Torian v. Torian

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia

VIRGINIA HAHN TORIAN
OPINION BY
v. Record No. 2090-01-3 JUDGE LARRY G. ELDER
APRIL 23, 2002
ROBERT RAY TORIAN

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge

Sidney H. Kirstein for appellant.

Jennifer E. Stille (John J. O'Keeffe, Jr.;
O'Keeffe & Spies, on brief), for appellee.

Virginia Hahn Torian (wife) appeals from the trial court's

decision equitably distributing the assets from her marriage to

Robert Ray Torian (husband) and awarding her spousal support for

a defined duration. On appeal, wife contends the trial court

erroneously failed to value husband's Virginia Retirement System

(VRS) pension, which the parties agreed was marital property,

and failed to award wife any portion of that pension or take its

value into account in the equitable distribution. She also

contends the trial court's award of spousal support for a

defined duration of seven years was erroneous because the

parties' marriage was a lengthy one, lasting twenty-six years,

and she demonstrated a need to receive support for a longer

period. Finally, she contends the trial court failed to include
"written findings and conclusions" that "identify the basis for

the nature, amount and duration of the award," as required by

Code § 20-107.1(F) for a defined duration award.

We hold the trial court's failure to determine the present

value of husband's VRS pension was not error because wife failed

to present credible evidence of that value. Further, the trial

court's failure to award wife a portion of the monthly VRS

benefit as received did not constitute an abuse of discretion.

We also conclude that the trial court's award of a defined

duration spousal support award was not error under the facts of

this case. Finally, we hold that wife failed to preserve for

appeal her claim that the trial court failed to "identify the

basis for the nature, amount and duration" of the defined

duration award. Thus, we affirm the trial court's equitable

distribution and spousal support awards.

I.

BACKGROUND

Husband and wife were married in 1973 and separated in

1999, after twenty-six years of marriage and the birth of one

child in 1974. Both parties requested the trial court grant

them a divorce based on a one-year separation. As of the

December 5, 2000 evidentiary hearing, husband was sixty-six

years old and wife was fifty-two.

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 The parties agreed that all assets were marital and agreed

to divide the value of most of them equally. 1 The parties'

assets included husband's "457 deferred compensation plan,"

referred to by the parties as the ICMA account. Husband was

required to draw on that account at a rate of $2,082 per month.

Husband testified that all the funds in the account were

invested and that, "if everything goes according to the way it

is now," the value of the account would be zero in about six

years due to the mandated monthly draw. The parties agreed to

divide the ICMA account evenly.

Wife had an IRA with a stipulated value of $370,665. The

parties disagreed over whether or how to divide that asset.

The parties agreed that husband's Virginia Retirement

System (VRS) pension was marital property but disagreed over

whether it should be divided and, if so, whether it should be

divided as a lump sum based on present value or as husband

received the monthly payments. Wife testified, without

objection, "we paid somebody to tell me the value of his

account" and that value was "$180,374." No further evidence,

expert or otherwise, was offered by either party as to the

present value of the VRS pension.

1
The parties disagreed over the character of an investment
account titled to both husband and the parties' adult daughter,
Miriam. The trial court found that this account was marital
property, and the parties do not dispute this finding on appeal.

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 The parties also disagreed over whether wife was entitled

to spousal support and, if so, in what amount. Husband argued

that the parties had "decent assets" but "very little income"

and contended he should not be required to pay spousal support,

especially since he was sixty-six years old and had retired

whereas wife was fifty-two years old and had worked on a

full-time basis throughout most of their marriage. Wife claimed

an income shortfall of $1,800 per month and fragile emotional

health as a result of the parties' divorce. She sought $1,000

per month in ongoing spousal support.

II.

ANALYSIS

A.

VRS PENSION: VALUATION AND DIVISION

1. Husband's Statements Regarding Division of Property

We reject wife's argument that husband should be judicially

estopped from denying an equal division of all marital assets.

Judicial estoppel provides that "in successive actions between

two parties, 'a party will not be permitted to maintain

inconsistent positions . . . .'" Richfood, Inc. v. Ragsdale, 26

Va. App. 21, 23-24, 492 S.E.2d 836, 837 (1997) (quoting 28 Am.

Jur. 2d Estoppel and Waiver § 68 (1966)) (emphasis added).

Because wife's contention involves a single proceeding, judicial

estoppel does not apply.

