OPINION LETTER - PDF - PDF by Emilymohar


									                                         NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA
                                                        Fairfax County Courthouse
                                                         4110 Chain Bridge Road
                                                        Fairfax, Virginia 22030-4009
                                                               .                 .
                                                   703-246-2221 Fax: 703-385-4432 TDD: 703-352-4139

                                               COUNTY OF FAIRFAX                      CITY OF FAIRFAX         BURCH MILLSAP
                                                                                                           BARNARD F. JENNINGS
                                                                                                          THOMAS J. MIDDLETON
                                                                                                          THOMAS A. FORTKORT
    JANE MARUM ROUSH                                                                                      RICHARD J. JAMBORSKY
                                                                                                             JACK B. STEVENS
   JONATHAN C. THACHER                                                                                        J. HOWE BROWN
                                                                                                               F. BRUCE EACH
                                                                                                           M. LANGHORNE KEKH
                                                                                                            ARTHUR B. VIEREGG
                                                                                                           KATHLEEN H. MACKAY
                                                                   July 14,2009                         ROBERT W. WOOLDRIDGE,JR
      DAVID S. SCHELL                                                                                       RETIRED JUDGES
       JAN L. BRODIE

                  Aaron J. Christoff, Esq.
                  The Lewis Law Firm
                  10306 Eaton Place, Ste. 200
                  Fairfax, VA 22030

                  Dorothy M. Isaacs, Esq.
                  Surovell, Markle, Isaacs, & Levy PLC
                  4010 University Drive, Ste. 200
                  Fairfax, VA 22030

                               Re: Lynda E. Cragg (Silos) v. Scott P. Cragg, Case No. CL-2006- 11673

                  Dear Counsel:

                          Judge Stanley P. Klein entered a final decree of divorce for Mr. Cragg and Ms.
                 Cragg (Silos) on November 28,2007. Section M(i) of the order provided for the division
                 of Mr. Cragg's TSP retirement account. The court ordered the asset to be divided 50150
                 plus or minus any gains or losses between the final order and the time of disbursement,
                 and Mr. Cragg stipulated that the 50% amount totaled $152,538.50. Neither party made a
                 provision in the final divorce decree for how the gains or losses should be calculated.
                 The federal regulations governing TSP accounts state that in the absence of a specified
                 fund to calculate gains and losses, the G-Fund will be used. Mr. Cragg's funds were all
                 deposited in the C-Fund, which lost value that year. Because the order did not specify the
                 C-Fund, the TSP used the G-Fund, which gained value that year, as a default to determine
                 the amount to disburse to Ms. Cragg (Silos). Thus, Ms. Cragg (Silos) was awarded the
                 stipulated amount of $152, 538.50 plus gains calculatcd from the G-Fund. Ms. Cragg
                 argues that this outcome is in keeping with the court's original order and federal
                 regulations governing TSP accounts. Mr. Cragg counters that this outcome effectively
                 splits this asset 61/39 rather than 50150 as he claims the court intended. The court ruled

                                                                                                OPINION LETTER
Re: Lynda E. Cragg (Silos) v. Scott P. Cragg
Case No. CL-2006-11673
July 14, 2009
Page 2 of 4

against Mr. Cragg's motion for a corrective order, stating that it did not have jurisdiction
to re-open the final decree of divorce or QDRO to redistribute the funds. Mr. Cragg then
submitted a motion to reconsider.

      After reviewing the documents in this case including the QDRO and Final
Divorce Decree as well as Va. Code 5 20-107.3(K) the court makes two findings.

       First, the court agrees with Mr. Cragg that pursuant to 8 20-107.3(K) the court
does have jurisdiction to issue new orders to effect the intent of the original decree of

         Second, the court finds that the language of the original decree of divorce is clear
in its intended division of the TSP account, as the inclusion of the stipulated amount
($152,538.50) to be delivered to Ms. Cragg (Silos) demonstrates. Based on emerging
case law fiom the Virginia Court of Appeals as well as a plain reading of the final decree
of divorce, the court finds that Ms. Cragg (Silos) is entitled to the full disbursed amount
she has received from the TSP.

