Susan W. Forest v. John P. Forest, II of the Estate of Christopher M. Forest ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Senior Judge Willis
UNPUBLISHED
Argued at Alexandria, Virginia
SUSAN W. FOREST
MEMORANDUM OPINION * BY
v. Record No. 0836-12-4 JUDGE RANDOLPH A. BEALES
MARCH 12, 2013
JOHN P. FOREST, II, EXECUTOR OF
THE ESTATE OF CHRISTOPHER M. FOREST
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
Joseph A. Condo (Elizabath C. Szabo; The Condo Law Group, P.C.,
on briefs), for appellant.
John P. Forest, II (StahlZelloe, P.C., on brief), for appellee.
Susan W. Forest (wife) appeals the trial court’s order finding that it lacked authority
under Code § 20-107.3(K)(4) to enter a qualified domestic relations order (QDRO) or to modify
the final decree of divorce between wife and Christopher M. Forest (husband) so as to permit
entry of wife’s requested QDRO. John P. Forest, II, Esq. (executor) 1 has represented husband’s
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Executor argues that this appeal must be dismissed due to what he contends is a defect
in the pleadings filed by wife because the captions of such pleadings have not identified executor
as acting in his capacity as the executor of the estate, as executor contends was required under
Code § 8.01-6.3(A). We disagree. “Any pleading filed that does not conform to the
requirements of subsection A but otherwise identifies the proper parties shall be amended on the
motion of any party or by the court on its own motion. Such amendment relates back to the date
of the original pleading.” Code § 8.01-6.3(B) (emphasis added). Furthermore, we observe that,
to the extent executor raises an issue of personal jurisdiction,
“[a]n appearance for any other purpose than questioning the
jurisdiction of the court - because there was no service of process,
or the process was defective, or the service thereof was defective,
or the action was commenced in the wrong county, or the like - is
estate in the trial court and now on appeal in the capacity of executor of the estate. For the
reasons explained below, we reverse the trial court’s order and remand the matter to the trial
court for further proceedings consistent with this opinion.
I. BACKGROUND 2
On June 27, 2011, the trial court entered a final decree of divorce between Mr. and Mrs.
Forest, which incorporated the provisions of their May 5, 2011 marital settlement agreement 3
(MSA). 4 The portion of the MSA that is pertinent to this appeal states:
RETIREMENT ACCOUNTS
15. a. (i) The Wife’s individual retirement account (IRA) and the
Husband’s 401(K) plan, shall be equalized through a transfer from
the Husband’s 401(k) plan of the amount necessary to effect such
equalization, based on the values as of the date of the separation,
to-wit: April 1, 2010, plus any appreciation or less any
depreciation from the date of separation to the time of transfer,
said transfer to be effected through the entry of one or more
Qualified Domestic Relations Orders (“QDROs”), such transfer to
general and not special, although accompanied by the claim that
the appearance is only special.”
Lyren v. Ohr, 271 Va. 155, 159, 623 S.E.2d 883, 884 (2006) (quoting Norfolk & Ocean View
Ry. Co. v. Consolidated Tpk. Co., 111 Va. 131, 136, 68 S.E. 346, 348 (1910)).
2
Under the settled standard of review, the facts are viewed in the light most favorable to
executor, who was the prevailing party in the trial court. However, the facts that are pertinent to
the resolution of this appeal are essentially undisputed.
3
An agreement of this type is commonly called a property settlement agreement
(abbreviated as PSA). See, e.g., Virostko v. Virostko, 59 Va. App. 816, 819, 722 S.E.2d 678,
680 (2012). In this opinion, we use the term marital settlement agreement (and its corresponding
abbreviation of MSA) because that is the term used by the parties in this case.
4
Wife and husband were married in August 1996 and during the marriage had three
children, who are still minors. Pursuant to the terms of the MSA, husband was ordered to pay
child support under the divorce decree. Although the MSA plainly states that it “shall be binding
upon the parties, their heirs, administrators, executors and assigns,” there is no argument raised
on appeal that husband’s estate has accrued a child support arrearage that must be satisfied by the
estate.
-2-
be in satisfaction of the Husband’s marital interest in said plans
and/or accounts.
(Emphasis added).
