COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
DANIEL JOSEPH BULLIS
OPINION BY
v. Record No. 2265-94-4 JUDGE JAMES W. BENTON, JR.
MARCH 12, 1996
REGINA BULLIS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard J. Jamborsky, Judge
Edward A. Shackelford for appellant.
Gwendolyn Jo M. Carlberg for appellee.
This appeal arises from a circuit court judgment entered in
an action brought pursuant to the Uniform Enforcement of Foreign
Judgments Act. Code §§ 8.01-465.1 to 8.01-465.5. The appellant,
Daniel Joseph Bullis, contends that the trial judge erred in
converting to a Virginia judgment an Arizona judgment that
awarded his former wife, Regina Bullis, a portion of his military
retirement pay. For the reasons that follow, we affirm the
circuit court's judgment.
I.
The appellee, a resident of Arizona, commenced this action
in 1994 in the Circuit Court of Fairfax County, Virginia, against
appellant, a resident of Virginia, to obtain a Virginia judgment
based upon a judgment she obtained in the Superior Court for the
County of Maricopa in the State of Arizona. See Aetna Casualty &
Surety Co. v. Whaley, 173 Va. 11, 3 S.E.2d 395 (1939). In her
"Petition for Judgment," appellee alleged jurisdiction "pursuant
to the Uniform Enforcement of Foreign Judgments Act,
§ 8.01-465.1, et seq., of the . . . Code of Virginia," pursuant
to "§ 8.01-466, et seq., of the . . . Code of Virginia," and
pursuant to "the Uniform Services Former Spouse's Protection Act
(USFSPA), 10 U.S.C. [§] 1401 et seq."
Appellee also alleged that the parties were divorced July 6,
1982, in Arizona and that the divorce decree equitably divided
all their community, joint, and common property. She further
alleged that on September 24, 1992, a court of record in Arizona
entered an order that modified the 1982 divorce decree pursuant
to the USFSPA and awarded her "one half of the community interest
in the disposable military retirement pay of the [appellant]."
Appellee alleged that appellant resided in Fairfax County, was
retired from active duty with the United States Army, and was
receiving military retirement benefits.
Appellant filed a demurrer in which he alleged that relief
was not available under 10 U.S.C. § 1408(a)(4) because he retired
from the military under Chapter 61 disability and that appellee
had been denied payment when she forwarded her claim to the
Defense Finance and Accounting Service. When a judge overruled
the demurrer, appellant filed an answer generally denying the
allegations in the petition.
II.
The parties agree upon the essential facts. The appellant
joined the United States Army in December 1961 and married
appellee in November 1964. They were divorced in Arizona by a
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final decree entered July 6, 1982. The decree equitably divided
between them all community, joint, and common property without
any reference to retirement pay.
On September 24, 1992, an Arizona superior court granted
appellee's petition to modify the final divorce decree and
awarded appellee "one-half of the community interest in the
disposable military retirement pay of . . . Daniel Joseph Bullis,
upon his retirement." The order also stated the following:
The community interest is to be determined by
the fraction whereby the numerator is the
number of months that [Daniel Joseph Bullis]
was in the service during the marriage of the
parties, or 212 months, over the denominator,
which will be the total number of months that
[he] has been and will remain in the Armed
Services until retirement.
The order further stated that "[appellant was] neither . . .
present [nor] represented by counsel, although counsel for . . .
[appellant had] been previously notified of this hearing;" that
federal legislation enacted after McCarty v. McCarty, 453 U.S.
210 (1981), entitled appellee to file a claim for a portion of
appellant's disposable military retirement payments; that the
court observed and complied with the Soldiers and Sailors Civil
Relief Act of 1940; and that the court had jurisdiction under
Arizona law to modify the final decree and order a division of
the retirement payments. Appellant did not appeal from the
Arizona order modifying the final divorce decree.
