Keyser v. Keyser

• Citation: 7 Va.App. 405,374 S.E.2d 698
• Decision Date: 06 December 1988
• Docket Number: No. 0312-87-2,0312-87-2
• Court: Virginia Court of Appeals
• Parties: Frances H. KEYSER v. Dirck KEYSER. Record

Page 698

374 S.E.2d 698

7 Va.App. 405

Frances H. KEYSER v. Dirck KEYSER.

Record No. 0312-87-2.

Court of Appeals of Virginia.

Dec. 6, 1988.

Ronald R. Tweel (Michie, Hamlett, Donato & Lowry, Charlottesville, on brief), for appellant.

William G. Barkley (Pickford and Barkley, Charlottesville, on brief), for appellee.

Present: COLEMAN, HODGES and KEENAN, JJ.

COLEMAN, Judge.

This appeal addresses whether the trial court erred in failing to include as part of a monetary award a sum for one spouse's pension and retirement plan and in failing to award spousal support. The circuit court granted Frances Keyser a divorce on the ground of desertion, granted her a monetary award of $900, and denied her spousal support. She appeals the monetary award and denial of spousal support, contending that the court abused its discretion in failing to divide equitably the marital wealth and that the court applied an incorrect standard in denying spousal support. We agree and reverse both rulings.

Dirck Keyser and Frances Hurdman each had been widowed approximately four years when they married in December 1978. No children were born to their marriage. Mr. Keyser, who is now sixty years old, has three adult sons, two of whom were attending college and living away from home when the parties married. Mrs. Keyser, who is fifty-four, has an eighteen year old daughter attending college and a fifteen year old son at a private secondary school.

Before their marriage, Frances Hurdman resided in Morristown, New Jersey, with her children. She is well educated and owned her home debt free. She chose not to work outside the home while her children were young. Her income was from investments and the inheritance from her first husband and from her children's social security survivor benefits. She had not been gainfully employed for a number of years prior to her marriage to Mr. Keyser. At the time of the marriage Dirck Keyser lived in Alexandria, Virginia and was employed by the United States Treasury Department at an annual salary of approximately $57,000. When they married Mrs. Keyser sold her home in New Jersey. She invested these proceeds in securities which she registered solely in her name, and she and her two children moved to Alexandria with Mr. Keyser. Shortly after the marriage Dirck Keyser sold his home and purchased a larger one in Alexandria to accommodate the expanded family.

In 1982, after four years of marriage, Dirck Keyser retired in order to pursue doctoral studies at the University of Virginia. He sold his northern Virginia home and he and the family, which at the time included Mrs. Keyser's children, moved to a newly purchased home at Keswick near Charlottesville. Both parties contributed to the purchase of the Keswick home. Although marital problems had surfaced early during the marriage, it was not until after the move in 1982 and Mr. Keyser's retirement that the strained situation burgeoned into Dirck Keyser's desertion of his wife and the marriage. According to Mrs. Keyser even though the parties had discussed his desire for early retirement to pursue an academic career, his decision came as an unwanted surprise because her children had yet to be educated. She testified that one consideration which Mr. Keyser promised before marriage was to help educate her children. She points out that his children are now educated, his income has been reduced to $23,000 per year from his retirement and investments, and she has her children's educational expenses ahead of her.

In the divorce proceeding the parties agreed upon the value of the property as well as which property was marital and which was separate. They also agreed to divide equally the equity from the sale of their Keswick home, receiving approximately $56,000 each. ¹ The Keysers were unable to agree upon a division of the remaining marital property and submitted to the court whether to grant a monetary award based upon the value of the remaining marital estate and their rights and equities in it. The agreed upon marital property consisted of that portion of Dirck Keyser's government retirement earned during the marriage, ² valued at $104,000; jewelry worth $4,500; a $1,100 1984 Chevette automobile; a library worth $500; and a life insurance policy with a $300 cash surrender value--a marital estate which had not been voluntarily distributed of $113,000.

