                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia


STEVEN LEE JORDAN

v.      Record No. 2583-03-2

GEMMA C.S. JORDAN                                                MEMORANDUM OPINION* BY
                                                                 JUDGE JERE M.H. WILLIS, JR.
                                                                      JUNE 22, 2004
GEMMA C.S. JORDAN

v.      Record No. 2616-03-2

STEVEN LEE JORDAN


                   FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                               William H. Ledbetter, Jr., Judge

                  Joseph A. Vance, IV (Vance & Associates, on briefs), for Steven Lee
                  Jordan.

                  Timothy W. Barbrow (Law Office of Timothy Barbrow, on briefs),
                  for Gemma C.S. Jordan.


        The parties appeal from decrees entered by the trial court in connection with their divorce.

Steven Lee Jordan (husband) contends that the “trial court’s methods of calculating the marital

share of [his] military retirement does not fit the definition of marital share under the statute in that

it awards [his wife] a portion of the retirement benefits earned by [him] before the marriage.”

        Gemma Jordan (wife) contends that the trial court erred (1) in denying her request for

survivor’s benefits, (2) in computing daycare expenses used to determine child support, (3) in

denying her “request for qualifying language for the Federal Employees Retirement System


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
pension,” (4) in denying her request for language designed to protect her interest in husband’s

army reserve pay, (5) in dividing a thrift plan, and (6) in awarding husband a tax exemption for

one of the children.

        We affirm the judgment of the trial court.

                                  I. PROCEDURAL BACKGROUND

        “On appeal, we review the evidence in the light most favorable to the prevailing party

below . . . . Where the record contains credible evidence in support of the findings made by [the

trial] court, we may not retry the facts or substitute our view of the facts for those of the trial

court.” Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2

(1992) (citation omitted).

        Husband and wife were married on September 23, 1989. They have two minor children:

Kimberly and Matthew. The parties separated on May 19, 2001. On wife’s motion, the trial

court referred the matter to a commissioner in chancery, who notified the parties that he would

receive testimony and evidence on July 26, 2002. He instructed them to bring “such witnesses

and demonstrative evidence so as to enable” him to comply with the decree of reference.

        On July 26, 2002, the parties presented evidence and arguments to the commissioner.

The commissioner allowed the parties to submit post-hearing memoranda by August 15, 2002.

The commissioner filed his report on October 31, 2002. Husband filed his exceptions to the

report on November 7, 2002, and wife filed hers on November 12, 2002.

        The trial court “reviewed the record of this case, including the transcript and exhibits”

from the commissioner’s hearing, “the memoranda submitted by counsel, and . . . the

commissioner’s 22-page report.” By opinion letter dated and entered March 6, 2003, the trial

court identified and classified the parties’ property and found “that the commissioner’s




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recommended distribution is fair and appropriate under all the circumstances, taking into account

the statutory factors.” Specifically, the trial court held that husband’s “retirement benefits will

be distributed as they are received pursuant to [Code] § 20-107.3(G), according to the

computation set forth on page 17 of the [commissioner’s] report. In essence, the commissioner

recommends that [wife] receive 50% of the marital share of such benefits, with no survivor’s

benefits.”

       The parties submitted motions to reconsider and accompanying memoranda. By letter

dated May 1, 2003, the trial court denied the motions. It found:

               Use of “point time” to calculate retirement benefits can be an
               appropriate method at arriving at a fair decision for division of
               certain types of military retirement benefits under Virginia Code
               § 20-107.3. However, upon reflection the standard use of “years”
               to determine marital share is also proper, and brings about a result
               that is just and equitable in this case.

The trial court further stated that the denial of survivor’s benefits “as a component of [wife’s]

marital share of [husband’s] retirement funds does not prejudice Mrs. Jordan. The court is of the

opinion that no survivor’s benefits should be awarded in this case.”

       On July 14, 2003, the trial court entered a decree granting husband a divorce, establishing

spousal and child support, and distributing the marital property. However, on August 4, 2003,

the trial court vacated the July 14, 2003 decree “to allow counsel to devise appropriate language

for implementation of this court’s rulings under Virginia Code § 20-107.3(G).” It then

“reinstate[d] the divorce,” reiterating the grounds of divorce and the terms of spousal and child

support. In addition, it awarded husband “the income tax dependency exemption” for the son,

awarded wife “the income tax dependency exemption” for the daughter, and ordered the parties

to execute all appropriate documents and documents “necessary to effectuate” its order.




