Russell E. Swanson v. Madeline C. Swanson ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
RUSSELL E. SWANSON
MEMORANDUM OPINION *
v. Record No. 0070-96-1 PER CURIAM
AUGUST 13, 1996
MADELINE C. SWANSON
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
(Stephen F. Forbes; Forbes & Broadwell, on
briefs), for appellant.
(Kathy Gear Owens, on brief), for appellee.
Russell E. Swanson (husband) appeals the decision of the
circuit court awarding a portion of his retirement benefits to
Madeline C. Swanson (wife). Husband raises the following
arguments on appeal: (1) whether the circuit court erred in
determining the marital share of his retirement income; and (2)
whether the circuit court erred in requiring husband to continue
to pay the monthly premium for wife's survivor benefit. 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.
The evidence was heard by a commissioner in chancery, whose
report was accepted by the trial court with only slight
modification. "On appeal, a decree approving a commissioner's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
report must be affirmed unless plainly wrong." Scinaldi v.
Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986).
"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 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).
Marital Share
Under Code § 20-107.3(G), the trial court is authorized to
"direct payment of a percentage of the marital share of any
pension . . . or retirement benefits," provided that
[n]o such payment shall exceed fifty percent
of the marital share of the cash benefits
actually received by the party against whom
such award is made. "Marital share" means
that portion of the total interest, the right
to which was earned during the marriage and
before the last separation of the parties
. . . .
Id.
In this case, the marital share of husband's retirement
benefits could not be determined based solely upon his years of
his employment or the duration of the marriage. Husband's
monthly payment was based upon his years of military service
prior to the marriage, his years of civilian service largely
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during the marriage, and a cash pay-in of over $10,000 in marital
assets. The commissioner found that $833 of the monthly payment
of $1,796 was husband's separate property, based upon the amount
actually received by husband as his military retirement prior to
the marriage.
The commissioner found the testimony of both parties'
experts to be inadequate. Wife's expert gave a present value
calculation that failed to exclude husband's pre-marital military
employment. Husband's expert identified $524 per month as the
marital share, but failed to include any amount attributable to
the $10,000 pay-in of marital assets. Moreover, "the finder of
fact is not required to accept as conclusive the opinion of an
expert." Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d
368, 370 (1986).
The commissioner found the marital share of the monthly
payment to be approximately $744, the average between $524 and
$963. The trial court modified that recommendation to award wife
21% of husband's monthly payment. We cannot say that the court's
award exceeded the amount authorized by statute or that it was
plainly wrong or without evidence to support it. Therefore we
will not set aside the award.
Survivor's Benefit
Husband contends that the trial court erred in accepting the
commissioner's recommendation that husband continue to pay the
monthly survivor's benefit premium. The determination of which
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party is to bear the cost of any survivor benefit is left to the
discretion of the trial court. Code § 20-107.3(G)(2). We cannot
say the trial court abused its discretion in continuing the
payment.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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