FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEY FOR APPELLEE:

MATTHEW N. FECH                             MICHAEL W. BOSCH
Law Offices of Matthew N. Fech              Highland, Indiana
Griffith, Indiana
                                                                Dec 05 2013, 10:09 am

                             IN THE
                   COURT OF APPEALS OF INDIANA

KATHERINE RYAN,                             )
                                            )
      Appellant,                            )
                                            )
             vs.                            )   No. 45A03-1304-DR-145
                                            )
LARRY JANOVSKY,                             )
                                            )
      Appellee.                             )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Calvin D. Hawkins, Judge
                           Cause No. 45D02-9108-DR-805




                                 December 5, 2013


                           OPINION - FOR PUBLICATION


ROBB, Chief Judge
                                 Case Summary and Issue

       The marriage of Katherine Ryan and Larry Janovsky was dissolved in 1991 pursuant

to a settlement agreement that included a provision dividing Janovsky’s pension. Over

twenty years later, Ryan presented a proposed Qualified Domestic Relations Order

(“QDRO”) for Janovsky’s signature. Janovsky refused to sign, and Ryan filed a Verified

Petition for Contempt and Rule to Show Cause, alleging Janovsky was in contempt of the

parties’ settlement agreement for failing to sign the QDRO. Ryan appeals the trial court’s

denial of her petition, raising one issue for our review: whether the trial court abused its

discretion in finding her efforts to secure a QDRO were barred by the statute of limitations

and the equitable doctrines of laches and waiver. Concluding the entry of a QDRO is not

time-barred, we reverse and remand.

                               Facts and Procedural History

       Ryan and Janovsky were married in 1974 and divorced on December 9, 1991 pursuant

to a decree of dissolution and agreed property settlement that provided, in relevant part:

              Wife shall receive a Qualified Domestic Relations Order for her share
       of Husband’s pension which shall be computed as a sum equal to one-half
       (1/2) of his monthly benefit as of December 1, 1991. It is understood that
       Wife’s benefits will be payable at such time as Husband receives his benefit.

Appendix of Appellant at 11.

       In 2012, Ryan’s attorney prepared a QDRO and forwarded it to Janovsky for his

signature. Janovsky did not sign the document, and on October 30, 2012, Ryan filed a

Petition for Contempt and Rule to Show Cause alleging Janovsky had willfully disregarded

the trial court’s December 9, 1991, order by failing to sign the QDRO. Janovsky responded

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that there was no legal basis to require him to sign a QDRO more than twenty years after the

dissolution decree was issued. The trial court held a hearing and thereafter issued the

following order:

               6. Former Wife, by counsel, argued to the Court that Janovsky, the
       Former Husband would not be prejudiced if presently ordered to execute at this
       time the Qualified Domestic Relations Order.
               7. Counsel for Janovsky replied that while he would not be prejudiced,
       the Court should also consider the equitable defenses of laches and waiver and
       further submitted a Memorandum relying upon Needham v. Suess, 577
       [N.E.2d] 965 ([Ind. Ct. App. 1991]). Further, counsel for Janovsky relied upon
       various statutes of limitations.
               IT IS THEREFORE ORDERED, ADJUDGED and DECREED that
       Katherine Ryan’s Petition for Contempt and Rule to Show Cause is denied.
       She waited an inordinate amount of time to attempt to perfect her interest in
       Janovsky’s pension. The Court finds Janovsky’s Response and Memorandum
       is well taken and holds that Ryan is not entitled to any portion of Janovsky’s
       pension.

Id. at 22-23. Ryan filed a motion to correct error, pointing out that no evidence had been

presented that Janovsky is receiving his pension benefits yet and arguing that neither the

equitable defenses of laches and waiver nor the statute of limitations are applicable. Ryan’s

motion to correct error was also denied, and Ryan now appeals.

                                  Discussion and Decision

                                   I. Standard of Review

       Whether a person is in contempt of a court order is a matter left to the trial court’s

discretion, and we will reverse a trial court’s decision only for an abuse of that discretion.

