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CourtListener opinion 9391406

Citation: domestic relations order · Date unknown · US

Extracted case name
pending
Extracted reporter citation
domestic relations order
Docket / number
COA22-448
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
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Machine-draft public headnote: CourtListener opinion 9391406 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

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Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: pension / defined benefit issues

Evidence quotes

QDRO

relief the court deems necessary under equity or law. The trial court denied the motion on 28 January 2022, holding as conclusions of law: a. The Schwab IRA account has not been proven to be a "qualified retirement plan" pursuant to ERISA and, thus, a QDRO or DRO is inapplicable and not the appropriate mechanism for distribution thereof; -4- WELCH V. WELCH Opinion of the Court b. The 2008 Consent Order specifically addressed the rights and obligations of the parties regarding the Schwab IRA, and the Order did not include language for entry of a QDRO or DRO as the mechanism for division and distrib

retirement benefits

a second appeal in the same matter.1 Where before this Court reviewed a trial court's denial of a contempt and Rule 70 motion, we now consider whether a motion for entry of a domestic relations order is a proper mechanism for distribution of an individual retirement account under the circumstances or constitutes an action subject to the statute of limitations. 1 For the previous case, see Welch v. Welch (Welch I), 278 N.C. App. 375, 859 S.E.2d 646 (2021) (unpublished). WELCH V. WELCH Opinion of the Court I. Background Mr. and Ms. Welch were married on 19 June 1981. On 30 January 2007, an action for divorce, child cu

pension

Internal Revenue Code of 1986, or by domestic relations order or other -6- WELCH V. WELCH Opinion of the Court appropriate order." N.C. Gen. Stat. § 50-20.1(g) (2022) (emphasis added). This method of distribution "appl[ies] to all vested and nonvested pension, retirement, and deferred compensation plans, programs, systems, or funds, including . . . individual retirement accounts within the definitions of Internal Revenue Code sections 408 and 408A." § 50-20.1(h) (emphasis added). Section 408 of the Internal Revenue Code defines an "individual retirement account" as "a trust created or organized in the Unite

ERISA

part of all further relief the court deems necessary under equity or law. The trial court denied the motion on 28 January 2022, holding as conclusions of law: a. The Schwab IRA account has not been proven to be a "qualified retirement plan" pursuant to ERISA and, thus, a QDRO or DRO is inapplicable and not the appropriate mechanism for distribution thereof; -4- WELCH V. WELCH Opinion of the Court b. The 2008 Consent Order specifically addressed the rights and obligations of the parties regarding the Schwab IRA, and the Order did not include language for entry of a QDRO or DRO as the mechanism for di

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US
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reporter: domestic relations order · docket: COA22-448
Generated at
May 14, 2026

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Clean opinion text

IN THE COURT OF APPEALS OF NORTH CAROLINA

 No. COA22-448

 Filed 02 May 2023

Guilford County, No. 07 CVD 3230

JEFFREY LOREN WELCH, Plaintiff,

 v.

DEBORAH BEAM WELCH, Defendant.

 Appeal by Defendant from an order entered 28 January 2022 by Judge

Michelle Fletcher in Guilford County District Court. Heard in the Court of Appeals

29 November 2022.

 No brief for Plaintiff-Appellee.

 Woodruff Family Law Group, by Carolyn J. Woodruff, Jessica Snowberger
 Bullock and Y. Michael Yin, for Defendant-Appellant.

 WOOD, Judge.

 This is a second appeal in the same matter.1 Where before this Court reviewed

a trial court's denial of a contempt and Rule 70 motion, we now consider whether a

motion for entry of a domestic relations order is a proper mechanism for distribution

of an individual retirement account under the circumstances or constitutes an action

subject to the statute of limitations.

 1 For the previous case, see Welch v. Welch (Welch I), 278 N.C. App. 375, 859 S.E.2d 646
(2021) (unpublished).
 WELCH V. WELCH

 Opinion of the Court

 I. Background

 Mr. and Ms. Welch were married on 19 June 1981. On 30 January 2007, an

action for divorce, child custody, and equitable distribution was commenced, and the

parties were divorced on 2 July 2007. The parties entered into a Consent Judgment

and Order on 30 October 2008, which specified the distribution of the marital

property. This distribution included Mr. Welch's Individual Retirement Account

("IRA") and provided as follows:

 As soon as practicable following the entry of this Consent
 Judgement and Order, Plaintiff shall transfer to Defendant
 one-half (50%) of his Charles Schwab Contributory IRA,
 Account Number . . . , into an individual retirement account
 in Defendant's sole name. Upon the division, the tax basis
 of such individual retirement account, if any, shall also be
 equally divided between the Parties on a pro rata basis as
 of the date of transfer from such IRA. This transfer is an
 incident of the parties' divorce and shall be completed
 pursuant to I.R.C. § 408(d)(6) via a trustee to trustee
 transfer. Defendant and Plaintiff shall execute all
 documents necessary to effectuate such transfer. Plaintiff
 shall be allowed to withdraw up to his one-half portion of
 his IRA at any time (but any such withdrawals shall not
 affect Defendant's one-half amount to be transferred to
 her).

