In re Marriage of Porterfield

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NOT DESIGNATED FOR PUBLICATION

No. 118,479

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

DONNA KAY PORTERFIELD,
Appellant,

and

DENNIS ALLEN PORTERFIELD,
Appellee.

MEMORANDUM OPINION

Appeal from Johnson District Court, JAMES F. VANO, judge. Opinion filed February 22, 2019.
Affirmed.

Adina F. Morse and Curtis G. Barnhill, of Barnhill & Morse, P.A., of Lawrence, for appellant.

Ernest C. Ballweg, of Johnston, Ballweg & Modrcin, L.C., of Overland Park, for appellee.

Before BUSER, P.J., POWELL, J., and STUTZMAN, S.J.

POWELL, J.: Donna Kay Seley (formerly Porterfield) appeals the district court's
denial of her motion for the entry of a Qualified Domestic Relations Order (QDRO) on
Dennis Allen Porterfield's pension under the final divorce decree. The district court
denied the May 2017 motion, holding that the 1998 divorce judgment awarding Donna an
equal interest in the pension was extinguished under K.S.A. 2017 Supp. 60-2403 and In
re Marriage of Larimore, 52 Kan. App. 2d 31, 362 P.3d 843 (2015), rev. denied 305 Kan.
1252 (2017). Donna now appeals and asks to either depart from or distinguish Larimore.
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For reasons we more fully explain below, we decline to do either and, therefore, affirm
the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Donna and Dennis married in 1980, and, after 17 years of marriage, Donna filed
for divorce. With the assistance of counsel, Donna and Dennis entered into a settlement
agreement which included the division of the parties' property. Among other things, the
property division stated that "[Dennis'] General Motors pension benefits shall be divided
equally between the parties pursuant to a Qualified Domestic Relations Order [(QDRO)],
and the Court shall have continuing jurisdiction to enter and amend such order a[s] may
be necessary to effectuate the division of property." The property settlement agreement
was effective as of the date of execution by the second person to sign it. Each person
signed and dated the agreement on May 27, 1998. Also on May 27, 1998, the district
court found the agreement to be fair, just, and equitable and incorporated it into the final
divorce decree. The decree also provided that "the executory provisions thereof not
heretofore performed shall be enforced by the Court, which retains jurisdiction of the
parties and subject matter therefor."

In May 2017, Donna filed a Kansas Supreme Court Rule 170 (2019 Kan. S. Ct. R.
222) notice for the entry of a QDRO. Although the record does not include the written
notice, the parties presented argument and some evidence at a later hearing. Towards the
end of the hearing, Donna amended her notice to a motion for entry of a QDRO. In
response, Dennis argued the district court should deny the motion because (1) the 1998
judgment dividing the pension had been extinguished under K.S.A. 2017 Supp. 60-2403
and In re Marriage of Larimore and (2) the doctrine of laches barred her claim. However,
Dennis withdrew his laches defense at the hearing.

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Donna testified that she believed the settlement agreement provided her with 50%
of Dennis' pension when he retired and that he had worked at General Motors during the
17 years of the marriage. Donna said that she had not heard of a QDRO before the
divorce proceedings and, at the time of the divorce, she believed that she would receive a
lump sum payment for her portion of the pension. Donna admitted she knew a QDRO
was required in order for her to receive her interest in Dennis' pension, but she believed
Dennis' divorce attorney, Steve Sickel, would enter the QDRO. In support, Donna
submitted a letter dated June 10, 1998, that was sent by her divorce attorney, Judy Simon,
to Sickel. In the letter, Simon wrote that the attorneys agreed Sickel would prepare the
QDRO and Donna requested her portion in a lump sum. Donna stated that she believed
Sickel had completed the QDRO.

In 2013, however, Simon telephoned and informed Donna she learned that Sickel
had never prepared the QDRO and Simon needed Dennis to sign some paperwork for her
to complete one. After speaking with Simon, Donna contacted Dennis. Donna testified
Dennis agreed to sign a letter allowing Simon to move forward. Donna stated that Simon
gave her the letter, she gave it to Dennis, and Dennis told Donna he would sign it. Donna
believed him. In April or May 2016, Donna learned Dennis was taking early retirement
so she telephoned Simon. Simon informed Donna she never received the letter from
Dennis.

At the end of the hearing, the district court denied Donna's motion for entry of a
QDRO, holding that Donna's interest in Dennis' pension under the 1998 divorce decree
had been extinguished under K.S.A. 2017 Supp. 60-2403 and the Larimore decision. The
district court also held that Dennis and his attorney did not mislead Donna into doing
nothing to protect her interest in the pension.

Donna timely appeals.

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DID THE DISTRICT COURT ERR IN DENYING DONNA'S MOTION FOR
ENTRY OF A QUALIFIED DOMESTIC RELATIONS ORDER?

Although the parties address the appeal differently, we see the main issue before
us as whether Donna may execute upon the 1998 divorce judgment that equally divided
between the parties Dennis' pension, governed by the Employment Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. (2012). The district court denied
Donna's motion for entry of a QDRO, holding the 1998 judgment dividing the pension
had been extinguished under the dormancy statute and the reasoning of this court's
decision in In re Marriage of Larimore applied. In response, Donna asks us to depart
from or find Larimore distinguishable for various reasons.

A. Standard of review

"[W]e conduct unlimited review over matters of jurisdiction, the interpretation of
statutes, and the interpretation of written instruments." Water Dist. No. 1 of Johnson Co.
v. Prairie Center Dev., 304 Kan. 603, 606, 375 P.3d 304 (2016).

