COURT OF APPEALS OF VIRGINIA

Present: Judges Humphrey s, Felton and McClanahan Argued at Salem, Virginia

JULIE K. OVERCASH MEMORANDUM OPINION * BY v. Record No. 0621-05-3 J UDGE ROBERT J. HUMPHREYS JANUARY 24, 2006 JESSE L. OVERCASH

FROM THE CIRCUIT COUR T OF MONTGOMERY COUNTY Ray W. Grubbs, Judge H. Gregory Campbell, Jr. (H. Gregory Campbell, Jr., P.C., on briefs), for appellant. John S. Huntington for appellee.

Appellant Julie K. Overcash (“wife”) app eals from a decree ordering her to reimburse appellee Jesse L. Overcash (“husband”) for an al leged overpayment from husband’s federal thrift savings plan. Wife argues that the trial court lacked the author ity to alter the distribution of funds from the account, reasoning that the fede ral entity charged with implementing the underlying qualified domestic relations order (“QDR O”) correctly applied the relevant federal regulations. For the reasons that follow, we hold that the trial cour t possessed the statutory authority to enter the order so as to effectuate th e original intent of the parties. Accordingly, we affirm the judgment below.

I. BACKGROUND Husband and wife married on January 7, 1983, and they separated on July 1, 2000. On December 22, 2000, the parties entered in to a separation agreement providing, inter alia , that

* Pursuant to Code § 17.1-413, this opinion is not designated for publ ication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.- 2 - “the marital share of all retire ment benefits, deferred compensa tion, thrift plan, savings plan, 401(K) or equivalents, in Husband’s name sha ll be equally divided by the parties by qualified domestic relations order.” Also, according to the separation agreement, husband’s attorney was given “the primary responsibility for completi on of the qualified domestic relations order.” On August 24, 2001, the trial court issued a final decree awarding husband a divorce a vinculo matrimonii . The divorce decree ratif ied, confirmed, approved, and incorporated the separation agreement, further provi ding that “[t]his cause [is] re tained on the active docket of this Court for entry of appropriate Qu alified Domestic Relations Orders.” During the marriage, husband established a Thri ft Savings Plan (“TSP”) pursuant to his employment with the United States Government. 1 Husband’s TSP account is comprised of two investment funds, a Government Securities I nvestment Fund, or “G Fund,” and a Common Stock Index Investment Fund, or “C Fund.” 2 Although a G Fund has a guaranteed rate of return, see 5 U.S.C. § 8438(e), the value of a C Fund will fluc tuate according to market forces. On July 1, 2000—the date of the parties’ separati on—the TSP account had a value of $103,320.58. Following the parties’ separation, however, th e value of the TSP acc ount decreased despite

1 Husband, a “FERS” participan t in the TSP program, could c ontribute a percentage of his basic pay for each pay pe riod to his TSP account. See 5 U.S.C. § 8432(a)(2); 5 C.F.R. § 1600.22(a)(1). A portion of these voluntary cont ributions would then be “matched” by the United States Forest Service, hus band’s federal employer. See 5 U.S.C. § 8432(c).

2 Federal employees who establish a TSP also have the option of investing in a Fixed Income Index Investment Fund, or “F Fund,” Sma ll Capitalization Stock Index Investment, or “S Fund,” International Stock Index Investment, or “I Fund,” and Lifecycle investments, or “L Funds,” which are diversified portfolios comprised of a combination of the other five investment options. See 5 U.S.C. § 8438(b). An investment in any TSP fund other than a G Fund does not have a guaranteed return and, thus, is made at the employee’s risk. See 5 U.S.C. § 8439(d); 5 C.F.R. § 1601.1(b).- 3 - husband’s continuing contributions to the account. The decline in value was attributable entirely