 The parties did not act upon the trial court's order to distribute the IRA until

Ms. Welch filed a motion to find Mr. Welch in contempt on 28 October 2019, nearly

eleven years after the Consent Judgment and Order. The reason for this delayed

action may have been that Ms. Welch believed that she had access to the account for

those eleven years by virtue of her vested interest in the account. The trial court

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 WELCH V. WELCH

 Opinion of the Court

denied the contempt motion on 24 February 2020. It held that the statute of

limitations, as enumerated in Section 1-47(1) of our General Statutes, barred her

motion.

 Ms. Welch subsequently filed a motion on 30 January 2020, requesting the

trial court to "exercise its ministerial and administrative duty" to transfer title of the

IRA to her pursuant to Rule 70 of the North Carolina Rules of Civil Procedure. The

trial court denied this motion, too, on 13 April 2020. It held that such action "is

beyond the Court performing a mere ministerial act where no facts are in dispute."

 Ms. Welch appealed these denials in Welch v. Welch (Welch I), 278 N.C. App.

375, 859 S.E.2d 646 (2021) (unpublished). In Welch I, this Court concluded that the

contempt and Rule 70 motions were properly denied. This Court did not address

whether the trial court could enter a domestic relations order to effectuate the

transfer of the IRA because Ms. Welch had not presented that argument to the trial

court. Citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988), this

Court repeated the maxim "where a theory argued on appeal is not raised before the

trial court, the argument is deemed waived on appeal." Welch I, 278 N.C. App. 375,

859 S.E.2d 646, ¶ 7.

 Thereafter, Ms. Welch raised such a theory before the trial court and moved

the trial court on 8 September 2021 to enter a domestic relations order to effectuate

the transfer of the IRA. The "Motion" asked the court to "enter an IRA Domestic

Relations Order (DRO) [p]ursuant to IRC § 408(d)(6) transferring the current balance

 -3-
 WELCH V. WELCH

 Opinion of the Court

of Plaintiff's Schwab IRA account." It also contained six alternative motions. They

are as follows:

 Motion One: The court has the inherent authority
 based upon the equitable distribution Judgment to enter
 orders to effectuate the Judgment so that the court file can
 be closed.

 Motion Two: The Defendant moves for the return of
 her separate property vested in her pursuant to NCGS 50-
 20 et seq and requests that the court award her attorney
 fees from the Plaintiff for the failure to release her vested
 separate property to her. The IRA at Schwab is her vested
 separate property now and forever more.

 Motion Three: The Defendant moves for an IRA
 Order effectuating her vested property rights in the
 Schwab IRA.

 Motion Four: Pursuant to GS 50-20.1(j), the
 Defendant moves for an order effectuating her vested
 benefit in the Schwab IRA.

 Motion Five: Pursuant to NCGS 50-20 (g), the court
 can enter an order under transferring the title to the
 Defendant's vested IRA at Schwab to her.

 Motion Six: The Defendant generally moves for the
 magical words necessary for her to obtain her vested
 interest in the Schwab IRA as a part of all further relief the
 court deems necessary under equity or law.

 The trial court denied the motion on 28 January 2022, holding as conclusions

of law:

 a. The Schwab IRA account has not been proven to
 be a "qualified retirement plan" pursuant to ERISA and,
 thus, a QDRO or DRO is inapplicable and not the
 appropriate mechanism for distribution thereof;

 -4-
 WELCH V. WELCH

 Opinion of the Court

 b. The 2008 Consent Order specifically addressed
 the rights and obligations of the parties regarding the
 Schwab IRA, and the Order did not include language for
 entry of a QDRO or DRO as the mechanism for division and
 distribution of the Schwab IRA account;

 c. Furthermore, to the extent Defendant's motion
 continues to seek enforcement of the 2008 Consent Order,
 the motions are barred by the statute of limitations set
 forth in N.C.G.S. § 1-47.

