COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Duff
Argued at Alexandria, Virginia
WILMOT F. O'LOUGHLIN
OPINION BY
v. Record No. 1763-94-4 CHIEF JUDGE NORMAN K. MOON
JUNE 20, 1995
ELAYNE (LOWE) O'LOUGHLIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
Peter M. Fitzner (Dennis J. Smith; Shoun,
Smith & Bach, P.C., on brief), for appellant.
Ann W. Mische (Paula W. Rank; Byrd, Mische,
Bevis, Bowen & Joseph, P.C., on brief),
for appellee.
Wilmot F. O'Loughlin, appellant, appeals the decision of the
trial court awarding sixty percent of the marital estate to
Elayne Lowe O'Loughlin, appellee. Appellant argues that the
trial court's equitable distribution award was based entirely and
wrongfully upon consideration of his negative nonmonetary
contributions to the well-being of the family, absent economic
fault on his part. We disagree and affirm the judgment.
The purpose of Code § 20-107.3 is to divide fairly the value
of the marital assets acquired by the parties during marriage
with due regard for both their monetary and nonmonetary
contributions to the acquisition and maintenance of the property
and to the marriage. Robinette v. Robinette, 4 Va. App. 123,
130, 354 S.E.2d 808, 811 (1987). "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." Srinivason v.
Srinivason, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
Virginia has no presumption in favor of an equal division of
the marital property.
"Instead, the applicable statute requires the trial
court to determine the amount of the award and the
method of its payment after considering [the] eleven
specific factors." Once it has been determined that a
monetary award is appropriate, the trial judge must
determine the amount of the monetary award after
considering the factors mandated by Code § 20-107.3(E).
Therefore, proof that the monetary award does not
reflect an equal division of marital property is not
alone sufficient to reverse the award, provided the
trial judge considered all the factors enumerated in
Code § 20-107.3(E) in determining the amount.
Lambert v. Lambert, 6 Va. App. 94, 106, 367 S.E.2d 184, 191
(1988)(citations omitted).
In this case, appellant concedes that the trial court based
its award on a consideration of the statutory factors contained
in Code § 20-107.3(E). However, appellant argues that the
court's consideration of his "negative non-monetary
contributions" to the family formed the sole basis of the trial
court's award and was nothing more than a "back door approach" to
allow the court to punish him for his infidelity, which began
from the early days of the marriage and lasted through to the
time of the divorce.
The record does not support appellant's contention that the
trial court's distribution was based solely on appellant's
negative non-monetary contributions. First, appellant
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acknowledges that the difference in the parties' ages favored the
appellee. See Code § 20-107.3(E)(4). Second, the trial court
found that appellee's nonmonetary contributions were greater than
those of appellant. Specifically, the court recognized that
appellee was the primary caretaker of the family life (i.e., the
couple's daughter) and all of the marital property (i.e., the
marital home and other physical assets pertinent thereto) during
all of the years of the marriage. While the trial court, due to
appellant's management of marital funds, ruled that the parties'
monetary contributions were equal, it gave this factor little
weight because it found the manner in which appellant controlled
the funds to be "domineering and offensive."
Moreover, as long as the trial court considers all the
factors, it is at the court's discretion to determine what weight
to give each factor when making the equitable distribution award.
Booth v. Booth, 7 Va. App. 22, 28, 371 S.E.2d 569, 573 (1988).
The record shows that the court considered each of the statutory
factors; it was not required to quantify the weight given to each
or weigh each factor equally. See Marion v. Marion, 11 Va. App.
659, 664, 401 S.E.2d 432, 436 (1991).
The record also shows that the trial court properly analyzed
the impact of appellant's adultery on the marriage partnership.
The trial court did not use it to punish appellant in
contravention of well established case law. The trial court
correctly adhered to the principle espoused in Aster v. Gross, 7
Va. App. 1, 371 S.E.2d 833 (1988), and its progeny that in order
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to alter the evaluation for an equitable distribution award under
Code § 20-107.3(E)(5), there must be a showing of use of the
marital property for the benefit of one spouse and for purposes
unrelated to the marriage "in anticipation of divorce or
separation . . . [and] at a time when the marriage is in
jeopardy." Booth, 7 Va. App. at 27, 371 S.E.2d at 572; see also
Alphin v. Alphin, 15 Va. App. 395, 402, 424 S.E.2d 572, 576
(1992); Amburn v. Amburn, 13 Va. App. 661, 664-66, 414 S.E.2d
847, 849-51 (1992). Without this showing, no finding of waste or
dissipation may be considered as a factor which weighs against
the party at fault.
