Circuit Court Family Division LC No. 02-025414-DM
Before: Hoekstra, P.J., and Jansen and Saad, JJ.
post-divorce proceeding, defendant appeals the entry of a
proposed qualified domestic relations order (QDRO) in favor
of plaintiff, which related to her interest in $23, 823 of
defendant's profit sharing annuity plan (the annuity
plan). For the reasons provided below, we affirm.
April 28, 2003, the trial court entered a judgment of divorce
that dissolved plaintiff and defendant's marriage. In the
judgment of divorce, under the heading "PENSION, ANNUITY
OR RETIREMENT BENEFITS, " the trial court ordered the
Plaintiff shall receive 50% of the sum of Defendant's
accrued balance as of April 30, 2002, in the International
Association of Bridge, Structural and Ornamental Iron Workers
Local #55 Pension Plan. In addition, Plaintiff shall receive
the sum of $23, 823.00 from the Defendant's Iron Workers
Local #55 Profit Sharing Annuity Plan and Trust. . . . The
Plaintiff and Defendant shall cooperate in the execution of a
Qualified Domestic Relations Order to transfer said interest
to the Plaintiff. Both parties shall execute whatever
documents may be necessary to complete the transfer.
for reasons not apparent from the record, plaintiff and
defendant did not promptly file proposed QDROs to transfer
interest in defendant's retirement benefits to plaintiff.
Instead, plaintiff submitted proposed QDROs to the trial
court on June 30, 2015, approximately 12 years after the
judgment of divorce was entered. On July 6, 2015, defendant
filed objections to plaintiff's proposed QDROs under MCR
2.602, and in his objections, defendant argued that
plaintiff's submission of the proposed QDROs was an
attempt to enforce the April 28, 2003 judgment of divorce and
was barred by the statute of limitations found in MCL
600.5809(3) because more than 10 years had elapsed since the
trial court entered the judgment of divorce.
filed a response to defendant's objections on August 11,
2015, and argued that under MCL 600.5809(1), the statute of
limitations to bring an action to enforce a noncontractual
money obligation does not begin to run until there is a
triggering event, and a claim to retirement benefits accrues
when a party subject to that claim retires. Thus, she argued
that, because defendant had not yet retired, her efforts to
record her claim on defendant's retirement benefits had
not yet accrued and, therefore, she was seeking enforcement
of her claim prior to the expiration of the statute of
hearing on defendant's objections, defendant's
counsel confirmed that defendant had not yet retired and that
he had not yet received any funds from his retirement
benefits. While recognizing that MCL 600.5809(3) provides for
a 10-year limitations period, the trial court ultimately
concluded that it would permit entry of the proposed QDROs
because they had not "been reduced to the same."
The trial court entered the orders on the same day.
appeal, defendant argues that the trial court erred when it
entered the proposed QDRO affecting the annuity plan because
plaintiff's effort to pursue the entry was time-barred by
the statute of limitations. We disagree.
a "claim is statutorily time-barred is a question of law
for this Court to decide de novo." DiPonio Const Co,
Inc v Rosati Masonry Co, Inc, 246 Mich.App. 43, 47; 631
N.W.2d 59 (2001), citing Ins Comm'r v Aageson Thibo
Agency, 226 Mich.App. 336, 340-341; 573 N.W.2d 637
(1997). We also review de novo questions of statutory
interpretation. Rock v Crocker, 499 Mich. 247, 260;
884 N.W.2d 227 (2016), citing Halloran v Bhan, 470
Mich. 572, 576; 683 N.W.2d 129 (2004).
passed the Employee Retirement Income Security Act (ERISA) of
1974 in order to provide better protection for beneficiaries
of private employee pension plans." Roth v
Roth, 201 Mich.App. 563, 567; 506 N.W.2d 900 (1993)
(citations omitted); see also 29 USC 1001 et seq.
