Opinion
Record No. 0764-92-2
September 7, 1993
FROM THE CIRCUIT COURT OF NEW KENT COUNTY WILLIAM L. PERSON, JR., JUDGE.
Peter W. D. Wright, for appellant
No brief or argument for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Joseph Crump (husband) appeals from the Qualified Domestic Relations Order and Final Decree of Divorce in which Irene Crump (wife) was awarded two-thirds of the marital assets. Husband contends that the commissioner and the trial court erroneously awarded wife a greater share based on husband's alleged marital misconduct, conduct that had no effect on the marital assets. Finding that the commissioner and trial judge properly considered all of the factors in Code § 20-107.3(E) in making the equitable distribution award, we affirm.
Unless it appears from the record that the 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) (quoting Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987)). "[I]n reviewing an equitable distribution award, we rely heavily on the trial judge's discretion in weighing the particular circumstances of each case. Only under exceptional circumstances will we interfere with the exercise of [that] discretion." Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 837 (1988).
Joseph and Irene Crump were married in Virginia on July 4, 1959. Three children were born of this union. Husband removed himself from the marital bedroom on October 1, 1989, after being confronted by the wife regarding his extra-marital affair. Husband admitted to an ongoing relationship with another woman for a number of years. The couple remained in the marital home until late June 1990, at which time husband began living in his girlfriend's basement; however, the marital relationship effectively ended on October 1, 1989.
While there is some conflict as to how long the extra-marital relationship had been going on, the commissioner found that it had been ongoing for seven years. Wife testified at the commissioner's hearing that husband told her that the relationship had been going on for seven years, and husband testified that it had been going on for two or three years.
Husband's gross income is approximately $48,000 a year, and wife's gross income as a beautician is approximately $8,500 a year. Although husband was the primary monetary contributor to the well-being of the family throughout the thirty-plus years of the marriage, wife worked outside the marital home, at least on a part-time basis, since 1976 and made a monetary contribution to the well-being of the family. Additionally, wife was the primary care-taker of the three children and the person responsible for the maintenance of the household, including preparation of meals, cleaning and taking care of the children.
All of the property owned by the parties is marital property and includes the marital home valued at $73,900, with an equity of $54,305.27; furnishings with an equity of $5,500; a 1985 Pontiac automobile and a 1989 Ford truck, the equity in each being $3,750 and $4,492.83, respectively; and a deferred profit-sharing plan from husband's employer valued at $106,539.67. The total marital assets are $174,587.77.
Based upon the equities and the rights and interests of each party in the marital property, and based upon consideration of the factors set forth in Code § 20-107.3(E), the commissioner recommended the following awards in order to accomplish an equitable distribution: (1) wife would receive the marital home, all the furniture therein, and the 1985 Pontiac automobile; (2) husband would receive the 1989 Ford Pick-up truck, subject to the lien on its title; and (3) wife would receive one-half of the deferred profit sharing plan when such benefits are payable.
Husband filed exceptions to the commissioner's report, contending that awarding wife the marital home was excessive and contrary to the evidence, as well as contrary to law, as husband supported wife, made the house payment, paid for the household expenses, paid for the home maintenance and otherwise provided for the family's needs and expenses.
On March 17, 1992, the trial judge entered a final decree of divorce, and ratified, incorporated and affirmed the commissioner's report and distribution of the marital property.
"The purpose of Code § 20-107.3 is to fairly divide the value of the marital assets acquired by the parties during marriage with due regard for both their monetary and nonmonetary contributions to the acquisition and maintenance of the property and to the marriage." Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107 (1989). "The goal of equitable distribution is to adjust the property interests of the spouses fairly and equitably. The mechanism to accomplish that goal is the monetary award." Booth v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988).
"This Court has specifically stated that the term 'equitable distribution' does not mean 'equal distribution.'" Marion v. Marion, 11 Va. App. 659, 663, 401 S.E.2d 432, 435 (1991). The requirement that a court consider all of the statutory factors of Code § 20-107.3 evinces the legislature's intent that there be no presumption of equal distribution. See Marion, 11 Va. App. at 663, 401 S.E.2d at 435. "Although a court may consider the circumstances and factors which contributed to the dissolution of the marriage, . . . [it is] only one of [the] factors the court must consider in balancing the equities in property distribution." Id. at 664, 401 S.E.2d at 436 (citing Code § 20-107.3(E) (5)).
The record reflects that the commissioner based the award upon the equities and the rights and interests of each party in the marital home and upon consideration of all of the factors set forth in Code § 20-107.3(E). Although wife pleaded with the commissioner to punish husband for his extra-marital relationship, nothing in the record suggests that the commissioner or the trial judge considered fault as a punitive factor in making the equitable distribution award. The references to husband's marital fault in the commissioner's report and in the decree were properly included as grounds for the divorce, and there is no indication that such fault was improperly considered in the equitable distribution award. Accordingly, we cannot say that the trial court abused its discretion in making the equitable distribution award or that it failed to consider properly all of the factors in Code § 20-107.3.