Evans v. Evans, 766 N.E.2d 1240, 1243 (Ind. Ct. App. 2002). An abuse of discretion occurs

when the trial court’s decision is against the logic and effect of the facts and circumstances

before it or when the decision is contrary to law. In re Adoption of M.P.S., Jr., 963 N.E.2d

                                              3
625, 629 (Ind. Ct. App. 2012). Indiana Code section 31-15-7-10 provides that orders or

awards contained in a dissolution of marriage decree may be enforced by contempt, among

other remedies.

                                 II. Timeliness of QDRO

       To meet the legislative goal of regulating and protecting pension plan funds, the

Employee Retirement Income Security Act of 1974 (“ERISA”) provides that benefits may

not be assigned or alienated. 29 U.S.C. § 1056(d); Hogle v. Hogle, 732 N.E.2d 1278, 1279

(Ind. Ct. App. 2000), trans. denied. Because this caused problems in domestic relations

settings where ERISA-governed pensions had to be divided, the Retirement Equity Act of

1984 amended ERISA to create an express statutory exception to the anti-alienation

provision. See Hogle, 732 N.E.2d at 1279. State courts are now authorized in dissolution

actions to order a pension plan administrator to distribute pension benefits to an alternate

payee pursuant to a QDRO. Pond v. Pond, 700 N.E.2d 1130, 1134 n.8 (Ind. 1998). A

QDRO has been characterized as any order made pursuant to a state domestic relations law

which “creates or recognizes the existence of an alternative payee’s right” to pension

benefits. Hogle, 732 N.E.2d at 1280 n.3 (emphasis omitted) (quoting Ablamis v. Roper, 937

F.2d 1450, 1454 (9th Cir. 1991)).

       The particular question of when a QDRO must be submitted is an issue of first

impression in Indiana. The parties’ dissolution decree provided for an equal division of

Janovsky’s monthly pension benefits calculated as of the date of the decree. However,

because no QDRO securing Ryan’s right to this portion of Janovsky’s pension was prepared


                                             4
and submitted for over twenty years, Janovsky argued, and the trial court agreed, that Ryan

had forfeited her right. We agree with Janovsky and the trial court that the delay was

“inordinate,” App. of Appellant at 23, and we note that Ryan offered no explanation for the

extremely lengthy delay in preparing the QDRO. Nonetheless, we cannot agree that the delay

has caused the forfeiture of Ryan’s right to a portion of Janovsky’s pension benefits. Ryan’s

right to part of Janovsky’s pension benefits arises from the settlement agreement; the QDRO

only creates her right to be paid directly from the pension plan. And neither of these rights is

yet enforceable because Janovsky’s pension benefits are not yet payable to anyone. Allowing

Janovsky to retain the entirety of his pension benefits because of the delayed preparation of a

QDRO is supported by neither law nor equity: the statute of limitations and caselaw relied

upon by Janovsky do not support his position, and the trial court’s order leads to an

inequitable result that cannot stand.

       Janovsky cites to Indiana Code section 34-11-2-12 and to Needham v. Suess, 577

N.E.2d 965 (Ind. Ct. App. 1991), in support of his position. Section 34-11-2-12 provides that

“[e]very judgment and decree of any court of record of the United States, of Indiana, or of

any other state shall be considered satisfied after the expiration of twenty (20) years.” In

Needham, this court considered this statute, amongst others, in the context of a post-

dissolution case. When Maxine Suess and Phillip Farber were divorced in 1977, Suess was

granted a $50,000 judgment against Phillip that was to be paid in 121 monthly installments.

The judgment was recorded and became a lien on Phillip’s real property. Pursuant to statute,




                                               5
judgment liens expire after ten years. See Ind. Code § 34-55-9-2.1 In 1986, Phillip conveyed

part of his property to the Needhams, and in 1989, another couple contracted to buy that

property. When Suess learned of this pending sale, she protested the distribution of the sale

proceeds and petitioned the dissolution court to renew her judgment because part of the

judgment remained due. The dissolution court ordered the judgment be renewed for an

additional ten years and the judgment be satisfied by the proceeds of the sale. We reversed,

holding the judgment lien attached at the time it was recorded and expired ten years

thereafter pursuant to the statute, at which time Suess could no longer seek to enforce the

lien. Needham, 577 N.E.2d at 968. Further, because a judgment lien is a creature of statute,

the trial court has no discretion to extend it. Id. We did note, however, that the expiration of

the judgment lien did not prevent Suess from collecting the judgment, as a judgment itself

may be enforced up to twenty years after its entry. Id.

