COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JAMES D. QUINN
MEMORANDUM OPINION *
v. Record No. 0531-97-4 PER CURIAM
SEPTEMBER 2, 1997
VERONICA QUINN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
(James McConville, on briefs), for appellant.
(Lawrence H. Bowen; Paula W. Rank; Byrd,
Mische, Bevis, Bowen, Joseph & O'Connor, on
brief), for appellee.
James D. Quinn (husband) appeals the circuit court's
decision concerning equitable distribution and other issues.
Husband contends the trial court erred by (1) incorrectly valuing
certain assets awarded to Veronica Quinn (wife); (2) awarding
spousal support to wife in light of her past employment and
current status as a student; (3) requiring husband to pay a
proportionate share of wife's survivor benefit received as part
of his military pension; and (4) awarding wife attorney's fees.
Wife contends that the trial court (1) abused its discretion in
awarding her an insufficient percentage of husband's military
retirement pay; and (2) erred in calculating the reimbursement of
a portion of the pendente lite spousal support in the
distribution of assets. Upon reviewing the record and briefs of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
VALUATION
Husband challenges the trial court's valuation of certain
marital assets, including the marital residence, and alleges that
the court failed to properly consider the statutory factors and
to credit his specific expenditures. We find no error.
Husband contends that the court erroneously "split the
difference" when valuing certain marital assets by assigning a
value equal to the midpoint between the parties' alternative
values. The valuations as determined by the trial court do not
support husband's contention. Moreover, when parties present
different evidence of value, the trial court is not required to
accept either valuation, as long as the value is within a range
supported by the evidence.
The parties and their experts valued the marital residence
at a range of less than $250,000 to more than $300,000. One
expert, a real estate salesperson familiar with the area,
testified that the home was worth $300,000. Thus, credible
evidence supported the trial court's valuation of the marital
home at $300,000. As to the other real property, husband
admitted purchasing the Florida condominium for $53,500 and
admitted that additional improvements had been added. Thus, we
find no error in the court's determination that the condominium
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was worth $69,000, as testified to by wife, and not $45,140, as
proffered by husband.
Although husband asserted that unspecified assets held in
the safety deposit box were divided equally, wife gave a
substantially more detailed listing of the contents. Husband's
sister acknowledged that husband gave her gold jewelry and a
kilogram of gold. Therefore, the trial court did not err in
rejecting husband's proposed alternative values.
Husband also argues that the court failed to properly credit
his side of the ledger when dividing the marital assets. In
other words, husband challenges the distribution decision.
"Fashioning an equitable distribution award lies within the sound
discretion of the trial judge and that award will 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). The trial court expressly noted that it
considered the statutory factors when reaching its equitable
distribution decision and articulated its findings on the
statutory factors prior to issuing its decision from the bench.
A greater monetary contribution toward the acquisition of marital
property accumulated by the parties during their marriage is only
one of the factors to be considered by the court when making its
equitable distribution decision. Code § 20-107.3(E). Husband
used marital assets, including his current earnings during the
marriage, to fund the individual retirement account in wife's
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name and to purchase the Florida condominium for wife's parents.
There was no evidence that husband used his separate property to
acquire these items. The trial court did not commit reversible
error by failing to credit husband for these funds expended
during the marriage for these assets.
Husband admits that the loans wife obtained by forging his
name were not included in the final calculation of the marital
estate. Two of these loans wife incurred to cover college
expenses for two of the parties' sons. Under the terms of the
final decree, wife was obligated to pay these loans in full upon
receipt of the monetary award. We find no error.
SPOUSAL SUPPORT
Husband contends that the trial court erred by awarding
spousal support to wife and by failing to impute sufficient
income to wife. We disagree.
The determination whether a spouse is entitled to support
and, if so, how much, is a matter within the discretion of the
trial court and will not be disturbed on appeal unless it is
clear that some injustice has been done. See Dukelow v. Dukelow,
2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986).
