Sabine Scholer Savedge v. Gilliam E. Barbour ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Powell and Senior Judge Clements
SABINE SCHOLER SAVEDGE
MEMORANDUM OPINION *
v. Record No. 2713-09-1 PER CURIAM
JUNE 29, 2010
GILLIAM E. BARBOUR
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
(Walter N. Thorp, on briefs), for appellant.
(John Ward Bane, on brief), for appellee.
Sabine Scholer Savedge appeals the trial court’s ruling denying her request for equitable
distribution of Gilliam E. Barbour’s military retirement. Savedge lists the following questions
presented: (1) whether the language in the parties’ separation agreement constitutes a specific
waiver of Savedge’s interest in Barbour’s military retirement payments; (2) whether it was possible
for Savedge to waive her rights to Barbour’s military retirement in the 1982 divorce decree when
military retirement was not made a divisible marital asset until the enactment of Uniform Services
Former Spouses Protection Act (USFSPA) and, therefore, could not have been contemplated at the
time; (3) whether the trial court erred in interpreting that the language of the parties’ separation
agreement, specifically paragraphs 9, 11, and 12, constituted a “full and final accounting of all
claims, rights, or other interests existent in 1982, or for potential thereafter”; and (4) whether the
facts and order of this case are governed by Himes v. Himes, 12 Va. App. 966, 407 S.E.2d 694(1991), or whether a more specific and express waiver like that found required in Nicholson v.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Nicholson, 21 Va. App. 231, 463 S.E.2d 334 (1995), should set forth the appropriate standard of
review. 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. 1 See Rule
5A:27.
BACKGROUND
The parties married on July 13, 1961, separated on December 1, 1979, and divorced on
January 4, 1982. While married, Barbour served in the military for seventeen years and nine
months.
On December 18, 1979, the parties signed a separation agreement. At that time, military
retirement benefits were not subject to equitable distribution. See McCarty v. McCarty, 453 U.S.
210, 226-27 (1981) (military pensions were considered a “personal entitlement” and not subject
to distribution). The Virginia General Assembly enacted Code § 20-107.3 on July 1, 1982. In
1983, Congress enacted the USFSPA, which allowed individual states to classify military
retirement as marital or separate property. The USFSPA was retroactive to June 25, 1981, the
day before the McCarty decision.
The parties’ separation agreement included a waiver of spousal support and a “release
and discharge of all interest or dower and any and all other claims which [Savedge] has or might
have for alimony and for support and maintenance or otherwise.” Furthermore, the separation
agreement included a paragraph waiving their interest or right to the other’s property. The
separation agreement was incorporated into the final decree of divorce.
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Barbour also asserts that laches and the statute of limitations prevent Savedge from
claiming any interest in his military retirement. Since we are summarily affirming the trial
court’s decision, we will not address Barbour’s arguments regarding laches and the statute of
limitations.
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In 2009, Savedge filed a motion with the trial court seeking equitable distribution of
Barbour’s military retirement. The trial court heard the parties’ arguments on June 18, 2009 and
issued a letter opinion on July 28, 2009. The trial court denied Savedge’s request and entered an
order reflecting the ruling on December 2, 2009. Savedge timely noted her appeal.
ANALYSIS
Issue 1
Savedge argues that the language in the parties’ separation agreement does not constitute
a specific waiver of her interest in Barbour’s military retirement.
The parties’ separation agreement includes the following waivers:
9. That the Wife waives any present or future claim for spousal
support.
* * * * * * *
11. The Wife agrees that the provisions herein made are in full
settlement, release and discharge of all interest by dower and any
and all other claims which the Wife has or might have for alimony
and for support and maintenance or otherwise.
12. It is mutually agreed and understood between the parties
hereto that each may freely sell or otherwise dispose of his or her
own property by gift, deed or will; without in anywise
encumbering the rights of the other, and that each party is hereby
barred from any and all rights or claims by way of dower, curtesy,
inheritance, descent, distribution or in any other way arising out of
said property. And each party hereto releases, remises and
relinquishes unto unto [sic] the other and to the heirs, executors,
administrators, and assigns thereof all claims or rights of dower,
curtesy or inheritance in and to all the real estates of the other,
whether now owned or hereafter acquired.
The trial court found that “paragraphs of the Separation Agreement numbered 9, 11 and
12 . . . are strong representations of a validly executed release and surrender of rights by
[Savedge].”
Savedge asserts that these waivers do not constitute a specific waiver of her interest in
Barbour’s military retirement. She contends that an express waiver is necessary in order to
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waive a spouse’s interest in retirement benefits. However, she acknowledges that the USFSPA
does not require an express waiver.
In Himes, neither the parties’ agreement nor the final decree of divorce mentioned Mr.
Himes’ military pension. Himes, 12 Va. App. at 968, 407 S.E.2d at 696. The Himes’ waiver and
release applied to property “now owned and hereafter acquired.” Id. at 968 n.1, 407 S.E.2d at
695 n.1. This Court found that the waiver was sufficient to waive Mrs. Himes’ interest in
Mr. Himes’ retirement. Id. at 970, 407 S.E.2d at 697. It concluded that “where a valid release
has been executed and made a part of a decree, a party to that decree may not reopen it for
modification based upon a change in the law.” Id.
