Clements v. Clements

• Decision Date: 17 July 1990
• Docket Number: 1227-88-4,Nos. 1182-88-4,s. 1182-88-4
• Citation: 397 S.E.2d 257,10 Va.App. 580
• Parties: Sylvia Jean CLEMENTS v. Douglas M. CLEMENTS. and Douglas M. CLEMENTS v. Sylvia Jean CLEMENTS. Record
• Court: Virginia Court of Appeals

Page 257

397 S.E.2d 257

10 Va.App. 580

Sylvia Jean CLEMENTS v. Douglas M. CLEMENTS and Douglas M. CLEMENTS v. Sylvia Jean CLEMENTS.

Record Nos. 1182-88-4, 1227-88-4.

Court of Appeals of Virginia.

July 17, 1990.

E. Thompson Magoffin, Reston, for Sylvia Jean Clements.

Sharon K. Lieblich, Alexandria, for Douglas M. Clements.

Present: COLEMAN, DUFF and KEENAN, JJ.

KEENAN, Judge.

Sylvia J. Clements (wife) and Douglas M. Clements (husband) both appeal from a decree in which the trial court awarded the husband a divorce on the grounds of adultery. The final decree provided for a $50,000 monetary award to the wife.

The wife raises three issues on appeal: 1) whether the trial court erred in its valuation of the marital share of the husband's pension and the subsequent distribution thereof; 2) whether the trial court improperly failed to include certain assets of the parties as marital property and divide them accordingly; ¹ and 3) whether the court erred by using a valuation date other than the date of the final decree for Merrill Lynch account # 795-22467.

The husband raises three issues on appeal: 1) whether the trial court's arithmetic calculation of the parties' assets failed to give full effect to a stipulation agreement between them; 2) whether the trial court erred by failing to impose sanctions against the wife for removing funds contrary to the stipulation agreement; and 3) whether the monetary award was proper.

The facts pertinent to this appeal are as follows. Sylvia and Douglas Clements were married in March 1959. They had two children, both of whom are currently emancipated. The parties separated on August 17, 1984 and a final decree of divorce was entered on August 4, 1988.

Douglas entered the military in 1957 and retired in June 1979. He then worked for two months in Saudi Arabia, before returning to the U.S., where he held various jobs. He returned to Saudi Arabia with the Peace Support Group in 1981 and remained there for thirty-eight months. During this time, Sylvia lived in the marital home in Vienna, Virginia except for two months in 1983 when she was in Saudi Arabia.

In addition to the marital home and its furnishings, the parties owned two automobiles and had substantial liquid assets which were maintained primarily in Merrill Lynch investment accounts. After their separation, the parties agreed to the following distribution of assets by stipulation entered September 5, 1986: 1) Wife was to keep $32,000 worth of assets currently in her control; 2) Husband was to receive an equivalent amount; and 3) other specified liquid assets were to be frozen.

An equitable distribution hearing was held October 15-16, 1986. At that time the parties stipulated to the distribution of the marital home and its furnishings except for one dining room set, jewelry and the automobiles. By letter order dated December 10, 1987 the court ruled on the distribution of the remaining property. This ruling was clarified in a second letter of May 9, 1988. The parties noted cross-appeals with respect to the court's findings.

Initially, the wife argues that the trial court erred both in the dollar valuation it placed on the husband's pension and in the percentage of the pension designated as the marital share. In addition, the wife argues that the trial court erred in not awarding her one-half of payments received by the husband from his pension between the date of separation and the date of the final decree of divorce.

In its letter opinion of December 1987, the trial court valued the husband's pension at $238,274. The court determined that ten percent of the pension ($23,827) was the husband's separate property, since the parties were not married during his entire military career. Thus, the court determined that the value of the marital share of the pension was $214,447 or ninety percent. ² The wife argues that the trial court's valuation does not accurately reflect the value of the husband's pension because it does not include cost of living adjustments. The wife maintains that the proper value of the pension is $425,696. ³ She also claims that pension payments have been made to the husband in excess of $92,637 since the parties separated and that she is entitled to one-half the amount he received between the date of separation and the date of the final decree.

