Virginia Family Law Appeals

The Perils of Pointless Legalese: "Such" & "Said" Cause Ambiguity & Litigation, But Original Intention Prevails (Probably) (Maybe)

Bryan "he was my guru before he was everyone else's" Garner likes to excoriate the four little S words -- so, such, same and said. They're fine when used in their normal English meanings, but lawyers like to use them as pronouns, adverbs, articles or something. And like actual pronouns, they get inserted in situations where the writer may know what they are meant to refer to, but the text includes multiple words and clauses they might be standing in for. They give the writer a false sense of competence and precision -- if you replace them with words like "the," "this," "that," "the other thing," "that way," etc., it'll be a lot clearer and straightforward-sounding, or else it'll make you realize how clear it isn't, before it's too late.

So it was in Jones v. Jones, Va. Ct. App. Unpublished, July 2, 2019. The separation agreement said:

The parties agree that the Husband currently receives $1,497.00 per month ... for a lump disability-retirement payment. Said amount is not taxable and shall continue for the life of the Husband. Beginning the first day of each month following the date of this Agreement and continuing on the first day of each month thereafter the Husband shall pay to the Wife one-half of such monthly benefit.

So, is "such monthly benefit" eternally the $1,497, or does it refer to the "lump disability-retirement payment," however much it "currently" may be? The answer is that the ex-wife gets half the payment, including any increases in it, but it took Circuit Court and appeals court litigation to win that point. The Court of Appeals did not find that that meaning was simply obvious -- rather, it declared the wording "ambiguous" because “'such monthly benefit,' may be understood in more than one way." It considers three circumstances in order to figure out how to interpret it:

(1) The word "currently" suggests that now it's $1,497, but later it might be something else. "Had the parties intended a fixed amount, they could have simply stated that Brenda would receive $750. Or they could have said Brenda was to receive one-half such amount. Instead, the parties described the benefit and said Brenda was to receive one-half of such monthly benefit. This language indicates that it was the benefit, not the amount, that was to be divided." [Or they could have done it without using "such" again, if they had consulted me or Brian.]

(2) "When husband learned that his benefit would be decreased by $300, he asked former wife to share in the decrease. The fact that former husband asked for the decrease and that former wife was willing to consider it upon production of the pay advice shows that both parties believed that wife was to receive half the benefit rather than a specific sum.

(3) "Husband’s reluctance to show wife how much he was receiving also indicates that he believed she would expect more if she knew his payments had increased."

Order dividing retirement can't be changed to conform to divorce decree and let wife share increase in monthly payments -- Va. Supreme Court

After a divorce, the court is always able to make or revise court orders to carry out the division of retirement that was decided on in the divorce, but not to change, in any way, the substance of what shares of the retirement each spouse gets. That principle is very well known, among those whose business it is to know, but how it should apply to various situations can be controversial. Perhaps never more so than in Jackson v. Jackson, Va. S. Ct. 11/27/19.

The Jacksons' divorce decree said the wife would get 50% of the marital share of a military pension, but it was followed by a separate court order saying that she would get a certain dollar amount. The Supreme Court emphasises that Rule 1:1's protection of the finality of court orders protects the separate retirement-dividing orders themselves, not just divorce decrees. It demonstrates this with a close reading of the enabling statute allowing revision of such orders, Virginia Code § 20-107.3(K)(4).

The Court does not quote from the marital settlement agreement, but the passage it quotes from the decree sounds to me like a fixed percentage award (minus survivor benefit deduction), not a fixed dollar amount:

The decree recited that the pension was already being paid out and that "on the date of separation [it] was paying $3229.28 per month. [Marie] shall receive fifty percent (50%) of the marital share of this pension, and the parties shall use the agreed date of separation of August 16, 2004 in the formula which calculates her share of this pension. . . . [Marie] shall also receive the Survivor’s Benefit of this pension and any and all costs associated with providing the Survivor’s Benefits to her will be deducted from her share of the pension after its allocation between the parties . . . . In the event [Dennis] applies for and receives a disability determination it shall not reduce the entitlements of [Marie] to the amount she is entitled to receive monthly from this pension . . . ."

But simultaneously with the divorce decree, a separate pension-dividing order was signed, saying: “To accomplish the division of the marital property between the parties in accordance” with the decree, Mrs. Jackson “is assigned an annuity in the monthly amount of $1,053.39.” 

The Court of Appeals, which the Supreme Court upholds, held that the language of that order, and Mrs. Jackson's not challenging it at the time, indicated that the overall intent of the divorce decree's language must have been the fixed dollar award in the separate order, and thus it treats her like someone who is coming back years later to try and change the divorce decree itself, not the mere implementing order -- but also that the implementing order "therefore controlled to the extent there were any differences between it and the decree".

The Supreme Court does not disagree, but it puts more emphasis on the implementing order itself being protected from any fundamental change, despite the statute, or rather because of the statute's final, limiting clause:

K. 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: ... 4. Modify any order entered in a case filed on or after July 1, 1982, 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.

So the only two purposes for which the order can be changed are (1) to make an order qualify as an order that the retirement plan will implement and the IRS will recognize, or (2) to conform it to effectuate its own intent, not the intent of some other order, such as the divorce decree.

Well, they've got a point there. Until Jackson, the courts had been fairly lenient about redoing QDROs to effectuate the Equitable Distribution award, which is clearly the overall purpose of subsection K of the Equitable Distribution code section. But looking at how K(4) is phrased, the only way around Jackson would be to cite K's sweeping scope and that (4) is merely part of an "including" list -- "make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including ...". But Jackson shows a marked preference to closely read the subordinate part as a guide to the meaning of the whole, instead of vice-versa, so I think any relief will more likely come from the legislature than from the courts.

Probably, when the legislature enacted K(4), they weren't thinking about pension-dividing orders that were already separate from divorce decrees, so they were assuming that they were letting courts carry out the expressed intent of Equitable Distribution awards. But as the Supreme Court notes, in Virginia we don't consider legislative history:

Our primary objective is to ascertain and give effect to legislative intent, as expressed by the language used in the statute. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. And if the  language of the statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) ... . “When a statute is clear and unambiguous, [we] may look only to the words of the statute to determine its meaning. [We] may not consider rules of statutory construction, legislative history, or extrinsic evidence.” Eberhardt v. Fairfax Cnty. Emps’ Ret. Sys. Bd. of Trs., 283 Va. 190, 194 (2012) ... . However, “it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal."