COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Clements Argued at Salem, Virginia

DENNIS LEE STRAUSBAUGH MEMORANDUM OPINION * BY v. Record No. 1040-06-3 JUDGE JEAN HARRISON CLEMENTS MAY 15, 2007 BRENDA BRITT STRAUSBAUGH, N/K/A BRENDA BRITT MONROE

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Ray W. Grubbs, Judge Edwin C. Stone (Stone & Kellerm an, P.C., on brief), for appellant. John S. Huntington for appellee.
Dennis Lee Strausbaugh (husband) appeals fr om the trial court’s April 5, 2006 decree awarding his former wife , Brenda Britt Stra usbaugh, n/k/a Brenda Britt Mo nroe (wife), half of the marital share of his pension, pursuant to the terms of the parties’ final decr ee of divorce. Husband contends that, in making that award, the trial ju dge erroneously (1) modifi ed substantive terms of the divorce decree in violation of Rule 1:1, (2) used the st atutory marital share formula rather than the actual value of the pens ion as of the date of the parties’ se paration to calculate wife’s share of the pension, and (3) found the lump sum severance payment he received from his employer constituted a pension benefi t in which wife had an interest. Wife requests an award of attorney’s fees and costs incurred in defending this appeal. For the reasons that follow, we affirm the judgment of the trial cour t and grant wife’s requ est for appellate attorn ey’s fees and costs.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - As the parties are fully co nversant with the record in this case, and because this memorandum opinion carries no precedential value, th is opinion recites on ly those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.
I. BACKGROUND The facts relevant to our disposition of this appeal are not in dispute. 1 The parties were married on August 23, 1969. Th ey separated 184 months later on December 30, 1984, and were divorced by final decree of the Circuit Court of Montgomery County en tered August 21, 1986. The final decree of divorce provided that, at such time as [husband] shall be entitled to receive a monthly pension, or other pension of any nature from AT&T Technologies, Inc., [wife] shall be entitled to receive fifty percent (50%) of the net amount of such pension payments, the net amount being defined as the actual amount rece ived by AT&T Technologies, Inc. or the administrator of its pension plan. Neither party appealed th e final decree of divorce. Husband worked for Western Electric Company from 19 68 to 1980, AT&T Electronic Components from 1980 to 1982, AT&T Technol ogies from 1982 to 19 86, AT&T De Mexicana International Electronic s from 1986 to 1989, AT&T Power Systems fr om 1989 to 1994, AT&T Semi-conductor Technologies from 1994 to 1995, CIRE NT Semi-conductor Co mpany from 1995 to 1996, Lucent Technologies from 1 996 to 2000, and Agere Systems fr om 2000 to 2002. Prior to the parties’ separation, husband’s annual earnings increas ed from $7,800 in 1970 to $37,800 in 1984.

1 In response to an order of this Court to show cause why this appeal should not be dismissed for lack of a transcri pt or written statement of fact s, husband’s counsel represented that the April 5, 2006 decree was “the equivalent of a separate statemen t of facts” because “counsel for both parties cooperated fully to incorpor ate into the . . . decree[] all facts relevant to the issues resolved by the trial court and now before this [C]ourt on appeal.” We permitted the appeal to proceed on that basis. Accordingly, th e facts set forth in this opinion are based on the April 5, 2006 decree and the judge’s letter opinion incorporated th erein, as well as the relevant pleadings and exhibits in the record.- 3 - He earned an average annual income of $19,102 over that period. Following the parties’ separation, husband’s annual earnings increased from $39,600 in 1985 to a high of $119,065 in 1995. From 1994 to 2002, husb and earned an average annual income of $97,033 . Husband retired on October 6, 2002. His pension benefits co mmenced on October 7, 2002. Husband’s last employer, Agere Systems, calculated that, for purposes of determining husband’s pension benefit, husband had 34 years and 1 month (409 months) of “Benefit Service,” from September 1968 through Oct ober 6, 2002. Agere Systems defined “Benefit Service” as “the number of years and months w ith Agere beginning with the Date of Hire and ending with the Date of Termination.” Using a formula incorporating husband’s 409 months of credited service time and his compensation from 1994 to 2002, Agere Systems calculated that husband’s “regular service pension benefit” was $3,247.75 per month. Noting