Jackson H. Gerwe v. Judith Gerwe ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Alexandria, Virginia
JACKSON H. GERWE
v. Record No. 0860-95-4 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
JUDITH GERWE JANUARY 16, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard J. Jamborsky, Judge
Peter M. Fitzner (Shoun & Bach, P.C., on
briefs), for appellant.
Morgan Brooke-Devlin, for appellee.
On appeal from a final decree granting his wife, Judith
Gerwe, a divorce, Jackson H. Gerwe contends the trial court erred
(1) in granting the divorce on the ground of desertion, (2) in
determining the equitable distribution award, (3) in awarding
spousal support to Ms. Gerwe, and (4) in requiring him to pay the
cost of a survivor benefit for Ms. Gerwe under his pension plan.
We affirm in part and reverse in part.
Mr. and Ms. Gerwe were married on October 27, 1962. The
only child of the marriage is emancipated. Mr. Gerwe is a
retired employee of AT&T. Ms. Gerwe operates a small craft
business from her home. Throughout the marriage, Mr. Gerwe
supported Ms. Gerwe and made the majority of the monetary
contributions to the marriage.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In November 1992, Mr. Gerwe left the marital residence
without telling Ms. Gerwe and moved in with another woman. He
never returned. Prior to his leaving, the parties had no
physical relationship for eighteen years and no social
relationship for twenty-two years. Ms. Gerwe hired investigators
to locate her husband, without success.
On June 7, 1993, Ms. Gerwe filed suit for divorce on the
ground of desertion. After attempts to effect service on Mr.
Gerwe were unsuccessful, the trial court entered ex parte orders
on October 15 and 29, 1993, freezing Mr. Gerwe's assets, awarding
Ms. Gerwe $3,100 per month spousal support pendente lite and
$5,000 in attorney's fees, and garnishing Mr. Gerwe's pension in
the amount of $4,884.
In November 1993, Mr. Gerwe appeared specially to contest
the trial court's jurisdiction. Because it lacked in personam
jurisdiction over Mr. Gerwe, the trial court vacated the orders
granting spousal support and attorney's fees. However, the trial
court ruled that it had jurisdiction to freeze Mr. Gerwe's assets
and did not vacate that provision.
The commissioner in chancery found that Mr. Gerwe deserted
Ms. Gerwe on November 30, 1992, and recommended that Ms. Gerwe be
granted a divorce on that ground. The trial court approved this
finding and on March 24, 1995, entered a final decree awarding
Ms. Gerwe a divorce on the ground of desertion. The decree
awarded her the entire marital share of the marital home, a
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$53,032 monetary award, $288 a month in spousal support, $10,000
in attorney's fees, 35.6 percent of Mr. Gerwe's AT&T pension, and
required Mr. Gerwe to pay the cost of providing that Ms. Gerwe's
share would survive for her lifetime.
First, Mr. Gerwe contends that the trial court erred in
awarding Ms. Gerwe a divorce on the ground of desertion. He
argues that he did not desert her, but that their separation was
by mutual agreement. He argues that even if his departure was
not specifically by agreement, their marriage was "dead."
A legally recognizable event is necessary to dissolve a
marriage. "One spouse is not legally justified in leaving the
other spouse simply because the marital relationship has
gradually broken down." Pillow v. Pillow, 13 Va. App. 271, 276,
410 S.E.2d 407, 410 (1991). "Desertion occurs when one spouse
breaks off marital cohabitation with the intent to remain apart
permanently, without the consent and against the will of the
other spouse." Barnes v. Barnes, 16 Va. App. 98, 101, 428 S.E.2d
294, 297 (1993). The evidence supports the finding that Mr.
Gerwe made a unilateral decision to leave home. Ms. Gerwe did
not know his whereabouts and was unable to locate him, even with
the help of investigators. We find no error in the trial court's
award of the divorce on the ground of desertion.
