UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

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* 

Pamela Taber-McCarthy * 

* 

 Petitioner * 

* 

 v. * Docket: 08-cv-00096 

* 

Ricky C. McCarthy * 

* 

 Respondent * 

* 

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RESPONDENT’S AMENDED PETITION FOR REMOVAL 

NOW COMES the respondent, Ricky McCarthy, (hereinafter, “respondent”) by 

and through counsel, Walker & Buchholz, P.A., and respectfully submits the following 

Amended Petition For Removal and in support thereof states as follows: 

1. On or about January 20, 2006, a Petition For Divorce was filed by the named 

petitioner in this matter, Pamela Taber-McCarthy (hereinafter “petitioner”). 

2. The petitioner and respondent, through the use of their respective counsel, 

reached a lump sum settlement agreement with regard to the distribution of certain 

pension funds. The terms of the agreement were approved by the Hillsborough County 

Superior Court, Northern District (hereinafter “State Court”), which issued its order on or 

about April 30, 2007. 

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3. Pursuant to the terms of the parties’ agreement, the petitioner’s counsel (The 

Law Offices of Kathleen Sternenberg) was to draft the Qualified Domestic Relations 

Order (hereinafter “QDRO”) and take the necessary steps to perfect the transfer. 

4. Despite the parties’ express agreement, that the payment to be made to the 

petitioner was to be a “lump sum”, the petitioner now seeks the calculation of gains on 

the respondent’s retirement account in addition to the agreed to lump sum payment. 

5. The petitioner, by way of counsel, filed pleadings with the State Court 

seeking a further order with regard to the wording of the QDRO, originally drafted by her 

counsel, to include unbagained for gains on respondent’s retirement account to be 

included in calculation of the payment to be made to her. Respondent objected to this 

request as it was not the agreement of the parties. Further, the issue raises the correct 

application of the provision of 29 USC§ 1056 et. seq. The petitioner claims that she is 

entitled to gains on the portion of respondent’s retirement account, as a matter of law, 

regardless of the agreement of the parties or the terms of the plan. 

6. Under 29 USC § 1056 et. seq a plan administrator has 18 months in which to 

determine whether or not a proposed QDRO is in conformance with the statutory 

requirements and the terms of the plan. 

7. The 18 month period begins to run “with the date on which the first payment 

would be required to be made under the domestic relations order” 29 USC §1056 

(d)(3)(H)(v). 

8. During such period of time the plan administrator is required to keep the 

funds to be paid to the alternative payee as “segregated amounts” while it is being 

determined if the proposed QDRO meets the statutory and plan requirements. 

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9. The statute also expressly states that “[i]f within the 18-month period 

described in clause (v) the proposed order (or modification thereof) is determined to be a 

qualified domestic relations order, the plan administration shall pay the segregated 

amounts (including any interest thereon) to the person entitled thereto.” 29 USC § 1056 

(d)(3)(H)(v). The statute does not call for the payment of any profit or loss on the 

segregated amounts. The statute only requires the payment of interest, if any, earned on 

the segregated amounts. 

10. The issue to be litigated directly raised a federal question as to the correction 

interpretation of 29 USC § 1056 et. seq and respondent deserves to have this matter 

litigated in the federal court. 

11. The Federal District Court for the District of New Hampshire is the proper 

venue for this matter as the parties reside and/or do business in New Hampshire. 

12. In addition to the parties named herein, it is respondent’s position that the 

plan administrator should be given notice of and an opportunity to be heard on the issue, 

as the issue directly affects the rights and obligation of a plan administrator under the 

federal statute governing distribution of pension funds via Qualified Domestic Relations 

Order. Despite requests to do so, the State Court has failed to require notification to the 

plan administrator and has rescheduled a hearing on the federal question issue. 

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Respectfully submitted by, 

Ricky McCarthy 

By his attorneys, 

WALKER & BUCHHOLZ, P.A. 

Dated: March 14, 2008 By /s/ Kevin E. Buchholz, Esquire 

Kevin E. Buchholz, Esquire 

NH Bar# 6535 

50 Bridge Street, Suite 205 

Manchester, NH 03101-1699 

603-634-5090 

kbuchholz@walkerbuchholz.com

CERTIFICATE OF SERVICE

 I hereby certify that a copy of the foregoing Amended Petition For Removal was 

this day forwarded to Kathleen Sternenberg, Esquire, Law Offices of Kathleen 

Sternenberg, 27 Webster Street, Manchester, NH 03104 

Dated: March 14, 2008 /s/ Kevin E. Buchholz, Esquire 

Kevin E. Buchholz, Esquire 

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