Wilson v. Wilson

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

JOHN F. WILSON
OPINION BY
v. Record No. 1743-96-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 4, 1997
GEORGIA ANNE WILSON

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
John F. Wilson, pro se.

No brief or argument for appellee.

Husband, John F. Wilson, and wife, Georgia Anne Wilson, were

divorced by final decree entered in March 1991. Husband appeals

the trial court's decision to enter a Qualified Domestic

Relations Order (QDRO) amending the final decree of divorce. He

appeals a separate order requiring him to pay past due child

support and argues that he should be granted restitution for

amounts he overpaid. Husband further contends that the trial

court erred (1) in finding that it had jurisdiction to hear

wife's petition for an award of attorney's fees incurred on a

previous appeal to this Court; and (2) in requiring him to verify

to the court his income for the years 1992 through 1994. For the

reasons set forth below, we affirm in part and reverse in part.

I. ENTRY OF QDRO

The final decree of divorce entered in March 1991 provided,

in part:
[Husband] will pay thirty percent (30%) of
the marital share of his Federal Reserve
 pension each month if, as and when he begins
receiving the pension. Marital share is
defined as that portion of the total
interest, the right to which was earned
during the marriage and before the last
separation and is represented by the fraction
having a numerator of 16 (representing the
years during the marriage which [husband's]
service was credited toward his pension) and
a denominator (T), presently unascertained,
to reflect the total number of years to be
credited towards [husband's] retirement. The
complete formula is .30 x 16/T x pension.

After the divorce, husband resigned from the Federal Reserve.

The Qualified Domestic Relations Order (QDRO) outlined in the

final decree did not qualify as a QDRO under federal law and, as

such, did not effectuate the terms of the final decree with

respect to husband's pension. Accordingly, in December 1992, the

trial court entered an order which provided, in part:
[T]he pension benefits awarded to [wife] in
the Final Decree are her property in which
she has sole ownership rights and as such she
is entitled to designate beneficiaries.
[Husband] is ordered to agree to the
amendments to the Final Decree of Divorce
necessary to have it qualify as a valid
Qualified Domestic Relations Order (QDRO) in
accordance with the requirements of the
Federal Reserve and to promptly sign any
documents which are necessary to effect same.

Pursuant to that order, wife presented a proposed QDRO for

husband's signature at the December 1992 hearing.

Subsection e of the proposed QDRO defined wife's share of

husband's pension according to the formula set forth in the final

decree. By handwritten amendment, however, the terms of

subsection e were modified to provide that wife would receive

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"30% of any Federal Reserve pension as may be accrued from

employment at the Federal Reserve Board in any period following

December 1, 1992." The handwritten amendments were initialled by

husband, wife and wife's attorney. The amended version of the

QDRO was signed by both parties but was not dated, and it was not

entered by the court. Husband attached an objection to the

amended QDRO, complaining of certain provisions unrelated to this

appeal. No objection to the amendment of subsection e was

attached.
A "clean" copy of the amended QDRO was never entered. On

March 5, 1993, wife's counsel submitted the amended QDRO under

letter to the trial judge, requesting that the court enter it "in

the interest of having a complete record." Counsel stated that

if she was later able to achieve a "clean, signed copy," she

would forward it to the court. Husband responded by letter,

stating that he had intended to attach a statement of objections

to the amended QDRO and that the signatures on the draft were

"contingent on full implementation" of certain "adjustments" to

be made on the "clean" copy. Husband also submitted an affidavit

of his former counsel, which stated, in part, that wife's

attorney was supposed to have prepared a "clean" copy of the

amended QDRO to which husband would have attached objections

before signing and submitting the document to the court.

Meanwhile, husband appealed the trial court's December 1992 order

requiring him to effectuate a QDRO which would comply with

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federal law. In that appeal, husband argued, inter alia, that

the amended QDRO improperly provided wife an interest in his

future pension payments. Because the proposed QDRO was "not

signed and, thus, [was] not a part of the official record signed

by the court," this Court considered it a "nullity" and refused

to rule on husband's complaint. Wilson v. Wilson, 18 Va. App.