Second, Mr. Gerwe contends that the trial court erred in
determining the equitable distribution award 1) by making a
$53,032 monetary award to Ms. Gerwe and 2) by awarding Ms. Gerwe
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the entire marital share of the parties' marital home. Mr. Gerwe
argues that the trial court did not comply with Code § 20-107.3
in making the monetary award, that it punished him for leaving
the marriage, and that the award is not reconcilable with the
facts. He argues that because the trial court did not find that
he had wasted marital assets, it erred in considering his
leaving, secreting himself, and taking money post-separation in
fixing the monetary award. He argues that "[c]ircumstances that
lead to the dissolution of the marriage but have no effect upon
marital property or its value are not relevant to determining a
monetary award and need not be considered." Marion v. Marion, 11
Va. App. 659, 664, 401 S.E.2d 432, 436 (1991) (citation omitted).
We will not reverse an equitable distribution award
"[u]nless it appears from the record that the chancellor has
abused his discretion, that he has not considered or has
misapplied one of the statutory mandates, or that the evidence
fails to support the finding of fact underlying his resolution of
the conflict of the equities. . . ." Smoot v. Smoot, 233 Va.
435, 443, 357 S.E.2d 728, 732 (1987). We find no abuse of
discretion in the equitable distribution award. The trial court
considered the factors set forth in Code § 20-107.3(E) and
applied them to the facts, taking into consideration specifically
that Mr. Gerwe deserted Ms. Gerwe, that he secreted himself, and
that he deprived her of support. A trial court when considering
the statutory factors of Code § 20-107.3(E) "is not required to
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quantify the weight given to each, nor is it required to weigh
each factor equally, though its considerations must be supported
by the evidence." Marion, 11 Va. App. at 664, 401 S.E.2d at 436.
The evidence supports the trial court's award of the marital
share of the marital residence to Ms. Gerwe and the $53,032
monetary award.
Third, Mr. Gerwe contends that the trial court erred in
awarding spousal support to Ms. Gerwe. He argues that the trial
court failed to apply Code § 20-107.1 properly. We disagree.
"[I]n awarding spousal support, the trial court 'must
consider the relative needs and abilities of the parties.'"
Mosley v. Mosley, 19 Va. App. 192, 197, 450 S.E.2d 161, 164
(1994) (citation omitted). "When a [trial] court awards spousal
support based upon due consideration of the factors enumerated in
Code § 20-107.1, as shown by the evidence, its determination
'will not be disturbed except for a clear abuse of discretion.'"
Huger v. Huger, 16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993)
(citation omitted). The trial court found 1) that Ms. Gerwe had
an income of between $1,000 and $3,000 a year, while Mr. Gerwe
had a yearly pension income of $28,115.28, 2) that Mr. Gerwe had
made the majority of financial contributions to the marriage, but
Ms. Gerwe had made the majority of non-monetary contributions,
and 3) that Mr. Gerwe deserted Ms. Gerwe and then secreted
himself, leaving her without support. These findings are
supported by the evidence and justify the award of spousal
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support to Ms. Gerwe.
Fourth, Mr. Gerwe contends that the trial court abused its
discretion in requiring him to pay the cost of converting Ms.
Gerwe's share of his pension to a benefit that will survive for
her lifetime. He argues that this increased cost will accrue to
her more than fifty percent of the marital share of his pension,
in violation of Code § 20-107.3(G). We agree.
Code § 20-107.3(G) provides, in pertinent part:
No [pension award] shall exceed fifty percent of the
marital share of the cash benefits actually received by
the party against whom such award is made.
The marital share of Mr. Gerwe's pension is 71.2 percent. The
award to Ms. Gerwe of 35.6 percent of Mr. Gerwe's gross pension
receipts represented the maximum allowance to her permissible
under the statute. The requirement that Mr. Gerwe pay the cost
of extending Ms. Gerwe's allowed benefit for her lifetime reduced
pro tanto the benefit to be received by him, thus awarding her
more than fifty percent of the marital share benefits to be
received.
The judgment of the trial court is reversed and modified to
delete the requirement that Mr. Gerwe pay the cost of fixing Ms.
Gerwe's share of his pension as a benefit to survive for her
lifetime. The judgment of the trial court is otherwise affirmed.
Affirmed in part, reversed in part.
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