                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

Thomas D. Chenault,

Respondent Below, Petitioner                                                     FILED

                                                                                 June 24, 2013
                                                                            RORY L. PERRY II, CLERK
vs) No. 12-1061 (Cabell County 94-D-863)                                  SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

Sharon K. Chenault,
Petitioner Below, Respondent

                             MEMORANDUM DECISION
        Petitioner Thomas D. Chenault, by counsel J. Roger Smith II, appeals the July 18, 2012
order of the Circuit Court of Cabell County that affirmed the October 7, 2011 order of the Family
Court of Cabell County regarding the division of Mr. Chenault’s military pension in a divorce
action. Respondent Sharon K. Chenault, by counsel Arik C. Paraschos, filed a response to which
petitioner replied.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        The parties married in November of 1972; separated in October of 1994; and were
divorced by a bifurcated order on March 25, 1996. Respondent, the “Wife,” was a teacher.
Petitioner, the “Husband” was a federal employee who served in the Army Reserve. The parties’
January 8, 1998, final divorce order required that the parties’ pensions “be subject to Qualified
Domestic Relations Orders of Fifty Percent (50%) each” and that the Wife was to be “awarded
one-half of [the Husband’s] Civil Service pension and one-half of his Army Reserve pension.”
The subject of this appeal is the division of the Husband’s Army Reserve (“military”) pension.

     At a March, 1, 2007, family court hearing regarding the division of the Husband’s pensions,
the following interchange occurred:

    THE HUSBAND’S COUNSEL: Just so I’m clear on my notes here, she’s entitled to one-
    half of the accrued cash value from [the date of the parties’ marriage] through the date of
    separation.

    THE COURT: Yeah.

    THE HUSBAND’S COUNSEL: —October ‘94?

    THE COURT: That’s standard.

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       The hearing was memorialized by an order entered March 29, 2007. The order stated, in
relevant part, that

       [t]he parties’ final divorce Order did provide, however, for the [Wife] to receive
       one-half of the accrued value of the [Husband’s] aforesaid retirement plans from
       November 1972 through October 1994, which shall be the ORDER of this Court.

(Emphasis added.)

     Thereafter, the Husband appealed a June 28, 2007 order of the family court regarding the
division of his federal civil service pension that awarded the Wife “an amount equal to one-half
of the total value of the plan.” The circuit court affirmed the family court’s order. The Husband
then appealed to this Court. In Chenault v. Chenault, 224 W.Va. 141, 680 S.E.2d 386 (2009)
(“Chenault I”), we reversed the circuit court and remanded the case with instructions to the
family court to enter a qualified domestic relations order (“QDRO”) that distributed one-half of
the marital share of the Husband’s retirement benefits to the Wife. Id. at 147, 680 S.E.2d at 392.

        On September 27, 2010, the family court entered yet another order regarding the division
of the Husband’s pensions, in which it said,

       [the Husband] through counsel opines that [the Wife] is only entitled to a
       monetary value of the pension in their interpretation of the [March 29, 2007,
       order]. . . . This [c]ourt does not remember ruling on that matter. . . .

              The [c]ourt has gone back and reviewed the prior orders in this case. The
       [1998 final order] . . . is the controlling Order.

               It is this Court’s interpretation that [the Wife] is entitled to [an order]
       setting aside her appropriate portion, [50%] of [the Husband’s] Civil Service
       pension and the Army Reserve pension.

(Emphasis added.) In accord with this September 27, 2010 order, the family court entered a
“Military Pension Division Order” (“MPDO”) on September 8, 2011, that awarded the Wife
50% of the Husband’s military pension. On October 7, 2011, the Husband appealed the entry of
the MPDO to the circuit court. By order entered July 18, 2012, the circuit court affirmed the
family court’s entry of the MPDO. It is from this order that the Husband now appeals.

       In reviewing a final order entered by a circuit court judge upon a review of, or
       upon a refusal to review, a final order of a family court judge, we review the
       findings of fact made by the family court judge under the clearly erroneous
       standard, and the application of law to the facts under an abuse of discretion
       standard. We review questions of law de novo.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).



