Nkopchieu v. Minlend

COURT OF APPEALS OF VIRGINIA

Before: Judges Haley, Beales and Alston
Argued at Alexandria, Virginia

CHEYEP NKOPCHIEU
OPINION BY
v. Record No. 0500-11-4 JUDGE RANDOLPH A. BEALES
DECEMBER 20, 2011
RAYMOND BERNARD MINLEND

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Nolan B. Dawkins, Judge

Carolyn M. Grimes (Jessica L. Leischner; Lieblich & Grimes, P.C.,
on brief), for appellant.

No brief or argument for appellee.

In this domestic relations proceeding, the circuit court in its final order of divorce denied

a motion by Cheyep Nkopchieu (mother) to enter a qualified domestic relations order (QDRO)

permitting her to attach a retirement account belonging to Raymond Bernard Minlend (father) for

the sole purpose of paying father’s very considerable child support arrearage of over $28,000.

On appeal, we hold that the circuit court committed reversible error when it found that it was

constrained by this Court’s decision in Hoy v. Hoy, 29 Va. App. 115, 510 S.E.2d 253 (1999).

The record on appeal establishes that father has completely ignored and frustrated the

trial court’s child support orders – and that mother’s only means of obtaining the necessary child

support for the parties’ two children is through attaching father’s retirement account. We find

that neither Hoy nor any other provision of Virginia domestic relations law deprived the circuit

court of authority to enter a QDRO pursuant to the procedures of the federal Employee

Retirement Income Security Act (ERISA). Therefore, we reverse the portion of the circuit
court’s final order of divorce denying mother’s motion for entry of a QDRO and remand the

matter to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

Mother and father were married in Virginia on February 23, 2009, approximately eleven

months after the birth of their first child. They separated on or about December 15, 2009, while

mother was pregnant with their second child, who was born on April 13, 2010.

Father filed a complaint for a divorce on February 25, 2010, and mother filed a

cross-complaint for a divorce seeking pendente lite child support. In its April 16, 2010 pendente

lite order, the trial court ordered father to make monthly child support payments in the amount of

$2,000. Because the trial court determined that there was already a child support arrearage of

$9,000, it ordered father to pay an additional $500 per month to begin satisfying this child

support arrearage.

Father never made any of these child support payments ordered by the trial court. In fact,

at some point in the divorce proceedings, father actually left the United States – and there is no

indication from the record on appeal that he has ever returned to this country. 1 Therefore, during

the pendency of the divorce proceedings, the arrearage created by father’s failure to make any

child support payments continued to grow considerably.

Mother filed a written motion for the entry of a QDRO on January 13, 2011, 2 when

father’s child support arrearage had grown to almost $28,000. Mother asserted: (a) that father

had not appeared at any of the hearings in the trial court; (b) that father had left the country and

1
The trial court record includes an April 29, 2010 email from father to his trial counsel
indicating that father would remain in Cameroon indefinitely due to “nerve issues or
complications from malaria or something else.” This is the last indication from the record
concerning father’s whereabouts.
2
This was actually mother’s second written motion for the entry of a QDRO in this case.
Mother’s first motion for a QDRO, filed on July 21, 2010, was summarily denied by the trial
court.
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was “not likely to return”; (c) that mother had not had any contact with father either “directly or

through counsel”; (d) that father “was the sole income earner for the family prior to and during

the marriage,” leaving mother with essentially no assets; (e) that mother and the parties’ two

children had been forced to rely on charity and public assistance; and (f) that father’s retirement

account with his Virginia employer was “the only asset” of father’s that mother knew of that

could be used to pay the father’s unpaid child support obligation. Mother contended that ERISA

gives “state courts the authority to enter QDROs assigning retirement benefits to an alternate

payee for the purpose of garnishing a retirement account to enforce payment” of a child support

arrearage. See 29 U.S.C. § 1056(d)(3)(K) (defining an “alternate payee” under ERISA as “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 a plan with respect to such participant”); see also 29 U.S.C. § 1056(d)(3)(J) (“A person

who is an alternate payee under a qualified domestic relations order shall be considered for

purposes of any provision of this Act a beneficiary under the plan.”).

