John R. Miller, Jr. v. Ann Majewski Miller ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
JOHN R. MILLER, JR.
MEMORANDUM OPINION *
v. Record No. 1465-01-1 PER CURIAM
DECEMBER 11, 2001
ANN MAJEWSKI MILLER
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Samuel B. Goodwyn, Judge
(Robert G. Byrum; Shames & Byrum, P.C., on
brief), for appellant.
(Gregory S. Larsen; William W. Harty; Roy,
Larsen, Romm & Lascara, P.C., on brief),
for appellee.
John R. Miller, Jr. (husband) appeals the decision of the
circuit court awarding him a no-fault divorce from Ann Majewski
Miller (wife) pursuant to Code § 20-91(9)(a). On appeal, husband
contends the trial court erred in (1) awarding wife a share of his
pension benefits and (2) awarding wife 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. See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Procedural Background
The parties were married on September 23, 1989. On February
11, 1999, husband filed a bill of complaint seeking a divorce.
The court, on July 19, 1999, entered a pendente lite order
granting physical custody of the parties' minor child to wife and
ordering husband to pay $500 per month in child support. Both
parties filed exceptions to the commissioner in chancery's
December 21, 2000 report. The trial court granted husband's
request for a divorce on the ground that the parties lived
separate and apart for over one year, pursuant to Code
§ 20-91(9)(a). On May 23, 2001, the court entered a final decree
of divorce. The court ordered husband to pay wife $500 per month
spousal support for one year, pursuant to Code § 20-107.1(C). The
court also confirmed and approved the commissioner's report which
included an equitable distribution award to wife of a portion of
husband's pension benefits.
Analysis
I.
"A decision regarding equitable distribution rests within
the sound discretion of the trial court and will not be
disturbed unless it is plainly wrong or without evidence to
support it." Holden v. Holden, 31 Va. App. 24, 26-27, 520
S.E.2d 842, 844 (1999). "Unless it appears from the record that
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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 parties agreed to the distribution of husband's
pension program under the Virginia Retirement System, as noted
in the commissioner's report and the final decree of divorce.
The trial court did not abuse its discretion in ratifying the
parties' express agreement to divide husband's pension.
Evidence that wife took over $21,000 worth of personal
property from the marital home was not admitted during the
commissioner's hearing. On appeal, husband does not challenge
the commissioner's ruling that the evidence was inadmissible.
Because the evidence was not admitted, the commissioner and
trial court correctly refused to consider it in the equitable
distribution award.
II.
"A spousal support award is subject to the trial court's
discretion and will not be disturbed on appeal unless plainly
wrong or without evidence to support it." Howell v. Howell, 31
Va. App. 332, 351, 523 S.E.2d 514, 524 (2000). "If the court
determines that an award [of spousal support] should be made,
the court is required to consider all the factors outlined in
Code § 20-107.1." Barker v. Barker, 27 Va. App. 519, 527-28,
500 S.E.2d 240, 244 (1998). The commissioner considered the
Code § 20-107.1 factors and determined wife was in need of
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financial support and that husband has the ability to meet the
need. At the time of the hearing, wife earned $500 per month
and husband earned $3,000 monthly. The commissioner
specifically noted wife was in need of support in order to
secure the education and training necessary to enhance and
improve her earning ability. The trial court accepted the
commissioner's findings and awarded wife the sum of $500 per
month. Based on all the evidence and appropriate factors, we
conclude that the record supports the spousal support award of
$500 per month for the period of one year.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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