                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia


KENNETH WAYNE HUBBLE
                                              MEMORANDUM OPINION * BY
v.   Record No. 2015-01-4                      JUDGE G. STEVEN AGEE
                                                   AUGUST 6, 2002
TERRIE LEA SMITH HUBBLE


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                   James W. Haley, Jr., Judge

          Timothy T. Szabo (Szabo, Zelnick & Erickson,
          P.C., on brief), for appellant.

          Philip S. Marstiller, Jr. (Gary M. Nuckols;
          Chandra D. Lantz; Hirschler Fleischer, P.C.,
          on brief), for appellee.


     Kenneth Wayne Hubble (husband) appeals the decision of the

Stafford County Circuit Court to modify its final divorce decree

ordering him to pay Terrie Lea Smith Hubble (wife) a monthly sum

in addition to the payments she receives through direct

allotment from his military retirement plan.       For the following

reasons, we affirm the decision of the circuit court.

                            I.   BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this

appeal are recited.

     The parties entered into a property settlement agreement

(the PSA), dated December 31, 1996, which provided for the

division of marital property.   Provision 6 of the PSA provides,

in pertinent part:

          Upon the sale and closing of the marital
          residence . . . each and every month for as
          long as husband shall receive military
          retention/retirement pay, husband shall pay
          to wife through direct allotment, one-half
          of all monthly payments.

     As consideration for this negotiated monthly payment, wife

waived all claims to spousal support, compensation under

equitable distribution and all claims to any pension, deferred

compensation and state retirement plans.

     The final divorce decree of July 7, 1997, provides it is

"decreed that said Property Settlement Agreement be and is

hereby affirmed, ratified and . . . incorporated into this

decree, and that the parties fully comply with the terms of said

Property Settlement Agreement."   Neither the PSA nor the decree

defines "monthly payments" or differentiates between retirement

and disability payments.

     Husband was receiving military retirement benefits, but not

military disability benefits, at the time the PSA was executed

and the final decree was entered.   Subsequent to the decree,

husband applied to the Department of Veterans' Affairs for a


                                - 2 -
disability rating sufficient to qualify for disability benefits.

Husband's request was granted, and he elected to receive a

portion of his military retirement pay in the form of tax-free

disability benefits.   Husband's receipt of disability benefits

required him to waive an equal amount of military retirement

pay, which resulted in a diminished monthly sum paid directly to

wife by direct allotment.

     Wife then filed a "Petition to Show Cause for Contempt, a

Motion to Enforce Final Decree of Divorce, Motion to Modify

Final Decree, Motion for Judgment on Arrears, and Motion for

Award of Attorney's Fees."    Wife alleged she had been receiving

$883.28 per month as her one-half share of husband's retirement

pay before the disability payment change, which reduced her

monthly payment to $632.72.   Husband denied liability for

reduction in the direct allotment paid to wife, but did not deny

the allegations as to the $883.28 per month pre-disability

election payment and the $632.72 post-disability payment.

     At the hearing on these motions, husband contended that the

final decree was clear and unambiguous and wife was only

entitled to 50% of the retirement benefits actually received.

Therefore, he was not required to cover any shortfall in the

monthly payments paid to wife by direct allotment due to his

post-decree election to receive tax-free disability benefits in

lieu of military retirement benefits.



                                - 3 -
     The circuit court denied all of wife's motions except the

"Motion to Modify Final Decree of Divorce."   As to that motion,

the trial court ruled from the bench as follows:

          The agreement was that the lady was to
          collect one half of all monthly payments. I
          don't care what the source is. He can take
          it not out of his disability; take it out of
          some other source.

     Citing Code § 20-107.3(K)(4), the circuit court entered an

order to modify the 1997 final divorce decree:

          [Husband] shall . . . make direct payments
          to [wife], from month to month, so that the
          total payment received from [husband] each
          month would equal $883.28, less the total
          received by [wife] each month from her
          ex-husband's military retention/retirement
          pay as paid to her through direct allotment.