For the reasons stated above, the judgment is
Affirmed.
"The purpose of Code § 20-107.3 is to fairly divide the value of the marital assets acquired by the parties during [the] marriage with due regard for both their monetary and nonmonetary contributions to the acquisition and maintenance of the property and to the marriage." Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107 (1989). In making that division, the trial judge is required by the language of the statute to consider the factors enumerated in Code § 20-107.3(E). Those factors must be rationally applied to effect the purpose of the statute and may not be used to exact an economic penalty.
To comply with Code § 20-107.3(E)(5) a court must consider all circumstances that led to the dissolution of the marriage insofar as those circumstances are relevant to a monetary award. Equitable distribution is predicated upon the philosophy that marriage represents an economic partnership requiring that upon dissolution each partner should receive a fair portion of the property accumulated during the marriage. Therefore, circumstances that affect the partnership's economic condition are factors that must be considered for purposes of our equitable distribution scheme. Circumstances that lead to the dissolution of the marriage but have no effect upon marital property, its value, or otherwise are not relevant to determining a monetary award, need not be considered.
. . . Fault in the dissolution of the marriage represents only one of the factors listed in Code § 20-107.3 and should not be used to punish economically either of the parties to the marriage.
. . . When there is no suggestion that the additional acts of misconduct added to the economic consequences caused by the dissolution of the marriage, the evidence is irrelevant to the determination of a monetary award.
Aster v. Gross, 7 Va. App. 1, 5-6, 371 S.E.2d 833, 836 (1988) (citation omitted).
The record reflects that all of the marital property was acquired through the joint efforts of the parties. The husband was the primary monetary contributor to the well-being of the family and was responsible for the maintenance of the family home. The wife was the primary caretaker of the children, as well as contributing monetarily on a part-time basis. However, the husband earned five and one-half times as much as the wife and financially supported the family during thirty-three years of marriage. Although the commissioner's findings reflect that "the husband made the greater financial contribution to the acquisition and care and maintenance of such marital property," the commissioner, nonetheless, recommended that the trial judge award the husband only thirty percent of the marital assets.
Although the commissioner stated that the monetary award was "[b]ased upon the equities and the rights and interests of each party in the marital home, and based upon consideration of the factors set forth in Section 20-107.3(E)," the commissioner placed undue emphasis on the fault of the husband in the dissolution of the marriage. In fact, other than his finding of the husband's greater financial contribution balanced against the wife's non-monetary and monetary contribution, the only other factor that the commissioner discussed was the husband's fault. The commissioner's report explicitly states that "the evidence did not prove adultery." Moreover, the commissioner did not find that the husband's extra-marital activity had any economic impact on the marital estate.
The findings of the husband's role as the primary monetary contributor, as well as his efforts in maintaining the family home, do not support the disproportionate award in this case. The record as a whole reflects that the commissioner placed improper emphasis on the husband's fault and based the award of the entire house and furniture to the wife on this factor alone. Without a finding that the husband's fault economically contributed to the diminution of the marital assets, the commissioner has misapplied one of the factors set forth in Code § 20-107.3.
"[I]n determining the amount of the monetary award, if the court's findings are not supported by the evidence in the record, the court has abused its discretion, and the court's determination must be reversed." Trivett v. Trivett, 7 Va. App. 148, 154, 371 S.E.2d 560, 563 (1988). The only basis for the commissioner's recommendation of a disproportionate award in this matter is the unjustified emphasis on the husband's fault. When fault in the dissolution of the marriage has had no economic impact or bearing on the marital assets, it is improper to base an award on this factor. Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836. By approving the recommendations, the trial judge merely adopted that error.
We will not simply assume, in every instance, that the trial court has followed this settled law in granting a monetary award, particularly when it appears that one or more factors is difficult to reconcile with the award or the award is inexplicable based on the facts, when we are required to review on appeal an issue arising under this Code section. We must be able to determine from the record that the trial court has given substantive consideration to the evidence as it relates to the provisions of this Code section.
Trivett, 7 Va. App. at 153, 371 S.E.2d at 563 (citation omitted).
It is insufficient for the trial judge to state that an award is "based upon a consideration of the factors set forth in Code § 20-107.3" without discussing the application of the factors. This is particularly true where the commissioner's recommendation is based on an erroneous application of the law to the facts. Accordingly, I would reverse the order of the trial judge and remand for a proper application of the factors set forth in Code § 20-107.3(E).