COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
STEPHEN A. EISENBERGER
MEMORANDUM OPINION * BY
v. Record No. 2549-95-2 CHIEF JUDGE NORMAN K. MOON
NOVEMBER 19, 1996
SUZANNE S. EISENBERGER
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
Lawrence E. Luck (Meyer, Goergen & Marrs, on
briefs), for appellant.
Phoebe P. Hall (Franklin P. Hall; Hall &
Hall, on brief), for appellee.
Stephen A. Eisenberger appeals from the final decree of
divorce and distribution of property order of the circuit court.
Appellant raises the following arguments on appeal: (1) whether
the circuit court erred in characterizing appellant's
post-separation contributions to his Crestar-thrift account as
marital property; (2) whether the circuit court erred in awarding
each party their respective pension benefits without first
declaring the specific value accorded each of the parties'
pension benefits; (3) whether the circuit court erred in refusing
to permit a reservation of spousal support for the appellant
where such reservation was requested; (4) whether the circuit
court erred in requiring appellant to pay a lump sum to appellee
in accord with the court's use of the present offset method to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
distribute marital assets which included the marital portion of
appellant's deferred management incentive plan awards for 1992
and 1993; (5) whether the circuit court erred in characterizing
the appellant's management incentive plan award for 1993 as
marital property; and (6) whether the circuit court erred in
refusing to amend or to suspend its final decree in order to hear
additional evidence where appellant gave notice to the court
within the period prescribed by Rule 1:1 of appellant's
termination from employment, a factor considered by the court in
making its distribution and support order. 1 In her response,
appellee raises the additional argument of whether the circuit
court erred in classifying the wife's disability benefits as
marital where the disability occurred after the separation of the
parties. We find that: (1) the circuit court erred in
classifying the entirety of appellant's post-separation
contributions to his Crestar-thrift account as marital property;
(2) the circuit court's failure to announce the specific value
accorded appellant's and appellee's pension benefits constituted
1
We note that appellant's formal objections were filed in a
written statement of objections on October 25, 1995, some
nineteen days after the court's final decree of October 6, 1995.
In view of the record, we find that appellant made sufficient
indication of his objections during the evidentiary hearing to
warrant our consideration of the issues before us with the
exception of appellant's argument concerning the circuit court's
use of the present offset method in distributing marital assets
which included appellant's management incentive awards. We wish
to make clear, however, that such written objections alone, filed
days after the court's final decree, are not regularly sufficient
to comply with Rule 5A:18.
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harmless error; (3) the circuit court did not err in refusing to
grant appellant's request for reservation of spousal support;
(4) appellant failed to properly object to the circuit court's
distribution of appellant's deferred management incentive awards
via the present offset method and consequently, we do not reach
this issue on appeal; (5) the court did not err in classifying
appellant's management incentive plan award which appellant
earned in 1993 as marital property; (6) the court did not err in
refusing to amend or to suspend its final decree to hear
additional evidence after being informed of appellant's
termination from his position with Crestar Bank; and (7) appellee
failed to timely object to the court's classification of her
disability benefits as marital property, and we therefore do not
reach this issue on appeal.
Appellant and appellee were married on April 20, 1973. A
final divorce decree was entered on October 10, 1995, at which
time appellant was forty-eight years of age and appellee was
fifty years of age. Divorce was granted on the ground that from
approximately January 14, 1994, the parties had lived separate
and apart without any cohabitation or interruption for a period
of more than one year.
During the majority of the parties' marriage appellant was
employed by Crestar Bank and at the time of trial served as a
vice-president in Crestar's commercial financial division.
During the course of appellant's employment, he worked in Norfolk
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and Chesapeake, returning to the marital abode on weekends and
occasional week nights. Appellee, who suffered from depression,
remained in Richmond in the parties' home during this period.
