COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
GIRARD C. MILLER
MEMORANDUM OPINION * BY
v. Record No. 2261-02-4 JUDGE LARRY G. ELDER
JULY 15, 2003
LYNN E. MILLER
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Michael A. Ward (Michael A. Ward, P.C., on
briefs), for appellant.
David D. Masterman (Condo Masterman Kelly &
Roop, P.C., on brief), for appellee.
Girard C. Miller (husband) appeals from the equitable
distribution and spousal support awards accompanying his divorce
from Lynn E. Miller (Cox) (wife). On appeal, he argues the
court's equal division of a particular marital investment
account was error and challenges the fact, amount and duration
of the award to wife of part of his deferred compensation,
including his supplemental executive retirement plan (SERP). He
also challenges the fact, amount and duration of the spousal
support award and contends the trial court erroneously failed to
include in wife's income monies to be earned on assets she
received in the equitable distribution or, in the alternative,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
erroneously found five percent was a reasonable rate of return
for those assets. Wife argues husband's appeal is barred
because he enforced a portion of the award, and she assigns
cross-error to the trial court's refusal to award her attorney's
fees. Both parties seek an award of attorney's fees on appeal.
We hold husband's selective enforcement of the equitable
distribution award does not bar this appeal. On the merits, we
hold the court erroneously failed to divide $65,000 in deferred
compensation benefits and that the marital share of these
benefits is one hundred percent. We also hold that the marital
share of husband's contract completion bonus, if one is
received, is five percent. Next, we hold the formula the trial
court set out for calculating the marital share of husband's
SERP was incorrect. We affirm as to all other challenged
aspects of the equitable distribution award. We direct the
trial court to reconsider the spousal support award in light of
our reversal of a portion of the equitable distribution award.
Finally, we affirm the trial court's denial of wife's request
for attorney's fees and direct the parties to bear their own
fees on appeal, as well. Thus, we affirm in part, reverse in
part, and remand for further proceedings in keeping with this
opinion.
I. WAIVER OF RIGHT TO APPEAL
Wife contends husband waived his right to challenge the
spousal support and equitable distribution awards when the trial
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court, at his request, entered qualified domestic relations
orders (QDROs) distributing two marital assets divided by the
equitable distribution award. We acknowledge the general
principle that "[a] party availing himself of a decree as far as
favorable to him cannot appeal from the decree wherein it is not
favorable to him, if his acceptance of the benefit on the one
hand is totally inconsistent with appeal on the other." 1B
Michie's Jurisprudence, Appeal and Error § 54, at 196 (1995).
However, we hold that this is not what occurred here.
First, wife has failed to establish that husband benefited
from the portions of the decree he sought to enforce. The two
retirement accounts husband asked the court to divide were in
his name alone. Absent the QDROs, husband retained the entire
interest in the accounts. Upon entry of the QDROs, wife, not
husband, obtained a substantial benefit in the form of a right
to payment of half the sums disbursed from the accounts.
Further, even if the QDROs benefited husband, his appeal of
other portions of the equitable distribution award is not
barred. Husband assigned no error to the trial court's division
of the two retirement accounts, and their division is at issue
only indirectly as they are two of many components of the
equitable distribution of a sizeable marital estate. A party
who appeals some aspects of an equitable distribution award
while enforcing others is not absolutely barred from having the
challenged issues considered on appeal. Rather, that party
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merely runs the risk that, if he wins on appeal, the trial
court, on remand, will be unable to provide him with the full
benefits of his victory because insufficient assets remain in
the marital estate. Here, because the estate is sizable, the
trial court's ability to adjust the remaining portion of the
award, if necessary in the event of a reversal, is manifest.
II. EQUITABLE DISTRIBUTION
On appeal, we review the evidence in the light most
favorable to the party prevailing below. Anderson v. Anderson,
29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).
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 . . .
equitable distribution award will not be
reversed on appeal.
Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).
