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             Recently, the Speaker Law Firm obtained a published opinion on the post-judgment of divorce case of O’Leary v O’Leary,  ___ Mich App ___ (Docket 333519), which has broad application beyond the family law context.

In O’Leary, the parties’ judgement of divorce required the marital home to be sold and “the indebtedness or profit shall be shared equally.” The husband finally sold the home 6 years later for a loss. The husband waited for several years ­­­––as he was paying off the short sale–– before he sought to enforce the judgement of divorce by seeking reimbursement from his ex-wife for her one-half share of the indebtedness. The wife argued that the motion to enforce was barred by the 10-year statute of limitations; the husband argued that the time to enforce did not begin to accrue until he sold the home for a loss. The trial court agreed with the wife and denied the husband’s motion to enforce. 

The Court of Appeals examined the interplay of MCL 603.5809 (limitations) and MCL 600.5827 (accrual).

Section 5809 provides:

A person shall not bring or maintain an action to enforce a noncontractual

money obligation unless, after the claim first accrued to the person, …the person commences the action within the applicable period of time prescribed by this section…[T]he period of limitations is 10 years for an action founded upon a judgment…from the time of the rendition of the judgment or decree… [Emphasis added by Court of Appeals opinion]

Section 5827 provides:

Except as otherwise expressly provided, the period of limitations runs from the

time the claim accrues. The claim accrues at the time provided in [MCL

600.5829 to MCL 600.5858], and in cases not covered by these sections the claim

accrues at the time the wrong upon which the claim is based was done regardless

of the time when damage results. [Emphasis added by Court of Appeals opinion]

The Court of Appeals held in a published opinion that the judgement of divorce was subject to a 10-year statute of limitations contained in MCL 600.5809. However, the Court of Appeals concluded that the accrual provision of MCL 600.5827 triggered the 10-year limitation period, such that the husband’s claim was timely filed under 600.5809 because he filed within 10 years of selling the house for a loss. 

             A divorce judgment has been entered, with a retirement plan involved. How long do the parties have to enter their QDRO (qualified domestic relations order) to effectuate the division of the retirement accounts? This question is commonplace after a judgment of divorce. A recent opinion from the Michigan Court of Appeals is changing the way this question is answered. As a general rule under MCL 600.5809, the statute of limitations to enforce a judgment is ten years. While this is the general rule, Joughin v Joughin, ___ Mich App ___ (2017), Docket 329993, is changing the way this statute of limitations is viewed.

A judgment of divorce requires that a QDRO be filed in order to receive the benefits from a retirement plan associated with the divorce. This is subject to the ten year statute of limitations as outlined by MCL 600.5809, which states:

(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 or 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.

In Joughin, the Plaintiff and Defendant were divorced April 28, 2003. For normal purposes this would begin the accrual period on the QDRO. Then 12 years after the judgment of divorce was entered, on July 6, 2015, the Plaintiff entered her proposed QDROs to the court in order to receive the retirement benefits she was entitled to in the judgment of divorce. The Defendant argued that under MCL 600.5809, the retirement plan is unrecoverable because the statute of limitations of ten years had already expired. The Plaintiff in response argued that the accrual does not begin until a triggering event happens, and that in regards to the retirement the triggering event would be the Defendant’s retirement making the funds accessible.

The Michigan Court of Appeals in Joughin concluded “the entry of the proposed QDRO is not an action to enforce a noncontractual money obligation” Id. at 3. Since this is not a noncontractual money obligation, MCL 600.5809 will not apply to a QDRO. The effect this has is it now allows the Plaintiff to file this QDRO after the limitations period would have been up and still makes it viable for recovery.

In Joughin, Judge Jansen provided a lengthy dissent as to why she disagreed with the majority opinion stating “I believe that entry of a QDRO is an action to enforce a judgment of divorce and subject to the applicable statute of limitations.” Id. at 4. She also discussed that three other states have dealt with identical types of cases and all are resulting with different precedents. Judge Jansen spoke to the idea that it must first be determined when the recipient would gain access to the funds from the plan, and begin the ten year accrual period.
No application was filed in the Supreme Court.