Court of Appeals Rules that VRS is not Liable for Benefits Under Divorce Decree
The Court of Appeals issued three published opinions today, and while the two criminal appeals will have some interest for those involved in criminal cases, an administrative law appeal, usually to Ho-Hum of appellate decisions, will have a HUGE impact on Domestic Relations practice.
Let's get right to it with Virginia Retirement System v. Joan S. Shelton, which will seem like a heartless and cruel result, but in fact anyone with a bit of administrative law knowledge should have seen coming . . . including Shelton's attorney (to be fair, the trial judge should have seen it too). The underlying facts involve a fairly common issue in divorce proceedings, the division of future pension benefits. Shelton's husband was an employee of a municipal utility agency which was a participant in the Virginia Retirement System (VRS). The couple was married from 1958 to 1997, and as part of their divorce decree, Mr. Shelton was required to provide 1/2 of his benefits to his wife and elect a survivor option assuring that she would receive benefits if he predeceased her.
[Now, your correspondent is a VRS participant and is currently receiving benefits, so a disclaimer is in order -- while I happen to agree with the Court's judgment in this case, my decision was not at all influenced by my concern for the continued solvency of the VRS.]
Reading the first few paragraphs of the opinion, my reaction was "uh oh, somebody did a terrible job drafting the order that split the pension" and I assumed this appeal was going to be about how Mr. Shelton hoo-dooed his ex. As the Court explains in its opinion, VRS does not have a single standard survivor plan for pensions. Rather, the participant can designate that the survivor get 100% of the pension, 50%, or some variable amount which the employee choses. The greater the survivor's share, the lower the monthly pension. Because the pension order did not specify what percentage Shelton was to get if she survived her husband, I assumed that Mr. Shelton selected the most favorable option for getting a big monthly check, and leaving his ex as little as possible if he died first. Well, I was half right. He did make certain that he would get the biggest possible check . . . but he did so by not designating any survivor portion for his ex.
Fast forward 20 years to Mr. Shelton's passing in 2019. The month after his death, Shelton receives her last check from VRS because there was no survivor's option. Shelton naturally objected, stating that VRS was required to follow the court's order and provide her with survivor's benefits, and after some tussling with the Administrative Process Act procedures, in which VRS conceded that it hadn't "caught" Mr. Shelton's failure to follow the order and therefore had not advised Shelton which was normally its "policy" in such cases, this issue was presented to the Richmond Circuit Court, which has the unfortunate responsibility of hearing all appeals involving state agencies and the APA. The court agreed with Shelton that the divorce court's order required VRS to pay Shelton a survivor's benefit.
The Court of Appeals reverses the judgment of the circuit court today in an opinion from Judge Malveaux joined by Chief Judge Decker and Judge AtLee. The Court's reasoning is as sound as it is heartless and cruel, except that as I already said, it should have been expected and, therefore, it's not really heartless or cruel, it's just how the law works. Put simply, the order requiring Mr. Shelton to elect the survivor option when obtaining his pension applied to Mr. Shelton, not to VRS. While it is true that VRS had a duty under its policies to inform Shelton that her ex-husband had not followed the order, it had no power to disregard the election made by Mr. Shelton. Indeed, the Court points out that the specific language of Code § 20-107.3(G)(2), which applies to survivor's benefits from retirement plans, directs that a party may be required to make such election, where as Code § 20-107.3(G)(1), which applies to division of pension payments, authorizes the court to direct the payor to make payments to the ex-spouse.
This is an important distinction, because it shows that the General Assembly could have required the payor, in this case VRS, to enforce the survivor option against the direction of the employee had it chosen, but instead it only gave the power to order the employee to make the election. Thus, while Mr. Shelton was in violation of the order by not making the election for some survivor benefit, VRS was neither required, nor did it have the authority, to disregard the election made.
Now, what about VRS's admitted failure to inform Shelton that her husband done did her wrong? Well, it turns out that the policy of advising the wronged spouse was more what you'd call guidelines than actual rules.
Yes, it turns out that VRS did not have an actual regulation requiring it to notify the ex-spouse of an improper election, so its failure to do so, while regrettable, does not give Shelton any solace.
