COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia
DENNIS LEE STRAUSBAUGH
MEMORANDUM OPINION* BY
v. Record No. 1040-06-3 JUDGE JEAN HARRISON CLEMENTS
MAY 15, 2007
BRENDA BRITT STRAUSBAUGH,
N/K/A BRENDA BRITT MONROE
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Edwin C. Stone (Stone & Kellerman, P.C., on brief), for appellant.
John S. Huntington for appellee.
Dennis Lee Strausbaugh (husband) appeals from the trial court’s April 5, 2006 decree
awarding his former wife, Brenda Britt Strausbaugh, n/k/a Brenda Britt Monroe (wife), half of the
marital share of his pension, pursuant to the terms of the parties’ final decree of divorce. Husband
contends that, in making that award, the trial judge erroneously (1) modified substantive terms of
the divorce decree in violation of Rule 1:1, (2) used the statutory marital share formula rather than
the actual value of the pension as of the date of the parties’ separation to calculate wife’s share of
the pension, and (3) found the lump sum severance payment he received from his employer
constituted a pension benefit in which wife had an interest. Wife requests an award of attorney’s
fees and costs incurred in defending this appeal. For the reasons that follow, we affirm the
judgment of the trial court and grant wife’s request for appellate attorney’s fees and costs.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
I. BACKGROUND
The facts relevant to our disposition of this appeal are not in dispute.1 The parties were
married on August 23, 1969. They separated 184 months later on December 30, 1984, and were
divorced by final decree of the Circuit Court of Montgomery County entered August 21, 1986.
The final decree of divorce provided that,
at such time as [husband] shall be entitled to receive a monthly
pension, or other pension of any nature from AT&T Technologies,
Inc., [wife] shall be entitled to receive fifty percent (50%) of the
net amount of such pension payments, the net amount being
defined as the actual amount received by AT&T Technologies, Inc.
or the administrator of its pension plan.
Neither party appealed the final decree of divorce.
Husband worked for Western Electric Company from 1968 to 1980, AT&T Electronic
Components from 1980 to 1982, AT&T Technologies from 1982 to 1986, AT&T De Mexicana
International Electronics from 1986 to 1989, AT&T Power Systems from 1989 to 1994, AT&T
Semi-conductor Technologies from 1994 to 1995, CIRENT Semi-conductor Company from 1995 to
1996, Lucent Technologies from 1996 to 2000, and Agere Systems from 2000 to 2002. Prior to the
parties’ separation, husband’s annual earnings increased from $7,800 in 1970 to $37,800 in 1984.
1
In response to an order of this Court to show cause why this appeal should not be
dismissed for lack of a transcript or written statement of facts, husband’s counsel represented
that the April 5, 2006 decree was “the equivalent of a separate statement of facts” because
“counsel for both parties cooperated fully to incorporate into the . . . decree[] all facts relevant to
the issues resolved by the trial court and now before this [C]ourt on appeal.” We permitted the
appeal to proceed on that basis. Accordingly, the facts set forth in this opinion are based on the
April 5, 2006 decree and the judge’s letter opinion incorporated therein, as well as the relevant
pleadings and exhibits in the record.
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He earned an average annual income of $19,102 over that period. Following the parties’ separation,
husband’s annual earnings increased from $39,600 in 1985 to a high of $119,065 in 1995. From
1994 to 2002, husband earned an average annual income of $97,033. Husband retired on October 6,
2002. His pension benefits commenced on October 7, 2002.
Husband’s last employer, Agere Systems, calculated that, for purposes of determining
husband’s pension benefit, husband had 34 years and 1 month (409 months) of “Benefit
Service,” from September 1968 through October 6, 2002. Agere Systems defined “Benefit
Service” as “the number of years and months with Agere beginning with the Date of Hire and
ending with the Date of Termination.” Using a formula incorporating husband’s 409 months of
credited service time and his compensation from 1994 to 2002, Agere Systems calculated that
husband’s “regular service pension benefit” was $3,247.75 per month. Noting there were “two
parts to [husband’s pension] benefit,” Agere Systems also paid husband a “Supplemental
Pension Benefit,” which husband chose to receive as a lump sum payment of $50,604 rather than
as a monthly annuity of $294.76. The “Supplemental Pension Benefit” was “paid from the
general assets of the Qualified Trust of the Agere Systems, Inc. Pension Plan and . . . was
computed on the basis of [husband’s] salary and his years of service with Agere Systems.”
