Kinlaw v. Harris

ERVIN, Judge,

concurring in part and dissenting in part.

Although I concur in the remainder of the Court’s decision, including its determination that N.C. Gen. Stat. § lC-1601(a)(9) renders funds contained in Defendant’s individual retirement accounts exempt from execution despite the fact that Defendant had withdrawn monies from those accounts on two prior occasions, I respectfully dissent from the Court’s decision to vacate that portion of the trial court’s order that.requires Defendant to notify Plaintiff of any withdrawal from his individual retirement accounts and allows Plaintiff five business days “to file a motion or otherwise petition the Court to determine if the withdrawn funds are no longer exempt from execution.” As a result, I concur in the Court’s opinion in part and dissent in part.

Both parties and the Court agree that the extent to which Defendant’s individual retirement accounts can be utilized to satisfy the judgment that Plaintiff obtained against Defendant hinges upon the proper interpretation of N.C. Gen. Stat. § lC-1601(a)(9). As applied to judgments entered before 1 January 2006, N.C. Gen. Stat. lC-1601(a)(9) provided that:

*261(a) Exempt property. Each individual, resident of this State, who is a debtor is entitled to retain free of the enforcement of the claims of creditors:
(9) Individual retirement plans as defined in the Internal Revenue Code and any plan treated in the same manner as an individual retirement plan under the Internal Revenue Code. For purposes of this subdivision, “Internal Revenue Code” means Code as defined in G.S. 105-228.90.

“The courts have held that the exemption laws in North Carolina must be liberally construed in favor of the debtor.” In re Laughinghouse, 44 B.R. 789, 791 (Bankr. E.D.N.C. 1984) (citing In re Love, 42 B.R. 317 (Bankr. E.D.N.C. 1984)); see also Elmwood v. Elmwood, 295 N.C. 168, 185, 244 S.E.2d 668, 678 (1978) (stating that exemptions “should always receive a liberal construction, so as to embrace all persons fairly coming within their scope”) (quoting Goodwin v. Claytor, 137 N.C. 224, 236, 49 S.E. 173, 177 (1904)). In seeking to subject the funds contained in Defendant’s individual retirement accounts to execution, Plaintiff argues that Defendant structured his court-approved equitable distribution settlement with his former spouse so as to transfer any of their marital assets that might have been subject to execution to his former wife; that the only significant assets that Defendant retained were the individual retirement accounts at issue here; and that, as evidenced by two withdrawals made in 2004 and 2005, Defendant used these individual retirement accounts as private savings vehicles rather than to provide for his retirement. Aside from the fact that two withdrawals over a four year period does not, at least in my opinion, establish the validity of Plaintiff’s factual argument, Plaintiff has cited no authority demonstrating that N.C. Gen. Stat. § lC-1601(a)(9) is subject to an exception of thé nature for which he contends, and I have not discovered any in the course of my own work. Generally speaking, “where the legislature has made no exception to the positive terms of the statute, the presumption is that it intended to make none, and it is a general rule of construction that the courts have no authority to create, and will not create, exceptions to the provisions of a statute not made by the act itself.” Sara Lee Corp. v. Carter, 351 N.C. 27, 36, 519 S.E.2d 308, 313 (1999) (quoting Upchurch v. Hudson Funeral Home, Inc., 263 N.C. 560, 565, 140 S.E.2d 17, 21 *262(1965)).2 As a result, given the plain language of N.C. Gen. Stat. § lC-1601(a)(9), given the fact that the accounts at issue are clearly individual retirement accounts as defined in N.C. Gen. Stat. § lC-1601(a)(9), and given the absence of any justification for reading the relevant statutory language to mean something other than whatit says, I agree with the majority’s affirmation of the trial court’s decision to “vacate[] and declare[] to be null and void” “[t]he Writ of Execution in this matter dated” 28 November 2005 and to “vacate[] and declare[] to be null and void” “[t]he ‘Notice of Levy’ dated” 9 December 2005.

I cannot, however, agree with the remainder of the Court’s decision, which vacates that portion of the trial court’s order providing:

4. Should defendant make any withdrawal of any funds from the Subject IRAs, the entire amount of said withdrawal shall immediately be placed in the trust account of his counsel, or placed with a suitable escrow agent who shall be provided with a copy of this order, and shall administer the funds in accordance with the terms herein. Defendant or his counsel shall immediately thereafter give plaintiff’s counsel notice of the withdrawal by the most expedient, verifiable means. Plaintiff shall then have five (5) business days from the date of such notification to file a motion or otherwise petition the Court to determine if the withdrawn funds are no longer exempt from execution. Should the plaintiff fail to make such a motion or petition within such time, the withdrawn funds shall be paid over to defendant, free from execution and levy by plaintiff. If plaintiff timely makes such a motion or petition, the withdrawn funds shall remain in trust or escrow pending a determination of their exempt status, or until the parties mutually agree to release of such funds. The parties shall endeavor and cooperate so as to have the Court determine the status of *263the withdrawn funds as expeditiously as possible after any motion or petition seeking such a determination is filed.

