COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Beales and Huff 

Argued at Chesapeake, Virginia 

SANDRA D.T. GRIFFIN 

 OPINION BY 

v. Record No. 1177-13-1 JUDGE ROBERT J. HUMPHREYS 

 JANUARY 28, 2014 

DAVID L. GRIFFIN, DECEASED, 

 C/O KIMBERLY COWSER-GRIFFIN, 

 EXECUTRIX OF THE ESTATE OF DAVID L. GRIFFIN 

FROM THE CIRCUIT COURT OF SUSSEX COUNTY 

W. Allan Sharrett, Judge 

 J. Roger Griffin, Jr. (Christie, Kantor, Griffin, Smith & Harris, P.C., 

on brief), for appellant. 

 W. Hunter Old (Christopher T. Page; Kaufman & Canoles, P.C., on 

brief), for appellee. 

 Sandra D.T. Griffin (“Mrs. Griffin”) appeals the order of the Circuit Court of Sussex 

County (“circuit court”) denying her request for entry of a qualified domestic relations order 

(“QDRO”), which she pursues so that a certain term of her prior divorce decree might be 

enforced. For the following reasons, we reverse the circuit court’s order. 

I. BACKGROUND 

 “When reviewing a [circuit] court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). However, the facts 

relevant to the resolution of this appeal are undisputed. 

 David L. Griffin (“Mr. Griffin”) and Mrs. Griffin were married on March 20, 1987 and 

had two children, James J. Griffin, III, born on October 25, 1987, and Gloria D. Griffin, born on 

PUBLISHED 
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July 6, 1992. The parties were divorced by a final decree of divorce entered in the circuit court 

on August 12, 1998. The final decree of divorce (“final decree”) incorporated the Separation and 

Property Settlement Agreement (hereinafter, “PSA” or “Agreement”) entered into by the parties 

on August 30, 1996. The Agreement term that is the subject of this appeal reads: “The parties 

agree to name the children of the marriage as co-beneficiaries under all 401K Plans and other 

such plans which would be distributed upon the death of either party.” 

 At the time of his death, Mr. Griffin was employed by Dominion Virginia Power 

(“Dominion”). At Dominion, he qualified for retirement benefits and he elected a 401(k) plan, 

known as Dominion’s Salaried Savings Plan (“Salaried Savings Plan” or “Plan”), which is 

governed by the Employee Retirement Income Security Act (“ERISA”). The Salaried Savings 

Plan is a defined contribution plan designed to encourage retirement savings. Dominion’s 

contributions to the plan depend on the participant’s contributions and years of service. There is 

no actuarial analysis to determine the participant’s benefits, and the participant’s life expectancy 

is not a consideration in the Salaried Savings Plan. Under the Salaried Savings Plan, the 

surviving spouse is the beneficiary upon the participant’s death unless she has consented to 

another beneficiary. The Salaried Savings Plan documents also provide that “if you are 

divorced, benefit payments from the Pension Plan or Savings Plan may be made to your former 

spouse, your child, or other dependent only in response to a Qualified Domestic Relations Order 

(QDRO).” The Dominion Plan Administrator testified that the Salaried Savings Plan is not a 

survivor annuity and it is strictly payable to the designated beneficiary. 

 In 2002, Mr. Griffin had named his children as his beneficiaries. However, Mr. Griffin 

married Kimberly Cowser-Griffin (“Cowser-Griffin”) in 2007, and in 2008 Mr. Griffin named 
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Cowser-Griffin as his beneficiary for most of his funds, including the Salaried Savings Plan. 1 

He named his children only as contingent beneficiaries on the Salaried Savings Plan. Shortly 

after his marriage to Cowser-Griffin, Mr. Griffin was diagnosed with renal cell cancer. He died 

on May 26, 2012. He had not retired from Dominion. No party had applied for a QDRO or 

notified the Dominion Plan Administrator of an alternate payee for the Salaried Savings Plan. In 

October 2012, Mrs. Griffin sent a draft QDRO to Dominion. Dominion’s Plan Administrator 

responded that the proposed domestic relations order (“DRO”) would not be treated as a QDRO 

in light of Board of Trustees of the Indiana State Council of Plasterers & Cement Masons 

Pension Fund v. Steffens, Case No. 4:12CV513 JCH (E.D. Mo. 2012), a case concerning a 

domestic relations order entered after the plan participant’s death. However, Dominion 

continued an administrative hold on Mr. Griffin’s Salaried Savings Plan benefits pending the 

outcome of the litigation concerning the proper beneficiary under the Plan. 

 The circuit court ruled that it had jurisdiction to reinstate the parties’ divorce case upon 

the docket “for such purposes as may be necessary to grant full relief to all parties,” citing Code 

§ 20-121.1, and that Code § 20-107.3(K) grants the circuit court continuing authority and 

jurisdiction “to make any additional orders necessary to effectuate and enforce any order entered 

pursuant to [equitable distribution].” The circuit court clarified that if it were to enter the QDRO 

 1

Mr. Griffin also had a special retirement account that was included as part of his 

Dominion Power Pension Plan. The special retirement account goes to the named beneficiary if 

the participant dies before retirement. Mr. Griffin named Cowser-Griffin as the beneficiary of 

the special retirement account. 

In Mrs. Griffin’s original motion before the circuit court, she stated that both the Salaried 

Savings Plan and the special retirement account under his Pension Fund are both subject to a 

QDRO and the focus of her motion. However, the proposed QDRO only names the Salaried 

Savings Plan, and not the Dominion Power Pension Plan or special retirement account that 

Mrs. Griffin mentions in her original motion and her brief. The circuit court only addressed the 

Dominion Salaried Savings Plan, and Mrs. Griffin did not note any specific objection stating that 

the circuit court failed to address additional plans or funds. Therefore, we only address the 

Dominion Salaried Savings Plan as it was the only plan addressed in the proposed QDRO. 
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it would not be modifying the final decree’s incorporation of the property settlement agreement, 

“but rather would effectuate and enforce such an order by entry of a QDRO.” However, the 

circuit court denied Mrs. Griffin’s request to enter a proposed QDRO, finding that “under 

controlling federal law, without a preexisting QDRO, Mr. Griffin’s retirement benefits in the 

Dominion Salaried Savings Plan vested entirely in the designated beneficiary and surviving 

spouse, [Cowser-Griffin], once the plan participant passed away.” The circuit court found that 

under federal case law, 

at the time of retirement or preretirement death the former spouse 

must have perfected a QDRO at the time the benefits became 

payable, or that in order to effect a postmortem qualification of the 

domestic relations order (“DRO”) as a QDRO, there must have 

been a DRO awarding the interest in the pension plan and 

substantially complying with ERISA’s QDRO specificity 

requirements at the time the benefits became payable. 

Alternatively, Ms. Sandra Griffin could have put the plan on notice 

of her children’s interest in the benefits. Ms. Griffin failed to 

perfect a QDRO prior to Mr. Griffin’s passing, and the final decree 

of divorce and the PSA do not qualify as a QDRO. Further, there 

is no evidence in the record that any notice of the children’s 

potential claim under the PSA was ever provided to the Plan at any 

time before the plan participant’s death. Thus, Defendant’s 

Motion for Entry of the [QDRO] is denied. 

Mrs. Griffin timely appealed to this Court. 

II. ANALYSIS 

 Mrs. Griffin’s assignment of error is that “[t]he trial court erred in ruling that the court 

could not properly enter a qualified domestic relations order under the circumstances of the 

case.” “We review the [circuit] court’s statutory interpretations and legal conclusions de novo.” 

Navas v. Navas, 43 Va. App. 484, 487, 599 S.E.2d 479, 480 (2004) (quoting Sink v. 

Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)). 

 The disbursement of Mr. Griffin’s Salaried Savings Plan falls under the federal Employee 

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., as stated in the 
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Salaried Savings Plan documents and because it is an “employee pension benefit plan” as 

defined in 29 U.S.C. § 1002(2). An “employee pension benefit plan” or “pension plan” includes 

a plan maintained by an employer that provides retirement income to employees or deferred 

income for employees regardless of the method of calculating the benefits under the plan or the 

method of distributing benefits from the plan. 29 U.S.C. § 1002(2). 

 The principal goal of ERISA is to provide “a set of standard procedures to guide 

processing of claims and disbursement of benefits.” Egelhoff v. Egelhoff, 532 U.S. 141, 148 

(2001). 29 U.S.C. § 1144(a) provides that the Act “shall supersede any and all State laws insofar 

as they may now or hereafter relate to any employee benefit plan.” The legislative intent behind 

ERISA was to establish a uniform administrative scheme governing employee benefit plans to 

prevent the employer from being subject to differing regulatory requirements in differing states. 

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9 (1987). The United States Supreme Court has 

“not hesitated to enforce ERISA’s pre-emption provision where state law created the prospect 

that an employer’s administrative scheme would be subject to conflicting requirements.” Id. at 

10. 