B. A summary of the applicable law

A "judgment" is defined as "the final determination of the parties' rights in an
action." K.S.A. 2017 Supp. 60-254(a). Our Supreme Court has elaborated that

"[i]t is a fundamental rule that a judgment should be complete and certain in
itself, and that the form of the judgment should be such as to indicate with reasonable
clearness the decision which the court has rendered, so that the parties may be able to
ascertain the extent to which their rights and obligations are fixed, and so that the
judgment is susceptible of enforcement in the manner provided by law. [Citations
omitted.]" Bandel v. Pettibone, 211 Kan. 672, 677, 508 P.2d 487 (1973).

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"K.S.A. . . . 60-2403[a] speaks of 'any judgment' of any court of record in this state. The
statute . . . is broad enough to include a judgment awarding a specific lien on specific real
estate as well as a monetary judgment . . . ." Bank IV Wichita v. Plein, 250 Kan. 701, 706,
830 P.2d 29 (1992). "[T]he division of property made by a trial court in a divorce is a
judgment." 250 Kan. at 706. "A property settlement agreement confirmed in a divorce
decree, while retaining its character as a contract, becomes as well a judgment of the
court." Long v. Brooks, 6 Kan. App. 2d 963, Syl. ¶ 1, 636 P.2d 242 (1981).

The dormancy statute, K.S.A. 2017 Supp. 60-2403, states:

"(a) (1) Except as provided in subsection (b), if a renewal affidavit is not filed or
if execution, including any garnishment proceeding, support enforcement proceeding or
proceeding in aid of execution, is not issued, within five years from the date of the entry
of any judgment in any court of record in this state, including judgments in favor of the
state or any municipality in the state, or within five years from the date of any order
reviving the judgment or, if five years have intervened between the date of the last
renewal affidavit filed or execution proceedings undertaken on the judgment and the time
of filing another renewal affidavit or undertaking execution proceedings on it, the
judgment, including court costs and fees therein shall become dormant, and shall cease to
operate as a lien on the real estate of the judgment debtor. When a judgment becomes and
remains dormant for a period of two years, it shall be the duty of the judge to release the
judgment of record when requested to do so.

(2) A 'renewal affidavit' is a statement under oath, signed by the judgment
creditor or the judgment creditor's attorney, filed in the proceedings in which the
judgment was entered and stating the remaining balance due and unpaid on the judgment.

. . . .

"(c) The time within which action must be taken to prevent a judgment from
becoming dormant does not run during any period in which the enforcement of the
judgment by legal process is stayed or prohibited."
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According to the dormancy statute:

"'[A] party may, by the issuance of an execution every five years, keep a judgment alive
indefinitely. The judgment remains in force without execution for five years, and the
plaintiff may revive it at any time within two years if it has become dormant thereafter,
so that a plaintiff may neglect his judgment for seven years, lacking a day, and then
revive it and put it in force for five years more.' [Citation omitted.]" DeKalb Swine
Breeders, Inc. v. Woolwine Supply Co., 248 Kan. 673, 677, 809 P.2d 1223 (1991).

The five-year period before a judgment becomes dormant is not a statute of
limitation. See Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan.
633, 646, 270 P.3d 1074 (2011), cert. denied 568 U.S. 928 (2012)."Once a judgment
grows dormant, however, and is not revived pursuant to K.S.A. . . . 60-2404, it becomes
absolutely extinguished and unenforceable." Cyr v. Cyr, 249 Kan. 94, 97, 815 P.2d 97
(1991).

C. In re Marriage of Larimore

Kansas courts have recognized QDROs as "the approved method for transferring
retirement accounts among parties involved in divorce proceedings." In re Marriage of
Behnke & Ingram, No. 112,233, 2015 WL 1311014, at *1 (Kan. App. 2015) (unpublished
opinion). Because the district court denied Donna's motion for entry of a QDRO based on
the reasoning in In re Marriage of Larimore and the parties dispute whether Larimore
applies, a thorough review of the decision is required.

In Larimore, the district court incorporated David and Janice Larimore's
settlement agreement—which "award[ed] each spouse 60% of their own retirement
accounts and 40% of the other spouse's retirement accounts"—into the final divorce
decree. It was undisputed that ERISA governed the retirement accounts, and neither party
filed a QDRO after entry of the final decree. About 12 years later, David moved the
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district court to declare the judgment void and unenforceable under K.S.A. 2014 Supp.
60-2403. In response, Janice moved the district court to compel entry of a QDRO and
argued the dormancy period had not started because there was no federal statute of
limitations on the entry of a QDRO and the retirement accounts were not yet payable.
The district court agreed with David, holding the judgment had been extinguished under
K.S.A. 60-2403.

On appeal, the panel affirmed the district court and held:

"[C]ourt-ordered transfers of retirement benefits are amenable to execution and, thus,
they are not exempt from the dormancy statute. Although the divorce decree established
Janice's right to receive a portion of David's retirement accounts, ERISA's anti-alienation
provision preempts the divorce court's [domestic relations order] because it does not
comply with ERISA's requirements for QDROs. As a consequence, Janice was required
to execute upon the judgment by filing a QDRO in order to enforce her right to receive
benefits under David's retirement accounts." (Emphasis added.) 52 Kan. App. 2d at 41.