It is undisputed for purposes of this appeal that husband’s “401(K) plan” referenced in
the MSA was intended to be husband’s account with Morgan Stanley Smith Barney LLC
(Morgan Stanley account). The parties also do not dispute that a $26,000 transfer from
husband’s Morgan Stanley account to wife’s IRA was necessary to achieve the equalization of
account balances that was agreed upon in the MSA and incorporated into the final decree.
Before a QDRO dividing the funds in husband’s Morgan Stanley account could ever be
entered, however, it was discovered that husband had secretly withdrawn the vast majority of the
funds from that account. Only about $6,000 remained in the Morgan Stanley account. Given
that the entry of a QDRO dividing the small remaining balance in the Morgan Stanley account
would have been utterly ineffectual in achieving the agreement to equalize husband’s and wife’s
retirement accounts, husband agreed to direct the Morgan Stanley plan administrator to release
those remaining funds to wife. However, husband’s assignment to wife of the remaining funds
in his Morgan Stanley account still left about a $20,000 shortfall based on the terms of the MSA.
In light of this shortfall, wife’s counsel and husband’s counsel in the divorce litigation
(Stephen Halfhill, Esq.) then apparently agreed in principle on a QDRO pertaining to a different
retirement account – husband’s Deseret Mutual Thrift Plan (Deseret Mutual account). It appears
from the record on appeal that the Deseret Mutual account contained about $14,000 – still not
enough to cover the entirety of the shortfall caused by husband’s withdrawal of the funds from
the Morgan Stanley account – and that a draft QDRO pertaining to the Deseret Mutual account
(the Deseret Mutual QDRO) was approved by the plan administrator. The record establishes that
-3-
the draft Deseret Mutual QDRO was sent to Mr. Halfhill’s office for his approval. 5 However,
before the Deseret Mutual QDRO was ever filed in the trial court, husband committed suicide.
Following husband’s death, wife moved on January 27, 2012 for the trial court to enter
the Deseret Mutual QDRO. Executor appeared at a February 10, 2012 hearing in the trial court.
The trial court granted wife’s unopposed motion to substitute executor as the party defendant in
this matter, deferred action on wife’s motion to enter the Deseret Mutual QDRO, and granted
executor leave to file a responsive pleading.
The trial court then considered the merits of wife’s motion for entry of the Deseret
Mutual QDRO at a hearing on February 24, 2012. 6 The trial court found that it lacked authority
under Code § 20-107.3(K)(4) to enter the Deseret Mutual QDRO because the disputed portion of
the MSA never mentioned the Deseret Mutual account, but instead only referenced the Morgan
Stanley account. The trial court also found that it “can’t modify the original order,” i.e., the final
divorce decree between wife and husband, which incorporated the MSA. The trial court
explained:
5
The record contains an email exchange between wife’s counsel and Mr. Halfhill
concerning the Deseret Mutual QDRO. On January 11, 2012, Mr. Halfhill informed wife’s
counsel via email that he would “review the QDRO and if I have no objections, I will endorse it
and file it with the [trial court].” Husband’s death occurred on or shortly after January 11, 2012.
Mr. Halfhill did not participate in any subsequent proceedings – except for filing one written
response in which he did not deny wife’s assertion that he intended to file the Deseret Mutual
QDRO in the trial court prior to husband’s death, but in which Mr. Halfhill also maintained that
he lacked authority after husband’s death to represent the estate. Therefore, while it appears that
husband and wife had essentially agreed before husband’s death that the Deseret Mutual QDRO
could be entered to compensate for husband’s surreptitious depletion of the Morgan Stanley
account, wife on appeal does not rely on the existence of any final agreement between wife and
husband to enter the Deseret Mutual QDRO.
6
Contrary to executor’s contention in the trial court and now on appeal, the trial court’s
consideration of the merits of wife’s motion for entry of the Deseret Mutual QDRO was not an
improper revival of the divorce litigation between wife and husband – given that husband’s death
occurred after the entry of the final divorce decree. See Sprouse v. Griffin, 250 Va. 46, 50, 458
S.E.2d 770, 772 (1995) (explaining that “a divorce suit abates when one party dies while the suit
is pending and before a decree on the merits”).
