Artis v. Artis, 1532-85

• Decision Date: 07 April 1987
• Docket Number: No. 1532-85,1532-85
• Citation: 354 S.E.2d 812,4 Va.App. 132
• Parties: Pauline R. ARTIS v. Herbert ARTIS. Record
• Court: Virginia Court of Appeals

Page 812

354 S.E.2d 812

4 Va.App. 132

Pauline R. ARTIS v. Herbert ARTIS.

Record No. 1532-85.

Court of Appeals of Virginia.

April 7, 1987.

Robert B. Machen, Fairfax, for appellant.

Robert P. Hudock, Vienna, for appellee.

Present: KOONTZ, C.J., and COLEMAN and DUFF, JJ.

DUFF, Judge.

In this appeal, Pauline R. Artis (wife) seeks reversal of an equitable distribution award made pursuant to Code § 20-107.3. She raises three issues: (1) whether the court erred in failing to determine the value of Herbert Artis' (husband) military pension before making its monetary award; (2) whether the court abused its discretion when, without making any findings, it awarded her fifteen percent of her husband's military pension when the husband had stipulated that the factors required to be considered by Code § 20-107.3(E) relating to contributions to the general welfare of the family and to the accumulation of marital assets were equal; and (3) whether the court abused its discretion in not awarding her attorney's fees.

Based upon our review of the record, we find that the trial court erred in awarding the wife fifteen percent of her husband's military pension. We, therefore, reverse the equitable distribution decree and remand for further proceedings consistent with this opinion.

The wife filed a bill of complaint in the Circuit Court of Fairfax County on April 17, 1984, requesting a divorce on the grounds of desertion and adultery. The husband filed an answer and cross-bill on October 26, 1984, praying for a divorce on the grounds of cruelty and constructive desertion. The commissioner in chancery found that there was no corroborative evidence to support a finding of fault on the part of either party. His report was filed, with no exceptions taken, and a decree of divorce a vinculo matrimonii was entered on May 23, 1985, on the ground that the parties had lived separate and apart without interruption for a period in excess of one year. All issues pertaining to spousal and child support, child custody, equitable distribution, and attorney's fees were reserved for later determination.

An equitable distribution hearing was held on July 10, 1985. The parties had agreed to the disposition of various marital assets, including a boat, a stereo system, a money market account, two automobiles and the family residence. These assets are not involved in this appeal. The marital property that was submitted to the court for a decision regarding equitable distribution consisted of an interest in a beach condominium, IBM stock, life insurance, an interest in an escrow account with USAA insurance, and the husband's military pension. Of these, the wife challenges the court's treatment of the military pension.

The husband stipulated that the wife had made an equal contribution to the marriage, to the well being of the family, and to the acquisition, care, and maintenance of the marital property. The parties also stipulated that the marriage had lasted twenty-seven years, that the husband had spent twenty-three of those years on active duty as a naval officer, and that during this period, the wife was employed and was solely responsible for the children when the husband was overseas.

With regard to the parties' monthly earnings, evidence was given that the husband had retired from the naval service and was working for IBM. His average gross monthly income was $5,286, which included his military pension of $1,885. The wife was employed as a payroll technician at the Naval Ship Research and Development Center in Maryland. She received a gross monthly salary of $1,560 plus $145 per month from investments.

The wife introduced expert evidence concerning the present value of the military pension, which was assessed at $670,054. No other evidence was submitted regarding the value of the pension. At the conclusion of the trial, the court awarded the wife fifteen percent of the husband's pension, payable as he received it, $500 per month child support, and $500 per month spousal support. The court denied the wife's request for attorney's fees on the ground that she had ample means to pay her own fees.

I.

Based on the trial court's failure to make a finding of value of the military pension, the wife argues that the monetary award was invalid. The husband takes the position that a specific finding was not required because Code § 20-107.3(G) authorizes a court to direct payment of a percentage of pension benefits.

We reject the husband's argument that in view of Code § 20-107.3(G), valuation by the court is unnecessary. Code § 20-107.3(G) provides a method by which the monetary award granted under Code § 20-107.3(D) may be satisfied. However, the court should not determine the method of payment pursuant to subsection (G) until it has fully complied with the previous subsections and requirements of Code § 20-107.3, including valuation and a monetary award.

We have previously examined the procedural requirements of Code § 20-107.3 in Hodges v. Hodges, 2 Va.App. 508, 516-17, 347 S.E.2d 134, 139 (1986), Rexrode v. Rexrode, 1 Va.App. 385, 391-94, 339 S.E.2d 544, 548-50 (1985), and McGinnis v. McGinnis, 1 Va.App. 272, 275-77, 338 S.E.2d 159, 160-61 (1985).

Where an equitable distribution award is appropriate, then all of the provisions of Code § 20-107.3 must be followed. Rexrode, 1 Va.App. at 394, 339 S.E.2d at 550. The court must "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 and which is marital property." Code § 20-107.3(A) (emphasis added). This determination must go beyond mere guesswork. Hodges, 2 Va.App. at 516, 347 S.E.2d at 139. Once the marital property is identified and valued, then the court is authorized to make a monetary award based on all the factors enumerated in Code § 20-107.3(E). Rexrode at 1 Va.App. at 394, 339 S.E.2d at 550. The amount of the award and method of payment are a result of a consideration of these factors, including the present value of the pension or the retirement benefits. Code § 20-107.3(E)(8); McLaughlin v. McLaughlin, 2 Va.App. 463, 471, 346 S.E.2d 535, 539 (1986).

This appeal does not involve a dispute about the identity of the marital property. The parties acknowledge that since the vast majority of the benefits were earned during the marriage, the pension is marital property. See Sawyer v. Sawyer, 1 Va.App. 75, 335 S.E.2d 277 (1985). The issue raised by the wife is the court's failure to value the military pension.

At the conclusion of the hearing, the court rendered an oral decision, which did not include a finding of the present value of the military pension. However, its final decree entered November 1, 1985, nunc pro tunc, July 10, 1985, contained a statement that the unrefuted evidence showed that the husband's vested military pension had a present value of $670,054. We hold that this statement was a specific finding of present value of the pension and, therefore, that the wife's argument is without merit.

II.

The trial court ordered a fifteen/eighty-five percent split of the military retirement pension. The wife argues that the court's award of fifteen percent was an abuse of discretion, especially since the court failed to apply or mention the application of the various factors in Code § 20-107.3(E). While recognizing that the law of Virginia does not presume that equitable...