On March 3, 2003, wife moved for “entry of appropriate orders to facilitate the
distribution of [husband’s] pension” in accordance with the terms of the final decree of divorce.
She argued that, “based upon the language of the 1986 divorce decree,” she was entitled to half
of the pension benefits received by husband.2 Husband argued wife was not entitled to receive
2
Wife acknowledged below that, although the divorce decree explicitly entitled her to
fifty percent of husband’s pension payments, an award of fifty percent of the marital share of
husband’s pension in accordance with the marital share formula in Code § 20-107.3(G)(1) would
not be unfair. Under that approach, wife argued, her share of husband’s monthly pension benefit
would be $730.55 ($3,247.75 x 44.9878% x 50%) and her share of husband’s lump sum pension
benefit would be $11,382.87 ($50,604.23 x 44.9878% x 50%).
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any distribution from his pension because his pension was from Agere Systems, not “AT&T
Technologies, Inc.,” as specified in the divorce decree. Husband also argued that, if the trial
court determined wife was entitled to distribution of his pension, it should be valued as of the
date of the parties’ separation, rather than the date of his retirement.3 He further argued that wife
was not entitled to any part of the lump sum payment he received from Agere Systems because it
was not a pension benefit. Husband testified at the ore tenus hearing on wife’s motion that “the
company officials explained to him that the lump sum payment was in the nature of a severance
benefit.”
Rejecting husband’s testimony, the trial judge found that the lump sum payment husband
received from Agere Systems constituted a pension benefit rather than a severance benefit. The
judge also determined that, pursuant to the divorce decree, wife was entitled to half the marital
portion of the pension benefits husband received from Agere Systems and that the marital
portion of those benefits was to be calculated using the “statutorily defined marital share portion”
set forth in Code § 20-107.3(G)(1). Accordingly, the judge calculated that the marital portion of
husband’s pension was 44.9878% (184 months/409 months); that wife’s share of the marital
portion of the lump sum “Supplemental Pension Benefit” was $11,382.87 ($50,604.23 x
44.9878% x 50%); and that wife’s share of the marital portion of the monthly pension benefit
was $730.55 per month ($3,247.75 x 44.9878% x 50%). The judge memorialized these rulings
3
According to the April 5, 2006 decree:
The [c]ourt considered evidence and argument establishing
that if the plan administrator were called upon to determine the
value of a monthly service pension benefit based upon a single life
annuity at age 65 with an assumed termination date being the date
of separation, the plan administrator would have calculated the
value of a single life annuity to have been $721.47.
Using that figure, husband argued below that wife was entitled to no more than $360.74
from his monthly pension payments ($721.47 x 50%).
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in the April 5, 2006 decree and entered a qualified domestic relations order consistent therewith
on April 19, 2006.
This appeal followed.
II. RULE 1:1 AND CODE § 20-107.3(K)(4)
On appeal, husband contends the trial court substantively modified the terms of the
August 21, 1986 final decree of divorce more than twenty-one days after entry of the decree, in
violation of Rule 1:1, when it awarded wife a share of his pension from Agere Systems.
Husband argues that, under the express terms of the final decree, wife was entitled to a share of
his pension only from “AT&T Technologies, Inc.” He further argues that, because his pension
was from Agere Systems, rather than AT&T Technologies, Inc., wife was not entitled to any part
of the pension, and the trial court erred in holding to the contrary. We disagree.
While “we review the trial court’s application of the law to [the facts of a case] de novo,”
the trial court’s “factual findings will not be disturbed on appeal unless they are plainly wrong or
without evidence to support them.” Collins v. First Union Nat’l Bank, 272 Va. 744, 749, 636
S.E.2d 442, 446 (2006).