A. FIDELITY INVESTMENT ACCOUNT
Husband contends the court should have awarded him sixty
percent rather than fifty percent of the Fidelity investment
account. He avers that "the overwhelming weight of the evidence
. . . as to the contributions of the parties, both monetary and
non-monetary, [to the acquisition of marital property] favored"
him, but he focuses predominantly on his contention that "he
contributed more than 93% of the income during the marriage and
made the majority of investment decisions which resulted in the
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couples' accumulation of wealth." Based on the factors in Code
§ 20-107.3 and the evidence in the record, viewed in the light
most favorable to wife, we hold the court did not abuse its
discretion by evenly dividing the Fidelity account.
Although "there is no presumption in Virginia favoring
equal division of marital property," a court is not "constrained
from making an equal division if it finds it appropriate to do
so upon consideration of the factors set forth in Code
§ 20-107.3(E)." Robinette v. Robinette, 10 Va. App. 480, 486,
393 S.E.2d 629, 633 (1990). "[W]here one party contributes
substantially more to a marriage financially, the court may in
its discretion . . . make a greater award to the party
contributing the most financially," but it is not required to do
so. Srinivasan v. Srinivasan, 10 Va. App. 728, 733, 396 S.E.2d
675, 678 (1990) (emphasis added).
Here, the evidence, viewed in the light most favorable to
wife, supported the trial court's findings that, although
husband's "monetary contributions were far more significant from
a pure dollar standpoint," wife "was an integral part of the
marriage," "performing her role in a substantial way,"
"contributing both socially and economically" "in the manner
agreed to (whether expressly or implicitly) by the parties."
Prior to and during the parties' marriage, wife wrote and
edited financial materials during the course of her professional
life, and she averred she was heavily involved in discussions
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regarding how to invest the parties' money throughout the course
of their marriage.
Wife worked throughout the marriage but testified that she
sacrificed her career for husband's, moving with him several
times in order to advance his career. She maintained the home
and served as the primary caregiver for husband's son from his
first marriage when the son, who was ten years old when the
parties married in 1985, visited for three to seven weeks during
the summer. The parties had limited professional help for house
cleaning, remodeling and landscaping. Wife was primarily
responsible for maintaining the house and overseeing those who
came into the house to help. Wife prepared each of the parties'
homes for sale and oversaw extensive litigation concerning one
home, which resulted in a $250,000 recovery.
In 1993, wife made a "tremendous career sacrifice" by
"moving to Washington[, D.C.,] to facilitate . . . husband's
desire . . . to be the CEO of his own organization," a company
that managed retirement assets. Wife was interviewed before
husband was hired for the position, and she participated
extensively in husband's entertaining and travel in that
position. Wife testified that the board members of husband's
corporation "liked [her] because [she] could talk about
retirement and that's what th[e] company is all about." Husband
told both wife's sister and his own friend and business
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colleague that wife played a "vital role in furthering the
effectiveness of his career" and "he was fortunate to have her."
This evidence, viewed in the light most favorable to wife,
established both (1) that wife made monetary and nonmonetary
contributions to the well-being of the family and the
acquisition, care and maintenance of the marital property during
the fifteen-year marriage and (2) that her nonmonetary
contributions were significant. Thus, despite husband's
disproportionately large monetary contributions to the marriage,
we hold the trial court did not abuse its discretion in dividing
the Fidelity investment account equally.
B. DEFERRED COMPENSATION OTHER THAN SERP
Marital property includes, inter alia, "that portion of
pensions, profit-sharing or deferred compensation or retirement
plans of whatever nature, acquired by either spouse during the
marriage, and before the last separation of the parties." Code
§ 20-107.3(A)(2) (emphasis added). "[T]he future benefit is
deemed acquired when the contribution is made and not when the
benefit is actually received." Brett R. Turner, Equitable
Distribution of Property § 5.09, at 156, 161 (2d ed. 1994). In
addition, a bonus "received at the end of a period of successful
employment [is] acquired gradually throughout the entire period
and not all at once . . . . Thus if the husband receives after
the marriage a bonus for work performed during the marriage, the
bonus is marital property." Id. at 156.