Throughout the period appellant was employed in Norfolk and
Chesapeake, appellee expressed her desire to relocate to Norfolk
to be with appellant. Appellant refused and informed appellee
that when he returned to Richmond he did not wish to resume
living with appellee. In late 1993, appellant was reassigned to
Richmond. Appellant returned to Richmond and in January 1994,
appellant moved out of the marital abode and established a
separate residence. Appellee expressed her desire that she did
not want the marriage to end at this time, but she cooperated
with appellant's decision to establish a separate residence.
Appellee continued to suffer from depression at the time that
appellant chose to depart from the marital abode.
Appellant established a variety of retirement assets prior
to his separation from appellee in January of 1994. These
included two IRAs, a Fidelity Investors IRA in his name, valued
by stipulation at $95,072.80, classified as marital property, and
a First Union IRA, valued by stipulation at $22.97, classified as
marital property. Appellant also participated in a Crestar
Thrift and Profit Sharing Plan which was valued at $46,718. In
addition, prior to issuance of the final divorce decree,
appellant received three Management Incentive Plan awards. These
awards consisted of credit for deferred compensation in the
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amounts of $5,000 earned in 1992, $8,000 earned in 1993, and
$10,000 earned in 1994. All three awards were actually declared
in February of the preceeding year. The awards earned in 1992
and 1993 were classified as marital property.
Appellant also had accrued pension benefits under a Crestar
pension plan which would begin to provide income to appellant at
age sixty-five. During the evidentiary hearing, appellant and
appellee expressed extreme disagreement as to the appropriate
valuation of the pension plan. Appellant's expert, Maxwell G.
Cisne, a certified public accountant recognized by the trial
court as an expert in pension valuations, offered different
valuations of appellant's pension plan based on the number of
years of completed employment time with Crestar used in the
calculation. Cisne calculated the present value of appellant's
plan at $14,278.02. This value was based on a projected monthly
benefit of $784.13, a figure reflecting appellant's benefits if
his employment with Crestar terminated on July 26, 1995, a point
reflecting appellant's vested retirement benefits at
approximately the time of the August 14 hearing. Alternatively,
Cisne valued the plan at $10,645.55, if the monthly pension
benefit used was $584.64, the value of appellant's benefits if he
had terminated employment with Crestar on December 31, 1993,
immediately prior to the parties' separation in January of 1994.
Appellee disagreed with the use of either value, arguing
that appellant had not terminated his employment with Crestar on
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either date, as these figures assumed. Instead, appellee offered
a value of $2,700 per month as the proper benefit amount to be
used, as this would be the benefit to appellant if he remained
with Crestar until age sixty-five according to Crestar's 1995
Executive Benefits Statement. The Benefit's Statement was
interpreted during the hearing by appellee's witness, Sue S.
Sampson, Esq., a member of Crestar's legal department, serving as
Crestar's designee. Sampson presented three valuations of
appellant's retirement benefits based on appellant's last salary
increase and differing retirement dates and accumulated years of
service. Appellant's benefits were calculated at $784.13 if
appellant had terminated employment with Crestar on July 26,
1995. If appellant opted for early retirement and terminated
employment at age fifty-five, his benefits were calculated at
$732.97 a month. Retirement at age sixty would result in a
monthly benefit of $2,090.19 and retirement at age sixty-five was
calculated to produce a monthly benefit of approximately $2,700.
Appellant argued that the sum of $2,700 per month should not be
used as it was "grossly speculative" given the possibility that
appellant might leave Crestar prior to reaching age sixty-five.
Appellee was employed throughout the majority of the
marriage by the Commonwealth of Virginia. Appellee began work
for the Commonwealth as a librarian on July 1, 1971 and was so
employed until her retirement on disability on June 1, 1994.
Appellee accrued pension benefits under the Virginia Retirement
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System (VRS). At the time of trial the VRS provided appellee a
monthly disability benefit of $2,474.34. In addition appellee
received $1,238 in Social Security disability payments. During
the evidentiary hearing, appellant's expert calculated a present
value of appellee's VRS benefits as $476,691.32, based on an
assumption of a 3.5% cost of living adjustment, an 8% discount
rate and a predicted death at age 80.4. Appellee rejected this
value, arguing that the appropriate valuation of her benefits was
$18,475.62. This sum is the amount that appellee could withdraw
if she had left work on June 1, 1994, a date near the date of the
evidentiary hearing. Appellee also argued that appellant's
figure of $476,691.32 was inappropriate in that it was highly
speculative. Appellee noted that appellant's calculation
presumed appellee's continued disability. However, appellee's
disability, based on depression, is subject to annual review and
should she be determined to no longer be disabled, or if she
returned to full-time work, her disability retirement income
would cease.
