HOWARD POTEET v. SHIRLEY J. POTEET
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RENDERED:
APRIL 12, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001032-MR
HOWARD POTEET
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 97-FC-000422
v.
SHIRLEY J. POTEET
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
BARBER, EMBERTON AND KNOPF, JUDGES.
BARBER, JUDGE:
The Appellant, Howard Poteet, (“Howard”), seeks
review of the Jefferson Circuit Court’s order denying his CR
59.05 motion to set aside a qualified domestic relations order
(QDRO) providing for surviving spouse benefits for the Appellee,
Shirley Poteet (“Shirley”). Finding that this appeal was not
timely filed, we dismiss.
The parties are undoubtedly familiar with the
underlying facts which we will not repeat here.
Howard raises
two issues on appeal: (1) that the circuit court lacked
jurisdiction to confer “surviving spouse” status on Shirley by
subsequent order, where the findings of fact and conclusions of
law entered April 15, 1998 did not address surviving spouse
benefits under Howard’s (Philip Morris) retirement plan; and (2)
that entry of a QDRO conferring surviving spouse status to
Shirley following Howard’s remarriage is reversible error.
A review of the April 15, 1998 findings of fact and
conclusions of law reflects that the trial court determined
Shirley’s dollar amount share of Howard’s deferred profit sharing
plan.
The trial court also determined Shirley’s monthly benefit
from the pension plan.
The court directed the parties “to
execute whatever documents that are necessary to carry out the
order of the Court.”
Thereafter, both parties tendered QDROs.
On September
2, 1999, Shirley filed a “Response Regarding Surviving Spouse
Benefits” explaining that, at an August 27 hearing, Howard’s
counsel had stated Philip Morris could not honor a QDRO with a
surviving spouse benefit.
However, Shirley’s counsel had
received a letter from Philip Morris that surviving spouse
benefits were, in fact, available.
On September 21, 1999, both
parties’ previously-tendered QDROs were “overruled,” and trial
court entered the following order:
“IT IS HEREBY ORDERED that
the Qualified Domestic Relations Order shall contain a surviving
spouse benefit for the Petitioner.
Effective date of
Participation April 15, 1998.” (Emphasis original.)
By motion filed January 21, 2000, Shirley tendered a
QDRO containing a surviving spouse benefit provision.
February 1, 2000, the circuit court entered that QDRO.
On
On
February 11, 2000, Howard filed a motion under CR 59.05 to set
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aside the QDRO.
As grounds, Howard stated that “inclusion of
Survivor’s Benefits in the QDRO where the Decree is silent to
their inclusion violates the Employee Benefit Retirement Income
Security Act of 1974.
Samaroo v. Samaroo 193 F.3d 185 (cite to
be provided) [(3rd Cir. 1999)].”
On March 28, 2000, the circuit court entered an order
denying Howard’s motion:
CR 54.01 states “that a judgment is a written
order of Court adjudicating a claim or claims
in an action or proceedings. A final order
or appealable Judgment is a final order
adjudicating all the rights of the parties in
an action or proceeding, or a Judgment made
final under Rule 54.02.
The Petitioner [sic] argues that the Court’s
Judgment of September 21, 1999, was not a
final Judgment, but the final judgment
occurred when the Court entered the Qualified
Domestic Relations Order on February 1, 2000.
The Court, in reading the rule as well as
case law, finds that the Court’s Order of
September 21, 1999, was a final Judgment as
defined in CR 54.01. Therefore, the
Respondent’s Motion to set aside the
Qualified Domestic Relations Order of
February 1, 2000, is improper.
The Qualified Domestic Relations Order
carried out the Court’s Order of September
21, 1999. In that Order, the Court granted
the ultimate relief sought in this action
which was the Petitioner’s request to find
that she was entitled to surviving spouse
benefits. It is that Order which adjudicates
the rights of the parties. The Qualified
Domestic Relations Order only effectuates the
intent and purpose of the Order. The
Qualified Domestic Relations Order would have
no effect if the Court had not already made a
finding that the party was entitled to
receive a benefit. The determination of the
entitlement is what determines that this was
a final and appealable order. See Brumley v.
