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Ditto v. McCurdy12/3/2003
ees, McCurdy and PCT argued in relevant part that, where a court reverses a garnishment order, the garnished funds are to be returned to the garnishee as though the garnishment had not taken placed in the first instance. In light of this court's decision in Ditto II, McCurdy asserted that the $65,910.00 in garnished funds should be returned to PCT, as trustee of the subject pension plans.
Ditto countered that setoff against the judgments in the case rather than a return of the $65,910.00 in garnished funds was required. McCurdy and PCT, however, argued that setoff was not proper insofar as it would constitute "an improper withdrawal of qualified plan assets that is inconsistent with the terms of the plan documents and in violation of several other ERISA and Internal Revenue Code requirements, which result in plan disqualification and loss of tax benefits."
McCurdy and PCT's motion for return of garnished funds came on for hearing before the circuit court on February 2, 2000. We note the record reflects that the parties chose not to include any transcripts from the February 2, 2000 hearing in the record on appeal. Therefore, the substance of the arguments made at the hearing and any rulings of the circuit court are not known to us. As previously stated, the circuit court's March 24, 2000 order directs Ditto and her attorneys to return the $65,910.00 in garnished funds to PCT.
In her HRCP Rule 60(b) motion, Ditto requested relief from judgment based on newly discovered evidence. Ditto argued that, despite McCurdy and PCT's earlier position that setoff would constitute an improper withdrawal of pension funds in violation of ERISA and the Internal Revenue Code, newly discovered evidence had come to her attention that "McCurdy intended to commit just such an ERISA violation by using pensions funds to bid on real property of his that was being foreclosed." Specifically, Ditto had received a letter, dated July 13, 2000, from one of McCurdy's attorneys, Robert Smith, indicating that McCurdy might submit a bid through his pension plan at a foreclosure sale on certain of his real property [hereinafter, the July 13, 2000 letter].
Ditto argued that McCurdy's "admitted willingness to alienate pension funds is inconsistent with his stated position in opposing setoff." As a result, the September 28, 2000 judgment "should be vacated and setoff ordered," or, " t a minimum, further proceedings should be had on this issue. Specifically, discovery should be done on whether a setoff would be proper and whether Dr. McCurdy violated ERISA himself by alienating pension funds in connection with the foreclosure action."
Ditto also argued that, although McCurdy took the position in the July 13, 2000 letter that "ERISA would be violated and the same loss of tax-exempt status would occur if the source of repayment was anyone other than Ditto or her attorneys[,] . . . ew evidence has shown this to be false as well." Ditto pointed to the fact that surplus in the foreclosure action was paid out to McCurdy based on the March 24, 2000 order. McCurdy had "therefore accepted repayment form a source other than Ditto or her attorneys."
McCurdy argued that the July 13, 2000 letter was inadmissible and that, regardless, the evidence relied upon by Ditto did not qualify as newly discovered evidence. Following a hearing on the matter on November 14, 2000, Ditto's motion to set aside and/or alter the September 28, 2000 judgment was denied.
Ditto asserts on appeal that " ny and all of six sub-sections of [HRCP] Rule 60(b) justified relief from the final judgment in this case." Ditto, however, completely fails to argue or explain how any of the provisions of HRCP Rul
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