"ERISA contained an anti-alienation provision which
precluded plan participants from assigning or alienating
their benefits under pension plans subject to the act."
Roth, 201 Mich.App. at 567. However,
[t]he Retirement Equity Act of 1984 provides an exception to
this restriction. A qualified domestic relations order (QDRO)
"creates or recognizes the existence of an alternative
payee's right to, or assigns to an alternate payee the
right to, receive all or a portion of the benefits payable
with respect to a participant under the plan . . . ." 29
USC 1056(d)(3)(B)(i)(I). Thus, a QDRO is exempted from
ERISA's preemption provisions and may be used to
distribute funds to a payee who was not a named beneficiary.
29 USC 1144(b)(7). [Moore v Moore, 266 Mich.App. 96,
100 n 5; 700 N.W.2d 414 (2005).]
parties contend that MCL 600.5809 provides the applicable
statute of limitations in this matter. MCL 600.5809 states,
in pertinent part:
(1) A person shall not bring or maintain an action to enforce
a noncontractual money obligation unless, after the claim
first accrued to the person or to someone through whom he or
she claims, the person commences the action within the
applicable period of time prescribed by this section.
* * *
(3) Except as provided in subsection (4),  the period of
limitations is 10 years for an action founded upon a judgment
or decree rendered in a court of record of this state, or in
a court of record of the United States or of another state of
the United States, from the time of the rendition of the
judgment or decree.
argues that her claim has not accrued because she has no
right to the funds until defendant retires and he has not
done so. Thus, plaintiff reasons that because her claim has
not accrued, it is impossible for her action to have been
brought 10 years after it accrued and the statute of
limitations cannot act as a bar. Defendant, on the other
hand, argues that plaintiff's claim accrued once the
judgment of divorce was entered on April 28, 2003, which
means that plaintiff's motion to enter the QDRO over 12
years later is time-barred.
disagree with the parties' premise that MCL 600.5309
controls in this situation. The statute applies only to
"action[s] to enforce  noncontractual money
obligation[s]." And here, we hold that the entry of the
proposed QDRO is not an action to enforce a noncontractual
money obligation. This Court has held that, when a judgment
of divorce requires a QDRO to be entered, the QDRO is to be
considered "as part of the divorce
judgment." Neville v Neville, 295 Mich.App.
460, 467; 812 N.W.2d 816 (2012). Thus, because a QDRO is
part of the judgment, it necessarily cannot be
viewed as enforcing that same judgment. As our
sister court in Tennessee noted, "[T]he approval of the
proposed QDRO is adjunct to the entry of the judgment of
divorce and not an attempt to 'enforce' the
judgment." Jordan v Jordan, 147 S.W.3d 255, 262
(Tenn App, 2004).
to further demonstrate that the entry of the proposed QDRO is
not equivalent to the enforcement of a "noncontractual
money obligation, " the entry of the order here did not
compel the payment of any money to plaintiff. Indeed, after a
court enters a proposed QDRO, as the trial court did here,
the order is not enforceable until the plan administrator
determines that the proposed QDRO is "qualified"
under ERISA. 29 USC 1056(d)(3)(G)(i). As the
Tennessee Court of Appeals aptly explained:
Under ERISA, a QDRO "creates or recognizes the existence
of an alternate payee's right to . . . receive all or a
portion of the benefits payable with respect to a participant
under a plan . . . ." 29 USC 1056(d)(3)(B)(i)(I) (1999).
A proposed QDRO under ERISA, on the other hand, is "any
judgment, decree, or order" entered by a trial court
that "relates to the provision of . . . marital property
rights to a . . . former spouse . . ., and . . . is made
pursuant to a State domestic relations law . . . ." 29
USC 1056(d)(3)(B)(ii). Typically, . . . a proposed QDRO is
prepared by the parties' attorneys and submitted to the
trial court for approval and entry, after which, it is
submitted to the administrator who administers the pension
plan in ...