denied by the trial court but granted his motion to stay the order (presumably pending appeal).
The COA adopted Husband’s arguments wholesale. Specifically noting that the plain language of the ED Order contravenes the language of the QDRO and that the ED Order was unambiguous in not awarding the passive gains to Wife.
The big issue the COA wrestled with was whether the trial court had subject-matter jurisdiction to enter an order until the COA returns a case back to the trial court by the mandate (date). The COA opinioned that the trial court regains its jurisdiction when the appelatte process has been completed “which occurs when the cause is returned by the mandate of the appellate court”.
The COA rejected Wife’s argument that since the passive gains issue was not appealed, therefore, the trial court retains jurisdiction of that specific issue; on the basis that because distribution of the SEP IRA would be within the purview of equitable distribution – the trial court is without subject matter jurisdiction to enter any orders contained within the equitable distribution judgement as a whole.
Wife cleverly argued that the SEP IRA portion of the ED order is a judgement directing the payment of money and thus vests the trial court with continuing jurisdiction over the matter. In rejecting that argument, the COA reasoned that the trial court does not have the jurisdiction after notice of appeal to determine the specific amount of periodic payments, which it reasoned that this case provides.
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2018-10-03 15:54:352018-10-03 15:55:59NC COA Case Summary: Henson v. Henson