A. 29 U.S.C. § 1055 Does Not Apply to the Salaried Savings Plan 

 Congress enacted the Retirement Equity Act of 1984 (“REA”) which “enlarged ERISA’s 

protection of surviving spouses in significant respects.” Boggs v. Boggs, 520 U.S. 833, 843 

(1997). The enlarged protections in REA are codified in 29 U.S.C. § 1055. Pursuant to the 

statutory language, 29 U.S.C. § 1055 applies to, 

 (A) any defined benefit plan, 

 (B) any individual account plan which is subject to the funding 

standards of section 302 [29 USCS § 1082], and 
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 (C) any participant under any other individual account plan2

unless— 

 (i) such plan provides that the participant’s non-forfeitable 

accrued benefit (reduced by any security interest held by the plan 

by reason of a loan outstanding to such participant) is payable in 

full, on the death of the participant, to the participant’s surviving 

spouse (or, if there is no surviving spouse or the surviving spouse 

consents in the manner required under subsection (c)(2), to a 

designated beneficiary),3

 (ii) such participant does not elect the payment of benefits in 

the form of a life annuity, and 

 (iii) with respect to such participant, such plan is not a direct 

or indirect transferee (in a transfer after December 31, 1984) of a 

plan which is described in subparagraph (A) or (B) or to which this 

clause applied with respect to the participant. 

29 U.S.C. § 1055(b)(1) (footnotes added). While § 1055 governs most pension plans with 

surviving spouse benefits, it provides an exception for some individual account plans. Mr. 

Griffin’s estate concedes that the Dominion Salaried Savings Plan is one such plan excepted by 

the statutory language. Mr. Griffin’s estate, however, relies on language from Boggs stating that 

all pension plans are governed by § 1055, and thus, he argues that despite the statutory 

exception, the Salaried Savings Plan is nevertheless regulated by § 1055. 

 2

 The term “individual account plan” or “defined contribution plan” 

means a pension plan which provided for an individual account for 

each participant and for benefits based solely upon the amount 

contributed to the participant’s account, and any income, expenses, 

gains and losses, and any forfeitures of accounts of other 

participants which may be allocated to such participant’s account. 

29 U.S.C. § 1002(34). 

3

 The chief point of contention between the majority and the dissent lies in the 

applicability of this latter parenthetical language. Contrary to the view of the dissent, we 

conclude that the language set off in these parentheses after the word “spouse” is inapplicable in 

this case because the Salaried Savings Plan “is payable in full, on the death of the participant, to 

the participant’s surviving spouse.” 29 U.S.C. § 1055(b)(1)(C)(i). The Salaried Savings Plan 

thus meets these requirements to be excepted from § 1055 application, and therefore we need not 

look past the opening parenthesis and immediately following “or” for other situations to which 

the exception applies. 
- 7 - 

Congress’ concern for surviving spouses is also evident from the 

expansive coverage of § 1055, as amended by REA. Section 

1055’s requirements, as a general matter, apply to all “individual 

account plans” and “defined benefit plans.” § 1055(b)(1). The 

terms are defined, for § 1055 purposes, so that all pension plans 

fall within those two categories. See § 1002(35). While some 

individual account plans escape § 1055’s surviving spouse annuity 

requirements under certain conditions, Congress still protects the 

interests of the surviving spouse by requiring those plans to pay the 

spouse the nonforfeitable accrued benefits, reduced by certain 

security interests, in a lump-sum payment. § 1055(b)(1)(C). 

Boggs, 520 U.S. at 843. 

 First, we note that the above quoted language from Boggs is dicta and we note that, 

contrary to the assertion of Mr. Griffin’s estate, the Boggs Court’s choice of words actually is 

that § 1055 applies “as a general matter . . . to all ‘individual account plans’ and ‘defined benefit 

plans.’” Id. (emphasis added). Thus, we do not read Boggs as a judicial revision of the statutory 

language designed to eliminate exceptions created by Congress. In Boggs, the pension plan at 

issue in the above quoted analysis was a “qualified joint and survivor annuity mandated by 

ERISA” in 29 U.S.C. § 1055(a) and (d)(1), id. at 842, and not an individual account plan as is the 

case here.4 Because the Supreme Court was not faced with deciding whether a particular 

individual account plan fell within the statutory exception to 29 U.S.C. § 1055, as provided in 

§ 1055(b)(1)(C), the Court’s interpretation that § 1055 applies to all individual account plans is 

dicta and not binding precedent. See Camreta v. Greene, 131 S. Ct. 2020, 2045 (2011) (dicta 

remarks do not establish law or qualify as binding precedent). 

 4

 We note that the deceased plan participant in Boggs did receive a lump-sum distribution 

from his employer’s savings plan upon his retirement. Boggs, 520 U.S. at 836. However, he 

rolled the lump sum distribution into an Individual Retirement Account (“IRA”), and the Court 

analyzed the proper beneficiary of the IRA separately from the qualified joint and survivor 

monthly annuity payments payable to the surviving spouse from the employer’s retirement 

program. The Court addressed the qualified joint and survivor annuity with a thorough analysis 

of § 1055 in Section III of the opinion, and while the IRA was addressed in the following 

section, the IRA was not addressed in the Court’s § 1055 analysis. Id. at 836-37, 842, 844-45. 
- 8 - 

 The fact that 29 U.S.C. § 1055(b)(1)(C) requires excepted plans to pay a surviving spouse 

the participant’s nonforfeitable accrued benefits in a lump-sum payment does not mean that the 

other provisions of § 1055 apply to those plans. While § 1055(b)(1)(C) does require excepted 

plans to pay a surviving spouse the participant’s nonforfeitable accrued benefits in a lump-sum 

payment, this requirement is one of three to be met for an individual account plan to be excepted

from § 1055; it would be illogical to conclude that § 1055 applies to an individual account plan 

excepted by the language of the statute itself. 

 Additionally, the fact that the Salaried Savings Plan requires spousal consent in the same 

manner as provided in 29 U.S.C. § 1055(c)(2) does not mean that § 1055 applies to the Plan. In 

fact, the statute itself contemplates that excepted plans may require spousal consent “in the 

manner required under subsection (c)(2).” 29 U.S.C. § 1055(b)(1)(C)(i). Accordingly, while an 

ERISA governed plan may require consent in the manner provided in 29 U.S.C. § 1055(c)(2), it 

may escape § 1055 application. Such is the case here where the Salaried Savings Plan requires 

spousal consent in the manner provided in 29 U.S.C. § 1055(c)(2). The Salaried Savings Plan 

meets § 1055’s requirements for excepted plans because (1) the Plan provides that the 

participant’s benefits are payable in full to the surviving spouse upon the participant’s death, 

(2) Mr. Griffin did not elect to receive benefits in the form of a life annuity, and (3) there is no 

evidence or allegations that the Salaried Savings Plan is a transferee of a previous plan. 

Moreover, as stated supra, Mr. Griffin’s estate concedes that the Salaried Savings Plan is 

excepted from § 1055 application. Therefore, the Plan is not subject to the regulations that apply 

to joint and survivor annuities and pre-retirement survivor annuities pursuant to § 1055, nor does 

the case law interpreting the § 1055 annuity regulations apply. 
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B. ERISA Allows for Assignment or Alienation of Plan Benefits Pursuant to a QDRO 

 Turning to Mrs. Griffin’s proposed QDRO, we must determine whether it meets the 

statutory requirements for a QDRO, and if it does, it is not pre-empted. Boggs, 520 U.S. at 848. 

In other words, enforceability of Mrs. Griffin’s interest “ultimately depends on whether a state 

court order is qualified under ERISA.” Langston v. Wilson McShane Corp., 828 N.W.2d 109, 

116 (Minn. 2013). 

 ERISA generally obligates administrators to manage ERISA plans “in accordance with 

the documents and instruments governing them.” 29 U.S.C. § 1104(a)(1)(D). “At a more 

specific level, the Act requires covered pension benefit plans to ‘provide that benefits . . . under 

the plan may not be assigned or alienated,’ [29 U.S.C.] § 1056(d)(1), but this bar does not apply 

to qualified domestic relations orders (QDROs), [29 U.S.C.] § 1056(d)(3).” Kennedy v. Plan 

Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285, 288 (2009). “The QDRO provision is an 

exception not only to ERISA’s rule against assignment of plan benefits but also to ERISA’s 

broad preemption of state law.” Trs. of the Dirs. Guild v. Tise, 234 F.3d 415, 420 (9th Cir. 

2000) (citing 29 U.S.C. § 1144(b)(7)). 29 U.S.C. § 1056(d)(3)(A) provides, 

Paragraph (1) [stating benefits may not be assigned or alienated] 

shall apply to the creation, assignment, or recognition of a right to 

any benefit payable with respect to a participant pursuant to a 

domestic relations order, except that paragraph (1) shall not apply 

if the order is determined to be a qualified domestic relations order. 

Each pension plan shall provide for the payment of benefits in 

accordance with the applicable requirements of any qualified 

domestic relations order. 

(Emphasis added). 

 The Dominion Salaried Savings Plan provides under the heading “Death Benefits, Your 

Beneficiary”: 

If you die while employed by Dominion, the entire value of your 

account is distributed to your beneficiary, including the value of all 
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Company Matching contributions that automatically become 

vested upon your death. 

