CourtListener opinion 1066315

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Lemons and
 Senior Judge Duff
Argued at Alexandria, Virginia

R. KEITH HASTIE
 OPINION BY
v. Record No. 0958-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
 JUNE 1, 1999
ELLEN D. HASTIE

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
 Thomas S. Kenny, Judge

 David D. Masterman (Condo & Masterman, P.C.,
 on briefs), for appellant.

 Richard J. Colten (Surovell, Jackson,
 Colten & Dugan, P.C., on brief), for
 appellee.

 R. Keith Hastie (husband) appeals the entry of a qualified

domestic relations order (QDRO), pursuant to Code

§ 20-107.3(K)(4), which he alleges materially increased the

amount to be paid from his pension to Ellen D. Hastie (wife).

Husband contends on appeal that the QDRO effected a substantive

change to the divorce decree and, under Rule 1:1, the trial

court did not have the authority to modify the decree. For the

reasons that follow, we reverse and remand the case to the trial

court for entry of a proper QDRO in accordance with the

provisions of Code § 20-107.3(K)(4).
 I.

 A final decree of divorce entered on February 28, 1988 set

forth a payment scheme by which husband would pay wife a portion

of the marital share of husband's military retirement pension.

The language of the divorce decree provided the following:

 [Wife] be and she hereby is awarded and
 allocated forty percent (40%) of the marital
 portion of the [husband's] retirement
 pension, said marital portion being sixty
 point one percent (60.1%) of the total
 pension, payable monthly as received, to-
 wit, an award to the [wife] of One Hundred
 Two Thousand Four Hundred Ninety-six Dollars
 and Forty cents ($102,496.40), payable in
 the amount of $575.04 each month until paid
 in full; . . . .

(Emphasis added). The fixed sum of $102,496.40 constituted

wife's share as determined by the trial court, or 40% of

$256,216, the then present value of the marital portion of

the pension.

 Beginning in February 1987, husband paid directly to

wife her share of the pension as ordered by the trial court.

The parties dispute whether husband's payments to wife,

which increased over the years, reflected an intentional

overpayment by husband to reduce the fixed sum award or a

cost-of-living increase. Husband alleged that his payments

from February 1987 through March 1996 consisted of the

court-ordered $575.04 per month plus any additional amounts

he chose to pay in order to retire the debt sooner. Wife

alleged that husband's payments increased over the years to
 - 2 -
 reflect the 40% of the marital share of his monthly

installments, which included normal cost-of-living

increases.

 In March 1996, wife submitted the divorce decree to the

Defense Finance and Accounting Service (DFAS), which

administers the military retirement program. She sought and

began receiving direct payment from DFAS of her share of

husband's retired pay in the amount of $575.04 per month.

In December 1996, husband moved the trial court for the

entry of an order pursuant to Code § 20-107.3(K)(4) to

conform its terms to the express intent of the final decree

to allow wife to receive a total of $102,496.40 and no more.

Consequently, wife also moved the trial court for a

\clarifying order\" specifying her entitlement to the decreed