The panel further held that

"the division of a party's retirement account in a divorce decree constitutes a judgment
subject to dormancy under K.S.A. . . . 60-2403, when . . . the division qualifies as a final
determination of the parties' interests in the marital estate. . . . Janice waited until after the
district court's judgment dividing the parties' retirement benefits was extinguished by the
dormancy statute before attempting to procure a QDRO. As a consequence, her almost
12-year delay left her without a judgment to enforce." 52 Kan. App. 2d at 42.

Finally, the Larimore panel found:

"Upon a plain reading of the dormancy statute, we hold that K.S.A. 2014 Supp.
60-2403(c) does not toll the running of the dormancy period for a judgment in a divorce
decree which divides retirement plans governed by ERISA. We arrive at this conclusion
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because the legal process for enforcing such a judgment—the filing of a QDRO—is not
stayed or prohibited until the benefits become payable. On the contrary, the filing of a
QDRO is mandatory if the alternative beneficiary is to enforce his or her judgment.
Although Janice may not have been able to receive money from David's retirement
accounts during the ensuing 12 years, the necessary legal process—a QDRO—for
enforcing Janice's interest in the retirement accounts was fully available to her.

"In conclusion, we hold the district court did not err when it found the judgment
dividing David's retirement accounts had become absolutely extinguished and
unenforceable due to Janice's failure to file a QDRO or a renewal affidavit within 7 years
of the filing of the divorce decree." (Emphases added.) 52 Kan. App. 2d at 44.

D. The merits

On appeal, Donna argues the district court erred because: (1) the district court's
reservation of jurisdiction meant the 1998 divorce decree was not final; (2) Larimore was
wrongly decided and should be departed from; (3) Larimore is distinguishable; and (4) In
re Marriage of Strom, 56 Kan. App. 2d 656, No. 118,676, 2019 WL 166571 (filed
January 11, 2019), compels a different result. We address each of these arguments in
order.

1. Did the district court enter a final judgment in the 1998 divorce decree
when it reserved continuing jurisdiction to enter or amend a QDRO?

Donna first argues the district court's express reservation of continuing jurisdiction
to enter or amend a QDRO distinguishes this case from Larimore and means the 1998
judgment dividing Dennis' pension did not become a final judgment until the district
court entered a QDRO. Donna's claim, however, obscures the district court's ability to
reserve continuing jurisdiction so as to enter or amend a QDRO in the future with the
finality of the judgment entered in the final divorce decree.
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Our review of settlement agreements is

"'subject to normal rules regarding contract interpretation, which require de novo review.'
. . .

"'A property settlement agreement incorporated into a divorce decree is "a hybrid
in the law having the characteristics of a judgment and retaining the contractual rights of
the parties." "[T]he confirmation of the agreement and its merger into the decree does not
abolish the contractual aspects of the agreement, but leaves the court in the position to
construe the provisions of the agreement consistent with the facts and circumstances and
the expressed intentions of the parties." A written instrument may be construed and its
legal effect determined by the appellate court. "The primary rule of construction of a
settlement agreement in connection with a divorce action is that, if possible, the court
must, as in other contract cases, ascertain and give effect to the mutual intention of the
parties at the time the contract was made." The intent of the parties to a separation
agreement must be determined from the agreement alone if the terms are unambiguous.'
[Citations omitted.]" In re Marriage of Knoll, 52 Kan. App. 2d 930, 939-40, 381 P.3d
490 (2016).

"Under the Kansas Constitution, district courts 'have such jurisdiction in their
respective districts as may be provided by law.' Kan. Const. art. 3, § 6. Hence, it is the
legislature which sets the extent of district court jurisdiction." In re Marriage of Crane,
36 Kan. App. 2d 677, 681, 143 P.3d 87 (2006). Under K.S.A. 2017 Supp. 23-2801, the
district court has jurisdiction over the division of the marital property in a divorce until
"the extent of the vested interest" is "determined and finalized by the court, pursuant to
K.S.A. 2017 Supp. 23-2802." Thus, "although district courts have broad discretion to
adjust the property rights of parties to a divorce action, such discretion extends only to
actually dividing the property." In re Marriage of Crane, 36 Kan. App. 2d at 682-83.

"(a) If the parties have entered into a separation agreement which the court finds
to be valid, just and equitable, the agreement shall be incorporated in the decree. . . .
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"(b) Matters settled by an agreement incorporated in the decree, other than
matters pertaining to the legal custody, residency, visitation, parenting time, support or
education of the minor children, shall not be subject to subsequent modification by the
court except: (1) As prescribed by the agreement; or (2) as subsequently consented to by
the parties." K.S.A. 2017 Supp. 23-2712; see K.S.A. 1998 Supp. 60-1610(b)(3).

While Donna correctly argues that Larimore does not address whether the district
court reserved continuing jurisdiction over the retirement accounts, here the district
court's express reservation of continuing jurisdiction did not cause the judgment dividing
Dennis' pension to remain nonfinal until the entry of a QDRO.

The property settlement agreement stated, in relevant part: "[Dennis'] General
Motors pension benefits shall be divided equally between the parties pursuant to a
[QDRO], and the Court shall have continuing jurisdiction to enter and amend such orders
[as] may be necessary to effectuate the division of property." The property settlement
agreement became effective on the date the second person signed it; both parties signed
and dated the agreement May 27, 1998. The divorce decree stated: "[T]he executory
provisions thereof not heretofore performed shall be enforced by the Court, which retains
jurisdiction of the parties and subject matter therefor" and "the parties' have each
accepted the provisions made for them in said Agreement in full settlement and
satisfaction of their respective property rights and interests and all marital rights." The
district court entered the final divorce decree on May 27, 1998.

