Sandra C. Long v. George Maurice Long, III ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
SANDRA C. LONG
MEMORANDUM OPINION * BY
v. Record No. 1723-98-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 5, 1999
GEORGE MAURICE LONG, III
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
J. W. Harman, Jr. (Torrence M. Harman;
Harman & Harman, on briefs), for appellant.
Terrence R. Batzli (Barnes & Batzli, P.C., on
brief), for appellee.
Sandra Long appeals from a decree establishing equitable
distribution, denying spousal support, and awarding attorney's
fees to George Maurice Long, III. The trial court referred the
case to a commissioner in chancery who heard the matter and
filed his report June 3, 1997. Both parties filed exceptions to
the report. The commissioner reported that the husband should
be granted a divorce on the grounds of desertion, but the trial
court decreed the divorce on grounds of a one-year separation.
Neither party objected to the divorce decree, or to reserving
decision on the remaining issues. On July 14, 1998, the trial
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
court entered a decree affirming all remaining matters in the
commissioner's report.
We combine the wife's assignments of error into four main
complaints: the trial court failed to determine title to,
classify, or value the parties' property; allocated only 35% of
the marital estate to her but charged $4,000 against her share;
did not treat the husband's retirement supplement as marital
property subject to distribution; and ordered her to pay $2,500
of the husband's attorney's fees. The wife had appealed the
denial of spousal support, but she conceded the issue became
moot when she remarried.
The wife also contends that the commissioner erred in
finding that she deserted the marriage. Though the commissioner
found that the wife deserted the marriage, the trial court did
not grant the divorce on that ground. The wife did not object
to the trial court's decision to grant a no-fault divorce. She
cannot now complain of a decision beneficial to her.
The parties married in 1973 and had two children born in
1975 and 1977. By mutual agreement the wife stayed at home and
raised their children. The husband began work as a fireman with
Henrico County in 1977, and they lived in a home owned by the
husband's mother. The wife returned to work in 1984. The
parties' relationship began to deteriorate in 1990, and
separation was discussed several times. They finally separated
in September 1995 when the wife insisted on taking a trip to
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Cancun over the husband's objection. She moved into an
apartment, and the husband remained in the marital home.
In addition to the parties, several witnesses testified
about the marriage. Much of the husband's evidence related to
the wife's relationship with a man who hired her to clean
apartments and with whom the husband claimed she had an affair.
The wife denied having an adulterous relationship with the man.
The children testified for the husband and stressed that for the
last seven years the wife had done little of the housework which
she previously had done.
The parties' marital estate consisted principally of
tangible personal property and one parcel of real estate
consisting of fifty-eight acres of unimproved land in King and
Queen County. They shared a joint account at a credit union,
and the wife had her own separate account. Over a period of
several years prior to their separation, the wife withdrew
$3,887 from the joint account and deposited it into her separate
account. Over a similar period prior to their separation, she
withdrew another $8,170 from the joint savings account, but the
evidence did not show where it went. After the wife's
departure, the husband supported the children, made all credit
cards payments, made payments on the wife's van, and reduced the
principal owed on the property in King and Queen County by
$5,616.
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At separation, the husband had worked as a fireman for 18
years. He was entitled to receive retirement benefits from the
county and to receive supplemental retirement benefits if he
worked for twenty years and retired before age 65. The
supplement would continue until age 65 when Social Security
benefits would commence.
First, the wife complains that the court did not make
findings as to legal title and value of the individual items of
property, did not distribute the individual items of property
between the parties, and did not partition the joint real
estate. Essentially, she claims that the trial court did not
follow the statutory outline and sequence of procedures for
decreeing equitable distribution. While we do not sanction a
trial court ignoring or condensing the statutory procedures for
classifying and valuing property, we conclude that the trial
court proceeded in a manner requested by the parties.
The parties asked the commissioner simply to determine a
percentage allocation of marital assets. Neither party could
agree on the value of assets and the differences in their
opinions were large, yet they did not have the resources to have
the numerous and varied items appraised and the issues fully
litigated. The parties planned to divide the individual items
of property between themselves after the commissioner fixed a
percentage allocation. The wife argued that she was entitled to
a 50% share, and the husband argued she was entitled to a 25%
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share at most. With their clients' approval, the attorneys
requested the truncated procedure as a proper and practical way
to resolve their dispute. Having jointly made this request,
neither party can complain that the full, formal statutory
procedure should have been followed when later displeased with
the portion received.
