Ronald Lee Allen, Sr. v. Peggy Ann Allen

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RONALD LEE ALLEN, SR.
v. Record No. 2459-94-1 MEMORANDUM OPINION *
PER CURIAM
PEGGY ANN ALLEN MAY 30, 1995
FROM THE CIRCUIT COURT OF
THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
(Albert L. Fary, Jr., on brief), for appellant.
(F. Sullivan Callahan; Moss & Callahan, on brief), for
appellee.
Ronald Lee Allen, Sr., (husband) appeals from a final decree
of divorce. Husband raises the following issues on appeal: (1)
whether the trial court erred in awarding Peggy Ann Allen (wife)
spousal support; (2) whether the trial court erred in not
awarding child support retroactive to the date wife received
notice of husband's intention to seek child support; (3) whether
the trial court erred in awarding wife $5,500 as her interest in
the marital home; and (4) whether the trial court erred in
awarding wife fifty percent of the marital share of husband's
pension. 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, who
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
forwarded his recommendations to the trial court. The trial
court reduced the amount of recommended spousal support payable
to wife and made a corresponding reduction in child support.
Wife does not appeal the trial court's modifications. We presume
that the decree confirming the commissioner's report, as
modified, is correct, and it will not be disturbed on appeal "if
it is reasonably supported by substantial, competent, and
credible evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338
S.E.2d 651, 652 (1985).
I. Spousal Support
In reviewing the trial court's decision to award spousal
support, we note that
the chancellor must consider the relative
needs and abilities of the parties. He is
guided by the nine factors that are set forth
in Code § 20-107.1. When the chancellor has
given due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
Husband has failed to demonstrate that wife is barred from
receiving spousal support under Code § 20-107.1. Wife was
granted a divorce on the ground of the parties having lived
separate and apart for one year after September 5, 1989.
Although husband contends that the evidence proved adultery, the
pleadings did not allege adultery and the record does not contain
evidence sufficient to prove adultery.
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Although husband alleged that wife was receiving financial
assistance from another man and did not need support, husband
presented no evidence to support this allegation. Wife presented
credible evidence demonstrating that her standard of living had
declined following the parties' separation and that she needed
financial support. Husband testified he had an average annual
income of $90,000. On this evidence, we cannot say the trial
court abused its discretion in awarding wife spousal support.
II. Retroactive Child Support
The trial court, pursuant to the statutory guidelines
contained in Code § 20-108.2, awarded child support payable to
husband. Husband claims that the trial court should have ordered
wife to pay child support from September 1991, when husband
notified wife that he would seek pendente lite child support.
The husband took no action pending the proceedings to obtain a
pendente lite award. The record does not establish that the
trial court abused its discretion in setting the effective date
of the support award.
III. Award of Interest in Marital Home
"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
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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, the chancellor's equitable
distribution award will not be reversed on
appeal."
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted).
The trial court ruled that wife was entitled to receive
one-half of the equity in the marital home. While husband
testified that the home had no equity, credible evidence supports
the trial court's determination that the home had equity in the
amount of $11,000.
The trial court's order indicates that it considered the
statutory factors contained in Code § 20-107.3. Moreover, the
evidence showed that wife had made financial contributions to the
family as well as substantial non-monetary contributions
throughout the marriage. A previous home, purchased with joint
funds, had been signed over by wife under fear of foreclosure and
was determined to be husband's separate property.
We cannot say the trial court's decision awarding wife
$5,500 as her share of the marital home is plainly wrong or
unsupported by the evidence. Therefore, the trial court's
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decision is affirmed.
IV. Retirement Benefits
Husband contends that wife should not receive a share of his
retirement benefits attributable to the parties' two-year period
of separation prior to the final separation. However, Code
§ 20-107.3 defines marital share as "that portion of the total
interest, the right to which was earned during the marriage and
before the last separation of the parties." While the parties
initially separated in 1987, it was uncontroverted that the
parties reconciled for a two-month period in 1989. Additional
evidence indicated that the parties continued to see each other
throughout the period of separation, and even took a cruise
together. Therefore, credible evidence supports the conclusion
that "at least one of the parties intended that the separation be
permanent" only after September 5, 1989.
The trial court complied with the statutory provision in
determining the marital share. Therefore, we find no error or
abuse of discretion in the award to wife of fifty percent of the
marital share of husband's retirements benefits.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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