Federal law requires that, if you are married when you die, your 

spouse must receive the distribution unless she or he approved 

your choice of another (or an additional) beneficiary before your 

death. Your spouse must agree to your choice of that beneficiary 

by signing the spousal consent portion of a Beneficiary 

Authorization Form obtained from ACS. The form must have 

been completed, signed, notarized, and returned to ACS before 

your death. 

However, the Salaried Savings Plan document includes the 29 U.S.C. § 1056(d)(3)(A) 

requirement by stating: “if you are divorced, benefit payments from the Pension Plan or Savings 

Plan may be made to your former spouse, your child, or other dependent only in response to a 

Qualified Domestic Relations Order (QDRO).” 

 The term “domestic relations order” is defined as “any judgment, decree, or order 

(including approval of a property settlement agreement) which – (I) relates to the provision of 

child support, alimony payments, or marital property rights to a spouse, former spouse, child, or 

other dependent of a participant, and (II) is made pursuant to a State domestic relations law . . . .” 

29 U.S.C. § 1056(d)(3)(B)(ii). A “qualified domestic relations order” is a domestic relations 

order “which creates or recognizes the existence of an alternate payee’s right to, or assigns to an 

alternate payee the right to, receive all or a portion of the benefits payable with respect to a 

participant under a plan,” and meets the requirements of subparagraphs (C) and (D): 

 (C) A domestic relations order meets the requirements of this 

subparagraph only if such order clearly specifies – 

 (i) the name and last known mailing address (if any) of the 

 participant and the name and mailing address of each 

 alternate payee covered by the order, 

 (ii) the amount or percentage of the participant’s benefits 

 to be paid by the plan to each such alternate payee, or the 

 manner in which such amount or percentage is to be 

 determined. 
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 (iii) the number of payments or period to which such order 

 applies, and 

 (iv) each plan to which such order applies. 

 (D) A domestic relations order meets the requirements of this 

subparagraph only if such order – 

 (i) does not require a plan to provide any type or form of 

 benefit, or any option, not otherwise provided under the 

 plan, 

 (ii) does not require the plan to provide increased benefits 

 (determined on the basis of actuarial value), and 

 (iii) does not require the payment of benefits to an alternate 

 payee which are required to be paid to another alternate 

 payee under another order previously determined to be a 

 qualified domestic relations order. 

29 U.S.C. § 1056(d)(3). If the DRO qualifies as a QDRO, then the person who is an alternate 

payee under the QDRO is considered a beneficiary under the plan. 29 U.S.C. § 1056(d)(3)(J). 

 The circuit court provided the following reasoning for denying entry of Mrs. Griffin’s 

proposed QDRO: 1) The final decree and the PSA did not substantially comply with ERISA’s 

QDRO specificity requirements at the time the benefits became payable, thus preventing a 

postmortem qualification of either DRO (the final decree or PSA) as a QDRO; 2) Mr. Griffin’s 

retirement benefits in the Salaried Savings Plan vested entirely in Cowser-Griffin as the 

designated beneficiary and surviving spouse once Mr. Griffin died, and; 3) The Plan was not put 

on notice of alternate payees prior to the plan participant’s death. 

 We hold that the circuit court erred in its analysis denying entry of the QDRO for the 

following reasons. 

C. The QDRO is the Tool by which State Courts Can Enforce Marital Property Settlements 

 The Griffin PSA was incorporated into the final decree of divorce, and its terms should 

be enforced by the circuit court. The Code of Virginia provides for reinstatement of divorce 

suits to allow parties to obtain full relief: 
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In any suit which has been stricken from the docket, and in which 

complete relief has not been obtained, upon the motion or 

application of either party to the original proceedings, the same 

shall be reinstated upon the docket for such purposes as may be 

necessary to grant full relief to all parties. 

Code § 20-121.1. “[M]arital property settlements entered into by competent parties upon valid 

consideration for lawful purposes are favored in the law and such will be enforced unless their 

illegality is clear and certain.” Derby v. Derby, 8 Va. App. 19, 25, 378 S.E.2d 74, 77 (1989) 

(quoting Cooley v. Cooley, 220 Va. 749, 752, 263 S.E.2d 49, 52 (1980)). More generally, “when 

a contract has been made, and either party refuses to perform the agreement, equity enforces the 

performance of the contract specifically, by compelling the refractory party to fulfill his 

engagement according to its terms.” Dunsmore v. Lyle, 87 Va. 391, 392, 12 S.E. 610, 611 

(1891). Thus, as the legality of the PSA incorporated into the final decree is uncontested, the 

circuit court is responsible for enforcing its terms under state law. 

 The parties agreed in the PSA to “name the children of the marriage as co-beneficiaries 

under all 401(k) plans and other such plans which would be distributed upon the death of either 

party.” Although Mr. Griffin initially named his children as beneficiaries, he later changed the 

designated beneficiary on the Salaried Savings Plan to Cowser-Griffin and named the children 

only as contingent beneficiaries. Thus, Mr. Griffin clearly breached the terms of the PSA by 

naming Cowser-Griffin as the beneficiary to his Salaried Savings Plan. 

 When a party breaches the terms of a property settlement agreement by failing to name 

beneficiaries on ERISA-governed accounts in accordance with the agreement, the only way for 

the circuit court to enforce the agreement is to issue a QDRO. 29 U.S.C. § 1056(d)(3); 

Kennedy, 555 U.S. at 288 (ERISA prohibits assignment or alienation of benefits governed by the 

plan except in the case of a QDRO). “The QDRO provisions of ERISA do not suggest that a 

former spouse has no interest in the plans until she obtains a QDRO, they merely prevent her 
- 13 - 

from enforcing her interest until the QDRO is obtained.” Gendreau v. Gendreau, 122 F.3d 815, 

819 (9th Cir. 1997). A spouse’s “interest in the pension plans (or, at a minimum, her right to 

obtain a QDRO which would in turn give her an interest in the plans) was established under state 

law at the time of the divorce decree.” Id. at 818. “State family law can . . . create enforceable 

interests in the proceeds of an ERISA plan, so long as those interests are articulated in accord 

with the QDRO provision’s requirements.” Tise, 234 F.3d at 420; see also Turner v. Turner, 47 

Va. App. 76, 79, 622 S.E.2d 263, 265 (2005) (this Court agreed with wife that the “QDRO 

simply was an administrative mechanism to effectuate the intent and purpose of the final 

decree’s award”). 

D. A DRO May Be Revised to Meet the QDRO Requirements 

 While the PSA and final decree in this case do not meet the requirements of a QDRO, 

under state law a circuit court may make additional orders necessary to effectuate and enforce an 

order of the court. The circuit court has the authority to modify an order intended to affect or 

divide deferred compensation plans or retirement benefits for the purpose of establishing the 

order as a QDRO “or to revise or conform its terms so as to effectuate the expressed intent of the 

order.” Code § 20-107.3(K)(4). Code § 20-107.3(K)(4) “‘permits the court to revise its orders to 

comply with language required by federal law to effectuate the intended pension award, but not 

to substantively change the pension award itself.’” Craig v. Craig, 59 Va. App. 527, 539, 721 

S.E.2d 24, 30 (2012) (quoting Irwin v. Irwin, 47 Va. App. 287, 297 n.8, 623 S.E.2d 438, 443 n.8 

(2005)). 

 Further, in the Pension Protection Act of 2006, Congress makes clear that a QDRO will 

not fail solely because the order is issued after, or revises, another domestic relations order; nor 

will it fail solely because of the time at which it is issued. Pub. L. No. 109-280, § 1001, 120 Stat. 
- 14 - 

780, 1001 (2006). Congress mandated that the Secretary of Labor issue regulations under 

ERISA to this end: 

Not later than 1 year after the date of the enactment of this Act, the 

Secretary of Labor shall issue regulations under section 206(d)(3) 

of the Employee Retirement Security Act of 1974 and section 

414(p) of the Internal Revenue Code of 1986 which clarify that – 

(1) a domestic relations order otherwise meeting the requirements 

to be qualified domestic relations order . . . shall not fail to be 

treated as a qualified domestic relations order solely because – 

 (A) the order is issued after, or revises, another domestic 

 relations order or qualified domestic relations order; or 

 (B) of the time at which it is issued[.] 

Id. (emphasis added). Thus, both the Pension Protection Act of 2006 and the Code of Virginia 

permit revisions to a DRO, as long as the revisions do not substantively change the award itself, 

in order to produce a QDRO. 

 In this case, it does not matter that the final decree and PSA were not QDROs because it 

is permissible under both federal and state law that an order issued after and revising these 

domestic relations orders can become a QDRO. Further, the proposed QDRO did not make any 

substantive changes to the benefits agreed upon in the final decree and PSA, the substantive 

portion of which is: “The parties agree to name the children of the marriage as co-beneficiaries 

under all 401K Plans and other such plans which would be distributed upon the death of either 

party.” The proposed QDRO provides “The Alternate Payees [James J. Griffin, III, and Gloria 

D. Griffin] shall be entitled to One Hundred Percent (100%) of the Member’s vested account 

under the Plan to be divided equally between them, fifty percent (50%) each.” The crux of both 

of these provisions is equal distribution of death benefits from the 401(k) Salaried Savings Plan 

to the children. While the DROs did not meet the specificity requirements of a QDRO, the 

purpose of the proposed QDRO is to meet these specificity requirements, as permitted by the 

federal and state laws. 
- 15 - 

E. The Proposed QDRO Meets ERISA’s Specificity Requirements 

 The proposed QDRO meets the specificity requirements found in 29 U.S.C. § 1056(d)(3). 

