O'Loughlin v. O'Loughlin

• Court: Virginia Court of Appeals
• Writing for the Court: MOON
• Citation: O'Loughlin v. O'Loughlin, 458 S.E.2d 323, 20 Va.App. 522 (Va. App. 1995)
• Decision Date: 20 June 1995
• Docket Number: No. 1763-94-4,1763-94-4
• Parties: Wilmot F. O'LOUGHLIN v. Elayne (Lowe) O'LOUGHLIN. Record

Page 323

458 S.E.2d 323

20 Va.App. 522

Wilmot F. O'LOUGHLIN v. Elayne (Lowe) O'LOUGHLIN.

Record No. 1763-94-4.

Court of Appeals of Virginia Alexandria.

June 20, 1995.

Peter M. Fitzner, Fairfax (Dennis J. Smith, Shoun, Smith & Bach, P.C., on brief), for appellant.

Ann W. Mische, Fairfax (Paula W. Rank, Byrd, Mische, Bevis, Bowen & Joseph, P.C., on brief), for appellee.

Present: MOON, C.J., FITZPATRICK, J., and DUFF, Senior Judge.

MOON, Chief Judge.

Wilmot F. O'Loughlin, appellant, appeals the decision of the trial court awarding sixty percent of the marital estate to Elayne Lowe O'Loughlin, appellee. Appellant argues that the trial court's equitable distribution award was based entirely and wrongfully upon consideration of his negative nonmonetary contributions to the well-being of the family, absent economic fault on his part. We disagree and affirm the judgment.

The purpose of Code § 20-107.3 is to divide fairly the value of the marital assets acquired by the parties during marriage with due regard for both their monetary and nonmonetary contributions to the acquisition and maintenance of the property and to the marriage. Robinette v. Robinette, 4 Va.App. 123, 130, 354 S.E.2d 808, 811 (1987). "Fashioning an equitable distribution award lies within the sound discretion of the trial judge and that award will not be set aside unless it is plainly wrong or without evidence to support it." Srinivasan v. Srinivasan, 10 Va.App. 728, 732, 396 S.E.2d 675, 678 (1990).

Virginia has no presumption in favor of an equal division of the marital property.

"Instead, the applicable statute requires the trial court to determine the amount of the award and the method of its payment after considering [the] eleven specific factors." Once it has been determined that a monetary award is appropriate, the trial judge must determine the amount of the monetary award after considering the factors mandated by Code § 20-107.3(E). Therefore, proof that the monetary award does not reflect an equal division of marital property is not alone sufficient to reverse the award, provided the trial judge considered all the factors enumerated in Code § 20-107.3(E) in determining the amount.

Lambert v. Lambert, 6 Va.App. 94, 106, 367 S.E.2d 184, 191 (1988) (citations omitted).

In this case, appellant concedes that the trial court based its award on a consideration of the statutory factors contained in Code § 20-107.3(E). However, appellant argues that the court's consideration of his "negative non-monetary contributions" to the family formed the sole basis of the trial court's award and was nothing more than a "back door approach" to allow the court to punish him for his infidelity, which began from the early days of the marriage and lasted through to the time of the divorce.

The record does not support appellant's contention that the trial court's distribution was based solely on appellant's negative non-monetary contributions. First, appellant acknowledges that the difference in the parties' ages favored the appellee. See Code § 20-107.3(E)(4). Second, the trial court found that appellee's nonmonetary contributions were greater than those of appellant. Specifically, the court recognized that appellee was the primary caretaker of the family life (i.e., the couple's daughter) and all of the marital property (i.e., the marital home and other physical assets pertinent thereto) during all of the years of the marriage. While the trial court, due to appellant's management of marital funds, ruled that the parties' monetary contributions were equal, it gave this factor little weight because it found the manner in which appellant controlled the funds to be "domineering and offensive."

Moreover, as long as the trial court considers all the factors, it is at the court's discretion to determine what weight to give each factor when making the equitable distribution award. Booth v. Booth, 7 Va.App. 22, 28, 371 S.E.2d 569, 573 (1988). The record shows that the court considered each of the statutory factors; it was not required to quantify the weight given to each or weigh each factor equally. See Marion v. Marion, 11 Va.App. 659, 664, 401 S.E.2d 432, 436 (1991).

The record also shows that the trial court properly analyzed the impact of appellant's adultery on the marriage partnership. The trial court did not use it to punish appellant in contravention of well established case law. The trial court correctly adhered to the principle espoused in Aster v. Gross, 7 Va.App. 1, 371 S.E.2d 833 (1988), and its progeny that in order to alter the evaluation for an equitable distribution award under Code § 20-107.3(E)(5), there must be a showing of use of the marital property for the benefit of one spouse and for purposes unrelated to the marriage "in anticipation of divorce or separation ... [and] at a time when the marriage is in jeopardy." Booth, 7 Va.App. at 27, 371 S.E.2d at 572; see also Alphin v. Alphin, 15 Va.App. 395, 402, 424 S.E.2d 572, 576 (1992); Amburn v. Amburn, 13 Va.App. 661, 664-66, 414 S.E.2d 847, 849-51 (1992). Without this showing, no finding of waste or dissipation may be considered as a factor which weighs against the party at fault.

Here, the trial court, while finding that during the marriage appellant had spent over ten thousand dollars on his paramours, specifically stated that it would not consider those expenses as a factor because there was insufficient evidence to support a finding of dissipation. However, the trial court went on to say that appellant's infidelity had a negative impact on the well-being of the family. The court recognized in Smith v. Smith, 18 Va.App. 427, 431-32, 444 S.E.2d 269, 273 (1994), that, while equitable distribution is not a vehicle to punish behavior, the statutory guidelines authorize consideration of such behavior as having an adverse effect on the marriage and justifying an award that favors one spouse over the other.

The trial court did not punish appellant for his adultery, despite his assertion to the contrary. In Aster, we held that in considering the circumstances that led to the dissolution of the marriage, Code § 20-107.3(E)(5), the court should...