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Husband challenges subsection (i) of the court's deferred
compensation award. He contends wife is not entitled to any
portion of the benefit to be paid in September 2004 because
employer's contribution for this benefit was made after the
parties' separation and had no relation to husband's
pre-separation service. We disagree. Husband testified that
each of employer's contributions to the 457(f) account did not
vest for three years and that he could access a contribution
only after it vested. Although the employment agreement does
not specify the period of service for which the September 2001
contribution was made, the contract covers the period from
January 1, 2001, to March 31, 2006, and provides that employer
will make a contribution on September 1 in each of the years
from 2001 to 2005 based on husband's earnings during the prior
year. Thus, the court could reasonably have concluded that
employer's September 2001 contribution, payable on September 1,
2004, was for husband's service for the entire 2001 calendar
year. Because the parties were married for the first three
months of 2001, the marital share of that contribution was 25%.
Thus, the trial court's award of 12.5% of the September 2004
distribution to wife was in keeping with its equal division of
the marital share of many assets.
For similar reasons, we reject husband's claims of error in
subsections (iii) and (iv) of the deferred compensation
distribution. The distributions payable in September 2002 and
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September 2003 were for husband's service in 1999 and 2000,
respectively. Because the parties did not separate until April
2001, the marital share of the September 2002 and September 2003
distributions was one hundred percent, and the trial court's
award of 50% of each of those distributions to wife was in
keeping with its equal division of the marital share of many
assets.
Husband also assigns error to the fact that the trial court
erroneously estimated the September 2002 and 2003 distributions
would equal "approximately $154,000," whereas in fact they
totaled only $102,000. However, husband brought this alleged
error to the trial court's attention in his motion to
reconsider. When the trial court entered the final decree, it
omitted its estimate of the amount of these distributions but
adhered to its earlier decision to divide the distribution
equally. Because husband has failed to establish error, see,
e.g., Key v. Commonwealth, 21 Va. App. 311, 313, 464 S.E.2d 171,
172 (1995), we affirm the division of these distributions.
Husband also assigns error to the trial court's failure to
divide $65,000 in 457(f) benefits receivable in March 2003. He
represents that the marital share of the benefits is 33.4%,
entitling wife to an award of 16.7% of those benefits. We agree
that the trial court failed to include this benefit payment in
the decree and, based on the court's duty to classify and divide
all marital property, see Code § 20-107.3(A), that this omission
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constituted reversible error. However, again, we disagree with
husband as to the amount of the benefit to which wife is
entitled. The undisputed evidence at trial indicated that
husband was to receive a deferred compensation "payout" in March
2003 based on a contribution made in March 2000. This
conclusion was supported by husband's testimony that deferred
compensation payments made by employer on his behalf did not
vest until three years after each contribution was made. The
court could reasonably have concluded employer made the March
2000 contribution for service rendered during 1999 or 2000,
prior to the parties' separation in April 2001. Thus, the
marital share was 100% rather than 33.4%.
Husband next challenges the subsection (ii) award to wife
of "12.5% of the distribution received in March, 2002." Husband
argues he did not receive a 457(f) distribution at that time but
did receive a performance bonus. In response to argument on
this issue on the motion for reconsideration, the trial court
observed, "I thought that the only objection to that was the way
it was characterized . . . [that] I mischaracterized it as
deferred compensation" rather than as a bonus. Subsection (ii),
as originally drafted, provided that "[Wife] is to receive 12.5%
of the 457(f) plan distribution payable in March, 2002, and a
similar percentage of the distribution in March, 2003." After
the trial court heard argument from counsel, it struck from the
decree the "457(f) plan" language and the language awarding "a
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similar percentage of the distribution in March, 2003," and
changed the phrase "payable in March, 2002," to "received in
March, 2002." (Emphases added). In light of the trial court's
statements on the record, we hold the removal of these phrases
from the decree demonstrates the court's confirmation that it
was dividing bonuses actually paid in March 2002.