The proposed QDRO includes the information required by § 1056(d)(3)(C): (1) the names and 

mailing addresses of Mr. Griffin, the plan participant, and his children, the alternate payees, 

(2) the percentage of benefits each alternate payee should be paid, fifty-percent each, (3) the 

number of payments to which the order applies, single cash sums or “such other form of 

distribution as may be elected by the Alternate Payees under the terms of the Plan,” and (4) the 

plan to which the order applies, the interest of Mr. Griffin in the Dominion Salaried Savings 

Plan. 

 In accordance with 29 U.S.C. § 1056(d)(3)(D)(i), the proposed QDRO does not require 

the Salaried Savings Plan to provide a type or form of benefit, or any option, not otherwise 

provided under the Plan. The proposed QDRO seeks one hundred percent of the benefits vested 

in Mr. Griffin’s Salaried Savings Plan in the form of a single cash sum or other distribution as 

the children may elect under the Plan. This is consistent with the Salaried Savings Plan which 

provides, “If you die while employed by Dominion, the entire value of your account is 

distributed to your beneficiary, including the value of all Company matching contributions that 

automatically become vested upon your death,” and “Non-spousal Beneficiaries must elect to 

receive the balance of your Account in an immediate lump sum payment or in annual payments 

totaling the balance of your Account that conclude within five (5) years after the date of your 

death.” 

 The fact that the proposed QDRO names beneficiaries other than Cowser-Griffin does not 

change the form of benefit. 29 U.S.C. § 1056(d)(3)(E)(i)(III) provides, 

A domestic relations order shall not be treated as failing to meet 

the requirements of [29 U.S.C. § 1056(d)(3)(D)(i)] solely because 

such order requires that payment of benefits be made to an 

alternate payee . . . in any form in which such benefits may be paid 
- 16 - 

under the plan to the participant (other than in the form of a joint 

and survivor annuity with respect to the alternate payee and his or 

her subsequent spouse). 

Here, the Salaried Savings Plan is not a joint and survivor annuity, but rather a defined 

contribution plan.5

 See 29 U.S.C. § 1002(34). Also, the Plan allowed Mr. Griffin to receive the 

entire balance of his account at any time after his retirement. Thus, the request in the proposed 

QDRO for the children, and not Cowser-Griffin, to receive payment of the benefits, in lump sum 

or other option available to them under the Plan, does not run afoul of the requirement that the 

QDRO only require a form of benefit already provided by the Plan. 

 The regulations issued by the Department of Labor pursuant to the Pension Protection 

Act of 2006 in the form of illustrative examples, apply to this case,6

 and Examples 1 and 4 of 29 

C.F.R. § 2530.206(d) specifically support the conclusion that the proposed QDRO in this case 

conforms to the “type or form of benefit” requirement of 29 U.S.C. § 1056(d)(3)(i). In 29 C.F.R. 

§ 2530.206(d)(2)(ex. 1) the “Participant and Spouse divorce, and their divorce decree provides 

 5

 A “qualified joint and survivor annuity” is an annuity 

for the life of the participant with a survivor annuity for the life of 

the spouse which is equal to the applicable percentage of the 

amount of the annuity which is payable during the joint lives of the 

participant and the spouse, and (ii) which is the actuarial 

equivalent of a single annuity for the life of the participant. Such 

term also includes any annuity in the form having the effect of an 

annuity described in the preceding sentence. 

29 U.S.C. § 1055(d). The Salaried Savings Plan is not an annuity and is not based on actuarial 

calculations; it is a defined contribution plan. The Plan benefits are based on the participant’s 

contributions, Dominion’s matching contributions, and the investment earnings on the 

contributions. A specific retirement benefit is not guaranteed; rather the Salaried Savings Plan is 

designed to encourage retirement savings. 

6

 Where Congress has expressly delegated authority to an agency to elucidate a specific 

provision of a statute by regulation as it did in the Pension Protection Act of 2006, as cited supra, 

“[s]uch legislative regulations are given controlling weight unless they are arbitrary, capricious, 

or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 

843-44 (1984). 
- 17 - 

that the parties will prepare a [DRO] assigning 50 percent of Participant’s benefits under a 

401(k) plan to Spouse to be paid in monthly installments over a 10-year period.” Participant 

then dies while actively employed. Id. “A [DRO] consistent with the divorce decree is 

subsequently submitted to the 401(k) plan; however, the plan does not provide for 10-year 

installment payments of the type described in the order.” Id. The example provides that “the 

order does not fail to be treated as a QDRO solely because it is issued after the death of 

Participant, but the order would fail to be a QDRO . . . because the order requires the plan to 

provide a type or form of benefit, or any option, not otherwise provided under the plan.” Id. 

 The example provided in 29 C.F.R. § 2530.206(d)(2)(ex. 4) is also applicable to this case: 

Participant retires and begins receiving benefit payments in the form of a straight life annuity 

based on the life of participant, and spouse waived her surviving spousal rights. Participant then 

divorces spouse after the annuity start date and presents the plan with a DRO “that eliminates the 

straight life annuity based on Participant’s life and provides for Spouse, as alternate payee, to 

receive all future benefits in the form of a straight life annuity based on the life of Spouse. The 

plan does not allow reannuitization with a new annuity starting date.” Id. 

[T]he order does not fail to be a QDRO solely because it is issued 

after the annuity starting date, but the order would fail to be a 

QDRO . . . because the order requires the plan to provide a type or 

form of benefit, or any option, not otherwise provided under the 

plan. However, the order would not fail to be a QDRO . . . if 

instead it were to require all of Participant’s future payments under 

the plan to be paid instead to Spouse, as an alternate payee (so that 

payments that would otherwise be paid to the Participant during 

the Participant’s lifetime are instead to be made to the Spouse 

during the Participant’s lifetime). 

Id. 

 In this case, the relevant benefit is the funds in a 401(k) payable in a lump sum, which is 

essentially what the proposed QDRO requests to be paid to the children. The proposed QDRO 
- 18 - 

does not call for a change in the type or form of benefit such as payment over a term not offered 

by the Plan or a reannuitization not allowed under the Plan. 

 The proposed QDRO also meets the last two requirements in 29 U.S.C. § 1056(d)(3)(D). 

It does not call for the Plan to provide increased benefits determined on actuarial values, 29 

U.S.C. § 1056(d)(3)(D)(ii), as Mr. Griffin’s Salaried Savings Plan benefits were not based on 

actuarial calculations, but only the sum of his contributions, Dominion’s matching contributions, 

and the investment earnings on those contributions. Further, the proposed QDRO does not 

require the payment of benefits to an alternate payee which are required to be paid to another 

alternate payee pursuant to a previously entered QDRO, 29 U.S.C. § 1056(d)(3)(D)(iii), as there 

is no previously entered QDRO in this case. 

F. The Timing of the Proposed QDRO Does Not Cause it to Fail 

 The fact that the proposed QDRO was not entered before the circuit court or to the Plan 

until after Mr. Griffin’s death does not cause it to fail. As previously mentioned, in the Pension 

Protection Act of 2006 Congress ordered the Secretary of Labor to enter regulations clarifying 

that a DRO shall not fail to be treated as a QDRO solely because of the time at which it issued. 

29 C.F.R. § 2530.206(c) gives examples illustrating how a DRO shall not fail to be treated as a 

QDRO solely because of the time at which it is issued. 29 C.F.R. § 2530.206(c)(2)(ex. 1) 

provides that a QDRO does not fail to be treated as a QDRO solely because it is issued after the 

death of the participant who died while actively employed and the order was subsequently 

submitted to the plan: 

 Example (1). Orders issued after death. Participant and Spouse 

divorce, and the administrator of Participant’s plan receives a 

domestic relations order, but the administrator finds the order 

deficient and determines that it is not a QDRO. Shortly thereafter, 

Participant dies while actively employed. A second domestic 

relations order correcting the defects in the first order is 

subsequently submitted to the plan. The second order does not fail 

to be treated as a QDRO solely because it is issued after the death 
- 19 - 

of the Participant. The result would be the same even if no order 

had been issued before the Participant’s death, in other words, the 

order issued after death were the only order. 

Thus, in the present case, the proposed QDRO should not fail solely because it was not entered 

prior to Mr. Griffin’s death, and the fact that the Plan was not on notice of an alternate payee is 

of no consequence according to the last sentence of the instruction example in the applicable 

federal regulation. 