In addition to their individual retirement and savings
accounts, the parties possessed certain other marital assets
distributed by the court. The most significant of these other
assets was the parties' marital residence, with a fair market
value of $130,500. The residence was encumbered by a mortgage
with a balance of $41,119.56 and an equity loan with a balance of
$23,801.82. The couple also owned a home-built airplane, made by
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appellant, valued at $30,000.
The circuit court ordered the following distribution of the
marital estate: (1) each party was to keep their respective
pension benefits; (2) appellant was to receive 70% of the value
of the home-built airplane, the appellee 30%; (3) appellant was
to be solely liable for a contingent guarantee that appellant
executed for a past business venture; and (4) all other marital
assets were to be divided fifty-fifty.
I. Characterization of appellant's post separation contributions
to his Crestar-thrift account as marital property
Throughout the course of appellant's employment with Crestar
he participated in Crestar's Thrift and Profit Sharing Plan
("Crestar-thrift plan"). The circuit court valued appellant's
Crestar-thrift account as of the evidentiary hearing at $46,718
and classified the entire account as marital. At the time of the
parties' separation on or about January 14, 1994, appellant's
Crestar-thrift account was valued at $17,419.90, consisting of
298.0380 shares of Crestar stock (valued at $13,748.78) and
327.1983 units of Crestfunds Value Fund (valued at $3,671.12).
Following separation, appellant converted the entire 327.1983
units of Crestfunds Value Fund into an additional 87.669 shares
of Crestar common stock, bringing the pre-separation total to
385.708 shares. The pre-separation stock also continued to
appreciate. Appellant also continued to purchase additional
shares of Crestar stock via the Crestar-thrift plan. The
purchases were made with funds deducted from appellant's monthly
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pay check, combined with matching funds from Crestar. In
February of 1994, appellant also received a profit sharing award
of $3,855.76 into his Crestar-thrift account.
Code § 20-107.3(A)(2) addresses the treatment of deferred
compensation plans:
All property including 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, if at such time or thereafter at
least one of the parties intends that the
separation be permanent, is presumed to be
marital property in the absence of
satisfactory evidence that it is separate
property.
Here the appellant has made purchases of additional Crestar stock
subsequent to the parties "last separation." Consequently the
post-separation stock is not presumptively treated as marital
under the statute. However, the post-separation stock was
commingled with the 385.708 shares of stock that the parties
agree is properly characterized as marital property. Code
§ 20-107.3(A)(3)(d) addresses the burdens of the parties in
valuing commingled property:
When marital property and separate property
are commingled by contributing one category
of property to another, resulting in the loss
of identity of the contributed property, the
classification of the contributed property
shall be transmuted to the category of
property receiving the contribution.
However, to the extent the contributed
property is retraceable by a preponderance of
the evidence and was not a gift, such
contributed property shall retain its
original classification.
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Accordingly, the burden is on the proponent of the property's
classification as separate to produce evidence, a preponderance
of which proves a portion of the asset to be separate. Here, the
burden was on the appellant to prove what portion of his
Crestar-thrift account was attributable to the post-separation
purchases. Appellant introduced into evidence activity sheets,
prepared by Crestar, indicating the various activity in the
thrift account from 1/1/93 through 12/31/94. Using this
information it is possible to determine what portion of the
thrift account was separate as of 12/31/94. Had appellant
introduced activity sheets for the period of 1/1/95 - 7/25/95, it
would also be possible to accurately determine the separate and
marital portions of the thrift as of 7/25/95, however appellant
failed to enter those summaries. Nevertheless, the activity
sheets of 1/1/93 to 12/31/94 allow for determining that some part
of the account is separate.
