Holmes v. Holmes
| Citation | 375 S.E.2d 387,7 Va.App. 472 |
| Decision Date | 20 December 1988 |
| Docket Number | No. 1449-86-4,1449-86-4 |
| Parties | Elwin F. HOLMES v. Frances Sue Poe HOLMES. Record |
| Court | Court of Appeals of Virginia |
Thomas B. Throckmorton (Scully, Throckmorton & Glass, Winchester, on briefs), for appellant.
John E. Wetsel, Jr. (Kuykendall, Wetsel & Kuykendall, P.C., Winchester, on brief), for appellee.
Present: BARROW, BENTON and COLE, JJ.
Elwin F. Holmes was granted a divorce a vinculo matrimonii from his wife, Francis Sue Poe Holmes, on the statutory no-fault ground. The husband contends that the trial judge erred in determining the amounts of the monetary award and spousal support award, and he raises the following issues in this appeal: (1) whether military pensions are property subject to distribution by monetary award; (2) whether the trial judge erred in failing to reduce the gross estimated value of the husband's military pension to its present value; (3) whether the trial judge abused his discretion by refusing to grant a petition for a rehearing based on the allegation of a material mistake of fact apparent on the face of the record; (4) whether the trial judge erred by failing to consider the monetary award to the wife as income for the purpose of determining the wife's spousal support award; (5) whether spousal support award constituted an abuse of discretion; (6) whether the trial judge erred by awarding monthly spousal support and monetary award payments to the wife that exceed the husband's monthly non-disability income; (7) whether the trial judge erred in determining that the bank accounts were marital property subject to distribution by monetary award; and (8) whether the trial judge erred in reserving the right to reopen the suit in the event of the husband's death. For the reasons that follow we affirm the judgment.
The parties were married in 1942. They reared four children, all of whom were emancipated at the time of the divorce proceedings. After serving twenty-nine years with the Air Force, the husband retired as a colonel with a seventy percent disability rating.
Upon entry of the decree granting the husband a no-fault divorce, the trial judge awarded the wife $531 per month temporary spousal support. The trial judge also continued to a later date matters of distribution of property by monetary award and permanent spousal support, and he appointed a commissioner in chancery to take evidence concerning the classification and valuation of the property owned by the parties. The commissioner in chancery found that, with the exception of insignificant tangible personal property belonging to the wife, all other property was marital property. The wife filed no exceptions to the commissioner's report.
In his March 28, 1985, letter opinion, the trial judge noted that the commissioner in chancery erred in failing to classify and value the husband's military pension. The judge found that the husband's retirement benefits were a marital asset and that at the time of the divorce the husband was receiving retirement benefits totalling $3540 per month. The husband's evidence established that of this sum, $1,062 was retired pay and $2,478 was disability pay. The trial judge deducted the husband's monthly government life insurance premium from $1,062 and determined the husband's disposable pay to be $1,043. The judge then multiplied the amount of the husband's annual disposable pay by a factor found in Code § 55-269.1 (), and determined the present value of the husband's disposable retired pay benefits to be $96,598.
The trial judge confirmed the commissioner's classification of the other marital properties and assessed their values as follows:
(1) Tangible personalty $19,387
(2) Intangible personalty (exclusive of retirement pay) $39,426
(3) Real estate $68,000
The trial judge awarded the wife a monetary award of $98,103, a sum equal to fifty percent of the value of tangible personalty and real estate and forty percent of the value of intangible personalty and the husband's military retirement pay.
In considering the factors enumerated in Code § 20-107.3(E), the judge noted that while the husband had made nearly all monetary contributions to the marriage, the wife had made significant non-monetary contributions by performing the duties of homemaker, mother, and military officer's wife. The judge also found that the duration of the marriage was over forty-one years and that the evidence did not indicate one party was more culpable than the other in the demise of the marital relationship.
