866 S.E.2d 588
Va. Ct. App.2021Background
- Parties divorced by final decree and entered an equitable distribution order and a military pension division order dividing husband’s military retirement pay; the orders adopted the parties’ negotiated agreement.
- The pension order awarded wife 30% of husband’s disposable retired pay and contained paragraph 9 guaranteeing a level payment of $1,202.70/month and an indemnification obligation by husband for any reduction.
- At entry the parties believed husband’s disposable retired pay was $4,009/month; later DFAS determined disposable pay was only $844/month (remainder was non-divisible disability pay), making wife’s 30% share $253.20/month.
- Husband moved, more than a year after entry, to modify/void the orders alleging mutual mistake/clerical error or that the indemnification clause was void ab initio under federal law (USFSPA and Howell); the circuit court denied relief as barred by Rule 1:1 and found no clerical error.
- The Court of Appeals held the orders were final and not subject to Rule 1:1 relief for clerical error, but the indemnification/guarantee provisions violated federal law (Howell/Mansell) and were void ab initio; remanded for recalculation of related equitable-distribution and support determinations.
Issues
| Issue | Yourko (Husband) Argument | Yourko (Wife) Argument | Held |
|---|---|---|---|
| Whether the court could modify the final decree/pension order after Rule 1:1 period based on clerical error/mutual mistake | The parties mutually mistaken about divisible disposable pay; clause is a clerical/scrivener’s error under Code § 8.01-428(B) allowing modification | Orders were final; Rule 1:1’s 21-day period barred collateral attack | Orders were final and no clerical/scrivener error existed; Rule 1:1 bars modification on that ground |
| Whether indemnification/guarantee requiring husband to make up reductions (or effectively pay >50% of disposable pay) violates federal law | Indemnification clause is preempted because it attempts to circumvent USFSPA and Howell; renders order void ab initio | Agreement and state precedent allowed parties to contract around divisibility limits; court power to enforce agreement | Indemnification/guarantee provisions conflict with Mansell and Howell, exceed the court’s power, and are void ab initio |
| Proper remedy for a decree containing void indemnification provisions | Vacate or modify pension/support awards to remove impermissible obligations and adjust related support/tax allocations | Preserve decree or only excise offending language | Court cannot merely excise indemnity clause; remand to recalculates marital share and to reconsider related spousal/child support and ancillary rulings |
| Appellate attorney’s fees request by wife | N/A (wife sought fees) | Husband prevailed; wife requested fees | Denied; each party bears its own fees |
Key Cases Cited
- McCarty v. McCarty, 453 U.S. 210 (1981) (held federal military retirement scheme precluded state division of retirement pay prior to USFSPA)
- Mansell v. Mansell, 490 U.S. 581 (1989) (interpreting USFSPA: state courts may divide disposable retirement pay but not portions waived to receive disability pay)
- Howell v. Howell, 137 S. Ct. 1400 (2017) (held state-ordered indemnification/reimbursement for reductions caused by a veteran’s election of disability pay is preempted)
- Singh v. Mooney, 261 Va. 48 (2001) (describing void ab initio when court lacked power to render the order)
- Bonanno v. Quinn, 299 Va. 722 (2021) (void orders may be attacked beyond Rule 1:1 but limits collateral attacks by nonparties)
- Lapidus v. Lapidus, 226 Va. 575 (1984) (court may excise provisions the court lacked power to order and affirm the remainder)