193, 198-99, 442 S.E.2d 694, 697 (1994). 1

In February 1996, wife petitioned the trial court to compel

husband to sign the amended QDRO. The record contains a

typewritten version of the QDRO, which incorporated the

handwritten amendments to subsection e described above. The

trial court signed that version in March 1996, noting, "this

typed order is a copy of another version with handwritten parts

and attached signatures." Neither party signed that version of

the QDRO.
The final, typewritten version of the QDRO from which this

appeal arises, also incorporated the contested language providing

that wife would receive "30% of any Federal Reserve pension as

may be accrued from employment at the Federal Reserve Board in

any period following December 1, 1992." That version was signed

by husband on February 29, 1996, and by husband's attorney the

following day.

At a June 1996 hearing for entry of the amended QDRO, the
1
This Court affirmed the procedural steps the trial court
ordered to satisfy the requirements for a valid QDRO under
federal law. Id. at 199-201, 442 S.E.2d at 697-99.

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parties and the court agreed that the court had no authority to

award wife a portion of husband's pension benefits accruing after

the parties' divorce. However, wife's counsel represented to the

court the parties' intention to modify the QDRO and argued that

husband agreed to the inclusion of the provision at issue.

Husband's counsel represented to the court his understanding that

husband had made no such agreement. He contended that he and

husband had signed the final version of the QDRO on February 29,

1996, because he mistakenly believed that this Court had

previously decided the issue.
The trial court took no evidence but found that the

provision at issue was "a product of an agreement which included

many interchangeable offers and acceptances." The court,

therefore, entered the final version of the QDRO the subject of

this appeal, on June 14, 1996. Husband noted his objection to

the language in subsection e which would effectuate a

distribution of separate property; he also objected to the

court's "interpretation of this as an agreement that cannot be

retracted." The jurisdiction of the court to enter orders

effectuating and enforcing its equitable distribution order

entered pursuant to Code § 20-107.3 is limited. Equitable

distribution orders become final within twenty-one days of entry.

See Rule 1:1; see also Fahey v. Fahey, 24 Va. App. 254, 256, 481

S.E.2d 496, 497 (1997). Thereafter, the court's power to modify

such orders is governed by statute. Under Code § 20-107.3(K)(4),

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an equitable distribution order "intended to affect or divide any

pension or retirement benefits pursuant to . . . federal laws

. . . [may be modified by subsequent order] 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." (Emphasis added).

See Fahey, 24 Va. App. at 257, 481 S.E.2d at 497. Guided by the

dictates of this statute, we find the trial court was without

authority to substantively modify its original order equitably

distributing husband's pension benefits, irrespective of any
2
agreement by the parties to the contrary. The jurisdiction of

the court cannot be established by consent. Rogers v. Damron, 23

Va. App. 708, 714, 479 S.E.2d 540, 541 (1997). We accordingly

reverse the entry of the amended QDRO on June 14, 1996, and

direct the trial court to decree distribution of the pension

benefits pursuant to its original decree and consistent with this

Court's decision in Wilson v. Wilson, 18 Va. App. 193, 198-201,

442 S.E.2d 694, 697-99 (1994).

II. CHILD SUPPORT

The trial court's December 1992 order required husband to

pay wife $950 per month for the support of the parties' minor

child. The order directed that payment begin in August 1992 and

"be payable directly to [wife] on the first of each month
2
Because we decide this issue on jurisdictional grounds, it
is unnecessary to decide whether the parties had reached
agreement to modify the order as wife contends.

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thereafter in accordance with Section 20-107.2." At the time of

the court's order, Code § 20-107.2 read, in part:
[U]pon decreeing a divorce . . . the court
may make such further decree as it shall deem
expedient concerning the custody and support
of the minor children of the parties . . . .
The court may also order that support be
paid for any child of the parties who is (i)
a full-time high school student, (ii) not
self-supporting and (iii) living in the home
of the parent seeking or receiving such child
support until such child reaches the age of
nineteen or graduates from high school,
whichever first occurs.