The wife complains that the trial court did not partition
the real estate between the parties. The parties completely
disagreed about its value, and they presented no evidence other
than their personal opinions of its value and to describe it as
containing approximately fifty-eight acres of farmland and
cut-over timberland. The wife requested that the property "be
split right down the middle" and that "the choice of which gets
which half to be decided by a toss of the coin." The
commissioner's report did not specifically address the real
estate. Because we cannot determine whether the real estate was
partitioned, or the proportions and the manner of the division,
we remand for clarification or determination.
The wife complains that the trial court awarded her only
35% of the marital estate. Though the commissioner found that
the husband did not prove adultery, and the trial court did not
grant the divorce based on desertion, the wife asserts that the
commissioner's finding that she deserted the marriage tainted
all other findings. In support of her contention, the wife
argues that the trial court erroneously applied the holding of
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O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323(1995), in determining equitable distribution. The wife
interprets the trial court's order as finding that the husband's
monetary and the wife's non-monetary contributions were equal.
Thus, she argues the "lopsided" award was punishment for her
conduct but not supported by a finding that the desertion
created an adverse economic impact.
The wife misreads the trial court's finding. Although the
trial court granted the divorce on the ground of one-year
separation, the final order adopted the findings of the
commissioner. That report stated that the husband made
excessive monetary contributions to both the well-being of the
family and the acquisition and maintenance of marital assets.
It said the wife made excessive non-monetary contributions to
the well-being of the family, but it said she did not make them
to the acquisition and maintenance of marital assets. The
commissioner's finding did not equate the husband's monetary and
the wife's non-monetary contributions.
The record does not support the wife's contention that the
trial court improperly stressed the evidence of fault or used it
to punish her. The only time in the record the commissioner or
the trial court considered the evidence of her deserting the
marriage was when determining the equitable distribution
formula. The negative impact of marital fault is an appropriate
consideration in making an equitable distribution award. See
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Code § 20-107.3. Where there is marital fault that "affected
the marital estate or the well being of the family," it may be
considered in determining equitable distribution. See
O'Loughlin, 20 Va. App. at 527, 458 S.E.2d at 325. The fault
need not be sufficient to constitute grounds for divorce. See
Aster v. Gross, 7 Va. App. 1, 5-6, 371 S.E.2d 833, 836 (1988);
Bentz v. Bentz, 2 Va. App. 486, 488, 345 S.E.2d 773, 774 (1986).
Consideration of marital fault is not limited to assessing waste
or dissipation of marital property. See O'Loughlin, 20 Va. App.
at 527, 458 S.E.2d at 325. Fault can "be considered in light of
the other factors, such as the couple's nonmonetary
contributions, under Code § 20-107.3(E)." Id. at 528, 458
S.E.2d at 326. The negative impact of marital fault can also be
considered when it detracts from the well-being of the family
and the marital partnership. See id.The commissioner found that the wife's fault affected the
entire family. During the marriage her primary contributions
were non-monetary contributions to the well-being of the family
and consisted of staying at home and being a housewife and a
homemaker. The evidence established that she no longer made
those non-monetary contributions to the well-being of the
family. During the last few years before the parties'
separation, the wife laid around the house complaining and
refused to do any household chores. In addition, the parties'
children were aware that the wife's alleged boyfriend visited
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the marital home late into the night while the husband was at
work. The commissioner found that her fault was the
circumstance and factor that led to the dissolution of the
marriage and thus affected the duration of the marriage. The
evidence established objectively that the wife's fault had a
negative impact on the marital partnership.
In Virginia, there is no presumption that marital property
will be equally divided. See Papuchis v. Papuchis, 2 Va. App.
130, 132, 341 S.E.2d 829, 830-31 (1986); Code § 20-107. The
trial court has discretion to determine what weight to give each
statutory factor when making an equitable distribution award as
long as it considers all the factors. See Booth v. Booth, 7 Va.
App. 22, 28, 371 S.E.2d 569, 573 (1988). The record shows that
the trial court considered each of the statutory factors; it was
not required to quantify the weight given to each or weigh each
factor equally. See Marion v. Marion, 11 Va. App. 659, 664, 401
S.E.2d 432, 436 (1991). Based on all the evidence, we conclude
the trial court did not err in allocating 35% of the martial
estate to the wife.
