                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Haley
Argued by teleconference


PATRICK H. POZIOMBKE
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1150-05-1                                   JUDGE JAMES W. HALEY, JR.
                                                                 FEBRUARY 14, 2006
SHARON M. POZIOMBKE


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                              Edward W. Hanson, Jr., Judge

                 Robert N. Pritchard for appellant.

                 Philip A. Liebman for appellee.


       In this cause, Patrick H. Poziombke (husband) maintains: (1) that those provisions of a

divorce decree dealing with his military pension are void ab initio; and (2) that the trial court

erred in ordering indemnification of Sharon M. Poziombke (wife) for any diminution in sums

received resulting from a partial reclassification of his pension benefits as disability payments

and the continuation of payments in an undiminished amount. The core of husband’s argument

is based upon 10 U.S.C. § 1408(a)(4)(B), the Uniformed Services Former Spouses Protection

Act (“the Act”), and the decision of the United States Supreme Court in Mansell v. Mansell, 490

U.S. 581 (1989). Wife assigns as cross-error the failure of the trial court to award interest and

attorney’s fees. Finding no error, we affirm, and we deny wife’s request for an award of

attorney’s fees on appeal.




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

       The parties were divorced by final decree entered September 19, 1995. The parties had

not entered into any form of property settlement agreement. The divorce decree contained the

following provisions:

                       ADJUDGED, ORDERED AND DECREED that the
               Defendant shall pay the Plaintiff immediately upon his retirement
               from active duty military service on the first day of the month
               immediately following such retirement and on the first day of each
               month thereafter, by military allotment, from the United States
               Navy Finance Center, or other appropriate United States
               Government Agency, a portion of his disposable monthly
               retirement, and/or retainer pay resulting from and/or related to his
               retirement and/or release from active duty military service each
               month, and that (“portion”) hereafter called the (“martial share”)
               shall be calculated as follows:
                       The Plaintiff shall have and be paid monthly fifty percent
               (50%) of a fraction of the monthly disposable retirement/retainer
               pay, the numerator of that fraction shall be 11.5 and the
               denominator of that fraction shall be the total number years and
               months of Defendant’s active duty military service up to the date
               of his release from such active duty service, to include the same
               percentage of any cost of living increases. Should the United
               States Navy Finance Center or other appropriate United States
               Government Agency fail to pay the Plaintiff hereinafter, the
               Defendant shall pay the Plaintiff directly on all of his obligations
               under this paragraph; and it is further
                       ADJUDGED, ORDERED AND DECREED that Defendant
               shall not take any action which would defeat, reduce, or limit
               Plaintiff’s right to receive her share of Defendant’s military
               pension benefits, including merging retired pay with other
               pensions or waiving any portion of retired pay in order to receive
               increased disability pay. If Defendant breaches this provision, he
               shall indemnify and pay directly to Plaintiff, all sums reduced by
               such action, if any . . . .

       When the divorce decree was entered in 1995, husband was on active duty with the

military and receiving no retirement or disability payments. The parties agree that under the

formula provisions of the decree, quoted above, wife was entitled to 28.3591% of husband’s

“disposable retirement/retainer” benefit when received. The final decree was entered without

exception or objection.
                                              -2-
       In June 1998, husband retired and paid wife the quoted percentage of that benefit. In

October 1998, husband began receiving a Veterans’ Administration disability benefit, which

reduced the amount of his “disposable retirement/retainer benefit” in an amount equal to the

disability benefit. Thereafter husband paid wife the quoted percentage of that net benefit. At a

show cause hearing on March 11, 2005, wife demonstrated that the disability payments received

by husband from October 1998 through November 2004 totaled $34,988.41. She sought

28.3591% of that sum, and an order directing husband to begin paying her a sum equivalent to

that which he would have received without the disability benefit conversion.

       By order entered April 12, 2005, the trial court held the September 19, 1995 decree was

final and that husband “shall indemnify and pay directly to the [wife] all sums to which she

would have been entitled had he not taken disability payments[,] . . . as required by the Final

Decree of Divorce.” The trial court did not order that any such sum be paid from husband’s

veterans’ disability benefits.

                                                  II.

                                            ANALYSIS

                                                  A.

                  AUTHORITY OF COURT TO ORDER PAYMENT OF SUM
                  EQUAL TO HUSBAND’S MILITARY RETIREMENT PAY

       Succinctly stated, in Mansell v. Mansell, 490 U.S. 581, 594-95 (1989), the United States

Supreme Court held that 10 U.S.C. § 1408(a)(4)(B) denies “state courts the power to treat as

property divisible upon divorce military retirement pay that has been waived to receive veterans’

disability benefits.” Husband maintains that the provisions of the September 19, 1995 decree

dealing with his military pension, quoted above, are void ab initio as violative of the Act as

interpreted in Mansell, and, thus, the decree is void ab initio.



