William J. Fahey v. Mary Lucretia Fahey

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Willis, Bray, Fitzpatrick, Annunziata and Overton Argued at Richmond, Virginia

WILLIAM J. FAHEY OPINION BY v. Record Nos. 2477-95-4 and JUDGE RICHARD S. BRAY 2773-95-4 FEBRUARY 25, 1997

MARY LUCRETIA FAHEY

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge

David D. Masterman (Cheryl K. Graham; Condo & Masterman, P.C., on brief), for appellant.

Stephen G. Cochran (Cochran & Rathbun, P.C., on brief), for appellee.

William J. Fahey appeals an order which amended an existing

qualified domestic relations order (QDRO) relating to the

distribution of Mr. Fahey's Keogh plan. By unpublished opinion

dated July 23, 1996, a panel of this Court concluded that the

court was without jurisdiction to modify the prior order and

reversed the amended QDRO. Upon rehearing en banc, we concur in the panel decision and reverse the amended QDRO.

The parties were divorced by a decree of the trial court

entered July 26, 1993, which reserved equitable distribution for

subsequent adjudication. Thereafter, on July 28, 1994, the

parties executed a property settlement agreement (agreement)

which was incorporated into a consent order dated August 31,

1994. Mr. Fahey owned three Keogh accounts, valued by the

agreement at $214,000, and the terms of the agreement required

him to "promptly arrange to transfer to [Mrs. Fahey] one-half (½)

of each of these accounts . . . [,] pursuant to a Qualified

Domestic Relations Order, if requested by either party." When a

dispute arose with respect to the accounts, Mrs. Fahey moved the

court for a QDRO on February 3, 1995. The parties thereafter

agreed to a QDRO for each account, and related consent orders

were entered on June 6, 1995. Two of the accounts were later

divided in accordance with the respective QDRO, but the third

account, the "IDEX" plan, is the subject of this appeal. The QDRO distributing the IDEX assets allotted "one-half of

the accrued value of the Plan as of July 28, 1994," the date of

the agreement, to Mrs. Fahey, and neither party appealed that

order. In September 1995, the administrator of the IDEX plan

divided the assets in-kind rather than in accordance with the

agreed value. Because the account had increased in value by

one-third since the July 28, 1994 valuation date, Mr. Fahey

objected to an in-kind division. Mrs. Fahey countered that the

administrator had acted properly and moved the court for entry of

the amended QDRO in dispute, which assigned to her "one-half of

the shares of the Plan as of July 28, 1994, together with any

appreciation or depreciation that has accrued since that time

until the time of distribution."

It is uncontroverted that Mrs. Fahey did not request an

amendment of the original QDRO within twenty-one days of its

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original QDRO would, ordinarily, have become final prior to the

disputed amendment. See Rule 1:1; see also Rook v. Rook, 233 Va.

92, 94-95, 353 S.E.2d 756, 758 (1987). However, the court is

permitted to "[m]odify any order . . . intended to affect or

divide any pension, profit-sharing or deferred compensation plan

or retirement benefits . . . to revise or conform its terms so as

to effectuate the expressed intent of the order," Code § 20-107.3(K)(4), provided such modification is "consistent with

the substantive provisions of the original decree" and not

"simply to adjust its terms in light of the parties' changed

circumstances." Caudle v. Caudle, 18 Va. App. 795, 798, 447

S.E.2d 247, 249 (1994).

Here, the manifest intent of the original order was to allot

Mrs. Fahey one-half of the value of the IDEX account on July 28,

1994. We recognize that this method of division later disfavored

her because the account increased in value, but the court was

without authority to substantively modify its order simply to

redress this changed circumstance. See Code § 20-107.3(K)(4);

Caudle, 18 Va. App. at 798, 447 S.E.2d at 249; see also Newsome

v. Newsome, 18 Va. App. 22, 26, 441 S.E.2d 346, 348 (1994).

Accordingly, we reverse the amended QDRO and direct the trial

court to decree distribution of the IDEX assets pursuant to the

original QDRO.

Reversed and remanded.

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