The activity sheet for 1/1/94 - 3/31/94, beginning at the
point just prior to the parties' separation on 1/14/94, indicates
that the marital portion of the account was $17,419.90. To this
sum must be added $3,855.76, which was a profit sharing award
earned by appellant in 1993 prior to the parties' separation but
not awarded to him until February of 1994. See infra part V.
There is no separate indication of the profit sharing award on
the activity sheet as it is grouped with the employer
contribution which totalled $4,455.34 from 1/1/94 - 3/31/94.
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Adding the profit sharing award of $3,855.76 to the initial
$17,419.90 which the parties agree is all marital, we reach a
total of $21,275.66 which constitutes the marital portion at that
time. To this sum was added funds from four different sources
over the next two years: 1) additional employee contributions;
2) matching contributions from the employer (employer
contributions); 3) profit sharing awards; and 4) earnings on the
account in the form of interest and/or dividends. By calculating
what percentage of earnings was attributable to the marital
portion of the account throughout the life of the account from
1/1/94, it is possible to determine what portion is properly
classified as marital. We do not have activity sheets from
12/31/94 on and consequently the calculations can not be employed
beyond 12/31/94. The following calculations indicate the marital
and separate shares as of 12/31/94:
$21,275.66 (marital share as of 1/1/94 [$17,419.90 +
$3,855.76 profit sharing award = $21,275.66]) divided by the
total in the account as of 3/31/94 which was $23,081.38 (the
total indicated on the activity sheet was in fact $23,288.31, but
subtracting the earnings during this period of $206.93, we have a
total of $23,081.38 which reflects post-separation earnings and
contributions to the account) results in a finding that the
marital portion of the thrift accounted for 92.3% of the earnings
on the account. The earnings indicated for 1/1/94 - 3/31/94 are
$206.93. Applying the percentage, 92.3% of this sum is $191.
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Accordingly, earnings attributable to the marital portion of the
account were $191 while $15.93 was attributable to the
post-separation contributions made by appellant and his employer.
Turning to activity from 4/1/94 - 6/30/94, the marital
portion at the beginning of the period was $21,466.66
($21,275.66 - the original marital portion as of 1/1/94 + the
marital earnings from 1/1/94 - 3/31/94 of $191) divided by the
total in the account at the end of the period which was
$24,836.07 (reflecting the post-separation contributions from
1/1/94 - 6/30/94), indicates that the marital portion accounted
for 86% of the earnings while the separate portion accounted for
14% of the earnings. The reported earnings of $1,428.03
multiplied by these percentages results in $1,228.11 in marital
earnings and $199.92 in separate earnings.
Turning to activity from 7/1/94 - 12/31/94, the marital
portion at the beginning of the period was $22,693.77
($21,465.66, the marital portion as of 4/1/94 + the marital
earnings from 4/1/94 - 6/30/94 of $1,228.11) divided by the total
in the account at the end of the period which was $29,672.69
(reflecting the post-separation contributions from 1/1/94 -
12/31/94), indicates that the marital portion accounted for 76%
of the earnings while the separate portion accounted for 24% of
the earnings. The reported earnings of -$3,983.63 multiplied by
these percentages result in -$3,027.56 loss to the marital
portion and -$956.07 loss to the separate portion.
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Consequently, as of 12/31/94, accounting for post-separation
contributions by appellant and his employer, and accounting for
earnings and losses on the respective marital and separate
portions of the thrift account, the marital portion of the
account was $19,666.21 on 12/31/94. The actual account balance
as of that date was $25,689.06, resulting in a determination that
$6,022.85 of the thrift account is properly classified as
separate property.
Because appellant failed to provide activity sheets for
1/1/95 - 7/25/95, it is not possible to continue these
calculations for the remainder of the period. From 1/1/95 to
7/25/95 there were substantial additional contributions to the
account as indicated on the summary sheet provided by Crestar.
On 7/25/96 the thrift account had a balance of $46,222.77,
indicating additional contributions and earnings of $20,533.71.