The trial judge found the Arizona judgment to be valid and
entered a Virginia judgment awarding appellee "a sum equal to
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one-half . . . of the disposable interest of [appellant's]
nondisability, nonexempt military retired pay on a monthly basis
pursuant to the percentage formula under the amended law of 1986
of 10 U.S.C. [§] 1408, Uniformed Services Former Spouses
Protection Act." Based upon a finding that appellant retired
from the military in March 1993 with a permanent disability
rating of 60% and received $596.85 per month "nondisability,
nonexempt, disposable portion of retired pay," the trial judge
entered judgment awarding appellee $294.43 monthly and $4,774.80
in arrearages, computed from the date of appellant's retirement.
The trial judge retained jurisdiction "pending [appellee's]
first receipt of payment for her portion in monthly retired pay,
the sum certain amount to be determined by the Defense Finance
and Accounting Service in Indianapolis, Indiana according to the
formula established by the Arizona court." In addition, the
trial judge retained jurisdiction "to reflect any increase in the
cost of living adjustment (COLA) which [appellant] may have
received pending first payment to [appellee]" and ordered other
relief. This judgment order is the subject of this appeal.
III.
Appellant has not addressed in his brief the statute that
confers jurisdiction in this Court to entertain his appeal.
Appellee does not contest jurisdiction. We are required,
however, to ascertain our jurisdiction before proceeding. West
v. Commonwealth, 18 Va. App. 456, 445 S.E.2d 159 (1994), appeal
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dismissed, 249 Va. 241, 455 S.E.2d 1 (1995); In re O'Neil, 18 Va.
App. 674, 446 S.E.2d 475 (1994). In Virginia, "[t]he general
appellate jurisdiction . . . is in the Supreme Court and not in
the Court of Appeals." West, 18 Va. App. at 458, 445 S.E.2d at
160. This Court's appellate jurisdiction in civil cases "is
limited to the subject matter set forth in Code §§ 17-116.05 and
17-116.05:1." West, 18 Va. App. at 457, 445 S.E.2d at 159. In
pertinent part, Code § 17-116.05 provides as follows:
Any aggrieved party may appeal to the Court
of Appeals from:
* * * * * * *
3. Any final judgment, order, or decree of
a circuit court involving:
a. Affirmance or annulment of a
marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;
e. The control or disposition of a
child;
f. Any other domestic relations matter
arising under Title 16.1 or Title 20;
or
g. Adoption under Chapter 11 (§ 63.1-220
et seq.) of Title 63.1;
4. Any interlocutory decree or order
entered in any of the cases listed in
this section (i) granting, dissolving,
or denying an injunction or (ii)
adjudicating the principles of a cause.
In Carlton v. Paxton, 14 Va. App. 105, 415 S.E.2d 600,
aff'd, 15 Va. App. 265, 422 S.E.2d 423 (1992) (en banc), the
appellant appealed to this Court from a chancery court proceeding
that was instituted as an independent action pursuant to Code
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§ 8.01-428 to set aside an order of adoption. The trial judge
had refused to set aside a final decree of adoption after the
evidence proved the child's father had not received notice.
Relying upon the literal language in Code § 17-116.05(3)(g), this
Court ruled by order that jurisdiction did not lie because "the
appeal is not from a final decree involving adoption."
(Unpublished order, May 1, 1991). When the appeal was
transferred to the Supreme Court, that Court ruled by order that
a decree refusing to vacate or set aside an order of adoption is
a final decree involving adoption. See Carlton v. Paxton, Record
No. 910689 (May 15, 1991). Applying that ruling, this Court held
in a later case that an appeal from a final order entered in an
independent action brought pursuant to Code § 8.01-428 to set
aside a decree for fraud was appealable to this Court. Khanna v.
Khanna, 18 Va. App. 356, 357 n.1, 443 S.E.2d 924, 925 n.1 (1994).
The Court reasoned that the underlying cause was an annulment
and, therefore, jurisdiction was proper under Code
§ 17-116.05(3)(a). Id.
The rulings in Carlton and Khanna suggest that jurisdiction
over this appeal lies in this Court. Although this action was
instituted in the circuit court for the purpose of domesticating
and enforcing a judgment of another state, the subject matter of
the underlying issue involved a domestic relations matter. As in
Khanna, we conclude that jurisdiction over an appeal from a final
judgment must be based upon an assessment of the underlying
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cause. See 18 Va. App. at 357 n.1, 443 S.E.2d at 925 n.1.