Based on the unambiguous language of the divorce decree, the district court
reserved continuing jurisdiction in order to enter or amend a QDRO in the future. The
district court's jurisdiction over the property division ended when the district court
entered the final divorce decree in 1998. The parties did not consent to modification of
the settlement agreement under the agreement or in a later agreement. Accordingly, if we
find that the district court entered a final judgment in the 1998 divorce decree dividing
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Dennis' pension, then the dormancy statute applies because the judgment became
effective in 1998 and Donna did not execute on the judgment until 2017.

In Larimore, the parties divided the couple's pensions with 60% awarded to the
owner of the account and 40% to the non-owner spouse. The panel held the judgment
"qualifie[d] as a final determination in the marital estate" and the dormancy statute
applied. 52 Kan. App. 2d at 42. The district court here divided Dennis' pension equally
between the parties, which means the parties intended Donna and Dennis to each receive
50% of the pension. Like in Larimore, the judgment dividing Dennis' pension constituted
a "final determination of the parties' rights in an action." See K.S.A. 2017 Supp. 60-
254(a).

But Donna cites to Hawkins v. C.I.R., 86 F.3d 982 (10th Cir. 1996), to argue that
without qualification of a retirement plan—or allowing an ERISA plan administrator to
determine if a DRO is a QDRO—a district court's judgment dividing the pension is
incomplete and not a final judgment. However, the Hawkins court only determined
whether the parties' agreement was a QDRO. 86 F.3d at 993-94. The Hawkins decision
does not support Donna's argument that the entry of a QDRO is required before a district
court may enter a final judgment when dividing an ERISA-governed pension.

A similar argument was addressed by another panel of our court in In re Marriage
of Smith, No. 115,365, 2012 WL 1649835, at *4 (Kan. App. 2012) (unpublished opinion).
There, the ex-wife argued Hawkins supported her claim that the divorce decree awarding
her one-half of her ex-husband's ERISA-governed 401(k) account was not final because
the decree said nothing about the entry of a QDRO. The Smith panel rejected this
argument, explaining:

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"While Hawkins stated that a qualified pension plan may not be alienated without a
QDRO, it says nothing about whether an apportionment of a pension plan in a divorce
decree is a final judgment without a QDRO. . . .

"We agree that the district court had the obligation to enter a QDRO in order to
enforce the judgment had one been timely requested. The problem for Pam, however, is
that she waited until the judgment had become dormant to request it. Again, all she
needed to do if she desired to enforce the judgment before it became dormant was first to
procure from the court an order requiring Jeffrey to cooperate in providing the
information about the 401(k) account that was necessary in a QDRO. She then had only
to obtain the court's signature on a QDRO that would divide the plan according to the
decree and submit it to the administrator of Jeffrey's 401(k) account. But once the
dormancy exceeded the time within which it could be revived, she had nothing to
enforce." (Emphasis added.) 2012 WL 1649835, at *4-5.

Here, unlike in Smith, the decree stated that the division of the pension would
occur pursuant to a QDRO. But the agreement still clearly outlined the extent of Dennis'
and Donna's rights in the pension and constituted a fixed amount that was "complete and
certain in itself," which made the judgment susceptible to enforcement in the manner
provided by law, i.e., by the entry of a QDRO. See Bandel, 211 Kan. at 677.

Donna points us to two more Kansas cases—In re Marriage of Lazarus, No.
106,139, 2012 WL 4794592 (Kan. App. 2012) (unpublished opinion), and In re Marriage
of Lida, No. 90,411, 2004 WL 719888 (Kan. App. 2004) (unpublished opinion)—to
argue that the district court's reservation of continuing jurisdiction should not be ignored
and the judgment was not final until the district court entered a QDRO. But these cases
do not support Donna's claim.

In Lazarus, the final divorce decree incorporated the couple's settlement
agreement which awarded the wife a property equalization of about $10,000 with the
funds paid from her husband's pensions located in the United Kingdom. Under the
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decree, the district court reserved jurisdiction to enter any further orders until the
payment was completed. But as Donna admits, Lazarus does not address application of
the dormancy statute. Donna also incorrectly argues that the wife waited several years to
file a motion to enforce judgment as the Lazarus decision clearly states the wife filed the
motion about one year after the entry of the divorce decree. Finally, while the Lazarus
decision reviewed a district court's reservation of jurisdiction, the decision did not discuss
the effect of the reservation on the finality of the judgment. 2012 WL 4794592, at *3-6.
Thus, Lazarus does not apply to the facts of this case.

While the factual circumstances in In re Marriage of Lida are more on point, we
agree with Dennis that the decision actually supports the opposite result of Donna's
claim. In Lida, the journal entry provided for the valuation of an advertising business and
also a property equalization award. Although the district court's 1994 journal entry
retained jurisdiction "until the property payment has been determined," the panel held
that there was no dormancy issue because the husband's property equalization obligation
was not "'complete and certain in itself'" and "did not constitute an enforceable judgment
regarding the actual amount owed by [him]." 2004 WL 719888, at *4-5. In other words,
because the 1994 journal entry left the husband's property equalization obligation as a
nonfinal judgment, with the value undetermined, there was no question of dormancy.

