                                                                                      April 29 2008


                                         DA 07-0344

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2008 MT 152N



IN RE THE MARRIAGE OF
TED GREGORY McNEA,

              Petitioner and Appellee,

         v.

PAULA JEAN MILLER,

              Respondent and Appellant.


APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DR 06-518
                     Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     James Donald McKenna, Walsh & McKenna, Bozeman, MT

              For Appellee:

                     James C. Reuss, Guthels, Hunnes, Reuss & Thompson, PC,
                     Billings, MT



                                                Submitted on Briefs: March 19, 2008

                                                           Decided: April 29, 2008


Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed

as a public document with the Clerk of the Supreme Court and shall be reported by case

title, Supreme Court cause number and result in this Court=s quarterly list of noncitable

cases published in the Pacific Reporter and Montana Reports.

¶2     Appellant Paula Jean Miller (Miller) appeals an order of the Thirteenth Judicial

District Court, Yellowstone County, granting Appellee Ted Gregory McNea’s (McNea)

motion to dismiss Miller’s Motion for Release of Account Information, which sought

information regarding certain retirement and investment accounts owned or formerly

owned by McNea. We affirm.

¶3     Miller raises the following issue on appeal:

¶4     Did the District Court err when it held that Miller’s 2002 Motion for Release of

Account Information, which pertained to her 1994 dissolution, was not an “action” to

enforce a judgment, and thus Miller’s 2006 Motion for Release of Account Information

was barred by the ten-year statute of limitations?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     McNea and Miller received a decree of dissolution of their marriage from the

District Court on December 30, 1994. The decree approved a Property Settlement

Agreement which included a provision for the distribution to Miller of 50 percent of

McNea’s I.R.A. and 401K retirement accounts, then totaling approximately $43,000.

Following the dissolution, Miller did not take any action to enforce distribution of the


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retirement accounts until October 8, 2002, when she filed a Motion for Release of

Account Information. Neither McNea nor the District Court responded to that motion,

and no further action occurred thereafter until May 16, 2006, when Miller filed another

Motion for Release of Account Information. Once again, no action occurred in response

to this motion, and on December 16, 2006, Miller filed a Request for Order on Motion, or

Hearing, and Attorney Fees with the District Court. On January 2, 2007, McNea filed a

Motion to Dismiss Miller’s motion.

¶6     A hearing was held on the parties’ motions on March 8, 2007, at which time the

parties agreed the retirement plans in question were “defined contribution plans” and not

“defined benefit plans.” After limited testimony and argument from both parties, the

District Court issued an Order denying Miller’s Motion for Release of Account

Information and granting McNea’s Motion to Dismiss, concluding that Miller’s

October 2002 motion was more of a discovery document than an “action” on a judgment

(or in this case, a divorce decree), and therefore did not toll the ten-year statute of

limitations. As such, Miller’s May 2006 motion was time-barred as filed beyond the ten

year statutory period. Miller appeals.

                                STANDARD OF REVIEW

¶7     The facts in this case are not disputed. We review a district court’s conclusions of

law to determine whether the district court’s interpretation and application of the law are

correct. Marriage of Weber, 2004 MT 206, ¶ 14, 322 Mont. 324, ¶ 14, 95 P.3d 694, ¶ 14.

                                       DISCUSSION




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¶8    Did the District Court err when it held that Miller’s 2002 Motion for Release
of Account Information, which pertained to her 1994 dissolution from McNea, was
not an “action” to enforce a judgment, and Miller’s 2006 Motion for Release of
Account Information was barred by the ten-year statute of limitations?

¶9     Section 27-2-201(1), MCA, provides, in pertinent part, that “the period prescribed

for the commencement of an action upon a judgment or decree of any court of record of .