Because the underlying cause in this case is a decree involving a
divorce, we hold that this Court has jurisdiction to review the
final judgment.
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IV.
Appellant raises the following issues on this appeal:
1. Whether the Court erred in determining
that there was any military retired pay which
fell within the definition of "disposable"
under 10 U.S.C. [§] 1408 when the parties
were divorced on July 6, 1982 and Appellant
was later retired under Chapter 61, 10 U.S.C.
for disability.
2. Whether the Court erred in determining
that the November 16, 1986 amendment to 10
U.S.C. [§] 1408 was controlling, rather than
the original September 8, 1992 Act
(retroactive to June 25, 1981) which was the
controlling statute fixing the definition of
"disposable retired pay" at the time of the
divorce order.
3. Whether the Court erred in awarding the
appellee a sum equal to one-half (1/2) of the
disposable amount of the husband's military
retired pay in disregard of Code of Virginia,
1950, as amended, § 20-107.3(G)(1).
4. Whether the Court erred in awarding an
amount certain in monthly entitlement and
arrearages, without hearing evidence and
applying all applicable law.
5. Whether the Court erred in awarding
counsel fees to the Wife.
6. Whether the Court erred in issuing an
order with internal inconsistencies as to the
determination of entitlements and arrearages.
Although none of these issues expressly challenge the
validity of the Arizona judgment, the Arizona judgment is the
basis upon which the trial judge entered the judgment. "The
United States Constitution, as well as federal and state
statutes, requires the courts of this state to give full faith
and credit to a judgment rendered in another state, provided the
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foreign court had jurisdiction over the parties and the subject
matter." Hupp v. Hupp, 239 Va. 494, 499, 391 S.E.2d 329, 332
(1990).
Citing Fauntleroy v. Lum, 210 U.S. 230, 237 (1908), the
Supreme Court has further held as follows:
The effect of the Full Faith and Credit
Clause was to render the foreign judgment
immune from reexamination for error in the
domestic court. Therefore, even if the
[state] court [whose judgment is being
enforced] had erred with respect to the
enforceability of the underlying transaction
(by misperceiving the law of [another
jurisdiction]) the remedy for that error was
direct appeal, not collateral attack in the
courts of a sister state.
Coghill v. Boardwalk Regency Corp., 240 Va. 230, 233, 396 S.E.2d
838, 839 (1990). Neither the trial court nor this Court has the
power to correct any alleged mistakes in the Arizona court's
application of the law when rendering its judgment. Thus, to the
extent appellant collaterally attacks the Arizona court's alleged
misapplication of the law, this Court cannot reexamine the
Arizona ruling.
V.
To clarify the parties' disagreement, we briefly address the
history concerning a state's ability in divorce decrees to divide
military retirement benefits as property. In 1981, the United
States Supreme Court held in McCarty v. McCarty, 453 U.S. 210,
223 (1981), that federal law precludes state courts from dividing
military retirement benefits pursuant to state community property
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laws. Congress responded to McCarty by enacting the USFSPA,
which enabled state courts to treat "disposable retired or
retainer pay . . . either as property solely of the member or as
property of the member and his spouse in accordance with the law
of the jurisdiction of such court." Pub. L. No. 97-252, 96 Stat.
730, 731 (1982) (codified as amended at 10 U.S.C. § 1408(c)(1)
(1994)). The USFSPA was effective on February 1, 1983, and
applied to disposable retired pay payable after June 25, 1981,
the day of the McCarty decision, and to court orders entered
after that date. Pub. L. No. 97-252, 96 Stat. 730, 737, § 1006
(1982); see also Mansell v. Mansell, 490 U.S. 581, 588 n.7
(1989).
