COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Duff
PAUL BRUNDAGE
v. Record No. 1487-94-4
EDITH EMILY BRUNDAGE MEMORANDUM OPINION * BY
JUDGE CHARLES H. DUFF
EDITH EMILY BRUNDAGE MAY 23, 1995
v. Record No. 1571-94-4
PAUL BRUNDAGE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
Paul Brundage, pro se.
John S. Petrillo (Philip Schwartz; Schwartz &
Ellis, Ltd., on brief), for Edith E. Brundage.
Paul Brundage (husband) appeals the decision of the circuit
court granting Edith E. Brundage (wife) a divorce on the grounds
of a one-year separation and deciding other issues. Wife has
also filed an appeal from the circuit court's decision.
Husband raises the following issues on appeal:
(1) whether the trial court erred in overruling
husband's objections to the findings of the
commissioner in chancery that husband condoned wife's
adultery;
(2) whether the trial court erred in failing to
incorporate the parties' Property Settlement Agreement
into the final decree of divorce;
(3) whether the trial court erred in awarding no
attorney's fees to husband and awarding $23,000 in
attorney's fees to wife;
(4) whether the trial court erred in awarding spousal
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
support to wife and failing to reserve a right to
spousal support to husband; and
(5) whether the trial court erroneously awarded wife an
interest in husband's pension exceeding the statutory
marital share.
In response to wife's appeal, husband also raises as an issue
whether the trial court erred in determining the amount of child
support.
Wife raises two issues on appeal, both of which relate to
the award of an interest in husband's pension:
(1) whether the trial court erred in awarding wife
only thirty-five percent of the marital share of
husband's pension; and
(2) whether the trial court erred in refusing to also
award wife a survivor's annuity.
The commissioner in chancery heard evidence on the parties'
respective grounds for divorce. Additional hearings on the
issues of equitable distribution and spousal support were
conducted by the trial court.
I. Grounds for Divorce
"The commissioner's report is deemed to be prima facie
correct." Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545,
548 (1990). "When the commissioner's findings are based upon ore
tenus evidence, 'due regard [must be given] to the commissioner's
ability . . . to see, hear and evaluate the witness at first
hand.'" Id. (citation omitted). "The decree confirming the
commissioner's report is presumed to be correct and will not be
disturbed if it is reasonably supported by substantial,
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competent, and credible evidence." Brawand v. Brawand, 1 Va.
App. 305, 308, 338 S.E.2d 651, 652 (1986).
The commissioner found that, while wife committed adultery,
the parties resumed marital relations after husband knew of
wife's infidelities. Husband challenges the finding that he
condoned wife's adultery. At oral argument and in his brief,
husband pointed specifically to incidents of adultery that
occurred in March 1988. However, the "Agreement Concerning Trial
Reconciliation and Terms and Conditions in the Event of Divorce,"
drafted by husband and provided to wife in July 1990, contains
the following passage:
On or about November 19, 1989, HUSBAND learned that
during the previous twenty-two (22) months WIFE has had
an ongoing adulterous relationship at various times and
places in Europe, with one GILLES. One specific
instance occurred at The Collin House, Ebury Street,
SW1, London, England, on March 11, 1988.
The parties admitted that they resumed their marital relations,
albeit on a trial basis, in September 1990.
"'Condonation is defined to be the remission, by one of the
married parties, of an offense which he knows the other has
committed against the marriage, on the condition of being
continually treated by the other with conjugal kindness.'"
Cutlip v. Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989)
(citation omitted). Condonation is a defense to a charge of
adultery as a grounds for divorce. Id. While husband contends
he had no knowledge that wife committed adultery on specific
dates during this period, substantial evidence demonstrates that
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husband knew of wife's ongoing adulterous relationship prior to
the parties' reconciliation. Therefore, as credible evidence
supports the commissioner's finding, this Court will not disturb
the decision of the trial court to accept the commissioner's
report.
II. Incorporation of Property Settlement Agreement
"The language of Code § 20-109.1 gives the trial court
discretion in determining whether a property settlement agreement
should be incorporated by reference into a final decree of
divorce. Absent an abuse of discretion, the trial court's
decision must be upheld on appeal." Forrest v. Forrest, 3 Va.
App. 236, 239, 349 S.E.2d 157, 159 (1986).
Husband alleges the trial court erred in failing to
incorporate into its final decree the property settlement
agreement outlined before the trial court during a hearing in
March 1994. We note, however, that "[t]o be valid and
enforceable, the terms of an oral agreement must be reasonably
certain, definite, and complete to enable the parties and the
courts to give the agreement exact meaning." Richardson v.
Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990). In
contrast, the transcript upon which husband relies indicates that
the agreement was characterized as an "outline." The agreement
also failed to address significant marital property interests
held by the parties, most notably the parties' respective
pensions benefits.
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Therefore, we cannot say the trial court abused its
discretion in failing to approve the parties' property settlement
agreement.
III. Award of Attorney's Fees
A court's award of attorney's fees and costs is a matter
submitted to the sound discretion of the trial court 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). The key
to a proper award is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
While husband contends that wife's suit was meritless, the
commissioner found the evidence supported wife's complaints
concerning husband's behavior towards her and the parties'
children, noting that "the marriage had nearly terminated because
of the factors proven by [wife]." Moreover, the trial court
indicated it had "taken into consideration the factors . . .
concerning who may be responsible for litigation or [a]
particular motion or so forth." The trial court noted also that
husband had used marital assets to pay some of his attorney's
fees and that husband had substantially higher income than wife.
Wife incurred $57,000 in attorney's fees, of which husband
was ordered to pay $20,000. Husband was also ordered to pay
$3,000 in costs. Based on the issues involved and the respective
abilities of the parties to pay, we cannot say that the award was
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unreasonable or that the trial judge abused his discretion in
making the award.