-4-
[T]he Code restricts what I can do. When the parties enter into an
agreement saying X, I can’t now come in and say, well, you
changed X to Y, so I’m going to change that to Y. I’m not allowed
to do that under that Code section.
* * * * * * *
I’m not ruling on whether there was any subsequent agreement
between the parties. What I’m ruling on is based upon the motion
as presented right now to enter a QDRO to change [the MSA] to
specify the Deseret plan. Without any agreement being before the
court, it is improper.
After the trial court denied wife’s motion for reconsideration, 7 wife appealed to this
Court.
II. ANALYSIS
On appeal, wife argues that the trial court committed reversible error under Virginia law 8
when it found that it lacked authority under Code § 20-107.3(K) to grant wife’s motion to enter
the Deseret Mutual QDRO or, in the alternative, to modify the final divorce decree to permit the
entry of that QDRO. Under settled principles, “‘[w]e review the trial court’s statutory
interpretations and legal conclusions de novo.’” Craig v. Craig, 59 Va. App. 527, 539, 721
S.E.2d 24, 29 (2012) (quoting Navas v. Navas, 43 Va. App. 484, 487, 599 S.E.2d 479, 480
(2004)); see Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003). Applying this
standard of review, we conclude that the trial court erred in finding that it could not modify the
7
In her motion for reconsideration, wife requested that the trial court enter the Deseret
Mutual QDRO or, in the alternative, modify the final decree to allow for the entry of the Deseret
Mutual QDRO. Wife contended that Code § 20-107.3(K)(4) permits modification of a final
decree so long as the modification reflects the expressed intent of the final decree.
8
Wife also argues on appeal that the trial court erred under the federal Pension Protection
Act of 2006 when it refused to enter the Deseret Mutual QDRO. The trial court expressly
declined to consider whether the Deseret Mutual QDRO could be entered under federal law –
given its finding that this QDRO could not be entered under Virginia law. On remand, the trial
court will have the opportunity to consider the propriety of entering the Deseret Mutual QDRO
pursuant to federal law – and to make any factual findings that might be necessary to make a
decision on that issue.
-5-
final decree under Code § 20-107.3(K)(4) for the limited purpose of enabling the entry of the
Deseret Mutual QDRO. Even viewing the evidence in the light most favorable to the executor,
as we must since he was the prevailing party below, entering the Deseret Mutual QDRO is
permissible under Virginia law because doing so would effectuate the expressed intent of the
final decree – which, pertaining to the issue on appeal here, is to grant wife with a vested
property right.
A. CODE § 20-107.3(K)(4)
“The jurisdiction of the court to enter orders effectuating and enforcing its equitable
distribution order entered pursuant to Code § 20-107.3 is limited.” Turner v. Turner, 47
Va. App. 76, 80, 622 S.E.2d 263, 265 (2005). Code § 20-107.3(K)(4) “creates a limited
exception to the strict directive of Rule 1:1,” which states that a final order cannot be modified
more than twenty-one days after its entry. Caudle v. Caudle, 18 Va. App. 795, 797, 447 S.E.2d
247, 249 (1994).
Code § 20-107.3(K)(4) states:
The court shall have the continuing authority and jurisdiction to
make any additional orders necessary to effectuate and enforce any
order entered pursuant to this section, including the authority to:
* * * * * * *
Modify 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 or retirement benefits pursuant to the United
States Internal Revenue Code or other applicable federal laws, 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). “Such modification [under Code § 20-107.3(K)(4)] 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.’” Williams v. Williams, 32 Va. App. 72, 75, 526 S.E.2d
-6-
301, 303 (2000) (quoting Caudle, 18 Va. App. at 798, 447 S.E.2d at 249); see also, e.g., Fahey v.
Fahey, 24 Va. App. 254, 256-57, 481 S.E.2d 496, 497 (1996).
The plain language of Code § 20-107.3(K)(4) and this Court’s decisions applying it state
that relief granted under this statute must be consistent with “the expressed intent” of a prior
equitable distribution order, so as to effectuate that expressed intent.
Under Code § 20-107.3(K)(4), 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.”