Husband stopped paying his child support obligation upon his

child's graduation from high school, approximately five months

before her eighteenth birthday. Wife petitioned the court to

order husband to pay support for the months prior to the child's

eighteenth birthday. Citing the fact that the child remained a

minor until her eighteenth birthday, the court found that

husband's duty to support continued until that time and ordered

husband to pay $5,100 in back child support.

Husband contends that his support obligation under the

December 1992 order is governed by former Code § 20-107.2 and

that the court's 1996 order was, in effect, an improper,

retroactive modification of the 1992 order. This argument

misconstrues the trial court's finding. The trial court

interpreted former Code § 20-107.2 and found husband's support

obligation did not terminate upon the child's graduation from

high school. In so finding, the court simply interpreted its

prior order; it did not retroactively modify it. The issue we

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address, therefore, is whether the court properly interpreted

former Code § 20-107.2. We find that it did.

Husband argues that former Code § 20-107.2 "very plainly

means that a support obligation terminates if a child graduates

from high school prior to reaching age nineteen." We agree, but

only if that child is then eighteen years of age.

The provisions at issue must be construed in context with

the statutory scheme providing for child support. Both parents

are legally required by statute to support and maintain their

minor children. Code §§ 20-61, 20-107.2, and 20-108.2;

Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 622, 376

S.E.2d 787, 791 (1989). Former Code § 20-107.2 (now codified at

§ 20-124.2), granted the trial court discretion to order support

for the minor children of the parties. In addition, under former

Code § 20-107.2, the court could grant support "for any child of

the parties who is (i) a full-time high school student, (ii) not

self-supporting and (iii) living in the home of the parent

seeking or receiving such child support until such child reaches

the age of nineteen or graduates from high school, whichever

first occurs." This latter provision extended the court's

authority to award support for minor children to allow it to

award support for eighteen-year-old children still in high
3
school, living at home, and not self-supporting. That provision
3
The present version of Code § 20-124.2(C) requires that
support shall continue to be paid for any such child over the age
of eighteen.

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did not terminate the authority of the court to award support for

minor children who had graduated from high school. Accordingly,

the trial court's order on this issue is affirmed.

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 III. RESTITUTION

Husband argues that this Court should grant him restitution

of the child support he paid pursuant to the trial court's order.

In light of our decision with respect to husband's continuing

child support obligation, this issue is moot, and, in any event,

the issue is without merit. Cf. Reid v. Reid, 245 Va. 409, 415,

429 S.E.2d 208, 211 (1993) (trial court has no statutory or

inherent authority to order restitution of spousal support paid

pursuant to erroneous order).
IV. FEES

Wife requested the trial court to award her attorney's fees

she incurred defending husband's former appeal to this Court. On

that appeal, we affirmed the trial court on all counts, and our

mandate directed that husband pay to wife "damages according to

law." We subsequently denied husband's petition for rehearing en

banc, and the Supreme Court denied husband's petition for appeal.

The record contains no specific remand, from either this Court

or the Supreme Court, with particularized instructions to the

trial court to award attorney's fees incurred on appeal.

Accordingly, the trial court's conclusion that it had

jurisdiction to do so is erroneous and must be reversed. See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 692-95, 479 S.E.2d 98,

99-100 (1996).

V. VERIFICATION OF INCOME

Wife raised three issues in her pleadings giving rise to the

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June 1996 hearing: (1) attorney's fees incurred defending

husband's prior appeal; (2) husband's failure to sign the QDRO;

and (3) husband's termination of child support payments upon the

child's graduation from high school. At that hearing, wife's

counsel represented to the court her belief that husband had

previously misrepresented to the court his income for the years

1992-1994. Counsel stated that she had issued a request for

production of documents, seeking husband's income tax returns,

but that husband had refused to comply. Counsel requested that

the court compel husband to verify his income for those years.
Husband's counsel complained that he was "surprised" by

wife's request, but the court granted it. The court stated,
To the extent that a party in litigation
isn't 100 . . . percent right, that's not a
problem. That's in the realm of human
variations, but to the extent that anybody
had, in large dramatic differences, misled
the process that we hope is a system of
justice, then the system ought to have an
alert review of that, and to the extent that
this Court was told something untrue, I want
to satisfy myself on that.

