Johnson v. Johnson

• Court: Virginia Court of Appeals
• Writing for the Court: MOON
• Citation: Johnson v. Johnson, 488 S.E.2d 659, 25 Va.App. 368 (Va. App. 1997)
• Decision Date: 05 August 1997
• Docket Number: No. 3102-96-3,3102-96-3
• Parties: Lillian H. JOHNSON v. Edgar D. JOHNSON. Record

Page 659

488 S.E.2d 659

25 Va.App. 368

Lillian H. JOHNSON v. Edgar D. JOHNSON.

Record No. 3102-96-3.

Court of Appeals of Virginia Salem.

Aug. 5, 1997.

Timothy W. Barbrow, Marion (Gwyn & Tate, on brief), for appellant.

Ralph M. Dillow, Jr., Bristol (Dillow & Esposito, on brief), for appellee.

Present: MOON, C.J., and FITZPATRICK and ANNUNZIATA, JJ.

MOON, Chief Judge.

Lillian H. Johnson ("wife") appeals the judgment of the circuit court deciding matters of equitable distribution and spousal support. Wife asserts that the trial court: (1) abused its discretion in dividing the parties' intangible marital personal property; (2) erred in determining the amount of spousal support to be paid to wife; and (3) erred in limiting the duration of the spousal support award to thirty-six months.

We hold that the trial court erred in making the equitable distribution award and accordingly, we reverse and remand for reconsideration of the award consistent with this opinion. Because we reverse the equitable distribution award, we also remand for reconsideration of the spousal support award.

Wife and Edgar Johnson ("husband") were married on October 11, 1964. The parties have one child who was twenty-four years old at the time of parties' divorce. When the parties married, husband was serving in the United States Navy. In 1968, he was hired by the Virginia State Police and has been employed as a state trooper since that time. Wife left her work as an employee at a sewing factory when the parties married and did not re-enter the work force until 1976. At that time, wife began working part-time as a school bus driver, driving a bus four hours a day. Wife continued to work as a school bus driver throughout the course of the parties' marriage and also worked part-time for K-Mart for a brief period.

The parties' marital assets consisted of their residence valued at $150,000, with equity of approximately $110,000, and various investments and retirement benefits. These interests included three hundred shares of Wal-Mart stock valued at $6,300, a Virginia Credit Union account with a balance of $2,600, a deferred compensation account in the husband's name with a balance of $12,111.12, a deferred compensation account in wife's name with a balance of $1,703.45, an individual retirement account in the husband's name with a balance of $5,127.96, an individual retirement account in wife's name with a balance of $2,315, and a life insurance policy with a cash value of $4,696.28. The marital assets also included husband's state police pension benefits.

Husband asserted his pension's value to be $46,830.09, based on the cash surrender value of his pension if he withdrew all contributions and interest from his pension fund before retirement. No evidence was presented that the funds were to be withdrawn at or near the time of the hearing. Wife, however, argued that the pension was worth $510,539.22. This sum was determined by multiplying husband's estimated monthly pension benefit of $1,765.35, constituting husband's vested benefit amount if he were to retire at the time of the parties' divorce, by husband's remaining 24.1 year life expectancy as provided by Code § 8.01-419. The $510,539.22 value did not reflect discounting to present value.

The parties separated on October 21, 1993, allegedly because husband became physically abusive. Wife sought and was granted a protective order by the juvenile and domestic relations court and was granted exclusive occupation of the marital residence. The court also ordered husband to pay pendente lite spousal support in the amount of $1,500 a month. On the basis of their twelve month separation, the parties obtained a final decree of divorce on November 13, 1996. Both wife and husband were fifty-one years old at the time of the divorce and were in good health. The trial court ordered an equal division of all tangible personal and real property. The court awarded each party one-half of the Wal-Mart stock, Virginia Credit Union account, and the cash value of the life insurance policy. The court further ordered that the parties were to retain their respective individual retirement accounts, deferred compensation accounts, and retirement benefits. As part of the equitable distribution award, the court also ordered husband to pay wife the sum of $15,000 in order to "balance the equities."

The court vacated the pendente lite spousal support of $1,500 and ordered husband to pay spousal support in the amount of $400 a month for a period of thirty-six months or until wife's death or remarriage, "whichever first occurs."

Pension Benefits

The trial court's letter opinion of October 4, 1996, provided the following distribution of the parties' intangible personal property:

The intangible personal property consists of Wal-Mart stock, a Virginia Credit Union account of [husband's], a deferred compensation account of [husband's], the parties' respective IRA's, cash value in Mr. Johnson's life insurance policy, and the parties' respective retirement accounts with their respective employers.

(Emphasis added). After ordering the division of all assets except the "parties' respective retirement accounts," the trial court provided that "[t]he court will allocate [wife's] retirement benefits 100% to her. The court will allocate [husband's] retirement benefits 100% to him." The court's final order incorporated its letter opinion and made no additional reference to retirement benefits.

The trial court listed the parties' respective IRAs and deferred compensation accounts in addition to "the parties' retirement accounts with their respective employers," and distributed each of these interests. However, we find no evidence in the record that wife had a "retirement account" with her employer. To the contrary, husband testified that while wife had an IRA and a deferred compensation account, he was not aware of wife having any form of pension. Accordingly, because the award was based upon the erroneous premise that wife had retirement benefits, we reverse and remand for reconsideration of the award.

Upon reconsideration of the equitable distribution award, particularly regarding husband's pension benefits, we make the following observations.

In considering valuation of the marital estate, we have held that Code § 20-107.3 " 'mandates' that trial courts determine the ownership and value of all real and personal property of the parties." Nevertheless, "consistent with established Virginia...