 Pursuant to N.C. Gen. Stat. § 7a-27(b)(2) (2022), Ms. Welch now appeals from

the trial court's dismissal.

 II. Standard of Review

 "[W]hen the trial court sits without a jury, the standard of review on appeal is

whether there was competent evidence to support the trial court's findings of fact and

whether its conclusions of law were proper in light of such facts." Shear v. Stevens

Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). Findings of fact are

conclusive on appeal if there is evidence to support those findings, while conclusions

of law are reviewed de novo. Lee v. Lee, 167 N.C. App. 250, 253, 605 S.E.2d 222, 224

(2004). "Under a de novo standard of review, this Court considers the matter anew

and freely substitutes its own judgment for that of the trial court." Reese v.

Mecklenburg Cnty., 200 N.C. App. 491, 497, 685 S.E.2d 34, 38 (2009).

 III. Discussion

 Ms. Welch argues that the trial court erred in denying her motion for entry of

a domestic relations order ("DRO") when it concluded, as a matter of law, that a DRO

 -5-
 WELCH V. WELCH

 Opinion of the Court

is "not the appropriate mechanism for distribution" of the IRA because it must be

"proven to be a ‘qualified retirement plan' pursuant to ERISA" and, further, the

original order "did not include language for entry of a QDRO or DRO" as a means of

distribution. It also held that the motion for entry of a DRO is otherwise a new action

"barred by the statute of limitations." We agree with Ms. Welch and overrule these

conclusions.

A. Domestic Relations Orders as a Mechanism for Effectuating an
 Equitable Distribution Order.

 An equitable distribution consent order, "once signed and entered by the trial

judge, [becomes] a ‘court-ordered equitable distribution' " for the purposes of

distributing retirement plan benefits under Section 50-20.1 of our General Statutes.

Patterson v. Patterson, 137 N.C. App. 653, 664, 529 S.E.2d 484, 490 (2000). Thus, the

2008 Consent Order, after being signed and entered by the trial court, is now treated

as an equitable distribution award under Section 50-20.1. Ms. Welch's "interest in

the Schwab IRA vested in October 2008 when the Order was entered." Welch I, 278

N.C. App. 375, 859 S.E.2d 646, ¶ 5. To "vest" means "to grant, endow, or clothe with a

particular authority, right, or property." Vested, Webster's Third New International

Dictionary (1968).

 As part of an equitable distribution award, retirement accounts may be

distributed "by means of a qualified domestic relations order, or as defined in section

414(p) of the Internal Revenue Code of 1986, or by domestic relations order or other

 -6-
 WELCH V. WELCH

 Opinion of the Court

appropriate order." N.C. Gen. Stat. § 50-20.1(g) (2022) (emphasis added). This

method of distribution "appl[ies] to all vested and nonvested pension, retirement, and

deferred compensation plans, programs, systems, or funds, including . . . individual

retirement accounts within the definitions of Internal Revenue Code sections 408 and

408A." § 50-20.1(h) (emphasis added). Section 408 of the Internal Revenue Code

defines an "individual retirement account" as "a trust created or organized in the

United States for the exclusive benefit of an individual or his beneficiaries" and

mandates certain investment limitations. 26 U.S.C. § 408(a). It is apparent from the

record that the IRA at issue here falls into this descriptive category and may therefore

be distributed through a DRO as outlined in Section 50-20.1(g) or by "other

appropriate order." N.C. Gen. Stat. § 50-20.1(g) (2022); see 26 U.S.C. § 408(b)(6)

(citing 26 U.S.C § 121(d)(3)(C)(i)) (providing generally for the tax-free transfer of an

IRA via "written instrument incident to" a divorce decree).

 We note that certain employer-sponsored retirement accounts are additionally

subject to the federal Employee Retirement Income Security Act of 1974 ("ERISA")

and require a special class of DRO, a qualified domestic relations order ("QDRO"), to

distribute benefits to someone other than the account participant. 29 U.S.C. §

1056(d)(3)(A); see N.C. Gen. Stat. § 50-20.1(g) (2022) (providing for the use of QDROs).

However, traditional IRAs, that is, IRAs not funded by an employer, are not "defined

contribution plans" or "defined benefit plans" that would otherwise subject them to

ERISA's requirements. 26 U.S.C. § 414(i)-(j). The record before us indicates that the

 -7-
 WELCH V. WELCH

 Opinion of the Court

IRA at issue is a traditional IRA and is therefore not governed by ERISA.