Without the summary sheets it is impossible to say what portion
of this sum constitutes earnings attributable to the marital
portion. Appellant failed to prove these amounts by failing to
submit activity sheets for 1/1/95 - 7/25/95. However, it was
established at trial, via the testimony of Sue Scott Sampson,
that $4,818.27 of the additional $20,533.71 in the account was a
profit sharing award earned by appellant for his work in 1994.
As this is post-separation earnings, the $4,818.27 is properly
classified and proven as non-marital property.
In addition to the $4,818.27 being proven as separate
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property, it is possible to calculate what portion of the
$20,533.71 constitutes employee contributions and matching
employer contributions. Through Sampson's testimony, it was
established that during 1995 appellant was contributing 6% of his
base pay and that Crestar matched 50% on the dollar up to the
first 6% of contributions, such that appellant was contributing
9% of his base pay. It was also established that appellant's
present base pay was $78,500 and that contributions were made on
each pay period and that there were 26 payroll dates.
Accordingly, estimating 2 that thirteen such pay periods had
occurred by 7/25/96, it is possible to determine that appellant
and his employer had added $3,532.50 to the account (($78,500 x
.09%)/2 = $3,532.50).
Totaling the profit sharing award of $4,818.27 with the
employer/employee contribution of $3,532.50 it is possible to
determine that $8,350.77 of the $20,533.71 is separate property.
Adding this amount to the $6,022.85 that is proven separate
property by analyzing the activity sheets from 1/1/94 - 12/31/94,
it appears the trial court should have declared $14,373.62 of the
$46,222.77 as separate property. The remaining $31,849.15 should
be treated as marital and divided in accordance with the trial
court's order, that is 50% to each party.
II. Award of pension benefits without assignment of specific
value of each party's pension benefits
2
There is no indication of the actual dates of payment.
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In accordance with Code § 20-107.3, the circuit court
characterized appellant's and appellee's respective pension
benefits as marital property and further ordered that each party
was to retain their respective pension benefit proceeds. Code
§ 20-107.3 provides that
[u]pon decreeing the dissolution of a
marriage . . ., the court, upon request of
either party, shall determine the legal title
as between the parties, and the ownership and
value of all property, real or personal,
tangible or intangible, of the parties and
shall consider which of such property is
separate property, which is marital property,
and which is part separate and part marital
property . . . .
In considering valuation of the marital estate, we have held
that while "Virginia's statute `mandates' that trial courts
determine the ownership and value of all real and personal
property of the parties," nevertheless, "consistent with
established Virginia jurisprudence, the litigants have the burden
to present evidence sufficient for the court to discharge its
duty." Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546,
550 (1987). Here the parties produced qualified witnesses,
Maxwell G. Cisne and Sue S. Sampson, providing evidence about the
value of the parties' respective pensions. An extreme range of
values was offered by each party and each side produced
valuations of the other's benefits that differed dramatically
from the party's own estimation of the value of their pension.
Appellee estimated the present value of her pension benefits at
$18,475.62. This is in contrast to the sum of $476,691.32
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offered by appellant as the appropriate calculation to be used in
comparing appellant's and appellee's benefits. Appellee received
$2,473 monthly from her state pension. With regard to
appellant's benefits, appellant's expert valued the present value
of his pension at $14,278.02 or $10,645.55 with monthly payments
of either $784.13 or $584.64 depending on the selected date of
termination of appellant's employment with Crestar. Appellee,
however, offered a figure of $2,700 as the appropriate valuation.