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       On September 8, 2003, the trial court entered a final decree distributing the parties’

property and ordering the parties “to execute all necessary deeds or other documents necessary to

effectuate the transfer or sale of all property required or allowed . . . under this decree.” The

decree included language pursuant to the Uniformed Services Former Spouses’ Protection Act

and Code § 20-107.3 regarding wife’s rights as an alternate payee. Finally, the decree “reserved”

the “jurisdiction of this Court to enter further orders to effectuate the division of the military

pension, the federal Employees Retirement System pension and the Thrift Savings Plan.”

        II. RECORD NO. 2583-03-2: HUSBAND’S APPEAL – MILITARY PENSION

                                              Background Facts

       Husband asked the commissioner and the trial court to determine the marital share of his

military pension by using a point system, whereby active duty service accrues more points than

reserve duty. He testified that he retired from active duty early in 1991, receiving a lump sum

payment of $73,383.97. He then joined the reserves. He explained, “if you went into the

reserves and achieved at least twenty years towards retirement, you would have to pay that

portion back out of your reserve retirement benefits.” He explained that the reserves have two

types of programs: (1) For “drilling reservist where you go one weekend a month and two weeks

a year and you get paid for that”; and (2) IMA type position where you just go in and you drill

for points only, which gives you a little more money at retirement age sixty but you don’t receive

anything at the present time.” Husband was in the latter program during the times relevant to

these proceedings.

       During the parties’ twelve-year marriage, husband was on active duty for two and

one-half years and in the reserves for the remainder. He must repay the $73,383.97 early

retirement payment before receiving retirement benefits. He estimated it would take between




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four and eight years to repay the early retirement award and begin receiving his retirement

benefits. At the July 26, 2002 commissioner’s hearing, husband offered, and the commissioner

admitted, Plaintiff’s Exhibit 15, a document husband “put together that basically indicated

roughly how many retirement points [he] thought [he] had at the time.” The exhibit reflected

points accumulated before marriage, points accumulated during the marriage and points

accumulated after separation. However, the exhibit set forth mere estimates for the periods

January 27, 2000 through January 26, 2001, January 27, 2001 through May 19, 2001 and May

20, 2001 through January 16, 2002. Husband argued that because active service generated a

higher rate of point accumulation than did reserve service, the marital share of his pension should

be determined by comparing points accumulated during the married portion of his career with

total points accumulated. He argued that a calculation based on comparing married time in

service with total time in service “awarded [wife] more than is contemplated under Virginia

Code § 20-107.3(G)(1).”

                                                Discussion

       “A decision regarding equitable distribution rests within the sound discretion of the trial

court and will not be disturbed unless it is plainly wrong or without evidence to support it.”

Holden v. Holden, 31 Va. App. 24, 26, 520 S.E.2d 842, 844 (1999) (citing McDavid v.

McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994)). “Unless it appears from the

record that the trial judge has not considered or has misapplied one of the statutory mandates,

this Court will not reverse on appeal.” Id. at 27, 520 S.E.2d at 844.

       In making an equitable distribution award, “the [trial] court distributes the property to the

parties, taking into consideration the factors presented in Code § 20-107.3(E).” Gottlieb v.

Gottlieb, 19 Va. App. 77, 93, 448 S.E.2d 666, 676 (1994). “[U]pon consideration of the factors




                                                -5-
set forth in subsection E” of Code § 20-107.3, “[t]he court may direct payment of a percentage of

the marital share of any pension, profit-sharing or deferred compensation plan or retirement

benefits, whether vested or nonvested, which constitutes marital property and whether payable in

a lump sum or over a period of time.” The marital share is “that portion of the total interest, the

right to which was earned during the marriage and before the last separation of the parties . . . .”

Code § 20-107.3(G). In Mosley v. Mosley, 19 Va. App. 192, 198, 450 S.E.2d 161, 165 (1994),

we held that this mandatory provision “can be implemented through the use of a simple

formula.” Under that formula, “[t]he number of years that the spouse was in the pension plan

while in the marriage serves as the numerator and the total number of years in the pension plan

serves as the denominator. This fraction establishes the marital share of the pension as defined

by the statute.” Id.

