Eller v. Bolton

EENNEY, Judge. Harold Wayne Eller (“Husband”) appeals the judgment of the Circuit Court for Harford County, amending a Qualified Domestic Relations Order (“QDRO”) issued by that court as a ⁹⁹ Domestic Relations Order (“DRO”) on March 13, 2001. The amendments removed language terminating the interest of Virginia Denton Eller (“Wife”) in a portion of Husband’s pension benefits upon her death. In addition, the amended QDRO designated Wife as “the alternate payee through Wilbur S. Bolton, III, Personal Representative of the Estate of [Wife].” Husband presents one question for our review, which we have divided and recast as the following: I. Did the circuit court have the authority to amend a QDRO in order to secure Wife’s marital property award in accordance with a Consent Order that was incorporated, but not merged, into the judgment of divorce?

II

Is the QDRO, as amended, invalid under 29 U.S.C. § 1056 (D)(3)(K) because it provides for payment to an individual not included within the definition of an “alternate payee?” We answer the first question in the affirmative, but because the domestic relations order, as amended, may not be qualifiable, we shall vacate the judgment of the circuit court and remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY Husband and Wife were married on December 11, 1961. They separated on May 11, 1997, and on July 20, 1998, Husband filed a complaint for absolute divorce in the Circuit Court for Harford County. In her counter-complaint for absolute divorce, Wife sought, among other things, alimony, child support, and a monetary award pursuant to Maryland Code (1984, 1999 Repl.Vol.), § 8-205-208 of the Family Law Article (“F.L.”).

On June 27, 2000, the circuit court approved a consent order executed by Husband and Wife (the “Consent Order”). In consideration of Wife’s waiver of any right to a monetary award, alimony, and attorneys’ fees, Husband assigned to Wife, among other things, one-half of his interest in the ¹⁰⁰ Robert Preston Excavating Co., Inc., Profit Sharing Plan and Trust (the “Plan”). The Plan is identified as a defined contribution plan. 1 Husband and Wife covenanted, in pertinent part: L. The Plan Administrator for [Husband’s] interest in the [Plan], shall distribute directly to [Wife], by way of a rollover to her designated plan, 50% of the total value in the Plan, not to exceed 1/2 of $50,000 as indicated on Statement of Account for Plan dated 12/31/99, copy attached as Ex. 1. M. [Husband] assigns to [Wife] one-third (1/3) of the preretirement death benefits, not to exceed 1/3 of $126,000.00 as indicated on Ex. 1, but a lesser amount if value of said pre-retirement death benefit has decreased at the time of [Husband’s] death.

N. [Husband] assigns to [Wife] one-third (1/3) of the proceeds from life insurance benefits incident to the Plan, not to exceed 1/3 of $76,000.00 as indicated on Ex. 1, but a lesser amount if value of said insurance death benefit has decreased at the time of plaintiffs death. O. [Husband] shall not do nor suffer to be done any act, except as herein set forth, to decrease the value of his said pre-retirement death benefit or the value of the life insurance proceeds either by way of requesting disbursement thereof, by assignment, or by loan against such benefits. ¹⁰¹ P. [Wife’s] attorney shall draft the Qualified Domestic Relations Orders necessary to distribute the pension plan benefits as herein indicated^.] (Emphasis added.) On March 9, 2001, the circuit court granted Husband an absolute divorce. The court incorporated, but did not merge, the Consent Order in its judgment of divorce. Furthermore, in granting the divorce, the court ordered: [T]his Court shall retain jurisdiction over the matter of the pension for purposes of securing a Qualified Domestic Relations Order to protect said [Wife’s] monetary award, and to retain jurisdiction to amend[ ] this Judgment and/or the aforesaid Qualified Domestic Relations Order for the purpose of maintaining its qualifications as a qualified domestic relations order under the Retirement Equity Act of 1984, or any other subsequent legislation; and both parties and the manager of [Husband’s] retirement plan shall take whatever actions may be necessary to establish or maintain these qualifications, provided that no such amendment shall require the retirement plan to provide any type or form of benefits, or any option not otherwise provided under the [P]lan, and further provided that no such amendment or the right of the Court to so amend will invalidate the order as “Qualified” under the Retirement Act.