 The trial court here conflated DROs and QDROs. It stated, "The Schwab IRA

account has not been proven to be a ‘qualified retirement plan' pursuant to ERISA

and, thus, a QDRO or DRO is inapplicable and not the appropriate mechanism for

distribution thereof." As explained above, the trial court need not concern itself with

utilizing a more involved QDRO in this case; a simpler DRO suffices as an appropriate

mechanism to distribute the IRA at issue. The IRA does not need to be a qualified

retirement plan under ERISA for the trial court to issue a DRO.

B. Domestic Relations Orders and the Statute of Limitations

 We next address whether a motion for a DRO made more than ten years after

the last action in a case is barred by the statute of limitations in initiating an action

upon a judgment when the original order did not specify a DRO as a means to

distribute the equitable distribution award.

 The statute of limitations for initiating an action "[u]pon a judgment or decree

of any court of the United States, or of any state or territory thereof, from the date of

its entry" is ten years. N.C. Gen. Stat. § 1-47 (2022). An action, in this sense, may

be "defined as ‘a formal complaint within the jurisdiction of a court of law.' " Bradford

v. Bradford, 279 N.C. App. 109, 114, 864 S.E.2d 783, 788 (2021) (quoting Massey v.

Massey, 121 N.C. App. 263, 267, 465 S.E.2d 313, 315 (1996)).

 In Welch I, this Court held that a motion for contempt and a Rule 70 motion

were "action[s] to enforce the judgment" and barred by the statute of limitations after

 -8-
 WELCH V. WELCH

 Opinion of the Court

ten years had passed since entry of the 2008 Consent Order. Welch I, 278 N.C. App.

375, 859 S.E.2d 646, ¶ 2. This Court did not elaborate upon the rational for this

holding, but it is clear that this Court viewed the motion as a means of enforcing a

prior judgment. Though not an independent action, these motions might be said to

be "in the nature of an action" such that the statute of limitations would bar its entry.

McDonald v. Dickson, 85 N.C. 248, 250 (1881) (quoting Thomas Campbell Foster, A

Treatise on the Writ of Scire Facias 13 (Philadelphia, T. & J.W. Johnson 1851)).

 In certain instances, a purported DRO motion seeking to modify a prior order

may likewise constitute "an action upon a judgment" so as to invoke the statute of

limitations, as was the case in Bracey v. Murdock. There, this Court reviewed a

motion for a DRO that did "not simply ‘seek[] to finalize' the [prior] Consent Order or

to effectuate its equitable distribution provisions" but sought to additionally award

"all passive gains and losses" from the disputed retirement account and to compel

discovery. ___ NC. App. ___, ___, 880 S.E.2d 707, 709 (2022). " ‘Because motions are

properly treated according to their substance rather than their labels, we treat

[Defendant]'s motion for what it really was, namely, a Rule 59 motion' to amend the

2005 Consent Order." Id. (quoting Scott v. Scott, 106 N.C. App. 379, 382, 416 S.E.2d

583, 585 (1992)).

 Here, by contrast, Ms. Welch's motion for a DRO is not a crafty means to amend

the distribution awarded in the 2008 Consent Order. Instead, Ms. Welch sought in

her motion "to effectuate the Judgment" and did not request alterations to the

 -9-
 WELCH V. WELCH

 Opinion of the Court

original order. Until now, our courts have yet to address whether a motion for a DRO,

as here, constitutes a time-barred "action upon a judgment" where the trial court

previously granted a party vested property rights in a retirement account and the

party seeking the DRO is not seeking anything other than that awarded by the

original order. Looking beyond our borders, we note that other state courts have

answered the question before us.

 In Vermont, a husband and wife divorced, and the husband moved in 2017 for

entry of a DRO to effectuate the transfer of retirement funds two years after the eight-

year statute of limitations ran from the original equitable distribution order.

Johnston v. Johnston, 212 A.3d 627, 635 (Vt. 2019). The trial court initially approved

a proposed DRO in 2007 after the parties' 2004 divorce. The husband filed a motion

to enforce in 2017, claiming that the funds were never transferred to him. Id. at 628.

"The court denied husband's motion to enforce, finding it barred by the eight-year

statute of limitations for actions on judgments." Id. The relevant Vermont statute

of limitations states, "Actions on judgments and actions for the renewal or revival of

judgments shall be brought by filing a new and independent action on the judgment

within eight years after the rendition of the judgment, and not after." Vt. Stat. Ann.

tit. 12, § 506 (2022). Husband appealed the matter to the Vermont Supreme Court.

