Malcolm Lee Hollingsworth v. Sara L. Hollingsworth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
SARA L. HOLLINGSWORTH
v. Record No. 1308-97-4
MALCOLM LEE HOLLINGSWORTH
MEMORANDUM OPINION * BY
JUDGE RUDOLPH BUMGARDNER, III
MALCOLM LEE HOLLINGSWORTH MAY 19, 1998
v. Record No. 1486-97-4
SARA L. HOLLINGSWORTH
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
John W. Scott, Jr., Judge
David L. Duff for Sara L. Hollingsworth.
David W. Robinson (Murray M. Van Lear, II;
Hirschler, Fleischer, Weinberg, Cox & Allen;
Scott, Daltan & Van Lear, L.L.P., on briefs),
for Malcolm Lee Hollingsworth.
Sara Hollingsworth petitioned the trial court to enforce a
decree of divorce entered in Texas. The trial court ruled that
she was entitled to half the military retirement benefits
received by her husband, Malcolm Lee Hollingsworth. She appeals
this judgment. The court further decreed that Mr. Hollingsworth
owed her for her portion of the retirement benefits for the
period July 1989 to March 1990. From this decision, the husband
appeals. The two appeals were consolidated.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The parties were divorced by a Texas decree dated July 17,
1981. The decree approved and incorporated by reference a
separation agreement executed May 29, 1981. That agreement
provided that the wife would receive "[h]er proportional share of
Husband's Military Retirement Benefits, to be one-half (1/2) of
seventeen (17) years over the number of years of active duty for
retirement purposes." The parties have agreed that her
proportionate share is 29.92% of the husband's military
retirement benefits.
When Mr. Hollingsworth retired June 30, 1989, he immediately
went to work as a civilian employee of the federal government.
Because of his civil employment, the husband's monthly military
retirement pay was reduced pursuant to the Dual Compensation Act
of 1964. 5 U.S.C. § 5531. From the time she began receiving
benefits in March 1990 until the present, Mrs. Hollingsworth has
received 29.92% of the reduced amount. She did not question the
computation of her entitlement until November 1995. When the
wife was not able to get the amount increased voluntarily, she
filed this petition. She asked the trial court to grant her a
percentage of the husband's benefits before they were reduced as
a result of his civilian employment. The trial court denied her
request. The wife then filed a motion to reconsider and
requested judgment for the amounts not received in 1989 and 1990.
Mr. Hollingsworth argues that the term, "Military Retirement
Benefits," is not ambiguous. We agree that it is not and that
parol evidence is not needed to decide its meaning as intended by
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the parties at the time of executing the contract. We disagree
that the term should be construed to mean the reduced amount paid
to wife by the military pay authorities.
"Military Retirement Benefits," as used in the separation
agreement, should be given its plain meaning. See Berry v.
Klinger, 225 Va. 201, 208, 300 S.E.2d 792, 796 (1983). It is the
retirement benefit to which a member of the armed services is
entitled because of his service in the Armed Forces. It is the
amount before it is reduced by laws that may operate on the full
benefit because of a voluntary act of the retired beneficiary.
The benefit would be the amount to which he is entitled absent
any voluntary act causing a reduction in the amount dispensed to
him.
While the military cannot be ordered to make payments
contrary to their rules and regulations, the husband is
contractually obligated to pay the larger amount, and he can be
ordered to pay the difference between what was paid directly to
the spouse and what was due. The decision is accordingly
reversed and remanded for the trial court to grant relief
consistent with this holding.
The husband appeals the trial court's award to Mrs.
Hollingsworth of her share of the retirement benefits for the
nine-month period from July 1989 until March 1990. The husband
argues her claim is barred by laches. He further objects that
the trial court erroneously awarded interest on the amount he was
ordered to pay his wife for the nine-month period.
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The doctrine of laches requires that there not only be delay
in asserting rights but also that the delay be detrimental to the
party asserting that bar. See Princess Anne Hills Civic League,
Inc. v. Susan Constant Real Estate Trust, 243 Va. 53, 58, 413
S.E.2d 599, 602 (1992). The husband has not asserted any
detriment he suffered as a result of his wife's delay, arguing
only that he planned his financial affairs under the assumption
that he was fulfilling his obligation under the contract. That
is not the type of detriment contemplated by the defense.
Finding that laches does not bar the claim, we affirm this
part of the judgment. Further, having ruled that the entitlement
should be applied to the benefits before reducing it, we find no
error in the calculation of the trial court. Finally, we hold
that the award of interest on a judgment is an exercise of
discretion, which was not abused in this case. See Code
§ 8.01-382; Marks v. Sanzo, 231 Va. 350, 356, 345 S.E.2d 263, 267
(1986). Accordingly, we affirm the court in that judgment.
Affirmed in part,
reversed and
remanded in part.
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