On March 13, 2001, the circuit court signed a domestic relations order (“DRO”), which was “consent[ed][to] as to form” by counsel for both Husband and Wife. The DRO included the name and address of Husband, the plan participant, and the name and address of Wife, the alternate payee. Additionally, the DRO provided: (3) The Plan Administrator for [Husband’s] interest in the [Plan], shall distribute, directly to [Wife], by way of a rollover to her designated plan, Fifty Percent (50%) of the total value in the Plan, not to exceed one-half Qk) of Fifty Thousand Dollars ($50,000.00) as indicated on Statement of Account for Plan dated December 31, 1999, copy attached as Exhibit No. 1, when, if, and as paid to [Husband.] ¹⁰² * * ❖ (6) The [Plan], from which benefits are assigned herein-above, including both Company Accounts and Voluntary Accounts of the Participant under the Profit Sharing Plan & Trust, will pay benefits to [Wife] in accordance with the provisions of Annotated Code of Maryland, Family Law Article Section 8-205 (Cumm. Supp. 1990) and based on the following formula. [Wife] is hereby assigned Fifty Percent (50%) of the total value of [Husband’s] profit sharing plan & trust account (not to exceed ½ of $50,000.00), which he has earned through his employment with Robert Preston Excavating Co., Inc., said Fifty Percent (50%) interest to be calculated as of December 31, 1999. [Husband] assigns to [Wife], 50% of assets of account as of December 31, 1999 (not to exceed $50,000.00, in value), plus all accretions and losses attributable to [Wife’s] 50%, rolled over into a separate account for [Wife].... * * * (7) [Wife] shall commence her portion of the benefit plan when eligible in accordance with the Plan.

Payments will continue until [Wife’s] death. (8) [Husband], [Wife], and the [c]ourt, intend this Order to be a Qualified Domestic Relations Order as defined in Section 414(p) of the Internal Revenue Code of 1986 as amended. (9) This Order is issued pursuant to the Family Law Article of the Annotated Code of Maryland which relates to the provisions of child support, alimony payments, or marital property rights as defined therein between spouses and former spouses in actions for divorce. * * * (18) The parties agree that their mutual intent is to provide the Alternate Payee [Wife] with a retirement payment that fairly represents a marital share of the retirement before as defined herein. If this Order submitted to the Administrator of the Plan is held not to be a Qualified Domestic Relations Order within the meaning of IRC Section 414(p), ¹⁰³ the parties permit this Court to retain jurisdiction over this matter and they further agree to request this [cjourt to modify the Order so as to make it a Qualified Domestic Relations Order that reflects the parties’ intent, said modification order to be entered nunc pro tunc, if appropriate.

Although the Plan administrator initially accepted, and presumably “qualified,” the proposed DRO (the “original QDRO”), several problems soon became apparent. The original QDRO was unclear whether Wife’s benefits were to be distributed through a single lump sum payment. The Plan administrator also determined that the pre-retirement death benefit figure of $126,000 in the Consent Order was inaccurate. According to the Plan administrator, Husband’s interest should have been stated as $76,000.

Finally, the Plan noted that, as the original QDRO was drafted, the Plan could not pay Wife the death benefit because the provision of the Consent Order granting Wife such an interest was not included. It appears that, in response, Husband and Wife agreed to amend the original QDRO to address the Plan administrator’s concerns, and that a revised DRO was drafted (the “Revised DRO”), but was never approved by the circuit court. 2 It is unclear from the record whether it was actually submitted to the circuit court, but, according to the Plan’s complaint in the subsequent interpleader action, the Revised DRO was submitted to the Plan. On September 18, 2001, before Husband became eligible for benefits under the Plan and before Wife had returned required distribution request forms to the Plan, Wife died. When Husband subsequently became eligible for benefits, Husband and Wife’s estate (“the Estate”) filed competing claims.