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the nine factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
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(1986). It is clear from the trial court's ruling from the bench
that it considered the statutory factors. The court noted that
wife could earn more than she was currently earning and, while
not expressly imputing to wife a specific amount of income,
awarded only $1,000 in monthly spousal support.
The evidence proved that wife was unable to work night
shifts and that she was seeking additional education so that she
could obtain a daytime nursing position. While husband contends
that wife earned more in the past while working in the District
of Columbia area, that evidence was insufficient to establish
that wife was significantly underemployed in her current
geographic location. Although husband contends that wife could
have taken advantage of educational opportunities in the past,
"the court, in setting support awards, must look to current
circumstances and what the circumstances will be 'within the
immediate or reasonably foreseeable future,' not to what may
happen in the future," or, alternatively, what could have
happened in the past. Srinivasan, 10 Va. App. at 735, 396 S.E.2d
at 679. It is irrelevant to the current situation that years
earlier, under different circumstances, wife did not obtain
additional training. Therefore, husband has failed to
demonstrate that the trial court erred in its award of spousal
support to wife.
While husband contends that the trial court failed to
consider Code § 20-107.1(8), "[t]he provisions made with regard
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to the marital property," we find no indication that husband
presented this argument below. Therefore, we will not consider
it for the first time on appeal. See Rule 5A:18.
Wife contends that the trial court erred by overcrediting to
husband the amount of pendente lite spousal support she received
following the continuance of the hearing. The hearing originally
scheduled for September 10, 1996 was continued until January. In
the order granting the continuance, the trial court ruled that
"any reduction in the amount of spousal support ordered to be
paid by [husband] at a later proceeding shall be retroactive to
September 10, 1996." After the continuance, husband made
pendente lite bimonthly support payments of approximately $1,400
for at least four months, for a total exceeding $12,000. In
light of the court's decision to award permanent spousal support
in the amount of $1,000, giving that award a fully retroactive
effect would have resulted in a credit to husband of only
approximately $8,000. Nevertheless, as wife had the use of the
money throughout the period of the continuance, and as the credit
was part of the larger distribution of the parties' various
assets, debts and credits, we cannot say the court's decision to
credit husband with $12,000 in payments made during this time
amounted to reversible error.
SURVIVOR'S BENEFIT
Under Code § 20-107.3(G)(2), the trial court is authorized
to order the designation of a former spouse as an irrevocable
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beneficiary "of all or a portion of any survivor benefit or
annuity plan . . . ." The statute further states that "[t]he
court, in its discretion, shall determine as between the parties,
who shall bear the costs of maintaining such plan." Id. The
trial court ruled that the husband's military retirement pay
subject to proportional distribution to the parties would first
be reduced by the amount of wife's survivor benefit premium.
Thus, the trial court made both parties bear a portion of the
costs of this benefit, in the same proportion as they received a
share of the military retirement pay. The trial court acted
within its express statutory authority and we find no error in
the court's decision to have the parties bear a proportional
share of the costs of this benefit to wife.
ATTORNEY'S FEES
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). 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). Husband's earnings were
substantially greater than those of wife. Both parties pursued
fault-based grounds for divorce, which, while rejected by the
commissioner, were not without some factual support. Based on
the number of issues involved and the respective abilities of the
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parties to pay, we cannot say that the award was unreasonable or
that the trial judge abused his discretion in making the award.
WIFE'S SHARE OF RETIREMENT PAY
Wife sought to receive approximately forty-four percent of
husband's military retirement pay, which she claimed equaled
fifty percent of the marital share. See Code § 20-107.3(G)(1).
Husband asserted, and the trial court agreed, that fifty percent
of the marital share to which wife was entitled was only
forty-two percent of the retirement pay. Husband presented
evidence that he had a year of Reserve service which was
creditable service for pay and retirement purposes. The trial
court's determination was supported by evidence.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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