                           II.   ANALYSIS

     On appeal, husband contends the circuit court was without

authority to modify its final divorce decree.    He also contends

that there was insufficient evidence to support the fixed amount

set by the circuit court's modification.    For the following

reasons we disagree and affirm the trial court's decision.

          A.   MODIFICATION UNDER CODE § 20-107.3(K)(4)

     In Owen v. Owen, 14 Va. App. 623, 419 S.E.2d 267 (1992), we

held federal law does not prevent a husband and wife from

entering into an agreement in which they agree to a "set level

of payments, the amount of which is determined by considering

disability benefits as well as retirement benefits."     Id. at

628, 419 S.E.2d at 270.   "Such an arrangement does not offend

                                 - 4 -
the federal prohibition against a direct assignment of military

disability pay by property settlement agreement."     Id. at 626,

419 S.E.2 at 269.   When Mrs. Owen's monthly payment was

decreased due to the husband's election to receive disability

benefits, we held "the [circuit] court may consider this

reduction in determining its award and may provide for

alternative payment as compensation for the wife's loss."     Id.

at 627, 419 S.E.2d at 270.

     In the case at bar, wife's right to a sum equal to 50% of

the monthly payments received by husband arises from the PSA

that was approved and confirmed by the circuit court in its

final divorce decree. 1   Such an arrangement is clearly

permissible under Owen.    See id.   Wife thereby acquired a vested

property right, through the final divorce decree, to one-half of

husband's monthly payments as of the entry of the decree.     See

generally Shoosmith v. Scott, 217 Va. 290, 292, 227 S.E.2d 729,

731 (1976); Higgins v. McFarland, 196 Va. 889, 894-95, 86 S.E.2d


     1
       The failure of the PSA to define the term "military
retention/retirement pay" does not render the PSA term "one half
of all monthly payments" undefined. In the context of the PSA,
the reference to "military retention/retirement pay" is to
establish the period of time for which wife is to receive
monthly payments, to wit: "for as long as husband shall receive
military retention/retirement pay." Husband has never argued
that he failed to receive military retention/retirement pay so
as to terminate wife's entitlement to monthly payments.
     We, therefore, disagree with the view expressed in the
dissent that "all monthly payments" is limited to military
retirement payments, as the plain language of the PSA does not
so provide.


                                - 5 -
168, 172 (1955).   There is no provision in the PSA or the final

decree that limits the wife's otherwise vested rights.

     A party's vested right under a court's decree may not be

unilaterally altered by another party.   See id.    Yet, that is

what occurred in this case.   Husband's post-decree decision to

apply for and accept disability benefits in lieu of military

retirement benefits resulted in a reduction of the monthly

payments he would have received as retirement pay and to which

wife had a vested right and was receiving by direct allotment.

While husband had the legal right to elect to receive the

disability benefits, his doing so caused a unilateral

modification of the final divorce decree and divested wife of

her then vested property entitlement.    In effect, husband

altered the terms of the PSA without court approval.

     In such a situation, Code § 20-107.3(K)(4) empowers the

circuit court to modify a final divorce decree so as to

effectuate the expressed intent of the agreement.     See Code

§ 20-107.3 2 ; see also Williams v. Williams, 32 Va. App. 72, 526

S.E.2d 301 (2000).   The decree may be modified so long as the

modifications are "consistent with the substantive provisions of


     2
       Under Rule 1:1, courts ordinarily lose jurisdiction
twenty-one days after entry of a decree, but when qualifying or
maintaining a qualified domestic relations order, courts may
"[m]odify any order . . . intended to . . . divide . . .
retirement benefits . . . to revise or conform its terms so as
to effectuate the expressed intent of the order." Code §
20-107.3(K)(4).


                               - 6 -
the original decree" and not made "simply to adjust . . . [the

decree's] terms in light of the parties' changed circumstances."

Caudle v. Caudle, 18 Va. App. 795, 798, 447 S.E.2d 247, 249

(1994).