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 We agree generally with the principle that a party should

not be permitted to "approbate and reprobate, by ascribing error

to an act by the trial court that comported with [that party's]

representations." Asgari v. Asgari, 33 Va. App. 393, 403, 533

S.E.2d 643, 648 (2000). However, we disagree that this

principle can be applied in this case.

Wife's quotation of husband's testimony and argument that

he desired an equal division of all assets takes these

statements out of context. The record makes clear that husband

did not agree to wife's receiving one-half his VRS pension,

either as an immediate offset in the marital asset division

based on its present value or as a deferred distribution of the

monthly benefits as received. Husband's opening statement

focused on his contention that the present value figure wife

claimed for the VRS pension was "a false figure," but when the

trial court observed that wife "could get half of [the VRS

pension]," husband's attorney responded, "Yes, sir, she can

. . . . But we don't want [her] to . . . ."

Husband's written submissions to the trial court conveyed

this position. He proposed an equitable distribution divided

into two distinct sections. One section contained most of the

assets, calculated their agreed total value, and labeled the

sum, "Total Marital Assets." A separate section, titled "Other

Assets," included husband's VRS pension plan and "Miriam's Legg

Mason Account," the only other asset the value or character of

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which was in dispute. In his written argument, husband

recommended expressly "that [his ICMA deferred compensation

plan] be divided equally." In the section relating to the

division of his VRS pension, however, he made no such

recommendation. Instead, he indicated that he was sixty-six

years old and unable to "obtain gainful employment," whereas

wife was fifty-two years old and able to work gainfully. He

also recited his prior agreement to share his ICMA benefits with

wife and listed the other assets she had, including her IRA.

Thus, although husband's argument may not expressly have

indicated he did not wish to share the VRS pension with wife,

the tenor of his argument was clear.

Finally, in a hearing to clarify the trial court's prior

ruling, wife's attorney admitted to the court her understanding

of husband's position. Wife's counsel conceded in that

argument, "The single point that brought us to court was that

[husband] said [wife] can't have fifty percent of my pensions

and alimony and that's why [the trial court] had to decide the

whole thing." Thus, the record does not support wife's argument

that she believed husband agreed to an equal division of all

marital assets.

2. The Trial Court's Preliminary Ruling

We reject wife's contention that the trial court was bound

by its preliminary letter ruling that all marital assets would

be evenly divided or that this ruling became the law of the

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case. The doctrine of the law of the case applies only in

situations where a final determination or ruling has been made

without objection. See, e.g., Med. Ctr. Hosps. v. Sharpless,

229 Va. 496, 498, 331 S.E.2d 405, 406 (1985) (holding that jury

instructions given without objection became law of the case and

governed resolution of the proceedings even on appeal). Where a

party objects to the ruling of a trial court, the court retains

the authority to act on that objection within twenty-one days

from entry of the final order. See Rule 1:1; Cloutier v. Queen,

35 Va. App. 413, 420-21, 545 S.E.2d 574, 577-78 (2001).

Here, the trial court's initial "approval" of the parties'

agreement to split all marital property equally, to the extent

it considered or included the VRS pension at all, clearly

misperceived the nature of the parties' agreement and

disagreement. Moreover, the trial court's reference to an even

division of the marital estate specifically referred to a

marital estate of $947,776 as provided in the parties' exhibits,

which amount excluded the VRS pension. As set out above, the

parties promptly informed the trial court of their disagreement

and presented additional argument. Manifestly, under these

circumstances, the trial court retained the authority to timely

correct its preliminary ruling.

3. Valuation and Division of VRS Pension

Code § 20-107.3(A) provides that the trial court "upon

request of either party, shall determine the . . . value of all

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property, real or personal, tangible or intangible, of the

parties." Subsection (G)(1) provides that "[t]he court may

direct payment of a percentage of the marital share of any

pension, profit-sharing or deferred compensation plan or

retirement benefits, whether vested or nonvested, which

constitutes marital property and whether payable in a lump sum

or over a period of time."

We have recognized two methods for valuing and dividing a

defined benefit plan, which "gives the employee a specific

benefit upon retirement." Brett R. Turner, Equitable

Distribution of Property §§ 6.02, 6.12, at 289, 367 (2d ed.

1994).

An award may be a percentage of the marital
share of the pension, in which case payment
is to be made only as retirement benefits
are paid. Code § 20-107.3(G). This method
of making an award is the deferred
distribution approach. Code § 20-107.3(C),
(D) and (G) provide that the court may also
make a monetary award, and in doing so, the
court shall consider the value of marital
property, including the value of the marital
share of a party's retirement or pension
plan. This method of making an award of the
value of a pension is the immediate offset
approach.