Here the circuit court was left with the unenviable task of
ascertaining the actual value, amongst the extremes offered, of
the parties' respective pension benefits. Despite the
difficulties involved, we have held that even as here, where the
parties have presented such remarkably different valuations, the
court must assign value where the parties have provided the
necessary evidence to prove valuation. Bowers, 4 Va. App. at
618, 359 S.E.2d at 551. Consequently, it was error for the court
to have failed to indicate to the parties the specific value
assigned their respective pension benefits. However, the record
indicates that the court engaged in considerable valuation of the
parties' respective pensions and actively reviewed the statements
of both parties' witnesses with regard to the value of the
pensions. The court's letter of September 20, 1995, evidences
the court's valuation of the benefits:
The disability benefits being received by
Mrs. Eisenberger are marital property and are
not to be shared by Mr. Eisenberger, either
as to payments received or reduced to present
value. In making this determination the
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following factors of § 20-107.3 are
considered: Paragraphs (1), (2), (4), (5),
(6), and (10). Especially the court
considers that Mrs. Eisenberger is determined
to be permanently disabled as contrasted with
Mr. Eisenberger's good health and ability to
provide well for himself. Also considered is
that while in her depression, Mr. Eisenberger
left, thereby imposing on Mrs. Eisenberger
the burden and expense of living on her own
and otherwise impacting adversely on the
marital estate. Whatever family assets are
available should be utilized to allow her to
live in relatively the same standard of
living as before his desertion. This may be
done without any impact on Mr. Eisenberger's
standard of living. Also considered is that
Mr. Eisenberger's pension will not be shared
by Mrs. Eisenberger.
While the court fails to state in its letter, final decree,
or elsewhere in the record, the exact numerical value assigned to
the pensions, nevertheless the court's order of distribution
adequately demonstrates valuation by the court sufficient to meet
the intent if not the letter of Code § 20-107.3, and
consequently, we find the error to be harmless.
We also find unpersuasive appellant's argument that the
circuit court abused its discretion when considering Mrs.
Eisenberger's standard of living. "In reviewing an equitable
distribution award, we rely heavily on the trial judge's
discretion in weighing the particular circumstances of each
case." Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 837
(1988). Further, "[f]ashioning 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
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evidence to support it." Srinivasan v. Srinivasan, 10 Va. App.
728, 732, 396 S.E.2d 675, 678 (1990). Here, appellant
misinterprets the court's statement in its opinion letter of
September 20, 1995. The court stated specifically that it
considered the parties' respective physical conditions and
appellant's departure during appellee's illness in arriving at
its decision. Code § 20-107.3(E)(4) and (5) specifically
authorize the court to consider these factors in making an
equitable distribution. Further, Code § 20-107.3(E)(5)
specifically instructs the court to consider "[t]he circumstances
and factors which contributed to the dissolution of the marriage,
specifically including any ground for divorce . . . ." The
court's comments regarding the parties continuing to enjoy the
same standards of living do not indicate a separate ground of
consideration. Rather, the comments are merely proffered to
explain the court's rationale that in light of the appellant's
contribution to the deterioration of the marital estate by
leaving appellee during her illness and the appellee's permanent
disability, equity is served by allowing her to maintain her
pension. Accordingly, we find no abuse of discretion.
III. Refusal to permit a reservation of spousal support
Code § 20-107.1 guides the circuit court in making decrees
as to maintenance and support of spouses. Specifically, it
provides that "[t]he court, in determining whether to award
support and maintenance for a spouse, shall consider the
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circumstances and factors which contributed to the dissolution of
the marriage, specifically including adultery and any other
ground for divorce under the provisions of subdivisions (3) or
(6) of § 20-91 or § 20-95." Here the court found sufficient
evidence of appellant's desertion to deny him such support and
consequently refused to reserve the right to spousal support.
Appellant accurately asserts that desertion is no longer a per se
bar to spousal support, see Reid v. Reid, 7 Va. App. 553, 561,
375 S.E.2d 533, 538 (1989), nevertheless, Code § 20-107.1
requires the court to consider evidence pertaining to the
circumstances of the dissolution of the marriage. See Thomasson
v. Thomasson, 225 Va. 394, 398, 302 S.E.2d 63, 66 (1983).
Accordingly, in weighing the equities of the parties, where the
court finds proof of desertion, it may properly find such proof
warrants a refusal to grant or reserve support. Such is the case
here. Although divorce was not sought or granted on fault
grounds, the record reflects that the court heard ample testimony
ore tenus concerning the circumstances of divorce and therefrom
determined appellant had deserted appellee during appellee's
illness. The court was well within its statutory authority to
deny reservation of support on these grounds.