        Needham is inapposite to the case before us. The ex-wife in that case was granted a

money judgment for a specific sum which she recorded, thereby procuring a judgment lien on

her ex-husband’s real property. Here, we are not presented with a question about the

timeliness of enforcing a judgment lien against real property. The ten-year expiration of

judgment liens imposed by Indiana Code section 34-55-9-2 is therefore not relevant to this

case. We are also not presented with a money judgment for a sum certain payable

immediately, and therefore Indiana Code section 34-11-2-12 also does not bar the entry of



        1
         At the time Needham was decided, the ten-year expiration of judgment liens was found at Ind. Code
§ 34-1-45-2. The text of the statute then and now is substantively the same.


                                                    6
the QDRO. As our supreme court noted with respect to an order for periodic child support

payments, such an order is not a final money judgment until an action is brought for a

determination of the amount of unpaid and delinquent installments. Kuhn v. Kuhn, 273 Ind.

67, 70, 402 N.E.2d 989, 991 (1980). Similarly, the settlement agreement provides that Ryan

will begin receiving her portion of the retirement benefits when Janovsky begins receiving

his. Presumably, these benefits will be paid in monthly installments. When an obligation is

payable in installments, the statute of limitations runs as to each installment as it becomes

due. Id. at 71-72, 402 N.E.2d at 991. The applicable statute of limitations2 would therefore

not begin to run until the date of the first distribution from the pension plan, at the earliest.

Although it may certainly be a good idea to have the paperwork in place well in advance,

especially given the complexity of the statutes governing QDROs, there is no reason to

require a QDRO to be entered prior to this date. Under Janovsky’s theory, even if a QDRO

had been entered immediately after the dissolution, Ryan would not be entitled to any

benefits if Janovsky did not retire within twenty years of the dissolution because after twenty

years, the “judgment” (Ryan’s entitlement pursuant to the terms of the dissolution decree to a

portion of Janovsky’s pension benefits) would be deemed satisfied. If that were the case,

Janovsky could retire twenty years and one day after the decree and frustrate the parties’

agreement regarding the division of property.

       Our decision that the statute of limitations does not bar the entry of a QDRO in this



       2
         Because Janovsky has not yet begun receiving distributions from his pension plan, we need not
decide what the applicable statute of limitations is.


                                                  7
case is supported by the reasoning of other courts which have considered this issue. In

Jordan v. Jordan, 147 S.W.3d 255 (Tenn. Ct. App. 2004), the Tennessee appeals court

considered whether a proposed QDRO filed more than ten years after a divorce was granted

was barred by the statute of limitations.3 The court explained the process of dividing a

pension plan that falls within ERISA’s provisions:

        [R]egardless of whether the parties agree to a division [of a pension plan] or
        the court has to decree one, an order must be entered memorializing the
        division. Even assuming the valid entry of an appropriate order, that order
        cannot be enforced in the absence of action by the plan administrator. While it
        is up to a court to decide how a pension plan is equitably divided in a divorce,
        it is clear, beyond any doubt, that, under ERISA, it is up to the plan
        administrator to determine whether the proposed QDRO complies with the
        terms of ERISA . . . . Once a plan administrator determines that a proposed
        QDRO meets the requirements of ERISA . . ., the division decreed by the
        court, as memorialized in the now-approved QDRO, can be enforced . . .; but,
        before the plan administrator finds and reports that the domestic relations order
        is qualified, the division decreed by the court cannot be enforced – regardless
        of what the court, the parties, or one of the parties, does or attempts to do . . . .

Id. at 262 (emphasis in original). The court also noted that under ERISA, there is no statute

of limitations for the entry of a QDRO. Id. at 260. The court concluded that “[u]ntil the

proposed QDRO is approved by the plan administrator and entered by the trial court, the act

of the trial court in dividing the pension plan is not complete and hence not enforceable.” Id.

at 263. Accordingly, the wife’s attempt to obtain approval of the proposed QDRO more than

ten years after the divorce decree was not an action to enforce the divorce judgment and was

not barred by the ten-year statute of limitations. Id.; see Ochoa v. Ochoa, 71 S.W.3d 593,



        3
           The Tennessee statute of limitations in question provides, in relevant part: “The following actions
shall be commenced within ten (10) years after the cause of action accrued: . . . (2) Actions on judgments and
decrees of court of record of this or any other state or government . . . .” T.C.A. § 28-3-110.