Here, the parties' settlement agreement that was incorporated into the final divorce
decree is a final judgment. The decree required the pension to be divided equally. The
district court's reservation of jurisdiction did not cause the divorce judgment to remain
nonfinal until entry of a QDRO but provided the district court with jurisdiction—after
entering a final decree—to enter or amend a QDRO in the future. Because the district
court entered a final judgment in the 1998 decree, the dormancy statute applied, and the
district court did not err in denying Donna's 2017 motion for entry of a QDRO.

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2. Should this panel overturn Larimore?

Donna next claims we should overturn Larimore because (1) application of state-
specific statutes of limitation frustrates congressional intent for uniform application of
ERISA and (2) the decision is contrary to public policy according to other out-of-state
court decisions, the complexity of filing a QDRO, and the Larimore decision's impact on
nonworking women involved in divorce proceedings. While we have no power to
overturn Larimore, "we are not bound by the decision of a previous panel of our court."
State v. Fahnert, 54 Kan. App. 2d 45, 56, 396 P.3d 723 (2017).

Donna's first point requires us to determine whether ERISA preempts state law.
The Kansas Supreme Court has stated:

"Generally, federal preemption of state law occurs only if state law conflicts with
or frustrates the federal scheme or Congress sought to occupy the field to the exclusion of
the states. There is a reluctance to infer preemption, and there is an assumption that
Congress did not intend to displace state law. [Citation omitted.]" Hartford Accident &
Indem. Co. v. American Red Ball Transit Co., 262 Kan. 570, 575, 938 P.2d 1281 (1997).

The panel in Larimore also addressed the issue of ERISA:

"We begin with a brief discussion of ERISA which . . . 'supersede[s] any and all
State laws insofar as they may now or hereafter relate to any employee benefit plan'
governed by ERISA. See 29 U.S.C. § 1001 (2012); 29 U.S.C. § 1144(a) (2012). . . .

. . . .

"ERISA prohibits the assignment or alienation of pension benefits, and this
prohibition includes domestic relations orders (DROs) which attempt to create, assign, or
recognize spousal property rights in an employee spouse's pension. 29 U.S.C. § 1056(d)
(2012). For ERISA purposes, a DRO includes any judgment, decree, or order which was
15
entered pursuant to state domestic relations law and 'relates to the provision of child
support, alimony payments, or marital property rights to a spouse, former spouse, child,
or other dependent of a participant.' 29 U.S.C. § 1056(d)(3)(B)(ii) (2012).

"QDROs . . . are 'an exception not only to ERISA's rule against assignment of
plan benefits but also to ERISA's broad preemption of state law.' Trustees of Directors
Guild of America v. Tise, 234 F.3d 415, 420 (9th Cir. 2000) (citing 29 U.S.C. §
1144[b][7]). A QDRO is a DRO which 'creates or recognizes the existence of an alternate
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 a plan.' 29 U.S.C. § 1056(d)(3)(B)(i)
(2012). 'A 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.' In re Marriage of Cray, 254 Kan. 376, 390, 867 P.2d 291 (1994)."
52 Kan. App. 2d at 36-37.

Moreover, the panel recognized that

"[a] former spouse's right to receive pension benefits deemed marital property,
however, does not arise under ERISA. That right or interest is based on a state court
judgment ordered under state domestic relations law. Indeed, a 'QDRO only renders
enforceable an already-existing interest.' Tise, 234 F.3d at 421. '"[T]he QDRO provisions
of ERISA do not suggest that [the alternate payee] has no interest in the plan [ ] until she
obtains a QDRO, they merely prevent her from enforcing that interest until the QDRO is
obtained." [Citations omitted.]' 234 F.3d at 421. As a result, in this case, while federal
law did not provide a statute of limitation for the filing of a QDRO, Janice could only
obtain a QDRO if she had a valid right or interest created under Kansas domestic
relations law to enforce." (Emphasis added.) 52 Kan. App. 2d at 39.

Thus, ERISA recognizes a QDRO as an exception to the preemption of state laws
and antialienation of ERISA-governed retirement benefits. Accordingly, in reviewing
ERISA, application of state law to QDROs does not frustrate congressional intent. The
Larimore panel did not err.
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Next, Donna cites to several out-of-state court decisions to argue that applying
statutes of limitations to bar late filings of a QDRO results in windfall and unjust
enrichment to the spouse-owner of the retirement account. But out of the five
jurisdictions Donna cites—Missouri, Tennessee, New York, Utah, and Michigan—only
Duhamel v. Duhamel (Duhamel II), 194 Misc. 2d 100, 101-02, 753 N.Y.S.2d 673 (2002),
opined inequities—such as unjust enrichment and windfall—may result from application
of statute of limitations to bar a motion to compel the late entry of a QDRO.

Donna principally asks us to consider how other courts have viewed the
application of statutes of limitations to a party's late filing of a QDRO. Admittedly, these
courts base their decisions on different grounds than Larimore. But while we find them
persuasive, the decisions are distinguishable overall.

As Dennis argues, Donna's reliance on the Missouri Supreme Court's decision in
Ochoa v. Ochoa, 71 S.W.3d 593 (Mo. 2002), is misplaced based on the facts and the
application of a Missouri-specific law. There, the wife first mailed the ERISA plan
administrator a copy of the divorce judgment that divided the retirement plan one year
after the divorce, but the plan administrator declined to recognize the order. The Missouri
Supreme Court found that the general 10-year limitations period for judgments did not
bar the wife's second QDRO—drafted in 1999 or 2000—because the Missouri General
Assembly had enacted Mo. Rev. Stat. § 452.330.5 (2000):

"The court's order as it affects distribution of marital property shall be a final
order not subject to modification; provided, however, that orders intended to be [QDROs]
affecting pension, profit sharing and stock bonus plans pursuant to the U.S. Internal
Revenue Code shall be modifiable only for the purpose of establishing or maintaining the
order as a [QDRO] or to revise or conform its terms so as to effectuate the expressed
intent of the order."