G. The Plan Benefits Did Not Vest in Cowser-Griffin upon Mr. Griffin’s Death 

 The circuit court concluded that “under controlling federal law” Mr. Griffin’s retirement 

benefits in the Salaried Savings Plan vested entirely in Cowser-Griffin at the moment of 

Mr. Griffin’s death. However, federal law does not dictate that the benefits vested in 

Cowser-Griffin at Mr. Griffin’s death; rather, ERISA generally obligates administrators to 

manage ERISA plans “in accordance with the documents and instruments governing them.” 29 

U.S.C. § 1104(a)(1)(D). In this case, the Salaried Savings Plan documents only refer to 

“vesting” in terms of benefits vesting in the participant’s account. The Salaried Savings Plan 

does not address the vesting of benefits in a spouse or other beneficiary, but rather defines 

vesting as the participant’s “non-forfeitable right to part or all of the value of [his] account.” The 

Plan states that the participant is “always vested in the value of [his] employee Pre-tax, After-tax, 

and Rollover contributions and the investment earnings on those contributions,” and is vested in 

company matching contributions and their earnings after three years of service. While the Plan 

requires spousal consent for a participant to designate a beneficiary other than his current spouse 

as the recipient of the funds vested in the participant’s account, it also provides that a QDRO 

may assign the participant’s Salaried Savings Plan benefits to a former spouse, child, or other 

dependent. 
- 20 - 

 Moreover, ERISA contemplates situations where a benefit becomes payable, but a court 

or the plan administrator takes months to determine if a DRO qualifies as a QDRO. 29 U.S.C. 

§ 1056(d)(3)(H) provides: 

(i) During any period in which the issue of whether a domestic 

relations order is a qualified domestic relations order is being 

determined (by the plan administrator, by a court of competent 

jurisdiction, or otherwise), the plan administrator shall separately 

account for the amounts (hereinafter in this subparagraph referred 

to as the “segregated amounts”) which would have been payable to 

the alternate payee during such period if the order had been 

determined to be a qualified domestic relations order. 

(ii) If within the 18-month period described in clause (v) the order 

(or modifications thereof) is determined to be a qualified domestic 

relations order, the plan administrator shall pay the segregated 

amounts (including any interest thereon) to the person or persons 

entitled thereto. 

* * * * * * * 

(iv) Any determination that an order is a qualified domestic 

relations order which is made after the close of the 18-month 

period described in clause (v) shall be applied prospectively only. 

Thus, a proposed QDRO does not automatically fail solely because a benefit has become payable 

and the correct beneficiary or beneficiaries are not yet determined. This statute provides for the 

situation of this case where a QDRO would be presented to the plan administrator after benefits 

become payable and the proper beneficiary is not yet determined or may have to be 

re-determined; this runs contrary to the circuit court’s finding that benefits automatically vest in 

the surviving spouse where there is no preexisting QDRO.7

 The court in Tise likewise 

interpreted 29 U.S.C. § 1056(d)(3)(H): “the statute necessarily permits an alternate payee who 

has obtained a state law DRO before the plan participant’s retirement, death, or other 

 7

 Our analysis is confined to the Salaried Savings Plan at issue in this case, to which 29 

U.S.C. § 1055 does not apply. We recognize that different vesting rules may apply to joint and 

survivor annuities, preretirement survivor annuities, or other plans to which 29 U.S.C. § 1055 

does apply. 
- 21 - 

benefit-triggering event to perfect the DRO into a QDRO thereafter (subject to the 18-month 

period after which any previously-due benefits are payable to the original beneficiary).” Tise, 

234 F.3d at 422-23. 

 Hopkins v. AT&T Global Information Solutions Co., 105 F.3d 153 (4th Cir. 1997), is the 

case Mr. Griffin’s estate relies on as the “keystone case on the issue of vested rights for surviving 

spouses.” Hopkins is easily distinguishable from the present case because of the form of benefit 

at issue in the case. In Hopkins, husband retired and began receiving pension benefits in the 

form of a qualified joint and survivor annuity, where he received a fixed income for his life 

(“pension benefits”), and if his spouse at retirement survived him, she would receive 50% of that 

fixed income for the remainder of her life (“surviving spouse benefits”). Id. at 154-55. Also, if 

husband died prior to retirement, pension benefits would be paid to his spouse as preretirement 

survivor annuity. Id. at 155 n.1. Husband’s former spouse sought judgment to collect alimony 

against husband’s pension benefits and against his current spouse’s (also his spouse at 

retirement) surviving spouse benefits. The state court granted two judgment orders, one against 

the pension benefits and one against the surviving spouse benefits. Id. at 155. AT&T conceded 

that the order concerning the pension benefits was a QDRO, but argued that “because the 

Surviving Spouse Benefits had already vested in [the current spouse], the Surviving Spouse 

Order is not a QDRO.” Id. 

 The Fourth Circuit noted that the question of whether a participant’s current spouse has a 

vested interest in the surviving spouse benefits is a question of first impression on the federal 

courts and pointed out that ERISA does not explicitly state when a current spouse’s interest in 

the surviving spouse benefits vests. Id. at 156. “However, after carefully reviewing the overall 

framework of ERISA, especially the provisions governing joint and survivor annuities, we 

conclude that the Surviving Spouse Benefits vest in the participant’s current spouse on the date 
- 22 - 

the participant retires.” Id. The Hopkins court relied on the strict regulations that specifically 

apply to joint and survivor annuities and the accompanying surviving spouse benefits set forth in 

29 U.S.C. § 1055 as support for its holding that the participant’s spouse at the time of retirement 

has a vested interest in the surviving spouse benefits. Id. at 156-57. The court also noted that 

because the disbursement of the plan benefits is “based on actuarial computations, the plan 

administrator must know the life expectancy of the person receiving the Surviving Spouse 

Benefits to determine the participant’s monthly Pension Benefits. As a result, the plan 

administrator needs to know, on the day the participant retires, to whom the Surviving Spouse 

Benefits is payable.” Id. at 157 n.7. Additionally, the court noted that a former spouse could 

obtain an interest in the participant’s pension benefits by obtaining a QDRO at any time, as the 

former spouse did. Id. at 157. 

 As the surviving spouse benefits in Hopkins were a product of a joint and survivor 

annuity regulated by 29 U.S.C. § 1055, Hopkins is not persuasive on the subject of vesting as 

Mr. Griffin’s estate suggests because the Salaried Savings Plan is exempted from § 1055 

application. Further, unlike the plan in Hopkins, Mr. Griffin’s Salaried Savings Plan benefits do 

not depend on actuarial calculations of the life of Mr. Griffin or Cowser-Griffin, or provide 

defined retirement benefits to Cowser-Griffin for the span of her life as predicted at Mr. Griffin’s 

death or retirement. 

 Mr. Griffin’s estate also relies on Carmona v. Carmona, 544 F.3d 988 (9th Cir. 2008), to 

support his argument that Mr. Griffin’s benefits vested in Cowser-Griffin on the date of his 

death. However, like Hopkins, the benefits at issue in Carmona are qualified joint survivor 

annuity benefits. The court concluded, “once a participant retires, the spouse at the time 

becomes the ‘surviving spouse’ entitled to the QJSA benefits.” Id. at 1002. “ERISA’s surviving 

spouse benefits established in section 1055 were created in part ‘to ensure a stream of income to 
- 23 - 

surviving spouses.’” Id. (quoting Boggs, 520 U.S. at 843). Once again, the Salaried Savings 

Plan benefits at issue in this case do not qualify as surviving spouse annuity benefits established 

in 29 U.S.C. § 1055. 

 The United States Court of Appeals for the Ninth Circuit in Hamilton v. Washington 

State Plumbing & Pipefitting Industry Pension Plan, 433 F.3d 1091 (9th Cir. 2006), has also 

distinguished treatment of surviving spouse benefits regulated by 29 U.S.C. § 1055 from a 

participant’s pension benefits upon his retirement or death. The court found that the rights of a 

surviving spouse to a preretirement survivor annuity, governed by 29 U.S.C. § 1055, are 

available only to a surviving spouse or a former spouse properly designated, but not available to 

children as alternate payees pursuant to a QDRO. Id. at 1101. However, the court noted that 

“designating children in a QDRO as alternate payees under a pension plan can provide a myriad 

of potential benefits to the children, depending on their ages, the date of the participant’s 

disability, retirement, or death, and the participant’s marital status.” Id. Thus, the court 

distinguished the effectiveness of a QDRO entered against surviving spouse annuities regulated 

by 29 U.S.C. § 1055 and other pension benefits that are not § 1055 surviving spouse annuities. 

 The Tise court also drew a distinction between a participant’s pension benefits, which 

were at issue before the court, and surviving spouse benefits pursuant to 29 U.S.C. § 1055: 

Whether a QDRO issued after a plan participant’s retirement may 

affect the distribution of surviving spouse benefits pursuant to 29 

U.S.C. § 1055 implicates statutory provisions and policy 

considerations other than those here applicable. See [Hopkins, 105 

F.3d at 156-57]; Rivers v. Central & South West Corp., 186 F.3d 

681, 683-84 (5th Cir. 1999). We therefore leave to a case 

concerning § 1055 the determination whether, as Hopkins and 

Rivers determined, the plan participant’s retirement cuts off a 

putative alternate payee’s right to obtain an enforceable QDRO 

substituting the alternate payee for the surviving spouse with 

regard to statutory surviving spouse benefits. 

