Brinkley v. Brinkley, 0410-86-2

• Decision Date: 06 October 1987
• Docket Number: No. 0410-86-2,0410-86-2
• Citation: 5 Va.App. 132,361 S.E.2d 139
• Parties: Thurman L. BRINKLEY v. Virginia S. BRINKLEY. Record
• Court: Virginia Court of Appeals

Page 139

361 S.E.2d 139

5 Va.App. 132

Thurman L. BRINKLEY v. Virginia S. BRINKLEY.

Record No. 0410-86-2.

Court of Appeals of Virginia.

Oct. 6, 1987.

James J. Vergara, Jr., Hopewell, for appellant.

Homer C. Eliades, Hopewell, for appellee.

Present: BAKER, BENTON and KEENAN, JJ.

BENTON, Judge.

Virginia S. Brinkley was granted a divorce a vinculo matrimonii from her husband, Thurman L. Brinkley, on the statutory no fault ground. In this appeal, the husband attacks that portion of the circuit court's decree ordering a monetary award in equitable distribution and awarding spousal support to the wife. Because we conclude that the trial court did not comply with Code § 20-107.3(E) in granting the monetary award, we reverse the decree both as to the monetary award and spousal support and remand those issues for reconsideration.

A commissioner in chancery was appointed to take evidence pertinent to the title of property and the identification of the marital and separate property. The parties stipulated many of the issues concerning their affairs, including the following identification of the husband's total income:

                Social Security Disability Payments       $515.00
                Allied Chemical Disability Pension         112.25
                Veteran's Administration Disability Plan   184.00
                                                          -------
                TOTAL                                     $811.25
                

The parties also stipulated that the wife was employed part-time and had a net income of about $100.00 per month.

By letter opinion the trial court identified the marital and separate property and stated:

Having thus determined the marital property subject to equitable distribution under Section 20-107.3, Code of Virginia, the Court has considered all of the evidence relevant to the factors enumerated in subsection E thereof in arriving at the decision as to distribution of these marital assets. (emphasis added).

The trial court proceeded to specify in very clear and precise terms the subsection E factors as they applied to the circumstances of the parties and ordered a "division" of the marital property "[b]ased upon all the factors mandated, and the evidence to support the same."

The marital home, valued at approximately $26,000, was ordered sold by partition if the parties could not agree on a sale, with the proceeds to be equally divided between them. The parties were ordered to take the necessary action to title two vehicles of unspecified value in their separate names in accordance with their stated agreement. The tangible personal property, consisting of household items and effects, was not valued but was deemed marital property and divided between the parties by alternating selection from a master list of all the tangible personal property that the parties could not agree to distribute. A joint savings account was considered equally owned by the parties; thus, after debiting each party's one-half share for the withdrawals that each made, the balance was divided with $5,426 going to the husband and $10,857 to the wife. All other intangible personal property was divided equally.

The trial court then awarded "a lump sum monetary award of $3,000" to the wife, which was to be paid from the husband's share of the bank account. In addition, the wife was awarded "an amount equal to 36%" of the husband's monthly pensions which would have amounted to about $300. The husband also was ordered to pay to the wife spousal support in the amount of $100 per month. The husband appeals this portion of the decree.

Under our statutory equitable distribution scheme, the trial court, "[b]ased upon the equities and the rights and interests of each party in the marital property," is empowered to "grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party," upon decreeing a divorce. Code § 20-107.3(D). This court has addressed the procedural requirements imposed upon trial courts by Code § 20-107.3 for making equitable distribution decisions. See e.g., Robinette v. Robinette, 4 Va.App. 123, 128-30, 354 S.E.2d 808, 810-12 (1987); Williams v. Williams, 4 Va.App. 19, 23-26, 354 S.E.2d 64, 65-66 (1987); Morris v. Morris, 3 Va.App. 303, 310, 349 S.E.2d 661, 665 (1986); Hodges v. Hodges, 2 Va.App. 508, 516-17, 347 S.E.2d 134, 139 (1986); Venable v. Venable, 2 Va.App. 178, 185-86, 342 S.E.2d 646, 650-51 (1986); Sawyer v. Sawyer, 1 Va.App. 75, 78, 335 S.E.2d 277, 279 (1985); Rexrode v. Rexrode, 1 Va.App. 385, 391-94, 339 S.E.2d 544, 548-50 (1986); McGinnis v. McGinnis, 1 Va.App. 272, 275-77, 338 S.E.2d 159, 160-61 (1985).

