Dabney C. Robertson (Lang) v. James L. Robertson ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
DABNEY C. ROBERTSON (LANG)
MEMORANDUM OPINION * BY
v. Record No. 3046-96-2 JUDGE LARRY G. ELDER
SEPTEMBER 16, 1997
JAMES L. ROBERTSON
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
C. Thomas Mustian (Mustian & Parker, on
brief), for appellant.
No brief or argument for appellee.
Dabney C. Robertson (Lang) (wife) appeals the trial court's
award of equitable distribution in her divorce from James L.
Robertson (husband). She contends that the trial court erred
when it calculated the amount of the credit awarded to husband
from the proceeds of the sale of the marital home. She also
contends that the trial court's decision to award the parties
"their respective retirement accounts" is "confusing." For the
reasons that follow, we affirm.
I.
CALCULATION OF HUSBAND'S MORTGAGE CREDIT
Wife contends that the trial court erred when it calculated
the amount of the credit it awarded to husband for paying wife's
share of the parties' mortgage since their separation (mortgage
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
credit). She argues that the trial court's conclusion that
husband's mortgage credit from September, 1993 through July, 1996
was $6,701 was erroneous because the trial court failed to give
sufficient credit to her for paying husband's share of child
support during this time period. We disagree.
The trial court's award of a mortgage credit to husband was
akin to a monetary award. Thus, we review the trial court's
calculation of husband's mortgage credit according the legal
principles applicable to such awards.
Code § 20-107.3, which governs awards of equitable
distribution, "is intended to recognize a marriage as a
partnership and to provide a means to divide equitably the wealth
accumulated during and by that partnership based on the monetary
and non-monetary contributions of each spouse." Williams v.
Williams, 4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987). "Where an
equitable distribution is appropriate, then all of the provisions
of Code § 20-107.3 must be followed." Artis v. Artis, 4 Va. App.
132, 136, 354 S.E.2d 812, 814 (1987). The court must determine
"the legal title as between the parties," and "the ownership and
value" of all of the parties' property and then classify this
property as "marital," "separate," or "part separate and part
marital." Code § 20-107.3(A). After this is done, the court may
(1) order the division or transfer, or both, of jointly owned
marital property, (2) apportion and order the payment of marital
debts, or (3) grant a monetary award to either party. See Code
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§ 20-107.3(C), (D). The court must determine the amount of its
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award of any of these remedies "upon the factors listed in [Code
§ 20-107.3(E)]." Code § 20-107.3(C), (D). Subject to these
enumerated statutory factors, "[t]his division or transfer of
jointly owned marital property [, the apportionment of marital
debts], and the amount of any monetary award, . . . is within the
sound discretion of the trial court." Dietz v. Dietz, 17 Va.
App. 203, 216, 436 S.E.2d 463, 471 (1993).
On appeal, the trial court's award of equitable distribution
will not be reversed "unless 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 findings of fact underlying his
resolution of the conflict in the equities." Robinette v.
Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 633 (1990)
(citations omitted).
We hold that the trial court did not commit reversible error
when it calculated the amount of husband's mortgage credit
according to the commissioner's method. First, the trial court
correctly followed the mandates of Code § 20-107.3, and all of
its factual findings are supported by evidence in the record.
The trial court incorporated the commissioner's report into its
final order. In his report, the commissioner determined the
ownership and value of the marital home and classified it as
marital property. The commissioner also determined that the
mortgage obligation was incurred prior to the dissolution of the
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parties' marriage. The commissioner then considered the evidence
relevant to each of the statutory factors of Code § 20-107.3(E).
Our review of the commissioner's findings indicates that they
are supported by credible evidence.
In addition, we cannot say that the method used by the
commissioner and adopted by the trial court to calculate the
amount of husband's mortgage credit was an abuse of discretion.
Pursuant to Code § 20-107.3(D), once the trial court decided to
award husband a monetary award in the form of a credit against
the proceeds from the sale of the marital home, it was required
to base the amount of this award "upon (i) the equities and the
rights and interests of each party in the marital property, and
(ii) the factors listed in [Code § 20-107.3(E)]." In determining
the amount of husband's mortgage credit, the commissioner
considered all of the enumerated factors of Code § 20-107.3(E)
including other factors that he deemed "necessary . . . to
consider in order to arrive at a fair and equitable monetary
award." The additional factors considered by the commissioner
included the fact that husband had paid wife's share of the
monthly mortgage since the parties separated and that husband had
declined to financially support the parties' children since that
time. Based on these considerations, the commissioner developed
a method of calculating husband's mortgage credit that accounted
for his nonpayment of child support. The result of the
commissioner's method ultimately reduced husband's mortgage
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credit from $14,456 to $6,701. 1 Based on our review of the trial
court's analysis, we conclude that it was within the proper
exercise of its discretion when it calculated husband's mortgage
credit by applying the commissioner's method to account for
husband's nonpayment of child support.
We disagree with wife that Code § 20-107.3 compelled the
trial court to calculate husband's mortgage credit in the manner
prescribed in her brief. Code § 20-107.3(D) does not mandate
that a trial court use specific formulas to calculate monetary
awards in specific factual situations. Instead, the
determination of the amount of a monetary award in a given case
is within the discretion of the trial court subject to its
consideration of the factors of Code § 20-107.3(E). See Dietz,
17 Va. App. at 216, 436 S.E.2d at 471. Wife's method of
calculating husband's mortgage credit is merely one of many
methods that was available to the trial court when it exercised
its discretion to grant husband such a credit.
II.
THE PARTIES' RETIREMENT ACCOUNTS
Wife also contends that the trial court's award regarding
the parties' retirement accounts was "confusing." Wife concedes
that the trial court's award of the retirement accounts was not
1
$14,456 is wife's share of the total mortgage payments made
by husband from September, 1993 through July, 1996 [(35,100 x
.32) + (10,400 x .31)]. The mortgage credit actually awarded to
husband for this time period under the commissioner's method was
$6,701.
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an abuse of discretion. Instead, she asks us to remand the trial
court's award regarding the retirement accounts "to properly
address which . . . pension plans" were included in the award.
Because the trial court's order indicates that it intended to
include both the parties' individual retirement accounts and
husband's employer-sponsored pension plan in its award regarding
the parties' retirement accounts, we disagree.
At the hearing before the commissioner, the parties offered
evidence regarding their individual retirement accounts and
husband's employer-sponsored pension plan. The parties testified
that they each had an "individual retirement account" that they
established in their individual names during the marriage.
Regarding husband's employer-sponsored pension plan, the evidence
proved that husband's employer provided husband with a pension
plan and that husband's vested benefit "under the 10 years
certain and life annuity option" was currently $279 per month
starting in 2010.
In his report, the commissioner stated that "the parties
stipulated . . . that each would keep their respective individual
retirement accounts." He made no mention of husband's
employer-sponsored pension plan. Wife objected to the omission
of the pension plan from the commissioner's recommended award of
equitable distribution. In its final order, the trial court
ordered "that the parties keep their respective retirement
accounts." We conclude that the trial court's deletion of the
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word "individual" from the language used by the commissioner
indicates its clear intention to include husband's
employer-sponsored pension plan in its award of equitable
distribution and to award the full amount of the plan to husband.
For the foregoing reasons, we affirm the trial court's award
of equitable distribution.
Affirmed.
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