     The circuit court's modifying order now on appeal simply

revised the final divorce decree to conform to the substantive

decision expressed in that decree:       Wife is to receive half of

husband's monthly payments.   The circuit court effectuated the

original decree's expressed intent by ordering husband to pay

wife a sum equal to the sum she had been receiving before

husband's unilateral and unauthorized modification less the sum

now received through direct allotment.      This modification was

not a substantive modification; it did not modify the percentage

or amount due wife as contemplated under the PSA.      The

modification accomplished what the final order directed and

caused the expressed intent of the original order to be

implemented.    Before husband elected the disability waiver, wife

received one-half of his monthly benefits.      After the election,

wife did not.   However, once the modification decree was

entered, wife was restored to the same position as before

husband's election:   She received one-half of husband's monthly

payments, which is what the final decree provided.      While part

of such monthly payments are not now made by direct allotment,

that circumstance is solely caused by husband's unilateral act

which reduced wife's payments.

                                 - 7 -
     The circuit court is permitted to make such a procedural

modification under Code § 20-107.3(K)(4).    See Williams, 32 Va.

App. 72, 526 S.E.2d 301.   In Williams, we held the husband (the

retirement plan participant) was required to make payments

directly to his ex-wife when the QDRO entered originally did not

cause the payment to the ex-wife of benefits from the plan as

the final decree had provided.    As in the case at bar, we found

the authority in Code § 20-107.3(K)(4) "to effectuate the

expressed intent of the order" to authorize modification of a

prior decree where the modification was directed to the plan

participant individually and not to the retirement plan itself.

Id. at 76, 526 S.E.2d at 303.    The action taken by the circuit

court, therefore, was proper pursuant to Code § 20-107.3(K)(4). 3

     Our decision is consistent with our previous holdings and

with holdings in other jurisdictions.    In Johnson v. Johnson, 27

S.W.3d 892 (Tenn. 2001), the Supreme Court of Tennessee

considered a similar case to that at bar.   The Johnsons entered

a written marital dissolution agreement (MDA), in which the

parties agreed Ms. Johnson would "receive one-half of all

military retirement benefits due the Husband" upon his


     3
       The circuit court could not order that wife receive, by
direct allotment, any portion of the sum received by husband as
disability benefits. See 10 U.S.C. § 1408, et seq.; Mansell v.
Mansell, 490 U.S. 581 (1989). Husband has not been ordered to
pay wife his disability benefits. Instead, husband is free to
satisfy his obligation to wife by using other available assets.



                                 - 8 -
retirement.   After he retired, post-divorce and after Ms.

Johnson had begun receiving her allotted share of benefits, Mr.

Johnson elected to waive a potion of his military retired pay to

receive the same amount in non-taxable disability benefits.        The

payment of Ms. Johnson's share of the military retired pay was

reduced accordingly.   She subsequently requested a modification,

or enforcement, of the MDA in an amount equal to the reduction.

     The Tennessee court found in favor of Ms. Johnson and held

that by entering the MDA the parties agreed to a course of

action, which the trial court ordered, and that Mr. Johnson

failed to perform as ordered.   It reasoned that when an MDA

divides military retirement benefits, the non-military spouse

obtains a vested interest in his or her portion of those

benefits as of the date of the final decree and any act of the

military spouse that unilaterally decreases the non-military

spouse's vested interest is an impermissible modification of a

division of marital property and a violation of the final decree

of divorce incorporating the MDA.       Id. at 897-98.

     In In re Marriage of Gaddis, 957 P.2d 1010 (Ariz. Ct. App.

1997), the Arizona Court of Appeals was also faced with facts

similar to the case at bar.   In Gaddis, the court's decree

awarded Ms. Gaddis "one-half of [her husband's] military

retirement benefits as of February 1994."      957 P.2d at 1010.

Following entry of the divorce decree, Ms. Gaddis received

payments of one-half of Mr. Gaddis' retirement income for nearly

                                - 9 -
a full year.    Mr. Gaddis subsequently obtained civil service

employment with the federal government.         Pursuant to federal

law, his monthly military retirement pay was reduced, which

correspondingly reduced Ms. Gaddis' monthly payment of

retirement benefits.     Id. at 1011.       Ms. Gaddis then petitioned

the court to enforce the terms of the original divorce decree.