Uncertain as to which party or parties it should pay and whether it should honor the original QDRO or the Re ¹⁰⁴ vised DRO, the Plan filed an interpleader action in the United States District Court for the District of Maryland, Civil Action number WMN-02-0077, naming Husband and the Estate as defendants. After the District Court realigned the parties, Husband, as plaintiff, filed a motion for summary judgment, asserting that Wife was not entitled to benefits under the original QDRO, the only order approved by the circuit court, because payments to Wife were to cease upon Wife’s death. The Estate moved for summary judgment on the grounds that the defects in the original QDRO rendered it a “nullity.” In the alternative, the Estate requested that the District Court amend the terms of the original QDRO to reflect the terms of the Consent Order, which “manifested] the ‘clear intent of the parties.’ ” In the event the court declined to do so, the Estate requested that the District Court stay or dismiss the action so that “the parties [could] ‘fight it out in state court.’ ” Finding that it had “ ‘jurisdiction over an action for inter-pleader to determine the proper beneficiary of benefits payable from an ERISA employee welfare plan,’ ” the District Court denied the Estate’s motion to dismiss and declined to grant a stay, (quoting Central States, Southeast & Southwest Areas Pension Fund v. Howell, 227 F.3d 672 , 674 n. 2 (6th Cir.2000)). Considering the merits of the Estate’s motion, the District Court concluded that it could neither “simply ignore” the stated language of the original QDRO, which was “the only QDRO that ha[d] been brought to th[e] Court’s attention,” nor amend it to reflect the Consent Order. 3 Because the Court found that the original QDRO stated “unequivocally” that benefits under the Plan “shall only be distributed to [Wife] Vhen, if, and as paid’ to [Husband], and that the rights to payment terminate upon [Wife’s] death,” the court held that ¹⁰⁵ the Estate was not entitled to benefits under the Plan.

Accordingly, the Court granted Husband’s motion for summary judgment. Following the District Court proceeding, the Estate, on August 4, 2003, filed a motion to amend the original QDRO in the Circuit Court for Harford County. 4 Husband opposed the Estate’s motion on multiple fronts, arguing: that the Estate did not have standing; that the court lacked jurisdiction; that the parties were improperly substituted; and that the motion was barred by the doctrine of res judicata. On February 10, 2004, in a memorandum opinion, the circuit court granted the Estate’s motion to amend the QDRO. In so doing, the court agreed to approve “an amended [D]RO with terms consistent with the original Judgment of Divorce and the Agreement of the parties regarding the division of [Husband’s] retirement plan.” The court approved the amended DRO on March 15, 2004 (the “Amended DRO”).

The Amended DRO named Wife “the alternate payee through Wilbur W. Bolton, III, Personal Representative of the Estate of [Wife].” The provisions in the original QDRO that distributions to Wife were to occur “when, if, and as paid to [Husband]” and that payments were to “continue until [Wife’s] death” were removed. Moreover, the Amended DRO ordered the Plan to pay the Estate one-half of the value of Husband’s interest in the Plan, not to exceed $50,000, with payment to take place “as soon as administratively feasible on or after the acceptance of th[e] order by the Plan, and completion of any required forms by the Alternate Payee.” On March 26, 2004, Husband filed a motion to alter or amend, claiming that the circuit court made several erroneous findings of fact and conclusions of law. According to Husband, the circuit court erred in finding that the Estate’s motion was not barred by the doctrine of res judicata, in ¹⁰⁶ allowing an improper substitution of parties, and in finding that the court had jurisdiction to amend the QDRO. On May 18, 2004, the court denied Husband’s motion.

This timely appeal followed. 5 STANDARD OF REVIEW In an action tried without a jury, we review the case on “both the law and w.e evidence.” Maryland Rule 8-181(c). We will not disturb the judgment of the circuit court on the evidence unless clearly erroneous, giving deference to the court’s opportunity to assess the credibility of the witnesses. Rule 8—131(c). See McCleary v. McCleary, 150 Md.App. 448, 457-58 , 822 A.2d 460 (2002); Noffsinger v. Noffsinger, 95 Md.App. 265, 283 , 620 A.2d 415 (1993) (citing Eckstein v. Eckstein, 38 Md.App. 506, 516 , 379 A.2d 757 (1978)).

DISCUSSION I. Husband asserts that the circuit court erred or abused its discretion in amending the original QDRO to provide Wife, through the Estate, a survivorship interest in the Plan. According to Husband, the circuit court lacked jurisdiction to do so because the original QDRO had been qualified by the Plan. He also contends that the Estate’s claim to benefits is barred by the doctrines of res judicata and collateral estoppel. In considering Husband’s assignments of error, a brief overview of the relevant federal statutes is helpful.

