COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, Malveau x and Senior Judge Annunziata

PATRICK McGARRITY MEMORANDUM OPINION * v. Record No. 1492- 17-2 PER CURIAM APRIL 10, 2018 EMILY McGARRITY

FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Herbert M. Hewitt, Judge (Olivier Denier Long; EZ Jus tice, PLC, on brief), for appella nt. Appellant submitting on brief. No brief for appellee.
Patrick McGarrity (husband) appeals a final order of divorce. Husband argues that the trial court erred by (1) failing to “sp ecify which opinion or opinion s it was incorporating by reference, and fail[ing] to attach any lette r opinion when issuing its fin al order;” (2) dividing the Barrios 401(k) proceeds even though they no longer existed at the time of the equitable distribution hearing; (3) “disregarding the husband’s uncontroverted testimony that h e spent the Barrios proceeds for marital purposes;” (4) “failing to state good cause for utilizi ng an alternate valuation date that neither party had requested;” and (5) “ignoring husband’s objec tions to the Amended Final Order.” Upon reviewing the record and appe llant’s brief, we affirm on t he merits and remand this case to the trial court for further proceedings consistent with this op inion.
BACKGROUND “When reviewing a trial court’ s decision on appeal, we view th e evidence in the light most favorable to the prevai ling party, granting it the benefit of any reasonable inferences.”

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Menninger v. Menninger, 64 Va. App. 616, 618, 770 S.E.2d 232, 2 33 (2015) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003)). The parties married on September 15, 2007, and separated on Fe bruary 15, 2013. During the marriage, husband c ontributed to a 401(k) plan with a compa ny he worked for in Texas (the Barrios 401(k) plan). He also rolled over other retirement acc ounts from previous employers into the Barrios 401(k) plan. 1 In 2010, he and his wife, Emily McGarrity, agreed to take out a $24,000 loan against the Barrios 401(k) p lan. As of the date of separa tion, the loan balance was approximately $18,868, and the value of the account was approxi mately $68,000, not including the loan. After the parties’ separa tion, husband de faulted on the loan. As a result, t he company closed the account, paid off the loan b alance, withheld money for taxe s, and sent husband a check for the remainder. Husband testified tha t in July or Au gust of 2013, h e received a check for approximately $33,000, which was the net dist ribution from the Barrios 401(k) plan. On September 27, 2013, husband deposited $33,1 10.57 into his NSWC F ederal Credit Union checking account. As of the date of the equitab le distribution hearing on April 20, 2016, the funds from the Barrios 401(k) plan totaled zero. Husband testified that he pa id $7,000 to wife for support arrearages and $5,000 t o his attorney for attorney’s fees. He set aside $12,310 for taxes, but husband said that he spent that amount on living expenses inste ad. 2 He also paid off the balance owed on the Bank of America cred it card, which he said was a ma rital debt. Husband testified that he paid for painting at the townh ouse the parties owned, and th e bank statements indicated that he

1 Husband estimated that between $12,000 and $18,000 was premari tal.

2 Husband testified that he later received a letter from the IRS stating that he owed approximately $18,000 in taxes and penalties for failure to pay the taxes on the 401(k) distribution.- 3 - paid $1,800 for the painting. The October and November 2013 ba nk statements showed that husband paid the monthly Wells Far go mortgage payment of $1,470

. 3 On October 3, 2016, the trial c ourt issued its letter opinion. With respect to the Barrios 401(k) account, the trial court wrote, $68,000.00 was deposited which was a r ollover of all Husband’s previous 401(k) plan balances, part separate and part marital. The parties in 2010 by agreement took out a $20,000.00 loan against this account to pay off marita l debts leaving $48,000.00 which was the approximate balance wh en they separated. The $48,000 at separation is first reduce d by the premarital portion which Husband estimated to be $12,000.00 to $18,000.00. The Court uses $15,000.00 as the premarital po rtion. Wife is entitled to 50% of $33,000.00 which is the marital share plus increases and los ses on that amount from March 31, 2013. Husband gets no credit for what he owes to Wife from this retirement account distri bution based on paying her $7,000.00 t hat he owed her on support arrearages. The trial court instructed hus band’s counsel to prepare a fina l decree of divorce reflecting the trial court’s rulin gs. Husband’s counsel prepared the fina l decree and included a paragraph stating, “The Court’s letter opinion, listin g the consideration s in making the awards herein, is incorporated into this Order by r eference. A copy of the opini on is attached as Ex hibit #1.” The trial court’s October 3, 2016 let ter opinion was attached to th e draft order. Prior to entry of the final de cree, both parties filed motions for reconsideration and asked the trial court to reconsider its rul ings. Husband’s motion includ ed a paragraph stating, “The Barrios 401k plan had no value at the dat e of the final hearing and no motion for an altern ative valuation date was filed pursuant to the relevant statute, therefore the award of a share of this plan to Wife