IV. Spousal Support
Husband challenges the trial court's award of spousal
support to wife, asserting that the trial court erred in failing
to impute annual income of $52,000 to wife. The testimony before
the trial court demonstrated that husband had been the primary
wage-earner for the family. When wife did work, it had been
primarily part-time. There was no year in which wife earned
$52,000.
Moreover, the trial court found wife's testimony to be
credible. She testified that her current position alleviated the
need for child care and avoided unusual work hours "which would
be inappropriate, given [wife's] responsibilities and
circumstances." Cf. Butler v. Butler, 217 Va. 195, 197, 227
S.E.2d 688, 690 (1976) (father's decision to remain in lower-paid
position was "made in his own interest").
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
(1986). The record demonstrates the trial court considered the
statutory factors and did not abuse its discretion. Therefore,
we affirm the trial court's decision awarding wife spousal
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support.
Husband also requested spousal support in his Cross-Bill of
Complaint. While we cannot say on review that the trial court
abused its discretion in denying husband's request for spousal
support at this time, the trial court did err by failing to
reserve husband's right to seek spousal support in the future.
"[W]here there is no bar to the right of spousal support, it is
reversible error for the trial court, upon request of either
party, to fail to make a reservation in the decree of the right
to receive spousal support in the event of a change of
circumstances." Bacon v. Bacon, 3 Va. App. 484, 491, 351 S.E.2d
37, 41 (1986). Therefore, we reverse and remand to the trial
court for reservation of husband's right to seek spousal support
in the future.
V. Interest in Husband's Pension
In the final decree, the trial court noted that the present
value of husband's "[Civil Service Retirement System] pension is
$75,085.00, and the marital share thereof is 96.92% or
$72,772.38." The court then awarded wife the following:
[Wife] is awarded 35% of the gross amount of
each pension payment due to [husband]
pursuant to his Federal Government CSRS, in
whatever manner the payments are made,
whether by monthly allotment, or by lump sum
payment, or by other means, and any payment
due to [wife] shall be made directly to her
. . . .
As entered, the order is erroneous. "A present value
calculation is of direct use only where payment of the portion of
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the monetary award attributable to the pension is to occur
immediately rather than over a period of time." Zipf v. Zipf, 8
Va. App. 387, 397, 382 S.E.2d 263, 269 (1989). The trial court
choose not to make a present monetary award to wife comparable to
her share of husband's pension.
Instead, the trial court awarded wife a percentage of each
CSRS pension payment husband receives at the time it is paid out.
Under Code § 20-107.3(G)(1), a trial court may award a
percentage of any pension payout to the spouse, but the court
must ensure that the amount paid to the spouse does not exceed
fifty percent of the marital share.
The trial court's award of thirty-five percent of husband's
CSRS pension at the time it is actually paid did not reflect an
award of only the marital share. While the marital share at the
time of trial was very nearly equal to husband's total pension,
the marital share of the total pension will diminish with
husband's continued employment.
Therefore, we reverse and remand for the trial court to
enter an order awarding wife her thirty-five percent portion of
the marital share of husband's pension, to be paid at the time
husband begins to receive his pension. The marital share may be
determined by use of a fraction, the numerator of which is the
number of months husband was employed and contributing to his
pension during the marriage and before the last separation of the
parties, and the denominator of which is the total number of
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months of husband's employment. See Code § 20-107.3(G)(1).
Wife argues that the trial court erred by failing to award
her a survivor's annuity. As the issue of the equitable
distribution of husband's pension has been remanded, the trial
court may reconsider whether an award of a survivor's annuity is
warranted under the circumstances and in light of the statutory
factors set out in Code § 20-107.3(E).
VI. Child Support
In response to wife's appeal, husband also seeks review of
the trial court's order setting child support. Husband alleges
the trial court erred by deviating from the statutory guidelines
without written findings, by failing to impute income to wife,
and by failing to include his child care expenses in its
calculation.
The trial court awarded child support based upon the
statutory guidelines, expressly deviating from the guideline
amount for split custody to include the additional costs for
private school and orthodontia. See Code §§ 20-108.1(B) and
20-108.2(G). Evidence was introduced to support those costs, and
the amounts of the deviations were included in the guideline
worksheet incorporated into the court's decree. The trial
court's order rebutted the presumptive correctness of the
statutory guideline amount with "enough detail and exactness to
allow for effective appellate review of the findings."
Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 897
9
(1991). Therefore, we find no reversible error in the trial
court's deviation from the statutory guidelines.
The trial court determined wife was not underemployed. This
decision was supported by credible evidence. We therefore find
no error in the trial court's decision not to impute income to
wife.
Husband presented no evidence during the trial court's
hearings concerning child care expenses. The only evidence
concerning child care was a summary attached to one of several
motions for reconsideration filed by husband after the close of
the trial. As husband did not present any evidence of his child
care costs during the trial, we cannot say the trial court erred
in refusing to include in its calculations any of those alleged
expenses.
In summary, we reverse and remand the trial court's award to
wife of thirty-five percent of each payment received by husband
from his CSRS pension. The trial court may review its
determination concerning an award of a survivor's annuity, in
light of its decision concerning husband's pension. We also
reverse the trial court's failure to reserve husband's right to
seek spousal support in the future.
We affirm all other aspects of the trial court's decision.
Specifically, we affirm the finding that husband condoned wife's
adulterous relationship; the award to wife of spousal support,
attorney's fees, and costs; the refusal to incorporate the
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property settlement agreement into the final decree of divorce;
and the determination of child support.
Reversed in part,
affirmed in part,
and remanded.
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