Congress enacted the Employee Retirement Income Security Act of 1974 (P.L. 93—406, 88 Stat. 829 ) (“ERISA”) “to provide better protection for beneficiaries of employee pension and welfare ¹⁰⁷ benefit plans abounding in the private workplace.” Rohrbeck v. Rohrbeck, 318 Md. 28, 30 , 566 A.2d 767 (1989) (discussing the history and intent of ERISA). Included in ERISA is a “spendthrift” provision, restricting a plan participant’s ability to assign his or her benefits under a pension plan covered by the act. 29 U.S.C. § 1056 (d)(1). ERISA expressly preempts state law and made the regulation of pension plans a matter of exclusive federal interest. 29 U.S.C. § 1144 (a); Rohrbeck, 318 Md. at 31 , 566 A.2d 767 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 , 107 S.Ct. 1549 , 95 L.Ed.2d 39 (1987)).

Subsequent to the enactment of ERISA, Congress and various courts questioned the validity and efficacy of state law domestic relations orders that awarded a non-participant spouse an interest in a participant spouse’s pension benefits under an ERISA covered plan. In response, Congress passed the Retirement Equity Act of 1984 (P.L. 98-397, 98 Stat. 1433 ) (“REA”), which exempted from the spendthrift and preemption provisions “qualified domestic relations orders” or “QDROs.” 29 U.S.C. § 1056 (d)(3)(A). With respect to qualified domestic relations orders, the REA provides, in pertinent part: (B) for purposes of this paragraph- (i) the term “qualified domestic relations order” means a domestic relations order— (I) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and (II) with respect to which the requirements of subparagraphs (C) and (D) are met, and (ii) the term ‘domestic relations order’ means any judgment, decree, or order (including approval of a property settlement agreement) which— (I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and ¹⁰⁸ (II) is made pursuant to a State domestic relations law (including a community property law). (C) A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies— (i) the name and last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) the amount and percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies.

(D) A domestic relations order meets the requirements of this subparagraph only if such order- (i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan, (ii) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order. (E) (i) A domestic relations order shall not be treated as failing to meet the requirements of clause (i) of subparagraph (D) solely because such order requires that payment of benefits be made to an alternate payee— (I) in the case of any payment before a participant has separated from service, on or after the date on which the participant attains (or would have attained) the earliest retirement age, (II) as if the participant had retired on the date on which such payment is to begin under such order (but taking into account only the present value of benefits actual ¹⁰⁹ ly accrued and not taking into account the present value of any employer subsidy for early retirement), and (III) in any form in which such benefits may be paid under the plan to the participant (other than in the form of a joint and survivor annuity with respect to the alternate payee and his or her subsequent spouse). 29 U.S.C. § 1056 (d)(3)(B)-(E). Under the REA, an alternate payee is “any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under the plan with respect to such participant.” Id. § 1056(d)(3)(E). An alternate payee, under a qualified domestic relations order, is treated as a plan beneficiary.

Id. § 1056(d)(3)(J). As noted above, 29 U.S.C. § 1056 (d)(3)(D) prohibits the qualification of domestic relations orders that grant “any type or form of benefit, or any option, not otherwise provided under the plan,” or orders that result in a plan having to pay increased benefits. Therefore, QDROs can be drafted to provide for differing payment types depending upon the type of plan involved. One type of payment available is a “shared payment,” whereby the QDRO “seeks to divide only actual payments made with respect to the participant under the plan.” Pamela D. Perdue, Pension, Pension and Welfare Benefit Administration QDRO Guidelines (QDROS; Division of Pensions Through Qualified Domestic Relations Orders), ALI-ABA Course of Study Materials, 62 ALI-ABA 743, 747 (1998) [hereinafter Pension and Welfare].

Under a shared payment approach, only the participant’s stream of income is divided and the “alternate payee is not actually given a portion of the actual retirement benefit.” Id. Therefore, the alternate payee’s right to receive payment is dependent upon the participant’s receipt of payments under the plan and he or she will not receive a distribution unless, and until, the participant is in pay status. Id. Accordingly, QDROs providing for shared payments are typically entered in cases ¹¹⁰ where the participant is already receiving payments under his or her plan.

In contrast to the shared payment QDROs are QDROs providing for “separate interest” payments. Id. at 748 . Under a separate interest QDRO, the participant’s actual retirement benefit is divided, and the alternate payee is permitted to “receive a portion of the retirement benefit to be paid at a time and in a form different from that chosen by the participant.” Id. A separate interest QDRO is often preferred where the order “seeks to divide a pension as part of the marital property as opposed to providing for support payments.” Id.

