John G. Myers, Jr. v. Christina Myers ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
JOHN G. MYERS, JR.
MEMORANDUM OPINION **
v. Record No. 1034-01-2 PER CURIAM
OCTOBER 2, 2001
CHRISTINA MYERS
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
(Andrea R. Stiles; Williams, Mullen, Clark &
Dobbins, P.C., on briefs), for appellant.
(Torrence M. Harman; Harman & Harman, P.C.,
on brief), for appellee.
John G. Myers, Jr., contends the trial judge erred in
entering qualified domestic relations orders and a domestic
relations order after more than twenty-one days had elapsed from
the expiration of a sixty-day period reserved by the final divorce
decree for entry of the orders. 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. See Rule 5A:27.
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On March 9, 1998, the parties entered into an agreement which
contained a specified distribution to the parties of husband's
retirement, pension, profit sharing, deferred compensation assets,
and IRA account. In part, Section F of the agreement states that
"[t]he parties agree to the following distribution of such assets
and they agree to cooperate to facilitate entry of the appropriate
Qualified Domestic Relations Orders [QDRO] or such other orders as
may be required to give effect to the following distribution
. . . ." Three subparagraphs of Section F specified a precise
distribution of each asset.
The parties were divorced by final decree on April 16, 1999,
which affirmed, ratified and incorporated the agreement. The last
paragraph of the final divorce decree states: "This matter is
retained on the docket for a period of sixty (60) days for entry
of Qualified Domestic Relations Orders(s) [QDROs] to give effect
to the provisions of the parties' written Agreement."
On January 11, 2000, the trial judge entered a QDRO
transferring fifty percent of the husband's interest in his 401(K)
plan to the wife per the agreement. Husband's counsel endorsed
the order without objection. On March 26, 2001, the trial judge
conducted a hearing on the wife's motion to enter orders relating
to the husband's retirement plan and IRA account. At the hearing,
the husband argued the trial judge lacked jurisdiction to enter
the orders because more than sixty days had elapsed since the
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entry of the final divorce decree. The trial judge found that he
had jurisdiction to enter the orders because the orders involved
"the entry of documents to carry out that award that was agreed
upon in the property settlement agreement." The trial judge
entered a QDRO related to the husband's retirement plan and a
"Domestic Relations Order to Transfer IRA." Husband appeals the
entry of the orders.
March 26, 2001 Orders
"Where the court affirms, ratifies and incorporates by
reference in its decree [an] agreement or provision thereof, it
shall be deemed for all purposes to be a term of the decree, and
enforceable in the same manner as any provision of such decree."
Code § 20-109.1. The parties' agreement included specific
provisions regarding the division of husband's retirement plan,
his 401(K) plan, and his IRA account. Although the final divorce
decree stated that the matter was retained on the docket for sixty
days for entry of the orders to give effect to the provisions of
the agreement, Code § 20-107.3(K) provides for the continuing
jurisdiction of a trial court to enter orders "necessary to
effectuate and enforce any order entered pursuant to [that]
section." Such orders include pension, profit sharing, deferred
compensation, and retirement benefits "for the purpose of
establishing or maintaining the order as a [QDRO]." Code
§ 20-107.3(K)(4).
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The trial judge entered orders "necessary to effectuate and
enforce" the final divorce decree, which affirmed, ratified, and
incorporated the parties' agreement specifying the division of
husband's retirement assets and IRA account. The entry of these
orders involved "purely ministerial acts related to the QDRO."
Newsome v. Newsome, 18 Va. App. 22, 26, 441 S.E.2d 346, 348
(1994). This case is unlike Toomey v. Toomey, 251 Va. 168,
171-72, 465 S.E.2d 838, 839-40 (1996), and Patel v. Patel, 33 Va.
App. 776, 783, 537 S.E.2d 11, 15 (2000), where the issue concerned
the judge's power to make substantive rulings because the trial
judge had not adjudicated any valuation, interest, or entitlement
concerning distribution of the property. This case does not
involve the "adjudication" of equitable distribution matters after
the expiration of the time limitation established by the trial
judge. Therefore, we hold that the trial judge did not err in
entering the March 26, 2001 orders.
January 11, 2000 Order
The husband failed to object to the trial judge's entry of
the QDRO on January 11, 2000 for the 401(K) plan. "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. Accordingly, Rule 5A:18 bars our
consideration of this question on appeal. Moreover, the record
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does not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18. This is not an issue of
subject matter jurisdiction. "Subject matter jurisdiction is
the authority granted to a court by constitution or by statute
to adjudicate a class of cases or controversies." Earley v.
Landsidle, 257 Va. 365, 371, 514 S.E.2d 153, 156 (1999).
Attorney's Fees
Both parties request attorney's fees related to this
appeal. We decline to award either party attorney's fees. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).
The husband also requests attorney's fees incurred in
connection with the litigation and costs in the trial court.
"An award of attorney's fees is a matter submitted to the trial
court's sound discretion and is reviewable on appeal only for an
abuse of discretion." Brooks v. Brooks, 27 Va. App. 314, 319,
498 S.E.2d 461, 463-64 (1998). The trial judge did not abuse
his discretion in denying the husband's request for attorney's
fees.
Accordingly, the trial judge's decision is summarily
affirmed.
Affirmed.
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