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    On appeal, the Husband first argues that the circuit court erred in affirming the family
court’s entry of the MPDO because the parties’ final divorce order and this Court in Chenault I
required entry of a QDRO.

       The circuit court did not abuse its discretion in affirming the family court’s entry of a
MPDO in lieu of a QDRO. The Uniform Services Former Spouses Protection Act, 10 U.S.C. §
1408 (the “Act”), does not require that a QDRO be used to divide a military pension between
former spouses. The Act merely requires that the award be set forth in a “court order,” which is
defined by 10 U.S.C. § 1408(a)(2) as follows:

       The term “court order” means a final decree of divorce, dissolution, annulment,
       or legal separation issued by a court, or a court ordered, ratified, or approved
       property settlement incident to such a decree (including a final decree modifying
       the terms of a previously issued decree of divorce, dissolution, annulment, or
       legal separation, or a court ordered, ratified, or approved property settlement
       incident to such previously issued decree), or a support order, as defined in
       section 453(p) of the Social Security Act (42 U.S.C. 653(p)), which—

               (A) is issued in accordance with the laws of the jurisdiction of that court;

               (B) provides for—

                   (i) payment of child support (as defined in section 459(i)(2) of
                   the Social Security Act (42 U.S.C. 659(i)(2)));

                   (ii) payment of alimony (as defined in section 459(i)(3) of the
                   Social Security Act (42 U.S.C. 659(i)(3))); or

                   (iii) division of property (including a division of community
                   property); and

               (C) in the case of a division of property, specifically provides for the
               payment of an amount, expressed in dollars or as a percentage of
               disposable retired pay, from the disposable retired pay of a member to the
               spouse or former spouse of that member.

(Emphasis added) Thus, it is immaterial whether the court order dividing the Husband’s military
pension was a MPDO or a QDRO, as long as the order was consistent with 10 U.S.C. §
1408(a)(2). Here, the family court’s MPDO was consistent with 10 U.S.C. § 1408(a)(2) because
it was issued by a court, in accordance with the laws of the jurisdiction of that court, in a case of
division of property, and it expressed the Wife’s award as a percentage of the Husband’s
disposable retired pay. Therefore, we find that the circuit court did not abuse its discretion in
entering the MPDO instead of a QDRO.

       The Husband next argues that the circuit court erred in affirming the family court’s entry
of the MPDO because he never agreed to the “disposable military retired pay” language found in

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the MPDO. As we noted above, 10 U.S.C. § 1408(a)(2)(C) provides that “in the case of a
division of property, [the court order must] specifically provide[] for the payment of an amount,
expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay
of a member to the spouse or former spouse of the member.” (Emphasis added). Pursuant to 10
U.S.C. § 1408(a)(4), “[t]he term ‘disposable retired pay’ means the total monthly retired pay to
which a member is entitled less [authorized deductions]. . . .” In accordance with that definition,
the MPDO entered by the family court and affirmed by the circuit court properly provided that,
“[t]his Order assigns to the Former Spouse an amount equal to 50% of the Member’s final
disposable retired pay.” Therefore, we find that the family court did not abuse its discretion in
using the term “disposable military retired pay” in the MPDO.

        The Husband’s third argument is that the circuit court erred in affirming the family
court’s entry of the MPDO because the divorce date listed in the MPDO, “January 1998,” is
incorrect. The Husband argues that the parties agreed to use a separation date of October 1, 1994,
in calculating the division of their marital property. The Husband claims that use of the January
1998 date wrongfully gives the Wife a credit for the Husband’s post-separation contributions to
his military pension plan.

       The January 1998 date of which the Husband complains is contained in the section of the
MPDO entitled “Duration of Marriage Acknowledgment (Compliance with 10/10 Rule)[.]”
Under that heading, the MPDO reads as follows:

       The Member and the Former Spouse acknowledge that they have been married for
       a period of more than ten years during which time the Member performed more
       than ten years of creditable military service. The Former Spouse and Member
       were married on November 6. 1972[,] and were divorced in January of 1998.