When first enacted, the USFSPA excluded all Chapter 61
disability benefits, see 10 U.S.C. § 1201, from the definition of
"disposable" retired pay, effectively sheltering all Chapter 61
disability benefits from distribution to military spouses in
divorce actions. 10 U.S.C. § 1408(a)(4). Thus, if a service
member retired under Chapter 61 with a disability rating, all of
that member's pay was excluded from the definition of disposable
retired pay. However, on November 14, 1986, Congress amended the
USFSPA to exempt only the portion of a member's retired pay
attributable to the member's disability. Pub. L. No. 99-661, 100
Stat. 3887, § 644(a)(1) (1986) (codified as amended at 10 U.S.C.
§ 1408 (a)(4)(C) (1994)). The 1986 amendment further stated that
the amendment "shall apply with respect to court orders issued
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after the date of the enactment of this Act." Id. at § 644(b).
With that backdrop, the Superior Court for the County of
Maricopa, Arizona, entered an order on September 24, 1992,
modifying the parties' final decree of divorce as follows:
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED:
The Decree of Dissolution of Marriage
entered in this cause on July 6, 1982 is
hereby modified to award to Petitioner,
Regina Bullis, her one-half of the community
interest in the disposable military
retirement pay of the Respondent, Daniel
Joseph Bullis, upon his retirement. The
community interest is to be determined by the
fraction whereby the numerator is the number
of months that Respondent was in the service
during the marriage of the parties, or 212
months, over the denominator, which will be
the total number of months that Respondent
has been and will remain in the Armed
Services until retirement.
Appellant does not contend that the Arizona court lacked
personal or subject matter jurisdiction to enter the order.
Furthermore, we note that the Arizona Supreme Court has held that
Arizona Revised Statutes § 25-327(A) and Rule 60 of the Arizona
Rules of Civil Procedure grant Arizona trial courts the power to
reopen final divorce decrees entered after McCarty, and before
enactment of USFSPA. Under this ruling, former spouses may claim
a community interest in the disposable military retirement pay of
the military member. See Edsall v. Superior Court, 693 P.2d 895,
897-901 (Ariz. 1984). Thus, to the extent that appellant's first
two issues challenge the validity of the Arizona judgment, we
conclude the trial judge did not err in ruling that the Arizona
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judgment modifying the parties' final divorce decree was valid
under Arizona law. The record also supports the trial judge's
finding that neither party appealed the Arizona judgment. Thus,
the trial judge did not err in beginning his analysis by giving
full faith and credit to the Arizona judgment.
VI.
Appellant first contends that the trial judge erred in
determining that his Chapter 61 disability retired pay is
"disposable" retired pay within the meaning of 10 U.S.C. § 1408.
He argues the applicable law is the original USFSPA, not the
USFSPA as amended in 1986. This issue arises because the 1992
Arizona decree did not address whether the original or amended
USFSPA controlled the definition of "disposable retired pay."
The parties' final divorce decree was entered on July 6,
1982, after the McCarty decision but before the enactment of the
USFSPA. Obviously, appellant cannot claim the McCarty ban
protects him from having his retired pay considered as property
subject to division in a state court divorce proceeding. When
Congress enacted the USFSPA, "Congress sought to change the legal
landscape created by the McCarty decision." Mansell, 490 U.S. at
587-88. Moreover, Congress chose June 25, 1981, the day before
the McCarty decision, as the applicable date for restoring
partial state authority over military retirement benefits. Id.
at 588 n.7. By express provision, Congress included within the
coverage of USFSPA divorce decrees such as the parties' decree,
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entered after McCarty and modified under the law of the state
granting the divorce. Thus, the only issue before the trial
judge was whether the term "disposable retired pay" was governed
by the original USFSPA or the 1986 amended USFSPA, now in effect.
The original text of the USFSPA defined "disposable retired
or retainer pay" as follows:
"Disposable retired or retainer pay" means
the total monthly retired or retainer pay to
which a member is entitled (other than the
retired pay of a member retired for
disability under Chapter 61 of this title)
less amounts which . . . .
10 U.S.C. § 1408(a)(4) (emphases added). According to the plain
language of the statute, Chapter 61 military pensions are
sheltered in their entirety from division at divorce. See also
Mansell, 490 U.S. at 589. If, for example, a service member
retired under Chapter 61 with a disability rating of 60%, all of
that member's pay fell outside the definition of "disposable" pay
and could not be apportioned by a state court order.
