Yourko v. Yourko

• Decision Date: 21 December 2021
• Docket Number: Record No. 0363-21-1
• Citation: 74 Va.App. 80,866 S.E.2d 588
• Parties: Michael B. YOURKO v. Lee Ann B. YOURKO
• Court: Virginia Court of Appeals

74 Va.App. 80

866 S.E.2d 588

Michael B. YOURKO

v.Lee Ann B. YOURKO

Record No. 0363-21-1

Court of Appeals of Virginia.

DECEMBER 21, 2021

Charles E. Haden, Hampton, for appellant.

Kyle J. Burcham (Heather Larson Pedersen; Pedersen Law, PLLC, on brief), for appellee.

Present: Judges Huff, Ortiz and Friedman

OPINION BY JUDGE FRANK K. FRIEDMAN

Michael Yourko ("husband") appeals from the trial court's dismissal of his motion for modification of a final decree and equitable distribution order, and a military pension division order. Husband assigns error to the circuit court's refusal to modify these orders.

The parties to this divorce negotiated an agreement regarding the division of husband's military retirement pay. A year later husband challenged the orders complaining that aspects of the agreement to divide his military retirement pay were violative of federal law. Husband accurately depicts the orders' improper terms, and federal law's preemption and repudiation of these terms, but Lee Ann Yourko ("wife") claims the collateral attack came long after the circuit court lost jurisdiction over the orders under Rule 1:1. Husband argued that the orders could be challenged at this juncture as the product of a mutual mistake or clerical error, or, in the alternative, he contended that the orders were void ab initio or non-final. The circuit court refused to set aside the challenged orders. We reverse.

I. FACTUAL BACKGROUND

Wife filed a complaint for divorce from husband. After husband filed a counterclaim and both parties filed answers, the circuit court entered a final decree and equitable distribution order as well as a military pension division order on January 28, 2020. The final decree and equitable distribution order noted that the parties had "memorialized a division of marital assets and debts in an Equitable Distribution Agreement" which the court followed. The final decree and equitable distribution order set the amounts the court determined husband was to pay wife in child and spousal support. The military pension division order stated the terms of husband's military retirement division. It provided under the title "Amount of Payment:" "[t]he former Spouse is awarded thirty percent (30%) of the Service Member's disposable military retired pay."¹ The military pension division order goes on to state under paragraph 9 titled "Level of Payments:"

The parties have agreed upon the level of payments to the Former Spouse to guarantee income to her; based upon military retired pay with a deduction for disability compensation, resulting in the Former Spouses' share equaling $1,202.70 per month. The Service Member guarantees the level agreed upon by the parties and agrees to indemnify and hold Former Spouse harmless as to any breach hereof. Furthermore, if the Service Member takes any action, including additional waiver of retired pay for disability compensation which reduces the former spouse share she is entitled to receive, then he shall indemnify her by giving to her directly the amount by which her share or amount is reduced as additional property division payments which do not terminate upon remarriage or cohabitation. Service Member hereby consents to the payment of this amount from any periodic payments he received (such as wages or retired pay from any source) and this clause may be used to establish his consent (when this is necessary) for the entry of an order of garnishment, wage assignment, or income withholding.

(Emphasis added.)

While husband objected to certain "indemnification" language included in the circuit court's orders, the orders adopted the basic points of the parties' agreement and the orders became final without either side appealing them. At the time the parties negotiated wife's share of the military benefits, they genuinely believed husband would receive $4,009 per month in disposable retirement pay. However, sometime after the final decree, the military's Defense Finance Accounting Service ("DFAS") computed husband's disposable retirement pay to be only $844 per month, the remainder being disability pay which is not divisible in divorce proceedings. Therefore, DFAS calculated wife's 30% share of disposable retirement pay to be $253.20 per month rather than the $1,202.70 per month agreed to in paragraph 9.² The "indemnification" and "guarantee" language in paragraph 9, accordingly, required husband to pay almost $1,000 per month more in military benefit based pay to wife than DFAS calculated was due.

