William J. Fahey v. Mary Lucretia Fahey ( 1997 )

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 By unpublished opinion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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entry and did not appeal such order to this Court. Thus, the
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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