COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Lorish and Senior Judge Annunziata UNPUBLISHED
Argued by videoconference
BRANDI M. MALY MEMORANDUM OPINION * BY v. Record No. 0685-21-4 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 1, 2022 TRENTON J. MALY
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY James A. Willett, Judge
David M. Levy (Kaley E. Duncan; Surovell Isaacs & Levy PLC, on briefs), for appellant.
Maryse C. Allen (Monroe A. Windsor; Compton & Duling, L.C., on brief), for appellee.
Brandi M. Maly (wife) appeals the circuit court’s “Clarifying Court Order” regarding
Trenton J. Maly’s (husband) military retirement. Wife argues that the circuit court erred by finding
that she was estopped from applying 10 U.S.C. § 1408 et seq., the Uniformed Service Former
Spouses’ Protection Act (USFSPA), “due to her submission of a [p]ension [s]chedule at trial which
incorrectly defined ‘Marital Portion’ using outdated Virginia law.” She further contends that the
circuit court erred by applying the “Doctrine of Inconsistent Positions” and failing to follow Starr v.
Starr, 70 Va. App. 486 (2019). Wife also argues that the circuit court erred by failing to apply 10
U.S.C. § 1408(a)(4)(B) “in determining the total number of months of creditable service to be used
for the parties’ Qualifying Court Order of the Military Pension” of husband. In addition, wife
asserts that the circuit court erred by “using contradictory definitions of ‘total months of creditable
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. service’ in its Clarifying Court Order . . . .” Lastly, wife contends that the circuit court erred by
“failing to rule” on her request for attorney fees.
Husband assigned cross-error to the circuit court’s “Clarifying Court Order.” Husband
argues that the circuit court erred by excluding his expert witness, Colonel Mark E. Sullivan, from
testifying about his fees, the proposed orders, and specifically, military pension division for
active-duty members in divorce matters. Husband further contends that the circuit court erred by
“ignoring DoD Financial Regulation Figure 29-2 at Vol. 7b, Chapter 29 which demonstrates that the
DFAS accepts the formula award” he advanced in the trial court. Finally, husband asserts that the
circuit court erred by “ignoring” specific language defining the formula award, which uses the
military member’s total creditable service as the denominator.
For the reasons stated below, we affirm the circuit court’s decision in part, reverse in part,
and remand this case to the circuit court for further proceedings consistent with this opinion.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Starr v. Starr, 70 Va. App. 486, 488 (2019) (quoting Congdon v. Congdon, 40 Va. App. 255, 258
(2003)).
The parties married on March 3, 1999, and divorced on March 1, 2018. Husband is a
member of the United States Air Force, and his military retirement was an asset for equitable
distribution. During the equitable distribution trial, wife presented an exhibit, which reflected
her request for fifty percent of the “Marital Portion” of husband’s military retirement. The
exhibit defined “Marital Portion” as “[n]o. of months of pension accrual during marriage divided
by the total number of months of pension accrual.”
-2- At the conclusion of the two-day trial, the circuit court stated that it “had occasion to
consider the evidence and the argument and reach[ed] a decision . . . as to all matters that [it had
been] called upon to decide in this case . . . .” The circuit court found that “under all of the
circumstances,” it was inappropriate to divide husband’s military retirement “on a 50/50 basis.”
The circuit court specifically rejected wife’s request for fifty percent of the “marital portion,”
and instead, it awarded wife “40% of the marital share” of husband’s military retirement. When
it issued its ruling from the bench, the circuit court did not specify the formula to be used to
determine wife’s share.
On March 1, 2018, the circuit court entered the final order of divorce. Paragraph 2(B) of
the final order of divorce provided, in relevant part, that wife was “awarded Forty Percent (40%)
of the marital share of [husband’s] disposable military retired pay . . . , to be accomplished by
appropriate Orders complying with applicable federal law governing their division. The
[c]ourt’s jurisdiction is reserved for entry of such Orders.” (Emphasis added). Although wife
objected to the amount of the award being forty percent, as opposed to fifty percent, neither party
objected to the division being “accomplished by appropriate Orders complying with applicable
federal law.”
On August 18, 2020, wife filed a “Motion to Enter Qualifying Court Order (Military
Pension) and for Other Relief” and submitted a proposed order. Wife’s proposed order awarded
her forty percent of the marital share, as calculated by the following formula 1:
1 We limit our discussion to the denominator proposed for the formula, as the parties agreed to the remaining aspects of the formula. -3- Wife also requested an award of attorney fees and costs associated with the motion.
Husband objected to wife’s proposed denominator being the number of months of
creditable service accrued as of the date of the final order of divorce. Husband proposed that the
denominator be the number of months of creditable service as of his retirement. Husband
explained that he was still an active-duty member of the military and continued to accrue
creditable service.