The Vermont Supreme Court concluded, "We consider husband's motion as one that

seeks to effectuate the final judgment through entry of an adjunct order and our

decision turns on the unique nature of these procedural devices. We conclude that

 - 10 -
 WELCH V. WELCH

 Opinion of the Court

husband's request is not an ‘action on a judgment.' " Johnston, 212 A.3d at 632. That

court wrestled with the notion that a DRO was an attempt to "enforce" a prior

judgment and therefore constituted an "action" as used in Vermont's similar statute

of limitations.

 We simply disagree with the conclusion that entry of a
 DRO is an attempt to enforce the underlying final divorce
 order or that the filing of a DRO is an attempt to enforce
 the underlying final divorce order or that the filing of a
 DRO constitutes an execution upon the judgment. As
 previously discussed, the right to obtain the retirement
 funds awarded in a final divorce order depends upon the
 approval of a third-party, the plan administrator. There is
 no ‘judgment' to execute or enforce until that step has been
 taken.

Id. at 636. Although the Vermont Supreme Court acknowledged that other state

courts may have held differently, it understood the husband's plight and the

mechanism necessary to allow him to obtain his vested property. "[A]lthough

husband was awarded the right to a particular amount of retirement funds in the

2004 divorce order, he had no effective ability to enforce that portion of the order

through an ‘action on the judgment.' " Id. at 634. It therefore held that "the approval

of [a] proposed QDRO is adjunct to the entry of the judgment of divorce and not an

attempt to ‘enforce' the judgment." Id. at 635 (quoting Joughin v. Joughin, 906

N.W.2d 829, 832 (Mich. Ct. App. 2017)). It also cited a Tennessee case, Jordan v.

Jordan, 147 S.W.3d 255 (Tenn. Ct. App. 2004), holding much the same. Id. at 632.

 The Michigan Supreme Court faced a similar question and held that a motion

 - 11 -
 WELCH V. WELCH

 Opinion of the Court

for a DRO after entry of a distribution award is not barred by that state's statute of

limitations on actions upon judgments. Dorko v. Dorko, 934 N.W.2d 644, 650 (Mich.

2019). "A party's request for entry of a proposed QDRO does not involve a distinct

legal ‘claim.' Only claims can be barred by a statute of limitations." Id. at 648. The

Michigan Supreme Court reasoned that "[a]sking a court to enter a proposed QDRO

is therefore not an ‘action' that can be time-barred by a statute of limitations because

the order does not depend on any underlying cause of action. Rather, such a request

merely implements a provision of the divorce judgment." Id. Though the statute of

limitations "would apply" to attempts to recover retirement benefits attained in

violation of the divorce judgment, that court "differentiate[ed] between defendant's

procedural entitlement to entry of a proposed QDRO and her substantive right to

receive 50% of plaintiff's retirement benefits." Id. at 649-50. Although Dorko

addressed a QDRO, the same analysis is applicable to a DRO as in this case.

 We find the rational of these cases persuasive, as to hold otherwise would

deprive spouses of their vested property under an equitable distribution order if the

property were not distributed in a timely manner as happened here. The same

rationale applied in the above Vermont and Michigan cases is applicable here.

Accordingly, we hold that Section 1-47 does not apply to a party's motion for entry of

a proposed DRO when the court previously has ordered the distribution of retirement

benefits and the motion does not seek an award different from the original equitable

distribution order. We echo Dorko in holding that "[t]here is an important distinction

 - 12 -
 WELCH V. WELCH

 Opinion of the Court

between a post[-]judgment order that implements a term of a divorce judgment and

an action to enforce that judgment." Id. at 649. We note that, in the above decisions,

the original equitable distribution orders specified the entry of DROs as the principal

means of effectuating the distribution of the retirement accounts at issue. Though

the 2008 Consent Order here specified a "trustee to trustee transfer" as the means of

effectuating the distribution, we hold that the principles outlined above operate to

allow the trial court to enter a post-judgment DRO to effectuate the intended result

of the 2008 Consent Order.

 IV. Conclusion

 In accordance with Section 50-20.1 of our General Statutes, the trial court is

authorized to enter a DRO as a proper mechanism for distributing a traditional IRA.

The statute of limitations does not bar a request for entry of a DRO as a means of

effectuating a prior order, so long as such entry does not affect the substantive rights

of the parties.

 REVERSED AND REMANDED.

 Judges ZACHARY and GORE concur.

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