Sheryl L Brown v. Michael Brown

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

SHERYL L. BROWN, UNPUBLISHED

July 18, 2024

Plaintiff-Appellant,

v No. 368469

Lapeer Circuit Court

MICHAEL T. BROWN, LC No. 02-031753-DM (S)

Defendant-Appellee.

Before: LETICA, P.J., and BOONSTRA and MARIANI, JJ.

PER CURIAM.

Plaintiff appeals by right the judgment entered by the trial court in favor of defendant. We

affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

The parties were divorced via a judgment of divorce in 2004. In 2005, the parties stipulated

to the entry of three Qualified Domestic Relations Orders (QDROs) regarding each party’s right

to receive retirement benefits from the other’s retirement plan upon retirement or death. However,

due to an apparent human error, only two of the proposed QDROs were entered, both regarding

plaintiff’s right to receive benefits from defendant’s plan; the third QDRO, regarding defendant’s

right to receive benefits from plaintiff’s plan, was never entered.1

In March 2022, plaintiff retired and began collecting monthly pension payments and

retirement benefits. Defendant subsequently learned of plaintiff’s retirement and discovered that

the QDRO regarding those benefits had not been entered. Defendant moved the trial court to enter

a QDRO regarding those benefits as provided for in the divorce judgment; the order was entered

1

The parties agree that the QDRO was prepared but never entered; plaintiff placed the blame on

defendant’s attorney, while defendant’s attorney stated that he had “no record that it had been

entered or signed or processed.”

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and approved by plaintiff’s plan administrator in December 2022, and defendant began receiving

his share of plaintiff’s retirement benefits in 2023.

In September 2023, defendant filed a motion for reimbursement in the trial court, seeking

to recover his portion of the monthly pension payments that had been paid to plaintiff from her

retirement until the approval and entry of the QDRO. In response, plaintiff argued that defendant’s

claim was barred by the 10-year statute of limitations for actions founded upon a judgment or

decree, as provided in MCL 600.5809(3). After a hearing, the trial court granted defendant’s

motion and entered a judgment in favor of defendant in the amount of $5,888.76. This appeal

followed.

II. STANDARD OF REVIEW

In the absence of disputed questions of fact, this Court reviews de novo whether a claim is

barred by a statute of limitations. Citizens Ins Co v Scholz, 268 Mich App 659, 662; 709 NW2d

164 (2005). We also review de novo issues of statutory interpretation. Dorko v Dorko, 504 Mich

68, 74; 934 NW2d 644 (2019).

III. ANALYSIS

Plaintiff argues that the trial court erred by failing to hold that defendant’s claim was barred

by the statute of limitations found in MCL 600.5809(3). We disagree.

MCL 600.5809 states in relevant part:

(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)[2] the period of limitations is 10 years for

an action founded upon a judgment or decree rendered in a court of 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 . . . Within the

applicable period of limitations prescribed by this subsection, an action may be

brought upon the judgment or decree a new judgment or decree. The new judgment

or decree is subject to this subsection.

“[T]his Court has previously determined that claims relating to a property settlement

contained in a judgment of divorce . . . are subject to the 10-year period of limitations set forth in

MCL 600.5809(3).” O’Leary v O’Leary, 321 Mich App 647, 653; 909 NW2d 518 (2017) (citations

2

MCL 600.5809(4) concerns actions to enforce child support orders and is not implicated in this

case.

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omitted). Our Supreme Court has stated that the limitations period found in MCL 600.5809(3)

applies to actions to recover retirement payments collected in contravention of a divorce judgment.

Dorko, 504 Mich at 77, 78.

“[T]he 10-year period of limitations for a claim relating to a property settlement in a

judgment of divorce begins to run at the time the claim accrues.” O’Leary, 321 Mich App at 653.

“[A] claim relating to a property settlement in a judgment of divorce accrues when the money

owing under the property settlement becomes due.” Id.; see also Torakis v Torakis, 194 Mich App

201, 203; 486 NW2d 107 (1992), citing Rybinski v Rybinski, 33 Mich 592, 596; 53 NW2d 386

(1952) (stating that a claim for installment payments under a divorce judgment accrues when each

payment comes due and is not paid). It is not necessary for a party to have sought a renewed

judgment under MCL 600.5809(3) if the 10-year limitations period, beginning from when the

claim accrued, has not yet run. O’Leary, 321 Mich App at 655. The 10-year limitations period

applies to a postjudgment motion on a divorce judgment, provided the motion seeks to enforce a

right to payment derived from the divorce judgment, and the party filing the motion could have

filed an independent action on their claim. See Dorko, 504 Mich at 77 n 6.