        The court finds that it does retain jurisdiction to issue new orders concerning the
final decree of divorce pursuant to Va. Code 8 20-107.3(K) which states, "The court shall
have continuing authority and jurisdiction to make any additional orders necessary to
effectuate and enforce any order entered pursuant to this section." The code section goes
on to list specific instances where the court has this continuingjurisdiction and includes
the modification of any order affecting retirement benefits so long as the modification
furthers the intent behind the original order.

       With the court's jurisdiction over this matter confirmed, we must next examine
whether the intent of the original order, in this case the final decree of divorce, has not
been carried out and is in need of modification to achieve its purpose.

                              Original Intent of the Order
       The final decree of divorce, signed on November 28,2007, details in section M(i)
how the TSP retirement benefits will be divided. It states in relevant part,

                "Plaintiff shall receive one-half of the marital portion of
                Defendant's Thrift Savings Plan which was stipulated to be

                                                              OPINION LETTER
Re: Lynda E. Cragg (Silos) v. Scott P. Cragg
Case No. CL-2006-11673
July 14,2009
Page 3 of 4

                 $152,538.50, plus gains and minus losses on said sum from
                 October 4,2007 to the date on which such sum is transferred
                 to a retirement account of Plaintiffs choosing."

        Based on a plain reading of the text, the court ordered and counsel for both parties
agreed to divide this asset based on a stipulated amount. The text clearly states that Ms.
Cragg (Silos) will receive the amount of $152, 538.50, creating a vested property right in
that amount. Because the section does not detail in what way the gains and losses are to
be calculated, we are obliged to follow the federal regulations governing TSP accounts
which dictate the use of the G-Fund when no other Fund is designated. 5 C.F.R. 8
1653.4(0(3). It was the Defendant's duty to safeguard his own interests by including the
appropriate information, such as the C-Fund to calculate gains and losses, and by
excluding superfluous information, such as the dollar amount to be delivered to the

        According to Overcash v. Overcash, a recent unpublished Virginia Court of
Appeals case, the court may enter new orders to effect a 50150 division of a retirement
account when that order accomplishes the original intent of the final decree of divorce.
Overcash v. Overcash, 2006 Va. App. LEXIS 36 (2006). In Overcash, however, no party
stipulates to an actual dollar amount. Therefore, the court's intent of a 50150 division of
the assent is easy to discern. In this case, with an actual dollar amount stipulated, the
court has no basis to declare what the intent of the court issuing the divorce decree was
beyond a plain reading of the applicable section.

        In such instances where a percentage and a dollar amount are included in an order
to divide a TSP account, federal regulations ignore the percentage and honor the dollar
amount. The court finds this practice instructive. The court reads section M(i) as
designating that a specific dollar amount is due and will be paid to Ms. Cragg (Silos). In
the absence of either party designating how gains and losses to that amount should be
calculated, the court relies on the federal regulations governing TSP accounts.

        In Hubble v. Hubble, another recent unpublished Virginia Court of Appeals case,
a husband and wife agreed to the 50150 division of the husband's military pension. Once
the dollar amount of $883.29 per month from that pension was established, the court
found that the wife had a vested property interest in that amount, not merely a 50150
division of whatever the husband's military benefit became. Thus when the husband
made alterations to his accounts that resulted in a lower amount, he divested his wife of
her property. The court ordered the full amount to be paid to Ms. Hubble despite the new
lower 50150 portion. Hubble v. Hubble, 2002 WL 1809078,4 (2002).

        Defendant chose to stipulate an amount regarding the TSP account in section M(i)
but relied solely on a percentage to divide the FERS and CSRS retirement benefits in

                                                            OPINION LETTER
Re: Lynda E. Cragg (Silos) v. Scott P. Cragg
Case No. CL-2006-11673
July 14, 2009
Page 4 of 4

section M(ii). Based on the unpublished cases, the court is persuaded that stipulating a
dollar amount cannot be considered in the same light and with the same intent as
stipulating a percentage, and therefore finds that Ms. Cragg (Silos) is entitled to the fill
amount disbursed to her through the TSP account.

                                               Yery sincerely yours,

                                               Gaylord L. Finch, Jr.

                                                            OPINION LETTER

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