Now, let's discuss the implications of this opinion for VRS -- I think it is fair to say that VRS will consider making that "guideline" into an actual regulation, or at least trying to do a better job of advising ex-spouses that they may need to issue a show cause against the hoo-dooing retiree. And what of domestic relations attorneys? Two important lessons and one suggestion:
First, if a pension has more than one survivor's option, make sure that you specify what option the retiring ex-spouse must select, and
Second, make sure that you client knows to follow-up to make sure the election was made, and
Third, start lobbying the legislature to amend Code § 20-107.3(G)(2) to allow the courts to order that the pension plan make the election automatically.
And now we move on to the two criminal cases. First up is Eric Marvin Laney v. Commonwealth of Virginia. Laney pled guilty to distribution of fentanyl, third offense, in violation of Code § 18.2-248(C), which means a pretty hefty sentence, so the Commonwealth agreed that the maximum sentence would be 25 years of active time and that Laney could argue for a lesser sentence. The court sentenced Laney to 50 years with 25 years suspended. According to Laney, that sentence was "unreasonably high and arbitrary" and influenced by an improperly admitted victim impact statement and the court's failure to apply an "accommodation reduction."The Court, Judge O'Brien joined b Chief Judge Decker and Sr. Judge Haley, makes swift work of all these.
The facts are all too common, Laney supplied fentanyl to Samantha Rigdon. Rigdon was subsequently discovered suffering from an overdose by her six-year-old son. Rigdon died as a result of the overdose. The Commonwealth sought to introduce a victim impact statement from the child's grandmother, Rigdon's mother. Laney objected that she did not meet the definition of a "victim" under Code § 19.2-11.01(B). The Court of Appeals rejects this argument because under Rock v. Commonwealth, 45 Va. App. 254 (2005), the trial court had the discretion to admit the statement even if the mother did not fall within a specified category under the Act.
The Court also rejected Laney's assertion that he should have received the benefit of an "accommodation" reduction. The evidence presented by the Commonwealth proved that Laney obtained the drugs for Rigdon using money which she provided him and that he kept part of the drugs for himself. This was sufficient proof of his intent to profit from the transaction to negate the claim of accomodation.
Finally, the Court rejects Laney's claim that the sentence was excessive. The plea agreement only required that the court impose no more than 25 years as an active sentence and that is what he received. Given that the maximum sentence could have been life imprisonment, the 50 year total sentence was not arbitrary or an abuse of the court's discretion.
Finally, we have Dilliraj Bista v. Commonwealth of Virginia, which involves a jury conviction for sodomy of a child under the age of thirteen years by a person eighteen years of age or older and aggravated sexual battery. This appeal is notable only for the Court's decision, as an issue of first impression, that Code § 19.2-268.3 does not condition the admission of out-of-court statements by children on a determination that the child witness is competent to testify. If you are not familiar with this statute, it was first enacted in 2016 and extensively revised in the 2021 Special Session. Thus far it has had limited review by the appellate courts, and this is the first opinion dealing with the expanded scope enacted in 2021.
The circuit court ruled that the child victim was not competent to testify. The Commonwealth then sought to be permitted to introduce statements she had made to teachers, relatives and other persons about the sexual abuse. Bista contended that because the child had been found to be incompetent, these states were de jure not trustworthy. The circuit court disagreed, and the Court of Appeals, Sr. Judge Annunziatta joined by Judge O'Brien, affirm, finding that nothing in the statute requires that the child declarant be competent to testify. The decision to allow admission of the out-of-court statements is what leads to a partial dissent from Judge Lorish. The majority finds that the admission of a 75-minute forensic interview on video did not violate Laney's Confrontation Clause rights, and even assuming that it did, the error was harmless, but Judge Lorish disagrees. Expect a petition for rehearing en banc or appeal to the Supreme Court on this issue.
The Court's decision on a few other issues was unanimous. Specifically, the Court held that the trial court properly rejected two of Bista's proposed jury instructions because they created a risk of confusing or misleading the jury and analternative instruction fairly covered the same issues. Similarly, the Court held that the trial court did not err in limiting Bista's counsel from arguing that the because the victim had been found to be incompetent to testify, he could only inform the jury that this was the reason for her absence, but not assert that this determination impacted the credibility of her out-of-court statements.