Gamer v. Gamer, 16 Va. App. 335, 342-43, 429 S.E.2d 618, 624

(1993) (citations omitted) (emphases added). The VRS pension is

a defined benefit plan.

In order to distribute benefits under the immediate offset

approach, the trial court must determine the present value of

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the marital share of those benefits. Id.; Johnson v. Johnson,

25 Va. App. 368, 374, 488 S.E.2d 659, 662 (1997) (citing Turner,

supra, § 6.12). This is so even "[w]here an award of the entire

pension is made to the owning spouse." Johnson, 25 Va. App. at

374, 488 S.E.2d at 662.

The party suggesting an award under the immediate offset

approach bears the burden of proving the present value of a

pension. Id. at 375, 488 S.E.2d at 662.

Virginia's trial courts may, without doing
violence to the [equitable distribution]
statute, make a monetary award without
giving consideration to the . . . valuation
of every item of property, where the parties
have been given a reasonable opportunity to
provide the necessary evidence to prove
. . . valuation but through their lack of
diligence have failed to do so.

Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551

(1987), cited with approval in Johnson, 25 Va. App. at 373, 488

S.E.2d at 662. Thus, where a party asks the trial court to make

an equitable distribution of a pension under the immediate

offset method but fails to provide credible evidence of present

value, the court has insufficient evidence with which to make an

award under the immediate offset method. See, e.g., Gamer, 16

Va. App. at 343, 429 S.E.2d at 624.

If a trial court orders deferred distribution of the

marital share of the pension, it need not determine the

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pension's present value. 2 Johnson, 25 Va. App. at 374, 488

S.E.2d at 662. Under the deferred distribution approach, "the

present value of the pension is irrelevant." Gamble v. Gamble,

14 Va. App. 558, 585, 421 S.E.2d 635, 651 (1992) (Benton, J.,

concurring) (citing Zipf v. Zipf, 8 Va. App. 387, 396-98, 382

S.E.2d 263, 268 (1989) (holding that order of deferred

distribution based on present value is error)). As we

recognized in Johnson, "[w]here . . . the evidence renders a

precise determination of a pension's [present] value practically

impossible[,] an award of pension benefits [via the deferred

distribution approach,] as those benefits are received by the

payor spouse[,] . . . may prove the only equitable method of

considering the pension benefits in making an award." Johnson,

25 Va. App. at 375, 488 S.E.2d at 662; see Robinson v. Robinson,

652 So. 2d 466, 467 (Fla. Dist. Ct. App. 1995) (holding that

where record contains no evidence of pension's present value,

2
Code § 20-107.3, as enacted in 1982, required a court
equitably distributing a marital estate to consider "[t]he
present value of pension or retirement benefits, whether vested
or nonvested." 1982 Va. Acts, ch. 309. In 1988, however, the
General Assembly deleted the present value language from the
statute. See 1988 Va. Acts, chs. 747, 880. See generally
Turner, supra, § 6.12, at 375-76 (recognizing some states hold
present value is "irrelevant" in case of deferred distribution
whereas other states require calculation of present value even
in case of deferred distribution because "the amount of marital
property is always relevant as a division factor" and "the trial
court should be aware in at least a general way of the amount of
property it is awarding to each spouse").

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trial court was required to divide it under deferred

distribution approach).

We hold the trial court, in the absence of evidence of the

present value of husband's VRS pension, did not abuse its

discretion by not making a finding of fact as to the present

value of the VRS pension. The record contains no formal

stipulation as to wife's $180,000 present value figure, and the

trial court made clear to wife on two occasions at the December

5, 2000 evidentiary hearing that it had "[no] evidence really

upon which to base" the $180,000 present value figure "other

than someone was paid to get that figure." Despite the trial

court's obvious concern about this void in the evidence, wife

made no attempt to offer such evidence to the court at that

time.

The trial court observed that, absent evidence of present

value, it "[could] certainly apportion the [pension's monthly]

payout," but it did not indicate a preference for this method or

refuse to allow wife to offer expert evidence of present value.

When wife submitted a revised proposed equitable distribution

schedule to the trial court in January 2001, she substituted,

"VRS Pension $1,682.00/mo. - to be divided 50-50," for her

previous proposal that the claimed present value of the pension

be apportioned to husband as part of the equitable distribution.