In this case, defendant made a claim for his share of the retirement benefits paid to plaintiff

well with ten years of those payments coming due. Accordingly, his claim was timely and not

barred by MCL 600.5809(3). Plaintiff argues that Dorko says otherwise, but plaintiff misreads

Dorko. In Dorko, our Supreme Court merely stated that “if defendant wanted to recover those

[retirement] payments plaintiff collected in contravention of the divorce judgment, she would have

10 years to do so under MCL 600.5809(3).” Dorko, 504 Mich at 77. The Court did not overrule

or replace established caselaw concerning when the 10-year period of limitations in

MCL 600.5809(3) begins to run; in fact, Dorko clearly reiterated the principle that “[a] claim

accrues ‘at the time the wrong upon which the claim is based was done.’ ” Id. at 75. The Court

elaborated that the defendant’s claim for retirement benefits due under the judgment of divorce

accrued when the plaintiff retired and began collecting benefits:

When a party breaches a substantive obligation arising out of a legal judgment, that

breach gives rise to an independent cause of action. The harmed party then acquires

the right to bring an action to enforce the judgment. Applying this distinction to

the facts here, when plaintiff retired and began collecting 100% of his retirement

benefits due, in contravention of the terms of the divorce judgment, a distinct

“wrong” occurred, giving rise to a cause of action that defendant could bring to

enforce the noncontractual money obligation imposed by the judgment of divorce.

Accordingly, if defendant wanted to recover those payments plaintiff collected in

contravention of the divorce judgment, she would have 10 years to do so under

MCL 600.5809(3). [Id. at 77.]

Moreover, Dorko cited with approval Rybinski and O’Leary in holding that the 10-year limitations

period applies to postjudgment filings within a divorce action as well as independent enforcement

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actions. Id. at 78 n 6. There is simply no way to read Dorko as invalidating the holdings of

O’Leary, Rybinski, and Torakis.3

Accordingly, the trial court did not err by determining that defendant’s claim for

reimbursement of retirement benefits owed under the divorce judgment was not barred by MCL

600.5809(3). Citizens Ins Co, 268 Mich App at 662. Although we decide this case on legal rather

than equitable grounds, we note that the equities also favor this resolution; plaintiff was aware that

the judgment of divorce, which was final, gave defendant a right to a portion of her retirement

funds upon her retirement, just as she is entitled to a portion of his upon his retirement. Her

interests were secured by properly-filed QDROs, while his interest was not secured, due to mere

human error. Plaintiff does not “lose” anything by disgorging the funds that she always knew

belonged to defendant under the terms of the divorce judgment. Further, defendant acted promptly

to secure his rights once the required payments came due and the issue of the missing QDRO was

discovered. To the extent that plaintiff argues that the doctrine of laches also bars defendant’s

claim for reimbursement, we disagree. See In re Contempt of United Stationers Supply Co, 239

Mich App 496, 503-504; 608 NW2d 105 (2000).

Affirmed.4

/s/ Anica Letica

/s/ Mark T. Boonstra

/s/ Philip P. Mariani

3

Contrary to plaintiff’s argument on appeal, the plaintiff in Dorko did not seek repayment of

benefits due under the divorce judgment, but only sought to enter a proposed QDRO concerning

those benefits. The issue in Dorko was thus whether the request for entry of a QDRO was subject

to the limitations period of MCL 600.5809(3). The Court held that “although MCL 600.5809(3)

does not apply to defendant’s request for entry of a proposed QDRO, it would apply to any attempts

she made to recover retirement benefits plaintiff has received in violation of the substantive

requirements of the divorce judgment.” Dorko, 504 Mich at 78. But as stated, it did not alter the

relevant caselaw holding that the limitations period begins when the monetary obligation under

the divorce judgment comes due.

4

Because we affirm the trial court’s holding in favor of defendant, we need not address plaintiff’s

claim that defendant’s motion was frivolous, or the accompanying request for attorney fees.

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