COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardn er and Lemons

SULTA N. McELROY MEMORANDUM OPINION * v. Record No. 07 77-99-4 PER CURIAM JUNE 22, 1999 DONALD H. McELROY

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY William T. Newm an, Jr., Judge (Jahangir Ghob adi; Jahangir Gh obadi, P.C., on briefs), for appellant. (Stephen K. Chri stenson; Kevin R. Hildebeidel; Stephen K. Christenson, P.C., on brief), for appellee.

Sulta N. McElroy (wife) appeal s the decision of the circuit court granting the Motion to Compel Compliance filed by Donald H. McElroy (husba nd). Wife contends that the trial co urt erred by (1) finding that husban d properly served wi fe when he filed a motion to compel whil e wife's previous appe al to the Court of Appeals was pendin g; and (2) sanc tioning wife by changing the effective date of wife's entitlem ent to husband's military pension while the matter was pending on ap peal. Upon revi ewing the record and briefs of the parties, we conclu de that this ap peal is without merit. Accordingly, we summaril y affirm the decisi on of the trial

court. See Rule 5A:27.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.At the time husban d filed his mo tion to comp el, wife was imprisoned following he r conviction for soli citation to commit murder. Issue One Wife contends that husband's motion to compel wa s improperly served. She argues that Code § 20-115 requir ed husband to file a Rule to Show Cause rath er than a Motion to Co mpel Compliance. We find no merit in this argument. Husband's moti on to compel was fi led pursuant to the statutory author ity set out in Code § 20-107.3(K). Husband served wife's committee, who was wife's counsel of record during the divorce procee dings and on appeal. See Code §§ 8.01 -2(6)(a) and 8.01-9(B). We find no error in husband's service upon wife's committee of the moti on to compel. Code § 20-115 authorizes the trial court to or der commitment to a correction facili ty or work assignment "upon conv iction of any party for cont empt of court in . . . (i i) willfully failing or refusing to comply with any order entered purs uant to § 20-103 or § 20-107.3." Wi fe argues that there wa s no evidence that she willfully fail ed or refused to comply with any or der entered pursuant to Code § 20-1 07.3 and that there co uld be no finding of contempt with evidence of willfu l failure or refu sal to comply. The trial court di d not find wife guilty of contem pt. Therefore, wife's argument is moot.

- 2 -Issue Two Wife also contends that the trial court erred by modifying the final decree of divorce while the appeal was pending. We find no error. In the final decree, the trial court awarded wife forty percent of the marital share of husband's pension, calculated as $360 per month, beginning February 1, 1998. The court also required wife to transfer $59,138 in assets to husband. As of the November 20, 1998 hearing, wife had failed to transfer the specified assets. Husband alleged that wife had "secreted or otherwise disposed of" these assets to avoid meeting her obligations under the final decree. Husband's motion to compel was filed pursuant to the statutory authority set out in Code § 20-107.3(K). That section provides that "[t]he court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section . . . ." As a means of enforcing its decree, the circuit court appointed a special commissioner to effect the transfer of the real property ordered in the final decree. See Code § 20-107.3(K)(3). The court also ruled that wife would receive no benefits from husband's pension until she fully complied with the trial court's final decree. We find that the court's order fell within its statutory authority to make any additional orders necessary to enforce and

- 3 -effectuate its equitable distribution decree. While the trial court's order delayed wife's receipt of the pension benefits given to her under the final decree, the order was framed to do no more than compel her compliance with a valid order. It was not designed to modify the parties' rights under the decree. Cf. Wilson v. Wilson , 25 Va. App. 752, 757-58, 492 S.E.2d 495, 497-98 (1997); Decker v. Decker , 17 Va. App. 562, 563-64, 440 S.E.2d 411, 412 (1994). When wife complied with the January 23, 1998 order, her benefits under that order would commence. Moreover, due to the unique circumstances of this case, the trial court could not effectively rely upon a threat of imprisonment for civil or criminal contempt to enforce compliance, as wife was currently incarcerated. Accordingly, the decision of the circuit court is summarily affirmed. Affirmed.

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