                                                 -3-
       Initially we note that this Court has held that a trial court effecting an equitable

distribution may, without violating the Act and Mansell, order a party to pay a sum equivalent to

a percentage of existing or anticipated military retirement or veterans’ disability benefits, or a

combination of both, via an indemnification provision ensuring such payments, as long as

veterans’ disability payments are not ordered to serve as the source of those payments. See

Boedeker v. Larson, 44 Va. App. 508, 516-18, 605 S.E.2d 764, 768-69 (2004); McLellan v.

McLellan, 33 Va. App. 376, 381-84, 533 S.E.2d 635, 637-39 (2002); Cook v. Cook, 18 Va. App.

726, 728, 446 S.E.2d 894, 895 (1994); Holmes v. Holmes, 7 Va. App. 472, 478, 375 S.E.2d 387,

391 (1988).

       On brief, husband acknowledges this principle but cites McLellan and Owen v. Owen, 14

Va. App. 623, 419 S.E.2d 267 (1992), for the proposition that a court has such authority only if a

final divorce decree incorporates a property settlement agreement in which a military spouse has

agreed not to take any action to defeat the nonmilitary spouse’s entitlement to a share of military

retirement pay.

       In Owen, we held that the parties may enter into a property settlement agreement to

guarantee a particular level of income, to be determined by considering the amount of disability

benefits and retirement benefits, because the agreement “does not offend the federal prohibition

against a direct assignment of military disability pay.” Id. at 628, 419 S.E.2d at 270. In

McLellan, where husband was receiving disability benefits at the time the parties entered into a

property settlement agreement, we noted that “It is clear from the agreement that husband clearly

intended for wife to receive forty-two percent of his entire retirement pay. The parties drew no

distinction between disability and regular retirement pay . . . [and husband could pay] . . . from

whatever source he chose.” Id. at 383-84, 446 S.E.2d at 638-39. On those facts, we affirmed the




                                                -4-
trial court’s authority to order Mr. McLellan to pay Mrs. McLellan benefits in that particular

amount. Id.

       Husband contends that, absent a property settlement agreement, federal law prohibited

the trial court from ordering him not to take any action negatively affecting wife’s right to

receive her share of his military pension benefits and, as a result, that the entire decree is void

ab initio. We disagree under the facts of this case, in which the decree specifically provided as

the remedy for husband’s breach that “he shall indemnify . . . [wife for] all sums reduced by such

action” and husband made no objection to that provision before the decree became final.

       The Act provides state courts with the authority to divide military retirement benefits “‘in

accordance with state [equitable distribution] law.’” Boedeker, 44 Va. App. at 516, 605 S.E.2d

at 768 (quoting Brett R. Turner, Equitable Distribution of Property § 6.04, at 300 (2d ed. 1994)).

“Equitable distribution in divorce cases in Virginia is a . . . creature of statute.” Booth v. Booth,

7 Va. App. 22, 25, 371 S.E.2d 569, 571 (1988). Property settlement agreements are authorized

by Virginia law, and in a case in which the parties have executed one, a court’s equitable

distribution order may not contain provisions that conflict with the agreement. See, e.g.,

Code §§ 20-109(C), 20-155. Nevertheless, a court’s authority to equitably distribute a marital

estate is not dependent on the existence of a property settlement agreement. See generally Code

§ 20-107.3 (setting out statutory scheme for equitable distribution); Code § 20-109(C) (setting

out effect in equitable distribution case in which parties have executed a stipulation or

agreement). With or without a property settlement agreement, state courts have the authority to

divide military retirement benefits under state equitable distribution law. Further, “[i]f an

indemnity provision is inserted into a divorce decree, and the service member fails to object to

that provision before the decree becomes final, the indemnity provision is clearly valid under a

theory of res judicata.” 3 Brett R. Turner, Equitable Distribution § 6.10, at 63-64 & n.4 (3d ed.

                                                 -5-
2005) (citing Danielson v. Evans, 36 P.3d 749 (Ariz. Ct. App. 2001), in which decree expressly

reserved jurisdiction to compensate wife if husband took action that diminished amount of wife’s

award and court held provision enforceable under res judicata); see id. § 6.9, at 60 & n.2 (citing

Mansell, 490 U.S. at 587 n.5, for this proposition and noting “strong majority of state court cases

likewise hold that military benefits of all sorts can be divided under the law of res judicata”).

Thus, the absence of a property settlement agreement affirmed, ratified, and incorporated in the

decree lacks legal significance at this stage of these proceedings.1

       We conclude, therefore, that the decree is not void ab initio and that the court’s order to

husband to comply with the decree’s indemnification provision was not error.

                                                     B.

                                       POST-DECREE INTEREST

       The final order in the show cause proceeding directed husband to “indemnify and pay

directly to [wife] all sums to which she would have been entitled had [husband] not taken the

disability benefits.” Wife seeks interest on those sums at the judgment rate set forth in Code

§ 6.1-330.54, pursuant to the provisions of Code § 8.01-382 providing for interest on judgments

or decrees.