Turner, 47 Va. App. at 80, 622 S.E.2d at 265-66 (emphasis added) (quoting Code
§ 20-107.3(K)(4)); see Caudle, 18 Va. App. at 798, 447 S.E.2d at 249 (explaining that Code
§ 20-107.3(K)(4) authorizes a trial court “to reinstate an equitable distribution decree on its
docket in order to make the terms of the retirement or pension provisions ‘effectuate the
expressed intent’ of the original decree” (emphasis added) (quoting Code § 20-107.3(K)(4))).
Accordingly, we look to the expressed intent of the final divorce decree, which
incorporated the MSA between wife and husband. “‘The guiding light in the construction of a
contract is the intention of the parties as expressed by them in the words they have used, and
courts are bound to say that the parties intended what the written instrument plainly declares.’”
Irwin v. Irwin, 47 Va. App. 287, 293, 623 S.E.2d 438, 441 (2005) (quoting Wilson v. Holyfield,
227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)). “In construing the terms of a property
settlement agreement, just as in construing the terms of any contract, we are not bound by the
trial court’s conclusions as to the construction of the disputed provisions.” Bergman v.
Bergman, 25 Va. App. 204, 211, 487 S.E.2d 264, 268 (1997) (internal quotations and citations
omitted).
-7-
B. EXPRESSED INTENT OF THE MSA INCORPORATED INTO THE FINAL DECREE
The portion of the MSA that is pertinent to this appeal states:
The Wife’s individual retirement account (IRA) and the Husband’s
401(K) plan, shall be equalized through a transfer from the
Husband’s 401(k) plan of the amount necessary to effect such
equalization, based on the values as of the date of the separation,
to-wit: April 1, 2010, plus any appreciation or less any
depreciation from the date of separation to the time of transfer, said
transfer to be effected through the entry of one or more Qualified
Domestic Relations Orders (“QDROs”), such transfer to be in
satisfaction of the Husband’s marital interest in said plans and/or
accounts.
(Emphasis added).
The expressed intent of the disputed portion of the MSA is to grant wife an interest in a
discrete and identifiable portion of husband’s property. The method for determining wife’s
property interest under the MSA is to compare the value of wife’s IRA to the value of husband’s
Morgan Stanley account – based on the respective values of those accounts as they were valued
on the date of the separation. Wife’s property interest under the MSA is the amount of money
necessary to equalize those account values as of the date of separation (i.e., one-half of the
difference between those account values as they were valued on the date of the separation). It is
undisputed for purposes of appeal that “the amount necessary to effect such equalization” under
the terms of the MSA is approximately $26,000.
Furthermore, it is well established that “‘property rights and interests [become] vested in
the parties when they [agree] upon them, set them forth in a valid separation agreement, and
[have] them incorporated into their final divorce decree.’” Irwin, 47 Va. App. at 294, 623 S.E.2d
at 441 (quoting Himes v. Himes, 12 Va. App. 966, 970, 407 S.E.2d 694, 697 (1991)). “Such an
agreement creates vested property rights in the parties by virtue of the judicial sanction and
determination of the court” and constitutes “a final adjudication of the property rights of the
-8-
parties” to the divorce action. Shoosmith v. Scott, 217 Va. 290, 292, 227 S.E.2d 729, 731
(1976), aff’d on rehearing, 217 Va. 789, 793, 232 S.E.2d 787, 789 (1977)).
Therefore, we conclude for purposes of this appeal that “the expressed intent” of the final
decree is to establish wife’s property right, which vested when the final decree incorporated the
MSA between wife and husband. Code § 20-107.3(K)(4). Based on the record before us, it is
undisputed that wife’s property right amounts to approximately $26,000. Moreover, while
husband’s depletion of funds rendered impossible the MSA-required transfer of approximately
$26,000 from his Morgan Stanley account to wife’s IRA, his actions did not thwart wife’s
property right expressed in, and established by, the final decree. 9 Wife’s actual property right
remains unaffected by husband’s surreptitious withdrawals of the Morgan Stanley account funds,
which occurred contrary to the expressed intent of the marital settlement agreement that husband
had signed and the final decree. 10 See Higgins v. McFarland, 196 Va. 889, 895, 86 S.E.2d 168,
172 (1955) (“Such a contract so approved is a final adjudication of the property rights of the
parties and cannot be changed by them without the approval of the court.”).