In challenging the notification provision, Defendant concedes that the specific issue that he raises on appeal has not been directly addressed by the Supreme Court or by this Court. For that reason, he relies primarily on certain fundamental principles that he believes to be pertinent. First, Defendant emphasizes that exemptions from execution “should always receive a liberal construction,” Elmwood, 295 N.C. at 185, 244 S.E.2d at 678, and that “provisions which restrict a debtor’s access to his exemptions should be construed narrowly,” so that debtors have “a great deal of flexibility in claiming and maintaining their exemptions.” Household Fin. Corp. v. Ellis, 107 N.C. App. 262, 266, 419 S.E.2d 592, 595 (1992), aff'd, 333 N.C. 785, 429 S.E.2d 716 (1993). Secondly, Defendant points to the basic principle of statutory construction that, “where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.” Union v. Branch Banking & Trust Co., 176 N.C. App. 711, 717, 627 S.E.2d 276, 279 (2006) (quoting Mazda Motors of Am., Inc. v. SW. Motors, Inc., 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)). In reliance upon these premises, Defendant argues that “an interpretation of N.C. [Gen. Stat. §] lC-1601(a)(9) which exempts funds while physically in an IRA account, but immediately strips the funds of their exempt status once withdrawn by the debtor for whose benefit[] the exemption was enacted, is in fact absurd, as it renders the exemption meaningless and useless[.]” According to Defendant, “[a] more reasonable interpretation that avoids such an absurd result, gives effect to the legislative purpose of the exemption, and is more consistent with the principle of liberal construction for the protection of the debtor, is that it is the funds themselves that are exempt..., a status that doesn’t change merely due to the funds being ‘poured’ from the IRA.” As a result, Defendant’s challenge to the notification provision rests exclusively on the contention that all funds ever contained within an individual retirement account are exempt from execution by virtue of N.C. Gen. Stat. § lC-1601(a)(9) regardless of the purpose for which those funds are eventually used.3

*264The essential issue before the Court is one of statutory construction. “The principal goal of statutory construction is to accomplish the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998)). “The best indicia of that intent are the language of the statute . . ., the spirit of the act and what the act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Commr’s, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980). As a result, in construing N.C. Gen. Stat. § lC-1601(a)(9), we should focus our efforts on attempting to ascertain the protections that the General Assembly intended to provide by exempting individual retirement accounts from execution.

In holding that the trial court erred by including the notification provision in its order, the Court essentially accepts Plaintiff’s reasoning. The Court begins its analysis by reasoning that, given the logic of Rousey v. Jacoway, 544 U.S. 320, 327-28, 161 L. Ed. 2d 563, 571-72 (2005), Defendant’s “IRAs are not analogous to checking accounts or other non-restricted accounts.” In addition, the Court concludes that, given the absence of any indication that “any other provisions of federal law may be consulted in determining whether Defendant’s IRAs, or the funds contained within, are exempt from Plaintiff’s judgment,” “North Carolina law governs the resolution of this issue.” I agree with both of these conclusions. After noting during a discussion of authority from other jurisdictions that, “even where a statute makes specific reference to payments made from IRAs, appellate courts have tended to refer to IRAs in general, and not specifically to withdrawal of funds ' from IRAs, even when the withdrawal of funds was in issue,” and that N.C. Gen. Stat. § lC-1601(a)(9) “does not contain any language evincing an intent on the part of the General Assembly to treat withdrawals from IRAs differently than funds held within IRAs,” the Court concludes that “[t]he most straightforward and logical reading of N.C. Gen. Stat. § lC-1601(a)(9) is that not only are the IRAs exempt, but Defendant’s legal use of the IRAs in the same manner as if there were no judgment against Defendant, is also exempt.” Based on this logic, the Court decides that the trial court erred by including the notification provision in its order. I do not find this logic sufficient to justify vacating the notification provision for a number of reasons.