The court ordered husband to provide documentation of his income

directly to the court at the subsequent hearing on wife's request

for appellate attorney's fees. We hold that the trial court

erred.
Relief of any type will only be granted
when a party specifically requests the relief
in a pleading filed in the proper court. It
is firmly established that no court can base
its judgment or decree upon facts not alleged
or upon a right which has not been pleaded
and claimed. "Pleadings are as essential as
proof, and no relief should be granted that

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 does not substantially accord with the case
as made in the pleading." "The office of
pleadings is to give notice to the opposing
party of the nature and character of the
claim, without which the most rudimentary due
process safeguards would be denied."

Hur v. DCSE ex rel. Klopp, 13 Va. App. 54, 62, 409 S.E.2d 454,

459 (1991) (citations omitted); see also Boyd v. Boyd, 2 Va. App.

16, 18-19, 340 S.E.2d 578, 580 (1986); Ted Lansing Supply Co. v.

Royal Aluminum & Const. Corp., 221 Va. 1139, 1141, 277 S.E.2d

228, 229-30 (1981); Potts v. Mathieson Alkali Works, 165 Va. 196,

207, 181 S.E. 521, 525 (1935). In the absence of a pleading in

the record placing the issue of husband's income verification for

the years 1992 through 1994 before the court, the court's order

that husband produce documents to verify his income must be

reversed. See Hur, 13 Va. App. at 63, 409 S.E.2d at 459.
Affirmed in part,
reversed in part,
and remanded.

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Benton, J., concurring and dissenting.

I concur in Parts I, II, III, and V of the majority opinion.

With all due respect, however, I dissent from Part IV, in which

the majority holds that O'Loughlin v. O'Loughlin, 23 Va. App.

690, 479 S.E.2d 98 (1996), decided that a circuit court judge

lacked jurisdiction to award attorney's fees following an appeal.

Although O'Loughlin states that the question presented was

"whether, absent an order from the Court of Appeals specifically

remanding the issue of attorney's fees incurred on appeal, a

trial court has jurisdiction to award such fees," id. at 691, 479
S.E.2d at 98, I do not read the opinion to address the question

of the trial judge's jurisdiction to award fees. The opinion

merely holds "that a specific remand for attorney's fees is

required" before the trial judge may assess attorney's fees for

services rendered on appeal. Id.

O'Loughlin appears to be based on the following analysis:
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.

Id. at 695, 479 S.E.2d at 100 (footnote omitted). I disagree

with that conclusion and with what I believe to be the O'Loughlin

holding -- that the trial judge is divested of the right to

exercise discretion to award attorney's fees unless the mandate

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returned to the circuit court following an appeal specifically

remands the issue. I would hold that Code §§ 20-103, 20-79, and

20-99 provide independent authority for a circuit court judge to

award attorney's fees. That authority, specifically conferred by

the General Assembly, is not eliminated by a mandate from this

Court implementing an opinion that does not address attorney's

fees.

The context in which the fee request arose in this case is

not atypical. During the initial proceeding in the circuit

court, the trial judge awarded a divorce and other relief,

including attorney's fees, to the wife. The husband appealed to

this Court from the divorce decree and raised several issues. In

response to that appeal and as part of her request for relief,

the wife requested this Court to affirm the judgment and award

her attorney's fees for the appeal. Although this Court affirmed

the ruling of the trial judge in all aspects, this Court failed

to address the wife's request for attorney's fees for the

appellate services provided by her counsel. The husband then

filed a further appeal to the Supreme Court. The Supreme Court

dismissed the husband's petition for appeal and thereby affirmed

the ruling of the trial judge. However, the Supreme Court also

failed to act upon the wife's request for attorney's fees for the

appellate services of her counsel. As has been the usual

practice in the Commonwealth, the wife sought an award of

attorney's fees when the mandate was returned to the circuit

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court ending the husband's appeals. See, e.g., Bandas v. Bandas,

32 Va. Cir. 285 (1993) (Circuit Court of the City of Richmond);

Adams v. Adams, Chancery No. 90000011 (1994) (Circuit Court of

Augusta County). The trial judge awarded her attorney's fees for

the appellate services of her counsel.

