Thomas E. McGlathery v. Sharron A. McGlathery

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.
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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
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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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