Husband contends the trial court erroneously failed to
award to wife an equal portion of the marital shares of the
long-term "Summit" bonus incentives to be received in 2003 and
2004. However, subsections (v) and (vi) of the final decree
expressly provide for the division of the 2003 and 2004 Summit
incentives. Further, the decree sets the amount of the 2004
incentive at 4.2%, the amount requested by husband. Thus, we
conclude the trial court committed no error on these issues. As
to the 2003 Summit incentive, husband's employment contract
provided that incentive covered the service period of 2000
through 2002, making the marital share 41.6%. Although the
trial court divided evenly the marital share of many of the
assets, it was not required to do so. Thus, we hold it did not
abuse its discretion in awarding less than half the marital
share of the 2003 incentive to wife.
Lastly, husband asks for clarification of the court's
subsection (vii) award to wife of half the marital share of the
contract completion bonus if and when husband receives that
bonus. Husband seeks the addition of language indicating that
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"one-half of the marital share of the contract completion bonus
is one-half of 1/21st (there being 21 calendar quarters in the
contract), or 1/42nd or 2.38 per cent [sic]." Husband's
employment contract expressly covers the term of January 1,
2001, through March 31, 2006, unless husband dies or is
terminated. The provision of the contract detailing the terms
of the completion bonus states as follows:
In the event that overall performance
targets established under each of his annual
incentive compensation programs shall have
been met in each of the five years ending in
December 2005, Executive shall be paid in
January 2006 a contract completion
performance bonus of $[X]. In the event
that, at the time, the performance targets
in his annual incentive compensation
programs shall have been met or exceeded in
four of the five years ending in December
2005, he shall be paid a contract completion
performance bonus of $[0.5X].
The completion bonus relates expressly to husband's performance
under the contract during the years 2001 through 2005, is
payable in January 2006, and does not include his performance
during the twenty-first and final quarter of the contract.
Thus, the marital share of the completion bonus is 5%.
C. THE SERP PLAN
1. Calculation of the Marital Share
The 2000 SERP agreement provides an absolute limit of 12
years of SERP benefits based on actual years of service, whereas
the amendment contained in the 2001 employment contract allows
husband to earn additional years of benefits based on
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performance goals rather than years of service. Wife offered
expert testimony that the SERP plan was limited to 12 years of
actual service, but wife's expert reviewed only the 2000 SERP
plan. The expert's testimony did not take into consideration
the amendment contained in husband's 2001 employment contract.
Based on the SERP amendment contained in husband's 2001
employment contract, we hold that the final decree did not set
out the correct formula for calculating the marital share of the
SERP benefits. The decree should have defined the denominator
for the marital share as husband's actual years of service up to
12 years plus any performance-based "years-of-service" credits
earned by husband under the 2001 SERP amendment. If husband
earns an additional year of service for performance in 2001,
wife is entitled to have the numerator for calculating the
marital share increased by 0.25 to represent the portion of 2001
prior to the parties' separation.
2. Tax Consequences of SERP Division
Husband's expert testified that the SERP is "a nonqualified
retirement plan which means that contributions that go into it
are not tax free or tax deferred." He also testified that it is
not covered by "the ERISA rules that have to do with
divisibility upon divorce," meaning it is not subject to
division by QDRO. Husband explained that he will have "a
complete tax liability immediately upon [the SERP's] vesting,"
which he testified would occur in January 2006 if he continues
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to work for his present employer through that date, even if he
is not eligible to begin receiving SERP benefits at that time.
Husband argues that wife should be required to pay her share of
any taxes due in advance of the distribution of benefits. We
hold that the decree, as written, is broad enough to require
wife to make her share of such tax payments as they become due,
even if this occurs in advance of any distributions.