Tise, 234 F.3d at 422 n.6. 
- 24 - 

 In the Commonwealth, it is well established that “‘property rights and interests [become] 

vested in the parties when they [agree] upon them, set them forth in a valid separation agreement, 

and [have] them incorporated into their final divorce decree.’” Irwin, 47 Va. App. at 294, 623 

S.E.2d at 441 (quoting Himes v. Himes, 12 Va. App. 966, 970, 407 S.E.2d 694, 697 (1991)). 

“Such an agreement creates vested property rights in the parties by virtue of the judicial sanction 

and determination of the court” and constitutes “a final adjudication of the property rights of the 

parties” to the divorce action. Shoosmith v. Scott, 217 Va. 290, 292, 227 S.E.2d 729, 731 

(1976). Thus, the right of the children to the benefits of Mr. Griffin’s 401(k) Salaried Savings 

Plan vested when the parties agreed to “name the children of the marriage as co-beneficiaries 

under all 401(k) plans and other such plans which would be distributed upon the death of either 

party.” The QDRO is simply an administrative mechanism to enforce these rights that accrue 

under state law, and federal law has not overridden this mechanism by determining that the 

benefits of a plan excepted from 29 U.S.C. § 1055 vest in the surviving spouse at the 

participant’s death. Thus, the benefit of the Commonwealth’s law has not been pre-empted here. 

III. CONCLUSION 

 Mrs. Griffin’s proposed QDRO meets the specific requirements of 29 U.S.C. 

§ 1056(d)(3). The Salaried Savings Plan escapes application of 29 U.S.C. § 1055, and the 

benefits did not vest in Cowser-Griffin at Mr. Griffin’s death. Therefore, we reverse and remand 

with direction to the circuit court to enter the proposed QDRO. 

Reversed and remanded. 
- 25 - 

Huff, J., dissenting, 

 I respectfully dissent because the Salaried Savings Plan is, as the majority concluded, 

governed by ERISA, which pre-empts state law. Boggs v. Boggs, 520 U.S. 833, 841 (1997) 

(“ERISA’s express pre-emption clause states that the Act ‘shall supersede any and all State laws 

insofar as they may now or hereafter relate to any employee benefit plan . . . .’ [29 U.S.C.] 

§ 1144(a).”).8

 I depart from the analysis of the majority in their conclusion that the “Dominion 

Salaried Savings Plan is . . . excepted by the statutory language” of 29 U.S.C. § 1055(b)(1)(C)(i), 

and is therefore alienable under state law. As suggested by its title, the exception provision of 

§ 1055 relates to retirement plan annuities. The statutory language governing annuities is 

excepted when “the participant’s nonforfeitable accrued benefit . . . is payable in full, on the 

death of the participant to the participant’s surviving spouse.” 29 U.S.C. § 1055(b)(1)(C)(i) 

(emphasis added). Moreover, the concession made by Mr. Griffin’s estate was not that the 

Salaried Savings Plan was exempt from the federal act and therefore was alienable under state 

law. Rather, Mr. Griffin’s estate was asserting that since the benefit is payable to the surviving 

spouse, in a lump sum, the statutory safeguards relating to annuities are not applicable and the 

surviving spouse is protected in the absence of a QDRO or spousal consent.9

 Being excepted 

 8

 The majority maintains that the Boggs decision dealt only with an annuity benefit, but 

the issues in that case, like the one before us, also covered a “lump-sum distribution from the 

[Employer] Savings Plan for Salaried Employees . . . .” Id. at 836. Specifically, in analyzing the 

employee savings plan sums at issue, the Boggs Court noted, “While some individual account 

plans escape § 1055’s surviving spouse annuity requirements under certain conditions, Congress 

still protects the interests of the surviving spouse by requiring those plans to pay the spouse the 

nonforfeitable accrued benefits . . . .” Id. at 843. 

9

 Specifically, Mr. Griffin asserts: 

[E]ven excepted pension plans must specifically require the 

participant’s benefits to be paid to the surviving spouse, absent 

written consent to an alternate payee . . . . [W]hether classified as 

a Joint and Survivor Annuity, a Preretirement Survivor Annuity, or 

simply paid out as benefits under a 401(k) plan such as the 
- 26 - 

from § 1055 does not mean that the benefit is exempted from the policy or provisions of ERISA. 

Boggs, 520 U.S. at 843. 

 Mr. Griffin was employed by Dominion Virginia Power at the time of his divorce and 

until his death on May 26, 2012. Griffin was obligated, by the terms of the Griffin DRO, to 

name his two children as co-beneficiaries under any 401(k) and other similar plans. As part of 

his employment benefits, he participated in a pension plan, the Dominion Power Pension Plan, 

and a 401(k) type of plan, the Dominion Salaried Savings Plan. Griffin, however, did not 

comply with the terms of the Griffin DRO by naming his children as co-beneficiaries of any 

retirement benefits. Rather, when he remarried after his divorce from appellant, he named his 

new wife, Kimberly Cowser-Griffin (“Cowser-Griffin”), as the primary beneficiary and named 

his children as contingent beneficiaries. In the trial court, appellant requested a QDRO to 

enforce the terms of the Griffin DRO as applied to the Dominion Salaried Savings Plan. 

 As an employee benefit plan, the Plan is governed by the Employee Retirement Income 

Security Act (“ERISA”) and Dominion’s plan documents.10 Dominion’s plan documents 

provide the specific payout method employed by the Plan Administrator to distribute benefits, 

requiring that the surviving spouse receive the funds unless written spousal consent is obtained 

prior to retirement or death. The Plan Administrator may deviate from this payout method only 

in response to a QDRO. 

 

Dominion Salaried Savings Plan, ERISA provides that all pension 

plan benefits are payable to the surviving spouse upon the death of 

the plan participant, absent written consent of that spouse to a 

different election by the participant . . . . Thus, the Salaried 

Savings Plan requires distribution to a surviving spouse unless a 

completed, signed and notarized consent is returned to the plan 

administrator before the plan participant’s death. 

10 All parties concede that the Plan is an employment benefit plan or “pension plan” 

governed by ERISA. 
- 27 - 

 Fourteen years after the Griffin DRO was entered and approximately three months after 

Griffin’s death, appellant filed a motion in the trial court seeking to reinstate the prior divorce 

proceedings and enter the proposed Griffin QDRO, preserving the beneficiary status for her 

children under the Plan. Prior to this motion, neither appellant nor her children had notified the 

Dominion Plan Administrator of any alleged interest in the benefits outlined in the Griffin DRO. 

Additionally, Cowser-Griffin did not provide spousal consent for any change in beneficiaries 

prior to Griffin’s death. On May 6, 2013, the trial court denied appellant’s motion, holding that 

the Plan’s retirement benefits vested entirely in Cowser-Griffin as the designated beneficiary and 

surviving spouse under the Plan at Griffin’s death. 

 “In determining whether the trial court made an error of law, ‘we review the trial court’s 

statutory interpretations and legal conclusions de novo.’” Rollins v. Commonwealth, 37 

Va. App. 73, 78-79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth, 28 

Va. App. 187, 193, 503 S.E.3d 233, 236 (1998)). 

 On appeal, appellant contends that the trial court erred by denying her motion for entry of 

a qualified domestic relations order seeking to reinstate her children’s beneficiary status as 

required under the Griffin DRO. Specifically, she asserts that her children’s rights vested when 

the trial court entered the Griffin DRO; thus, the entry of a posthumous QDRO would enforce 

rights that vested prior to Griffin’s death. In support of her assertion, she argues that because 

ERISA stipulates no deadline for a QDRO’s entry after a plan participant’s death, ERISA 

impliedly authorizes posthumous QDROs. She also states that the entry of a posthumous QDRO 

would not impair the Plan’s administration because the Plan benefits are distributed in a lump 

sum to the beneficiaries, as opposed to an annuity payment. Alternatively, she argues that this 

Court should characterize the Griffin DRO as a QDRO and enter it nunc pro tunc to the date of 

the trial court’s entry of the Griffin DRO. Cowser-Griffin intervened on behalf of the Estate of 
- 28 - 

David Griffin and argues that her rights to the benefits vested upon Griffin’s death because she 

was the surviving spouse and did not consent to any assignment of benefits. Accordingly, she 

asserts that the entry of a posthumous QDRO would divest her right as the surviving spouse. She 

also argues that this Court should not consider the Griffin DRO to be a QDRO and enter it nunc 

pro tunc because of its failure to conform to statutory requirements. 

 ERISA’s purpose is “to ensure the proper administration of pension and welfare plans, 

both during the years of the employee’s active service and in his or her retirement years.” 

Boggs, 520 U.S. at 839. To effectuate this administration, ERISA implemented a preemption 

mandate, “supersed[ing] any and all State laws insofar as they may now or hereafter relate to any 

employee benefit plan” governed by ERISA. 29 U.S.C. § 1144(a) (2006). Although ERISA 

requires that “benefits provided under the plan may not be assigned or alienated,” 29 U.S.C. 

§ 1056(d)(1), the Retirement Equity Act of 1984 (“REA”), Pub. L. 98-397, 98 Stat. 1426, 

amended ERISA to allow designation of a beneficiary other than the surviving spouse in two 

narrow circumstances: first, pursuant to a QDRO, 29 U.S.C. § 1056(d)(3)(A), and second, 

through spousal consent, 29 U.S.C. § 1055(c)(2)(A). 