During the divorce trial on January 21, 2011, father’s counsel argued that the trial court

lacked authority to enter the QDRO that mother sought. Father’s counsel relied on Hoy, 29

Va. App. at 119, 510 S.E.2d at 255, where this Court held that a litigant’s claim as a judgment

creditor against her former spouse for unpaid spousal support could not be “recast” into an

appropriate circumstance for entering a QDRO. In response, mother’s counsel noted that Hoy

involved an attempt to re-open a divorce case that already had been final for over two decades –

in order to enter a QDRO attaching a retirement account that did not even exist at the time of the

Hoys’ divorce. Thus, mother’s counsel argued that this Court’s decision in Hoy did not affect

the trial court’s authority in this case “to assign a portion of the income” from father’s retirement

account “to an alternate payee” for the payment of unpaid child support.

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 Father’s counsel also argued at the hearing in the trial court that a QDRO could not be

entered because mother had expressly disavowed any property interest in husband’s retirement

account assets in the parties’ premarital agreement. 3 In response, mother’s counsel argued:

What we are asking the Court to do is to enter a qualified
domestic relations order pursuant to ERISA to allow
Ms. Nkopchieu to essentially garnish Mr. Minlend’s retirement
account, which is an asset, for the purpose of paying unpaid
support. The Court’s authority to do this stems specifically from
the federal law in ERISA, which allows for the Court to enter a
QDRO for two separate purposes.

The Court is permitted to enter the QDRO as it relates to
property division, which is what we would be doing in equitable
distribution, which we are not in dispute that that is not before the
Court today. We are not saying she has a property interest in his
retirement account, as it relates to a property division. What we
are saying is the other purpose of the QDRO, as it relates to ERISA
in saying that the Court may enter a QDRO for the purpose of
enforcing its child support or spousal support orders.

(Emphasis added). Mother’s counsel then reiterated that mother was not seeking to create a

personal “right or an interest” in father’s retirement account.

In its final order of divorce, the trial court awarded mother sole legal and physical

custody over the two children and increased father’s monthly child support obligation to $2,035.

The trial court found that father’s child support arrearage had grown to $28,106.66 and ordered

father “to pay this amount in full immediately.” However, the trial court denied mother’s motion

3
The premarital agreement provides, “In regard to retirement plans and accounts, the
parties covenant and agree that all accumulations in, and contributions to, retirement plans and
accounts whether before or during the marriage shall be the Separate Property of the party who
owns the account or is the plan beneficiary.” However, this portion of the premarital agreement
is irrelevant to the issue on appeal because this appeal simply does not concern the equitable
distribution provisions of Code § 20-107.3. This appeal concerns mother’s attempt to satisfy
father’s unpaid child support obligation, and the premarital agreement plainly states, “Nothing in
this agreement shall be construed as relieving either party of an obligation to support their minor
children.” Furthermore, as the Supreme Court explained in Kelley v. Kelley, 248 Va. 295, 298,
449 S.E.2d 55, 56 (1994), “[P]arents cannot contract away their children’s rights to support nor
can a court be precluded by agreement from exercising its power to decree child support.”
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for the entry of a QDRO to satisfy the child support arrearage – finding that it was “bound by the

Court of Appeals’ decision” in Hoy.

II. ANALYSIS

On appeal, mother emphasizes (as she emphasized in the trial court) that she does not

seek any personal interest in father’s retirement assets – and that the parties’ premarital

agreement bars any such a claim. However, the premarital agreement also states, “Nothing in

this agreement shall be construed as limiting the right of either party to make claims for child

support.” Mother contends that she is actually pursuing a claim of unpaid child support for her

infant children. Mother asserts that she seeks a QDRO only in her capacity as the parent with

sole legal and physical custody of the parties’ children, and, therefore, as the children’s guardian.

Given mother’s position here, the fact that the parties were married (and are now

divorced) is simply irrelevant. Mother could have made precisely the same request for the entry

of a QDRO even if the parties had never married. This is because mother seeks to vindicate the

children’s rights to child support – not any property rights mother herself might have that

resulted from the marriage with father.

In Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791

(1989), this Court noted, “An actual distinction rests in the right to child support.” This Court

explained:

[T]he duty of support of all children is owed to the child, not the
mother. The amount of the support is based primarily on the needs
of the child and the ability of the father to provide, not the needs of
the mother. Thus, the mother does not have the same legal right of
the child in seeking child support; rather, the right is solely that of
the child. The mother simply has the right to act as a conduit for
the payments of support to the child. 4

Id. (emphasis added).

