Boedeker v. Larson, Record No. 0900-04-1.

• Citation: 44 Va. App. 508,605 S.E.2d 764
• Decision Date: 07 December 2004
• Docket Number: Record No. 0900-04-1.
• Court: Court of Appeals of Virginia
• Parties: Daren Earl BOEDEKER v. Heather Ann LARSON.

605 S.E.2d 764

44 Va. App. 508

Daren Earl BOEDEKER v. Heather Ann LARSON.

Record No. 0900-04-1.

Court of Appeals of Virginia, Chesapeake.

December 7, 2004.

Kenneth B. Murov, Newport News, for appellant.

William C. Cowardin, Jr. (Cowardin & Kim, P.L.C., on brief), Newport News, for appellee.

Present: FITZPATRICK, C.J., ELDER and ANNUNZIATA, JJ.

LARRY G. ELDER, Judge.

In this divorce matter, Daren Earl Boedeker (husband) appeals from a ruling of the circuit court holding that Heather Ann Larson (wife) was entitled to a portion of the military "career status bonus" (CSB/Redux) husband elected to receive pursuant to 37 U.S.C. § 322. On appeal, husband contends that the parties' property settlement agreement and federal law, rather than husband's initial concession of wife's entitlement, which he later withdrew, were controlling and that the sums he received were post-separation income in which wife was not entitled to share. He also contends the trial court had no basis on which to determine the amount to which wife was entitled because he had not yet retired. Wife opposes husband's position and seeks an award of attorney's fees on appeal.

We hold that both federal law and the evidence in this case supported the trial court's decision that a portion of the Redux bonus was marital property subject to division under the parties' agreement. We hold further that husband may not object to the amount of the bonus awarded to wife because he agreed to the sum awarded. Thus, we affirm on the merits but deny wife's request for an award of attorney's fees on appeal.

I. BACKGROUND

The parties were married in 1986 and separated in 2002. Husband enlisted in the United States Navy during the parties' marriage and was on active duty at the time the parties separated. He served in the Navy for thirteen years ten months of the parties' sixteen-year marriage.

On October 9, 2002, the parties entered into an agreement to effect, inter alia, their property settlement distribution. In that agreement, the parties represented that each "fully disclosed [his or her] financial status, including... assets and liabilities of all types and agree[d] that the terms of this Agreement are fair, just, and equitable after consideration of the financial status of the parties." The agreement provided as follows with respect to the parties' retirement accounts and post-separation income:

SECTION 3.

ASSETS

* * * * * *

D. Additional Retirement Account Provisions. The parties represent that all retirement and pension types of accounts have been disclosed. Each has his/her own IRA account listed solely in his/her name. Wife shall receive a percentage of husband's retirement pension from the U.S. Navy based on the following calculation: 166 months/number of months of active duty multiplied by .5.

* * * * * *

SECTION 5.

FUTURE EARNINGS AND ACQUISITIONS

All income, earnings, or other property received or acquired by either party to this Agreement on or after the date of execution of this Agreement shall be the sole and separate property of the receiving or acquiring party. Each party, as of the effective date of this Agreement, does hereby and forever waive, release, and relinquish all right, title, and interest in all such income, earnings and other property except as necessary to collect any sums due hereunder in the event of default.

* * * * * *

SECTION 12.

DIVORCE

It is agreed and understood that this Agreement finally settles all rights of the parties and the property jointly or individually owned by the parties. The parties agree that this Agreement shall be made a part of a final decree or judgment and such decree o[r] judg[ ]ment shall not conflict with the terms hereof except to the extent disapproved by the court....

SECTION 13.

MODIFICATION

This agreement shall stop and preclude either party from making other or further demands and claims upon the other, not included herein, except that such legal action may be taken by either party as is necessary to enforce or modify the terms and provisions hereof, except that the Property Settlement provision shall not be subject to modification....

On July 2, 2003, wife filed a bill of complaint for divorce and requested that the parties' separation agreement be confirmed, ratified and merged into the final decree. On October 21, 2003, the court held a hearing at which husband testified he was to receive a $30,000 military bonus, which he referred to as a "Redux bonus." Husband testified that his receipt of the Redux bonus would reduce the amount of his military retirement when he retired. Based on the parties' agreement that wife would receive a portion of his military retirement, he said wife should receive a portion of the Redux bonus "since her portion of his pension would be reduced as a result of his taking the Redux." Husband said that the formula in the parties' agreement "regarding his military pension would determine... wife's share of the Redux bonus." The parties' attorneys discussed the amount of wife's share and determined wife would receive 46% of the Redux bonus.