 A DRO is defined as “any judgment, decree, or order (including approval of property 

settlement agreement) which . . . relates to the provision of child support, alimony payments, or 

marital property rights to a spouse, former spouse, child, or other dependent of a participant.” 

29 U.S.C. § 1056(d)(3)(B)(ii)(I). Conversely, a DRO is deemed to be a “qualified” DRO when it 

“creates or recognizes the existence of an alternate payee’s rights to, or assigns to an alternate 

payee the right to, receive all or a portion of the benefits payable with respect to a participant 

under a plan,” and it meets certain substantive and specificity requirements. 29 U.S.C. 

§ 1056(d)(3)(B)(i). It is the responsibility of the Plan Administrator “after receipt of [a DRO], 

. . . [to] determine whether such order is a qualified domestic relations order and notify the 
- 29 - 

participant and each alternate payee of such determination.” 29 U.S.C. § 1056(d)(3)(G)(i)(II).11 

A QDRO must meet the following substantive requirements: 

(i) does not require a plan to provide any type or form of benefit, 

or any option, not otherwise provided under the plan, 

(ii) does not require the plan to provide increased benefits 

(determined on the basis of actuarial value), and 

(iii) does not require the payment of benefits to an alternate payee 

which are required to be paid to another alternate payee under 

another order previously determined to be a qualified domestic 

relations order. 

29 U.S.C. § 1056(d)(3)(D)(i)-(iii). Moreover, a QDRO must clearly specify: 

(i) the name and the last known mailing address (if any) of the 

participant and the name and mailing address of each alternate 

payee covered by the order, 

(ii) the amount or percentage of the participant’s benefits to be 

paid by the plan to each such alternate payee, or the manner in 

which such amount or percentage is to be determined. 

(iii) the number of payments or period to which such order applies, 

and 

(iv) each plan to which such order applies. 

29 U.S.C. § 1056(d)(3)(C)(i)-(iv). 

 In addition to allowing assignments of benefits pursuant to a QDRO, the REA further 

“enlarged ERISA’s protection of surviving spouses” under § 1055, Boggs, 520 U.S. at 843, by 

requiring that before a plan participant could designate a beneficiary other than his or her spouse, 

the spouse had to provide written consent, 29 U.S.C. § 1055(c)(2)(A)(i)-(iii).12 Section 1055 

applies to all individual account plans unless the plan can meet certain requirements for 

exemption. Boggs, 520 U.S. at 841 (“Congress’ concern for surviving spouses is also evident 

 11 Additionally, § 1056(d)(3)(H)(i) states that a DRO may be determined a QDRO by “a 

court of competent jurisdiction.” 

12 A spouse properly waives his or her surviving spouse beneficiary designation only 

when “the spouse of the participant consents in writing to such election, such election designates 

a beneficiary (or form of benefits) which may not be changed without spousal consent . . . , and 

the spouse’s consent acknowledges the effect of such election and is witnessed by a plan 

representative or a notary public.” Id. 
- 30 - 

from the expansive coverage of § 1055, as amended by REA . . . [which] appl[ies] to all 

‘individual account plans’ and ‘defined benefit plans.’ The terms are defined, for § 1055 

purposes, so that all pensions plans fall within those two categories.”). Individual account plans 

are exempt from § 1055 if “such plan[s] provide[] that participant’s nonforfeitable accrued 

benefit . . . is payable in full, on the death of the participant, to the participant’s surviving spouse 

(or, if there is no surviving spouse or the surviving spouse consents in the manner required under 

subsection (c)(2) of this section, to a designated beneficiary).” 29 U.S.C. § 1055(b)(1)(C)(i) 

(emphasis added).13 In other words, if spousal consent is not properly obtained, the individual 

account plan fails to meet the exemption’s requirements, and accordingly, falls within § 1055’s 

expansive coverage over individual account plans. In accordance with these guidelines, the plan 

documents in this case require that the surviving spouse receives the distribution unless spousal 

consent to a change in the beneficiary designation is obtained prior to death.14

 The central inquiry in this case is whether the beneficiary rights to the Plan vested at the 

trial court’s entry of the Griffin DRO or when the benefits became payable upon Griffin’s death. 

 13 The majority suggests that the Plan meets this exception requirement of § 1055 as an 

individual account plan because the Plan distributes via a lump sum rather than an annuity 

payment. Subsection 1055(b)(1)(C)(i), however, requires not only a lump sum payout, but also 

specifically requires spousal consent to designate a non-spouse beneficiary. 

14 Under the subheading “Death Benefits,” the plan documents stipulate, 

Federal law requires that, if you are married when you die, your 

spouse must receive the distribution unless she or he approved 

your choice of another (or an additional) beneficiary before your 

death. Your spouse must agree to your choice of that beneficiary 

by signing the spousal consent portion of a Beneficiary 

Authorization form obtained from ACS. The form must have been 

completed, signed, notarized, and returned to ACS before your 

death. 

(Emphasis in original). Additionally, the plan documents only permit the Plan Administrator to 

pay distributions deviating from this designation “in response to a Qualified Domestic Relations 

Order.” 
- 31 - 

Indeed, vesting is the threshold question to whether a posthumous QDRO would be appropriate 

in this case because if in fact Cowser-Griffin’s rights vested at Griffin’s death, then a 

posthumous QDRO would divest her of the benefits to which she was entitled. Although the 

vesting point of surviving spouse’s benefits under ERISA is a case of first impression for this 

Court, this Court should follow the long line of precedent, including the Fourth Circuit and 

ERISA’s own provisions, which provide that a surviving spouse’s benefits are vested at the time 

of the participant’s death. 29 U.S.C. § 1055(c)(1)(A)(i), (7)(B); Hopkins v. AT&T Global Info. 

Solutions Co., 105 F.3d 153, 156-57 (4th Cir. 1997).15 

 This issue pits Virginia law against ERISA’s guidelines. Under Virginia law, rights vest 

at the entry of the final divorce decree; while under ERISA, rights vest at the plan participant’s 

retirement or death. Compare Himes v. Himes, 12 Va. App. 966, 970, 407 S.E.2d 694, 697 

(1991) (holding that it is well established that “property rights and interests [become] vested in 

the parties when they [agree] upon them, set them forth in a valid separation agreement, and 

[have] them incorporated into their final divorce decree”), with 29 U.S.C. § 1055(c)(1)(A)(i), 

(7)(B) (requiring that a plan participant can only change beneficiary designations via spousal 

consent during the period between when the participant attains age 35 and when the participant 

dies); Hopkins, 105 F.3d at 156-57 (interpreting § 1055 and concluding that the limited time 

period to change beneficiaries under ERISA permanently set the vesting date at either the 

retirement or death of the plan participant), and 29 U.S.C. § 1056(d)(1) and (d)(3) (prohibiting 

alienation of benefits except through a QDRO). Notably, appellant recognizes this fundamental 

dichotomy between Virginia law and ERISA by stating that “the facts in the present case and the 

 15 Hopkins was followed in an unreported Virginia circuit court decision, holding that the 

surviving spouse’s rights vested at the plan participant’s death and that these rights could not be 

divested by the competing claim of an ex-wife’s through a prior DRO. Riley v. Riley, 

No. 132690, 1998 WL 972328, at *3-5 (Va. Cir. Ct. Aug. 14, 1998). 
- 32 - 

plan’s requirement to pay benefits upon the participant’s death to the surviving spouse create a 

clear contest between the rights created in the state court versus the rights granted under the 

[P]lan.” Indeed, appellant’s argument hinges on the conclusion that “[b]ecause the children’s 

rights in the retirement plan vested well before Mrs. Cowser-Griffin had any arguable claim to 

the plan, this case should be decided in favor of the children.” In my view, no convincing 

argument has been provided as to why this Court should apply Virginia’s vesting rule when 

faced with ERISA’s contrary vesting rule and its preemption mandate requiring invalidation of 

any conflicting state law. 29 U.S.C. § 1144(a). Importantly, the Supreme Court of Virginia has 

recognized that “ERISA preempts enforcement of any state law or contractual provision that 

‘relates to’ an ERISA employee benefit plan and conflicts with an ERISA provision.” Brown v. 

Brown by Beacham, 244 Va. 319, 325, 422 S.E.2d 375, 379 (1992) (finding that ERISA allowed 

a notarized signature to constitute spousal consent). 

 In Boggs, the United States Supreme Court recognized that ERISA may at times conflict 

with jurisprudence typically reserved to the states, but nevertheless, insofar as such state law 

conflicts with ERISA, the federal law prevails. Boggs, 520 U.S. at 841 (“We can begin, and in 

this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or 

operates to frustrate its objects. We hold that there is a conflict, which suffices to resolve the 

case.”). Although the United States Supreme Court recognized the historic “central” role of state 

courts in regulating domestic relations matters, id. at 840, the Court by no means granted state 

courts exclusivity, but rather, invalidated the state court’s law simply on the basis of its conflict 

with ERISA, id. at 841. ERISA attempts to promote the efficient distribution of benefits and 

protect the interests and rights of participants and beneficiaries. Cf. Boggs, 520 U.S. at 844-46. 