Congress removed the total exclusion on Chapter 61 retired
pay when it amended the USFSPA's definition of "disposable
retired pay" effective November 14, 1986, by Public Law 99-661.
Section 644(a) of the revised USFSPA changed subsection (a)(4) of
the original Act and inserted in lieu thereof the following
language:
(4) The term "disposable retired pay" means
the total monthly retired pay to which a
member is entitled less amounts which . . . .
(C) in the case of a member entitled
to retired pay under Chapter 61 of
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this title, are equal to the amount
of retired pay of the member under
that chapter computed using the
percentage of the member's disability
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on the date when the member was
retired. . . .
10 U.S.C. § 1408(a)(4)(C) (emphases added).
The amended version of the USFSPA therefore exempts only
that portion of Chapter 61 benefits which corresponds to the
retiree's disability percentage rating at the time of retirement.
If, for example, a service member retires with 60% disability
under Chapter 61, then 60% of the member's retirement benefits
are excluded from the definition of "disposable retired pay."
The remaining 40% of the member's benefits may be judicially
apportioned under state community property laws.
In addition to the revised definition of "disposable retired
pay," § 644(b) of the 1986 amended USFSPA contains the following
clause:
EFFECTIVE DATE. -- The amendments made by
subsection (a) shall apply with respect to
court orders issued after the date of the
enactment of this Act [November 14, 1986].
Currently, 32 C.F.R. 63.6(e)(2) states that "[f]or court orders
issued on or before November 14, 1986 (or amendments thereto)
disposable retired [pay] does not include retired pay of a member
retired for disability under 10 U.S.C. Chapter 61."
To support his argument that none of his retired pay is
"disposable" within the meaning of the USFSPA, appellant relies
on Wallace v. Fuller, 832 S.W.2d 714 (Tex. Ct. App. 1992). In
Wallace, the service member and his wife were divorced in 1966.
The divorce decree contained no reference to retirement benefits.
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Id. at 715. The service member retired in 1973 with a Chapter
61 disability rating of 60%. Id. at 718. The trial judge
modified the divorce decree on October 9, 1986, and awarded the
service member's former wife a portion of his Chapter 61
benefits. Id. at 715-16. The Texas Court of Appeals reversed
the judgment, holding that the original USFSPA, then in effect,
did not treat Chapter 61 disability pay as disposable income.
Id. at 718.
Wallace provides little guidance in deciding this case
because all the significant events in Wallace -- i.e., the
divorce, retirement from the military, and the modified order --
occurred before November 14, 1986, the effective date of the
amended Act. In the case before us, the initial Arizona divorce
decree was entered in 1982. However, the Arizona court modified
the final order on September 24, 1992, after the effective date
of the amended USFSPA. Likewise, appellant retired in 1993,
after the effective date of the amended Act.
When Congress amended the USFSPA in 1986 to revise the
definition of "disposable retired pay," the amended Act stated in
plain terms that the amendment made to the USFSPA "shall apply
with respect to court orders issued after the date of the
enactment of this Act." Pub. L. No. 99-661, 100 Stat. 3887,
§ 644(b) (1986) (emphasis added). Furthermore, the amended Act
provides that "[t]he term 'court order' means a final decree of
divorce . . . (including a final decree modifying the terms of a
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previously issued decree of divorce . . . .)." 10 U.S.C. § 1408
(a)(2) (emphasis added). Thus, the 1992 Arizona order, which is
an order modifying the 1982 final decree, is a court order within
the USFSPA's definition of "court order." Furthermore, that
order was issued after November 14, 1986, the effective date of
the amended Act.