Lewis, 340 S.W.2d 599 , Ky. (1960) [sic] and
Burroughs v. Bake Oven Supply Co., 434 S.W.2d
32 Ky. (1968) [sic]. Therefore, the
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Respondent’s Motion to alter the February 1,
2000, Qualified Domestic Relations Order is
overruled. The Respondent failed to timely
file any Motion to alter, amend the September
21, 1999 Order of the Court, therefore the
September 21, 1999, Order of the Court
continues to be in effect and the Qualified
Domestic Relations Order entered February 1,
2000, will not be set aside. (Emphasis
original.)
Howard appeals from the circuit court’s March 28, 2000
order.
Shirley points out that the issue on appeal is not the
one that Howard “attempts to identify”; rather, the issue is
whether the trial court’s September 21, 1999 order was final and
appealable.
We agree.
In his Appellant’s brief, Howard simply
ignores the basis for the court’s March 28, 1999 order.
By way
of reply brief, Howard does respond that the trial court’s
September 21, 1999 order was not final and appealable, citing
Brown v. Brown, Ky., 430 S.W.2d 458 (1968).
distinguishable on its facts.
for divorce.
Brown is
There, the wife filed an action
By amendment, she sought an annulment as an
alternative relief.
The trial court entered judgment refusing to
grant annulment but providing that an interlocutory decree for
divorce would be entered when appropriately tendered.
tendering the judgment for divorce, the wife appealed.
Instead of
The
appeal was dismissed because it was not prosecuted from a final
order or judgment.
We agree with the circuit court’s analysis of the issue
before us.
The September 21, 1999 order mandated that the QDRO
contain a surviving spouse benefit for Shirley.
nothing more to adjudicate.
There was
The subsequent filing of the QDRO in
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compliance with the court’s direction does not alter the finality
of the September 21, 1999 order.
See Security Federal Sav. &
Loan Assn. v. Nesler, Ky., 697 S.W.2d 136 (1985).
It is therefore ORDERED that this appeal be, and it is,
DISMISSED.
EMBERTON, JUDGE CONCURS.
KNOPF, JUDGE, DISSENTS.
KNOPF, JUDGE, DISSENTING:
Respectfully, I dissent from the
result reached by the majority opinion.
CR 54.01 declares:
“. . . [a] final or appealable judgment is a final order
adjudicating all the rights of all the parties in an action or
proceeding, or a judgment made final under Rule 54.02."
The
trial court’s order of September 21, 1999, merely directed the
parties to submit a qualified domestic relations order (QDRO)
which contains a surviving spouse benefit for Shirley.
Furthermore, that order did not recite that it was a final and
appealable order, as required by CR 54.02(1).
Therefore, the
order was interlocutory because it did not finally and
conclusively adjudicate the rights of the parties regarding the
division of the profit sharing plan
Rather, the trial court’s ruling regarding the
inclusion of a surviving spouse benefit did not become final
until the court entered the QDRO on February 1, 2000.
Howard
filed a timely motion under CR 59.05 to alter, amend or vacate
that order.
As a result, the time for filing an appeal did not
commence to run until March 28, 2000 -- when the trial court
entered its final and appealable order denying Howard’s motion to
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set aside the QDRO.
Accordingly, I would hold that his appeal
was timely, and that this Court has jurisdiction to consider the
merits of Howard’s appeal.
ENTERED:
April 12, 2002
/s/David A. Barber
JUDGE COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph V. Moberly
J. Russell Lloyd
Mobley & Lloyd
Louisville, Kentucky
LuAnn C. Glidewell
Barber, Banaszynski & Assoc.
Louisville, Kentucky
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