As in Himes, the parties’ agreement did not specifically mention Barbour’s military
retirement. However, it did include a similar waiver. An express waiver is not necessary, and
Savedge’s waiver in the separation agreement is sufficient to waive her interest in Barbour’s
military retirement.
Issue 2
Savedge argues that she could not have waived her rights to Barbour’s military retirement
in the 1982 divorce decree because military retirement was not a divisible asset until the
enactment of USFSPA.
Mrs. Himes made this exact same argument in her case, to-wit: “Mrs. Himes argues that
because she had no knowledge of the possible change in law, she could not have intended by the
agreement to waive her rights to a claim for property which did not exist at the time.” Id. at 971,
407 S.E.2d at 697.
This Court held as follows:
[T]he fact that the retirement pension payments, at the time the
contract was executed, may not have been considered property
under McCarty, and therefore within the contemplation of the
contract, nonetheless, Mrs. Himes was not entitled to any portion
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of the retirement benefits when the USFSPA “transformed” his
“entitlement” into property because the terms of the contract were
sufficiently inclusive to release and surrender claims to personal
property “hereafter acquired.”
Id.
Therefore, the trial court did not err in rejecting Savedge’s argument that she could not
have waived her right to Barbour’s military retirement.
Issue 3
Savedge argues that the trial court erred in interpreting that the language of the parties’
separation agreement, specifically paragraphs 9, 11, and 12, constituted a “full and final accounting
of all claims, rights, or other interests existent in 1982, or for potential thereafter.”
Savedge signed the final order as “Seen and objected to.” A statement of “seen and
objected to” is insufficient to preserve an issue for appeal. Lee v. Lee, 12 Va. App. 512, 515,
404 S.E.2d 736, 738 (1991) (en banc). In a bench trial, an appellant can preserve her issues for
appeal in a motion to strike, in closing argument, in a motion to set aside the verdict, or in a
motion to reconsider. Id. Savedge did not make the argument that she presents in her third issue
in her closing argument. She did not file a motion to reconsider.
“No ruling of the trial court . . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. We
“will not consider an argument on appeal which was not presented to the trial court.” Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
Rule 5A:18 precludes this Court from considering Savedge’s third question presented.
Issue 4
Savedge argues that the facts and order of this case are not governed by Himes, but
instead by Nicholson, which required a more specific and express waiver.
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The trial court stated that it considered both cases, but found the Himes case to govern this
situation. We agree.
In Himes, the wife sought a portion of husband’s military retirement. On July 17, 1981, the
parties signed a separation agreement, which was incorporated into a final decree on September 8,
1982. The separation agreement included a “mutual release of all rights to the property owned or
acquired by the other.” Himes, 12 Va. App. at 968, 407 S.E.2d at 695. In 1983, Congress enacted
the USFSPA. This Court held that
the agreement in which Mrs. Himes released and surrendered her
rights, whether marital or otherwise, to the personal estate owned
or thereafter acquired by Mr. Himes, which was incorporated into
the court decree, established a fixed and vested right in both
parties, which Congress, by subsequent litigation, could not
thereafter deprive them.
Id. at 970, 407 S.E.2d at 697. Furthermore, this Court stated, “Retrospective application of the
USFSPA in this case resulting in the reclassification of Mr. Himes’ military pension would
impair the parties’ contractual rights and obligations and disturb those rights which became
vested by both the contract and the final divorce decree.” Id.
In contrast, Nicholson dealt with a wife seeking a portion of her husband’s retirement
annuity under the Foreign Service Act. The Foreign Service Act required an “express waiver” to
a spouse’s retirement annuity. Nicholson, 21 Va. App. at 238, 463 S.E.2d at 338. This Court
explained how the Nicholson case differed from the Himes case:
Himes dealt with whether, under Virginia law, a general waiver of
property rights in a property settlement became a vested right that
prevented one spouse from making a claim against the other
spouse’s retirement benefits when the equitable distribution statute
was subsequently enacted. The Nicholsons’ case involves the
interpretation and application of a federal statute, which was a
requirement of “express” waiver by a spousal agreement or court
order.
Id. at 239, 463 S.E.2d at 338.
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Like Himes, Savedge is seeking relief under Virginia law. Her motion was titled,
“Complainant’s Motion for Equitable Distribution of Defendant’s Military Retirement.” She
sought a division of Barbour’s military retirement pursuant to Code § 20-107.3. However, the
parties’ agreement included a waiver preventing either party from seeking future distribution of
each other’s property. As in Himes, the rights of Savedge and Barbour were fixed in their
separation agreement and final decree. “The property rights and interests became vested in the
parties when they agreed upon them, set them forth in a valid separation agreement, and had
them incorporated into their final divorce decree.” Himes, 12 Va. App. at 970, 407 S.E.2d at
697.
Therefore, Himes controls the outcome of this case, and the trial court did not err in
applying Himes to this case.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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