The trial judge also awarded the wife $1,000 per month spousal support, finding that this amount would not place undue hardship on the husband and would allow both parties to live in a manner similar to that to which they were accustomed during the marriage. 1 In addition to the factors considered in the determination of the monetary award, the trial judge considered the following factors in making the spousal support award: the wife's limited opportunity to secure further education and training at age sixty-four; the husband's superior resources; the husband's annual tax-free disability retired pay of $29,736; the tax benefit of the deductibility of the husband's spousal support payments from his gross income; the inclusion of support payments in the wife's gross taxable income; the wife's continued eligibility for military health and commissary benefits; the wife's $383.50 per month mortgage on a home purchased subsequent to the divorce; and the husband's ownership of a home not subject to a mortgage. 2
The husband filed exceptions to the judge's ruling, contending that since he was retired for disability reasons, his entire retirement pay was not "disposable" under 10 U.S.C. § 1408(a)(4) and therefore was not available for distribution by monetary award. The husband took further exception to basing a monetary award upon the value of retirement benefits he had not actually received. In addition, the husband filed a motion for a stay of execution of the court's order directing him to pay the monetary award, and he also alleged that the award improperly invaded savings accounts derived from disability income.
Pursuant to the husband's exception, the judge deferred the portion of the monetary award based on military retired pay pending his consideration of the status of military retirement pay; however, the judge denied the motion for a stay of execution. After considering the parties' memoranda and oral arguments and refusing a second motion for a stay of execution, the judge issued a supplementary letter opinion holding that the husband's trial testimony, affidavit, and memorandum, which stated that thirty percent of his military retirement pay was disposable, amounted to an admission that bound the husband to that position and prevented him from introducing contrary evidence.
Alleging that a material mistake of fact had been made in the method of computing his disposable retirement pay, the husband requested a rehearing. After hearing argument on the petition, the judge issued a second supplemental letter opinion denying the petition to rehear, stating that although no final decree had been entered, the findings and rulings contained in the earlier opinion were comparable to a jury verdict and that he considered the nature of the husband's petition to be a bill of review. The judge further stated that a rehearing at that time would in essence be the granting of a new trial and that since the evidence which the husband wished to introduce was readily available at the time of the commencement of the litigation there was no basis on which to receive additional evidence.
The husband contends that his military pension is not subject to distribution by monetary award because it is not property but merely an expectation of income. This Court addressed that precise issue in Sawyer v. Sawyer, 1 Va.App. 75, 335 S.E.2d 277 (1985), and held:
We agree that pensions do not have the normal attributes of assets as such but they are property rights. Mr. Sawyer can enforce his right to his pension in the courts of the United States. Code § 20-107.3(E)(8) specifically requires the Chancellor to consider the present value of pensions and retirement benefits in deciding upon an equitable distribution award. This reference alone does not necessarily lead to the conclusion that a pension or retirement benefit is marital property; however, the legislature made clear its intent by providing in Code § 20-107.3(G) that "[n]o part of any monetary award based upon the value of pension or retirement benefits, whether vested or nonvested, shall become effective until the party against whom such award is made actually begins to receive such benefits." Our reading of the statute leads us to conclude that the legislature intended all pensions, including military pensions, to be personal property and subject to equitable distribution.
Id. at 78, 335 S.E.2d at 279-80. For the reasons stated in Sawyer, we hold that the trial judge properly found that a military pension is property subject to distribution by monetary award.
The husband next contends that the trial judge erred in failing to discount the gross amount of his military pension to arrive at a present value of his pension. The husband asserts that the judge multiplied his annual disposable retired pay, $12,516, by 7.718 years, which the husband alleges to be his life expectancy, to arrive at $96,598 as a value of his pension. The husband then asserts that the trial judge should have discounted that amount by some factor, which the husband does not disclose, to determine its present value. "Code § 20-107.3(E)(8) specifically requires the trial court to consider the present value of pensions and retirement benefits in deciding upon the amount of a monetary award." Brinkley v....
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