Upon the receipt of a domestic relations order purporting to grant a participant’s interest to an alternate payee: (I) the plan administrator shall promptly notify the participant and each alternate payee of the receipt of such order and the plan’s procedures for determining the qualified status of domestic relations orders, and (II) within a reasonable period after receipt of such order, the plan administrator shall determine whether such order is a qualified domestic relations order and notify the participant and each alternate payee of such determination. 29 U.S.C. § 1056 (d)(3)(G)(i). The REA further provides: (H)(i) During any period in which the issue of whether a domestic relations order is a qualified domestic relations order is being determined (by the plan administrator, by a court of competent jurisdiction, or otherwise), the plan administrator shall separately account for the amounts (hereinafter in this subparagraph referred to as the ‘segregated accounts’) which would have been payable to the alternate payee during the period if the order had been determined to be a qualified domestic relations order. (ii) If within the 18-month period described in clause (v) the order (or modification thereof) is determined to be a qualified domestic relations order, the plan administrator ¹¹¹ shall pay the segregated amounts (including any interest thereon) to the person or persons entitled thereto. (iii) If within the 18-month period described in clause (v)— (I) it is determined that the order is not a qualified domestic relations order, or (II) the issue as to whether such order is a qualified domestic relations order is not resolved, then the plan administrator shall pay the segregated amounts (including any interest thereon) to the person or persons who would have been entitled to such amounts if there had been no order.

(iv) Any determination that an order is a qualified domestic relations order which is made after the close of the 18-month period described in clause (v) shall be applied prospectively only. (v) For purposes of this subparagraph, the 18-month period described in this clause is the 18-month period beginning with the date on which the first payment would be required to be made under the domestic relations order. (I) If a plan fiduciary acts in accordance with part 3 of this subtitle in- (i) treating a domestic relations order as being (or not being) a qualified domestic relations order, or (ii) taking action under subparagraph (H), then the plan’s obligation to the participant and each alternate payee shall be discharged to the extent of any payment made pursuant to such Act. 29 U.S.C. § 1056 (d)(3)(H)-(I). We now consider Husband’s assignments of error in the instant case.

In its memorandum opinion, the circuit court reasoned that it had jurisdiction to amend the original QDRO because the Consent Order and original QDRO were incorporated, but not merged, into the judgment of divorce. Additionally, the circuit court noted that, in the order of divorce, “for the purpose of maintaining its qualifications as a qualified ¹¹² domestic relations order under the Retirement Equity Act of 1984, or any other or subsequent legislation,” it had retained jurisdiction “over the matter of the pension for purposes of securing a Qualified Domestic Relations Order to protect said Virginia Denton Eller’s monetary award.” Husband claims that the circuit court only retained jurisdiction to amend the original QDRO if the order was submitted to the Plan and the administrator “held [it] not to be qualified.” Relying upon Leadroot v. Leadroot, 147 Md.App. 672 , 810 A.2d 526 (2002), Husband asserts, once the Plan administrator qualified the original QDRO and thirty days elapsed from the entry of that order, the circuit court’s jurisdiction to revise the order terminated, in the absence of fraud, mistake, irregularity, or clerical mistake. See Maryland Rule 2-535. In Leadroot , the circuit court granted a judgment of absolute divorce in 1993, which incorporated a DRO granting the wife a marital property award of one-half of the marital portion of the husband’s pension benefits.

The marital portion of the husband’s plan was calculated as “a fraction of the [husband’s] full monthly benefit, the numerator of which shall be the number of months of [husband’s] participation in the Plan from the date of the parties’ marriage ... and the denominator of which shall be the total number of months of [husband’s] participation in the Plan.” Id. at 674-75 , 810 A.2d 526 . The wife filed the order with the husband’s plan in 1995, and the plan qualified it. Four years later, without the wife’s knowledge, the husband transferred his interest to a separate plan that had previously been acquired, in part, during the marriage. As a result, the husband’s pension benefits were significantly increased.

He retired and began collecting benefits soon thereafter. When the wife learned of the transfer, she filed the QDRO with the administrator of husband’s second plan. She was informed that the QDRO would not be accepted unless it was separated from the parties’ judgment of absolute divorce. Pursuant to the wife’s motion, the circuit court issued a separate order in 2001, effectively incorporating the terms of ¹¹³ the parties’ first QDRO.

