Dora L. Moore v. Alphonso W. Moore ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DORA L. MOORE
MEMORANDUM OPINION *
v. Record No. 0470-97-4 PER CURIAM
SEPTEMBER 2, 1997
ALPHONSO W. MOORE
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
(Bryant A. Webb, on brief), for appellant.
(David H. White, on brief), for appellee.
Dora L. Moore (wife) appeals the decision of the circuit
court awarding her less than fifty percent of the marital share
of husband's pension and considering the negative equity of a
piece of marital real estate when calculating its value. Wife
withdrew three other issues concerning custody and child support
initially raised. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
Pension
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
S.E.2d 675, 678 (1990). "Unless it appears from the record that
the trial judge has not considered or has misapplied one of the
statutory mandates, this Court will not reverse on appeal."
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630
(1989).
The trial court determined that the marital share of
husband's Navy pension was approximately ninety percent of the
total pension. Under Code § 20-107.3(G)(1), the trial court was
authorized to award wife no more than fifty percent of the
marital share. In this case, both husband and wife worked during
the marriage and both parties had earned pension benefits in
their own names. The trial court considered the parties' marital
property, including wife's separate pension benefits, and awarded
wife thirty percent of husband's monthly pension benefits.
Similarly, the trial court awarded husband thirty percent of
wife's pension.
Wife acknowledged that the Virginia statutory scheme of
equitable distribution does not presume an equal division of
marital assets. See Alphin v. Alphin, 15 Va. App. 395, 404, 424
S.E.2d 572, 577 (1992). The equitable distribution decree
demonstrated that the trial court considered the statutory
factors before making its equitable distribution decision.
Therefore, because the trial court considered the statutory
factors, based its decision upon the evidence, and did not abuse
its discretion, we find no grounds for reversing the court's
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decision concerning wife's share of husband's pension.
Real Estate
The trial court set out in detail, based upon the evidence
presented by the parties, the parties' respective expenses and
income derived from the various pieces of real estate purchased
during the marriage. Based upon the evidence, the trial court
found that marital property located in Jacksonville, Florida had
a negative equity, i.e., the outstanding mortgage attached to the
property exceeded its estimated market value. Wife contends,
without citation to authority, that a trial court may not
consider negative equity. We find no support for this assertion.
Code § 20-107.3(C) expressly authorizes the trial court to
"apportion and order the payment of the debts of the parties."
Therefore, we find no error in the trial court's calculation of
the value of this piece of property based upon its outstanding
debt.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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