If ERISA could not preempt state law, then “states [would be] free to change ERISA’s structure 

and balance,” and the goals of ERISA would be thwarted. Id. 
- 33 - 

 Neither federal nor state law supports the entry of a posthumous QDRO to divest a 

surviving spouse’s vested rights to benefits.16 Rather, the direct opposite assertion—that a 

surviving spouse’s vested rights may not be divested by a posthumous QDRO—finds support in 

both federal and state law. 

 The Fourth Circuit considered the question of vesting in Hopkins, holding that a 

surviving spouse’s rights vested at the plan participant’s retirement and could not be divested by 

a post-retirement QDRO. 105 F.3d at 157. In the only reported Virginia case to deal with this 

issue, a Virginia circuit court applied Hopkins’ rationale, held that a surviving spouse’s rights 

vested at the plan participant’s death, and refused to divest the surviving spouse’s vested rights in 

favor of an ex-wife’s alleged rights under a DRO. Riley v. Riley, No. 132690, 1998 WL 

972328, at *3-5 (Va. Cir. Ct. Aug. 14, 1998). Other federal circuits and state courts have 

followed this same line of analysis, refusing to divest the vested rights of a surviving spouse 

when faced with a post-retirement or posthumous QDRO and the plan had no notice of the 

proposed QDRO before the participant’s death or retirement. E.g., Carmona v. Carmona, 544 

F.3d 988, 993 (9th Cir. 2008) (“[A] state DRO may not create an enforceable interest in 

surviving spouse benefits to an alternate payee after a participant’s retirement, because ordinarily 

at retirement the surviving spouse’s interest irrevocably vests.”); Rivers v. Cent. & S.W. Corp., 

186 F.3d 683-84 (5th Cir. 1999) (“[T]he benefits irrevocably vested in the second wife on the 

date of her husband’s retirement, and plaintiff’s failure to obtain a qualified domestic relations 

order . . . prior to her ex-husband’s retirement forever barred her from acquiring any interest in 

 16 Although 29 C.F.R. 253.206(c)(2) provides examples for when a posthumous QDRO 

may be entered after the plan participant’s death, none of the examples involve a competing 

vested claim to the benefits. Indeed, the examples include no situation in which there is a 

competing claim to the benefits. Accordingly, these examples do not address the crucial 

threshold question in this case of vesting and provide no basis for allowing alienation of a benefit 

vested in the surviving spouse. 
- 34 - 

the plan.”); Langston v. Wilson McShane Corp., 828 N.W.2d 109, 116 (Minn. 2013) (“We find 

the reasoning of the Carmona and Hopkins courts to be persuasive and adopt the rule that 

surviving spouse benefits generally vest under ERISA at the time of the plan participant’s 

retirement.”).17

 Here, appellant waited fourteen years to seek a QDRO and at no point did she provide the 

Plan Administrator with any notice of a competing claim to the benefits.18 Under ERISA, 

Cowser-Griffin’s rights to the Plan benefits vested at Griffin’s death. Accordingly, the vested 

rights of Cowser-Griffin cannot be divested through a posthumous QDRO. 

 Similarly, the vesting issue cannot be dodged by finding that the Griffin DRO was a 

QDRO and entering it nunc pro tunc to an earlier date before Griffin’s death.19 The majority has 

correctly observed that the DRO lacked the requisite specificity to be deemed a QDRO. This 

 17 See also Singleton v. Singleton, 290 F. Supp. 2d 767, 772 (W.D. Ky. 2003) (refusing to 

divest a current spouse’s rights when the plan participant retired because “[t]he requirements for 

disenfranchising a current spouse are strictly applied for good and valid reasons”); Stahl v. 

Exxon Corp., 212 F. Supp. 2d 657, 669-70 (S.D. Tex. 2002) (citing the majority of circuits that a 

surviving spouse’s rights vest upon the plan participant’s death and refusing to divest the 

surviving spouse’s rights through a posthumous QDRO). 

18 The Dominion Plan Administrator has already rejected the proposed Griffin QDRO on 

the grounds that it would “requir[e] payment of a portion of the surviving spouse’s survivor 

benefits to another person,” thus violating the substantive requirements of a QDRO which 

provide that the QDRO cannot pay benefits not otherwise available under the Plan. Indeed, if the 

trial court were to enter the proposed Griffin QDRO, the parties would be faced with the Plan 

Administrator’s standing decision to reject the proposed Griffin QDRO and would need to seek 

review the Plan Administrator’s decision for error. 

19 The trial court could not enter the proposed Griffin QDRO nunc pro tunc (as opposed 

to the Griffin DRO) because this action would implicate the threshold question of vesting 

discussed supra. As appellee correctly points out, the exclusion of the posthumous QDRO is not 

simply a matter of timing, but is contingent on the issue of vesting. Accordingly, appellant’s 

only remaining remedy would be for this Court to determine the Griffin DRO to be a QDRO. 

I respectfully disagree with the majority’s suggestion that we need to determine whether 

the proposed QDRO meets the statutory requirements. The issue is whether the existing terms of 

the DRO satisfied the statutory requirement for a QDRO to defeat the vested surviving spouse’s 

claim to the benefits. 
- 35 - 

Court cannot consider the Griffin DRO to be a QDRO because the Griffin DRO fails the 

specificity requirements of a QDRO because it does not list the percentage distribution of 

benefits between the children, the number of payments, or each plan to which it applies. 29 

U.S.C. § 1056(d)(3)(C). Strict compliance with the substantive and specificity requirements is 

required in order for a DRO to qualify as a QDRO, regardless of whether these deviations may 

result in inequitable results. Hawkins v. C.I.R., 86 F.3d 982, 992 (10th Cir. 1996) (holding that 

“to accept anything less than what [the specificity requirements mandate] would contravene the 

Supreme Court’s frequent admonition that courts must not read language out of a statute”). 

 A DRO may be qualified only when it clearly specifies the plans to which it applies and 

the amounts and timing of the payments to be received by each beneficiary. See Metro. Life Ins. 

Co. v. Bigelow, 283 F.3d 436 (2d Cir. 2002) (finding that a DRO could be qualified when it 

clearly specified each plan to which it applied by identifying the plan as the “General Electric 

insurance plan which consists of group life insurance, disability death and insurance”); Steward 

v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1152 (9th Cir. 2000) (finding that a 

DRO could be qualified when it specified that the beneficiary was “to receive ‘one-half of the 

community interest’” in the plan); Metro. Life Ins. Co. v. Marsh, 119 F.3d 415, 422 (6th Cir. 

1997) (finding that DRO could be qualified because it stipulated the percentage distribution to 

the beneficiaries as two-thirds of the plan). Courts require that the specificity requirements be 

met with particularity. See Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 

433 F.3d 1091, 1096-97 (9th Cir. 2006) (finding that a DRO failed the specificity requirements 

for a QDRO because it “does not require any action by the Plans, does not assign death benefits 

to the Children, and does not specify when the payments begin or the amount, calculation, or 
- 36 - 

form of the payments”);20 Bd. of Trs. of Plumbers & Pipefitters Nat’l Pension Fund v. Saxon, 

470 F. Supp. 2d 605, 609 n.5 (E.D. Va.) (finding that a DRO requiring a husband to “keep the 

Wife listed as a beneficiary on the plan” was “extremely vague” and could not be considered a 

QDRO), aff’d in part, vacated in part, 251 Fed. Appx. 155 (4th Cir. 2007). 

 The Griffin DRO fails the specificity requirements because it does not list the amount to 

be paid to the beneficiaries, the number of payments or durational period, nor the specific plans 

to which it applies. Rather, the Griffin DRO is an amorphous requirement that the parties agree 

to “name the children of the marriage as co-beneficiaries under all 401K plans and other such 

plans which would be distributed upon the death of either party.” The lack of specificity is fatal 

to the Griffin DRO. This Court cannot relax the specificity requirements because to do so would 

defy Congress’s clear requirement that a DRO becomes qualified “only if such order clearly 

specifies” certain requirements. 29 U.S.C. § 1056(d)(3)(C). Indeed, the specificity requirements 

were enacted to protect the Plan Administrator’s ability to efficiently distribute plan benefits. 

Hawkins, 86 F.3d at 992-93. The Griffin DRO provides no such ease of distribution because it 

fails to include the amount payable to each child, when the money is to be paid, nor even the 

specific plans it applies to. 

 In this case state law conflicts with the provisions of ERISA. The federal protection 

afforded to the surviving spouse should prevail because neither a QDRO nor spousal consent 

have been established. 

For the foregoing reasons, I respectfully dissent. 

 20 The Ninth Circuit additionally held that besides specificity, in order for a QDRO to 

divest a surviving spouse of her rights, the proposed QDRO had to assign rights to a former 

spouse, rather than to children. Id. at 1104. This specific approach has not been adopted in the 

Fourth Circuit nor in Virginia courts, and is an unnecessary complication of the specificity 

requirements and interpretation of § 1056(d)(3)(C)(i)-(iv). This Court need not reach this 

rationale because the Griffin DRO is not valid as a QDRO because it fails the specificity 

requirements.