3 In July 2015, the bank foreclose d on the townhome due to the p arties’ failure to pay the mortgage.- 4 - was error.” The trial court scheduled a hearing for February 1 4, 2017, to hear a rguments on the motions for reconsider ation and presentation of the final decre e. 4 On February 14, 2017, the trial court ente red the final order of divorce, nunc pro tunc to April 20, 2016. Both parties noted their objections to the ord er. The final order stated, “Wife is awarded 50% of $33,000.00 which i s the marital share of the Bar rios Wilmington Trust 401(k) plan as of March 31, 2013 to include any profits or losses on that a mount from that date.” On March 1, 2017, the trial court issued a letter opinion with its rulings regarding both parties’ motions for reconsideration. With respect to the Barr ios 401(k) account, the trial court stated, The Court was under the impression from the evidence presented that the Barrios 401K account was still in existence and Wife w as entitled to her marita l share. Husband appa rently liquidated that account taking her share into his possession and using it for h is separate purposes. The Court gran ts her a monetary award of $16,500.00 payable over a period of five years at $275.00 month ly. The trial court instru cted wife’s counsel t o prepare an amended decree of divorce. On March 2, 2017, the trial cour t entered an order suspending the February 14, 2017 final order of divorce “until further order of this Court.” Subseque ntly, wife’s counsel filed a notice and motion to present the amended f inal order of divorce. The part ies appeared before the trial court on August 7, 2017. 5 On August 18, 2017, the trial court entered an amended final order of divorce. With respect to the Barrios 401(k) plan, the amended final orde r stated, Wife is awarded $16,500.00 of the Barrios Wilmington Trust 401(k) plan which is to be pai d by the Husband to the Wife in monthly installments of $275.00 (US D), beginning 30 days after the entry of this Final Order , and continuing to be due each mo nth until the aforesaid sums of monies are paid in full.

4 The record does not include a tra nscript or written statement of facts from the February 14, 2017 hearing.

5 The record does not include a tra nscript or written statement of facts from the August 7, 2017 hearing.- 5 - Both parties attached their o bjections to the amended order. Among his objec tions, husband indicated that he objected to the distribution of the Barrios 4 01(k) plan. His objection stated, “The plan had zero value on the date of the evidentiary hearing. Ne ither party requested a different, valuation date pursuant to Vir ginia Code § 20-107.3(A), and the Court made no finding of marital waste.” On August 18, 2017, the trial c ourt entered an order allowing husband’s counsel to withdraw. On August 2 5, 2017, husband filed pro se a motion to reconsider. Husband did not refer to the Barrios 401(k) plan in hi s motion to reconsider, but inc luded a footnote stating that the trial court “may have neglected to att ach the letter opinion to the F inal Order.” On A ugust 25, 2017, husband also filed pro se supplemental objections, and he included an objection that the trial court “failed to attach the letter opinion incorporated by reference at paragraph 2 on page 3.” On August 29, 2017, the trial court enter ed an order denying husband’s pro se motion to reconsider. On September 6, 20 17, husband filed pro se an “Amended Objection” and sought to change his objection to the amended fin al order with respect to the Ba rrios 401(k) plan. N ow, he asserted, “Mr. McGarrity objects to equitable distribution of the Barrios 401k plan. The pl an had zero value on the date of the evidentiary h earing. Mr. McGarrity, [sic] r ebutted the presumption of marital waste by showing that the $33,410.57 from th e Barrios 401k plan was spent for valid marital purposes.” Husband, acting pro se , timely noted his appeal of the amended final order of divorce