The trial court then issued a preliminary letter opinion

approving a distribution that equally divided the parties'

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marital assets of $947,776.84. This is the amount shown on

wife's revised equitable distribution schedule, which omits the

VRS pension from the total. The letter opinion made no separate

mention of the VRS pension, which prompted the parties to appear

again before the trial court on that issue. When the parties

discussed the pension at that hearing, the court indicated it

was "stone cold on this [issue]," and the parties tried to

reconstruct for the court what had transpired previously in

regard to the VRS pension. During that discussion, wife asked

if she could introduce evidence of the present value of the

pension. Husband objected, contending that it was "too late"

and that the trial court previously had refused to admit such

evidence, saying it "didn't want [the pension] valued that way."

The record indicates husband's assertions were incorrect.

Although husband had objected generally in his opening statement

that the use of any present value calculation would be a "false

figure," wife never offered expert evidence of the pension's

present value, and the trial court commented only that it lacked

evidence of present value, not that such evidence was

inadmissible if offered in the form of expert testimony.

Although husband's assertions were incorrect, wife did not bring

this fact to the trial court's attention, did not obtain a

ruling from the trial court on her request to submit evidence of

present value, and made no proffer of what her evidence would

be. Thus, as in Bowers, wife "had reasonable notice that the

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trial court considered the evidence of the [pension's] present

value insufficient," Bowers, 4 Va. App. at 620, 359 S.E.2d at

552, but she failed to take the steps necessary to present that

evidence to the trial court. "The responsibility to develop or

fill voids in the evidence of asset values rests with the

litigants, not with the trial judge." Id. at 617, 359 S.E.2d at

550. Accordingly, wife may not now complain that the trial

court erred by failing to assign a present value to the VRS

pension.

Wife nevertheless argues on appeal that the trial court

should have calculated present value using the method affirmed

in Holmes v. Holmes, 7 Va. App. 472, 375 S.E.2d 387 (1989). In

that case, we upheld the trial court's use of the annuity tables

in Code § 55-269.1 to ascertain the present value of a military

pension based on the age and corresponding life expectancy of

the pension's recipient. Id. at 479, 375 S.E.2d at 391-92. But

cf. Turner, supra, § 6.12, at 368-71 (outlining multiple

additional factors to be considered in determining present

value). In effect, wife argues on appeal that the trial court

was under a mandatory duty to determine the present value of the

VRS pension, pursuant to Holmes. Her argument is that the

evidence of husband's age (as the plan participant), the fact

that the VRS pension was in pay status, and the monthly payment

amount was sufficient to trigger the trial court's duty to

determine value. Assuming, but specifically not deciding, that

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Holmes stands for the proposition wife presents, she never

raised this argument in the trial court. She may not raise this

argument for the first time on appeal. Rule 5A:18.

This case amply illustrates the long standing policy

justification for the contemporaneous objection rule. Because

wife did not raise the Holmes argument below, husband had no

notice of a need to present evidence of factors regarding the

VRS pension that could affect a present value calculation. For

example, no evidence was before the trial court as to what was

the most appropriate present value discount rate, whether the

monthly benefit was subject to adjustment or forfeiture, or

whether unusual health problems would affect the calculation

factors. See Turner, supra, § 6.12, at 371-73. As wife never

raised the issue, husband and the trial court were never on

notice that evidence as to the foregoing or other pertinent

valuation factors was needed. The wisdom of barring a party's

defaulted trial argument as ambush on appeal is also well

illustrated here by wife's admission in this Court that her

trial court hearsay valuation evidence substantially overvalued

the VRS pension. Thus, Rule 5A:18 applies here with good cause.

Finally, we hold the trial court did not err in awarding

husband one hundred percent of the marital share of the VRS

pension benefit he had already begun to receive on a monthly

basis. "Fashioning an equitable distribution award lies within

the sound discretion of the trial judge[,] and that award will

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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). "Virginia law does not establish a

presumption of equal distribution of marital assets. It is

within the discretion of the court to make an equal division or

to make a substantially disparate division of assets as the

factors outlined in Code § 20-107.3(E) require." Matthews v.

Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998)

(citations omitted). Finally, "[e]ach marital asset is not

necessarily entitled to be treated the same for purposes of

equitable distribution. The chancellor may determine, depending

upon how the factors in Code § 20-107.3(E) are applied, that

certain marital assets should be divided and treated differently

than others." Gamer, 16 Va. App. at 344, 429 S.E.2d at 624.

