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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Senior Judge Coleman Argued at Richmond, Virginia

CHARLES H. BAKER v. Record No. 2080-01-2 OPINION BY JUDGE JAMES W. BENTON, JR. JUNE 4, 2002

MILDRED B. BAKER

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY Thomas V. Warren, Judge Emmet D. Alexander (Gates & Alexander, PLC, on brief), for appellant. (John H. Click, Jr.; Blackburn, Conte, Schilling & Click, P.C., on brief), for appellee. Appellee submitting on brief.

The sole issue raised by this appeal is whether the qualified domestic relations order (QDRO) is consistent with the final decree of divorce. We hold that it is not, and we reverse

the order and remand for entry of a proper QDRO. I. On July 24, 2000, Mildred B. Baker was divorced from her husband, Charles H. Baker, by a final decree that affirmed, ratified, and incorporated their property settlement agreement. In pertinent part, the agreement contained the following provision concerning the husband's Philip Morris profit sharing plan:

Husband and wife have divided between themselves to their mutual satisfaction all intangible marital personal property. The wife shall have one-half of husband's profit sharing from [Philip] Morris, valued as of the date of this agreement. The wife shall have her retirement, profit sharing, and any proceeds in her separate bank account. The husband shall retain the remaining one-half of his profit sharing at [Philip] Morris. A year later, the wife filed a motion for entry of a QDRO. At a hearing on that motion, the parties agreed, and the trial judge found, that the value of one-half of the profit sharing plan at the date of the agreement was $37,946.93. The wife

contended, however, that she was entitled to receive "gains and losses allocated" to that amount from the date of the agreement. The husband contended that under the agreement the wife was entitled to "a specific amount determined by a very specific date," that the agreement did not provide for an adjustment for gains and losses, and that under Rule 1:1 the decree was final and not subject to modification. After considering these

arguments, the trial judge entered a QDRO which provided that the wife was entitled to receive the following: December 31, 1999. specified date." This appeal followed. II. When a trial judge affirms, ratifies, and incorporates a property settlement agreement into a final decree of divorce, that agreement becomes, "for all purposes . . . a term of the decree, . . . enforceable in the same manner as any provision of such decree." Campbell v. Campbell, 32 Va. App. 351, 356, 528 - 2 "$37,946.93 as of

Gains and losses will be allocated from the

S.E.2d 145, 147 (2000).

"It is well settled that [such an] twenty-

equitable distribution [decree] become[s] final within one days of entry."

Hastie v. Hastie, 29 Va. App. 776, 780, 514 The record reflects that neither party

S.E.2d 800, 802 (1999).

appealed from the final decree of divorce. A trial judge's power to modify a final decree of divorce after the twenty-one day period has expired is limited. Pertinent to the issue raised by this appeal, that power is governed by the following statute: The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to: * * * * * * *

Modify any order . . . intended to affect or divide any pension, profit-sharing or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws, only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order. Code

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