SUPPORT ENFORCEMENT – PENSIONS – USE OF QDRO TO ENFORCE. Less than three months before the Legislature got around to passing this Session a statute authorizing the courts to use a Qualified Domestic Relations Order as a support-enforcement device, a case called Nkopchieu v. Minlend, 59 Va. App. 299, 718 S.E.2d 470 (12/20/11), held that existing law authorized courts to do that anyway. It would not be fair to say that was the judges’ way of telling the General Assembly not to meddle in matters of legal development and public policy, especially as the two branches agreed here. The whole matter would probably have been much simpler and never have arisen, or have been determined years ago, except for the Virginia appellate courts’ dogmatic and doctrinaire approach to the abstract question of whether to characterize an income stream like a pension as income or property. Of course we must remember that the declaration that pensions are property, and other money flow is income, and never the twain shall meet, is what enables the courts to double dip on behalf of non-employee spouses and treat the same money as property in order to divide it in equitable distribution and then order the retired wage earner to pay the rest of it to the ex-wife in alimony and child support, even if it’s now his only income. It’s frequently explained that this is proper because she has two sacred rights of entitlement to that same fund in the hermetically-sealed categories of property and income. This abstraction has perhaps been what confused some trial judges for so long, despite the clear intent of the first pension-division statutes, the federal employee ones, that a judge could order division of the pension for property division purposes or support purposes. The unpronounceable instant case was a rather unusual one, in which this husband had failed to make any of the ordered child support payments, and the wife filed an unsuccessful motion for entry of a QDRO to attach husband’s QDRO proceeds for the sole purpose of paying the child support arrearage. The arrearage had been over $28,000. His retirement account was the only asset available for attachment and the Court of Appeals held that this was a proper remedy, including making the ex-wife an “alternate payee” of the plan’s benefits by QDRO under ERISA, specifically 29 U.S.C. §1056(d)(3)(J, K). Though the trial judge thought his denial was required by Hoy v. Hoy, 29 Va. App. 115, 510 S.E.2d 253 (1999), the Court of Appeals held that neither that case nor any other provisions of Virginia domestic relations law keep circuit courts from granting such a QDRO, and neither does ERISA. The appellate judges distinguish Hoy as an attempt to reopen a divorce case that had already been filed for over 20 years to enter a QDRO against a retirement account that did not even exist at the time of the divorce. Perhaps more interesting in Nkopchieu v. Minlend was the father’s argument that the mother’s rquest was precluded by a premarital agreement in which she expressly disavowed any property interests in husband’s retirement assets. Her counsel argued that ERISA allows the court to enter a QDRO for the two separate purposes of property division and support, and that she was not looking for property division at all in this instance, but invoking the second purpose of the QDRO in addressing child support use of a retirement account. The marital agreement in fact provided too that “nothing in this agreement shall be construed as limiting the right of either party to make claims for child support,” and the mother said she was simply pursuing a claim for the arrears of unpaid child support. She was trying to enforce her children’s rights to support through a garnishment-like process, and not to establish new property rights for herself. And mother’s counsel argued that this woman could have enforced a judgment against a debtor even if she had never been married to this man. Indeed, the Court of Appeals says, it is established Virginia law that the obligation of child support is owed to the child, not the mother. What the mother does when she sues is act as a “conduit” for the payment of support to the children. True, ERISA does say that retirement funds cannot be assigned or alienated, but this prohibition, the Court of Appeals says, does not apply when a state domestic relations order is determined to be a qualified one under 29 U.S.C. 29 U.S.C. §1056 (d)(3). QDROs are an exception to the alienation and assignment provision. Section 20-107.2, the court says, authorizes making fathers pay their child support obligations. The court said it could not reach the question of whether the mother’s draft QDRO actually qualified as one under ERISA’s “technical” requirements about the contents of such orders, because the trial judge never reached those questions in the trial below. It was remanded to give him an opportunity to do so.