       In its March 6, 2003 opinion letter, the trial court found that the commissioner “properly

considered the statutory factors enumerated in Code § 20-107.3(E).” Reviewing the evidence

and arguments of counsel, it held “that the commissioner’s recommended distribution is fair and

appropriate under all the circumstances, taking into account the statutory factors.” It approved

and affirmed the commissioner’s recommendation concerning husband’s retirement benefits. It

noted that, although wife “will share in the increased benefits resulting from adding his military

service to his civil service, . . . she will also share in the reduction of his retirement payments

necessary to reinstate the credit for military service.”

       In its May 1, 2003 opinion letter, the trial court rejected the “point time” method to

calculating retirement and adopted the Mosley approach. We find no abuse of discretion in this

holding.




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       Whereas the “points” method may be proper under appropriate circumstances, husband

failed to present an up-to-date, accurate computation of marital and non-marital points.

Furthermore, husband’s career periods, both marital and non-marital, are interrelated, influencing

both the fraction of retirement benefits to be considered marital and the level of pay to which that

fraction applies. Thus, the record supports the trial court’s decision.

                     III. RECORD NO. 2616-03-3: WIFE’S ARGUMENTS

                                          1. Survivor’s Benefits

       Wife contends the trial court erred in failing to award her “survivor’s benefits in regard to

the Husband’s retirement plans.”

       Wife appeared at the July 26, 2002 commissioner’s hearing without an attorney. The

commissioner asked whether she was asking for a share of husband’s military retirement. She

replied:

               Yes. I believe I deserve to get – if I could remember, there was a
               SBP survivor’s plan and they have the SGLI plan. Since I don’t
               have an attorney, I really don’t know what to ask.

       Wife offered no evidence, nor did she question husband at the hearing, regarding what, if

any, survivor benefit plan(s) were available through the military and what can and must be done

to effectuate such a plan or plans. Wife indicated she preserved this issue on page 233 of the

Joint Appendix, the final page of the final decree. Her written objection on the subject consisted

of the following: “Failure to award survivor’s benefits.”

       In its May 1, 2003 opinion letter, the trial court addressed wife’s motion to reconsider

this issue. In denying the motion, the trial court held “that no survivor’s benefits should be

awarded in this case.”




                                                -7-
       “[T]he [trial] court may order a party to designate a spouse or a former spouse as

irrevocable beneficiary . . . of all or a portion of any survivor benefit or annuity plan of

whatsoever nature.” Code § 20-107.3(G)(2) (emphasis added). Also, “[t]he court, in its

discretion, shall determine as between the parties, who shall bear the costs of maintaining such

plan.” Id. Wife failed to specify or present evidence about the details of husband’s plan(s), the

availability of survivorship rights, and the requirements for effectuating any such rights. This

record and the facts of this case disclose no abuse of discretion in the trial court’s refusal to

award wife survivor’s benefits.

                                            2. Daycare Expenses

       Wife contends the trial court erred “in the computation of daycare expenses used to

determine child support.”

       The trial court initially entered a decree on July 14, 2003, granting husband a divorce and

resolving all issues regarding property distribution and child and spousal support. However, on

July 29, 2003, wife filed a motion to reconsider, attaching a “guideline worksheet accurately

reflect[ing] the Commissioner and Court’s findings.” She also argued that the decree of divorce

“in its current state will not allow [wife] to receive any federal employment retirement system

benefits” because it failed to include certain qualifying language.

       By order entered August 4, 2003, the trial court vacated the July 14, 2003 “final decree of

divorce . . . pursuant to Rule 1:1 to allow time for counsel to devise appropriate language for

implementation of [the trial] court’s rulings under Virginia Code § 20-107.3(G).” In that same

order, the trial court “reinstate[d] the divorce as follows:” (1) it awarded husband a divorce on

the ground of living separate and apart, (2) it awarded spousal support, (3) it awarded child

support, (4) it allowed husband a tax dependency exemption for the son, and (5) it allowed wife a




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tax dependency exemption for the daughter. It then continued the matter “under [Code]

§ 20-107.3(A) . . . finding this bifurcation to be clearly necessary.”

       By decree entered September 8, 2003, the trial court distributed the parties’ property,

including the marital residence, husband’s thrift savings plan and his retirement plans. It

“reserved” jurisdiction “to enter further orders to effectuate the division of the military pension,

the Federal Employees Retirement System pension and the Thrift Savings Plan.”

       On October 8, 2003, wife filed in the trial court her Notice of Appeal, appealing to this

Court “from an Order entered by [the trial court] on September 8, 2003.”