IV. Court's use of the present offset method to distribute
marital assets including appellant's deferred management
incentive plan awards
In issuing its final decree the court employed the present
offset method to distribute those assets that the court
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determined were to be divided equally between the parties. After
determining which assets each party would retain, the court
calculated that $29,722.19 should be paid by appellant to
effectuate the fifty-fifty division of the assets. Included
among the assets assigned and accounted for via the present
offset method was the marital portion of the appellant's deferred
management incentive plan awards.
During the evidentiary hearing both appellant and appellee
participated in discussion with the court as to the appropriate
method of allocating the assets once the court had made findings
as to the appropriate distribution of the assets. Immediately
following the court's decision to declare the $10,000 award for
calendar year 1994 separate property, the court addressed the
issue of what method of allocation would be employed. At that
time appellant outlined two alternatives for the court:
[T]he court could look at the present value
of those income streams [income streams from
the deferred awards] and then in the greater
scheme of things allocate the assets, perhaps
other assets, to balance the scale and not
touch these specific assets.
Or the Court could if it decided to
enter a QDRO if, as and when, [sic]
particular percentage should go to
[appellee]. Frankly, I believe that the
simpler matter would be to look at these
things from the broader perspective before
making a determination with respect to any
particular retirement asset how to treat it
for purposes of QDRO.
Appellant reiterated his preference for the present offset method
following some additional discussion, and appellee then stated
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her preference for the present offset method: "[w]e would
certainly like to use a present offset method because my client
would like to have the house and as much cash as possible at this
point in time." The court then asked appellee if she wanted to
use the present offset method in handling the marital portion of
the deferred compensation awards--"You want it done that way as
opposed to her getting money when he gets it?" Appellee
responded in the affirmative and the court then asked the
appellant if he objected to this. The appellant did not state an
objection or a grounds for objection but instead stated that:
Your Honor, I think it is premature to
determine whether -- my suggestion to the
Court is we look at all the retirement
benefits and see how it can be handled
equitably, and if it cannot be handled
equitably with present offset, then we deal
through and [sic] if, as and when through a
QDRO.
(Emphasis added.) Appellant said nothing else with regard to the
values that should be accorded the management incentive plan
awards.
In its final decree the court used $5,000 and $8,000 as the
present values of the awards. Appellant's expert testified to a
present value of $4,580.36 for the $5,000 and a $6,913.14 for the
$8,000 award. Appellant now objects to the court's use of the
present offset method to allocate the marital portion of the
deferred compensation awards on the grounds that the court did
not use the unrebutted present value calculations offered by
appellant's expert. Rule 5A:18 of the Supreme Court of Virginia
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provides:
No ruling of the trial court or the Virginia
Workers' Compensation Commission will be
considered as a basis for reversal unless the
objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
Appellant's comments at the time the court specifically inquired
about the use of the present offset method are fairly read as
indicating appellant's agreement with the use of the method.
However, even if they do not constitute agreement, they certainly
do not amount to a cognizable objection of any kind. Likewise,
appellant's objections to the final decree, which clearly
evidenced the court's valuation of the management incentive plan
awards at $5,000 and $8,000 respectively, do not constitute
proper objection. The circuit court's order was entered on
October 6, 1995, the written objections to the order, filed some
nineteen days later on October 25, 1995, are not timely under
Rule 5A:18. The law contemplates that objections be made during
trial or before entry of the final decree. See Code § 8.01-384. 3
3
Code § 8.01-384 provides in pertinent part:
Arguments made at trial via written pleading,
memorandum, recital of objections in a final
order, oral argument reduced to transcript,
or agreed written statements of facts shall,
unless expressly withdrawn or waived, be
deemed preserved therein for assertion on
appeal.
(Emphasis added.)
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While appellant's objections were filed within the period within
which the circuit court retained discretion to amend or suspend
its order, the objections were not necessarily timely made for
purposes of preserving the issues for appeal to this Court. It
was within the discretion of the trial court to vacate the
judgment and reconsider the issue. Under the circumstances, we
do not find the trial court to have abused its discretion in
failing to vacate the judgment. Accordingly, we find the
appellant has waived his right to argue this issue on appeal, and
we therefore decline to consider it here.