4
These principles also apply, of course, in cases where a father acts as a conduit for the
payments of support to the child.
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 Acting solely “as a conduit for the payments of support” to the parties’ children, id.,

mother seeks the entry of a QDRO in this case. She argues that ERISA and Virginia’s laws

pertaining to domestic relations would permit the entry of a QDRO under the specific

circumstances of this case. Mother “presents an issue of law, which we review de novo.” Ahari

v. Morrison, 275 Va. 92, 95, 654 S.E.2d 891, 893 (2008).

A. ERISA’S REQUIREMENTS FOR THE ENTRY OF QDROS

Under ERISA, the funds of an employee benefit plan (such as father’s retirement account

with his Virginia employer) generally “may not be assigned or alienated.” 5 29 U.S.C.

§ 1056(d)(1). However, this general prohibition against the assignment or alienation of

employee retirement benefits does not apply when a state domestic relations order “is determined

to be a qualified domestic relations order.” 29 U.S.C. § 1056(d)(3); see Wilson v. Wilson, 18

Va. App. 193, 200, 442 S.E.2d 694, 698 (1994) (“Under federal law, qualified domestic relations

orders are an exception to ERISA’s proscription against alienation and assignment of pension

benefits.”). ERISA states that “[e]ach pension plan shall provide for the payment of benefits in

accordance with the applicable requirements of any qualified domestic relations order.” 29

U.S.C. § 1056(d)(3).

According to 29 U.S.C. § 1056(d)(3)(B)(i), a “qualified domestic relations order” is 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) which meets all of the technical

requirements of “subparagraphs (C) and (D)” of 29 U.S.C. § 1056(d)(3). (Emphasis added).

5
For the purposes of ERISA, the United States Supreme Court has noted that “to ‘assign’
is ‘[t]o transfer; as to assign property, or some interest therein,’ Black’s Law Dictionary 152 (4th
rev. ed. 1968), and to ‘alienate’ is ‘[t]o convey; to transfer the title to property, id. at 96.”
Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285, 292 (2009).

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ERISA further defines the term “domestic relations order” as “any judgment, decree, or order”

that:

(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

(II) is made pursuant to a State domestic relations law (including a
community property law).

29 U.S.C. § 1056(d)(3)(B)(ii) (emphasis added).

Under ERISA, the children of retirement plan participants can become plan beneficiaries

and alternate payees of the plan through the entry of a QDRO. See Boggs v. Boggs, 520 U.S.

833, 847 (1997). The United States Supreme Court explained in Boggs that one of the “central

purposes” of the 1984 amendments to ERISA that created the “QDRO mechanism” was to “give

enhanced protection” to plan beneficiaries such as “dependent children in the event of divorce or

separation . . . .” Id.

Therefore, under ERISA and the United States Supreme Court’s explanation of that Act’s

purpose, the minor children of the parties in this case certainly can be listed as beneficiaries and

alternate payees of the retirement account (through mother, as their guardian) in a QDRO. See

29 U.S.C. § 1056(d)(3)(B)(i)(I). Furthermore, mother’s request for a QDRO “relates to the

provision of child support,” and, therefore, satisfies another of ERISA’s conditions for the entry

of a QDRO. See 29 U.S.C. § 1056(d)(3)(B)(ii)(I).

However, the trial court never considered whether mother’s draft QDRO satisfied

ERISA’s technical requirements for the entry of a QDRO. See 29 U.S.C. § 1056(d)(3)(C) and

1056(d)(3)(D). The trial court found that it was constrained by this Court’s decision in Hoy –

and, therefore, that it could not enter a QDRO pursuant to Virginia’s domestic relations law. We

disagree with the reasoning and conclusion of the trial court.

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 B. THE DECISION IN HOY DOES NOT APPLY TO THE
VERY DIFFERENT CIRCUMSTANCES IN THIS CASE

Characterizing it as a “defining case” in Virginia domestic relations law, father’s counsel

asserted in the trial court that Hoy established that a QDRO simply cannot be entered in Virginia

to enforce a spousal support or child support arrearage in order to attach or garnish assets in a

retirement account. The trial court accepted this argument and found it was constrained by this

Court’s decision in Hoy. However, the decision in Hoy simply is not controlling on the very

different facts, circumstances, and interests that are presented in this case.