to investment losses in husband’s C Fund. 3 On May 13, 2004, 4 the trial court entered a QDRO provi ding that wife “is entitled to 50% of the marital share portion of [husband’s] interest in the Thrift Savings Plan as of July 1, 2000.” The QDRO indicates that “[t]he ma rital share portion of [husband’ s] Thrift Savings Plan account shall be calculated based on [the value of the acco unt] as of July 1, 2000,” further providing that wife “shall be entitled to 50% of said marital share, together with earnings and losses on her share from July 1, 2000 through the di stribution of her share to her .” (Emphasis added). The QDRO also provides that the trial court “shall retain jurisdiction with respect to this Order to the extent required to maintain its qualified status an d the original intent of the parties stipulated herein,” and “shall also retain jurisdiction to en der [sic] such further orders as are necessary to enforce the assignment of benefits to [w ife] as set forth herein . . . .” On September 24, 2004, the date the Federal Thrift Retirement Board implemented the QDRO, the TSP had a value of $97,960.08. Of th at amount, the board distributed $63,249.59 to wife. In reaching its decision, the board determined that wife was entitled to half the value of the account as of July 1, 2000, or $51,660.29, plus earnings in the amount of $11,589.30. 5 In

3 Approximately 90% of husband’s contributions to his TSP account were allocated to the C Fund.

4 The record reflects that the almost three- year delay between entr ance of the divorce decree and the issuance of the QDRO was prim arily attributable to husband, who—by the terms of the separation agreement—wa s vested with the responsibi lity for preparing the order.

5 According to 5 C.F.R. § 1653.4(f), if a qualifie d retirement benefits court order provides that the payee spouse should receive earnings on th e account but fails to specify a return rate, the payee spouse will be credited “with TSP investment ear nings . . . with the rate of return for the G Fund.” 5 C.F.R. § 1653.4(f)(3). There is no eq uivalent federal regulation setting forth the procedure to follow when calculating post-valuation losses in a TSP account.- 4 - calculating the amount of earnings and losses, the board, applying 5 C.F.R. § 1653.4, apparently applied the G Fund growth rate to de termine wife’s share in the account. 6 On October 7, 2004, husband filed a motion with the trial court, requesting an order directing wife “to convey directly unto him as an IRA transfer inci dent to divorce . . . the sum of $15,370.00 to reimburse [husband] for what was an over payment to [wife] out of [husband’s] THRIFT account.” Husband argued that the board’ s distribution of funds was “not consistent with the decree of this Court or the agreement of the parties,” reasoning that wife was entitled to $47,880, half the value of the TSP as of the date of distribution less the amount of husband’s post-separation contributions to the TSP account. Because wife received $63,249.59, husband

concluded that wife was re quired to reimburse him for the alleged overpayment. In response, wife’s counsel noted that wi fe “had zero control” over the TSP account during the time period that it was losing value, concluding that application of the federal regulation was “exactly right because it penalizes the person who makes bad investment choices and chooses to delay” distributi on of the TSP funds. Wife furt her argued that the trial court “doesn’t have any authority to undo” the board ’s distribution of f unds from the account. After conducting a hearing on the me rits, the trial cour t determined that it was “within the inherent power of the Court to do equity” and, therefore, to modify the distribution of funds from

the TSP account. The trial court then found that “the value of the ma rital share portion of [husband’s] Thrift account is $103,320.58,” the value of the TSP account as of the date of the

6 According to 5 C.F.R. § 1653.3(f), when distributing funds pursuant to a qualifying retirement benefits court order, the board is required to mail a decision letter to all parties providing, inter alia , “[a]n explanation of how the payment will be calculated and an estimated amount of payment.” 5 C.F.R. § 1653.3(f)(4)(i). Assuming such a decisi on letter was mailed, it was never made a part of the lower court’s r ecord. Accordingly, in describing how the board arrived at its distribution of funds from the TSP account, we rely solely on the parties’ representations to the trial court.- 5 - parties’ separation. The trial cour t concluded that the separation ag reement entitled wife to half that amount, or $51,660.29, and therefore determined th at wife had received an overpayment of $11,589.30. The court then entered an order directi ng wife to transfer that amount to husband “in order to effectuate an equal distribution of the marital share portion of the Thrift account

consistent with the Decree of divor ce entered herein . . . .” Wife appeals from this final order.

