COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Senior Judge Overton
RUTH P. HOY, N/K/A
RUTH E. PEARCE
OPINION
v. Record No. 1447-98-1 PER CURIAM
FEBRUARY 2, 1999
FRANKLIN W. HOY, JR.
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
(Richard W. Hudgins, on brief), for
appellant.
(Vicki Beard, on brief), for appellee.
Ruth E. Pearce (Pearce) appeals the decision of the circuit
court denying her motion to reinstate and for entry of a proposed
qualified domestic relations order ("QDRO") awarding her $84,000
from the retirement plan of Franklin W. Hoy, Jr. (Hoy). Pearce
contends that, because the judgment was for unpaid spousal
support, she was entitled under the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C §§ 1001 et seq., to seek
a QDRO allowing her to recover her judgment from Hoy's pension
plan. Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule
5A:27.
Under the provisions of ERISA, "benefits provided under the
plan may not be assigned or alienated." 29 U.S.C. § 1056(d)(1).
Certain limited exceptions are carved to the anti-alienation
provisions for a "qualified domestic relations order." See 29
U.S.C. § 1056(d)(3)(A). Among the requirements for a QDRO are
that the order be
(ii) . . . any judgment, decree, or order
(including approval of a property settlement
agreement) which--
(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).
The parties were divorced in 1973, prior to the adoption of
Code § 20-107.3. In the final decree of divorce, Pearce was
awarded $600 in monthly spousal support. Pearce was not awarded
any interest in Hoy's retirement plan, which the record indicates
did not exist at the time of the divorce. In 1985, Pearce
received a judgment in the amount of $84,000 for spousal support
arrearages. In 1997, Pearce filed a motion seeking to reinstate
the matter for entry of a QDRO allowing garnishment of Hoy's
pension plan as a source for payment of the spousal support
arrearages judgment.
Pearce's motion for entry of a QDRO to allow her to have an
interest in Hoy's pension is an attempt to reopen and modify the
court's final decree of divorce. That is not allowed under
Virginia law. See, e.g., Wilson v. Wilson, 25 Va. App. 752, 757,
492 S.E.2d 495, 497 (1997). Rule 1:1 prohibits modification of
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"all final judgments, orders, and decrees" twenty-one days after
the date of entry. Code § 20-107.3(K)(4) grants the court
continuing jurisdiction to make "any additional orders necessary
to effectuate and enforce any order entered pursuant to this
section," and allows courts to
[m]odify any order entered in a case filed on
or after July 1, 1982, intended to affect or
divide any pension, profit-sharing or
deferred compensation plan . . . 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). However, the parties' final decree of
divorce was entered prior to the effective date of Code
§ 20-107.3(K). By its express terms, the section does not apply
to orders entered prior to July 1, 1982.
Moreover, "Code § 20-107.3(K)(4) does not empower trial
courts to make substantive modifications . . . in the final
divorce decree . . . ." Caudle v. Caudle, 18 Va. App. 795, 796,
447 S.E.2d 247, 248-49 (1994). 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." Id. at 798, 447 S.E.2d at 249. See also Fahey v.
Fahey, 24 Va. App. 254, 256-57, 481 S.E.2d 496, 497 (1997) (en
banc). "[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
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legislature in enacting this code section." Newsome v. Newsome,
18 Va. App. 22, 26, 441 S.E.2d 346, 348 (1994) (citation
omitted).
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. The cases
appellant cites arise from other jurisdictions and have limited
persuasive authority in interpreting Virginia statutory law.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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