In Hoy, when the parties (Pearce and Hoy) divorced in 1973, Pearce was awarded spousal

support. Pearce was not awarded any interest in Hoy’s retirement plan – and Pearce could not

possibly have received such an award, given that Hoy’s retirement plan did not even exist at the

time of the divorce. Pearce later received an $84,000 judgment for spousal support arrearages.

In 1997 – nearly a quarter-century after the entry of the final divorce decree – Pearce moved the

trial court “to reinstate” the divorce case “for entry of a QDRO allowing garnishment of Hoy’s

pension plan as a source for payment of the spousal support arrearages judgment.” Hoy, 29

Va. App. at 118, 510 S.E.2d at 254.

This Court affirmed the trial court’s denial of Pearce’s motion, holding that Pearce’s

“attempt to reopen and modify the court’s final decree of divorce” was prohibited by Rule 1:1.

Id. at 118, 510 S.E.2d at 254-55. This Court noted that the final divorce decree predated the

effective date of the continuing jurisdiction statute, Code § 20-107.3(K)(4). Id. at 118, 510

S.E.2d at 255. This Court also explained that Code § 20-107.3(K)(4) would not have provided

Pearce any relief because the trial court was not permitted to make any substantive modification

of the parties’ divorce decree or to provide Pearce with an interest in Hoy’s retirement plan that

was not already recognized in the divorce decree. Id. at 118-19, 510 S.E.2d at 255. Given those

circumstances, this Court held:
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 Under Virginia domestic relations law, Pearce may not recast her
claim as a judgment creditor, albeit one that seeks recovery of
unpaid spousal support, into a QDRO which substantively
modifies the terms of a final divorce decree. Therefore, under
ERISA, the proposed order does not qualify as a QDRO.

Id. at 119, 510 S.E.2d at 255.

This case is very different than Hoy. Here, mother sought the entry of a QDRO for child

support while the divorce proceedings were active. This issue was argued extensively by the

parties in the trial court, and the trial court then denied mother’s motion for the entry of a QDRO

in its final order. Thus, unlike in Hoy, mother here certainly does not seek to reopen and

substantively modify the terms of a final divorce decree. This difference alone brings this case

completely outside of the scope of this Court’s holding in Hoy. Therefore, the trial court erred

when it found that it lacked authority under Hoy to enter a QDRO in this case.

C. THE TRIAL COURT HAD AUTHORITY TO ENFORCE FATHER’S DUTY
TO SUPPORT HIS MINOR CHILDREN

In addition, this case concerns a parent’s duty to support his minor children. As the

Supreme Court explained in Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994), “Both

parents owe a duty of support to their minor children.” Thus, the rights of children to receive

“support from both parents” may not be “substantially abridged” by the actions of either or both

parents. Id. This principle is consistent with Virginia’s “strong and compelling interest in

protecting the welfare of its dependent citizens.” Caswell v. Lang, 757 F.2d 608, 610 (4th Cir.

1985) (citing Code § 20-107.2).

In this case, ever since the beginning of the divorce proceedings (which father initiated),

father has completely ignored this paramount duty to support the parties’ children – and has

completely frustrated the trial court’s orders directing him to pay child support. According to the

record on appeal, father has not paid one dime of child support since the parties separated in

December 2009. Father even left the country during the middle of the divorce proceedings –
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and, therefore, apparently has ceased earning wages from his Virginia employer that mother

could seek to garnish. See Code § 20-79.1. Mother also knows of no other property belonging

to father, such as real estate, that could be the subject of a lien for failure to pay child support.

See Code § 8.01-460(A). Meanwhile, according to mother, she and the parties’ two young

children are forced to rely on charity and public assistance. By ignoring his obligation to support

his own small children, father has left the children in a desperate plight.

Father’s counsel argued in the trial court that the entry of a QDRO would be

inappropriate here because “Congress has an interest in protecting these sort of retirement

accounts” in order “to allow some form of support or income to folks once they retire, so the

state is not burdened with that.” Although “[i]t is perhaps true that the [ERISA] statutory

scheme is designed for the protection of retirement income,” In re Marriage of Rife, 529 N.W.2d

280, 281 (Iowa 1995), this argument presents a very incomplete picture of the law. ERISA

specifically permits the parties’ minor children to qualify as beneficiaries and alternate payees of

father’s retirement plan. See 29 U.S.C. § 1056(d)(3)(K) and 1056(d)(3)(J).

