                               COURT OF APPEALS OF VIRGINIA


Present:    Judges Frank, Alston and Senior Judge Coleman


JAMES CHRISTOPHER HANEY
                                                                MEMORANDUM OPINION *
v.     Record No. 1204-10-4                                         PER CURIAM
                                                                  NOVEMBER 2, 2010
MARINA A. HANEY


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Jane Marum Roush, Judge

                 (James Christopher Haney, pro se, on brief).

                 No brief for appellee.


       James Christopher Haney (husband) appeals four qualified domestic relations orders

(QDROs) entered by the trial court. Husband argues that the trial court erred by entering the

QDROs because they do not conform to the final decree of divorce. Upon reviewing the record

and opening brief, we conclude that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. See Rule 5A:27.

                                          BACKGROUND

       The parties married on July 29, 1992, separated on September 24, 2008, and divorced on

December 10, 2009. The final decree of divorce divided equally the marital share of husband’s

retirement plans as follows:

                 4. IRA’s:

                 The following American Century IRA’s held in husband’s name
                 are marital and shall be divided equally between the parties:

                 IRA PLANS VALUE DATE OF HEARING

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                          *      *       *        *      *      *       *

               Northeast Investors Trust – IRA                              $13,251.01

               Northeast Investors Trust – Roth                             $ 2,602.71

                          *      *       *        *      *      *       *

               5. RETIREMENT PLANS:

               A. The following 403(B) Plans held in husband’s name are marital
               and shall be divided equally between the parties with each
               receiving 50% of the value of said accounts:

                      Defenders of Wildlife Vista 403(b)                    $ 6,882.16

                      Defenders of Wildlife Intrntl. Growth 403(b)          $16,953.41

                      Defenders of Wildlife Prime Money 403(b)              $ 4,102.65

                      Defenders of Wildlife Infl.-adj Bond 403(b)           $34,063.89

                          *      *       *        *      *      *       *

               C. The Defender’s Prudential Retirement Plan held in husband’s
               name with an approximate balance of $36,273.40 is part-marital
               and part separate. . . . The marital share is valued at approximately
               $25,513.55 and shall be divided equally between the parties with
               each receiving 50% of the marital share.

                          *      *       *        *      *      *       *

               E. The TIAA and CREF plans held in husband’s name are marital
               and shall be divided equally between the parties. The TIAA plan
               . . . has an approximate value of $4123.00 and the CREF plan . . .
               has an approximate value of $4534.00.

       Counsel for Marina A. Haney (wife) prepared the QDROs to divide the retirement.

Husband objected to the QDROs because they modified the language from the final decree. The

trial court entered the QDROs, over husband’s objections. This appeal followed.

                                             ANALYSIS

       Husband argues that the trial court erred in entering the QDROs because they did not

reflect the language in the final decree of divorce. Specifically, he contends that the QDROs


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included language that allowed passive gains and losses on wife’s share and transferred her share

on a pro rata basis.

        Husband asserts that the trial court violated Rule 1:1 by entering the QDROs that

included language not in the final decree. The final decree did not provide that wife would

receive gains or losses on her share, so, according to husband, the trial court impermissibly

modified its order more than twenty-one days after the hearing.

        A trial court

                shall have the continuing authority and jurisdiction to make any
                additional orders necessary to effectuate and enforce any order
                entered pursuant to this section, including the authority to:

                           *        *     *       *       *       *       *

                Modify any order . . . intended to affect or divide any pension,
                profit-sharing or deferred compensation plan or retirement benefits
                pursuant to the United States Internal Revenue Code or other
                applicable federal laws, only for the purpose of establishing or
                maintaining the order as a qualified domestic relations order or to
                revise or conform its terms so as to effectuate the expressed intent
                of the order.

Code § 20-107.3(K)(4).

        As in Lewis v. Lewis, 53 Va. App. 528, 540, 673 S.E.2d 888, 894 (2009), the final decree

of divorce in this case did not award wife half of the marital share as of a particular date.

Likewise, the final decree did not “specifically state[] that the parties intended to allot wife only

half of the actual amount in the account on” a specific date. Id.

                Instead, the [final decree] awarded wife half of the “marital share,”
                which accrued passive interest after the parties separated and after
                the [entry of the final decree]. This interest in clearly not part of
                husband’s separate portion of the [retirement accounts] nor is it
                part of husband’s marital portion of the [retirement accounts]. . . .
                Thus, the interest that accrued on wife’s portion of the marital
                share belonged to wife, just as the interest that accrued on
                husband’s portion of the marital share belonged to husband.

Id. (internal citations omitted).

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       Since the final decree did not award wife a specific amount of husband’s retirement as of

a particular date, the trial court did not err in including a provision that awarded gains or losses

on wife’s portion of the marital share. 1

                                            CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                            Affirmed.




       1
          Husband also argues that the trial court changed the valuation date for the QDRO
submitted to TIAA-CREF because the QDRO stated that wife’s share would be “adjusted for any
passive gains or losses from September 24, 2008.” As stated above, the final decree did not
divide the TIAA-CREF as of a particular date; therefore, the trial court did not err in including a
date in the QDRO. In fact, the date used was the parties’ date of separation.

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