The husband did not challenge the language of the 2001 QDRO or claim that it should be altered to reflect his repurchase of the four years of benefits that had been cashed in during the marriage. Six months later, the husband filed a motion to alter or amend the 2001 QDRO on the grounds that “ ‘the original divorce decree and QDRO had an error as to the marital portion of the retirement benefits which are owing and due’ [wife].” Id. at 677 , 810 A.2d 526 . Because he had cashed in four years of retirement during his marriage and had repurchased those benefits with non-marital funds subsequent to the divorce, the husband claimed the repurchased benefits could not be considered marital property. The circuit court agreed and again amended the QDRO on the grounds of mutual mistake so that the four years of redeemed benefits were not considered part of the marital fraction of husband’s total benefits.

Claiming that the court was without authority to amend a QDRO eight years after its issuance, the wife filed a motion to alter or amend the judgment, which was denied. Id. at 678-79 , 810 A.2d 526 . On appeal, this Court initially determined that the circuit court’s modifications to the QDRO were clearly revisions as opposed to clarifications. The Leadroot Court stated: Regardless of what [the husband] chooses to call it, the circuit court did in fact revise the fraction used to compute the marital portion of [the husband’s] pension benefits.

It did so to correct what it believed to be a “mutual mistake by the parties.” A clarification does not modify; it illuminates. And the circuit court, here, was engaged in more than simply illuminating the fraction at issue; it significantly altered that fraction so that it conformed with what the circuit court believed to be the parties’ expectations. * * Jjs No distinction was made between redeemed and unredeemed months in computing the marital portion of [the husband’s] pension benefits in 1993, when the QDRO was first issued, or in 2001, when it was re-issued as a separate ¹¹⁴ order, after [the husband] repurchased his four years of service. Nor can we do so now without revising the parties’ QDRO. To now qualify a term, which was left unqualified both in 1998 and in 2001, plainly constitutes a “revision.” Id. at 680 , 810 A.2d 526 .

Considering whether the circuit court retained jurisdiction to revise the QDRO, the Leadroot Court noted that, under Maryland Rule 2-535, after thirty days elapse from the entry of a judgment, the circuit court lacks authority to revise the judgment absent fraud, mistake, or irregularity. Id. at 682 , 810 A.2d 526 . Finding no fraud, procedural irregularity, or mistake (jurisdictional error), the Leadroot Court held that the circuit court lacked jurisdiction to revise the QDRO eight years after it had originally been entered. Id. at 682-84 , 810 A.2d 526 .

We find Leadroot distinguishable from the instant case. Here, the court expressly retained jurisdiction “over the matter of the pension for purposes of securing a Qualified Domestic Relations Order to protect [Wife’s] monetary award[.]” Although the Plan administrator accepted the original QDRO as it was drafted by the parties and entered by the court, the Plan administrator later noted several problems with the original QDRO, including the fact that, as drafted, the method and manner in which benefits were to be distributed were unclear. When they were informed of the errors, the parties agreed to submit an amended order to the circuit court, but, before they could do so, Wife died. In the interpleader proceeding, the District Court, without expressly deciding whether it had been properly qualified, 6 ¹¹⁵ held that the original QDRO, as drafted, “unequivocally” intended benefits to be paid to Wife on a “when, if, and as paid to [Husband]” basis and that Wife’s benefits terminated upon her death.

The District Court’s interpretation of the original QDRO is subject to the doctrine of res judicata. As explained in Warner v. German, 100 Md.App. 512 , 642 A.2d 239 (1994): “[A] judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety would have been litigated in the first suit.” Id. at 517-18 , 642 A.2d 239 (quoting Rowland v. Harrison, 320 Md. 223, 229 , 577 A.2d 51 (1990)). See also Anne Arundel County Bd. of Educ. v. Norville, 390 Md. 93 , 887 A.2d 1029 (2005) (holding that a claim of age discrimination filed in state court was barred by the principles of res judicata, where the claim had previously been adjudicated on the merits in federal court). Moreover, the parties are collaterally estopped from arguing that the original QDRO provides for a type or manner of payment other than that interpreted by the District Court.