. ANALYSIS Assignment of error #1 Husband argues that the trial court erred when it failed to sp ecify which letter opinions it was referencing in its amended final order of divorce and when it failed to attach any letter opinions to the amended final order of divorce. Husband contends the am ended final order was “ambiguous”- 6 - because it did not specify which letter opinion was incorporate d by reference. He further analogizes this error to a scrivener’s erro r and relies on D orn v. Dorn, 2 22 Va. 288, 27 9 S.E.2d 393 (1981), to support his argument. Paragraph 2 under the “Decision ” section of the amended final order of divorce, entered on August 18, 2017, read s, “The Court’s lette r opinion, listing th e considerations in making the awards herein, is incorporated into this Order by reference, and shall be hereinafter re ferred to as ‘letter opinion.’ A copy of the opinion is attached as Exhibit # 1.” This Court notes that the langu age to which husband objects wa s drafted originally by his counsel. The draft, submitted by h usband’s counse l on February 7, 2017, had attached to it the October 3, 2016 letter opinion. The identi cal language was inc luded in the Februar y 14, 2017 order and the August 18, 2 017 amended final orde r, but no letters wer e attached to those orders. Code § 8.01-428(B) provides, Clerical mistakes in all judgme nts or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notic e, as the court may order. During t he pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending suc h mistakes may be corrected with l eave of the appellate court. It appears that there was a cle rical mistake whe n the trial co urt neglected to attach the letter opinion(s) that were incorporated into the amended final order of divorce. Accordingly, we remand this matter to the trial court and instruct it to attach its le tter opinion(s) to the amended final order of divorce. Assignments of error #2, 3, and 4 Husband argues that the trial court erred in its valuation and distribution of the Barrios 401(k) plan. “[D]ecisions concer ning equitable distribution re st within the sound discretion of the trial court and will not be reve rsed on appeal unless plainly w rong or unsupported by the evidence.”- 7 - Wright v. Wright, 61 V a. App. 432, 4 50, 737 S.E.2d 519, 527 (20 13) (quoting McDavid v. McDavid, 19 Va. App. 4 06, 407-08, 451 S.E.2 d 713, 715 (1994)). “[R]etirement and pension plans, by their nature and diversity, pr esent unique problems in a div ision of marital weal th, and th e task of the trial court in m aking an equitable distribution of such ben efits is not an easy one.” Id. at 455, 737 S.E.2d at 530 (quoting Bana gan v. Banagan, 17 Va. App. 321, 324-25, 437 S.E.2d 229, 231 (1998)). In its October 3, 2016 letter opinion, the trial court listed husband’s retirement assets, including the Barrios 401(k) plan. The evidence proved that th e Barrios 401(k) plan had a balance of $68,000 at the time of the se paration. The trial court note d that husband had rolled over premarital 401(k) accounts into the Barrios 401(k) plan, so the trial court correctly classified the account as part marital and part s eparate. In determining the value of the Barrios 401(k) plan, the trial court found that $15,000 w as husband’s premarital portion . It also considered the $20,000 loan that the parties took out in 201 0 to pay marital debts. After deducting the loan and husband’s premarital portion, the trial court held that the marital share of the Barrios 401(k) plan was $33,000 and awarded wife fifty per cent of the marital share. Husband argues that the trial c ourt erred by valuing the Barri os 401(k) plan as of the date of the separation because neither p arty filed a motion for an alte rnate valuation date. However, the trial court calculated the marita l share of the Barrios 401(k) plan according to Code § 20-107.3(G)(1), which defines th e marital share of a retireme nt account as “tha t portion of the total interest, the right to which was earned during the marriage and befo re the last separation of the parties , if at such time or thereafter at least one of the parties int ended that the separation be permanent.” (Emphasis added). A trial court values the marita l share of retirement assets by looking at the amount earned from the date of marriage to the d ate of separation. The value of the Barrios 401(k) plan was $68,000 a s of the date of separation. The trial court deducted husband’s- 8 - premarital portion and the parties’ loan in order to arrive at the marital share value of $33,000. No party needed to file a motion for an alternate valuation date i n order to have the trial court value the Barrios 401(k) plan as of the date of separation. Code § 2 0-107.3(G)(1) required the trial court to determine the value of the Barrios 401(k) plan as of the date of separation, not the date of the evidentiary h earing. Since the trial court followed the requirements of Code § 20-107.3(G)(1), the trial court did not err in valuing the Ba rrios 401(k) plan. Husband also argues that the t rial court erred in distributing the funds from the Barrios 401(k) plan. He asserts that the re were no funds available to distribute at the time of the equitable distribution hearing because he spent all of the funds for mari tal purposes. “The ‘function of the [circuit court] is to arrive at a fair and equitable monetary a ward based on the equ ities and the rights and interests of each party in th e marital property.’” Wright, 61 Va. App. at 456, 737 S.E.2d at 530 (quoting Fadness v. Fadness, 52 Va. App. 833, 841, 667 S.E.2d 8 57, 861 (2008)). After determining that the marital sha re was valued at $33,000, the t rial court awarded wife fifty percent of the marital share, or $16,500 . It ordered husband to pay wi fe $275 per month fo r five years for her interest in the marital share of the Barrios 401(k) plan. Contrary to husband’s arguments, the trial court complied with the statutory mandates. Code § 20-107.3(G)(1) provides th at a trial court “may direct p ayment of a percentage of the marital share of any pension, profit-shar ing or deferred compensation p lan or retirement benefits, whether vested or nonvested, which cons titutes marital property and whe ther payable in a lump sum or over a period of time.” In accordanc e with Code § 20- 107.3(G)(1), the trial court was authorized to order husband to pay wife, over a period of time, for her share of th e retirement as set. See Rowe v. Rowe, 24 Va. App. 123, 142, 480 S.E.2d 760, 769 (1997). Husband’s di ssipation of all of the funds from- 9 - the Barrios 401(k) plan after the date of separation did not el iminate wife’s interest in the marital share of the retirement asset. Accordingly, the trial court did not err in valuing and distri buting the Barrios 401(k) plan. Assignment of error #5 Husband argues that the trial c ourt erred by “ignoring husband ’s objections to the Amended Final Order.” Husband asserts that the trial court “made an er ror of law when it failed to revise the Amended Final Order despite the husband’s timely informing the court that his disbursements were for marital purposes.” Considering our rul ings above, this Cour t will not address hus band’s fifth assignment of error. See Kilby v. Culpeper Cty. Dep’t of Soc. Servs., 55 Va. App. 106, 108 n.1, 684 S.E.2d 219, 220 n.1 (2009) (holding that “an appe llate court ‘decides cases “on the best and narrowest ground available”’” (quoting Lugi nbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) ( en banc ))).
CONCLUSION For the foregoing reasons, the t rial court’s ruling is affirme d and remanded for the trial court to correct the clerical error by attachi ng its letter opi nion(s) to the fin al order of divorce. Affirmed and remanded.