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The Missouri Supreme Court also held the general 10-year limitations period did not
apply because the more specific law provided no time limit for a party to establish or
modify a QDRO. See 71 S.W.3d at 596-97. The Kansas Legislature has not enacted a
similar law.

The New York, Tennessee, Utah, and Michigan courts all reached different results
than the decision in Larimore as well. Highly summarized, these decisions primarily rest
on two grounds.

First, the New York, Utah, and Tennessee courts declared that a party's interest in
a retirement account awarded in a divorce judgment does not accrue, for statute of
limitations purposes, until the retirement benefits are payable. Johnson v. Johnson, 330
P.3d 704, 710-11 (Utah 2014); Jordan v. Jordan, 147 S.W.3d 255, 261-62 (Tenn. App.
2004) (agreeing with New York but case decided on other grounds since benefits not yet
payable); Duhamel v. Duhamel (Duhamel I), 188 Misc. 2d 754, 755-56, 729 N.Y.S.2d
601 (2001). In other words, the jurisdictions provide—once the benefits become
payable—that the statute of limitations for enforcing the judgment applies to each
individual or discrete payment. See, e.g., Johnson, 330 P.3d at 710-11.

These courts applied the statute of limitations to retirement or pension judgments
awarded in a divorce decree similar to how Kansas courts apply the dormancy statute to
installment payments. In other words, the dormancy period would not start to run until
each retirement benefit payment became payable and due. See, e.g., Riney v. Riney, 205
Kan. 671, 674-75, 473 P.2d 77 (1970); Gardner v. Gardner, 22 Kan. App. 2d 314, 315,
916 P.2d 43, rev. denied 260 Kan. 992 (1996); Wichita Fed. Sav. & Loan Ass'n v. North
Rock Rd. Ltd. Partnership, 13 Kan. App. 2d 678, 683-84, 779 P.2d 442, rev. denied 245
Kan. 788 (1989). Here, the parties' settlement agreement did not specify how Donna
would receive the payments but awarded her an equal interest in Dennis' pension. At the
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time of the divorce, Dennis' pension was not yet payable, and he did not decide to take
early retirement until 2016.

Second, in the Tennessee and Michigan decisions, the retirement benefits had not
yet become payable but the appellate courts held the limitations period on judgments did
not bar the parties' motion for entry of a QDRO, holding a request to enter a QDRO is not
an act to enforce the judgment. See Jordan, 147 S.W.3d at 262-63 (holding ERISA plan
administrator approval of divorce judgment as a QDRO adjunct to entry of judgment, not
enforcement; thus, until QDRO approved, divorce judgment inchoate or incomplete); see
also Joughin v. Joughin, 320 Mich. App. 380, 385-87, 906 N.W.2d 829 (2017) (following
Jordan, "entry of the proposed QDRO is not an action to enforce a noncontractual money
obligation" under Mich. Comp. Laws § 600.5809 so not barred by 10-year limitations
period on judgments).

Notably, the Michigan and Tennessee appellate courts address the finality of a
judgment dividing an ERISA-governed pension differently than the Larimore panel. The
Michigan and Tennessee courts look at the "ministerial" task of having an ERISA plan
administrator approve a QDRO as a necessary step to the enforcement of the judgment
which, until accomplished, renders the original divorce judgment inchoate or incomplete.
In other words, these courts view an ERISA plan administrator's approval of a QDRO as
precluding the finality of the DRO dividing the ERISA-governed pension entered under
state domestic relations law. Jordan, 147 S.W.3d at 263; see Joughin, 320 Mich. App. 2d
at 385-89. Notably, the dissenting judge in Joughin agreed with the reasoning in
Larimore. See 320 Mich. App. 2d at 398-401 (Jansen, J., dissenting).

In contrast, the Larimore panel—while recognizing that the entry of a QDRO is a
ministerial task—held that when a divorce judgment dividing an ERISA-governed
retirement plan or pension qualifies as a final determination, a party may not compel the
entry of a QDRO after the judgment has been extinguished, meaning the party must
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execute on the judgment dividing the pension by the entry of a QDRO before that
judgment becomes extinguished by the state dormancy law. See 52 Kan. App. 2d at 32,
38-41; K.S.A. 2017 Supp. 60-2403.

While the out-of-state decisions may provide persuasive authority, the reasoning
in Larimore follows the plain language of K.S.A. 2017 Supp. 60-2403 and K.S.A. 2017
Supp. 60-254(a). As the panel in Larimore recognized, a party's interest in an ERISA-
governed pension awarded in a divorce decree is created under state domestic relations
law, not federal law, and the party "could only obtain a QDRO if she had a valid right or
interest created under Kansas domestic relations law to enforce." 52 Kan. App. 2d at 39.

The finality of a judgment does not depend on completing ministerial tasks—like
the filing of a QDRO—but depends on whether the court entered a judgment that is

"complete and certain in itself, and that the form of the judgment should be such as to
indicate with reasonable clearness the decision which the court has rendered, so that the
parties may be able to ascertain the extent to which their rights and obligations are fixed,
and so that the judgment is susceptible of enforcement in the manner provided by law.
[Citations omitted.]" Bandel, 211 Kan. at 677.