there were “two parts to [husband’s pension] benefit,” Agere Systems also paid husband a “Supplemental Pension Benefit,” which husband chose to receive as a lump sum payment of $50,604 rather than as a monthly annuity of $294.76. The “Supplemen tal Pension Benefit” was “paid from the general assets of the Qualified Trust of the Agere Sy stems, Inc. Pension Plan and . . . was computed on the basis of [husband’s] salary and his years of servic e with Agere Systems.” On March 3, 2003, wife moved for “entry of appropriate orders to facilitate the distribution of [husband’s] pension” in accordance with the terms of the final decree of divorce. She argued that, “based upon the language of the 1986 divorce decree,” she was entitled to half of the pension benefits received by husband. 2 Husband argued wife was not entitled to receive

2 Wife acknowledged below that, although the di vorce decree explicit ly entitled her to fifty percent of husband’s pension payments, an aw ard of fifty percent of the marital share of husband’s pension in accordance with the marita l share formula in Code § 20-107.3(G)(1) would not be unfair. Under that approach, wife argue d, her share of husband’s monthly pension benefit would be $730.55 ($3,247.75 x 44.9878% x 50%) and her share of husband’s lump sum pension benefit would be $11,382.87 ($50,604.23 x 44.9878% x 50%).- 4 - any distribution from his pension because his pension was from Agere Systems, not “AT&T Technologies, Inc.,” as specified in the divorce decree. Husband also argued that, if the trial court determined wife was entitled to distributi on of his pension, it should be valued as of the date of the parties’ separation, rather than the date of his retirement. 3 He further argued that wife was not entitled to any part of the lump sum payment he received from Agere Systems because it was not a pension benefit. Husband testified at the ore tenus hearing on wife’s motion that “the company officials explained to him that the lump sum payment was in the nature of a severance benefit.” Rejecting husband’s testimony, the trial j udge found that the lump sum payment husband received from Agere Systems constituted a pension benefit rather than a se verance benefit. The judge also determined that, pursuant to the divorce decree, wife was entitled to half the marital portion of the pension benefits husband received from Agere Systems and that the marital portion of those benefits was to be calculated using the “statutorily defined marital share portion” set forth in Code § 20-107.3(G)(1). Accordingly, the judge calculated that the marital portion of husband’s pension was 44.9878% (184 months/409 months); that wi fe’s share of the marital portion of the lump sum “Supplementa l Pension Benefit” was $11,382.87 ($50,604.23 x 44.9878% x 50%); and that wife’s share of the ma rital portion of the mo nthly pension benefit was $730.55 per month ($3,247.75 x 44.9878% x 50%). The judge memorialized these rulings

3 According to the April 5, 2006 decree: The [c]ourt considered evidence and argument establishing that if the plan administrator were called upon to determine the value of a monthly service pens ion benefit based upon a single life annuity at age 65 with an assumed termination date being the date of separation, the plan administ rator would have calculated the value of a single life annuity to have been $721.47. Using that figure, husband argued below th at wife was entitled to no more than $360.74 from his monthly pension payments ($721.47 x 50%).- 5 - in the April 5, 2006 decree and entered a qualified domestic relations order consistent therewith on April 19, 2006. This appeal followed. II. RULE 1:1 AND CODE § 20-107.3(K)(4) On appeal, husband contends the trial cour t substantively modified the terms of the August 21, 1986 final decree of divorce more than tw enty-one days after en try of the decree, in violation of Rule 1:1, when it awarded wife a share of his pension from Agere Systems. Husband argues that, under the express terms of th e final decree, wife was entitled to a share of his pension only from “AT&T Tec hnologies, Inc.” He further argu es that, because his pension was from Agere Systems, rather than AT&T Tec hnologies, Inc., wife was not entitled to any part of the pension, and the trial court erred in holding to the contrary. We disagree. While “we review the trial court’s applica tion of the law to [the facts of a case] de novo ,” the trial court’s “factual findings will not be disturbed on appeal unless they are plainly wrong or without evidence to support them.” Collins v. First Union Nat’l Bank , 272 Va. 744, 749, 636 