Both parties submitted memoranda in support of their positions. Thereafter, husband
requested that the original judge from the equitable distribution trial hear the parties’ motions.
Husband argued that during the equitable distribution trial, wife had submitted an exhibit which
stated that the marital share would be calculated as “[n]o. of months of pension accrual during
marriage divided by the total number of months of pension accrual.” Husband asserted that he
had agreed to that formula and that wife was “tak[ing] inconsistent positions in litigation . . . .”
Husband further alleged that the original trial judge would be “best situated to rule on this issue,
having presided at trial.” Wife objected, and the circuit court denied husband’s motion because
the court “speaks through its orders . . . .”
On June 3, 2021, the parties appeared for argument on wife’s motion for entry of a
qualifying court order. The sole issues were attorney fees and the appropriate denominator for
the order. The parties had stipulated to the remaining parts of the above formula, and husband
agreed with all other aspects of wife’s proposed order. The parties further agreed that applicable
-4- federal law when they divorced provided that the proper denominator was the total number of
months of creditable service as of the date of the divorce. Husband confirmed that both counsel
had informed the trial judge of the existing federal law at the time of the equitable distribution
trial. Nevertheless, husband relied on wife’s trial exhibit and argued that she had changed her
position regarding the denominator. Husband offered Colonel Mark E. Sullivan as an expert
witness on “military pension division law,” but the circuit court prohibited him from testifying.
Husband proffered the expected testimony.
After hearing the parties’ arguments, the circuit court acknowledged that the applicable
federal law at the time of the divorce froze “the spouse’s interest in the service member’s
military retirement as of the date of divorce.” The circuit court, however, found that although
wife’s position at the hearing coincided with federal law, wife had taken a different position
during the equitable distribution trial, as evidenced by her exhibit. The circuit court found that
wife could not approbate and reprobate, and it entered husband’s proposed order dividing his
military retirement.
At the conclusion of the hearing, wife moved for an award of attorney fees. The circuit
court took the matter under advisement but never ruled on the issue. Wife timely filed a motion
to reconsider requesting that the circuit court revisit its decision regarding the entry of the
qualifying order. The motion, however, did not raise wife’s requests for attorney fees. The
circuit court denied the motion to reconsider. 2 This appeal followed.
2 The circuit court’s order incorrectly referred to the motion to reconsider as “Defendant’s,” or husband’s, motion, instead of wife’s motion, and directed the clerk to send a copy to the Commonwealth’s Attorney. Wife did not appeal the order denying the motion to reconsider. -5- ANALYSIS
“Clarifying Court Order”
Wife challenges the circuit court’s entry of the “Clarifying Court Order.” Wife argues
that the circuit court failed to apply the correct law when issuing its order. We agree and reverse
the circuit court’s ruling. “[W]e review the trial court’s statutory interpretations and legal
conclusions de novo.” Chaney v. Karabaic-Chaney, 71 Va. App. 431, 434 (2020) (quoting
Navas v. Navas, 43 Va. App. 484, 487 (2004)).
Wife argues that the circuit court failed to follow applicable federal law and Starr v.
Starr, 70 Va. App. 486 (2019), when it entered the “Clarifying Court Order” with the
denominator of the coverture fraction representing the number of months of total creditable
service as of the date of husband’s retirement, rather than the date of divorce. Husband counters
that wife sought “to improperly modify the divorce decree through the clarification order.”
The circuit court entered the final order of divorce on March 1, 2018, reserving
jurisdiction to enter an order dividing husband’s military retirement in compliance with
“applicable federal law.” Other than the reservation to address husband’s military retirement, the
circuit court lost jurisdiction over the final order of divorce on March 22, 2018, twenty-one days
after its entry. See Rule 1:1(a). Neither party appealed the final order of divorce.
Approximately two years later, wife moved for entry of her proposed order to divide husband’s
The parties agreed that in 2016, Congress amended the USFSPA and the definition of
disposable retired pay. See 10 U.S.C. § 1408(a)(4)(B). The amendment, which the parties refer
to as the “frozen benefit rule,” provided that
in the case of a division of property as part of a final decree of divorce . . . that becomes final prior to the date of a member’s retirement, the total monthly retired pay to which the member is entitled shall be . . . the amount of retired pay to which the member -6- would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce . . . .
10 U.S.C. § 1408(a)(4)(B). The amendment “freezes a spouse’s interest in the service member’s
military retirement as of the date of divorce.” Starr, 70 Va. App. at 491. It “precludes the state
court from including post-divorce service as a component of the total interest in the service
member’s military retirement.” Id. Both parties further agreed that the frozen benefit rule
applied when the circuit court entered the final decree of divorce. The parties had informed the
trial judge of the frozen benefit rule during the equitable distribution trial.
