{
  "id": 11919080,
  "name": "DONALD W. ALLEN, JR., Plaintiff v. SARAH A. ALLEN, Defendant",
  "name_abbreviation": "Allen v. Allen",
  "decision_date": "1995-04-04",
  "docket_number": "No. 9426DC618",
  "first_page": "455",
  "last_page": "458",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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          "page": "595",
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      "year": 1994,
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          "page": "731",
          "parenthetical": "in evaluating defined benefit plans, calculation will \"include 'gains and losses on the prorated portion of the benefit vested at the date of separation' \""
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  "last_updated": "2023-07-14T20:04:31.897721+00:00",
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  "casebody": {
    "judges": [
      "Judges EAGLES and McGEE concur."
    ],
    "parties": [
      "DONALD W. ALLEN, JR., Plaintiff v. SARAH A. ALLEN, Defendant"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nPlaintiff initiated this action on 25 October 1991 by filing a complaint for equitable distribution pursuant to N.C. Gen. Stat. \u00a7 50-20. This case and a companion case were calendared for the week of 31 A\u00fcgust 1992 for trial on the issues of equitable distribution and alimony. When the case was called for trial the parties were discussing a settlement of all issues, and on 2 September 1992, the parties read into the record the terms of their agreement and waived their rights to sign the written judgment.\nThe terms of the agreement provided for a 60/40 division of all assets of the marital estate valued as of the date of separation, with defendant receiving the larger share. Among the assets to be distributed was a fully vested defined benefit 401(k) retirement plan which plaintiff maintained through his employer. The agreement provided that the marital portion of the 401(k) plan would be distributed pursuant to a qualified domestic relations order (QDRO).\nDuring the process of drafting the equitable distribution order and judgment memorializing the parties\u2019 agreement, plaintiff objected to the inclusion of post-separation gains and losses in defendant\u2019s share of the 401(k) plan. On 12 April 1993 the trial judge ruled that \u201cas a matter of law... the distribution of sixty percent (60%) of the retirement account to Defendant, as of date of separation, included an allocation of gains and losses from date of separation to date of entry of the [QDRO].\u201d\nThereafter the court entered the equitable distribution judgment and order and the related QDRO. The equitable distribution order provided that \u201cthe value to be divided from the 401(k) is determined to be $206,535 as of the date of separation, December 21, 1990\u201d and that \u201cWife shall receive a distributive award in the form of a [QDRO] distributing to her 60% of the account balance of $206,535 or $123,921 as of December 31, 1990.\u201d The order stated that\n[t]he $123,921 distributed to Wife shall thereafter include gains and losses on the portion of the plan divided to Wife from 12/31/90 but shall not include further contributions to the account from Husband or his employer. The portion of the gains or losses which shall be attributed to the account of Wife from December \u25a0 31, 1990 shall be 52.85% of the total gains or losses. This figure is determined as the fractional share of the total account divided to Wife as follows: ($123,921 / $234,489 = 52.85%).\nPlaintiff appeals only on the issue of the propriety of including post-separation gains and losses on the portion of the 401(k) plan allocated to defendant.\nPlaintiff argues that the trial court erred by \u201cimposfing] additional terms in the entry of an order or judgment beyond those terms contained in the agreement read into the record by the parties.\u201d He claims that the parties\u2019 agreement read into the record \u201cwas virtually silent as to the 401(k) and the'[QDRO] in general\u201d and that \u201c[t]he terms added by the court concerning the gains and losses on the Plaintiff\u2019s 401(k) had not been and have never been consented to by the Plaintiff.\u201d Plaintiff\u2019s position is that the trial court was \u201cwithout jurisdiction to enter the order on that issue\u201d and that the order \u201cshould be reversed and the award of gains and losses on the plaintiff\u2019s 401(k) account since the date of separation to the Defendant should be stricken from both the Equitable Distribution Judgment and the QDRO. ...\u201d\nDefendant contends that distribution of defendant\u2019s 60% share of the 401(k) plan using the date of separation value necessarily resulted in allocation of any gains or losses since separation and that no additional terms were needed as a result of the actual physical division of the 401(k) plan between the parties. She argues that her earnings or losses would follow her portion of the 401(k) plan from date of separation until date of actual distribution. We agree.\nAt the outset, we note that the parties\u2019 agreement was not, as plaintiff claims, \u201cvirtually silent\u201d as to the distribution of the 401(k) plan. The parties agreed that the marital estate, which included the marital portion of the 401(k) plan, was to be divided 60/40 in favor of defendant using date of separation values. Thus, their agreement contemplated that defendant would receive 60% of the marital portion of the 401 (k) plan valued as of the date of separation.\nContrary to plaintiffs assertions, the trial court\u2019s judgment and orders as to the 401(k) plan did not modify or add to the parties\u2019 agreement. Rather, the court simply effectuated the agreement in accordance with N.C. Gen. Stat. \u00a7 50-20(b)(3), which provides that an award of a retirement account \u201cshall be based on the vested accrued benefit,... calculated as of the date of separation\u201d and \u201cshall include gains and losses on the prorated portion of the benefit vested at the date of separation.\u201d See also Bishop v. Bishop, 113 N.C. App. 725, 731, 440 S.E.2d 591, 595 (1994) (in evaluating defined benefit plans, calculation will \u201cinclude \u2018gains and losses on the prorated portion of the benefit vested at the date of separation\u2019 \u201d) (quoting N.C. Gen. Stat. \u00a7 50-20(b)(3)).\nWe hold that the trial court\u2019s judgment and orders awarding defendant post-separation gains and losses on her portion of the 401(k) plan are consistent with both the parties\u2019 agreement and the law of this state.\nAffirmed.\nJudges EAGLES and McGEE concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Dennis J. Slattery for plaintiff-appellant.",
      "Hicks, Brown and Mann, P.A., by Fred A. Hicks and Terri L. Young, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "DONALD W. ALLEN, JR., Plaintiff v. SARAH A. ALLEN, Defendant\nNo. 9426DC618\n(Filed 4 April 1995)\nDivorce and Separation \u00a7 168 (NCI4th)\u2014 401(k) plan \u2014 award of post-separation gains and losses proper\nThe trial court\u2019s judgment and orders awarding defendant post-separation gains and losses on her portion of plaintiff\u2019s 401(k) plan were consistent with both the parties\u2019 agreement and the law of this State.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 870 et seq.\nPension or retirement benefits as subject to award or division by court in settlement of property rights between spouses. 94 ALR3d 176.\nAppeal by plaintiff from qualified domestic relations order entered 4 January 1994 and equitable distribution judgment and order entered 8 February 1994 by Judge. Resa L. Harris in Mecklenburg County District Court. Heard in the Court of Appeals 28 February 1995.\nDennis J. Slattery for plaintiff-appellant.\nHicks, Brown and Mann, P.A., by Fred A. Hicks and Terri L. Young, for defendant-appellee."
  },
  "file_name": "0455-01",
  "first_page_order": 487,
  "last_page_order": 490
}