S.E.2d 442, 446 (2006). Ordinarily, a trial court loses jurisdiction over a case twenty-one days after entry of the final decree. See Rook v. Rook , 233 Va. 92, 94-95, 353 S.E.2d 756, 758 (1987) (citing Rule 1:1). Thus, the equitable dist ribution provisions of an unappeal ed final divorce decree become “the law of [the] case” after twenty-one da ys and are not norma lly “subject to later modifications.” Hastie v. Hastie , 29 Va. App. 776, 782, 514 S.E.2d 800, 804 (1999). However, Code § 20-107.3(K)(4) “creates a lim ited exception to the strict dir ective of Rule 1:1” and gives the trial court continuing authority to modify the terms of the final decree’s “retirement or pension provisions [to] ‘effectua te the expressed intent’ of th e original decree,” provided the modification is “consistent with the substantive provisions of the original decree” and not- 6 - “simply to adjust its terms in light of the pa rties’ changed circumstances.” Caudle v. Caudle , 18 Va. App. 795, 797-98, 447 S.E.2d 247, 249 (1994). Here, the expressed intent of the pension pr ovisions of the divorce decree was to award wife half of husband’s “pension . . . receiv ed [from] AT&T Technologies, Inc. or the administrator of its pension plan.” When as ked pursuant to wife’s March 3, 2003 motion to implement the distribution of husband’s pension in accordance with the pension provisions of the divorce decree, the trial judge found that all nine of husband’s employers from September 1968 through his retirement on October 6, 2002, a period of thirty-four years and one month, were “successors in interest and existed as a result of mergers, acquisitions, spin-offs or other changes in corporate entity or divisions thereof.” Accordingly, the judg e further found that “the nexis [sic] between [husband’s] employers [was] sufficie nt to establish a servi ce period of thirty-four . . . years and one . . . . month.” On that basi s, the judge concluded that , pursuant to the pension provisions of the divorce decree, wife was enti tled to half the marita l portion of the pension benefits husband received from Agere Systems, the administrator of husband’s pension when he retired. In other words, in resolving the issue before him, the trial judge implicitly found that, although the pension husband received when he retired was administer ed and paid by Agere Systems, that pension was, in fact, the same pension specifically referenced in the divorce decree. On the record before us, we cannot say this finding is plainly wrong or without credible evidence to support it. Indeed, in calculat ing husband’s pension benefit, Agere Systems expressly credited husband with thirty-four y ears and one month of “B enefit Service,” which Agere Systems defined as “the number of years and months with Agere beginning with the Date of Hire and ending with the Date of Termina tion.” This credited service time “with Agere” comprised the 409-month period from September 1968 through husband’s retirement in October- 7 - 2002 and, thus, necessarily included the 184-month pe riod of the parties’ marriage before they separated and the four-year pe riod husband worked specifically for AT&T Technologies, Inc. 4 In addition, the credited se rvice time accrued during husba nd’s employment with AT&T Technologies, Inc., and its successors in interest, resulting from “mergers, acquisitions, spin-offs or other changes in corporate entity or divisions.” Accord ingly, although AT&T Technologies, Inc., was no longer husband’s employer, the pens ion husband received from Agere Systems was the same pension from “AT&T Technologies, Inc. or the administrator of its pension plan” specified in the divorce decree. We hold, therefore, that, in awarding wife a share of the pension benefits husband received from Agere Systems, the trial judge di d not modify the substantive provisions of the final decree of divorce, but only “conform[ed] its term s so as to effectuate the expressed intent of [that decree].” Code § 20-107.3(K)(4). Accordingl y, the trial judge did not violate Rule 1:1 in making that award.
III. CALCULATION OF WIFE’S SHARE OF PENSION Husband next contends that, even if the trial court had the authority to award wife a share of his pension benefits, it erred in applying the statutory marital sh are formula to calculate wife’s share of the pension rather than using the plan administrator’s de termination of the value of the pension as of the date of the parties’ separation. 5 We disagree.

4 Although not entirely clear from the r ecord, husband was presumably working for AT&T Technologies, Inc., when the final decree was entered on August 21, 1986.

