COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
CHARLES WAYNE WILLIAMS
OPINION BY
v. Record No. 1297-99-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 28, 2000
SONJIA LORD WILLIAMS
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge
(Barry M. Tatel; Neil E. McNally; Key,
Tatel & McNally, on brief), for appellant.
Appellant submitting on brief.
(Charles B. Phillips; Phillips & Swanson, on
brief), for appellee. Appellee submitting on
brief.
Charles Wayne Williams and Sonjia Lord Williams were
divorced by entry of an amended final decree entered July 10,
1997, which awarded the wife 50% of the husband's pension
benefits. To carry out that decree, the trial court entered a
qualified domestic relations order (QDRO) January 26, 1998.
After the QDRO went into effect, the wife no longer received 50%
of the benefits. She petitioned for clarification that she was
entitled to half of the husband's retirement benefits and sought
to have the husband found in contempt for failing to pay that
amount to her.
The trial court decreed that the wife was entitled to half
of all benefits and ordered the husband to pay all arrearages.
The trial court did not hold the husband in contempt but amended
the original amended final decree of July 10, 1997, nunc pro
tunc, to order him to pay the balance not paid directly by the
pension administrator. The husband argues on appeal that the
trial court lacked jurisdiction to modify substantively the
amended final decree. The husband also argues that the trial
court erroneously applied Code § 8.01-428(B) and erred in
considering certain exhibits. For the following reasons, we
affirm.
The trial court first entered a final decree of divorce on
April 22, 1997. That decree adjudicated spousal support, the
husband's pension, and the proceeds from settlement of the
husband's personal injury claim against his employer. Both
parties objected to portions of that final decree, and the
husband appealed. Pending the appeal, the parties negotiated a
settlement and submitted it to the trial court. When the trial
court incorporated the agreement into an amended final decree,
the husband withdrew his appeal.
Under the amended final decree, the wife waived spousal
support and any interest in the husband's personal injury
settlement. She received 50% of all future pension payments
paid to the husband beginning July 1, 1997. The trial court
ordered the husband to pay half of his pension benefits directly
to the wife during the interim between the entry of the amended
order and the processing of a QDRO. The trial court ordered the
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wife to prepare a QDRO directing the plan administrator to pay
to her "fifty percent (50%) of each pension payment paid to
Charles Wayne Williams when and if same are paid." The wife
prepared the QDRO, and the trial court entered it in January
1998.
The husband's total monthly pension benefit was $1,299 of
which the wife's share was $649.50. The husband paid the full
$649.50 directly to the wife from July 1997 until she began
receiving payments from the pension administrator in February
1998. The husband stopped paying any amount once the pension
administrator began paying the wife.
As drafted, entered, and approved by the pension
administrator, the QDRO only affected one portion of the total
benefits due the husband. The company plan consisted of two
tiers of benefits. Because the QDRO only ordered payment of 50%
of Tier II benefits, the wife received $119 per month from the
pension administrator. If the QDRO had ordered payment of 50%
of both Tier I and Tier II benefits, she would have received
$649.50 as anticipated.
The trial court noted that the entire amended decree
referred to the wife receiving 50% of all pension benefits
received by the husband whether paid directly by the husband or
by the employer pursuant to a QDRO. Though the QDRO affected
only Tier II interests, the trial court ordered that the QDRO
remain in effect as entered, but it ordered the husband to pay
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50% of his Tier I benefits directly to the wife. The court
ordered the husband to pay all arrearages to the wife, which
were 50% of the Tier I benefits that accumulated from February
1998 through May 5, 1999. The trial court's action did not
substantively change its amended final decree entered July 10,
1997.
Under Rule 1:1, courts ordinarily lose jurisdiction
twenty-one days after entry of a decree, but when qualifying or
maintaining a qualified domestic relations order, courts may
"[m]odify any order . . . intended to . . . divide any pension
[plan] . . . to revise or conform its terms so as to effectuate
the expressed intent of the order." Code § 20-107.3(K)(4).
Such modification, however, must be "consistent with the
substantive provisions of the original decree" and not "simply
to adjust its terms in light of the parties' changed
circumstances." Caudle v. Caudle, 18 Va. App. 795, 798, 447
S.E.2d 247, 249 (1994).
In this case, the terms of the amended final decree are
clear and unambiguous. The wife was to receive 50% of the
husband's total pension benefits. The husband paid $649.50, an
amount equal to 50% of both Tier I and II benefits, from July
1997 through January 1998 pursuant to the amended final decree.
When the QDRO did not effectively carry out the mandate of that
decree, the trial court was empowered to modify its decree to
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"conform its terms so as to effectuate the expressed intent of
the [original] order." Code § 20-107.3(K)(4).
The trial court's May 5, 1999 nunc pro tunc order revised
the amended final decree to conform with the substantive
decision expressed in the decree that the wife receive half of
the husband's entire pension benefits. It did so by ordering
the husband to pay 50% of his Tier I pension benefits directly
to the wife, the amount not covered by the QDRO. This
modification was not a substantive modification. The trial
court never modified the percentage or amount due the wife. The
modification accomplished what the amended final order directed,
but which the QDRO did not fully accomplish. The modification
changed no substantive rights but merely adjusted procedural
steps to effect the expressed intent of the order. The trial
court could have made the procedural adjustments by amending the
QDRO, but Code § 20-107.3(K)(4) also permitted it to make them
by modifying the amended final decree.
This case is distinguishable from decisions that hold that
the trial court erred by substantively modifying final orders.
In Hastie v. Hastie, 29 Va. App. 776, 514 S.E.2d 800 (1999), the
original decree awarded the wife 40% of the present value of the
pension, "to-wit, . . . $102,496.40, payable in the amount of
$575.04 each month until paid in full." Id. at 781, 514 S.E.2d
at 803 (emphasis added). The modified order directed the
husband to pay the monthly installments for as long as he
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received benefits or the wife's death. The Court held this
substantively modified "both the terms of payment and the amount
of total payments" the husband was obligated to make to the wife
set forth in the original decree. Id.
In Fahey v. Fahey, 24 Va. App. 254, 481 S.E.2d 496 (1997)
(en banc), a QDRO awarded the wife "one-half of the accrued
value of the [Keogh] Plan as of July 28, 1994." The wife sought
to amend the QDRO to include appreciation or depreciation when
the interest in the plan changed. The trial court lacked
jurisdiction to modify substantively the original order to
account for changed circumstances because "the manifest intent
of the original order was to allot [the wife] one-half of the
value of the . . . account on July 28, 1994." Id. at 257, 481
S.E.2d at 497.
In Caudle, a final decree of divorce entitled the wife to a
share of the husband's pension benefits once he started
receiving them. The trial court modified the final decree by
delaying the wife's share of such benefits by several years.
This Court reversed the trial court's modification because it
lacked authority to modify substantively the terms of the final
decree. See 18 Va. App. at 796, 447 S.E.2d at 248.
Because we conclude that the trial court could modify its
amended final decree pursuant to Code § 20-107.3(K)(4), we need
not address the argument that it lacked authority under Code
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§ 8.01-428(B) or that it erred in considering evidence of the
agreement incorporated into the amended final decree.
For the reasons stated, we affirm.
Affirmed.
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