Kinlaw v. Harris

702 S.E.2d 294, 364 N.C. 528, 2010 N.C. LEXIS 924
Supreme Court of North Carolina·Decided November 5, 2010·No. 20A10·Published·Cited by 13 cases

Opinions

NEWBY, Justice.

This case presents the question whether the trial court erred by declaring defendant’s individual retirement accounts (“IRAs”) exempt from execution and by ordering that any future withdrawals from defendant’s Fidelity IRAs comply with an escrow arrangement. We conclude that the trial court properly applied N.C.G.S. § lC-1601(a)(9) and acted within its broad equitable power. Therefore, we affirm the holding of the Court of Appeals that N.C.G.S. § lC-1601(a)(9) exempts defendant’s IRAs from plaintiff’s judgment against defendant. We reverse, however, the decision of the Court of Appeals vacating the trial court’s order requiring defendant to place in escrow any funds he may withdraw from his IRAs, as discussed below.

On 3 May 2004, the trial court entered a judgment in this case awarding plaintiff $567,000.00 in compensatory and punitive damages. In response to a notice of rights to claim exempt property, on 9 June 2004, defendant moved to claim certain property as exempt from plaintiff’s judgment. By order entered 16 July 2004, the trial court declared defendant’s two Fidelity IRAs and other items exempt from the judgment. Later, plaintiff again attempted postjudgment collection, obtaining a writ of execution against certain property that included defendant’s two IRAs. On 21 November 2007, defendant moved to vacate, the writ of execution and confirm that his IRAs are exempt from execution.

At a hearing on 25 June 2008, the parties presented evidence that defendant’s two Fidelity IRAs are held solely in his name as part of an equitable distribution agreement with his former spouse. Pursuant to this arrangement, defendant’s former wife retained most of the nonexempt property, while defendant kept the couple’s exempt property and a Beachcraft Bonanza airplane (which was subse[530]*530quently sold and the proceeds applied toward payment of a Medicare fraud claim).

In addition to plaintiffs judgment against him, defendant owes the federal government approximately $320,000.00 for Medicare fraud. Defendant testified that in 2004 he withdrew $50,000.00 from one IRA and paid the entire amount to the federal government in partial settlement of the Medicare fraud claim. Defendant also testified that in 2005 he withdrew $55,555.55 from his other IRA, applied $5,555.55 to tax penalties, and paid the balance for “hospital costs and costs to the government.” Throughout the hearing, defendant could not estimate the allocation of this withdrawal between the Medicare settlement and the personal hospital expenses. In his 19 May 2008 affidavit, defendant stated that the 2004 and 2005 withdrawals were used “to pay off extraordinary business and personal medical expenses” but that he has no further intentions of taking any other distributions from either of his IRAs “until [he] reachfes] the age when [he] can do so without incurral of penalty.”

Plaintiff maintains that defendant knowingly attempted to make himself judgment proof through his equitable distribution arrangement. Plaintiff further argues that by making the two withdrawals, defendant changed the nature of the IRAs such that they are no longer exempt accounts. Defendant contends that despite these actions, the IRAs retain their exempt status.

While the parties disagree about the protected status of the IRAs, both agreed to a mechanism to allow prior review of any future withdrawals from defendant’s IRAs. At the 25 June 2008 hearing, defendant’s attorney stated that defendant would be willing to give plaintiff notice of any intended withdrawals from the IRAs on the condition that the trial court declare the IRAs exempt and rule that any purported levy by the sheriff is invalid. After discussion with plaintiff’s attorney, defendant’s attorney summarized the agreed-upon escrow requirement for the trial court:

If [defendant] makes a withdrawal . . . from his IRA, the money immediately has to go into my trust account and it has to stay there. We must give [plaintiff’s attorney] notice as soon as possible of the withdrawal. He will then have five business days to decide whether to contest the withdrawal or seek some declaration as to the status of that withdrawn money. And then we would both agree to have that matter resolved by the Court as expeditiously as possible.

[531]*531At the conclusion of the hearing, the trial court orally declared the IRAs exempt, vacated plaintiff’s writ of execution and accompanying levy, and endorsed the implementation of the escrow arrangement proposed by the parties. On 21 July 2008, the trial court entered a written order consistent with its oral declaration.

Both plaintiff arid defendant appealed from the trial court’s order. The Court of Appeals unanimously affirmed the portion of the trial court’s order vacating plaintiff’s writ of execution and held that under N.C.G.S. § lC-1601(a)(9), defendant’s IRAs are exempt from plaintiff’s judgment. Kinlaw v. Harris, — N.C. App. —, —, 689 S.E.2d 428, 433 (2009). Additionally, the majority vacated the portion of the trial court’s order requiring defendant to place any funds withdrawn from the IRAs in an escrow or other trust account for a determination of the funds’ exempt status. Id. at-, 689 S.E.2d at 433.

The dissenting judge disagreed with the majority’s conclusion that withdrawals frorn IRAs are automatically exempt. Id. at-, 689 S.E.2d at 435-39 (Ervin, J., concurring in part and dissenting in part). Although he agreed with the majority’s observation that “IRAs are not analogous to checking accounts or other non-restricted accounts” from which an individual may draw freely, id. at-, 689 S.E.2d at 431 (majority) (citing, inter alia, Rousey v. Jacoway, 544 U.S. 320, 327-28, 125 S. Ct. 1561, 1566-67, 161 L. Ed. 2d 563, 571-72 (2005)), the dissenting judge opined that the majority’s holding would place no limits on expenditures from IRA accounts, id. at-, 689 S.E.2d at 436 (Ervin, J.). Thus, according to the dissent, a debtor would be allowed to insulate funds within an exempt IRA and then use any withdrawn monies as the debtor desires, without threat of exécution by creditors. Id. at-, 689 S.E.2d at 436 (stating that funds withdrawn from an IRA could even be used to freely purchase luxury items such as cars, yachts, or vacation homes).

Rather, the General Assembly’s “ ‘purpose in enacting N.C. Gen. Stat. § lC-1601(a)(9) was to protect a debtor's right to receive retirement benefits[.]’ Id. at-, 689 S.E.2d at 436 (quoting In re Grubbs, 325 B.R. 151, 154-55 (Bankr. M.D.N.C. 2005) (alteration in original) (emphasis added)). Accordingly, the dissent stated, “To the extent that Defendant seeks to use monies from his individual retirement accounts in ways which are not consistent with the purposes sought to be accomplished by N.C. Gen. Stat. § lC-1601(a)(9), such monies should not be protected from the claim of creditors.” Id. at-, 689 S.E.2d at 439. The dissenting judge concluded that as case-by-case analysis is the only way to determine which withdrawals are entitled [532]*532to the protection of N.C.G.S. § lC-1601(a)(9), the trial court did not err in ordering an escrow arrangement. Id. at-, 689 S.E.2d at 439.

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Kinlaw v. Harris, 702 S.E.2d 294, 364 N.C. 528, 2010 N.C. LEXIS 924 (N.C. 2010).

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Kinlaw v. Harris
702 S.E.2d 294 (Supreme Court of North Carolina, 2010)