5 For purposes of this analysis, we will assume, without deciding, that evidence establishing the value of husband’s pension as of the date of the parties’ separation was properly before the trial court. See footnote 3.- 8 - Code § 20-107.3(G)(1) governs the distribution of the marital share of a pension. See Mosley v. Mosley , 19 Va. App. 192, 198, 450 S.E.2d 161, 165 ( 1994). In pertinent part, this code section provides: The court may direct paymen t of a percentage of the marital share of any pension . . . or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time. . . . However, the court shall only direct that payment be made as such benefits are payable. . . . “M arital share” means that portion of the total interest , the right to which was earned during the marriage and before the last separation of the parties . . . . Code § 20-107.3(G)(1) (emphasis added). Addr essing Code § 20-107.3(G)(1)’s provisions, we held in Mosley : This statutory language is manda tory and can be implemented through the use of a simple formula. The number of years that the spouse was in the pension plan while in the marriage serves as the numerator and the total number of years in the pension plan serves as the denominator. This fracti on establishes the marital share of the pension as defined by the statute. 19 Va. App. at 198, 450 S.E.2d at 165. Here, pursuant to the terms of the final decr ee of divorce, distribution of the marital share of husband’s pension was deferred until “such time as [husband was] entitled to receive a monthly pension, or other pensi on of any nature.” When, follo wing husband’s retirement, wife moved for “entry of appropriate orders to facilita te the distribution of [ husband’s] pension,” the trial judge implicitly recognized that husband’s pension was part marital and part separate property and accordingly used the statutory marita l share formula to calculate the marital portion of the monthly and lump sum pension payments husband received from Agere Systems ($3,247.75 x 44.9878% = $1,461.09 and $50,604.23 x 44.9878% = $22,765.73). Consistent with
the terms of the divor ce decree, the judge then awarded wi fe half of each of those amounts ($1,461.09 x 50% = $730.55 and $22,765.73 x 50% = $11,382.87).- 9 - Husband does not challenge the correctness of the tr ial judge’s calculations. Instead, he argues the trial judge’s use of the statutory form ula to calculate wife’s share of his pension benefits was inappropriate in this case because the formula, in using the value of his pension benefits at the time of his retirement as a fact or, relied on salary increas es he earned after the date of separation and thereby ga ve wife a greater pension intere st than was legally warranted. This argument, however, runs count er to our established case law: Under Virginia law, it is well esta blished that the marital portion of a defined [pension] benefit plan is distinguished from the separate portion by the application of a fr action, the numerator of which represents the total time the pensioner is employed during the parties’ marriage, and the denomin ator of which represents the total time the pensioner is employed through the date of retirement. The fraction diminishes the marital share in relation to the number of years that pre- and post-marita l contributions are made. Thus, as applied, the fraction effectively excludes from the marital share the income earned by pre- and pos t-marital contributions to the pension.
Mann v. Mann , 22 Va. App. 459, 464-65, 470 S.E.2d 605, 607-08 (1996) (citati ons and footnote omitted). Additionally, we have “rejected limitation of a pension award, payable in the future, to a ‘present value calculation’ because it denied the benefit of ‘future earnings and adjustments that are attributable to the . . . deferred share’ and its ‘fut ure appreciation.’” Banagan v. Banagan , 17 Va. App. 321, 324, 437 S.E.2d 229, 231 (1993) (quoting Zipf v. Zipf , 8 Va. App. 387, 397, 382 S.E.2d 263, 268-69 (1989)). “It is only fair that bot h parties share in the increased value of the pension,” or one will be “receivi ng the increase in value” over time which is attributable to the other’s marital interest. Primm v. Primm , 12 Va. App. 1036, 1038, 407 S.E.2d 45, 47 (1991). Contrary to the husband’s view, such enhancement is clearly a part of the “total [pension] interest” component of the[] marital share equation and obviously distinguisha ble from a judicial award of interest on a deferred sh are of a pension. See Code § 20-107.3(G).- 10 - Banagan , 17 Va. App. at 325-26, 437 S.E.2d at 231. “There can be no justification for [husband] receiving the increase in value of his . . . share as well as any increase in [wife’s] . . . share.”