Husband received the bonus on November 30, 2003. Before husband paid wife the agreed-upon share, he changed his position. At a January 20, 2004 hearing set for entry of the final decree, husband took the position that wife was not entitled to any portion of the bonus, arguing it should be classified as income rather than retirement. Over husband's objection, the trial court entered the final decree, which provided that the court "does hereby ratify, confirm, approve, and incorporate, but not merge, into this decree" the parties' October 9, 2002 agreement. The printed portion of the decree also provided as follows:

ADJUDGED, ORDERED and DECREED that [husband] shall pay by military allotment to [wife] FORTY-SIX PERCENT (46%) of the gross amount (before taxes) for each of the two annual REDUX installments, with the percentage having been based on the following calculation: 166 months/180 months multiplied by.5.

That provision was crossed out and the following language inserted in its place:

ADJUDGED, ORDERED and DECREED that [husband] shall pay $4899.00 to [wife] by January 30, 2004, said sum being the first of two payments from [husband's] REDUX installments; [husband] shall make the second payment of [wife's] share of REDUX within 30 days of receipt by him of his second installment, said second payment to be forty-six Percent (46%) of the second installment before taxes are deducted and [wife] shall be responsible for the payment of taxes from her share; if [husband] retires before 20 years of service with the U.S. Navy and is required to reimburse any portion of the REDUX, [wife] must reimburse the U.S. Navy her share.

The decree also provided that the court "can reopen this matter any time for entry of Orders necessary to adjust the military retirement benefits of [husband] to comport with the written agreement of the parties." Husband's attorney endorsed the final decree "Seen and objected to: court's decision on Redux issue."

Husband then obtained new counsel, who filed a motion for rehearing on February 3, 2004. Husband's new attorney maintained that, despite husband's earlier concessions, the Redux bonus was post-separation income and that, pursuant to both the parties' agreement and federal law, wife was not entitled to share in the Redux bonus. He asked the court to vacate the relevant portion of the final decree.

Wife's attorney countered that husband was bound by his earlier concession that his decision to take the Redux bonus would reduce the amount of his future retirement benefits, in which wife was entitled to share. He also argued that husband's change in position violated the agreement's implied covenant of good faith.

The trial court reserved ruling at that time but noted as follows:

The evidence in the first hearing from [husband] was, [wife] was entitled to this [share of the Redux] because it effected [husband's] eventual retirement benefit.... That was the evidence in this case. So that is what I based my decision on.

We then had another hearing ... about how much she would get.... [Husband's attorney] and [wife's attorney]... came up with a figure [of] 46 percent.... I didn't come up with the 46 percent.

The other issue was ... taxes.... [T]he idea was the government took the money out before [husband] got his check. So we were operating, number one, under the testimony from [husband] that [wife] was entitled to the money, and the second was that taxes have already been paid.

By letter opinion of February 10, 2004, and subsequent order, the court denied the motion for rehearing, reasoning as follows:

There have been three hearings relative to this issue.... At the October hearing, [husband] testified that his wife was entitled to a portion of the Redux payment since her portion of his pension would be reduced as a result of his taking the Redux. At the January hearing, he changed his position. It is important to note that this was the evidence heard by the Court since that evidence was the basis for the Court's ruling. At both of these hearings, both parties were represented by counsel.

At the February hearing (with a court reporter present), there was no evidence taken, but there was a proffer made by [husband] with no objection from [wife]. That proffer consisted of three exhibits — [husband's] pay stub, 37 USC Section 322, and 10 USC Section 1408.

... [Husband's] motion to reconsider is denied. He testified [wife] was entitled to a portion of the Redux at the first hearing; his change of position and the federal statutes proffered don't change the evidence. Since he chose to accept the Redux thereby reducing her share of his pension, she is entitled to a portion of this payment.

Husband filed a notice of appeal.

II. ANALYSIS

Husband contends the court's decision awarding wife a portion of his Redux bonus was error because it was not "disposable retired pay" under federal law and,...