V. Characterization of the appellant's management
incentive plan award for 1993 as marital property
Code § 20-107.3(A)(2) addresses the treatment of deferred
compensation plans:
All property including 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, if at such time or thereafter at
least one of the parties intends that the
separation be permanent, is presumed to be
marital property in the absence of
satisfactory evidence that it is separate
property.
Here, appellant argues that the management incentive plan award
made to him in February 1994, which appellant opted to defer, was
improperly categorized as marital property, because it was
awarded after his separation from appellee. The pertinent
question before us is whether appellant "acquired" the award made
in 1994, at that time, or previously. Crestar's Management
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Incentive Compensation Plan states that "[a]n employee is
eligible for consideration for an incentive award for a Year if
he meets the eligibility standards established by his employer
for such Year." App. at 784. Assuming the employee meets the
criterion in the given year, the employee's supervisor may
recommend the employee for an award for a given year by
submitting the employee's "performance ratings and
recommendations . . . to the committee or its designee on or
before February 15 of the following Year . . . ." App. at 786.
Despite appellant's arguments to the contrary, the plan
provisions make clear that the award to appellant in February of
1994 was made in view of his performance during 1993. That the
specific amount of the award was not known, and that the plan
committee reserved the right to ultimately make or not make an
award, does not negate the fact that any award eventually made
was made for the work of the appellant in calendar year 1993,
during the period of the appellant's marriage. Consequently, the
court did not err in classifying the award made in February 1994
as marital property.
VI. Court's refusal to amend or to suspend its final decree in
order to hear additional evidence in light of appellant's
termination from employment
The granting or denial of a motion to reconsider is within
the sound discretion of the trial court. See Morris v. Morris,
3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986). The court's
decision to deny an award or reservation of support will be
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upheld where the court has considered the appropriate statutory
factors, as delineated by Code § 20-107.1. Where these factors
are considered, the court's decision will only be reversed where
there is a clear abuse of discretion. Thomasson, 225 Va. at 398,
302 S.E.2d at 66.
Here, the court based its denial of support on its finding
that appellant deserted appellee during her illness. As noted
supra at II., proof of desertion was properly considered by the
circuit court and when weighed with the other statutory factors,
resulted in a permissible decision by the court to deny support.
The record indicates that the court also gave proper
consideration to the other statutory factors, specifically
including appellant's earning capacity, age, and health. While
appellant's position with Crestar was clearly considered by the
court, it was not the only, or even most important factor
considered by the court in reaching its decision. Appellant's
current employment was one of many circumstances weighed by the
court. Accordingly, the court's refusal to hear additional
evidence concerning the change in this single circumstance was
well within the court's broad discretion in weighing all the
equities of the parties in determining support.
VII. Classification of the wife's disability benefits as marital
In its letter opinion of September 20, 1995, the court
determined that "[t]he disability benefits being received by
[appellee] are marital property and are not to be shared by
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[appellant] . . . ." This ruling was incorporated into the
court's final decree which was endorsed "Seen and Objected to" by
appellee.
In her brief, appellee indicates her objection to the
court's classification of her benefits as marital property.
While an objection need not be made in a specific form, Rule
5A:18 requires that the action taken must embody the objection
and reason therefor. The "Seen and Objected to" endorsement of
the final decree does not constitute a reasoned objection. Rule
5A:18 provides that "[a] mere statement that the judgment or
award is contrary to the law and the evidence is not sufficient";
it follows that a statement that an order is "Seen and Objected
to" is also insufficient. Accordingly, we find that appellee has
waived her right to argue this issue on appeal and we therefore
decline to consider it here.
The case is remanded to the trial court to enter a new order
compatible with this opinion to reflect our holding in Part II
that $31,849.15 of appellant's thrift account be treated as
marital property and $14,373.62 be treated as separate property.
Affirmed in part,
reversed in part,
and remanded.
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