Here, the trial court, while finding that during the
marriage appellant had spent over ten thousand dollars on his
paramours, specifically stated that it would not consider those
expenses as a factor because there was insufficient evidence to
support a finding of dissipation. However, the trial court went
on to say that appellant's infidelity had a negative impact on
the well-being of the family. The court recognized in Smith v.
Smith, 18 Va. App. 427, 431-32, 444 S.E.2d 269, 273 (1994), that,
while equitable distribution is not a vehicle to punish behavior,
the statutory guidelines authorize consideration of such behavior
as having an adverse effect on the marriage and justifying an
award that favors one spouse over the other.
The trial court did not punish appellant for his adultery,
despite his assertion to the contrary. In Aster, we held that in
considering the circumstances that led to the dissolution of the
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marriage, Code § 20-107.3(E)(5), the court should consider the
circumstances that affected the marriage partnership's economic
condition. 7 Va. App. at 5-6, 371 S.E.2d at 836. We did not
hold that if a party's negative actions should also be a
circumstance that brought about the dissolution of the marriage
then within that subsection, the evidence may not be considered
for any other purpose as it may relate to other factors in the
various subparagraphs of Code § 20-107.3(E). We said that:
[c]ircumstances that lead to the dissolution of the
marriage but have no effect upon marital property, its
value, or otherwise are not relevant in determining a
monetary award, need not be considered. A trial court
may only consider those circumstances leading to the
dissolution of the marriage, that are relevant to
determining a monetary award in order to avoid an
unreasonable result.
Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836.
In this case the wife worked outside the home and made
nearly one hundred percent of the nonmonetary contributions to
the marriage partnership. Not only did the husband make no
positive nonmonetary contributions, his unfaithfulness hindered
the wife's efforts to contribute to the partnership in a
nonmonetary way. The husband argues that since his bad acts fit
best under subsection (E)(1), they could not be considered under
any other subsection. Such a result is not dictated by Aster.
If the evidence of misconduct is relevant under any other factor
than subparagraph (5), it may in the judge's discretion be
considered when making an equitable award. The trial court may
"consider the negative impact of [an] affair on the well-being of
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the family, see Code § 20-107.3(E)(1) . . . ." Smith, 18 Va.
App. at 431, 444 S.E.2d at 273.
The rule established in Aster, that circumstances leading to
the dissolution of the marriage but having no effect on the
marital property or its value are not relevant to determining the
monetary award, was meant to require proof of some relationship
between the fault and the marital estate, to require objectivity
to the trial court's decision making on equitable distribution,
and was focused on a couple's monetary contributions. Our
purpose was to eliminate arbitrary monetary awards that punished
a spouse for his or her fault without showing such fault had an
economic impact on the marriage. However, our ruling in Aster
did not establish that the negative impact of marital fault or
other behavior could not be considered in light of the other
factors, such as the couple's nonmonetary contributions, under
Code § 20-107.3(E). Just as marital fault could be shown to have
an economic impact on a marriage, i.e., waste or dissipation of
assets, it can also be shown to have detracted from the marital
partnership in other ways. Thus, as in this case, the trial
court found not only that appellant made no nonmonetary
contributions to the well-being of the family, but that his long-
term infidelity and abusive behavior over the course of the
marriage actually had a negative impact on the marital
partnership.
In considering evidence of fault under any of the factors of
Code § 20-107.3, we still adhere to our reasoning in Aster.
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Fault is not a "wild card" that may be employed to justify what
otherwise would be an arbitrary or punitive award. When fault is
relevant in arriving at an award, the trial judge is required to
consider it objectively, and how, if at all, it quantitatively
affected the marital estate or well being of the family.
Lastly, the trial court correctly took into account all of
the factors under Code § 20-107.3(E) in distributing the parties'
universal life insurance and properly exercised its discretion in
dividing that asset in the same proportion as other assets.
Appellant's argument that this asset should be treated
differently than others is not supported by the equitable
distribution statute or case law. Having found credible evidence
to support the trial court's equitable distribution award, we
affirm its ruling.
Affirmed.
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