Thomas E. McGlathery v. Sharron A. McGlathery

• Court: Court of Appeals of Virginia
• Decided: April 8, 1997
• Docket: 1550964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Senior Judge Hodges Argued at Alexandria, Virginia

THOMAS E. McGLATHERY MEMORANDUM OPINION * BY v. Record No. 1550-96-4 JUDGE RICHARD S. BRAY APRIL 8, 1997 SHARRON A. McGLATHERY

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald H. Kent, Judge

James Ray Cottrell (Christopher W. Schinstock; Gannon, Cottrell & Ward, P.C., on briefs), for appellant. Bruce Richard Eells (Matthew & Snider, on brief), for appellee.

Thomas E. McGlathery (husband) appeals from the trial

court's determination that Sharron A. McGlathery (wife) was

entitled to a percentage of husband's total disability retirement

benefits, including that portion attributable to a workers'

compensation award, pursuant to the terms of a property

settlement agreement between the parties. We conclude that the

court correctly ascertained the sum due wife and affirm the

decree.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. THE AWARD

The 1994 order adjudicating husband's earlier declaratory

judgment petition resolved that "all pension benefits and/or

disability payments" payable to husband are retirement benefits

contemplated by the agreement. During those proceedings, husband

advanced no argument that a portion of the disability retirement

then in issue had been temporarily displaced by a workers'

compensation award and was, therefore, beyond the embrace of the

agreement. Rather, husband sought to limit those monies due wife

to a computation based upon his basic retirement pension and not

his disability retirement benefits. Finding no merit in

husband's contention, the court ordered husband to pay wife that

percentage of his disability benefits specified in their

agreement. 1

Assuming, without deciding, that husband's workers'

compensation benefits are insulated from wife's claim, the decree

of the trial court did not constitute an assignment of such award

to wife or subject it to a creditor claim in violation of Code

§ 65.2-531. In Owen v. Owen, 14 Va. App. 623, 419 S.E.2d 267 (1992), we addressed a federal statute which prohibited

assignment of military disability benefits and reasoned that the

recipient is not precluded "from entering into an agreement to 1 A ruling by the trial court from the bench during the hearing of December 13, 1995, suggests it considered the workers' compensation issue res judicata. However, such finding is not reflected in subsequent orders and will not be addressed on appeal.

- 2 - provide a set level of payments, the amount of which is

determined by considering [non-assignable] disability benefits as

well as retirement benefits." Id. at 628, 419 S.E.2d at 270; see

id. at 626-28, 419 S.E.2d at 269-70. Similarly, in this

instance, the object of the agreement was that amount due wife

from husband in relation to his pension, later judicially

determined to include disability benefits, payable from such

monies as husband deems appropriate. DUE PROCESS

Husband timely appealed the disputed May 22, 1996 order,

entered by the court following several ore tenus hearings,

attendant argument of counsel, and consideration of the December

13, 1995 proceedings, the related order of January 24, 1996, and

subsequent orders. Thus, it is apparent from the record that

husband's defense to wife's claim was fully presented to and

considered by the court, thereby preserving husband's right to

due process, notwithstanding delay in adjudicating the cause. See, e.g., Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d

914, 916 (1991) (quoting Dohany v. Rogers, 281 U.S. 362, 369

(1930)) ("The requirements of the due process clause are

satisfied if a party 'has reasonable notice and reasonable

opportunity to be heard and to present his claim or defense

. . . .'"). Moreover, husband has not specified any prejudice

occasioned by the disputed procedural course. Cf. Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 639 (1994) (violations

- 3 - of due process arising from delay in entering order are

determined on case-by-case basis; no denial of due process absent

prejudice).

Finally, we deny husband's request for attorney's fees and

costs.

Accordingly, we affirm the decree.

Affirmed.

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