Ordinarily, a trial court loses jurisdiction over a case twenty-one days after entry of the
final decree. See Rook v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 758 (1987) (citing Rule
1:1). Thus, the equitable distribution provisions of an unappealed final divorce decree become
“the law of [the] case” after twenty-one days and are not normally “subject to later
modifications.” Hastie v. Hastie, 29 Va. App. 776, 782, 514 S.E.2d 800, 804 (1999). However,
Code § 20-107.3(K)(4) “creates a limited exception to the strict directive of Rule 1:1” and gives
the trial court continuing authority to modify the terms of the final decree’s “retirement or
pension provisions [to] ‘effectuate the expressed intent’ of the original decree,” provided the
modification is “consistent with the substantive provisions of the original decree” and not
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“simply to adjust its terms in light of the parties’ changed circumstances.” Caudle v. Caudle, 18
Va. App. 795, 797-98, 447 S.E.2d 247, 249 (1994).
Here, the expressed intent of the pension provisions of the divorce decree was to award
wife half of husband’s “pension . . . received [from] AT&T Technologies, Inc. or the
administrator of its pension plan.” When asked pursuant to wife’s March 3, 2003 motion to
implement the distribution of husband’s pension in accordance with the pension provisions of the
divorce decree, the trial judge found that all nine of husband’s employers from September 1968
through his retirement on October 6, 2002, a period of thirty-four years and one month, were
“successors in interest and existed as a result of mergers, acquisitions, spin-offs or other changes
in corporate entity or divisions thereof.” Accordingly, the judge further found that “the nexis
[sic] between [husband’s] employers [was] sufficient to establish a service period of thirty-four
. . . years and one . . . . month.” On that basis, the judge concluded that, pursuant to the pension
provisions of the divorce decree, wife was entitled to half the marital portion of the pension
benefits husband received from Agere Systems, the administrator of husband’s pension when he
retired. In other words, in resolving the issue before him, the trial judge implicitly found that,
although the pension husband received when he retired was administered and paid by Agere
Systems, that pension was, in fact, the same pension specifically referenced in the divorce
decree.
On the record before us, we cannot say this finding is plainly wrong or without credible
evidence to support it. Indeed, in calculating husband’s pension benefit, Agere Systems
expressly credited husband with thirty-four years and one month of “Benefit Service,” which
Agere Systems defined as “the number of years and months with Agere beginning with the Date
of Hire and ending with the Date of Termination.” This credited service time “with Agere”
comprised the 409-month period from September 1968 through husband’s retirement in October
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2002 and, thus, necessarily included the 184-month period of the parties’ marriage before they
separated and the four-year period husband worked specifically for AT&T Technologies, Inc.4
In addition, the credited service time accrued during husband’s employment with AT&T
Technologies, Inc., and its successors in interest, resulting from “mergers, acquisitions, spin-offs
or other changes in corporate entity or divisions.” Accordingly, although AT&T Technologies,
Inc., was no longer husband’s employer, the pension husband received from Agere Systems was
the same pension from “AT&T Technologies, Inc. or the administrator of its pension plan”
specified in the divorce decree.
We hold, therefore, that, in awarding wife a share of the pension benefits husband
received from Agere Systems, the trial judge did not modify the substantive provisions of the
final decree of divorce, but only “conform[ed] its terms so as to effectuate the expressed intent of
[that decree].” Code § 20-107.3(K)(4). Accordingly, the trial judge did not violate Rule 1:1 in
making that award.
III. CALCULATION OF WIFE’S SHARE OF PENSION
Husband next contends that, even if the trial court had the authority to award wife a share
of his pension benefits, it erred in applying the statutory marital share formula to calculate wife’s
share of the pension rather than using the plan administrator’s determination of the value of the
pension as of the date of the parties’ separation.5 We disagree.
4
Although not entirely clear from the record, husband was presumably working for
AT&T Technologies, Inc., when the final decree was entered on August 21, 1986.
5
For purposes of this analysis, we will assume, without deciding, that evidence
establishing the value of husband’s pension as of the date of the parties’ separation was properly
before the trial court. See footnote 3.
