Opinion
Record No. 1759-93-2
Decided: November 15, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY, W. Park Lemmond, Jr., Judge Designate
Affirmed.
L. Willis Robertson, Jr. (Cosby and Robertson, on brief), for appellant.
Morton B. Spero for appellee.
Present: Judges Baker, Benton and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Robert R. Gwathmey, III, (husband) appeals from the trial court's decision determining the value of his pension and ordering him to pay thirty percent of the marital portion to Bonnie M. Gwathmey (wife). In an earlier appeal, we found that the record did not support the trial court's determination of the present value of husband's pension, and remanded the valuation issue to the trial court. Gwathmey v. Gwathmey, Record No. 0889-91-2 (Va.Ct.App. Sept. 1, 1992). Husband raises three issues on appeal: (1) whether the trial court erred in valuing the pension fund as of the July 31, 1987 evidentiary hearing; (2) whether the trial court erred in ordering husband to make payments to wife commencing July 31, 1987; and (3) whether the trial court erred in awarding wife thirty percent of husband's pension payments without reconsidering the factors in Code Sec. 20-107.3.
In reviewing the trial court's determination on appeal, "we have recognized that the trial court's job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case." Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987). "Unless it appears from the record that the chancellor has abused his discretion or has failed to consider or has misapplied one of the statutory factors, his determination will not be reversed on appeal." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990).
PROPER VALUATION DATE FOR MARITAL ASSETS
In attaining its ultimate statutory obligation "to obtain the most accurate valuation and equitable distribution" of marital assets, a court must use the proper date for determining the value of marital assets. Wagner v. Wagner, 16 Va. App. 529, 531, 431 S.E.2d 77, 78 (1993). In some circumstances, a new valuation upon remand is appropriate. See id. at 531-32, 431 S.E.2d at 79 (stock and real estate revalued upon remand); Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788, 790-91 (1991) (residence revalued upon remand). In other circumstances, the chancellor may re-examine the equitable distribution of marital assets without redetermining their values. See Kaufman v. Kaufman, 12 Va. App. 1200, 1207-10, 409 S.E.2d 1, 5-7 (1991) (marital asset not subject to revaluation upon remand).
The sole issue upon remand in the instant case was the proper value of husband's pension fund. All other issues were left unchallenged and became the "law of the case."
Where there have been two appeals in the case, between the same parties, and the facts are the same, nothing decided on the first appeal can be re-examined on a second appeal. Right or wrong, it is binding on both the trial court and the appellate court, and is not subject to re-examination by either.
Id. at 1208, 409 S.E.2d at 6 (citation omitted).
The trial court valued all marital assets as of the July 31, 1987 hearing. If properly valued at that time, the parties stipulated that the present value of husband's pension would be $274,320. Since that time, husband has continued to receive monthly payments from the pension, decreasing the pension's present value as of the alternative valuation dates.
We cannot say the trial court abused its discretion in retaining the same valuation date for the pension fund as was used for all other items of marital property previously distributed. Revaluation of the pension fund using the remand date would be inequitable, because husband has used the fund and has decreased its value during the intervening years.
INITIAL PENSION PAYMENT DATE
It is not an abuse of discretion to require husband to compensate wife for her share of the pension payments he has received since the earlier hearing date.
We approved the distribution of a pension fund interest by means of "an award of a percentage of the pension based upon consideration of the present value and payable as a percentage of each pension payment during the life of the pension." Zipf v. Zipf, 8 Va. App. 387, 398, 382 S.E.2d 263, 269 (1989). It is necessary to bring these payments current in order to implement effectively the award to wife of an interest in husband's pension fund based upon the present value of the fund as of July 31, 1987.
PERCENTAGE OF PENSION PAYMENTS
The sole issue before the trial court on remand was the value of husband's pension, in which the court had previously awarded wife a thirty percent interest. Granting a percentage of a pension fund is a proper method of satisfying a spousal interest in such a fund. Id. "[W]hen there is a re-valuation [sic] of marital property, a reconsideration of the equitable award based upon all of the factors contained in Code Sec. 20-107.3 is also appropriate." Wagner, 16 Va. App. at 533, 431 S.E.2d at 80.
Because the other items of marital property were not subject to revaluation, the trial court was not required to reapply the statutory factors contained in Code Sec. 20-107.3 and fashion a different division of the marital assets. However, we note the final order reflects the fact that the trial court considered the statutory factors before issuing its decision.
Accordingly, the decision of the trial court is affirmed.
Affirmed.