With this background in mind, we conclude that the circuit court erred by entering the
clarifying court order because the order does not comply with existing federal law or this Court’s
holding in Starr. 3 The clarifying court order uses a formula award with the denominator as the
total number of months of creditable service, which would “not be determined until the Member
[husband] retires.” As we discussed in Starr, before the amendment, state courts “could
determine the marital share of a military retirement based on the length of service to either the
date of retirement or to the date of divorce.” Starr, 70 Va. App. at 494. The amendment,
however, “eliminates that choice for divorce decrees entered after December 23, 2016, by
requiring state courts to use the date of divorce as the hypothetical retirement date when
determining the total interest in the retired pay available for equitable distribution.” Id.
3 We have considered, but reject, husband’s argument that the holding in Starr does not apply here. It is true that this Court issued the opinion in Starr after the entry of the parties’ final order of divorce; but Starr merely applied the 2016 amendment, which already had been enacted when the parties divorced. -7- In Starr, we rejected the argument husband advances here that Virginia courts can use a
formula with a denominator based on the date of actual retirement or on the date of divorce. 4 Id.
at 495. This Court explained that following the amendment, Virginia courts should determine
the marital share of military retirement by using a “marital-share fraction,” with a denominator
as “the time of military service until the date of divorce.” Id. at 496. “Any other denominator
would not render an accurate marital-share determination . . . .” Id. Thus, we conclude that
wife’s proposed retirement order properly applied the frozen benefit rule by using the total
number of months of creditable service as of the date of the final order of divorce as the
denominator. Wife’s proposed order complied with the “applicable federal law,” as the final
order of divorce required; it did not modify the substantive terms of the final order.
Nevertheless, the circuit court denied wife’s motion to enter her qualifying court order
because it found that wife had approbated and reprobated during the litigation. Relying on
wife’s trial exhibit, the circuit court found that wife had taken “a certain position at the trial, and
it [was] relied upon by the opposition,” but wife subsequently changed her position. The circuit
court then entered husband’s “Clarifying Court Order,” which plainly does not comport with the
final decree of divorce, applicable federal law, or this Court’s holding in Starr.
“A litigant is estopped from taking a position which is inconsistent with one previously
assumed . . . in the course of litigation for the same cause of action . . . .” C. Farrell v. Warren Cnty.
Dep’t of Soc. Servs., 59 Va. App. 375, 414 (2012) (quoting Burch v. Grace St. Bldg. Corp., 168 Va.
329, 340 (1937)); see also Cody v. Commonwealth, 68 Va. App. 638, 665 (2018) (“A party may not
approbate and reprobate by taking successive positions in the course of litigation that are either
inconsistent with each other or mutually contradictory.” (quoting Cangiano v. LSH Bldg. Co., 271
4 To support his argument that multiple formulas are allowed, husband relied on a sample military retired pay division order found in DoD 7000.14-R, Fin. Mgmt. Reg., vol. 7B, ch. 29, fig.29-2. -8- Va. 171, 181 (2006))). Considering the totality of the record, we find that wife did not approbate
and reprobate or take inconsistent positions.
During the equitable distribution trial, wife argued for fifty percent of the marital portion
of husband’s military retirement and presented an exhibit reflecting her proposed distribution.
The trial judge considered all the evidence, including wife’s exhibit. The trial judge rejected
wife’s proposal and found that “under all of the circumstances,” it was “not appropriate” to
divide husband’s military retirement “on a 50/50 basis.” The trial judge, instead, awarded wife
forty percent of the marital share of husband’s military retirement. Although the trial judge did
not specify the formula to divide husband’s military retirement when issuing the ruling from the
bench, the final decree of divorce expressly provided that husband’s military retirement would be
divided according to “applicable federal law.” “It is well-established that a court speaks only
through its written orders.” Johnson v. Johnson, 72 Va. App. 771, 779 (2021) (quoting S’holder
Representative Serv. v. Airbus Americas, Inc., 292 Va. 682, 690 (2016)).
Consistent with the express terms of the final order of divorce, wife prepared a
“Qualifying Court Order” dividing husband’s military retirement according to what all agree is
“applicable federal law.” See 10 U.S.C. § 1408(a)(4)(B). Thus, the record demonstrates that
wife did not change her position during the litigation. Rather, her proposed qualifying court
order reflected the circuit court’s ruling in the final order of divorce. Accordingly, the circuit
court abused its discretion in finding that wife approbated and reprobated.
In sum, we find that the circuit court erred by not following this Court’s precedent in
Starr and using an incorrect denominator in the formula to divide husband’s military retirement.
-9- We remand this matter to the circuit court to enter an order that complies with 10 U.S.C.
