COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, 

 Willis, Bray, Fitzpatrick, Annunziata and Overton 

Argued at Richmond, Virginia 

WILLIAM J. FAHEY 

 OPINION BY 

v. Record Nos. 2477-95-4 and JUDGE RICHARD S. BRAY 

 2773-95-4 FEBRUARY 25, 1997 

MARY LUCRETIA FAHEY 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 David D. Masterman (Cheryl K. Graham; Condo & 

Masterman, P.C., on brief), for appellant. 

 Stephen G. Cochran (Cochran & Rathbun, P.C., 

on brief), for appellee. 

 William J. Fahey appeals an order which amended an existing 

qualified domestic relations order (QDRO) relating to the 

distribution of Mr. Fahey's Keogh plan. By unpublished opinion 

dated July 23, 1996, a panel of this Court concluded that the 

court was without jurisdiction to modify the prior order and 

reversed the amended QDRO. Upon rehearing en banc, we concur in 

the panel decision and reverse the amended QDRO. 

 The parties were divorced by a decree of the trial court 

entered July 26, 1993, which reserved equitable distribution for 

subsequent adjudication. Thereafter, on July 28, 1994, the 

parties executed a property settlement agreement (agreement) 

which was incorporated into a consent order dated August 31, 

1994. 
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 Mr. Fahey owned three Keogh accounts, valued by the 

agreement at $214,000, and the terms of the agreement required 

him to "promptly arrange to transfer to [Mrs. Fahey] one-half (1⁄2) 

of each of these accounts . . . [,] pursuant to a Qualified 

Domestic Relations Order, if requested by either party." When a 

dispute arose with respect to the accounts, Mrs. Fahey moved the 

court for a QDRO on February 3, 1995. The parties thereafter 

agreed to a QDRO for each account, and related consent orders 

were entered on June 6, 1995. Two of the accounts were later 

divided in accordance with the respective QDRO, but the third 

account, the "IDEX" plan, is the subject of this appeal. 

 The QDRO distributing the IDEX assets allotted "one-half of 

the accrued value of the Plan as of July 28, 1994," the date of 

the agreement, to Mrs. Fahey, and neither party appealed that 

order. In September 1995, the administrator of the IDEX plan 

divided the assets in-kind rather than in accordance with the 

agreed value. Because the account had increased in value by 

one-third since the July 28, 1994 valuation date, Mr. Fahey 

objected to an in-kind division. Mrs. Fahey countered that the 

administrator had acted properly and moved the court for entry of 

the amended QDRO in dispute, which assigned to her "one-half of 

the shares of the Plan as of July 28, 1994, together with any 

appreciation or depreciation that has accrued since that time 

until the time of distribution." 

 It is uncontroverted that Mrs. Fahey did not request an 

amendment of the original QDRO within twenty-one days of its 
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entry and did not appeal such order to this Court. Thus, the 

original QDRO would, ordinarily, have become final prior to the 

disputed amendment. See Rule 1:1; see also Rook v. Rook, 233 Va. 

92, 94-95, 353 S.E.2d 756, 758 (1987). However, the court is 

permitted to "[m]odify any order . . . intended to affect or 

divide any pension, profit-sharing or deferred compensation plan 

or retirement benefits . . . to revise or conform its terms so as 

to effectuate the expressed intent of the order," Code 

§ 20-107.3(K)(4), provided such modification is "consistent with 

the substantive provisions of the original decree" and not 

"simply to adjust its terms in light of the parties' changed 

circumstances." Caudle v. Caudle, 18 Va. App. 795, 798, 447 

S.E.2d 247, 249 (1994). 

 Here, the manifest intent of the original order was to allot 

Mrs. Fahey one-half of the value of the IDEX account on July 28, 

1994. We recognize that this method of division later disfavored 

her because the account increased in value, but the court was 

without authority to substantively modify its order simply to 

redress this changed circumstance. See Code § 20-107.3(K)(4); 

Caudle, 18 Va. App. at 798, 447 S.E.2d at 249; see also Newsome 

v. Newsome, 18 Va. App. 22, 26, 441 S.E.2d 346, 348 (1994). 

Accordingly, we reverse the amended QDRO and direct the trial 

court to decree distribution of the IDEX assets pursuant to the 

original QDRO. 

 Reversed and remanded.