. . any state within the United States is within 10 years.” There is no dispute that this

statute of limitations applies to the divorce decree issued by the District Court on

December 30, 1994. See e.g. Weber, ¶¶ 24-28; In re Marriage of Brown, 263 Mont. 184,

867 P.2d 381 (1994).

¶10    Section 27-2-101, MCA, further states that “[t]he word ‘action,’ as used in this

chapter, is to be construed . . . as including a special proceeding of a civil nature.” Miller

argues that the word “action,” as it applies to statutes of limitation, was intended “to have

a broad rather than restrictive meaning” and should include her 2002 Motion for Release

of Account Information. Thus, the question before the District Court was whether

Miller’s 2002 Motion for Release of Account Information was an “action” or “special

proceeding of a civil nature” commenced prior to the expiration of the ten-year statute of

limitations. Notably, Miller’s 2006 motion was filed more than eleven years after the

parties’ dissolution decree was issued.

¶11    The District Court concluded that Miller’s 2002 motion was not an “action” for

purposes of § 27-2-201(1), MCA, because Miller’s motion fell “more under the category

of [a] discovery [device], rather than an action on a judgment . . . . Miller is requesting a

release of account information. This is quite different than requesting a QDRO or



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requesting the Court enforce the Final Decree entered into on December 30, 1994.” The

District Court also concluded that the period of limitation began to run on December 30,

1994, because Miller was entitled to her portion of McNea’s retirement accounts

immediately upon issuance of the divorce decree. The District Court’s conclusion was

based on the fact that the retirement accounts were “defined contribution plans,” so

Miller “could have immediately obtained her portion(s) of the funds that were available

in the certain retirement accounts at issue at any time following the dissolution of

marriage.”

¶12    The record before this Court does not include Miller’s 2002 Motion for Release of

Account Information. The absence of the 2002 motion makes it very difficult for us to

determine whether there was error in the granting of McNea’s Motion to Dismiss, as

Miller has essentially failed to prove the content of that motion. The only other evidence

of the content of Miller’s 2002 motion is a passing reference in the hearing transcript

stating that the 2002 motion was “virtually identical” to the subsequently filed 2006

Motion for Release of Account Information. However, even if we look to the 2006

motion for evidence of the content of the 2002 motion, the 2006 motion also fails to

establish that it sought anything other than information. The only reference to Miller’s

desire to enforce the 1994 decree is a statement that “[Miller] has attempted to obtain

from [McNea] information necessary to prepare a QDRO for the Court’s consideration.

[Miller] has not been fully successful in this endeavor.” Assuming arguendo that the

2006 motion is in fact “virtually identical” to the 2002 Motion for Release of Account

Information, we agree with the District Court that these motions were essentially


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discovery devices rather than an “action” to enforce the decree of dissolution. Miller’s

“action” should have been in the form of a request for a QDRO or a request for

enforcement of the decree.

¶13    Alternatively, Miller argues that she would not be entitled to receive her share of

the assets held by McNea’s retirement accounts—which the parties agree are “defined

contribution plans”—until McNea retired, and therefore the period of limitations did not

begin running at the time of her dissolution because McNea was not retired at that time.

Miller argues our holding in Marriage of Weber dictates that, “[b]ecause the assets in

question are retirement plans, Miller is not entitled to received the assets until McNea

retires, or at some other future date of eligibility.” Miller thus reasons that the statute of

limitations does not begin to run until that date of eligibility.

¶14    However, we agree with the District Court that, with respect to Miller’s

entitlement to a percentage of McNea’s retirement, the ten-year statute of limitations

began to run on December 30, 1994—the date the decree of dissolution was issued.

Whereas the retirement account at issue in Marriage of Weber was a Civil Service

Retirement System pension, and thus was a “defined benefit plan” that could not be

collected until the spouse earning those benefits had retired, Marriage of Weber, ¶ 27,

here the “defined contribution plans” were available immediately following the

dissolution, because the value of such plans was not dependent on McNea’s retirement,

but rather could be calculated immediately and the funds withdrawn at any time.

Accordingly, and unfortunately, the ten-year period of limitations began to run on

December 30, 1994, and expired prior to Miller taking any “action” to enforce the decree.


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¶15   Affirmed.



                              /S/ JIM RICE


We concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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