C. AVAILABILITY OF A REMEDY UNDER CODE § 20-107.3(K)(4)
Under Code § 20-107.3(K)(4), 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
9
To hold otherwise would conceivably permit a party to enter into a property settlement
agreement directing the entry of a QDRO to divide a retirement account – and then thwart the
terms of the agreement by depleting that retirement account’s funds before a QDRO could be
entered. Our precedents neither encourage approbation and reprobation nor countenance
fraudulent behavior.
10
While executor argues that Code § 20-107.3(K)(4) does not apply here, executor
acknowledges that the terms of the MSA are binding on him as executor of husband’s estate and
suggests that wife could perhaps seek some alternative form of relief – such as a rule to show
cause (directed to him in his capacity as executor of the estate) or a debts and demands hearing
before a commissioner of accounts. We offer no opinion on the availability or the effectiveness
of any alternative remedies suggested by executor, as this appeal only concerns wife’s request
for relief under Code § 20-107.3(K)(4).
-9-
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.”
Turner, 47 Va. App. at 80, 622 S.E.2d at 265-66 (alterations in original) (quoting Code
§ 20-107.3(K)(4)). The final decree certainly affected wife’s retirement benefits, i.e., her IRA.
The final decree, which incorporated the MSA between wife and husband, constituted “a final
adjudication” of wife’s right to receive an approximately $26,000 transfer of funds to her IRA.
Higgins, 196 Va. at 895, 86 S.E.2d at 172; see also Shoosmith, 217 Va. at 292, 227 S.E.2d at
731. In the trial court and now before this Court on appeal, wife has not sought anything more
than the entry of an order under Code § 20-107.3(K)(4) that is consistent with this adjudicated
property right. 11
In Hastie v. Hastie, 29 Va. App. 776, 514 S.E.2d 800 (1999), this Court stated:
We have previously held that orders that alter critical terms of the
contract [incorporated in the final decree], such as timing or
amount of payments, exceed the authority granted under Code
§ 20-107.3(K)(4). See, e.g., Fahey, 24 Va. App. at 256, 481 S.E.2d
at 497 (holding that the division of the actual value of a Keogh
account rather than the agreed value was a substantive change);
Decker v. Decker, 22 Va. App. 486, 495, 471 S.E.2d 775, 779
(1996) (holding that reduction in spousal support by amount of
mortgage payments on recipient spouse’s house was a substantive
change).
Id. at 781, 514 S.E.2d at 803 (emphasis added); see Turner, 47 Va. App. at 80-81, 622 S.E.2d at
266 (same).
This case is unlike Hastie, the cases cited in Hastie, and other cases where movants
sought to use a trial court’s continuing jurisdiction under Code § 20-107.3(K)(4) to alter the
timing or amount of payments of retirement benefits that were awarded in a final decree. See,
11
In fact, as explained supra, it appears that even the entry of the Deseret Mutual QDRO
would not fully satisfy the terms of the MSA that wife and husband negotiated, as the Deseret
Mutual account does not have enough funds to cover the shortfall caused by husband’s
near-depletion of the Morgan Stanley account.
- 10 -
e.g., Hastie, 29 Va. App. at 781, 514 S.E.2d at 803; Wilson v. Wilson, 25 Va. App. 752, 492
S.E.2d 495 (1997); Caudle, 18 Va. App. at 797-98, 447 S.E.2d at 249-50. In those cases, the
movants sought relief that was inconsistent with the final decree in a manner that would have
altered the parties’ substantive rights.
For example, in Caudle, the final divorce decree stated that Mrs. Caudle would begin
receiving a portion of Mr. Caudle’s retirement benefits when Mr. Caudle began receiving those
benefits from the plan administrator. Caudle, 18 Va. App. at 796-97, 447 S.E.2d at 249. When
Mr. Caudle retired earlier than expected, he moved for the entry of a QDRO that specified Mrs.
Caudle would not begin receiving those retirement benefits until several years after Mr. Caudle
actually began receiving them. Id. at 797, 447 S.E.2d at 249. This Court reversed the trial
court’s decision to grant Mr. Caudle’s motion. It was in this light that this Court held in Caudle
that Code § 20-107.3(K)(4) does not “allow a court to modify a final divorce decree simply to
adjust its terms in light of the parties’ changed circumstances.” Id. at 798, 447 S.E.2d at 249.
