Robert Warren Gore v. Sylvia Swain Gore ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ROBERT WARREN GORE
MEMORANDUM OPINION *
v. Record No. 2308-96-3 PER CURIAM
MAY 20, 1997
SYLVIA SWAIN GORE
FROM THE CIRCUIT COURT OF PATRICK COUNTY
Charles M. Stone, Judge
(Richard D. Rogers, Jr., on brief), for
appellant.
(Philip G. Gardner; Gardner, Gardner, Barrow &
Sharpe, on brief), for appellee.
Robert W. Gore (husband) appeals the final decree of divorce
and equitable distribution entered by the circuit court. Husband
contends that the trial court erred in (1) valuing the parties'
retirement benefits, (2) awarding attorney's fees to Sylvia S.
Gore (wife), (3) requiring husband to pay wife the value of a
lost engagement ring, (4) awarding wife one-half the face value
of savings bonds, and (5) awarding wife $375 in monthly spousal
support. 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.
Pensions
Husband contends that wife's expert erred in valuing his
pension, that the present value calculation used post-separation
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
salary increases, that the marital share was erroneously
calculated, and that the effect of Social Security payments upon
his pension was not considered. We find these contentions to be
without merit.
While the court's final decree calculated the present value
of husband's pension, the qualified domestic relations order
(QDRO) which the court subsequently entered did not rely upon
present value. That order calculated the marital share of
husband's pension as a fraction of the total pension, based upon
the parties' final separation date of February 1992.
Specifically, the court awarded wife a pro rata portion of the
marital share, defined as:
one-half (1/2) of the fraction whose
numerator is the number of months of federal,
civilian and military service that [husband]
. . . performed during the marriage and whose
denominator is the total number of federal,
civilian, and military service performed by
the [husband]. . . .
The court found the number of months of employment during the
marriage equaled 192. The total number of months of employment
will not be established until husband's retirement, based upon
his employment starting date of May 12, 1976. Thus, while the
court's final decree referred to a present value of husband's
pension, the implementing QDRO did not rely upon the present
value calculation. Therefore, husband's challenge to the
discount rate assumption used by wife's expert in calculating the
present value is moot.
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Similarly, husband's contention that the present value
calculation relied on the value of post-separation earnings is
moot. Moreover, husband's argument that the calculation of the
marital share cannot rely on any salary levels earned
post-separation is incorrect. We rejected a similar argument in
Banagan v. Banagan, 17 Va. App. 321, 324-26, 437 S.E.2d 229,
230-31 (1993).
"It is only fair that both parties share in
the increased value of the pension," or one
will be "receiving the increase in value"
over time which is attributable to the
other's marital interest. Contrary to
husband's view, such enhancement is clearly a
part of the "total [pension] interest"
component of the marital share equation and
obviously distinguishable from a judicial
award of interest on a deferred share of a
pension.
Id. at 325-26, 437 S.E.2d at 231 (citations omitted).
Husband also contends that the number of years of retirement
benefits earned during the marriage was fourteen, rather than
thirty. The QDRO in fact awarded wife benefits based on a total
of 192 months, or sixteen years. As this calculation was
supported by the evidence, husband has not demonstrated error.
Finally, the court's award to wife of a portion of the
marital share complied with the provisions of Code § 20-107.3(G).
Husband's contention that the court failed to consider possible
reductions in his pension due to Social Security payments is, at
best, based on speculation. Husband has not established
reversible error.
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Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court 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). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The trial court ruled that "most of [wife's attorney's fees]
are directly attributable to the recalcitrance of the [husband]
in honoring court orders and providing meaningful and forthcoming
discovery." The court's letter opinion, dated January 10, 1996,
noted that husband failed to furnish to wife "his equitable
distribution schedules on or before November 10." Wife testified
to the delays caused by husband's lack of cooperation.
Based on the number of issues involved, husband's lack of
cooperation with discovery, and the parties' respective abilities
to pay, we cannot say that the award was unreasonable or that the
trial judge abused his discretion in awarding wife $13,500.
Engagement Ring
The trial court found more credible wife's testimony that
husband removed an engagement ring, valued at $4,500, from the
parties' safe deposit box. The ring was given to wife by
husband's family, but the parties agreed the ring was wife's
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separate property. Wife testified that the ring was kept in the
safe deposit box to which both parties had keys. When she
checked the safe deposit box, she discovered that all of
husband's items were gone and the ring box was empty. Husband
admitted he had a key to the box, but testified that he had not
been in the box for "years" and that he had no idea that the ring
wasn't there.
The evidence was presented by depositions and exhibits. "A
decree based on testimony in deposition form, while presumed to
be correct, is not given the same weight as one where the
evidence is heard ore tenus by the chancellor." Moore v. Moore,
212 Va. 153, 155, 183 S.E.2d 172, 174 (1971). Nonetheless,
"'[o]n the testimony in deposition form, the decree is presumed
to be correct and should not be disturbed for lack of proof if
the controlling factual conclusions reached are sustained by a
fair preponderance of the evidence.'" Nash v. Nash, 200 Va. 890,
898-99, 108 S.E.2d 350, 356 (1959) (citations omitted). Because
credible evidence supports the trial court's finding, we affirm
its decree requiring husband to pay the value of the engagement
ring to wife.
Savings Bonds
The savings bonds earmarked for the education of the
parties' son were accumulated during the marriage and were
properly classified as marital property. Code § 20-107.3(A)(2).
In his deposition, husband conceded that the savings bonds did
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not belong to his son. Furthermore, the court noted that husband
failed to present evidence supporting his claim that the bonds
were worth less than their $31,200 face value. We find no error
in the trial court's classification or valuation of the bonds.
Spousal Support
Without citation to authority or evidence in the record,
husband contends that wife's alleged extravagance decreased the
value of the marital estate and, as a result, the trial court
erred in awarding her spousal support. "Statements unsupported
by argument, authority, or citations to the record do not merit
appellate consideration. We will not search the record for
errors in order to interpret the appellant's contention and
correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va.
App. 53, 56, 415 S.E.2d 237, 239 (1992). Therefore, we do not
consider this alleged error.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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