II. ANALYSIS The sole issue presented on appeal is whether the trial court possessed the authority to enter an order modifying the board’s di stribution of funds from the TSP account. 7 Because the trial court entered the order to effectuate the original intent of the parties as expressed in the separation agreement, we hold that the trial cour t acted within its statutory authority when it issued the challenged decree. Accord ingly, we affirm the judgment below. Under Rule 1:1, trial courts ordinarily lose jurisdiction over a case tw enty-one days after entry of the final decree. See Rule 1:1. According to Code § 20-107.3(K), however, the trial court has “the continuing author ity and jurisdiction to make any additional orders necessary to effectuate and enforce any [domestic relations] or der,” including the aut hority to “[m]odify any order . . . intended to affect or divide any . . . reti rement benefits pursuant to . . . federal law[],” if

the modification is intended “to revise or conform its terms so as to effectuate the expressed intent of the [original] order. ” Code § 20-107.3(K)(4); see also Fahey v. Fahey , 24 Va. App.

7 We note that the issue being decided on a ppeal is not whether the Federal Thrift Retirement Board properly applied the relevant federal regulations when determining wife’s share of the TSP account. Indeed, it is questiona ble whether we would po ssess the jurisdiction to do so. See 5 C.F.R. § 1653.3(a) (“The payment of a reti rement benefits cour t order from the TSP is governed solely by [federal law]. The TSP will honor retirement benefits court orders properly issued by a [state] court . . . . Howeve r, these courts have no jurisdiction over the TSP and the TSP cannot be made a party to the under lying domestic relations proceedings.”); see also 5 C.F.R. § 1653.3(g) (“The TSP decision letter is a final determination of the parties’ rights in the account.”).- 6 - 254, 256-57, 481 S.E.2d 496, 497 (1997) ( en banc ). Also, the QDRO entered in this case provides that the trial court “retain[s] jurisdiction with respect to this Orde r to the extent required to maintain . . . the original intent of the part ies . . . .” This reservation of jurisdiction, in conjunction with Code § 20-107.3(K), vested the trial court with th e authority to issue additional orders if necessary to effectuate the intent of the parties as expressed in the original divorce

decree. A decree entered pursuant to Code § 20-107.3(K) must, however, “be ‘consistent with the substantive provisions of the origin al [divorce] decree’ and not ‘simpl y [] adjust its terms in light of the parties’ changed circumstances.” Williams v. Williams , 32 Va. App. 72, 75, 526 S.E.2d 301, 303 (2000) (quoting Caudle v. Caudle , 18 Va. App. 795, 798, 447 S.E.2d 247, 249 (1994));

see also Fahey , 24 Va. App. at 256, 481 S.E.2d at 497. Th at is, because an unappealed divorce decree becomes final twenty-one days after it is entered, the final decree becomes “the law of [the] case” and is not “subject to la ter modification.” Hastie v. Hastie , 29 Va. App. 776, 782, 514 S.E.2d 800, 804 (1999). The question that must be resolved, then, is whether the decree ordering wife to re-convey a portion of the TSP f unds was necessary to effectuate the original intent of the parties, or whethe r the order constituted an imperm issible, substantive modification

of the final divorce decree. In this case, the terms of the separation agreement, as incorporated into the final divorce decree, 8 are clear and unambiguous: “t he marital share” of husband’ s TSP account was to be

8 “When a trial judge affirms, ratifies, and incorporates a property settlement agreement into a final decree of divorce, that agreement beco mes, ‘for all purposes . . . a term of the decree, . . . enforceable in the same manner as any provision of such decree.’” Baker v. Baker , 38 Va. App. 384, 386, 564 S.E.2d 164, 165 (2002) (quoting Campbell v. Campbell , 32 Va. App. 351, 356, 528 S.E.2d 145, 147 (2000)) (alterations in original).- 7 - “equally divided by the parties.” In accordance with Code § 20-107.3(G)(1), 9 the resulting QDRO provided that the marital share of the account would be equivalent to the value of the TSP as of July 1, 2000—the date of the part ies’ separation. However, the QDRO included additional language indicating that wife was also entitled to “earnings and losses on her share from July 1, 2000 through the distribution of he r share to her.” And, because of the added language, the board awarded wife f unds in excess of half the value of the TSP as of the date of separation. Because the QDRO, as implemented by the boar d, awarded wife more than half of the marital share of the account, it “did not effec tively carry out the mandate of [the divorce]

decree.” Williams , 32 Va. App. at 76, 526 S.E.2d at 303. Accordingly, the trial court was empowered to issue an additional decree “‘to eff ectuate the expressed intent of the [original] order,’” id. (quoting Code § 20-107.3(K)(4)) (alteration in original), as long as the provisions of the additional decree did not substantively modify the original divorce decree, see id. ; see also