Next, the wife objects that the trial court excluded a
supplement to the husband's retirement benefits from the marital
assets subject to distribution. She contends that the trial
court erred when it ruled that the law enforcement officer
supplement to his normal retirement was not part of his marital
assets. The husband was a fireman for Henrico County which had
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elected to be a part of the state retirement system. The county
also elected to have its firemen participate in the State Police
Officers' Retirement System pursuant to Code § 51.1-138. Under
that program a beneficiary was entitled to receive a normal
retirement benefit and an additional annual allowance if he
retired before age 65. See Code § 51.1-206. 1 A retiree with
twenty years of service qualifies for the supplement, which
1
§ 51.1-206. Service retirement allowance.
A. A member shall receive an annual
retirement allowance, payable for life, as
follows:
1. Normal retirement. - The allowance
shall equal 1.70 percent of his average
final compensation multiplied by the amount
of creditable service.
* * * * * * *
B. In addition to the allowance
payable under subsection A of this section,
a member shall receive an additional
allowance equal to $ 8,952 annually from
date of retirement until his sixty-fifth
birthday.
Such allowance shall be reviewed and
adjusted by the Board biennially to an
amount recommended by the actuary of the
Virginia Retirement System based upon
increases in social security benefits in the
interim. This subsection shall not apply to
the following: (i) any member who qualifies
for retirement under subsection C of
§ 51.1-205 and is credited with less than
twenty years' service rendered in a
hazardous position or (ii) any member
employed initially on or after July 1, 1974,
who is credited with less than twenty years'
service rendered in a hazardous position.
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terminates at age 65 when the retiree would begin receiving
Social Security benefits.
The husband argues that the law enforcement officer
supplement is a post-retirement supplement that should not be
considered marital property or a part of his retirement
benefits. Because he is not eligible to receive it until he has
worked twenty years, he could not acquire the right during the
marriage. He cites Hodowal v. Hodowal, 627 N.E.2d 869 (Ind. Ct.
App. 1994), and Luczkovich v. Luczkovich, 26 Va. App. 702, 496
S.E.2d 157 (1998).
Indiana provided a retirement supplement very similar to
the one in this case. It paid until age 65 as a replacement to
Social Security, and the employee did not qualify until his age
and years of service totaled 85. At the time of divorce,
Hodowal did not qualify for the supplement, but his basic
retirement benefit had vested. In Hodowal the court held that
the basic retirement benefit was marital because it had vested,
but it held that the supplement was not marital because it had
not vested. The Hodowal decision turned on whether the
supplement was vested. In Virginia, the classification of a
pension as marital property does not depend on whether it vested
during the marriage. "The court may direct payment of a
percentage of the marital share of any pension, profit-sharing
or deferred compensation plan or retirement benefits, whether
vested or nonvested, which constitutes marital property and
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whether payable in a lump sum or over a period of time." Code
§ 20–107.3(G)(1).
Hodowal explained its decision by reviewing Indiana's
treatment of military pensions. See Kirkman v. Kirkman, 555
N.E.2d 1293 (Ind. 1990). The Hodowal decision showed that
Indiana only classified military pensions as marital property if
the service member accumulated twenty years of service before
leaving the service. See Hodowal, 627 N.E.2d at 873.
In Virginia, military pensions are classified exactly the
opposite from the way Indiana classified them. See Holmes v.
Holmes, 7 Va. App. 472, 478, 375 S.E.2d 387, 391 (1988); Sawyer
v. Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 279-80 (1985). In
Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894 (1994), the
parties were married for seven years, the husband was in the
service during the entire time the parties were married, and he
had completed a total of eleven years of military service.
Though he had to complete twenty years of active service for his
pension rights to vest, the trial court awarded the wife a share
of the pension. This Court affirmed the decision and held: "in
accord with our construction of Code § 20-107.3, awards may be
decreed prior to the pensioner's receipt of payments even though
future payments may be 'an expectancy.' Based on this record,
it was not error to award wife seventeen percent of husband's
pension to be paid when received." Id. at 729, 446 S.E.2d at
895.
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The rationale used in Hodowal provides a proper rationale
for analyzing the supplemental benefit in this case. However,
it leads to the conclusion that in Virginia the supplement would
be classified in exactly the opposite manner from which it was
classified in Indiana. The supplement retirement benefits in
this case are analogous to military pensions that we addressed
in Cook. The members were potentially entitled to the benefit
immediately upon employment. They had contract claims though
these were conditional, but the benefits would vest or mature if
the employee worked until retirement or the date it vested. The
members must work for a minimum of twenty years before retiring
to receive any benefit. In either the military or supplemental
pension, retirement at any point before serving twenty years
disqualified the member from receiving any benefit.