Accordingly, a party's failure to timely enter a QDRO on a divorce judgment dividing an
ERISA-governed pension does not render a judgment nonfinal under Kansas law.

Donna next argues Larimore overlooks public policy considerations, such as how
the entry of a QDRO involves a complex process and negatively impacts the interests of
nonworking women in divorce proceedings.

Our Supreme Court has explained, however, that "[r]elying on the plain language
selected by the legislature is the best and only safe rule for determining legislative intent,
and such plain language takes priority over both judicial decisions and policies advocated
20
by the parties." State v. Great Plains of Kiowa County, Inc., 308 Kan. 950, 957, 425 P.3d
290 (2018). Unless there is an ambiguity in the statutory language, "we leave policy
determinations to the legislature. Appellate courts do 'not decide nor weigh the beneficial
results flowing from any particular legislative policy.'" Whaley v. Sharp, 301 Kan. 192,
199, 343 P.3d 63 (2014). Because we find the language in K.S.A. 2017 Supp. 60-2403
and K.S.A. 2017 Supp. 60-254 unambiguous, we find the Larimore panel correctly held
the dormancy statute applies to a final determination of the parties' rights in a division of
an ERISA-governed pension. The failure to timely enter a QDRO does not render the
judgment nonfinal.

3. Is Larimore factually distinguishable from this case?

Donna next argues this case is distinguishable because (1) in Larimore, the
judgment divided both the wife's and husband's retirement accounts; and (2) she was
misled into not filing a QDRO to protect her interest in Dennis' pension.

First, the fact that this case only concerns Dennis' retirement account does not
distinguish it from Larimore. Second, Donna's next argument—that Sickel's letter in 1998
agreeing to file a QDRO and Dennis' agreement in 2013 to sign the paperwork so
Donna's attorney could file a QDRO misled her into not timely filing a QDRO—appears
to be based on equitable or promissory estoppel grounds.

At the outset, however, we question whether Donna may claim an equitable
doctrine applies to avoid application of K.S.A. 2017 Supp. 60-2403.

Kansas courts have held that application of the dormancy and revivor statutes
demand strict compliance. See Associated Wholesale Grocers, Inc., 293 Kan. at 646. The
dormancy statute operates to render a judgment unenforceable and extinguished if the
party does not timely execute, file a renewal affidavit, and/or revive the judgment as
21
required under K.S.A. 2017 Supp. 60-2403. See, e.g., Cyr, 249 Kan. at 97; Larimore, 52
Kan. App. 2d at 44. "The statutes relating to dormancy, revivor, and extinguishment of
judgments are not like ordinary statutes of limitation. Once a judgment is extinguished
there is nothing on which equitable doctrines such as estoppel may operate." Clark v.
Glazer, 4 Kan. App. 2d 658, Syl. ¶ 2, 609 P.2d 1177 (1980). In light of the interpretation
given to K.S.A. 60-2403, it appears Donna cannot invoke equitable doctrines to avoid the
harsh result of the dormancy and revivor statutes.

Nevertheless, one panel of this court has held that

"K.S.A. 60-2404 specifically states that 'the court shall enter an order of revivor
unless good cause to the contrary be shown.' The statute does not specifically define what
is meant by 'good cause.' We find that equitable principles such as laches guide the court
in its determination of what good cause entails. Thus, we find the legislature did not
abrogate equitable remedies in enacting the dormancy and revivor statutes." In re
Marriage of Jones, 22 Kan. App. 2d 753, 756, 921 P.2d 839, rev. denied 260 Kan. 993
(1996).

Notably, Jones may not provide much support for applying equitable doctrines to
avoid operation of the dormancy and revivor statutes based on its unique factual
circumstances. In Jones, the husband and wife entered into an agreement with each other
to increase the child support payments from $1,200 to $1,800 in order to defraud a bank.
Over the years, the husband paid the lower amount of $1,200. About 12 years later, the
wife sought to revive the judgment for the unpaid $600 per month. The panel held that
the doctrines of laches and unclean hands barred her claim to any child support arrearage
on their child who had reached the age of majority. 22 Kan. App. 2d at 761. Based on the
differences between these cases, we find Jones inapplicable.

"Promissory estoppel is an equitable doctrine designed to promote some measure
of basic fairness when one party makes a representation or promise in a manner
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reasonably inducing another party to undertake some obligation or to incur some
detriment as a result. . . . [P]romissory estoppel [applies] when: (1) a promisor
reasonably expects a promisee to act in reliance on a promise; (2) the promisee, in turn,
reasonably so acts; and (3) a court's refusal to enforce the promise would countenance a
substantial injustice. . . . Because promissory estoppel rests on fairness, its application
tends to be especially fact driven and, thus, defies any regimented predictive test.
[Citations omitted.]." Bouton v. Byers, 50 Kan. App. 2d, 34, 41, 321 P.3d 780 (2014), rev.
denied 301 Kan. 1045 (2015).