The United States Supreme Court explained in Boggs that ERISA now provides

“enhanced protection” to dependent children “in the event of divorce or separation” by

authorizing a trial court to enter a QDRO. Boggs, 520 U.S. at 846. Commenting on the proper

balance between the protection of retirement assets and the state’s authority to enforce the plan

participant’s domestic obligations, the Colorado Court of Appeals has noted, “The provisions

creating a QDRO evince the overall congressional purpose to protect persons and their

dependents from the claims of creditors while, at the same time, preventing interference with the

state’s power to enforce family support obligations.” In re LeBlanc, 944 P.2d 686, 688 (Col.

Ct. App. 1997) (emphasis added). Similarly, the Iowa Supreme Court has held, “ERISA was not

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intended to be a vehicle for avoidance of familial support” duties or obligations. In re Marriage

of Rife, 529 N.W.2d at 282.

Simply put, to use ERISA’s general rule against assigning or alienating retirement assets

as a way to permit father to continue to avoid his duty to pay child support would completely

thwart Virginia’s established principles of domestic relations law, especially the law dealing with

child support. Code § 20-107.2 states:

Upon entry of a decree providing (i) for the dissolution of a
marriage, (ii) for a divorce, whether from the bond of matrimony
or from bed and board, (iii) that neither party is entitled to a
divorce, or (iv) for separate maintenance, the court may make such
further decree as it shall deem expedient concerning the custody or
visitation and support of the minor children of the parties as
provided in Chapter 6.1 (§ 20-124.1 et seq.) of Title 20, including
an order that either party or both parties provide health care
coverage or cash medical support, or both.

(Emphasis added).

From the earliest versions of Code § 20-107.2, the Supreme Court has held that “‘the

evident purpose of the legislature was to give to the court the largest discretion in respect to the

estate of the parties, and not to relieve the offending parent of any duty, moral, social, or

otherwise.’” Morris v. Henry, 193 Va. 631, 639, 70 S.E.2d 417, 422 (1952) (emphasis added)

(quoting Heninger v. Heninger, 90 Va. 271, 275, 18 S.E. 193, 195 (1893)). Moreover, the

Supreme Court has explained that “the welfare of the child is to be regarded more highly than the

technical legal rights of the parent.” Forbes v. Haney, 204 Va. 712, 716, 133 S.E.2d 533, 536

(1963). Simply put, “[w]here the interest of the child demands it,” the rights of a parent “may be

disregarded.” Id.

Based on these established principles of Virginia domestic relations law, father owes his

minor children the duty of satisfying his child support obligations. Thus, father is also obligated

to satisfy any child support arrearage that has accrued due to his own failure to pay child support

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– regardless of whether the arrearage is small or, as in this case, the arrearage has grown to over

$28,000. The trial court here ordered father to pay the child support arrearage “in full

immediately,” and the record discloses only one asset that could possibly be used to satisfy the

child support arrearage – father’s retirement account. Both ERISA and Virginia law certainly

permit the attachment of this asset through the entry of a QDRO. Therefore, the trial court’s

finding to the contrary was reversible error.

III. CONCLUSION

The record here establishes that a QDRO attaching father’s retirement account represents

the only actual method of enforcing the trial court’s child support orders, which father has

completely ignored and frustrated to the severe detriment of his own children. Code § 20-107.2.

ERISA and Virginia’s law on domestic relations authorized the circuit court to enter a QDRO

under the specific circumstances of this case. Therefore, we reverse the circuit court’s finding

that it lacked authority to enter a QDRO. It incorrectly found that it was bound in this situation

by this Court’s decision in Hoy – which is distinguishable from the present case before us now,

given this case’s very different circumstances.

Whether mother’s draft QDRO in this case actually qualified as a QDRO under ERISA’s

technical requirements pertaining to the contents of a QDRO is, of course, a question that we

cannot resolve in this appeal. The trial court never actually considered the contents of the draft

QDRO and also denied mother’s request to admit into the evidence at trial certain documents

relevant to father’s retirement account. Accordingly, we direct the circuit court on remand to

grant mother leave to file a new draft QDRO reflecting any changes in circumstances that have

occurred since her written motion of January 13, 2011, to admit financial documents relevant to

the entry of a QDRO, and to determine whether mother’s draft QDRO meets ERISA’s technical

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requirements for the contents of a QDRO, including those in 29 U.S.C. § 1056(d)(3)(C) and

1056(d)(3)(D).

Reversed and remanded.

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