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Code § 20-107.3(G)(1) governs the distribution of the marital share of a pension. See
Mosley v. Mosley, 19 Va. App. 192, 198, 450 S.E.2d 161, 165 (1994). In pertinent part, this
code section provides:
The court may direct payment of a percentage of the
marital share of any pension . . . or retirement benefits, whether
vested or nonvested, which constitutes marital property and
whether payable in a lump sum or over a period of time. . . .
However, the court shall only direct that payment be made as such
benefits are payable. . . . “Marital share” means that portion of the
total interest, the right to which was earned during the marriage
and before the last separation of the parties . . . .
Code § 20-107.3(G)(1) (emphasis added). Addressing Code § 20-107.3(G)(1)’s provisions, we
held in Mosley:
This statutory language is mandatory and can be implemented
through the use of a simple formula. The number of years that the
spouse was in the pension plan while in the marriage serves as the
numerator and the total number of years in the pension plan serves
as the denominator. This fraction establishes the marital share of
the pension as defined by the statute.
19 Va. App. at 198, 450 S.E.2d at 165.
Here, pursuant to the terms of the final decree of divorce, distribution of the marital share
of husband’s pension was deferred until “such time as [husband was] entitled to receive a
monthly pension, or other pension of any nature.” When, following husband’s retirement, wife
moved for “entry of appropriate orders to facilitate the distribution of [husband’s] pension,” the
trial judge implicitly recognized that husband’s pension was part marital and part separate
property and accordingly used the statutory marital share formula to calculate the marital portion
of the monthly and lump sum pension payments husband received from Agere Systems
($3,247.75 x 44.9878% = $1,461.09 and $50,604.23 x 44.9878% = $22,765.73). Consistent with
the terms of the divorce decree, the judge then awarded wife half of each of those amounts
($1,461.09 x 50% = $730.55 and $22,765.73 x 50% = $11,382.87).
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Husband does not challenge the correctness of the trial judge’s calculations. Instead, he
argues the trial judge’s use of the statutory formula to calculate wife’s share of his pension
benefits was inappropriate in this case because the formula, in using the value of his pension
benefits at the time of his retirement as a factor, relied on salary increases he earned after the
date of separation and thereby gave wife a greater pension interest than was legally warranted.
This argument, however, runs counter to our established case law:
Under Virginia law, it is well established that the marital portion of
a defined [pension] benefit plan is distinguished from the separate
portion by the application of a fraction, the numerator of which
represents the total time the pensioner is employed during the
parties’ marriage, and the denominator of which represents the
total time the pensioner is employed through the date of retirement.
The fraction diminishes the marital share in relation to the number
of years that pre- and post-marital contributions are made. Thus,
as applied, the fraction effectively excludes from the marital share
the income earned by pre- and post-marital contributions to the
pension.
Mann v. Mann, 22 Va. App. 459, 464-65, 470 S.E.2d 605, 607-08 (1996) (citations and footnote
omitted). Additionally, we have “rejected limitation of a pension award, payable in the future, to
a ‘present value calculation’ because it denied the benefit of ‘future earnings and adjustments
that are attributable to the . . . deferred share’ and its ‘future appreciation.’” Banagan v.
Banagan, 17 Va. App. 321, 324, 437 S.E.2d 229, 231 (1993) (quoting Zipf v. Zipf, 8 Va. App.
387, 397, 382 S.E.2d 263, 268-69 (1989)).
“It is only fair that both parties share in the increased value of the
pension,” or one will be “receiving the increase in value” over time
which is attributable to the other’s marital interest. Primm v.
Primm, 12 Va. App. 1036, 1038, 407 S.E.2d 45, 47 (1991).
Contrary to the husband’s view, such enhancement is clearly a part
of the “total [pension] interest” component of the[] marital share
equation and obviously distinguishable from a judicial award of
interest on a deferred share of a pension. See Code § 20-107.3(G).
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Banagan, 17 Va. App. at 325-26, 437 S.E.2d at 231. “There can be no justification for [husband]
receiving the increase in value of his . . . share as well as any increase in [wife’s] . . . share.”
Primm, 12 Va. App. at 1038, 407 S.E.2d at 47. Thus,
[w]hile the trial court “must be given flexibility to determine which
method of distribution to utilize in a given case,” Gamble [v.