Whereas Mr. Caudle’s changed circumstances in Caudle did not entitle him to relief
under Code § 20-107.3(K)(4), wife’s own circumstances now before us in this case have not
changed. Wife seeks relief under Code § 20-107.3(K)(4) for the very same property right that
vested when the final decree incorporated the MSA. In this respect, the circumstances here are
more similar to those in Recker v. Recker, 48 Va. App. 188, 194-95, 629 S.E.2d 191, 195 (2006),
where the wife in that case invoked Code § 20-107.3(K)(4) simply “to receive the amount of
retirement benefits previously decreed.” Here, the trial court’s continuing jurisdiction under
Code § 20-107.3(K)(4) to enter an order effectuating wife’s vested property right under the final
decree was not hindered simply because that property right could not be fully effectuated from
the meager funds remaining in the retirement account mentioned in the MSA – especially given
that husband depleted his Morgan Stanley account before the QDRO required by the MSA was
- 11 -
ever able to be entered. Furthermore, this depletion of the account occurred through no fault of
wife, according to the record before us on appeal.
This Court’s decision in Williams is instructive on the type of limited modification to a
final decree that Code § 20-107.3(K)(4) permits. There, Mrs. Williams was awarded one-half of
Mr. Williams’ monthly pension installments. Williams, 32 Va. App. at 74, 526 S.E.2d at 302.
However, the QDRO that was entered applied to only one part of Mr. Williams’ pension;
therefore, Mrs. Williams began receiving only a small percentage of the pension payments that
were due to her under the final decree. Id. at 75, 526 S.E.2d at 302. The trial court modified the
final decree under Code § 20-107.3(K)(4), directing Mr. Williams to pay the remaining balance
due to Mrs. Williams each month directly. This Court affirmed the trial court’s decision in
Williams, explaining:
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.
Id. at 76, 526 S.E.2d at 303 (emphasis added).
As in Williams, wife here seeks to adjust the procedural steps necessary to effectuate the
expressed intent of the final decree, which incorporated the MSA between wife and husband.
Based on the record before us, even when viewed in the light most favorable to the executor, as
the prevailing party below, we can locate no evidence or indication from the record
- 12 -
demonstrating that entry of the Deseret Mutual QDRO would change any party’s substantive
rights. 12 Given that wife only seeks to effectuate the identical property right that is expressed in
the MSA – which vested with that agreement’s incorporation in the final decree – Code
§ 20-107.3(K)(4) permits the modification of the final decree that wife requests under the
circumstances of this particular case.
D. ATTORNEY’S FEES AND COSTS
Pursuant to Paragraph 19(b) of the MSA, we award wife the amount of her attorney’s
fees and costs associated with the successful litigation of this appeal – the amount of which shall
be determined by the trial court on remand. Furthermore, if the trial court determines on remand
that the Deseret Mutual QDRO is able to be entered under federal law, then the trial court shall
also determine wife’s entitlement to an award of costs and attorney’s fees under Paragraph 19 of
the MSA that reflects wife’s costs and attorney’s fees accrued in the trial court – throughout the
litigation of this matter here – for the purpose of pursuing the entry of that QDRO.
III. CONCLUSION
The relief wife requests under Code § 20-107.3(K)(4) pertains to the identical vested
property right that was embodied in the expressed intent of the MSA between wife and husband
– which was duly incorporated into the final decree. Code § 20-107.3(K)(4) did not prohibit the
trial court from modifying the final divorce decree for the limited purpose of effectuating the
expressed intent of the final decree by enabling the entry of the Deseret Mutual QDRO.
Accordingly, we reverse the judgment of the trial court and remand the matter for further
12
In the trial court, executor alluded to husband’s estate having amassed significant debts
– but no evidence of those debts was ever offered for admission into the record or proffered by
executor below. No creditor sought to intervene in this matter. Moreover, executor made no
argument in the trial court establishing that any creditor of husband’s estate could even access
the funds in husband’s Deseret Mutual account under federal or state law, and we do not
consider that issue sua sponte in this appeal.
- 13 -
proceedings consistent with this opinion, including consideration of whether the Deseret Mutual
QDRO may be entered under applicable federal law.
Reversed and remanded.
- 14 -