COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
CHARLES H. BAKER
OPINION BY
v. Record No. 2080-01-2 JUDGE JAMES W. BENTON, JR.
JUNE 4, 2002
MILDRED B. BAKER
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
Emmet D. Alexander (Gates & Alexander, PLC,
on brief), for appellant.
(John H. Click, Jr.; Blackburn, Conte,
Schilling & Click, P.C., on brief), for
appellee. Appellee submitting on brief.
The sole issue raised by this appeal is whether the
qualified domestic relations order (QDRO) is consistent with the
final decree of divorce. We hold that it is not, and we reverse
the order and remand for entry of a proper QDRO.
I.
On July 24, 2000, Mildred B. Baker was divorced from her
husband, Charles H. Baker, by a final decree that affirmed,
ratified, and incorporated their property settlement agreement.
In pertinent part, the agreement contained the following
provision concerning the husband's Philip Morris profit sharing
plan:
Husband and wife have divided between
themselves to their mutual satisfaction all
intangible marital personal property. The
wife shall have one-half of husband's profit
sharing from [Philip] Morris, valued as of
the date of this agreement. The wife shall
have her retirement, profit sharing, and any
proceeds in her separate bank account. The
husband shall retain the remaining one-half
of his profit sharing at [Philip] Morris.
A year later, the wife filed a motion for entry of a QDRO.
At a hearing on that motion, the parties agreed, and the trial
judge found, that the value of one-half of the profit sharing
plan at the date of the agreement was $37,946.93. The wife
contended, however, that she was entitled to receive "gains and
losses allocated" to that amount from the date of the agreement.
The husband contended that under the agreement the wife was
entitled to "a specific amount determined by a very specific
date," that the agreement did not provide for an adjustment for
gains and losses, and that under Rule 1:1 the decree was final
and not subject to modification. After considering these
arguments, the trial judge entered a QDRO which provided that the
wife was entitled to receive the following: "$37,946.93 as of
December 31, 1999. Gains and losses will be allocated from the
specified date."
This appeal followed.
II.
When a trial judge affirms, ratifies, and incorporates a
property settlement agreement into a final decree of divorce,
that agreement becomes, "for all purposes . . . a term of the
decree, . . . enforceable in the same manner as any provision of
such decree." Campbell v. Campbell, 32 Va. App. 351, 356, 528
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S.E.2d 145, 147 (2000). "It is well settled that [such an]
equitable distribution [decree] become[s] final within twenty-
one days of entry." Hastie v. Hastie, 29 Va. App. 776, 780, 514
S.E.2d 800, 802 (1999). The record reflects that neither party
appealed from the final decree of divorce.
A trial judge's power to modify a final decree of divorce
after the twenty-one day period has expired is limited.
Pertinent to the issue raised by this appeal, that power is
governed by the following statute:
The court shall have the continuing
authority and jurisdiction to make any
additional orders necessary to effectuate
and enforce any order entered pursuant to
this section, including the authority to:
* * * * * * *
Modify any order . . . intended to affect or
divide any pension, profit-sharing or
deferred compensation plan or retirement
benefits pursuant to the United States
Internal Revenue Code or other applicable
federal laws, only for the purpose of
establishing or maintaining the order as a
qualified domestic relations order or to
revise or conform its terms so as to
effectuate the expressed intent of the
order.
Code § 20-107.3(K)(4) (emphasis added). Thus, we have held that
"[t]he QDRO may not 'modify a final divorce decree simply to
adjust its terms in light of the parties' changed circumstances'
but must be 'consistent with the substantive provisions of the
[final] decree [of divorce].'" Hastie, 29 Va. App. at 780, 514
S.E.2d at 803 (citation omitted).
We addressed a similar scheme for the division of property
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in Fahey v. Fahey, 24 Va. App. 254, 481 S.E.2d 496 (1997).
There, the parties by agreement "allotted 'one-half of the
accrued value of the plan as of July 28, 1994,' the date of the
agreement, to [the appellee]." Id. at 256, 481 S.E.2d at 497.
The trial judge, however, entered a QDRO "which assigned to [the
appellee] 'one-half of the shares of the Plan as of July 28,
1994, together with any appreciation or depreciation that has
accrued since that time until the time of distribution.'" Id.
Reversing the order, we held as follows:
[T]he manifest intent of the original order
was to allot [the appellee] one-half of the
value of the . . . account on July 28, 1994.
We recognize that this method of division
later disfavored her because the account
increased in value, but the court was
without authority to substantively modify
its order simply to redress this changed
circumstance. Accordingly, we reverse the
amended QDRO and direct the trial court to
decree distribution of the . . . assets
pursuant to the original [order].
Id. at 257, 481 S.E.2d at 497. See also Ragsdale v. Ragsdale, 30
Va. App. 283, 289-90, 516 S.E.2d 698, 701 (1999) (holding that
where the parties agreed to allot to the wife a one-half value of
an account as determined on a specific date, the trial judge
properly ruled that the allotted value did not include any
appreciation of value to the account); Hastie, 29 Va. App. at
782, 514 S.E.2d at 803 (holding that after the parties agreed
upon an allotment of a fixed value of an account to the wife, the
trial judge had no authority to enter a QDRO that changed the
allotment when the original method of division disfavored the
wife due to the account's increased value).
In this case, the final decree of divorce, which affirmed,
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ratified, and incorporated the property settlement agreement, is
unambiguous in providing an allotment to the wife of one-half of
the profit sharing plan "valued as of the date of [the]
agreement." The parties agreed that amount was $37,946.93. The
agreement did not additionally provide for an allocation of gains
and losses to that amount. Accordingly, we reverse the entry of
the QDRO, which allocates to the wife gains and losses
attributable to the $37,946.93 value, and we remand to the trial
court for entry of a QDRO consistent with the final decree.
Reversed and remanded.
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