Thus, how to divide the marital share of husband's VRS pension,

as with any other asset, rested within the sound discretion of

the chancellor, subject to the limitations of Code § 20-107.3(G)

and upon consideration of the Code § 20-107.3(E) factors.

Husband argued that an award to wife of one-half his

monthly VRS pension benefit in addition to $1,000 per month in

spousal support would cause him "major cash flow problems" and

require him "to begin using up or liquidating his asset base."

Husband reminded the trial court that he was almost sixty-seven

years old and no longer eligible to work full-time for his

former employer, the City of Lynchburg. The trial court found

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that its allocation of marital property, which included the

award of the monthly VRS pension benefit entirely to husband,

would "provide[] sufficient income for . . . husband for the

remainder of his life as well as the ability to pay the [spousal

support] for the seven year period." On the evidence in the

record, this ruling did not constitute an abuse of discretion.

B.

DURATION OF SPOUSAL SUPPORT AWARD

Code § 20-107.1(C) provides that "[t]he court, in its

discretion, may decree that maintenance and support of a spouse

may be made in periodic payments for a defined duration, or in

periodic payments for an undefined duration, or in a lump sum

award, or in any combination thereof."

Wife contends the trial court's award of spousal support

for a period of only seven years was an abuse of discretion. We

hold the trial court did not abuse its discretion in limiting

the award to seven years.

Wife argues first that the trial court's limitation of the

award was an abuse of discretion because the marriage was

long-term, lasting twenty-six years, and the General Assembly,

"[i]n passing the rehabilitative alimony statute," intended that

defined duration awards would generally apply to short term

marriages. As wife recognizes, however, "there is no

presumption in the statute as enacted," and we review the award

only for an abuse of discretion. We simply cannot conclude the

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trial court abused its discretion based solely on the fact that

it awarded seven years of periodic spousal support following a

twenty-six-year marriage.

Wife also contends that the limited duration of the award

was an abuse of discretion because she demonstrated an ongoing

need for support and husband had a documented ability to assist

her. She does not dispute the adequacy of the trial court's

award for the seven years support was awarded.

Using 1999 income tax figures, wife contends husband had

87% of the parties' current income. However, the record, viewed

in the light most favorable to husband, belies this contention.

Although the tax return reflects wages of approximately $52,000,

husband testified that he was temporarily able to resume his

former job with the City of Lynchburg, where he had worked for

about forty years, when the previous employee left suddenly. He

worked only long enough to train his replacement and was no

longer "eligible to be re[h]ired" by the city.

The evidence established more modest income for a man of

retirement age. Husband was sixty-six years old, and his

monthly income at the time of the hearing consisted of $1,072 in

social security, $788.06 in wages from part-time employment, and

$1,682 in VRS pension benefits, for a total of $3,542.06. Wife,

who was fifty-two years old at the time of the hearing, had

worked throughout the marriage. Although husband had worked

full-time during the marriage and earned about twice as much as

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wife had earned working for a dentist, at the time of the

hearing, wife had monthly income from part-time employment at

Kroger's which was approximately equal to husband's part-time

income. Each party would also receive $1,000 per month from the

mandatory ICMA monthly draw down. Wife claimed average monthly

expenses of $2,326.

Husband argued that an award of defined duration was

appropriate because wife was only fifty-two years old and should

be encouraged to obtain full-time employment. He argued that

her need for current income resulted in large part from her

desire "to retain the major illiquid assets," including the

marital home valued at $120,000 and her own IRA, valued at

$370,000. In addition, he noted that wife received as part of

the equitable distribution the bulk of assets in her own IRA,

$300,000, which could be assumed to appreciate in value and that

wife would be eligible to draw on her IRA without penalty in

approximately seven years from that date, when she would be

fifty-nine-and-one-half years old.

Wife did not specifically dispute her eligibility to draw

on her IRA without penalty in seven years. She contended only

that she should not be forced to draw on her own assets for

support when she was entitled to support from husband. She

disputed husband's contentions only generally "to the extent

[they were] factually incorrect or unsupported by the evidence."

She conceded that "[t]he fact that the income [to husband] from

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the ICMA account will stop in six years is what made the case

appropriate for [the trial court] to impose the fairly unusual

date certain [for] termination of spousal support."