Attorney's fees have long been considered a cost necessary

to enable a spouse or child to maintain a suit for support. See,

e.g., Carswell v. Masterson, 224 Va. 329, 331, 295 S.E.2d 899,

901 (1982); Ingram v. Ingram, 217 Va. 27, 29, 225 S.E.2d 362, 364
(1976); McKeel v. McKeel, 185 Va. 108, 116-17, 37 S.E.2d 746,

750-51 (1946); McClaugherty v. McClaugherty, 180 Va. 51, 69, 21

S.E.2d 761, 768 (1942); Heflin v. Heflin, 177 Va. 385, 399-400,

14 S.E.2d 317, 322 (1941). By statute, the legislature has

provided for attorney's fees as follows:
In suits for divorce . . . , the court having
jurisdiction of the matter may, at any time
pending a suit pursuant to this chapter, in
the discretion of such court, make any order
that may be proper (i) to compel a spouse to
pay any sums necessary for the maintenance
and support of the petitioning spouse,
including an order that the other spouse
provide health care coverage for the
petitioning spouse, unless it is shown that
such coverage cannot be obtained, (ii) to
enable such spouse to carry on the suit
. . . .

Code § 20-103(A) (emphasis added). This statute allows an award

of attorney's fees in the trial judge's discretion. See

Wilkerson v. Wilkerson, 214 Va. 395, 398, 200 S.E.2d 581, 584

(1973); Rowlee v. Rowlee, 211 Va. 689, 690, 179 S.E.2d 461, 462

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(1971).

In addition, Code § 20-79(b) provides as follows:
In any suit for divorce, the court in which
the suit is instituted or pending, when
either party to the proceedings so requests,
shall provide in its decree for the
maintenance, support, care or custody of the
child or children in accordance with Chapter
6.1 (§ 20-124.1 et. seq.), support and
maintenance for the spouse, if the same be
sought, and counsel fees and other costs, if
in the judgment of the court any or all of
the foregoing should be so decreed.

That statute also gives the circuit court judge discretionary

authority to award attorney's fees. See Stratton v. Stratton, 16

Va. App. 878, 884, 433 S.E.2d 920, 923 (1993); Alphin v. Alphin,

15 Va. App. 395, 406, 424 S.E.2d 572, 578 (1992).

Furthermore, "[c]osts may be awarded to either party as

equity and justice may require." Code § 20-99(5). This statute

likewise authorizes an award of attorney's fees, if necessary, as

the cost of enabling a spouse to carry on the suit. See D'Auria

v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986).

When the legislature enacted Code §§ 20-79, 20-99, and

20-103, it clearly intended to protect the ability of an eligible

spouse to obtain fees for that spouse's legal counsel. The need

for attorney's fees is just as compelling when a spouse has been

required to secure the services of counsel to defend on appeal a

judgment in that spouse's favor. To enable judges to respond

adequately to the needs of spouses, the legislature gave broad

discretion to judges to award attorney's fees and did not limit

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in a strict manner the time in which attorney's fees could be

awarded. The only statutory requirement is that the suit must be

pending. Indeed, one of the statutory provisions allows the

trial judge discretion to award attorney's fees and costs "at any

time" in a pending suit for divorce. Code § 20-103. O'Loughlin

does not hold that the divorce suit is not pending when the

mandate has issued and is before the circuit court on remand. It

also does not address the authority of the circuit court judge to

award attorney's fees pursuant to Code § 20-103 while the suit is

still pending on remand.
Generally, when a trial judge has discretion to award

attorney's fees, that discretion may be invoked after an appeal

has resolved the merits of the case. See White v. New Hampshire

Dep't of Employment Sec., 455 U.S. 445 (1982). A request for

attorney's fees and costs has traditionally been deemed to be

collateral to the judgment because the request seeks a benefit as

a consequence of the judgment. See id. at 451-52; see also
Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168-69 (1939).

