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Clexton v. Clexton

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 14, 1995
Record No. 2546-93-1 (Va. Ct. App. Mar. 14, 1995)

Opinion

Record No. 2546-93-1

Decided: March 14, 1995

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON, Nelson T. Overton, Judge

Jeffrey R. Russell (Jeffrey R. Russell, P.C., on brief), for appellant.

Debra C. Albiston (Weinberg Stein, on brief), for appellee.

Present: Judges Baker, Willis and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


In this appeal, Edward William Clexton, Jr. (husband) contends that the Circuit Court of the City of Hampton (trial court) erred (1) by declaring that Barbara Ann Wright Clexton's (wife) share of his monthly military retirement pay was $1,903 and (2) by determining that wife was entitled to share in any cost of living increase of his pension when received.

Husband and wife married on June 10, 1960, separated on July 8, 1985, and were divorced by a decree entered by the trial court on July 25, 1986. That decree incorporated by reference a Stipulation and Property Settlement Agreement (PSA) executed by husband and wife on June 5, 1986. The divorce decree contained the following specific language:

[I]t is ADJUDGED, ORDERED and DECREED that at the time of [husband's] retirement from the United States Navy, [wife] shall receive as her sole separate property one-half of husband's military retirement income for 25 years, based on [husband's] base pay on December 19, 1985, said base pay being $5,075.45 per month at that time.

The quoted language was almost identical to that contained in the PSA.

Pension

Husband retired on October 1, 1993. He and wife could not agree upon the monthly sum wife was entitled to receive as her portion of his retirement pay. On November 18, 1993, wife moved the trial court to revise the terms of the divorce decree "so as to effectuate the expressed intent of the parties." Pursuant to that motion, the trial court entered a further decree that provided:

[B]eginning with the first retirement payment to [husband] and continuing each month thereafter, [wife] shall receive directly from the U.S. Navy the sum of One Thousand Nine Hundred Three Dollars (1,903.00), which sum shall be increased by the percentage of any cost-of-living adjustment to [husband's] retirement pay at the time of such adjustment.

This appeal emanates from that decree.

Husband contends that the trial court erred by applying the provisions of Code Sec. 20-107.3(G) that were in effect at the time the divorce decree was entered rather than the amendment, Code Sec. 20-107.3.G.1, that was in effect on November 18, 1993. We disagree.

The statute in effect, in 1985 when the divorce suit was filed and 1986 when the divorce decree was entered, did not limit the percentage of the "marital share" except that it could not exceed fifty percent of the cash benefits received by the party against whom the award was made. The trial court is required to apply the provisions of that code section. See Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788 (1991); Price v. Price, 4 Va. App. 224, 355 S.E.2d 905 (1987).

Husband seeks to limit wife's share of his retirement income by applying an additional reduction based upon the parties' twenty-five years of marriage divided by husband's total years of military service. We hold, on the facts before us, that increases in husband's base pay attributable to the years of service following the parties' divorce were properly excluded, and that the trial court did not err when it determined that wife was entitled to one-half of husband's income, using the agreed base salary.

Cost of Living Adjustments

The divorce decree did not expressly incorporate any future adjustments to husband's retirement income. The trial court awarded wife "one-half of husband's military retirement income for 25 years, based on defendant's base pay on December 19, 1985." We further hold that the trial court did not err when it provided that wife share in husband's retirement income increases over the years resulting from general adjustments for inflation or otherwise. The trial court's interpretation of the decree conforms with both the language of the decree and the underlying statutory goal to " 'compensate a spouse for his or her contribution to the acquisition of [all marital] property obtained during the marriage.' " Gamble v. Gamble, 14 Va. App. 558, 569, 421 S.E.2d 635, 642 (1992) (citation omitted).

Accordingly, the decision of the circuit court is affirmed.

Affirmed.


Summaries of

Clexton v. Clexton

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 14, 1995
Record No. 2546-93-1 (Va. Ct. App. Mar. 14, 1995)
Case details for

Clexton v. Clexton

Case Details

Full title:EDWARD WILLIAM CLEXTON, JR. v. BARBARA ANN WRIGHT CLEXTON

Court:Court of Appeals of Virginia. Argued at Norfolk, Virginia

Date published: Mar 14, 1995

Citations

Record No. 2546-93-1 (Va. Ct. App. Mar. 14, 1995)