"'Equitable estoppel is the effect of the voluntary conduct of a person whereby he
[or she] is precluded, both at law and in equity, from asserting rights against another
person relying on such conduct.' [Citation omitted.]" Steckline Communications, Inc. v.
Journal Broadcast Group of KS, Inc., 305 Kan. 761, 769, 388 P.3d 84 (2017). "The party
asserting equitable estoppel must show that (1) another party induced reliance on certain
facts, (2) the party asserting estoppel reasonably relied upon those facts, and (3) that party
was prejudiced by its reliance." Becker v. The Bar Plan Mut. Ins. Co., 308 Kan. 1307,
1316, 429 P.3d 212 (2018). However, "[t]he party asserting equitable estoppel will not
prevail 'where facts are ambiguous or subject to more than one construction.' Needless to
say, equitable estoppel cannot exist if any essential element is missing or is not
satisfactorily proved. [Citations omitted.]" Steckline Communications, Inc., 305 Kan. at
770.

The two doctrines differ—in part—because equitable estoppel contains an element
of misrepresentation, whereas, promissory estoppel does not. See Bouton, 50 Kan. App.
2d at 51-53, 55. Based on Donna's argument in the district court and on appeal, it appears
Donna has raised an equitable estoppel claim, i.e., that Sickel's 1998 letter and Dennis'
agreements in 2013 misled her into doing nothing to protect her interest through a timely
filed QDRO or a timely motion to compel entry of a QDRO.

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At the hearing in August 2017, the district court acknowledged that Donna's
divorce attorney, Simon, sent a letter to Sickel in June 1998 that disclosed an agreement
for Sickel to prepare the QDRO. The district court recognized that Donna had to rely on
attorneys and others to understand the law but held her reliance was not legally sufficient
to support a finding that Donna was misled into doing nothing. The district court further
denied Donna's claim based on Dennis' 2013 agreement because, at that time, the divorce
judgment had been extinguished. See K.S.A. 2017 Supp. 60-2403.

In other words, the district court held that Donna's reliance on the promises were
not reasonable. As determined by the district court, Donna failed for 19 years to enter a
QDRO on the divorce judgment dividing the pension. Donna was represented by counsel
at the time of the divorce, and her divorce attorney alerted her in 2013 to Sickel's failure
to file a QDRO. Donna did not seek enforcement of the QDRO through the district court
in 2013 but approached Dennis first. In addition, the letter to Sickel did not provide much
proof that Sickel received or agreed to the contents of the 1998 letter. Under the
circumstances, we agree with the district court that Donna's reliance was not reasonable
and the district court did not err in denying the claim. Under a strict compliance
approach, we hold that the district court's denial of Donna's estoppel claim was right for
the wrong reasons. See Bouton, 50 Kan. App. 2d at, 49 ("A district court may be affirmed
if it reaches the right result for the wrong reason.").

4. In re Marriage of Strom inapplicable

At oral argument, Donna asked us to apply the recently decided case of In re
Marriage of Strom, 56 Kan. App. 2d 656. In Strom, the parties were divorced in 1995
after 9 years of marriage. As part of the parties' property settlement agreement, the wife
was awarded 50 percent of her husband's military retirement pay for a period of 10 years
and then 20 percent thereafter until either the wife or husband died, whichever came first.
At the time of the divorce, the husband was receiving his military retirement pay.
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However, the wife did not seek to enforce her right to such payments until 2017, even
after the husband's consistent nonpayment since the divorce. The majority of the Strom
panel held that with respect to military retirement pay, each monthly payment represented
a separate judgment, and those judgments falling within the execution and dormancy
period could be revived and enforced. 2019 WL 166571, at *4. The dissent argued that
the divorce decree from 1995, which divided the husband's military retirement,
constituted a final judgment which had to be executed upon within the enforcement and
dormancy period, and, because it was not, the wife's judgment for a portion of the
husband's military retirement could not be enforced. 2019 WL 166571, at *5-9 (Buser, J.,
dissenting).

Donna argues we should apply Strom because she claims Dennis' pension is
payable in monthly installments, meaning those monthly payments falling within the
execution and dormancy periods can be revived and allow her to receive a portion of such
payments. We see a number of problems with her argument.

Our consideration of this argument is complicated by the fact that Donna did not
make this argument below or in her briefs. See In re Marriage of Williams, 307 Kan. 960,
977, 417 P.3d 1033 (2018) (issues not adequately briefed deemed waived or abandoned);
Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011) (issues not
raised before district court cannot be raised on appeal). Nor did she submit a letter of
supplementary authority. See Supreme Court Rule 6.09(a)(1) (2019 Kan. S. Ct. R. 39)
(party may advise court, by letter, of persuasive authority that came to party's attention
less than 14 days before argument).

But even considering the merits of her argument, we find Strom inapplicable for
two reasons. First, Strom deals with military retirement pay, which is arguably different
than the General Motors pension at issue here. At oral argument, Donna's counsel argued
that Dennis' pension was payable only in installments like military retirement pay, but the
25
record does not support such an assertion. Also distinguishing is the fact that the military
retirement pay at issue in Strom could not be divided by a QDRO because the parties had
not been married long enough. Second, and perhaps more importantly, Donna sought a
lump sum division of Dennis' pension and she did not obtain a judgment for monthly
payments.

E. Conclusion

Under the reasoning in Larimore, the district court properly held that K.S.A. 2017
Supp. 60-2403 applied to the 1998 judgment and that judgment had been extinguished
before Donna filed a motion for entry of a QDRO in 2017. The district court entered the
divorce decree in 1998, and the decree divided Dennis' pension equally between Donna
and Dennis, but Donna took no action to execute on the judgment dividing Dennis'
ERISA-governed pension until May 2017. We conclude the district court did not err in
denying Donna's motion because her 19-year delay in executing on the judgment—
through the entry of a QDRO—left her with no judgment to enforce by operation of the
dormancy statute.

Affirmed.