First, the Court’s decision does not effectuate the policies that underlie the exemption created by N.C. Gen. Stat. § lC-1601(a)(9). 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[.]” In re Grubbs, 325 B.R. 151, 154-55 (Bankr. M.D.N.C. 2005) *265(emphasis added). This understanding of the legislative intent underlying N.C. Gen. Stat. § lC-1601(a)(9) is fully consistent with the fundamental purpose of individual retirement accounts themselves, which is “to provide retirement benefits to individuals.” In re Brucher, 243 F.3d 242, 243 (6th Cir. 2001). As a result, I believe that the General Assembly’s intent in enacting N.C. Gen. Stat. § lC-1601(a)(9) was to protect the ability of individual retirement account owners to provide themselves with retirement benefits. Since the Court concludes that all funds that have been paid out from Defendant’s individual retirement account are protected from execution by N.C. Gen. Stat. § lC-1601(a)(9) regardless of the extent to which those funds are used to “provide retirement benefits,” the construction of N.C. Gen. Stat. § lC-1601(a)(9) adopted by the Court is not consistent with the legislative intent that motivated the enactment of the relevant statutory provision, a fact that casts doubt on the validity of the construction adopted by the Court.

Secondly, the effect of the Court’s decision is to insulate any money that ever enters Defendant’s individual retirement accounts from the claims of his creditors, no matter what use Defendant may make of those funds. For example, assume for purposes of discussion that Defendant withdraws a substantial sum from one or both of his individual retirement accounts in order to purchase a luxury motor vehicle, a yacht, or a vacation home. Under the Court’s construction of N.C. Gen. Stat. § lC-1601(a)(9), the mere fact that the money utilized to purchase these assets passed through Defendant’s individual retirement accounts suffices to preclude Plaintiff from executing on these items of property even though they have little or nothing to do with ensuring that Defendant’s retirement needs are met. As has already been noted, “ ‘where a literal interpretation of the language of a statute will . . . contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.’ ” Frye Reg’l Med. Ctr., Inc. v. Hunt, 350 N.C. 39, 45, 510 S.E.2d 159,163 (1999) (quoting Mazda Motors, 296 N.C. at 361, 250 S.E.2d at 253 (internal quotation omitted)). An interpretation of N.C. Gen. Stat. § lC-1601(a)(9) that allows Defendant to use monies that were once contained in his individual retirement accounts in this manner without any risk that the resulting purchases will be subject to execution seems to me to run afoul of this fundamental canon of statutory construction. The fact that Defendant has not and may not make such an inappropriate use of the monies contained in his individual retirement accounts should not obscure the fact that, under the interpreta*266tion of N.C. Gen. Stat. § lC-1601(a)(9) adopted by the Court, he has the ability to do so with impunity. As a result, I believe that we should eschew the construction of N.C. Gen. Stat. § lC-1601(a)(9) adopted by the Court for this reason as well.4

Thirdly, I am unable to agree with the full extent of the Court’s reasoning, based upon decisions such as In re Krebs, 527 F.3d 82 (3rd Cir. 2008), and In re Brucher, 243 F.3d 242 (6th Cir. 2001), to the effect that providing protection for the corpus of an individual retirement account necessarily involves protecting disbursements from the account as well. Although I do not dispute that these decisions, and others upon which the Court also relies, hold that disbursements from individual retirement accounts, in addition to corpus of the account, are protected under various statutory exemption and exception provisions,5 I am not certain that acceptance of this proposition should end our inquiry. Like my colleagues, I agree that a certain measure of protection should be provided to disbursements made from individual retirement accounts. In addition, I join my colleagues in believing that the exemption from execution created by N.C. Gen. Stat. § lC-1601(a)(9) would mean little in the event that Defendant could not access the funds in his individual retirement account in order to provide retirement benefits to himself and for other appropriate purposes.6 However, the Court appears to believe that the *267General Assembly intended to protect any and all disbursements from individual retirement accounts from execution, regardless of the purpose for which those disbursements are made, by enacting N.C. Gen. Stat. § lC-1601(a)(9), while I do not believe that the General Assembly intended to provide such payments with this sort of ironclad protection. The Court’s conclusion to this effect appears to rest upon the unstated premise that either all disbursements from an individual retirement account are exempt from execution under N.C. Gen. Stat. § lC-1601(a)(9) or that none of them are, which leads to the unstated conclusion that since some such disbursements should be exempt, all of them must be. I am unwilling to go that far, because I believe, for the reasons stated in more detail above, that such a construction of N.C. Gen. Stat. § lC-1601(a)(9) is inconsistent' with the fundamental purpose “of providing] retirement benefits for individuals” and leads to results that are unlikely to be reflective of the General Assembly’s intent. Instead, I believe that the applicable canons of construction support a more nuanced interpretation of N.C. Gen. Stat. § lC-1601(a)(9), under which some disbursements from an individual retirement account remain subject to the protections of N.C. Gen. Stat. § lC-1601(a)(9) and some do not.7 Since the *268construction of N.C. Gen. Stat. § lC-1601(a)(9) adopted by the Court does not incorporate such a nuanced approach and since I do not believe that the decisions upon which the Court relies are inconsistent with the construction of N.C. Gen. Stat. § lC-1601(a)(9) that I believe to be appropriate or compel the result reached by the Court, I am not persuaded that these decisions from other jurisdictions adequately support the result reached by the Court.8