Hastie , 29 Va. App. at 781, 514 S.E.2d at 803 (“[A]ny clarification or modification of the

divorce decree must be ‘consistent with the subs tantive provisions of the original decree.’” (quoting Caudle , 18 Va. App. at 798, 447 S.E.2d at 249)). Here, the order did not “modif[y] the percentage or amount due the wife” as set forth in the divorce decree, but rather, “accomplished what the [divorce decree] directed, but which the QDRO did not fully accomplish.” Williams , 32 Va. App. at 76, 526 S.E.2d at 303. Accordingly, the decree ordering wife to transfer the overp ayment to husband “was not a substantive

9 The “marital share” of retirement benefits earned during the marriage is statutorily defined as “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).- 8 - modification” of the divorce decree and, ther efore, was permissible pursuant to Code § 20-107.3(K). See id. We further note that, contrary to the apparent position of the dissent, it is the intent of the parties as expressed in the original divorce decree —not the intent of the parties as expressed in a subsequent QDRO—that is cont rolling. A QDRO—even if unobject ed to—cannot substantively modify the terms of the original divorce decree. As this Court has note d, once twenty-one days have elapsed from entry of the final divor ce decree, a trial court has no “authority to substantively modify its original order equita bly distributing . . . [r etirement] benefits, irrespective of any agreement by the parties to the contrary .” Wilson v. Wilson , 25 Va. App. 752, 758, 492 S.E.2d 495, 498 (1997) (emphasis added). A QDRO, then, is a mere “administrative mechanism” through which the c ourt enforces the original divorce decree.

Turner v. Turner , 47 Va. App. 76, 80, 622 S.E.2d 263, 265 (2005). Thus, even if the parties fail to object to entry of a QDRO that substantively modifies the terms of the original divorce decree, the QDRO cannot, as the dissent a sserts, become a new “contract ” between the parties. See

Wilson , 25 Va. App. at 758, 492 S.E.2d at 498. Here, because the QDRO awarded post-separation earnings and losses—which were neither mentioned nor awarded in the separati on agreement—the QDRO substantively modified the provisions of the original divorce decree. In Baker v. Baker , 38 Va. App. 384, 564 S.E.2d 164 (2002), for example, the parties executed a separation agreement providing that wife was entitled to “one-half” of husband’s profit-sharing pl an, valued as of the date of the agreement. The trial court incorporated this separation agreem ent into the final decree of divorce. A year later, the trial court entered a QDRO awarding wife the specified one-half plus “gains and losses.” On appeal, we reversed, holding that “the final decree of divorce, which affirmed, ratified, and incorporated the property settlement agreement, is unambiguous in providing an- 9 - allotment to the wife of one-half of the profit sharing plan ‘valued as of the date of [the] agreement.’” Id. at 388, 564 S.E.2d at 166. Noting that “[ t]he [separation] agreement did not additionally provide for an allo cation of gains and losses to th at amount,” we reversed and remanded “for entry of a QDRO consiste nt with the final decree.” Id. Similarly, in the original divorce decree, husband and wife agreed to split the “marital share” of the TSP account. As the dissent recogni zes, the marital share of a pension account is

determined based on the value of the account as of the date of the pa rties’ separation. See Code § 20-107.3(G)(1). To the extent that the QDRO sought to award post-separation earnings and losses, the QDRO “modified the total amount to be paid” and, therefore, substantively modified the provisions of the original divorce decree. Hastie , 29 Va. App. at 782, 514 S.E.2d at 803; see

Baker , 38 Va. App. at 388, 564 S.E.2d at 166. Thus, regardless of whether the parties consented to entry of the QDRO, the trial court had no ju risdiction to order an award of post-separation earnings and losses. See Wilson , 25 Va. App. at 758, 492 S.E.2d at 498 (“The jurisdiction of the [trial] court cannot be establishe d by consent.”). As a result, t hose provisions in the QDRO were

null and void. See Baker , 38 Va. App. at 388, 564 S.E.2d at 166. Accordingly, by entering an orde r effectuating the intent of th e parties as expressed in the original divorce decree, as opposed to the intent of the parties as expressed in the QDRO, the trial court, in effect, corrected its earlier, erroneous ruling. Thus , to hold according to the theory advanced by the dissent, we would have to find th at the trial court lacks th e statutory authority to

correct an erroneous distribution of assets resulting from an order that the trial court lacked the jurisdiction to enter in the first place. This, we decline to do.- 10 - III. CONCLUSION For these reasons, we hold that the trial court had the statutor y authority to order wife to convey the $11,589.30 overpayment to husband. Acco rdingly, we affirm the judgment below.

