A mother could attach a father’s federal retirement account to collect a child support arrearage, the Virginia Court of Appeals said today.
It did not matter that the mother had waived any personal interest in the retirement account in a premarital agreement, the appellate panel said. In Nkopchieu v. Minlend, the panel reversed an Alexandria trial court decision that rejected the mother’s request for a Qualified Domestic Relations Order to pursue the $28,000 arrearage for the couple’s two children.
Citing Hoy v. Hoy,the father’s lawyer argued the mother could not “recast” her child support claim into a circumstance for entering a QDRO.
Judge Randolph A. Beales said the father had “completely ignored and frustrated the trial court’s child support orders” and had apparently left the country. The retirement account was the mother’s only means of obtaining support. The panel rejected the trial court’s ruling that Hoy prevented it from entering a QDRO to satisfy the child support arrearage.
Beales emphasized that the mother sought to vindicate the children’s right to child support, not any personal property right that might have accrued to the mother during the parties’ marriage. The mother asked for a QDRO while the divorce proceedings were active; she was not trying to reopen a case to substantively modify the terms of a divorce decree, as in Hoy.
The appellate court reversed and remanded the case for the trial court to determine whether the mother’s draft QDRO met ERISA technical requirements.
Alexandria lawyers Carolyn M. Grimes and Jessica L. Leischner represented the mother as pro bono counsel for Legal Services of Northern Virginia.
The new decision clarifies a major sticking point in collecting child support, as the Hoy case prevented parents from obtaining child support through QDROs, according to Leischner. The new case happened to involve a married couple, but Leischner thinks dicta in the decision and federal law support use of a QDRO in similar circumstances for unmarried parents.
By Deborah Elkins