The trial court heard testimony from both the husband's expert and the wife's expert with respect to the methods they utilized to compute the pension value and the factors that they considered in making their computations. The husband's expert testified that his valuation method took into consideration both inflation and cost of living. Assuming, without deciding, that the trial court was required to include a cost of living adjustment, we find that the record before us demonstrates that both valuations included a cost of living adjustment. The trial court did not err in choosing one expert valuation instead of another. See Reid v. Reid, 7 Va.App. 553, 563, 375 S.E.2d 533, 539 (1989).

Both experts agreed that the marital share of the pension was ninety percent and no alternative valuation was offered until after the trial court initially ruled on the distribution of the pension assets. The wife presented additional evidence as to the actual valuation of the pension after the trial court determined the issue. We find that the trial court did not abuse its discretion by refusing to reconsider the value of the marital share of the husband's pension based on information presented after the evidentiary hearing. See Morris v. Morris, 3 Va.App. 303, 307, 349 S.E.2d 661, 663 (1986).

At the time the bill of complaint was filed, Code § 20-107.3 did not fix the date of valuation for marital property. ⁴ However, the trial court was instructed to consider the present value of a pension in determining a monetary award. Code § 20-107.3(E)(8). In addition, a panel of this court determined that the preferred date for valuation of marital assets is a date as near as practicable to the date of the evidentiary hearing. Mitchell v. Mitchell 4 Va.App. 113, 118, 355 S.E.2d 18, 21 (1987). The trial court determined the value of the pension in September 1986; under the circumstances of this case, valuation on that date is consistent with our holding in Mitchell. Thus, we hold that the trial court did not err in valuing the pension at $214,447 when making its monetary award to Mrs. Clements.

We also find that the trial court did not abuse its discretion by ruling that the wife was not entitled to one-half of the pension payments received by the husband between the date of the parties' separation and the date of the final decree. There is no presumption in Virginia favoring equal division of marital property. Papuchis v. Papuchis, 2 Va.App. 130, 132, 341 S.E.2d 829, 830 (1986). Rather, the court is authorized to make a monetary award to either party based on the equities and rights and interests of each party in the marital property. Venable v. Venable, 2 Va.App. 178, 185, 342 S.E.2d 646, 650 (1986).

In response to the wife's motion for reconsideration, in which she specifically raised the issue of pension payments received by the husband, the trial judge stated that he chose to keep the pension intact, utilizing a valuation offered at the evidentiary hearing, and award the wife liquid assets and a monetary award. We find no abuse of discretion in the trial court's decision to consider the total value of the husband's pension in determining the appropriate monetary award. Moreover, any pension monies paid to Mr. Clements after the evidentiary hearing were necessarily presumed by the trial court to be included in the total present value affixed to the pension. Accordingly, the trial court's refusal to award Mrs. Clements half of the pension monies received by Mr. Clements between the date of separation and the date of the final decree was not error. The court's division of the husband's pension and the corresponding monetary award to the wife constituted a single distribution of that marital asset, consistent with Code § 20-107.3. Cf. Brinkley v. Brinkley, 5 Va.App. 132, 137, 361 S.E.2d 139, 142 (1987) (decree granting monetary award plus percentage of pension benefits defective because it gives one party two monetary awards).

With respect to the wife's claims regarding the distribution of certain marital assets, we find no error in the trial court's determination that there was no property to be distributed from either the GOSI insurance or the Peace Support Group bonus. The trial court determined that the husband did not work in Saudi Arabia long enough to qualify for the GOSI insurance and that the wife did not provide sufficient evidence for the court to determine that the husband was entitled to these funds. Likewise, the trial court stated that it was unable to determine from the joint submission of the parties exactly what funds the wife was seeking to have distributed from the Peace Support Group bonus. Although the wife presented evidence of an employment contract entitling the husband to a bonus, no evidence was produced at trial that the husband actually received this bonus or that the funds were available for distribution. "Reviewing courts cannot continue to reverse and remand ... [equitable distribution] cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so." Bowers v. Bowers, 4 Va.App. 610, 617, 359 S.E.2d 546, 550 (1987). We find that the wife failed to prove that the GOSI insurance or Peace Support Group bonus existed; thus, we hold that the trial court did not err in failing to consider them as property subject to distribution.

The trial court also determined that at the time of the evidentiary hearing, there were no funds to be distributed from the accounts referred to by the wife at the Maryland State Bank, First Virginia Bank, and Kelly Field National Bank. Viewing the evidence before the...