Gamble], 14 Va. App. [558,] 585, 421 S.E.2d [635,] 651 [(1992)]
(citing L. Golden, Equitable Distribution of Property § 6.16 (1983
& Supp. 1991)), “[a] present value calculation is of direct use only
where payment of the portion of the monetary award attributable
to the pension is to occur immediately rather than over a period of
time.” Zipf, 8 Va. App. at 397, 382 S.E.2d at 268 (citations
omitted) (emphasis added).
McGinniss v. McGinniss, 49 Va. App. 180, 187-88, 638 S.E.2d 697, 700 (2006).
Here, the trial judge’s use of the statutory marital share formula to calculate wife’s share
of the pension is consistent with these principles. Accordingly, we hold the judge did not err in
using that formula.
IV. LUMP SUM PAYMENT
Husband contends the trial court erred in finding the lump sum payment he received from
Agere Systems constituted a pension benefit rather than a severance benefit. This contention
ignores our standard of review.
As previously mentioned, we are bound by the trial court’s findings of fact “unless they
are plainly wrong or without evidence to support them.” Collins, 272 Va. at 749, 636 S.E.2d at
446. Additionally, “[a]s an appellate court, we view the evidence, and all reasonable inferences
flowing from the evidence, in a light most favorable to . . . the party prevailing below.” Miller v.
Cox, 44 Va. App. 674, 678, 607 S.E.2d 126, 128 (2005).
Here, credible evidence in the record supports the trial judge’s finding that the lump sum
payment “was a pension benefit in which [wife] ha[d] a marital interest.” For one thing, Agere
Systems, the administrator of husband’s pension, specifically noted there were “two parts to
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[husband’s pension] benefit” and identified the second part of husband’s pension benefit, the
lump payment, as a “Supplemental Pension Benefit Payment.” Likewise, the lump sum payment
was “paid from the general assets of the Qualified Trust of the Agere Systems, Inc. Pension
Plan.” The trial judge could properly conclude from this evidence that the lump sum payment
was a part of appellant’s pension benefits.
Nevertheless, husband argues that such a conclusion is inappropriate because he “testified
in the ore tenus hearing that he was advised that the payment was a severance payment resulting
from the company downsizing.” Husband, however, provided no documentary evidence at the
ore tenus hearing to support his testimony or counter the administrator’s description of the lump
sum payment as a pension benefit. Moreover, husband’s argument disregards the familiar
principle of appellate review that “[t]he credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence
as it is presented.” Thomas v. Thomas, 40 Va. App. 639, 644, 580 S.E.2d 503, 505 (2003); see also
Anderson v. Anderson, 29 Va. App. 673, 686, 514 S.E.2d 369, 376 (1999) (“The trier of fact . . .
has the discretion to accept or reject any of the witness’[s] testimony.”). Having had the
opportunity to see and hear the evidence presented at the ore tenus hearing, the trial judge had
broad discretion to evaluate the credibility of the conflicting evidence presented in this case, and we
cannot say, on the record before us, that the judge abused his discretion in rejecting husband’s
testimony. Thus, we will not disturb the court’s credibility determination on appeal.
Because the trial judge’s finding that the lump sum payment constituted a pension benefit
instead of a severance benefit is not plainly wrong or without credible evidence to support it, we
hold the trial judge did not err in making that finding.
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V. ATTORNEY’S FEES
Wife seeks an award of attorney’s fees and costs incurred in defending this appeal.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Because this
appeal lacks merit, we grant wife’s request for reasonable appellate attorney’s fees and costs.
See Miller, 44 Va. App. at 688, 607 S.E.2d at 133. Accordingly, we remand this case to the trial
court for determination and award of the appropriate appellate attorney’s fees and costs. Id.
VI. CONCLUSION
For these reasons, we affirm the judgment of the trial court, grant wife’s request for
attorney’s fees and costs, and remand for determination of those fees and costs.
Affirmed and remanded.
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Dennis Lee Strausbaugh v. Brenda Britt Strausbaugh, n/k/a Brenda Britt Monroe
Combined Opinion