Nkopchieu v. Minlend

• Decision Date: 20 December 2011
• Docket Number: Record No. 0500–11–4.
• Parties: Cheyep NKOPCHIEU v. Raymond Bernard MINLEND.
• Court: Virginia Court of Appeals

59 Va.App. 299

718 S.E.2d 470

Cheyep NKOPCHIEU

v.Raymond Bernard MINLEND.

Record No. 0500–11–4.

Court of Appeals of Virginia, Alexandria.

Dec. 20, 2011.

Carolyn M. Grimes (Jessica L. Leischner; Lieblich & Grimes, P.C., Alexandria, on brief), for appellant.

No brief or argument for appellee.

Before: HALEY, BEALES and ALSTON, JJ.

BEALES, Judge.

In this domestic relations proceeding, the circuit court in its final order of divorce denied a motion by Cheyep Nkopchieu (mother) to enter a qualified domestic relations order (QDRO) permitting her to attach a retirement account belonging to Raymond Bernard Minlend (father) for the sole purpose of paying father's very considerable child support arrearage of over $28,000. On appeal, we hold that the circuit court committed reversible error when it found that it was constrained by this Court's decision in Hoy v. Hoy, 29 Va.App. 115, 510 S.E.2d 253 (1999).

The record on appeal establishes that father has completely ignored and frustrated the trial court's child support orders—and that mother's only means of obtaining the necessary child support for the parties' two children is through attaching father's retirement account. We find that neither Hoy nor any other provision of Virginia domestic relations law deprived the circuit court of authority to enter a QDRO pursuant to the procedures of the federal Employee Retirement Income Security Act (ERISA). Therefore, we reverse the portion of the circuit court's final order of divorce denying mother's motion for entry of a QDRO and remand the matter to the circuit court for further proceedings consistent with this opinion.

I. Background

Mother and father were married in Virginia on February 23, 2009, approximately eleven months after the birth of their first child. They separated on or about December 15, 2009, while mother was pregnant with their second child, who was born on April 13, 2010.

Father filed a complaint for a divorce on February 25, 2010, and mother filed a cross-complaint for a divorce seeking pendente lite child support. In its April 16, 2010 pendente lite order, the trial court ordered father to make monthly child support payments in the amount of $2,000. Because the trial court determined that there was already a child support arrearage of $9,000, it ordered father to pay an additional $500 per month to begin satisfying this child support arrearage.

Father never made any of these child support payments ordered by the trial court. In fact, at some point in the divorce proceedings, father actually left the United States—and there is no indication from the record on appeal that he has ever returned to this country.¹ Therefore, during the pendency of the divorce proceedings, the arrearage created by father's failure to make any child support payments continued to grow considerably.

Mother filed a written motion for the entry of a QDRO on January 13, 2011, ² when father's child support arrearage had grown to almost $28,000. Mother asserted: (a) that father had not appeared at any of the hearings in the trial court; (b) that father had left the country and was “not likely to return”; (c) that mother had not had any contact with father either “directly or through counsel”; (d) that father “was the sole income earner for the family prior to and during the marriage,” leaving mother with essentially no assets; (e) that mother and the parties' two children had been forced to rely on charity and public assistance; and (f) that father's retirement account with his Virginia employer was “the only asset” of father's that mother knew of that could be used to pay the father's unpaid child support obligation. Mother contended that ERISA gives “state courts the authority to enter QDROs assigning retirement benefits to an alternate payee for the purpose of garnishing a retirement account to enforce payment” of a child support arrearage. See 29 U.S.C. § 1056(d)(3)(K) (defining an “alternate payee” under ERISA as “any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant”); see also 29 U.S.C. § 1056(d)(3)(J) (“A person who is an alternate payee under a qualified domestic relations order shall be considered for purposes of any provision of this Act a beneficiary under the plan.”).

During the divorce trial on January 21, 2011, father's counsel argued that the trial court lacked authority to enter the QDRO that mother sought. Father's counsel relied on Hoy, 29 Va.App. at 119, 510 S.E.2d at 255, where this Court held that a litigant's claim as a judgment creditor against her former spouse for unpaid spousal support could not be “recast” into an appropriate circumstance for entering a QDRO. In response, mother's counsel noted that Hoy involved an attempt to re-open a divorce case that already had been final for over two decades—in order to enter a QDRO attaching a retirement account that did not even exist at the time of the Hoys' divorce. Thus, mother's counsel argued that this Court's decision in Hoy did not affect the trial court's authority in this case “to assign a portion of the income” from father's retirement account “to an alternate payee” for the payment of unpaid child support.