Over a year after entry of the final decree and pension order, husband filed a motion to reinstate and the circuit court revived the case on its docket. Husband then filed a motion for modification of the final decree and equitable distribution order and pension order. Husband argued that at the time the parties negotiated wife's share of his military retirement pay, they believed husband would receive $4,009 per month in disposable retirement pay, resulting in their calculation of wife's share at $1,202.70 per month. Husband now contended that since DFAS calculated his disposable retirement pay at a total of only $844 per month (the remainder being disability pay) the original calculation and agreement were hopelessly flawed.

Since disability pay is not divisible in divorce proceedings under federal law, husband argued that the parties' mistaken calculation in the final order effectively gave wife 140% of his divisible disposable retirement pay – plainly in violation of the 50% maximum allowed by federal law. 10 U.S.C. § 1408(e)(1). Husband also maintained that federal law prohibited the circuit court from requiring him to indemnify wife for any reduction she received in divisible disposable pay. He contended that the circuit court should modify its ordered monthly payment of $1,202.70 either because the order was not final, paragraph 9 contained a mutual mistake resulting in a clerical error, or it was void ab initio as contrary to federal law and Supreme Court precedent.

The circuit court found it could not reopen the case because the twenty-one-day deadline in Rule 1:1 had passed. It dismissed husband's motion for modification. It also specifically found there was no mutual mistake or clerical error. This appeal followed.

II. STANDARD OF REVIEW

Husband's assignment of error asks this Court to interpret federal statutes, Virginia statutes, federal case law, and Virginia's common law precedent. The assignment of error therefore presents questions of law that this Court reviews de novo. See Eley v. Commonwealth, 70 Va. App. 158, 162, 826 S.E.2d 321 (2019) (noting that questions of statutory law are reviewed de novo ); Commonwealth v. Greer, 63 Va. App. 561, 568, 760 S.E.2d 132 (2014) (stating that interpretation of the common law presents a legal question "reviewed de novo on appeal"). Generally, review of claims alleging a mutual mistake involve mixed questions of law and fact. While the court's underlying findings of fact are entitled to deference, the ultimate conclusion of whether particular conduct constitutes a scrivener's error is a question of law to be reviewed de novo. See Westgate at Williamsburg Condo. Ass'n, Inc. v. Richardson, 270 Va. 566, 575, 621 S.E.2d 114 (2005). Where the essential facts are undisputed, a question of law is presented regarding the circuit court's application of the law to those facts. See Rodriguez v. Leesburg Bus. Park, 287 Va. 187, 193, 754 S.E.2d 275 (2014).

III. ANALYSIS

A. The Final Decree and Equitable Distribution Order and Military Pension Division Order were Final for the Purposes of Rule 1:1.

A final judgment is "one which disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment." Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560, 561 S.E.2d 734 (2002). It is well settled that "[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." Rule 1:1. The same is true for final divorce decrees. Jackson v. Jackson, 69 Va. App. 243, 247, 817 S.E.2d 676 (2018). Equitable distribution and support orders, although subject to a trial court's continuing jurisdiction, are nonetheless considered "final judgments" for purposes of Rule 1:1's twenty-one-day window. See Hastie v. Hastie, 29 Va. App. 776, 780, 514 S.E.2d 800 (1999) ("It is well settled that equitable distribution orders become final within twenty-one days of entry."). They may be modified by a subsequent order, but only while the court retains jurisdiction for twenty-one days, or otherwise by reservation or statute. Id. ³

The final decree here was a final judgment; it resolved all substantive issues. The final decree declared the divorce between husband and wife, while also dictating equitable distribution divisions between husband and wife. It resolved support levels and custody issues. The pension order set the division of husband's retirement pay. The final decree or pension order would have needed to convey the intent to "forestall[ ] the commencement of the twenty-one day time period of Rule 1:1" in order to retain jurisdiction. Ruffin, 263 Va. at 563, 561 S.E.2d 734.⁴ By the time husband filed a motion for modification, over a year after the final decree and pension order were entered, the circuit court had lost jurisdiction to rewrite the challenged orders unless the orders were void ab initio or fell within a statutory exception to Rule 1:1.

B. There was No Mutual Mistake or Clerical Error Allowing a Modification of the Final Decree or Pension Order after Twenty-one Days.

Husband argues that, even if the circuit court lost its jurisdiction to modify its orders after twenty-one days, the circuit court still had the power to modify the orders if they contained a clerical error. He relies on Code § 8.01-428(B) which provides trial courts...