Except for some items of jewelry which Frances Keyser had, all other items of marital property were in the possession of and retained by Dirck Keyser. Each party at the time of the desertion had separate properties valued at between $180,000 and $200,000, exclusive of the portion of Dirck Keyser's retirement plans deemed separate properties. The parties agreed that the value of Mr. Keyser's pensions which were based on contributions prior to the marriage was not marital property. Frances Keyser's separate properties consisted of stocks and securities. Although the record does not detail the nature of Dirck Keyser's separate properties, they apparently included security investments and properties inherited from a relative during the marriage. The trial court granted a monetary award to Frances Keyser in the amount of $900 and announced as its reasons that she was entitled to one-half the value of the automobile or $550, one-half the library or $250, and one-half the cash surrender value of the insurance policy or $150--an aggregate monetary award of $900. Thus, Frances Keyser's share of the marital property consisted of that jewelry which she retained, plus $56,000 from the Keswick home and the $900 monetary award. Dirck Keyser retained certain jewelry, $56,000 from the marital home, the $104,000 marital portion of the pension, and the personal property valued at $1,800, for which the $900 monetary award was granted.

Frances Keyser does not challenge the trial court's monetary award to the extent it effectuates an equal division of the value of those marital assets included. She does however, challenge the trial court's failure to include in the monetary award any sum for the $104,000 value of Dirck Keyser's government pension plan which they agreed was marital property because that amount represented contributions during the marriage.

We first review the monetary award since the spousal support question may depend upon the resolution of that issue. See Code §§ 20-107.1(7) and (8). The trial court's findings must be accorded great deference. Its judgment will not be disturbed on appeal unless plainly wrong or without evidence to support it. Code § 8.01-680; Surbey v. Surbey, 5 Va.App. 119, 123, 360 S.E.2d 873, 875 (1987).

[T]he chancellor is necessarily vested with broad discretion in the discharge of the duties the statute [Code § 20-107.3] imposes upon him. Unless it appears from the record that the chancellor has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor's equitable distribution award will not be reversed on appeal.

Brown v. Brown, 5 Va.App. 238, 244-45, 361 S.E.2d 364, 368 (1987) (quoting Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987)).

Classification and evaluation of the properties were agreed upon by the parties. The parties testified how they divided the proceeds from the sale of the marital home. The trial court had the evidence concerning the agreed value and classification of all separate and marital properties essential for it to decide whether to grant a monetary award and, if so, the amount of such award based upon the factors listed in Code § 20-107.3(E). See Gologanoff v. Gologanoff, 6 Va.App. 340, 369 S.E.2d 446 (1988). Thus, our focus is not upon classification or evaluation of property. Rather, we decide whether the court erred in its consideration of the parties' rights and interests and equities in the marital property or of the factors listed in Code § 20-107.3(E) in granting a monetary award.

While the trial court has broad discretion in deciding whether to grant a monetary award, that determination must be based upon the equities and the rights and interests of each party in the marital property. Code § 20-107.3(D); Brinkley v. Brinkley, 5 Va.App. 132, 136, 361 S.E.2d 139, 140 (1987). Both parties are deemed to have rights and interests in the property acquired during the marriage which is classified as marital property. Code § 20-107.3(B); Brinkley, 5 Va.App. at 136, 361 S.E.2d at 140. Although those rights and interests do not attach to the legal title of the property, trial courts must consider them in determining a monetary award. Id.; Code § 20-107.3(E).

The court determined to grant a monetary award to Frances Keyser and did so. Thus, the question is not whether the court failed to make a monetary award, but whether it failed to properly consider the rights and interests each party had in the marital property, and whether it improperly considered any circumstance or failed to properly consider the enumerated statutory factors in determining the amount.

In fashioning the monetary award, the trial court specifically reviewed each item of marital property and announced that the amount of the award to Frances Keyser represented one-half of the value of every item of marital property, except for Dirck Keyser's retirement plan. We have approved the approach of the trial court wherein the rights and equities of the parties in individual properties and their values are determined and an award is made by aggregating those separate values. See McGinnis v. McGinnis, 1 Va.App. 272, 276, 338 S.E.2d 159, 161 (1985). Although the court was aware that each party received approximately $56,000 in liquid assets from the sale of the Keswick home, nothing in the record indicates that the voluntary division of that asset influenced the decision to depart from its approach of determining...