Affirmed.- 11 - McClanahan, J., dissenting. I agree with the majority that Code § 20-107.3(K)(4), and paragraph E of the QDRO, vested the trial court with authority to retain juri sdiction to effectuate the intent of the parties’ separation agreement, which was incorporated into the divorce decree. However, the court does not have authority to abandon the separation ag reement, the decree, and the QDRO and rewrite them. The trial court’s decision and the major ity ignore the specific te rm of the parties’ separation agreement, which indicated that th e QDRO would divide the marital share of the retirement benefits. Husband authored the QDRO, which he signed and asked the court to enter, and the QDRO clearly and unambiguously stated the or iginal intent of the parties. Husband is the author of his own misfortune here, and the court does not have the authority to rewrite the parties’ agreement to correct a perceived injustice that was enti rely of husband’s own making. Therefore, I respectfully dissent. The separation agreement stated, “The marital share 10 of all retirement benefits . . . in

Husband’s name shall be equally divided by the parties by qualified domestic relations order .” (Footnote and emphasis added.) The separation ag reement was silent on earnings and losses. Almost a year later, the trial court incorporated the parties’ separation agreement into its final decree of divorce, and ordered husband to prepar e the QDRO. After repeated requests by wife, the QDRO was prepared by husband’s counsel and entered by the court w ithout objection almost three years after the decree and almost four years after the se paration agreement was executed. The QDRO provided, “The Court shall retain jurisdic tion with respect to this Order to the extent required to maintain its qualified status and the original intent of the parties stipulated herein. ” (Emphasis added.)

10 Code § 20-107.3(G), which the QDRO cited, pr ovides that the “marital share” is the “portion of the total interest, the right to wh ich was earned during the marriage and before the last separation of the parties . . . .”- 12 - Citing the applicable federal laws, the QDRO also stated, “Julie K. Overcas h shall be entitled to 50% of said marital share, t ogether with earnings and losse s on her share from July 1, 2000, through the distribution of her share to her .” (emphasis in original document). The QDRO term on earnings and losses did not alter any critic al, substantive provision of the separation agreement and final decree. It merely clarifie d an otherwise silent term of the separation agreement and final decree. Moreover, the parties agreed the unde rlined and emphasized clarification was “a stipulation” of their “original intent.” 11 Thus, wife did not receive an “overpayment”; instead, the distribution complie d with the terms of the parties’ separation agreement, the final decree, and the QDRO language. 12 At the close of the hearing, the trial court st ated, “As we hear all the time, I think it is within the inherent power of the Court to do equity . . . . I inte nd to enforce the language of the

11 “No rule for the construction of written inst ruments is better settled than that which attaches great weight to the cons truction of the instrument by the pa rties themselves.” First Nat’l Exchange Bank v. Roanoke Oil. Co. , 169 Va. 99, 115, 192 S.E. 764, 771 (1937) (internal quotation marks and citations omitted) . If the meaning of an instru ment be doubtful, evidence of the acts of the parties under it may be received to show intent. See Glenn v. Augusta Perpetual Bldg. & Loan Co. , 99 Va. 695, 701, 40 S.E. 25, 27 (1901); Knick v. Knick , 75 Va. 12, 19-20 (1880); Bank of the Old Dominion v. McVeigh , 73 Va. (32 Gratt.) 530, 541-42 (1879). “If a written contract is capable of more than one co nstruction, then the courts will give to it that construction which the parties have placed upon it.” Robin v. Sydeman Bros., Inc. , 158 Va. 289, 300, 163 S.E. 103, 106 (1932). “The dealings of the pa rties to a contract in relation to its terms are often conclusive upon que stions arising as to its effect or meaning.” Id. at 299, 163 S.E. at 106 (internal quotation marks and c itation omitted). “In the constr uction of contracts in which obscurity exists, great weight is given by the courts to the acts of the parties done under the contracts, as an indication of their intention.” Moore v. The Chesapeake & Ohio Ry. Co. , 159 Va. 703, 730, 167 S.E. 351, 360 (1933).

