                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Petty and McCullough
UNPUBLISHED


              Argued at Alexandria, Virginia


              WILLIAM G. SYLVESTER
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 0882-13-4                                    JUDGE WILLIAM G. PETTY
                                                                                FEBRUARY 18, 2014
              CLAUDETTE G. SYLVESTER


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                R. Terrence Ney, Judge

                               Heather L. Mehigan (Shulman, Rogers, Gandal, Pordy & Ecker,
                               P.A., on briefs), for appellant.

                               Deborah N. Arthur for appellee.


                     William G. Sylvester (husband) appeals from the entry of a Qualified Domestic Relations

              Order (QDRO), which set forth Claudette G. Sylvester’s (wife) entitlement to a portion of

              husband’s military retired pay. Husband presents two assignments of error on appeal: (1) the

              circuit court abused its discretion and committed an error of law when it entered the QDRO

              because it impermissibly modified the final divorce decree; and (2) the circuit court abused its

              discretion and committed an error of law when it entered the QDRO dividing husband’s pension

              because the final divorce decree violated the Uniformed Services Former Spouses’ Protection

              Act (USFSPA). For the reasons stated below, we affirm the ruling of the circuit court.1




                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         We need not address husband’s second assignment of error because of our decision on
              the first assignment of error. The circuit court properly modified the final divorce decree to
              conform to the USFSPA; thus, this assignment of error is moot.
                                                  I.

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite below only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. “On appeal, we view the evidence in the light most favorable to . . . the party

prevailing below, ‘and grant all reasonable inferences fairly deducible therefrom.’” Johnson v.

Johnson, 56 Va. App. 511, 513-14, 694 S.E.2d 797, 799 (2010) (quoting Anderson v. Anderson,

29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)).

                                                 II.

                                               QDRO

       Husband argues that the circuit court did not have the authority to revise the terms of the

final divorce decree. In essence, husband argues, in spite of the terms of the final divorce decree,

that wife is not entitled to any of his pension.2 We disagree.

                       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 any pension
               [plan] . . . to revise or conform its terms so as to effectuate the
               expressed intent of the order.” Such modification, however, must
               be “consistent with the substantive provisions of the original
               decree” and not “simply to adjust its terms in light of the parties’
               changed circumstances.”

Williams v. Williams, 32 Va. App. 72, 75, 526 S.E.2d 301, 303 (2000) (citations omitted).

       Here, the final divorce decree stated, regarding husband’s military pension, that wife “is

entitled to forty percent (40%) of the marital share of [husband’s] National Guard pension.


       2
          Indeed, at a hearing before the trial court, husband’s counsel conceded this point. The
trial court asked, “So she gets nothing; that’s the Colonel’s position?” Husband’s counsel
responded, “Well, that is his position because this is the only provision that the parties are stuck
with.”

                                                -2-
[Wife’s] forty percent (40%) interest in the marital share of [husband’s] National Guard pension

shall be determined according to the following formula”: years of marriage divided by years of

credible service at the time of retirement multiplied by retirement proceeds multiplied by 40%.

On February 22, 2011, wife filed an application for former spouse payments from retired pay

with the Defense Finance and Accounting Service (DFAS). On March 1, 2011, DFAS rejected

wife’s application because it did not include an appropriate fraction, including reserve points, or

a fixed amount or a percentage of husband’s retired pay. Wife then sought a QDRO from the

circuit court to revise the formula. In a QDRO, the circuit court revised the formula.3

       Husband argues that our decision in Hastie v. Hastie, 29 Va. App. 776, 514 S.E.2d 800

(1999), is controlling. In Hastie, the wife was entitled to 40% of the marital portion of the

husband’s military pension. The marital portion was defined as 60.1% of the total pension.

Accordingly, the trial court awarded the wife a total of $102,496.40 payable in monthly

installments until paid in full. The husband sought an order to conform the terms of the divorce

decree to reflect that the payments would total $102,496.40. The wife sought an order clarifying

that she was entitled to 40% of the husband’s military pension without reference to the

$102,496.40. The trial court entered a clarifying order awarding the wife 40% of the husband’s

military pension without reference to the $102,496.40. We reversed because the clarifying order

altered critical terms of the final decree: “The trial court modified both the terms of payment and

       3
          The circuit court awarded wife “Forty Percent (40%) of the ‘marital share’ of
[husband’s] ‘disposable retired pay’ (as that term is defined in 10 U.S.C. Section 1408(a)(4)),
plus any cost-of-living or other increases thereon if, as, and when received by the [husband].
The ‘marital share’ is defined as the following fraction”: number of creditable service points
earned during the marriage to the parties’ date of separation on January 29, 1992 (4,712 points)
divided by total number of creditable service points earned at retirement (4,920 points). The
circuit court went on to say that the wife’s share was to be calculated using the following
formula: number of creditable service points earned during the marriage to the parties’ date of
separation on Januaray 29, 1992 (4,712 points) divided by total number of creditable service
points earned at retirement (4,920) multiplied by 40% multiplied by husband’s disposable retired
pay.

                                                -3-
the amount of total payments to be made by husband by imposing an open-ended obligation on

husband.” Id. at 781, 514 S.E.2d at 803.

       Here, the circuit court merely revised the terms of the final divorce decree so as to

effectuate the expressed intent of the final divorce decree, which was to award wife 40% of the

marital share of husband’s National Guard pension. The circuit court did not modify the terms

of payment or the amount of the total payments to be made by husband. Instead, the circuit court

modified the formula to conform to DFAS’s requirements. This was not a substantive change; it

was a procedural change designed to effectuate the intent of the final divorce decree. The

modification was consistent with the substantive provisions of the original divorce decree.

       Moreover, we have consistently held that “‘trial courts have the authority to interpret

their own orders.’” Johnson v. Johnson, 56 Va. App. 511, 518, 694 S.E.2d 797, 801 (2011)

(quoting Albert v. Albert, 38 Va. App. 284, 297-98, 563 S.E.2d 389, 396 (2002)). Thus, the

circuit court was free to interpret its order to include the “if, as and when” language concerning

the timing of payment. This language is not inconsistent with the final divorce decree, and we

cannot say that the trial court abused its discretion in adding this language.4

       Therefore, we affirm the ruling of the circuit court.

                                           Attorney’s Fees

       On brief, wife asks this Court to award her attorney’s 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


       4
          Husband argues that had the parties intended to include this language, then they would
have included it in their property settlement agreement. We are concerned only with the final
divorce decree, not the property settlement agreement. This is because the property settlement
agreement did not address the division of the military pension. Thus, we are not dealing with the
intent of the parties but rather with the interpretation of the final divorce decree.

                                                -4-
               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). Here, husband

argues, contrary to the terms of the final divorce decree, that wife should not be awarded any of

his military pension. After considering the record, we deem husband’s appeal to be frivolous.

Therefore, we award attorney’s fees and costs to wife on appeal.

                                                III.

       For the foregoing reasons, we affirm the circuit court’s decision. We further remand the

case to the circuit court for it to determine and enter an appropriate award of attorney’s fees and

costs incurred by wife on appeal.

                                                                           Affirmed and remanded.




                                                -5-