                                                      8
596-97 (Mo. 2002) (explaining that statutory presumption that a judgment is satisfied after

ten years does not prevent entry of a QDRO past the ten-year period); Bayen v. Bayen, 917

N.Y.S.2d 269, 270 (N.Y. App. Div. 2011) (noting that “a request to compel the equitable

distribution of the agreed-upon percentage of the former husband’s pension pursuant to an

ERISA-compliant QDRO is not time-barred” although former wife would not be entitled to a

present cash payment past the six-year statute of limitations); see also Duhamel v. Duhamel,

753 N.Y.S.2d 673, 674 (N.Y. Sup. Ct. 2002) (characterizing an action by one spouse to

compel the entry of a QDRO as an action “to compel the other [spouse] to perform a mere

ministerial task necessary to distribute funds previously allocated by the parties’ own binding

agreement” and is not subject to the limitations period on actions to enforce a judgment).

       Janovsky also invoked the equitable doctrines of laches and waiver. Laches is an

equitable defense that stops a person from asserting a claim she would otherwise be entitled

to assert. Angel v. Powelson, 977 N.E.2d 434, 445 (Ind. Ct. App. 2012). The defendant

raising such a defense must establish: “(1) inexcusable delay in asserting a known right; (2)

an implied waiver arising from knowing acquiescence in existing conditions; and (3) a

change in circumstances causing prejudice to the adverse party.” Id. A mere lapse of time is

insufficient to show laches; “it is also necessary to show an unreasonable delay that causes

prejudice or injury.” Id. Here, Janovsky has not yet retired and therefore he is not yet

receiving his pension benefits. As the trial court stated in its order, Janovsky acknowledged

that he would not be prejudiced by the late entry of the QDRO. The parties will be in the

same position if a QDRO is entered tomorrow as they would have been if it had been entered


                                              9
twenty years ago. Absent a showing a prejudice, laches cannot be established. Similarly,

waiver is the “voluntary and intentional relinquishment of a known right.” M.O. v. Indiana

Dep’t of Ins. Patient’s Compensation Fund, 968 N.E.2d 254, 261 (Ind. Ct. App. 2012)

(citation omitted), trans. denied.     “[W]aiver is an affirmative act and mere silence,

acquiescence or inactivity does not constitute waiver unless there was a duty to speak or act.”

Pohle v. Cheatham, 724 N.E.2d 655, 659 (Ind. Ct. App. 2000). As Ryan is not yet entitled to

her share of the pension benefits, any duty she has to act to secure her right to receive them

has not yet inured. There is no evidence that in the twenty-plus years since the divorce, Ryan

has affirmatively volunteered to relinquish her right to receive in due time the agreed-upon

portion of Janovsky’s pension.

       The result of the trial court’s order – which not only denies the entry of the QDRO but

affirmatively states that Ryan is no longer entitled to a portion of Janovsky’s pension – is a

windfall to Janovsky, who agreed as part of the dissolution of his marriage to Ryan to share a

portion of his pension benefits when he began receiving them. And we note that even if the

statute of limitations did bar the entry of a QDRO at this late date, all that would mean is that

Ryan was not entitled to receive her share of the benefits directly from Janovsky’s pension

plan. She would still be entitled to payment of those amounts directly from Janovsky

pursuant to the terms of the settlement agreement.

                                          Conclusion

       Because Ryan’s request for the entry of a QDRO securing her right to payment from

Janovsky’s pension plan is not time-barred by law or equity, the trial court abused its


                                               10
discretion in denying Ryan’s motion and ordering that she was not entitled to the previously-

agreed portion of Janovsky’s pension benefits. The trial court’s order is therefore reversed

and this cause is remanded to the trial court for further proceedings consistent with this

opinion.

       Reversed and remanded.

RILEY, J., and KIRSCH, J., concur.




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