Finally, I do not believe that an interpretation of N.C. Gen. Stat. § lC-1601(a)(9) that exempts some, but not all, disbursements from an individual retirement account from execution runs afoul of the general principle that statutory exemptions should be “liberally construed.” After all, the literal language of' N.C. Gen. Stat. § lC-1601(a)(9) only mentions the corpus of an individual retirement account, so that extending the protection of the statutory exemption to disbursements involves a liberal construction of the exemption in and of itself. Furthermore, the rule favoring “liberal constructions” does not, it seems to me, override the other factors that must be considered in construing statutory provisions, such as attempting to effectuate the legislative intent and avoid results that manifestly run counter to the likely intent of the General Assembly. Any construction of N.C. Gen. Stat. § lC-1601(a)(9) more “liberal” than the one set forth in this dissent strikes me as inconsistent with the intent of the General Assembly. As a result, I believe that the approach I have described is fully consistent with the general rule favoring the “liberal construction” of statutory exemptions.

At bottom, it seems to me that the approach adopted by the trial court reflects a proper understanding of the scope of the exemption set out in N.C. Gen. Stat. § lC-1601(a)(9). In essence, the trial court concluded that some disbursements from Defendant’s individual retirement accounts should be protected from execution and that others should not. To the extent that Defendant seeks to use monies from his individual retirement accounts for support during retirement, other purposes for which penalty-free withdrawals can be made under the provisions of federal law governing individual retire*269ment accounts, or purposes which would be exempt from execution under other provisions of state or federal law, those monies should remain protected from execution, and the interpretation of N.C. Gen. Stat. § lC-1601(a)(9) that I believe to be appropriate would do just that. 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 claims of creditors. Since the only way to ascertain which disbursements are entitled to protection under N.C. Gen. Stat. § lC-1601(a)(9) and which are not is to examine each disbursement on a case-by-case basis, the trial court set up a mechanism under which such an analysis could be conducted in an expedited manner. Given that Defendant has challenged the notification provision exclusively on the grounds that no monies that had ever passed through his individual retirement accounts could be subject to the claims of his creditors, I do not believe that we need to evaluate the extent to which the trial court had the authority to require the use of the particular approach mandated by its order. Thus, given that the trial court’s order rests upon a proper understanding of the scope of the exemption set out in N.C. Gen. Stat. § lC-1601(a)(9) and given that Defendant has not challenged the actual mechanism developed by the trial court for the purpose of evaluating withdrawals by Defendant from his individual retirement accounts, I do not see any basis for concluding that the notification provision suffers from any legal defect based upon the arguments advanced in Defendant’s brief.

As a result, for the reasons stated above, I believe that the trial court correctly granted Defendant’s motion to vacate the writ of execution that Plaintiff had procured. In addition, I do not believe that the only argument that Defendant has advanced in opposition to the notification provision in the trial court’s order has any merit. Thus, I would affirm the trial court’s order in its entirety. For that reason, I concur in that portion of the Court’s opinion that affirms the trial court’s decision to vacate the writ of execution and declares the notice of levy to be null and void, and dissent from that portion of the Court’s opinion that vacates the notification provision in the trial court’s order.

. The Court contends that my reference to the principle of statutory construction enunciated in Sara Lee “is inappropriate on the facts before us, as the ultimate result of its use could lead to results we believe were not intended by the General Assembly.” A careful reading of this dissent indicates, however, that I have cited Sara Lee in support of my conclusion that the trial court correctly rejected Plaintiff’s contention that N.C. Gen. Stat. § lC-1601(a)(9) should be construed to allow the corpus of individual retirement accounts to be subject to execution in the event that the account owner makes early withdrawals and not in support of my conclusion that the notification provision of the trial court’s order should be upheld on appeal. I do not believe that the Court disagrees with the position in connection with which I have cited Sara Lee.