Primm , 12 Va. App. at 1038, 407 S.E.2d at 47. Thus, [w]hile the trial court “must be gi ven flexibility to determine which method of distribution to utili ze in a given case,” Gamble [v. Gamble] , 14 Va. App. [558,] 585, 421 S.E.2d [635,] 651 [(1992)] (citing L. Golden, Equitabl e Distribution of Property § 6.16 (1983 & Supp. 1991)), “ [a] present value calculati on is of direct use only where payment of the portion of the monetary award attributable to the pension is to occur immediat ely rather than over a period of time .” Zipf , 8 Va. App. at 397, 382 S.E.2d at 268 (citations omitted) (emphasis added). McGinniss v. McGinniss , 49 Va. App. 180, 187-88, 638 S.E.2d 697, 700 (2006). Here, the trial judge’s use of the statutory ma rital share formula to calculate wife’s share of the pension is consistent with these principl es. Accordingly, we hold the judge did not err in using that formula.
IV. LUMP SUM PAYMENT Husband contends the trial court erred in fi nding the lump sum payment he received from Agere Systems constituted a pension benefit rather than a severance benefit. This contention ignores our standard of review. As previously mentioned, we are bound by the tr ial court’s findings of fact “unless they are plainly wrong or without evidence to support them.” Collins , 272 Va. at 749, 636 S.E.2d at 446. Additionally, “[a]s an appellate court, we vi ew the evidence, and all reasonable inferences flowing from the evid ence, in a light most favorable to . . . the part y prevailing below.” Miller v.
Cox , 44 Va. App. 674, 678, 607 S.E.2d 126, 128 (2005). Here, credible evidence in the record supports the trial judg e’s finding that the lump sum payment “was a pension benefit in which [wife] ha[d] a marital interest.” For one thing, Agere Systems, the administrator of husband’s pension, specifically noted there were “two parts to- 11 - [husband’s pension] benefit” a nd identified the second part of husband’s pension benefit, the lump payment, as a “Supplemental Pension Bene fit Payment.” Likewise, the lump sum payment was “paid from the general assets of the Qualified Trust of th e Agere Systems, Inc. Pension Plan.” The trial judge could properly conclude from this evidence that the lump sum payment was a part of appellant’s pension benefits. Nevertheless, husband argues that such a conclu sion is inappropriate because he “testified in the ore tenus hearing that he was advised that the payment was a severance payment resulting from the company downsizing.” Husband, howev er, provided no documentary evidence at the

ore tenus hearing to support his testim ony or counter the administrato r’s description of the lump sum payment as a pension benefit. Moreover, husband’s argument disregards the familiar principle of appellate review that “[t]he credib ility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has th e opportunity to see and hear that evidence as it is presented. ” Thomas v. Thomas , 40 Va. App. 639, 644, 580 S.E.2d 503, 505 (2003); see also Anderson v. Anderson , 29 Va. App. 673, 686, 514 S.E.2d 369, 376 (1999) (“The trier of fact . . . has the discretion to accept or reject any of the witness’[s] testimony.”). Having had the opportunity to see and hear th e evidence presented at the ore tenus hearing, the trial judge had broad discretion to evalua te the credibility of the conflicting evidence presente d in this case, and we cannot say, on the record before us, that the judge abused his di scretion in rej ecting husband’s testimony. Thus, we will no t disturb the court’s credibi lity determination on appeal. Because the trial judge’s finding that the lump sum payment constituted a pension benefit instead of a severance benefit is not plainly wrong or without credib le evidence to support it, we hold the trial judge did not err in making that finding.- 12 - V. ATTORNEY’S FEES Wife seeks an award of attorney’s fees and costs incurred in defending this appeal. The rationale for the appellate court being the proper forum to determine the propriety of an awar d of attorney’s fees for efforts expended on appeal is clear. The appellate court has the opportunity to view the record in its entirety and determine whether the appeal is frivolous orwhether other reasons exist for requiring additional payment. O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Because this appeal lacks merit, we grant wife ’s request for reasonable appellate attorney’s fees and costs.
See Miller , 44 Va. App. at 688, 607 S.E.2d at 133. Accord ingly, we remand this case to the trial court for determination and award of the appropriate appellate attorney’s f ees and costs. Id.
VI. CONCLUSION For these reasons, we affirm the judgment of the trial court, grant wife’s request for attorney’s fees and costs, and remand for determination of those fees and costs. Affirmed and remanded.