In this case, the basic retirement benefit was marital
property and subject to equitable distribution for the period of
service accumulated during the marriage. The basic benefit was
marital property to the extent it accrued during the marriage
even though the member might work for years after divorce before
receiving any payment. The supplemental benefit was different
than the basic benefit because it could not vest until the
qualifying period of service, twenty years, was met. The
benefit did not accrue, but it was similar to the military
pensions which did not accrue benefits either. In the essential
way the supplemental benefit differed from the basic benefit, it
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corresponded to the military pension. However, military
pensions are treated as marital property despite that
characteristic. The feature that distinguished the husband's
basic retirement benefit and the supplemental benefit did not
affect the classification of military pensions. It should not
affect the classification of the supplemental benefit.
The second line of cases cited by the husband dealt with
post-separation severance benefits. In Luczkovich, the
husband's employer was being acquired by another large drug
store chain. After the divorce, the employer offered the
husband an incentive package to encourage the husband to take an
early retirement. The employer offered the severance package to
pay the husband for past efforts and to encourage him to remain
with the company pending the sale. The employer conditioned the
offer on merger with the other company. See 26 Va. App. at 711,
496 S.E.2d at 161. This Court held that the severance package
was not marital property. However, the type of benefit offered
in Luczkovich was a post-separation severance package, not a
retirement benefit, and is not similar to the supplement in this
case.
Viewing the state retirement benefits as a whole, the basic
benefit and the supplemental benefit are both part of an
integrated and coordinated retirement package. It is one
complete program, not a grouping of unrelated items different
and separate in nature and methodology. There is no reason to
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classify the supplement differently than the basic benefit.
Unlike a post-separation retirement incentive, the supplement is
not something offered after the divorce as an incentive to
encourage the employee to retire earlier than normal. The trial
court erred when it classified the retirement supplement as
separate property and excluded it from the equitable
distribution award.
The wife argues that the trial court erred in charging her
share of the allocation of the marital estate with $4,000 which
it characterized as a "prior contribution." The trial court
found that between March 1992 and March 1995 the wife had
transferred nearly $4,000 from a joint savings account and put
it in her separate account.
The commissioner stated the evidence did not show whether
or not the money withdrawn was a dissipation of marital funds.
He found no evidence of the purposes for which the wife used the
funds. The evidence was not sufficient to support a finding
concerning the use of the funds. Waste is the "dissipation of
marital funds in anticipation of divorce or separation for a
purpose unrelated to the marriage and in derogation of the
marital relationship at a time when the marriage is in
jeopardy." Booth, 7 Va. App. at 27, 371 S.E.2d at 572. The
evidence that she spent some of the money on her alleged
boyfriend suggests a dissipation of funds, but the evidence of
the expenditures was vague and suppositional. It showed that
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several years prior to separation the wife withdrew funds. The
evidence also proved the wife occasionally spent funds for
non-marital purposes, but it did not connect the times and
amounts of the withdrawals. Because the evidence was
insufficient to permit an inference that the wife used the
withdrawals for a non-marital purpose, the decision to charge
$4,000 against the wife's marital share was in error.
Finally, the wife objects to the trial court ordering her
to pay $2,500 of the husband's attorney's fees. "An award of
attorney's fees is a matter submitted to the trial court's sound
discretion and is reviewable on appeal only for an abuse of
discretion." Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d
554, 558 (1987) (citing Ingram v. Ingram, 217 Va. 27, 29, 225
S.E.2d 362, 364 (1976)). "The key to a proper award of counsel
fees is reasonableness under all the circumstances." Lightburn
v. Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996)
(citing McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d
159, 162 (1985)). The trial court ratified the commissioner's
findings that the wife caused unnecessary additional expense by
changing attorneys right before the commissioner's hearing which
forced a continuance in the case. It also found that she was
responsible for additional fees being incurred and that she
could afford to bear $2,500 of the husband's fees. The record
supports the finding. Accordingly, we conclude the trial court
did not err in making that award.
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We reverse and remand the trial court's decision to
classify the husband's supplemental retirement benefits as
separate property and to charge $4,000 against the wife's share
of the marital estate. We also remand the issue of partition of
the real estate for clarification or determination. All other
issues are affirmed.
Affirmed in part,
reversed in part,
and remanded.
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