       1
          Here, the language of the decree included the provision at issue, ordering husband not to
take action to negatively impact wife’s entitlement to receive a share of his military pension, as a
condition precedent to husband’s duty to indemnify wife, in order to guarantee wife a particular
level of income, and the court applied the provision only in this context. We need not decide
whether breach of such a provision would support some other action, such as a finding of
contempt, without running afoul of the Act or Mansell or how the presence or absence of a
property settlement agreement might impact such a case. We conclude only that the specific
language in the decree at issue in this case did not render the entire decree or the indemnification
provision void ab initio. See 3 Turner, supra, § 6.10, at 67-68 (opining that “a state court cannot
actually order a service member not to waive his military retirement benefits in favor of
disability or other replacement benefits” and that “[s]uch an order probably violates federal law”
but that such an order is unnecessary because a court may “order the service member to
compensate the former spouse for any harm caused by the election, and not to order the service
member not to make the election in the first place”).
                                                 -6-
       In Ragdsale v. Ragsdale, 30 Va. App. 283, 293, 516 S.E.2d 698, 703 (1999), this Court

noted that an award of a portion of a marital asset under Code § 20-107.3 entitles one “to

post-decree interest on [the] equitable distribution award as a matter of law.” See Dairyland Ins.

Co. v. Douthat, 248 Va. 627, 449 S.E.2d 799 (1994). However, in Shackelford v. Shackelford,

39 Va. App. 201, 212, 571 S.E.2d 917, 922 (2002), we held that “Code § 20-107.3(D) further

explains, ‘The provisions of § 8.01-382 . . . shall apply unless the court orders otherwise.’”

       In this case, the trial court’s order specifically denied the requested interest on the

indemnification sums, thereby “order[ing] otherwise” in accordance with Code § 20-107.3(D).

We affirm the trial court’s ruling on this issue.

                                                     C.

                                           ATTORNEY’S FEES

       Wife asserts the trial court erred in not awarding her attorney’s fees. “We are guided by

the principle that ‘[a]n award of attorney’s fees is a matter submitted to the trial court’s sound

discretion and is reviewable on appeal only for an abuse of discretion.’” Bruemmer v.

Bruemmer, 46 Va. App. 205, 212, 616 S.E.2d 740, 743 (2005) (quoting Graves v. Graves, 4

Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)). Circumstances for consideration in the

exercise or abuse of discretion include the following: (1) the failure of the trial court to consider

statutory factors in equitable distribution, Rowe v. Rowe, 24 Va. App. 123, 139, 480 S.E.2d 760,

767 (1997); (2) a trial court’s error of law, Mina v. Mina, 45 Va. App. 215, 222, 609 S.E.2d 622,

626 (2005); (3) the failure of the trial court to consider or act upon evidence presented as to the

relative financial resources of the parties, Artis v. Artis, 4 Va. App. 132, 138, 354 S.E.2d 812,

815 (1987)2; (4) the existence of a PSA or prior decree providing for attorney’s fees upon

specified conditions, O’Hara v. O’Hara, 45 Va. App. 788, 799, 613 S.E.2d 859, 864-65 (2005);


       2
           See also Poliquin v. Poliquin, 12 Va. App. 676, 681, 406 S.E.2d 401, 405 (1991).
                                                 -7-
or (5) where a party has unnecessarily prolonged or compounded the litigation, Northcutt v.

Northcutt, 39 Va. App. 192, 200-02, 571 S.E.2d 912, 916 (2002).3

       The measure of “a proper award of counsel fees . . . [is] reasonableness under all of the

circumstances revealed by the record.” Westbrook v. Westbrook, 5 Va. App. 446, 458, 364

S.E.2d 523, 530 (1988). “Given the unique equities of each case, our appellate review steers

clear of inflexible rules and focuses instead on ‘reasonableness under all the circumstances.’”

Kane v. Szymczak, 41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2003) (quoting Joynes v. Payne,

36 Va. App. 401, 429, 551 S.E.2d 10, 24 (2001)); see also Mullin v. Mullin, 45 Va. App. 289,

304-05, 610 S.E.2d 331, 338 (2005). Applying the standard of reasonableness, and noting the

absence of those circumstances set forth above, we find that the trial court did not abuse its

discretion in failing to award wife attorney’s fees.

       Wife also seeks an award of attorney’s fees on appeal. We decline that request for fees.

               The rationale for the appellate court being the proper forum to
               determine the propriety of an award of attorney’s fees for efforts
               expended on appeal is clear. The appellate court has the
               opportunity to view the record in its entirety and determine
               whether the appeal is frivolous or whether other reasons exist for
               requiring additional payment.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). In this context,

and upon consideration of the record in this case, we hold husband’s position was not so

unreasonable as to entitle wife to an award of attorney’s fees incurred in this appeal. See Estate

of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004) (“[W]e find the litigation

addressed appropriate and substantial issues and that [husband did not] generate[ ] unnecessary




       3
        See also Smith v. Smith, 43 Va. App. 279, 290, 597 S.E.2d 250, 256 (2004), and
Blackson v. Blackson, 40 Va. App. 507, 527-28, 579 S.E.2d 704, 714 (2003).
                                            -8-
delay or expense in pursuit of [his] interests.”). Therefore, we deny wife’s request for an award

of fees on appeal.

                                                                                                Affirmed.




                                               -9-