In awarding wife spousal support of $1,000 per month for

seven years, the trial court indicated it considered all of the

statutory factors but paid particular attention to the

obligations, needs and resources of the parties, their ages and

physical and mental conditions, their monetary and nonmonetary

contributions to the marriage, and the provisions with regard to

the equitable distribution of the parties' property. The trial

court noted that its award of spousal support for a seven-year

period and "allocation of 50% of the husband's ICMA account to

the wife provides income for the wife until she is old enough to

draw her pension (IRA) benefits," of which wife received

approximately $300,000. Further, it noted that its "allocation

of marital property provides sufficient income for the husband

for the remainder of his life as well as the ability to pay the

alimony awarded for the seven year period." As wife previously

acknowledged, husband would receive $1,000 per month from the

ICMA for approximately six years, which sum equaled the amount

of spousal support awarded.

Wife contends the trial court's defined duration award

constituted an abuse of discretion because the court had no

"magic ball" and no accurate way to divine the parties'

financial needs and incomes after the seven-year period expired.

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Under these facts, we cannot say the trial court abused its

discretion in awarding wife spousal support for only a defined

duration. While we agree with the general principle that a

court should not base an award of support on mere speculation or

conjecture, see, e.g., Konefal v. Konefal, 18 Va. App. 612,

614-15, 446 S.E.2d 153, 154 (1994), the legislature obviously

contemplated that circumstances exist in which defined duration

spousal support awards are appropriate, cf. Srinivasan, 10 Va.

App. at 735, 396 S.E.2d at 679 (holding court appropriately may

consider "reasonably foreseeable" future circumstances). The

possibilities advanced by wife--that she may have a need for

continuing support if she becomes disabled or fails to obtain

full-time employment or if her investments do not perform as

well as expected--are possibilities inherent in many spousal

support situations. Yet, as set out above, the legislature

decided that defined duration awards are appropriate in at least

some of these circumstances. We cannot conclude that the

factors upon which the trial court premised this award--

including the parties' ages, the amount, nature and liquidity of

assets they received in the equitable distribution, and wife's

ability to draw on her share of those assets at a specific age

without incurring a tax penalty--are sufficiently uncertain to

render the defined duration award speculative. Thus, we affirm

the award.

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 Wife asks that we order a correction of the wording of the

decree to allow either party to seek a modification of the award

during the seven-year period of the award as provided under Code

§ 20-109. Wife apparently is concerned that the trial court's

order as it presently exists provides an award of "$1,000 per

month for seven (7) years subject to termination as set forth in

Virginia Code §20-109," but does not provide for modification

under the terms of the statute. Husband conceded on brief and

at oral argument that the language of the decree "does not

abrogate [wife's] statutory right to petition for modification

of support prior to termination." Thus, we hold, based on both

the wording of the order and husband's concession, that the

order remains subject to modification during the seven-year

period as permitted by statute.

C.

BASIS FOR DEFINED DURATION SUPPORT AWARD

Wife contends the trial court erred in entering a final

decree which fails to "identify the basis for the nature, amount

and duration of the award," as required by Code § 20-107.1(F).

We hold that wife failed to preserve this argument for appeal.

Rule 5A:18 requires that objections to the trial court's

action or ruling be made with specificity in order to allow the

trial court a chance to correct the claimed error. See, e.g.,

Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2

(1991) (en banc); Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d

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736, 737 (1991) (en banc). Here, the trial court provided a

written explanation for its defined duration support award in

the memo to the file upon which the final decree was based. We

assume without deciding that explanation was insufficient.

Nevertheless, wife specifically contested the trial court's

spousal support ruling only on the ground that "[t]he Court

erred in terminating [wife's] spousal support after seven

years." If wife had informed the trial court she believed the

contents of this memo were insufficient to satisfy the

requirements of Code § 20-107.1(F), the court would have had an

opportunity to correct the claimed error. However, wife did not

bring this claimed error to the attention of the trial court,

and we will not consider it for the first time on appeal.

For these reasons, we hold that the trial court did not err

by failing to determine the present value of husband's VRS

pension because wife failed to present credible evidence of that

value. Further, we hold that the trial court did not abuse its

discretion by failing to award wife a portion of the monthly VRS

benefit as a deferred distribution. We also conclude that the

trial court did not err under the facts of this case in making a

defined duration spousal support award. Finally, we hold that

wife failed to preserve for appeal her claim that the trial

court failed to "identify the basis for the nature, amount and

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duration" of the defined duration award. Thus, we affirm the

trial court's equitable distribution and spousal support awards.

Affirmed.

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