Appellant contends, however, that Carmody v. Secretary of
the Navy, 886 F.2d 678 (4th Cir. 1989), contains a definition of
"court order" under the USFSPA that supports his position. In
Carmody, the original California divorce decree, entered on
October 1, 1965, was also silent as to the division of the
military pension. Id. at 679. The decree was modified on
September 9, 1986, to award the member's former wife 29% of his
military retirement benefits. Id. On the wife's appeal from the
trial judge's ruling that she was not entitled to avail herself
of the direct payment provision of USFSPA, the Fourth Circuit
affirmed the judgment and ruled that the California order
modified a divorce decree which predated the McCarty decision of
June 26, 1981. Id. at 680. Nothing in the Court's recitation of
the definition of "court order" supports appellant's contention
in this case. See id. at 681.
Alternatively, appellant argues that the 1992 Arizona
modification order retroactively applies the amended USFSPA and
impairs his substantive or vested rights. We disagree. The
amended USFSPA plainly states that the Act will not be given
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retroactive effect, but shall apply to "court orders" issued
after the effective date of enactment. We agree with appellee
that the 1992 modification order is a "court order" as defined by
the Act because it is "a final decree modifying the terms of a
previously issued decree of divorce." 10 U.S.C. § 1408(a)(2).
The modification order does not retroactively apply the Act.
Moreover, even if appellant's vested rights argument had
merit, appellant cannot now challenge in a Virginia court the
effect of the 1992 Arizona order. That ruling, directing a
division of his military retirement benefits, was made by an
Arizona court applying Arizona and federal laws. Appellant could
have raised his vested rights arguments on appeal in the Arizona
courts and is precluded from collaterally attacking this non-
jurisdictional issue. See Liberty Mut. Ins. Co. v. Eades, 248
Va. 285, 288, 448 S.E.2d 631, 633 (1994); Coghill, 240 Va. at
233, 396 S.E.2d at 839. Because the 1992 Arizona judgment is a
"court order" under the USFSPA, the trial judge did not err in
applying the amended Act and ruling that appellee is entitled to
receive "one-half of the community interest in appellant's
disposable military retirement pay" under the USFSPA in effect in
1992.
VII.
Appellant also contends the trial judge erred in awarding
appellee one-half of the entire disposable amount of his military
retired pay. He contends that appellee was only entitled to
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one-half of the "marital share," the designation provided in
Virginia law. See Code § 20-107.3(G)(1). Appellant's reliance
on Virginia law is misplaced. Under the Uniform Enforcement of
Foreign Judgments Act, Code § 8.01-465.1 et seq., the trial judge
correctly ruled that the "community interest" is determined by
Arizona law. "We have only the foreign judgment before us, not
the underlying transaction on which it was based." Coghill, 240
Va. at 235, 396 S.E.2d at 840.
We note, however, that the judgment order of the Circuit
Court of Fairfax County is internally inconsistent. The initial
two paragraphs of the order and paragraphs numbered 2, 3, 7, and
12 correctly recite that the Arizona court awarded the appellee
"one-half (1/2) of the community property interest in the
disposable military retired pay." Other paragraphs of the order
are inconsistent with these recitations and the Arizona judgment.
For example, numbered paragraph 5 refers to "one-half (1/2) of
the disposable interest of . . . military retired pay," and
numbered paragraph 11 refers to "marital share."
Appellee agrees that "[t]he duty of the Virginia trial court
. . . was to give the Arizona order full faith and credit."
Because the circuit court is only enforcing the Arizona judgment,
the judgment order must apply the community property interest
formula specified in the Arizona order. The provisions in the
circuit court's order that are inconsistent with the Arizona
order are obvious drafting errors that must be corrected on
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remand. In particular, we note that the calculations contained
in numbered paragraph 6 are also based on the drafting error and
must be corrected.
VIII.
Appellant also contends the trial judge erred in (1)
ordering monthly and arrearage amounts without regard to income
tax law changes and without hearing any evidence or applying
applicable law, (2) awarding a definite monthly amount, in
addition to stating that the Defense Finance and Accounting
Service would set "the sum certain," and (3) awarding appellee
her attorney's fees. Appellant failed to object to these issues
in the trial court below and is barred from raising them on
appeal. Rule 5A:18.
For these reasons, the judgment is affirmed and remanded for
correction of the drafting errors referred to in Part VII of this
opinion.
Affirmed and remanded.
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