§ 1408(a)(4)(B) and Starr. 5
Attorney fees at trial
Wife also argues that the circuit court erred “by failing to rule” on her request for
attorney fees. At the conclusion of the hearing, wife requested an award of attorney fees. The
circuit court took the matter under advisement. The record does not indicate that the circuit court
ever ruled on wife’s motion. Wife did not object to the circuit court’s decision to take the matter
under advisement and did not raise the issue in her motion to reconsider. It was “incumbent”
upon wife to renew her motion “or at least remind the court that it was still pending and that
[s]he wanted the court to rule on it.” Riner v. Commonwealth, 268 Va. 296, 310 (2004) (quoting
Green v. Commonwealth, 266 Va. 81, 94 (2003)). Since wife failed to do so, she waived her
argument for appeal. 6 Id. at 310, 325; see Rule 5A:18.
Expert witness
Husband argues that the circuit court erred by excluding his expert witness from
testifying. “This Court will not overturn a circuit court’s exercise of its discretion in determining
whether to admit or exclude evidence unless the record demonstrates that it abused its
discretion.” deCamp v. deCamp, 64 Va. App. 137, 147 (2014); see also John Crane, Inc. v.
5 Considering our holding herein, we need not address wife’s assignment of error concerning the contradictory definitions in the “Clarifying Court Order” and husband’s assignments of cross-error concerning the formula award. “Following the traditional doctrine of judicial restraint, [appellate courts] ‘decide cases “on the best and narrowest grounds available.”’” Chaney, 71 Va. App. at 438 (quoting Levick v. MacDougall, 294 Va. 283, 302 (2017)). 6 The clarifying court order provided that “[r]uling is reserved as to [wife’s] motion for an award of attorney’s fees and costs, and jurisdiction is retained therefor.” We do not address whether the circuit court properly retained its jurisdiction to rule on the matter at a later date, as that issue was not raised before this Court. - 10 - Jones, 274 Va. 581, 591 (2007) (“In reviewing the trial court’s decision to exclude expert
testimony, we apply an abuse of discretion standard.”).
At the hearing, husband offered Colonel Mark E. Sullivan as an expert in “military
pension division law.” Husband proffered that Colonel Sullivan would “explain the interaction
between the facts of this case and the rules and power of the [c]ourt to divide military retirement
pay.” Husband further proffered that Colonel Sullivan would “provide an expert opinion
regarding . . . the calculation of the marital share . . . .” Husband explained that Colonel Sullivan
would testify that the National Defense Authorization Act “does not define the calculation of the
marital share for a member serving on active duty, and that the definition of marital share is a
function of state law . . . .” Husband also proffered that Colonel Sullivan would opine that the
Defense Finance Accounting Service would accept an order with a fraction and denominator
husband proposed. Finally, husband proffered that Colonel Sullivan would testify about his fees
for providing his opinion.
The circuit court found that husband’s expert was going to testify about the law, which
was not permitted under Virginia Rules of Evidence 2:702(a)(i) or 2:704(a). The circuit court
explained that it was “happy to be educated on the law and the application of the federal
regulations,” but expert testimony was not “the way to do it.”
In civil proceedings, “if scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify thereto in the form
of an opinion or otherwise.” Va. R. Evid. 2:702(a)(i); see also Code § 8.01-401.3(A). Expert
witnesses, however, are not “permitted to express any opinion which constitutes a conclusion of
law.” Va. R. Evid. 2:704(a); see also Code § 8.01-401.3(B).
- 11 - Here, the circuit court did not abuse its discretion in excluding Colonel Sullivan’s
testimony. Colonel Sullivan was not offered as an expert concerning a fact of the case; rather,
Colonel Sullivan was expected to testify concerning his interpretation of the law, including the
National Defense Authorization Act of 2017, USFSPA, and the Department of Defense Financial
Management Regulations. This type of testimony is prohibited under Rule 2:704(a) and Code
§ 8.01-401.3(B). Thus, the circuit court did not err.
Appellate attorney fees
Both parties have requested an award of attorney fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). “The decision of whether to award
attorney’s fees and costs incurred on appeal is discretionary.” Koons v. Crane, 72 Va. App. 720,
742 (2021) (quoting Friedman v. Smith, 68 Va. App. 529, 545 (2018)). “Since this litigation
‘addressed appropriate and substantial issues,’ and ‘neither party generated unnecessary delay or
expense in pursuit of its interests,’” we deny both parties’ request for an award of attorney fees
and costs incurred on appeal. Porter v. Porter, 69 Va. App. 167, 176 (2018) (quoting Estate of
Hackler v. Hackler, 44 Va. App. 51, 75 (2004)); see also Rule 5A:30(b).
CONCLUSION
For the reasons discussed above, we affirm the circuit court’s ruling excluding husband’s
expert witness from testifying. We reverse the circuit court’s ruling dividing husband’s military
retirement pay using a denominator that does not comply with federal law or this Court’s
precedent. Accordingly, we remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
- 12 -