As this statement implies, for a former spouse to be eligible to receive a portion of a member­
spouse’s disposable retired pay under the Act, the parties must have been married for a period of
more than ten years during which the member-spouse performed more than ten years of
creditable military service. See 10 U.S.C. § 1408(d)(2). Therefore, the January 1998 date was
included in the MPDO to satisfy the “10/10” rule and thereby show that the Wife was eligible to
receive a portion of the Husband’s disposable retired pay. Hence, the inclusion of the January
1998 date in the MPDO in no way modified the percentage of the Husband’s military pension
that the Wife was to receive. As such, the circuit court did not err in including the parties’
January of 1998 divorce date in the MPDO.

        The Husband’s fourth argument flows from the interchange noted above between the
Husband’s counsel and the family court at the March, 1, 2007, hearing, and from the resulting
order in which the family court stated that (1) the Wife was “to receive one-half of the accrued
value of the [Husband’s] aforesaid retirement plans from November 1972 through October
1994[.]” The Husband argues that based on this language, the Wife should receive only half of
the accrued cash value of his military pension as of the date of the parties’ separation.
Alternatively, the Husband argues that the March 29, 2007, order modified the parties’ 1998
final divorce order and, therefore, the Wife’s pro-rata share of his military pension should be
based solely on the Husband’s cash contributions during the marriage.

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        The Husband made these same arguments in Chenault v. Chenault, No. 11-1532 (W.Va.
Supreme Court, June 24, 2013) (memorandum decision) (“Chenault II”), regarding the division
of his federal civil service pension between the parties. In Chenault II we found that the circuit
court did not err in affirming the entry of a QDRO that divided the Husband’s federal civil
service pension between the parties. Our reply to the Husband’s argument in this appeal is the
same as that which we espoused in Chenault II:

       The Husband’s assertion—that the March 29, 2007, order gives the Wife only half
       of the accrued cash value of the Husband’s retirement benefits—is incorrect. The
       March 29, 2007, order actually states that, “the parties’ final divorce Order did
       provide, however, for [the Wife] to receive one-half of the accrued value of [the
       Husband’s] aforesaid retirement plans. . . .” The word “cash” is nowhere to be
       found in the March 29, 2007, order. Instead, the family court’s statement stands in
       accord with parties’ final divorce order because it confirms that the Wife is to
       receive her half martial share of the Husband’s accrued benefits. Therefore, the
       March 29, 2007, order in no way modifies the parties’ final divorce order as the
       Husband claims.

       The Husband’s fifth and final argument is that the circuit court erred in affirming the
family court’s entry of the MPDO because the MPDO wrongfully gives the Wife a greater share
of the Husband’s military pension than she is entitled to under the parties 1998 final divorce
order.

        We first note that in his brief on appeal, the Husband failed to explain the mathematical
basis for his argument, i.e., how much extra money the Wife will supposedly receive under the
terms of the MPDO to which she is not entitled. In Syllabus Point 2 of Perdue v. Coiner, 156
W.Va. 467, 194 S.E.2d 657 (1973), we said, “[o]n an appeal to this Court the appellant bears the
burden of showing that there was error in the proceedings below resulting in the judgment of
which he complains, all presumptions being in favor of the correctness of the proceedings and
judgment in and of the trial court.” Further, the MPDO provides in relevant part as follows:
“This order assigns to the Former Spouse an amount equal to 50% of the Member’s final
disposable retired pay.” Consequently, the circuit court did not abuse its discretion in affirming
the family court’s entry of the MPDO because the MPDO accurately mirrors the terms of the
parties’ 1998 final divorce order as well as the requirements of 10 U.S.C. § 1408(a)(2)(c) (“[I]n
the case of a division of property, [the court order must] specifically provide[] for the payment of
an amount, expressed in dollars or as a percentage of disposable retired pay. . . .” (Emphasis
added)).

       For the foregoing reasons, we affirm.
                                                                                         Affirmed.




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ISSUED: June 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Menis E. Ketchum


Justice Ketchum dissents and states that the circuit court erred in its analysis.





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