Thus, a trial judge's award of attorney's fees under Code

§ 20-103 for services rendered on appeal is collateral to the

remand order contained in the mandate. Accord Wheeler v.

Wheeler, 636 A.2d 888, 890 (Del. 1993) (holding that trial

judge's statutory power "to award attorney's fees following an

appeal is not dependent upon a remand . . . for that purpose");

Dahnke v. Dahnke, 571 N.E.2d 1278, 1282 (Ind. Ct. App. 1991)

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(holding that appellate attorney's fees were incurred during the

divorce proceedings and were awardable by the trial judge). As

long as the remand order is still pending, Code § 20-103(A) is

statutory authority, independent of the mandate, that empowers

the judge to award attorney's fees. Accord Tolman v. Tolman, 461

P.2d 433, 435 (Idaho 1969) (stating that a trial judge's

statutory authority to award attorney's fees in a pending divorce

action is "unaffected by the fact that the mandate . . . did not

mention attorney fees"). Thus, I would hold that, in a case such

as this, where the trial judge otherwise has authority to award

attorney's fees and costs, the trial judge may properly consider

a timely motion to award attorney's fees for services rendered on

appeal even though the appellate court has not ruled upon the fee

request and has not addressed the issue in its remand order. See

Code § 20-103.

Contrary to O'Loughlin, I do not believe that "the appellate

court . . . [is] the [only] proper forum to determine the

propriety of an award of attorney's fees for efforts expended on

appeal." 23 Va. App. at 695, 479 S.E.2d at 100. Indeed,

Virginia authority suggests that the trial judge is initially in

the best position to assess both the entitlement and quantum of

attorney's fees, leaving to the appellate court a review of that

decision. Although the Supreme Court in Craig v. Craig, 115 Va.

764, 80 S.E. 507 (1914), remanded to the circuit court judge the

issue of attorney's fees, the Court did not hold that the

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appellee was entitled to attorney's fees. The Court ruled as

follows:
Counsel for appellee have asked that an
allowance for counsel fees be made for
services rendered in this court. This we
decline to do, being of opinion that the
trial court is in a better position to
inquire into and do what is right and just
between the parties in the first instance
than this Court. We shall, therefore, affirm
the decree and remand the cause, but with
leave to counsel for appellee to prosecute
their claim for compensation before the law
and equity court in the first instance, with
the right of appeal to this court if a proper
case shall be made for its exercise.

Id. at 765, 80 S.E. at 507 (emphasis added). Thus, the Supreme

Court recognized that both the issues of entitlement and quantum

of fees were matters that could properly be addressed initially

by the trial judge. See id.; accord Knighton v. Watkins, 616

F.2d 795, 801 (5th Cir. 1980); White v. White, 683 So. 2d 510,

512 (Fla. Dist. Ct. App. 1996) (stating that because the

appellate court has "no way of knowing how great is the need

. . . , nor how great is the ability to pay," the propriety and

amount of an award of attorney's fees usually should first be

"addressed by the trial court"), aff'd, 695 So. 2d 381
(Fla. Dist. Ct. App. 1997) (en banc). Indeed, the trial judge is

better positioned to assess the financial needs of the parties

and consider evidence germane to the reasonableness of the fee

request.

The practical effect of the rule pronounced in O'Loughlin is

to require this Court to superintend attorney's fees requests in

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domestic relations appeals. After O'Loughlin, to preserve a

claim for attorney's fees expended on appeal, counsel must

present the issue of attorney's fees as a question presented on

appeal either in the appellant's opening brief or in appellee's

cross-appeal. This Court might possibly consider a timely

separate motion bringing the issue to the attention of this

Court. Less certain is a mechanism for presenting the issue

before the Supreme Court at the petition stage. Moreover, as

this case demonstrates, if the appellate courts fail to rule on

the issue, counsel must request a rehearing to raise anew the

entitlement to attorney's fees and request a ruling. I believe

the statutes make that effort unnecessary.
Because I believe that the statutes clearly authorize the

trial judge to consider a timely motion for appellate attorney's

fees when the mandate is pending on remand, I would affirm the

judgment for attorney's fees. Therefore, I dissent from Part IV.

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