12 The trial court’s subsequent order re quiring wife to reimburse husband was not, therefore, ministerial, but constituted an imperm issible and substantive m odification of the intent of the parties, as expressed in their separation ag reement, as incorporated in the final decree and as set forth in the endorse d QDRO without objection. Cf . Newsome v. Newsome , 18 Va. App. 22, 26, 441 S.E.2d 346, 348 (1994) (where the tria l court’s amendments “involved purely ministerial acts related to the QDRO, rather than alteration of its substantive provisions”); see also Williams v. Williams , 32 Va. App. 72, 526 S.E.2d 301 (2000); Caudle v. Caudle , 18 Va. App. 795, 447 S.E.2d 247 (1994).- 13 - agreement and the language of the decree.” In f act, however, the trial co urt’s decision ordering wife to transfer the earnings and losses porti on of the distribution i gnores both the parties’ separation agreement incorporated into the fina l decree and the QDRO, which was entered into without objection. 13 The court’s order stated that it was making the decision “in order to effectuate an equal distribution of the marital sh are portion of the Thrift account consistent with

the Decree of divorce entered herein and in order to do equity . . . .” However, in substituting its

13 The majority cites Hastie , Baker , and Wilson as support for the no tion that parties may not clarify the original intent of the decree in a subsequent QD RO. However, not one of those cases included facts where the parties agreed to a QDRO in which their original intent was stated, as is the case here. See Hastie v. Hastie , 29 Va. App. 776, 514 S.E.2d 800 (1999); Baker v. Baker , 38 Va. App. 384, 564 S.E.2d 164 (2002); Wilson v. Wilson , 25 Va. App. 752, 492 S.E.2d 495 (1997). Specifically, those cases differ in at least thr ee important aspects: (1) In all three cases, Hastie , Baker , and Wilson , the divorce decree provided a spec ific payment amount or formula to calculate the payment amount. In this case, th e divorce decree did not sp ecify a specific amount, but said, “The marital share of all retirement benefits . . . in Husband’s name shall be equally divided by the parties by qualifie d domestic relations order.” Thus, the decree did not provide any specific payment term, but left the “e qual” division to the QDRO; (2) in Hastie and Baker , the terms of the QDRO were in dispute; in Wilson , a revised QDRO was signed by both parties, but later contested by husband who said the QDRO was signed in error. In this case, the QDRO was prepared by husband, who asked the court to enter it, and was agreed to by wife. In Hastie and Wilson , no QDRO was entered. Here, the trial c ourt entered the QDRO, and neither party objected to its entry; and, (3) the QDROs in Hastie , Baker , and Wilson were not consistent with the specific terms of th e decrees in those cases. In contrast , in this case, the language of the QDRO was consistent with the decree, which left the terms of the division to the QDRO, and the QDRO clearly stated that it constituted the “ori ginal intent” of the parties’ agreement as incorporated into the decree.- 14 - own contract in place of the partie s’ contract, which it cloaks as an attempt to “do equity,” the court, in fact, discounts wife’s equity and awards it to husband. 14 For these reasons, I dissent.

14 “‘A court is not at liberty to rewrite a contract simply because the contract may appear to reach an unfair result. ’” Rogers v. Yourshaw , 18 Va. App. 816, 823, 448 S.E.2d 884, 888 (1994) (quoting Kaufman v. Kaufman , 7 Va. App. 488, 501, 375 S.E.2d 374, 381 (1988)); see also Verling v. Quarles , 217 Va. 188, 191, 227 S.E.2d 684, 686 (1976) (“[T]he trial court made a material departure from the terms of the contr act and, in effect, made an agreement for the parties and then sought to compel them to execute it. While the agreement it made may be a more equitable one, it is not the agreement either party claims was made. A careful consideration of the eviden ce and exhibits fails to convince us th at this is a proper case in which the powers of a court of equity should be invoked . . . .”); Derby v. Derby , 8 Va. App. 19, 30, 378 S.E.2d 74, 80 (1989) (“Courts cannot relieve one of the consequences of a contract merely because it was unwise.” (internal quotat ion marks and citation omitted)).