     The Arizona Court of Appeals held that Mr. Gaddis'

unilateral act constituted an impermissible modification of the

divorce decree.     Id. at 1013.    The court held that "Husband

deliberately frustrated the decree by voluntarily waiving

retirement benefits which the court had vested in wife.         He

could not reduce that vested interest by unilaterally obtaining

civil service employment post-decree."          Id.

     We find husband's actions here identical to those

considered in Johnson and Gaddis, and hold, as in those cases,

that such a unilateral modification is prohibited. 4

               B.   THE MONTHLY SUM TO BE PAID TO WIFE

     Husband also contends that the circuit court has acted

erroneously in establishing the monthly sum to be paid to wife.

It is his contention that the circuit court has acted to order

him to pay wife a monthly sum higher than what she is entitled

to under the parties' PSA.    Husband's argument arises from his

contention that wife is only entitled to one-half of the actual


     4
         See also Dexter v. Dexter, 661 A.2d 171 (Md. 1995).


                                   - 10 -
retirement benefits he receives and nothing more.   As we

previously held, wife is entitled to one-half of the monthly

payments husband would ordinarily receive, regardless of his

post-decree bifurcation of the payments into retirement and

disability portions.   The circuit court's calculation of an

amount to by paid by husband to wife is in accord with that

entitlement.

     The circuit court was presented with unrefutted allegations

in wife's pleadings that she received $883.29/month prior to

husband's election to receive disability benefits and then

lesser amounts thereafter.   The $883.29 monthly payment is the

amount to which wife had acquired a vested property right

pursuant to the PSA and final divorce decree and represented

"one-half of all monthly payments."    It was husband's unilateral

act to modify the circuit court's final decree, and not any

action by wife, which caused the court to specify one-half the

payments as a particular dollar amount.   We, therefore, find no

error in the circuit court's calculation and order finding that

wife is entitled to receive the sum set in the modification

decree through a combination of direct allotment and payment by

husband of any monthly deficiency. 5




     5
       Husband's monthly benefits may fluctuate in the future due
to cost of living adjustments and other factors. Our decision
only addresses the order before us, which does not consider the
impact of future changes in the gross monthly benefit amount.

                              - 11 -
The decision of the circuit court is therefore affirmed.

                                                   Affirmed.




                        - 12 -
Benton, J., dissenting.

     The final decree of divorce "affirmed, ratified and . . .

incorporated" the parties' property settlement agreement.    The

portion of the agreement concerning the husband's military

pension states as follows:

          [E]ach and every month for as long as
          husband shall receive military
          retention/retirement pay, husband shall pay
          to wife through direct allotment, one-half
          of all monthly payments. Until such time as
          the direct allotment begins, husband shall
          pay to wife, through certified funds, said
          one-half. Husband shall furnish to wife a
          copy of the IRS W-2 showing the annual
          amount of such payment . . . . [B]oth agree
          to take all necessary steps to have all tax
          obligations, both state and federal, arising
          from the receipt of such income
          appropriately allocated between them.

     In response to the wife's motions, the trial judge entered

an order that recites, in pertinent part, as follows:

          (1) The [wife's] Petition to Show Cause for
          Contempt is DENIED;

          (2) The Motion to Enforce Final Decree of
          Divorce is DENIED;

          (3) The Motion for Judgment on Arrears is
          DENIED;

          (4) [Both] Motion[s] for Award of
          Attorney's Fees are DENIED;

          (5) Motion to Modify Final Decree of
          Divorce is GRANTED to the [wife], in that
          the Final Decree of Divorce is modified in
          the following respect as it pertains to the
          [husband], pursuant to Code Section
          20-107.3(K)(4) of the Code of Virginia,
          1950, as amended. All other terms and
          conditions not in conflict with the same, as


                             - 13 -
          set forth in the Final Decree of Divorce
          remain in full force and effect:

          That [the husband] shall, effective May 1,
          2001, make direct payments to [the wife],
          from month to month, so that the total
          payment received from [the husband] each
          month would equal $883.28, less the total
          received by [the wife] each month from her
          ex-husband's military retention/retirement
          pay as paid to her through direct allotment.