       Code § 8.01-675.3 requires a notice of appeal to be filed “within thirty days from the date

of any final judgment order, decree or conviction.” Rule 5A:6 also provides that “[n]o appeal

shall be allowed unless, within 30 days after entry of final judgment or other appealable order or

decree, counsel files with the clerk of the trial court a notice of appeal.” Rule 5A:6(a).

       Except for its stated reservation, the August 4, 2003 order was final. It contemplated no

further review and left “nothing to be done in the cause save to superintend ministerially the

execution of the [order].” Richardson v. Gardner, 128 Va. 676, 683, 105 S.E. 225, 227 (1920);

see also Travis v. Finley, 36 Va. App. 189, 196, 548 S.E.2d 906, 909 (2001) (holding that an

order resolving the issue of custody but leaving for subsequent adjudication the issues of

“contempt, visitation, child support, health insurance, attorney's fees and sanctions against

mother” was final and appealable as to the determination of custody). Because wife failed to

note an appeal within thirty days of entry of the August 4, 2003 order, we lack jurisdiction to

consider her appeal on the matters decided therein. Accordingly, we dismiss the instant appeal

on this issue. See Rule 5A:6.




                                                -9-
                            3. Qualifying Language for FERS and
                    4. Language to Protect Interest in Husband’s Reserve Pay

       Wife contends “the final decree entered on September 8, 2003, which deals with the

Husband’s retirement benefits from the Federal Employee Retirement System [FERS] does not

contain the necessary qualifying language required by federal law.” She also contends the trial

court erred in denying “her request to protect [her] interest in the Husband’s army reserve pay.”

       In the September 8, 2003 final decree distributing the parties’ property, the trial court

included detailed language “pursuant to the Uniformed Services Former Spouses’ Protection Act,

10 U.S.C. Section 1408 (“USFSPA”), and Virginia Code Section 20-107.3, 1950, as amended,

which relates to marital property,” to ensure that “the [wife] (“Alternate payee”), will receive

payments from the disposable U.S. Army Reserve retirement pay of the [husband].” Moreover,

the trial court included the following language in the decree:

               AND FURTHER, that the jurisdiction of this Court to enter further
               orders to effectuate the division of the military pension, the Federal
               Employees Retirement System pension and the Thrift Savings Plan
               is hereby reserved.

       Wife’s fears regarding possible future events are speculative and premature in light of the

trial court’s reservation of jurisdiction to address those issues. When and if a problem arises

pertaining to the distribution of wife’s share of husband’s retirement benefits, the trial court can

then review and rectify it. The record discloses no error on these issues.

                                               5. Thrift Plan

       Wife contends the trial court erred in dividing the Thrift Savings Plan (TSP) such that

husband received a larger share.

               “Fashioning an equitable distribution award lies within the sound
               discretion of the trial judge[,] and that award will not be set aside
               unless it is plainly wrong or without evidence to support it.”
               “Virginia law does not establish a presumption of equal




                                                - 10 -
                 distribution of marital assets.” Because the trial court considered
                 the factors set out in Code § 20-107.3(E), and the evidence
                 supports its conclusions, we will not disturb its equitable
                 distribution award merely because it is unequal.

Watts v. Watts, 40 Va. App. 685, 702, 581 S.E.2d 224, 233 (2003) (citations omitted).

          After considering the factors in Code § 20-107.3(E), the commissioner recommended that

the TSP be divided thirty percent to wife and seventy percent to husband. He based the disparity

on the following: (1) husband contributed to and increased the TSP subsequent to the separation

of the parties, (2) husband reduced the mortgage principal by making monthly payments, and (3)

husband paid interest on the credit card accounts.

          After a “review of all the evidence and arguments of counsel,” the trial court “[wa]s of

the opinion that the commissioner’s recommended distribution is fair and appropriate under all

the circumstances, taking into account the statutory factors.” It then approved and affirmed the

commissioner’s recommendation and distributed the TSP accordingly in its September 8, 2003

decree.

          The record discloses that the trial court considered the appropriate criteria and reflects no

abuse of discretion. Accordingly, the trial court did not err.

                                               6. Tax Exemption

          Wife asserts “the trial court abused its discretion by awarding the Husband one of the

dependency tax exemptions.”

          In its August 4, 2003 order establishing spousal and child support, the trial court, inter

alia, allowed husband one of the two tax dependency exemptions. Wife failed to file a timely

notice of appeal addressing the issues decided in that final order. Therefore, we dismiss the

appeal on this issue. See Rule 5A:6; Code § 8.01-675.3.




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The judgment of the trial court is affirmed.

                                                Affirmed.




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