COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
DONNA WARE DIEHL
MEMORANDUM OPINION * BY
v. Record No. 0396-96-4 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 12, 1996
WILLIAM F. DIEHL
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
John E. Kilcarr (Kilcarr & Volzer, on brief),
for appellant.
Timothy T. Szabo (Szabo, Zelnick & Erickson,
P.C., on brief), for appellee.
On appeal from a final decree granting her a divorce from
William F. Diehl on ground of adultery, Donna Ware Diehl contends
that the trial court erred (1) in failing to award her a portion
of the pension payments received by Mr. Diehl between the date of
separation and the date of the divorce decree, (2) in failing to
award her a portion of Mr. Diehl's annual accrued leave pay, and
(3) in awarding her only $1,500 in attorney's fees. We find no
error and affirm the judgment of the trial court.
Mr. and Mrs. Diehl were married November 30, 1973. They
have three children, one of whom is emancipated. They separated
on April 24, 1994. On June 3, 1994, the trial court entered a
"temporary agreed order," endorsed by counsel for both parties,
providing, inter alia, that Mr. Diehl should "pay the mortgage
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
payment on the marital home . . . in the amount of $1,660.00 per
month . . . in lieu of child support . . . ."
As a result of military service, Mr. Diehl draws a pension
which provides disposable net pay of $2,267.28. The trial court
determined the marital share of the pension to be eighty-nine
percent. Mr. Diehl drew the pension for three months before the
parties' separation and has continued to draw it thereafter. In
addition, prior to the parties' separation, Mr. Diehl received a
lump sum payment of $4,529.88, representing accrued leave.
The final decree recited the parties' agreement to sell the
marital home. It ordered them to pay equally the monthly
mortgage payment (PITI) pending sale, and it ordered that the net
proceeds of sale should be divided equally between them. The
decree recited that the trial court had considered all of the
factors set forth in Code § 20-107.3 and provided further that
Mr. Diehl should pay Mrs. Diehl a monetary award of $1,245.83,
that she was awarded 44.5 percent (one-half of the marital share)
of Mr. Diehl's "disposable retired pay," that Mr. Diehl should
pay to Mrs. Diehl $1,061 per month as child support, and that Mr.
Diehl should pay $1,500 against Mrs. Diehl's attorney's fees.
I.
Mrs. Diehl first contends that the trial court erred in
refusing to award her a share of the pension income received by
Mr. Diehl between the time of their separation and the final
decree of divorce. She argues that this income, the entitlement
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to which accrued during the marriage, was a marital asset to be
divided.
"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). In determining the equitable
distribution of property, the trial court must first classify the
property as separate or marital, must then value the property,
and, finally, must determine the distribution of the property
upon consideration of the factors found in Code § 20-107.3(E).
Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436
(1991). The most appropriate date for classification is the date
of the parties' last separation. Price v. Price, 4 Va. App. 224,
231, 355 S.E.2d 905, 909 (1987). The most suitable date for
valuation is generally the evidentiary hearing date or trial
date. Id. at 232, 355 S.E.2d at 910.
The marital share of Mr. Diehl's pension was a marital
asset. The portion received prior to the parties' separation did
not fall within the ambit of Code § 20-107.3. The portion
received between the parties' final separation and the date of
the final divorce decree was a marital asset, properly scheduled
as such. However, Mrs. Diehl's contention on appeal requires not
only that the retirement pay increment should have been scheduled
as a marital asset, but also the determination that some portion
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of that asset should have been distributed to her. We find no
error in the trial court's determination.
The initial agreed order required Mr. Diehl to service the
mortgage on the marital home for the benefit of both parties and
their dependent children. The trial court took into account this
application of Mr. Diehl's assets, along with the other factors
found in Code § 20-107.3(E), in determining the proportion of the
marital share of Mr. Diehl's retirement pay that should be
awarded to Mrs. Diehl and in determining her lump sum award.
After hearing argument on a motion for reconsideration, the
trial court said:
It's an asset of the two parties, but all of
that was taken into consideration. . . . I
could . . . make him pay her that money back,
but in balancing all of the assets and the
considerations that the statute requires, I
thought that the way I did it was fair.
I'm not now going to go back, pick out one
little item and say, well, maybe that could
have gone another way. If I do that, I'd
have to hold the whole trial again, because
that would have an affect [sic] and somebody
else would be here.
The record discloses unquestionably that the trial court
considered the increment of retirement pay received by Mr. Diehl
between the parties' separation and the final decree as a marital
asset and that it considered that asset in determining the total
equitable award. We find no abuse of discretion in that
determination.
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II.
Mrs. Diehl next contends that the trial court erred in
denying her a portion of Mr. Diehl's lump sum payment for annual
accrued leave. We find no error. This payment was received by
Mr. Diehl prior to the parties' separation. Mr. Diehl applied
the proceeds to marital purposes, including the acquisition of
tangible marital property which was included in the parties'
joint marital estate for distribution purposes. No waste was
proven.
III.
Finally, Mrs. Diehl contends that the trial court erred in
awarding her only $1,500 in attorney's fees. She argues that the
need to prove Mr. Diehl's adultery justified a larger provision.
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987). Noting that Mr. Diehl had
admitted his adultery, the trial court found that the
circumstances of the case did not warrant a higher award. We
perceive no abuse of discretion in this determination.
The judgment of the trial court is affirmed.
Affirmed.
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