III. SPOUSAL SUPPORT
Husband challenges the fact, amount and duration of the
trial court's spousal support award. He contends that, in
calculating wife's income, the trial court erroneously failed to
include monies to be earned by wife on assets received in the
equitable distribution or, in the alternative, erroneously found
five percent was a reasonable rate of return on the investment
of such assets.
Because we reverse portions of the equitable distribution
award, we must direct that the trial court reconsider its
spousal support award in light of changes in the distribution of
the parties' property. See Code § 20-107.3(E)(8). Thus, we do
not consider any aspect of the spousal support award on the
merits. However, based on husband's claim that the court failed
properly to consider wife's investment income in determining her
need for support and the fact that wife's income will again be a
factor in the trial court's consideration of the spousal support
award on remand, cf., e.g., Virginia Elec. & Power Co. v.
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Westmoreland-LG&E Partners, 259 Va. 319, 324-25, 526 S.E.2d 750,
754 (2000) (addressing on merits issue not necessary for
decision on appeal but "likely to arise [again] on remand"), we
make the following observations:
A court determining whether to award spousal support
pursuant to Code § 20-107.1 and if so, how much, must consider
any investment income each spouse is able to earn on assets
received in the equitable distribution. Code § 20-107.1(E)(1),
(8); see Rowe v. Rowe, 24 Va. App. 123, 129, 480 S.E.2d 760, 767
(1997). Although a spouse seeking support may not be required
to invade the corpus of funds or other assets received pursuant
to the equitable distribution, a court must consider any income
those assets are able to produce. Rowe, 24 Va. App. at 129, 480
S.E.2d at 767. If the evidence supports a finding that the
assets are "underinvested," the court may, in its discretion,
impute a higher rate of return to such assets than they are
actually earning, see L.C.S. v. S.A.S., 19 Va. App. 709, 715-16,
453 S.E.2d 580, 583-84 (1995), but it is not required to do so.
IV. ATTORNEY'S FEES
Whether to award attorney's fees and costs rests within the
sound discretion of the trial court. See, e.g., Lightburn v.
Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996).
The key to a proper award of counsel fees is reasonableness
under all the circumstances. See McGinnis v. McGinnis, 1
Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
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Wife appears to contend she was entitled to an award of
fees because the divorce resulted from husband's desire to
commit adultery and because husband inaccurately responded to
discovery, which caused wife to incur additional attorney's
fees. However, the trial court did not grant the divorce based
on a finding of adultery and expressly stated that wife had
"failed to prove adultery occurring before the separation."
Further, even if the court had granted a divorce based on a
finding of adultery, it would not be compelled to hold husband
responsible for some or all of wife's attorney's fees.
Similarly, assuming a discovery violation occurred, whether to
award attorney's fees as a discovery sanction also is
discretionary. See Code § 8.01-271.1. We hold the court did
not abuse its discretion in refusing the request for attorney's
fees.
Each party also requests an award of attorney's fees on
appeal. Because we hold that the trial court erred in some of
the respects complained of by husband on appeal and because both
parties received substantial assets in the equitable
distribution, we decline to make an award of fees and direct
that the parties bear their own fees incurred on appeal.
V.
We hold husband's selective enforcement of the equitable
distribution award does not bar this appeal. On the merits, we
hold the court erroneously failed to divide $65,000 in deferred
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compensation benefits and that the marital share of these
benefits is one hundred percent. We also hold that the marital
share of husband's contract completion bonus, if one is
received, is five percent. Next, we hold the formula the trial
court set out for calculating the marital share of husband's
SERP was incorrect. We affirm as to all other challenged
aspects of the equitable distribution award. We direct the
trial court to reconsider the spousal support award in light of
our reversal of a portion of the equitable distribution award.
Finally, we affirm the trial court's denial of wife's request
for attorney's fees and direct the parties to bear their own
fees on appeal, as well. Thus, we affirm in part, reverse in
part, and remand for further proceedings in keeping with this
opinion.
Affirmed in part,
reversed in part,
and remanded.
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