Opinion
Record No. 1390-92-2 Record No. 1450-92-2
August 10, 1993
FROM THE CIRCUIT COURT OF NEW KENT COUNTY RUSSELL M. CARNEAL, JUDGE DESIGNATE.
Joseph B. Benedetti (Durrette, Irvin, Lemons Fenderson, P.C., on briefs), for Diane B. Walls.
James C. Roberts (Mary Burkey Owens; Everette A. Felts; Mays Valentine, on briefs), for Thomas L. Walls.
Present: Judges Coleman, Willis and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed in part and reversed and remanded in part for the following reasons:
(1) Because the trial court erred in calculating the present value of the husband's pension, we reverse and vacate the holding denying the wife any interest therein and remand the equitable distribution award for reconsideration of that issue. The decision whether to award a percentage of one spouse's pension to the other spouse lies within the sound discretion of the trial judge and will not be set aside unless plainly wrong or without evidence to support it. Aster v. Gross, 7 Va. App. 1, 5, 371 S.E.2d 833, 836 (1988); Artis v. Artis, 4 Va. App. 132, 136-37, 354 S.E.2d 812, 814-15 (1987).
The evidence does not support the trial judge's decision to deny the wife any share of the husband's pension. The trial judge's decision to deny the wife a percentage of the husband's pension, which was one of the most substantial marital assets, was based upon the erroneous finding that the value of the wife's pension was relatively equivalent to the present value of the husband's pension. Prior to separation, the wife had cashed in her pension, and the court permitted her to retain the approximately $4,800 that she received. The husband, whose pension accumulated $2,644.43 in cash value as of the date of separation, had not cashed in his pension. Although no evidence of present value was proven, the court treated the amount of $2,644.43 as present value. The evidence showed, however, that based upon the value of the pension and the contributions that had been and would be made, depending upon when the husband retired, his benefits would approximate $2,000 per month. Thus, contrary to the trial judge's conclusion, the husband's pension is a major and substantial marital asset that is not equally offset by the amount that the wife received by cashing her pension.
Because the trial judge erroneously found that the values of the two pensions were comparable, the decision to disallow the wife an interest in the husband's pension on that basis was plainly wrong. Accordingly, we reverse the trial judge's decision regarding the distribution of the husband's pension and remand the equitable distribution award for further proceedings for the trial judge to determine whether the wife is entitled to a percentage of the husband's pension. See Zipf v. Zipf, 8 Va. App. 387, 397, 382 S.E.2d 263, 268-69 (1989).
(2) Credible evidence supports the trial judge's equitable distribution of the personal and real marital property and the amount awarded to the wife. Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). The trial judge considered all the factors under Code § 20-107.3(E).Lambert v. Lambert, 6 Va. App. 94, 106, 367 S.E.2d 184, 191 (1988). Based upon the finding that each party had contributed both monetarily and nonmonetarily to the well-being of the family and in the acquisition, care and maintenance of the marital home and all marital personal property, the trial judge equally distributed those marital assets. Because the husband purchased the Nissan van after separation, the van was not marital property subject to equitable distribution. See Price v. Price, 4 Va. App. 224, 229, 355 S.E.2d 905, 908 (1987).
As to the parties' one-third interest in the acreage in New Kent County, the wife agreed to a monetary award of $500 for reimbursement of real estate taxes paid from marital funds. Notwithstanding the wife's agreement, however, the trial court was entitled to grant the husband a larger share of the value of the New Kent County property based on the facts that the husband was given the one-third interest in the land by his grandmother and the wife made little or no monetary or nonmonetary contribution to that property. See Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 504, 507 (1990). Thus, the award to the wife, even if her portion represents 39.6 percent of the total value of the marital estate, was based upon the factors and was fairly supported by the evidence.
(3) The trial judge did not err by awarding the wife an amount of permanent spousal support that was less than the pendente lite award. The standard for establishing permanent spousal support is based upon different criteria than those used for making an award pendente lite. Permanent spousal support is based upon the needs and earning capacity of both parties, as well as the factors specified in Code § 20-107.1. In determining the amount of a pendente lite award, the trial judge considers the amount necessary for the immediate maintenance and support of the spouse while the suit is pending without necessarily considering long-term obligations, as well as an amount necessary to allow that spouse to carry on the law suit. Code § 20-103. Accordingly, an award of Code § 20-107.1 spousal support made pursuant to Code § 20-103 criteria is not only unnecessary, but erroneous. Weizenbaum v. Weizenbaum, 12 Va. App. 899, 903-04, 407 S.E.2d 37, 38 (1991); Holmes v. Holmes, 7 Va. App. 472, 484, 375 S.E.2d 387, 394 (1988).
(4) The trial judge did not abuse his discretion in determining the amount of the wife's spousal support. The trial court considered all the factors under Code § 20-107.1 in determining an appropriate amount of spousal support to grant the wife. See Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d 363, 367 (1986).
Affirmed in part, reversed and remanded in part.