Father's counsel also argued at the hearing in the trial court that a QDRO could not be entered because mother had expressly disavowed any property interest in husband's retirement account assets in the parties' premarital agreement.³ In response, mother's counsel argued:

What we are asking the Court to do is to enter a qualified domestic relations order pursuant to ERISA to allow Ms. Nkopchieu to essentially garnish Mr. Minlend's retirement account, which is an asset, for the purpose of paying unpaid support. The Court's authority to do this stems specifically from the federal law in ERISA, which allows for the Court to enter a QDRO for two separate purposes.

The Court is permitted to enter the QDRO as it relates to property division, which is what we would be doing in equitable distribution, which we are not in dispute that that is not before the Court today. We are not saying she has a property interest in his retirement account, as it relates to a property division. What we are saying is the other purpose of the QDRO, as it relates to ERISA in saying that the Court may enter a QDRO for the purpose of enforcing its child support or spousal support orders.

(Emphasis added). Mother's counsel then reiterated that mother was not seeking to create a personal “right or an interest” in father's retirement account.

In its final order of divorce, the trial court awarded mother sole legal and physical custody over the two children and increased father's monthly child support obligation to $2,035. The trial court found that father's child support arrearage had grown to $28,106.66 and ordered father “to pay this amount in full immediately.” However, the trial court denied mother's motion for the entry of a QDRO to satisfy the child support arrearage—finding that it was “bound by the Court of Appeals' decision” in Hoy.

II. Analysis

On appeal, mother emphasizes (as she emphasized in the trial court) that she does not seek any personal interest in father's retirement assets—and that the parties' premarital agreement bars any such a claim. However, the premarital agreement also states, “Nothing in this agreement shall be construed as limiting the right of either party to make claims for child support.” Mother contends that she is actually pursuing a claim of unpaid child support for her infant children. Mother asserts that she seeks a QDRO only in her capacity as the parent with sole legal and physical custody of the parties' children, and, therefore, as the children's guardian.

Given mother's position here, the fact that the parties were married (and are now divorced) is simply irrelevant. Mother could have made precisely the same request for the entry of a QDRO even if the parties had never married. This is because mother seeks to vindicate the children's rights to child support—not any property rights mother herself might have that resulted from the marriage with father.

In Commonwealth ex rel. Gray v. Johnson, 7 Va.App. 614, 622, 376 S.E.2d 787, 791 (1989), this Court noted, “An actual distinction rests in the right to child support.” This Court explained:

[T]he duty of support of all children is owed to the child, not the mother. The amount of the support is based primarily on the needs of the child and the ability of the father to provide, not the needs of the mother. Thus, the mother does not have the same legal right of the child in seeking child support; rather, the right is solely that of the child. The mother simply has the right to act as a conduit for the payments of support to the child. ⁴

Id. (emphasis added).

Acting solely “as a conduit for the payments of support” to the parties' children, id., mother seeks the entry of a QDRO in this case. She argues that ERISA and Virginia's laws pertaining to domestic relations would permit the entry of a QDRO under the specific circumstances of this case. Mother “presents an issue of law, which we review de novo.” Ahari v. Morrison, 275 Va. 92, 95, 654 S.E.2d 891, 893 (2008).

A. ERISA's Requirements for the Entry of QDROs

Under ERISA, the funds of an employee benefit plan (such as father's retirement account with his Virginia employer) generally “may not be assigned or alienated.” ⁵ 29 U.S.C. § 1056(d)(1). However, this general prohibition against the assignment or alienation of employee retirement benefits does not apply when a state domestic relations order “is determined to be a qualified domestic relations order.” 29 U.S.C. § 1056(d)(3); see Wilson v. Wilson, 18 Va.App. 193, 200, 442 S.E.2d 694, 698 (1994) (“Under federal law, qualified domestic relations orders are an exception to ERISA's proscription...