All of the provisions of Code § 20-107.3 must be followed in making an equitable distribution decision. Clayberg v. Clayberg, 4 Va.App. 218, 222, 355 S.E.2d 902, 904 (1987). Code § 20-107.3(A) provides in pertinent part as follows: "The court must first determine the legal title as between the parties and the ownership and value of all property. The court also must determine whether the property is marital or separate property." Robinette, 4 Va.App. at 128, 354 S.E.2d at 810. "This determination must go beyond mere guesswork." Artis v. Artis, 4 Va.App. 132, 136, 354 S.E.2d 812, 814 (1987).

Once this step has been completed, the trial court must determine "the rights and interests of each party in the marital property." Code § 20-107.3(D). Both parties have "rights and interests in the marital property; however, such interests and rights shall not attach to the legal title of such property." Code § 20-107.3(B). These provisions require the trial court to recognize the division that exists in the marital property based upon its title and to determine as between the parties their respective rights and interests in the marital property no matter how titled.

After the trial court makes this examination, it must then decide whether "[b]ased upon the equities and the rights and interests of each party in the marital property" a monetary award in favor of either party is warranted. Code § 20-107.3(D); see Williams, 4 Va.App. at 19, 354 S.E.2d at 65. The purpose of the monetary award is to provide a mechanism by which our courts may equitably distribute the material fruits of the marriage. Thus, the trial court must examine the rights and interests of each party in the marital property for the purpose of determining whether a monetary award is appropriate. See Code § 20-107.3(D). The monetary award then must be fashioned to equitably "compensate a spouse for his or her contribution to the acquisition of property obtained during the marriage." Sawyer, 1 Va.App. at 78, 335 S.E.2d at 279.

If the trial court determines after its examination that a monetary award is warranted, "the amount of the award and the method of payment shall be determined ... after consideration of" the eleven statutory factors. Code § 20-107.3(E) (emphasis added). The monetary award must be fair and equitable. Code § 20-107.3(E)(11). Neither Subsection D nor E of Code § 20-107.3 require the trial court to consider the eleven factors of Subsection E in determining whether to grant a monetary award. However, Subsection E explicitly states that the eleven enumerated factors are to be considered in determining "the amount of the award and the method of payment." Subsection E, thus, presupposes that a trial court has already determined that a monetary award is appropriate.

As far as we can determine the trial court classified all of the property at issue as marital property. The trial court did not make findings concerning the legal title or ownership of various pieces of tangible personal property, including the household items which were determined to be marital property. However, the trial judge's finding that "the vast majority of assets were acquired through the mutual resources of the husband and wife" creates the inference that he considered the rights and interests of the parties in those assets to be equal. The trial court also did not place a value on the personal property but instead allocated the household items and effects to the parties by a method of alternating division.

It appears from its letter opinion that the trial court determined that under the circumstances of this case it was "equitable" to allocate to each party one-half of the marital assets upon which the parties could not agree, to award the wife an additional $3,000 which was styled "a lump sum monetary award," and then to award the wife thirty-six percent of the pensions. We cannot say that the trial court made a monetary award as contemplated by the statute because we find no evidence that in making a decision whether a monetary award was warranted the trial court analyzed the rights and interests of the parties in the marital property and then made a judgment based "upon the equities and the rights and interests of the parties in the marital property." It is clear from the opinion letter that after determining "the marital property subject to equitable distribution" the trial court then proceeded directly to an examination of the statutory factors required to determine the amount of the award. As a consequence the record before us does not contain a classification of the type and value of marital property titled in the name of the husband, the type and value of marital property titled in the name of the wife, the type and value of marital property jointly owned or titled, and the trial court's finding as to the equities and the rights and interests of the parties in the marital property.

The decree provides that "[t]he defendant is ordered to pay the complainant a lump sum monetary award of $3,000." We can discern no basis upon which that amount was determined, but we do conclude that the $3,000 sum was not "[b]ased upon the equities and the rights and interests of each party in the marital property." Code § 20-107.3(D). As such, we cannot say that the $3,000 represents an award as envisioned by the statute.

Even if we assume that the trial...