     This order expressly denied the motion to enforce the final

decree and granted the motion to modify the final decree.    Code

§ 20-109(C) provides, however, that "if a stipulation or

contract signed by the party to whom such relief might otherwise

be awarded is filed . . . no decree or order . . . establishing

or imposing any other condition or consideration, monetary or

nonmonetary, shall be entered except in accordance with that

stipulation or contract."    Applying this statute, I would hold

that the trial judge erred by modifying the parties' agreement.

"Code § 20-109 inhibits the power of the court to award or

consider modification of the decree to the extent that [monetary

conditions] are provided for in the incorporated agreement of

the parties."     White v. White, 257 Va. 139, 144, 509 S.E.2d 323,

325 (1999).     See also Parra v. Parra, 1 Va. App. 118, 128-29,

336 S.E.2d 157, 162-63 (1985).

     This property settlement agreement was drafted and signed

in 1996, which was more than fourteen years after Congress

addressed the matter of the division of military pensions and

passed the Uniformed Services Former Spouses Protection Act, 10

                                - 14 -
U.S.C. § 1408.   See Mansell v. Mansell, 490 U.S. 581 (1989).     In

addition, the agreement was signed more than six years after our

decision in Lambert v. Lambert, 10 Va. App. 623, 395 S.E.2d 207

(1990), and more than four years after our decision in Owen v.

Owen, 14 Va. App. 623, 419 S.E.2d 267 (1992).   Despite this

significant passage of time after the Act and these decisions,

the agreement fails to define the term "military

retention/retirement pay," which the wife is to receive "through

direct allotment."   Moreover, the agreement contains no

reference to "disposable retired pay," as that term is defined

in 10 U.S.C. § 1408(a)(4).   These defects are significant

because the Uniformed Services Former Spouses Protection Act has

provisions which determine the mechanism of payment by direct

allotment.   Those provisions are governed by reference to the

"disposable retired pay."    See 10 U.S.C. §§ 1408(c) and 1408(d).

     The failure of the parties' agreement to address these

matters leaves unanswered what they intended.   The agreement

leaves uncertain whether the parties intended that the wife

would receive one-half of the husband's disposable retired pay,

which she could receive through direct allotment as provided in

the agreement.   Likewise, the agreement leaves unclear whether

they intended the alternative possibility that the wife would

receive one-half of the husband's gross retirement pay without

deductions, i.e., disposable retired pay plus disability and

other pay.   See Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn.

                               - 15 -
2001) (holding that the agreement's designation of "one-half of

all military retirement benefits" meant "all amounts to which

the retiree would ordinarily be entitled as a result of

retirement from the military").   If the latter had been the

parties' intention, however, federal law would not allow the

wife to receive the payments through direct allotment, which is

the method of payment the agreement specifies.

     The portion of the property settlement agreement concerning

"military retention/retirement pay" is sparse and ambiguous.

See Knoop v. Knoop, 542 N.W.2d 114, 118 (N.D. 1996) (holding

that the term "retirement pay" in a settlement agreement is

ambiguous because of the definition of "disposable retired pay"

in 10 U.S.C. § 1408(a)(4)); Moon v. Moon, 795 S.W.2d 511

(Mo. App. 1990) (holding that the term "retired pay entitlement"

in the parties' agreement is governed by the definition of

"disposable retired pay" in 10 U.S.C. § 1408(a)(4)).   Moreover,

the record in this case contains no evidence of the parties'

intentions.   Indeed, no evidence indicates, for example, as the

trial judge effectively found in modifying the agreement, that

either party intended to fix the monthly payment at the sum

certain of $883.28.   Cf. In re Marriage of Gaddis, 957 P.2d

1010, 1010 (Ariz. Ct. App. 1998) (noting that the initial

divorce decree awarded the wife the sum certain of "one-half of

[the husband's] military retirement benefits as of February

1994").   Thus, I would also hold that the issue before the trial

                              - 16 -
judge concerned the interpretation of an ambiguous agreement

which required evidence of the parties' intentions.

     For these reasons, I would reverse the order and remand for

further proceedings.




                             - 17 -
