COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
RITA KATHLEEN BRADLEY
OPINION BY
v. Record No. 0628-01-4 JUDGE NELSON T. OVERTON
OCTOBER 22, 2002
ROGER WAYNE BRADLEY
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Leroy F. Millette, Jr., Judge
Catherine S. Croft (Farrell & Croft, P.C.,
on briefs), for appellant.
Joyce M. Henry-Schargorodski (Gaughan &
Schargorodski, on brief), for appellee.
Rita Kathleen Bradley (wife) appeals the circuit court's
Qualified Domestic Relations Order (QDRO) entered on February 9,
2001. On appeal, wife contends the trial court erred by (1)
limiting the scope of the survivor benefits awarded to wife and
(2) requiring that for purposes of calculating the marital
shares of Roger Wayne Bradley's (husband) defined benefit
retirement plan, the plan ended upon the merger with a successor
defined benefit retirement plan. Wife asks that the QDRO be
vacated. For the reasons that follow, we disagree and affirm the
trial court's order.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
BACKGROUND
Husband and wife were divorced by final decree entered on
January 7, 2000. In the final decree husband's Oil, Chemical &
Atomic International Union (OCAW) defined benefit plan was
distributed as follows: 35% of the marital share was awarded to
wife and 65% to husband. The decree allowed wife to receive the
"OCAW defined benefit survivor benefit." The final decree also
provided that "[t]he jurisdiction of the Court is reserved to
enter appropriate Qualified Domestic Relations Orders pursuant
to this Order."
The trial court entered the QDRO on February 9, 2001. The
QDRO allows wife to receive only post-retirement survivor
annuity benefits and does not allow her to receive
pre-retirement survivor benefits. The trial court explained
that it did not intend for wife to receive pre-retirement
benefits at the time of the final decree. Wife admits she did
not address the issue of pre-retirement benefits at trial and
that she did not know they were available until after the
conclusion of the trial.
The OCAW defined benefit plan merged with the PACE
International Pension Fund on January 4, 1999. In the final
decree the court held that wife's share of the defined benefit
pension equaled 35% of the marital share, or 32% of the gross
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pension benefit. The final decree specifically limits the
marital share to the OCAW pension before the date of merger with
PACE. At the QDRO hearing, wife sought to apply the fixed
marital share to the post-separation PACE successor plan. We
note that wife failed to include in the record the text of the
OCAW plan.
ANALYSIS
I.
Wife argues the final decree of divorce did not
specifically limit the survivor benefits to post-retirement
benefits. She cites the language in the decree which states
simply: "Wife shall have the option of receiving the OCAW
defined benefit survivor benefit . . . ." She further states
the plain meaning of the provision necessarily includes the
pre-retirement benefits. Finally, she reasons the trial court
impermissibly narrowed the scope of the final decree in the QDRO
ruling. However, wife never requested from the trial court the
pre-retirement survivor benefits. She admitted she did not
learn of the availability of the benefits until after entry of
the final decree. The trial court explained it did not intend
for wife to be entitled to any pre-retirement survivor benefits
at the time of its ruling.
The final decree states "wife shall receive 35% of the
marital share of the Husband's OCAW gross defined benefit
pension plan as such is received by the Defendant." (Emphasis
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added.) If wife were entitled to receive pre-retirement
survivor benefits, she would receive that benefit before
husband. Additionally, Code § 20-107.3(G)(1) allows for payment
to alternate payees only as such "benefits are payable" and
"actually received" by the participant.
The court clearly expressed it did not intend to award wife
such benefits, that they had not been mentioned at trial, and
that awarding them in the QDRO would conflict with the final
decree. Wife admits she was unaware of the pre-retirement
benefits at the time of the trial. The general language of the
final decree does not require the court to later grant benefits
never contemplated during the proceedings.
When entering a QDRO, the court may not "modify a
final divorce decree simply to adjust its terms
in light of the parties' changed circumstances";
the QDRO must be "consistent with the substantive
provisions of the original decree." "[E]ntry of
an order purporting to 'change the substance of
the original order or provide an interest in a
pension that was not provided in the order' would
contravene the intent of the legislature in
enacting this code section."
Hoy v. Hoy, 29 Va. App. 115, 118-19, 510 S.E.2d 253, 255 (1999)
(citations omitted). The pre-retirement survivor benefits were
not contemplated at the trial, and the court did not err by
refusing to include them in the QDRO.
II.
Wife states she was unaware until the entry of the QDRO
that the trial court intended to calculate the marital share of
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husband's OCAW pension without including the successor plan.
She argues the trial court failed to classify the OCAW pension
or the successor plan as marital or separate property. She
further contends the pension should be presumed to be marital
property, pursuant to Code § 20-170.3(A)(2). In pertinent part,
that section provides: "All property including the portion of
pensions . . . acquired by either spouse during the marriage,
and before the last separation of the parties . . . is presumed
to be marital property . . . ." Code § 20-170.3(A)(2). Wife
contends the final decree did not limit the definition of the
marital share to the OCAW defined benefit pension and that the
court erred by so limiting it in the QDRO.
By determining the marital fraction of the OCAW pension,
the court necessarily declared that pension to be marital
property and, by not dividing the post-separation PACE pension,
the court determined it was separate property. The final decree
limits the marital share to the OCAW pension, and the trial
court's QDRO ruling was consistent with the final decree.
Nothing in the record indicates the trial court intended to
include the PACE successor plan in the distribution. Wife did
not raise the issue at trial and did not object to the wording
of the final decree. She argues the issue was confusing and
unclear at trial. However, the decree clearly includes a
division of the OCAW pension only and establishes the fraction
to be used for division based on husband's term of employment
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before OCAW merged with PACE. Wife's contention that the QDRO
is inconsistent with the final decree is not supported by the
record.
Accordingly, we affirm the trial court's entry of the QDRO.
Affirmed.
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