Roberta K. Godwin v. Forrest Dean Godwin ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia
ROBERTA K. GODWIN
MEMORANDUM OPINION * BY
v. Record No. 2790-98-1 JUDGE JERE M. H. WILLIS, JR.
OCTOBER 26, 1999
FORREST DEAN GODWIN
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
V. Thomas Forehand, Jr., Judge
James A. Leftwich, Jr. (Basnight, Kinser,
Telfeyan & Leftwich, P.C., on brief), for
appellant.
Forrest Dean Godwin, pro se.
On appeal from a final divorce decree, Roberta K. Godwin
contends that the trial court erred (1) in determining that her
retirement benefits are subject to equitable distribution, (2)
in awarding Forrest Dean Godwin twenty-five percent of the
marital portion of those benefits, (3) in calculating periodic
spousal support, (4) in not awarding the divorce on the basis of
Mr. Godwin's desertion or post-separation adultery, and (5) in
finding no arrearage in spousal support payments from February
1996 through November 1998. We affirm in part, modify in part,
reverse in part, and remand.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Mr. and Ms. Godwin were married in 1983. In 1988, Ms.
Godwin was injured during job training as a Virginia Beach
Deputy Sheriff. The injury left her permanently disabled, with
lingering pain and impaired health. In 1993, Mr. Godwin left
the marital residence due to a deteriorating relationship with
Ms. Godwin and the resulting hostile environment. The couple
has one child, who resides with Mr. Godwin.
1.
Ms. Godwin contends that the trial court erred in
classifying her Virginia Disability Entitlement Benefits as
marital property, subject to equitable distribution. Following
her injury, she received a lump sum from the City of Virginia
Beach in settlement of her workers' compensation benefits. The
parties applied this sum to marital purposes. At the time of
the commissioner's hearing, she was receiving $819.77 per month
in disability retirement benefits. The commissioner reported
that the monthly payments were retirement benefits subject to
equitable distribution, and the trial court so held.
"In reviewing an equitable distribution award on appeal, we
recognize that the trial court's job is a difficult one.
Accordingly, we rely heavily on the discretion of the trial
judge in weighing the many considerations and circumstances that
are presented in each case." Artis v. Artis, 4 Va. App. 132,
137, 354 S.E.2d 812, 815 (1987). Pensions and retirement
benefits are expressly presumed to be marital property. See
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Code § 20-107.3. The record supports the trial court's holding
that the monthly payments should be considered retirement
benefits. We affirm that holding.
2.
Ms. Godwin next contends that assuming the monthly benefits
are subject to equitable distribution, the trial court erred in
awarding twenty-five percent of the marital portion to Mr.
Godwin. She argues that the record before the trial court was
insufficient to permit identification of the marital share of
the pension.
Unless it appears from the record that the
[trial court] has abused [its] discretion,
that [it] has not considered or has
misapplied one of the statutory mandates, or
that the evidence fails to support the
findings of fact underlying [its] resolution
of the conflict in the equities, the . . .
equitable distribution award will not be
reversed on appeal.
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted).
The trial court decreed "[Mr. Godwin] is awarded twenty
five percent (25%) of the marital share of [Ms. Godwin's]
disability benefits . . . ." Thus, it appears on the face of
the decree that the trial court sought to divide only the
marital portion of the monthly disability retirement benefits, a
property subject to equitable distribution. However, the trial
court failed to determine the marital portion of Ms. Godwin's
pension, a determination essential to a fair and effective
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division. Therefore, we reverse the judgment of the trial court
insofar as it undertakes equitable distribution of Ms. Godwin's
pension, and remand the case to the trial court for
identification of the marital portion of that pension and an
appropriate division of that marital portion.
3.
Because determination of equitable distribution is
prerequisite to the fixing of spousal support, we reverse and
vacate the judgment of the trial court fixing spousal support
and remand the case to the trial court for the determination of
spousal support following a determination of all matters of
equitable distribution. See Rowe v. Rowe, 24 Va. App. 123, 139,
480 S.E.2d 760, 767 (1997).
4.
The commissioner reported that "[Mr. Godwin] is guilty of
desertion and post-separation adultery, however, neither of
these was the actual cause of the dissolution of marriage." Mr.
Godwin excepted to this finding, and the trial court sustained
his exception. Ms. Godwin contends that this was error, because
sufficient evidence proved Mr. Godwin's desertion and
post-separation adultery.
The trial court ruled that the evidence was insufficient to
prove desertion, because Ms. Godwin had asked Mr. Godwin to
leave. Further, "the evidence strongly suggests that he had
good reason for initially leaving and remaining separated. [Ms.
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Godwin] was argumentative, despondent, and, at times, suicidal."
The record supports this ruling.
The trial court ruled that the evidence that Mr. Godwin was
sharing a residence and financial responsibilities with a woman
other than his wife was not "clear and convincing" proof that he
was guilty of adultery. See Derby v. Derby, 8 Va. App. 19, 24,
378 S.E.2d 74, 76 (1989). We need not review that ruling.
The divorce was granted on the ground that the parties had
lived separately for at least one year. Even had the trial
court sustained the commissioner's findings of fault, "the trial
court was not compelled 'to give precedence to one proven ground
of divorce over another.'" Williams v. Williams, 14 Va. App.
217, 220, 415 S.E.2d 252, 253 (1992) (citation omitted). We
affirm the judgment of the trial court on the granting and
ground of the divorce.
5.
Finally, Ms. Godwin contends that the trial court erred in
finding no arrearage in spousal support from February 1996
through November 1998. The February 1994 pendente lite order
required Mr. Godwin to pay Ms. Godwin $300 per month, payable in
equal amounts on the first and fifteenth of every month. On
February 23, 1996, Mr. Godwin moved for abatement. The trial
court found an arrearage in spousal support totaling $1,800,
calculated upon omitted spousal support payments from August 1,
1995, through January 31, 1996. The trial court thus awarded
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Mr. Godwin abatement retroactive to February 1, 1996. This was
error.
The abatement could not precede Mr. Godwin's filing of the
motion. See Code § 20-112; Reid v. Reid, 245 Va. 409, 412-13,
429 S.E.2d 208, 210 (1993). Thus, while it lay within the trial
court's discretion to modify or abate spousal support, the
abatement could not take effect before February 23, 1996. Mr.
Godwin was to make payments of $150 on February 1 and February
15, both dates preceding February 23. These payments should
have been required. We therefore reverse the trial court on
this issue and modify its decree to award Ms. Godwin an
additional $300 spousal support for February 1996.
The judgment of the trial court is affirmed in part,
modified in part, reversed in part, and remanded.
Affirmed in part,
reversed and modified in
part, and reversed and
remanded in part.
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