See Colandrea v. Wilde Lake Commn. Ass’n, Inc., 361 Md. 371, 391-92 , 761 A.2d 899 (2000) (explaining that collateral estoppel is concerned with the factual implications of earlier judgments and applies when there has been a final judgment deciding an issue between the same parties, each of whom had a fair opportunity to be heard on the issue). A decision by the District Court that the original QDRO had been properly qualified would also be subject to res judicata. If such a determination had been made, and had the circuit court merely retained jurisdiction until the Plan administrator qualified the original QDRO, the circuit court’s jurisdiction to amend the original QDRO would be subject to the limitations of Maryland Rule 2-535.

In that instance, under Leadroot , the circuit court could not revise the original QDRO absent fraud, mistake, irregularity, or clerical error. ¹¹⁶ In incorporating the Consent Order with the order of divorce, however, the circuit court expressly reserved jurisdiction “to protect [Wife’s] monetary award[,]” as agreed to, and expressed in, the Consent Order. It is well settled that the parties to a divorce proceeding may, and are encouraged to, enter into settlement agreements to “avoid the vagaries attendant” to a court’s grant of a monetary award pursuant to F.L. § 8-205. Fultz v. Shaffer, 111 Md.App. 278, 297 , 681 A.2d 568 (1996) (citing Schneider v. Schneider, 335 Md. 500, 516 , 644 A.2d 510 (1994)). Under F.L. § 8-105, the court may enforce such settlement agreements as independent contracts, subject to the objective law of contract interpretation.

Dennis v. Fire & Police Employee’s Retirement System, 390 Md. 639 , 890 A.2d 737 (2006). In construing a contract, we look first to the particular language of the contract, and “we give effect to its plain meaning and do not delve into what the parties may have subjectively intended.” Rourke v. Amchem Prods., Inc., 384 Md. 329, 354 , 863 A.2d 926 (2004) (citing Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 250-51 , 768 A.2d 620 (2001)). “[T]he parties to a written contract will not be allowed to place their own interpretation on what it means or was intended to mean; the test is what a reasonable person in the position of the parties would have thought that it meant.” Fultz, 111 Md.App. at 299 , 681 A.2d 568 . The Consent Order reflects the settlement agreement between the parties and their intent that a QDRO express that agreement. The Consent Order states that “[Wife’s] attorney shall draft the Qualified Domestic Relations Orders necessary to distribute the pension plan benefits as herein indicated.” (Emphasis added.) The Consent Order further provides that Wife’s interest in Husband’s plan “shall [be] distributed] directly to [Wife], by way of a roll-over to her designated plan.” The language, “by way of a roll-over,” is consistent with a separate interest or separate payment approach where, as here, the participant’s interest in the plan is valued as of a specified date and divided.

See Perdue, Pension and Welfare, 62 ALI-ABA at 748 (discussing separate interest QDROs). ¹¹⁷ In contrast to the Consent Order, the original DRO provided that Wife’s interest was to be transferred “by way of a rollover to her designated plan,” that Wife was to receive her interest “when, if, and as paid to [Husband],” and that payments to Wife would continue until her death. The provision in the original QDRO providing for benefits to be paid to Wife “when, if, and as paid to [Husband],” is consistent with a shared interest or shared payment approach, whereby “payments start when the [participant chooses, are paid in the form that he chooses, and will terminate completely on his death unless a [qualified joint survivor annuity] has been selected.” Carrad, The Complete QDRO Handbook at 70. In fact, the shared interest or shared payment approach “is sometimes known as the ‘if, as, and when received’ approach.” Id. Nothing in the Consent Order expressly or impliedly suggests that Wife’s interest would terminate at her death or that Wife’s interest was to be distributed “when, if, and as paid to [Husband].” To the extent that the original QDRO conflicts with the Consent Order, we are persuaded that the language of the Consent Order controls.

Although this Court and the circuit court must afford res judicata effect to the District Court’s interpretation of the original QDRO, the circuit court retained jurisdiction in its judgment of divorce to amend the QDRO, such that it reflected “the parties’ intent, said modification to be entered nunc pro tunc, if appropriate.” The circuit court’s amendments to the original QDRO were, in effect, a clarification of the original QDRO to reflect the intent of the parties as evidenced in the Consent Order, i.e., to provide Wife a “separate interest” distribution in fifty-percent of Husband’s pension plan earned during the parties’ marriage, not to exceed $25,000, with payment to take place “directly by way of a rollover to her designated plan.” That intent