. In view of his failure to challenge the notification provision using any legal theory other than the one discussed in the text, Defendant has foregone the opportunity to contest the validity of the notification provision on any other basis. See Citifinancial Mortgage Co. v. Gray, 187 N.C. App. 82, 93, 652 S.E.2d 321, 327 (2007) (stating that, “[a]s defendant has not cited any authority in support of this argument, it is deemed abandoned and we do not address it”).

. After acknowledging my “concern that the protections afforded by N.C. Gen. Stat. § lC-1601(a)(9) could allow an [individual retirement account] holder to withdraw IRA monies for purposes unrelated to retirement or other penalty-free exceptions,” the Court notes that “it is the province of the General Assembly and not this Court, to craft legislation.” I fully agree that the ultimate policy decisions concerning the extent to which disbursements from individual retirement accounts should be subject to the claims of creditors is a matter which is subject to control by the General Assembly; however, for the reasons stated in the text, I do not believe that the General Assembly intended to permanently immunize all funds that ever pass through individual retirement accounts from the claims of creditors regardless of the use that the account holder makes of those funds. For that reason, I believe that the interpretation of N.C. Gen. Stat. § lC-1601(a)(9) that I have advanced is more consistent with the intent of the General Assembly than that adopted by the Court, which simply assumes, instead of demonstrating, that the General Assembly intended to countenance the results that I have described in the text.

. As an aside, I note that certain of the statutory provisions at issue in the cases upon which the Court relies, such as 11 U.S.C. § 522(d)(10)(E), provide explicit protection to payments made from individual retirement accounts.

. To be clear, by "other appropriate purposes,” I mean purposes which are exempt from the claims of creditors under North Carolina law, are exempt from withdrawal penalties pursuant to the provisions of federal law governing individual retirement accounts, are used to provide support during retirement, or are otherwise protected under federal law.

. The Court appears to think that, under the interpretation of N.C. Gen. Stat. § lC-1601(a)(9) that I believe to be appropriate, “no funds are fully protected from execution once they are withdrawn from an” individual retirement account, including “funds withdrawn after the age of 59 Vz, penalty-free and for the purposes of support in retirement, because the language of N.C. Gen. Stat. § lC-1601(a)(9) contains no exception for funds withdrawn after the IRA account holder reaches the age of 59 Vz.” The Court misapprehends my position in two respects. First, as I explained in more detail in Footnote No. 1,1 have not cited Sara Lee, 351 N.C. 27, 519 S.E.2d 308, in discussing the lawfulness of the notification provision and have not taken the position that the lack of reference to disbursements in the literal language of N.C. Gen. Stat. § lC-1601(a)(9) means that the relevant statutory language provides no protection for payments from individual retirement accounts. Secondly, contrary to the Court’s assertion, I have not taken the position that no disbursement from an individual retirement account is entitled to absolute protection from the claims of creditors. Instead, as is discussed in some detail in the text, I believe that certain disbursements from an individual retirement account, such as funds withdrawn after the age of 59 Vz for purposes of support during retirement, are protected from the claims of the account holders’ creditors by N.C. Gen. Stat. § lC-1601(a)(9). To be absolutely clear, where I differ from the Court is that I do not believe that all disbursements from an individual retirement account, regardless of the purpose for which the resulting payments are used, are permanently immunized from the claims of the account holder’s creditors by N.C. Gen. Stat. § lC-1601(a)(9). I believe that this construction of N.C. Gen. Stat. § lC-1601(a)(9), and not that espoused by the Court, is consistent with the General Assembly’s intent, since it is focused upon the reasons that led the General Assembly to exempt individual retirement accounts from execution and since I do not, for the reasons stated above, believe that the General Assembly intended to permit individual retirement account owners to purchase luxury vehicles, yachts, or vacation homes using monies derived from their individual retirement accounts while the valid claims of creditors remain unsatisfied.

. Although the Court cites Brucher, 243 F.3d 242, as rejecting the proposition that “the defendant’s IRA could be exempt from creditors ‘if and only if payment thereunder is made solely ... on account of illness, disability, death, age or length of service,” I do not believe that it conflicts with the result that I believe to be appropriate here since (1) the Sixth Circuit’s actual holding was that the corpus of the debtor’s individual retirement account was not subject to inclusion in his bankruptcy estate, and since (2) nothing in the Sixth Circuit’s opinion suggests that any property that the debtor purchased using money derived from his individual retirement account was permanently protected from the claims of his creditors (internal quotations omitted).