Pederson v. Pederson, Record No. 1178-15-4
| Decision Date | 02 August 2016 |
| Docket Number | Record No. 1178-15-4,Record No. 2093-15-4 |
| Court | Court of Appeals of Virginia |
| Parties | ADRIENNE PEDERSON v. SHAWN D. PEDERSON |
UNPUBLISHED
Present: Judges Beales, Russell and AtLee
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kimberley Ann Murphy (Lisa M. Campo; Hale Ball Carlson Baumgartner Murphy, PLC, on briefs), for appellant.
Melanie Hubbard (Malinowski Hubbard, PLLC, on briefs), for appellee.
In this consolidated appeal,1 appellant wife challenges provisions of the parties' final decree of divorce pertaining to the circuit court's equitable distribution award and orders regarding certain military retirement/insurance issues. She also challenges the subsequently entered qualified domestic relations orders (QDROs) relating to each party's military pension. For the reasons stated below, we affirm the rulings of the circuit court.
On appeal, we review the evidence in the favor of husband, the prevailing party below. Niblett v. Niblett, 65 Va. App. 616, 622, 779 S.E.2d 839, 842 (2015).2 So viewed, the evidence demonstrates that the parties were married on October 27, 1997. Two children, both still minors, were born of the marriage. Husband served as an active-duty member of the United States Air Force throughout the majority of the marriage. Wife also was active-duty when they married, but entered the reserves shortly after their first child was born, after three years of marriage, and intermittently returned to active-duty status during the marriage; she was a colonel in the Air Force Reserves when the parties separated.
Significant marital problems began to arise in 2009, when wife accused husband of having an affair with a subordinate. Husband was stationed in North Carolina at the time, but wife stayed with the children in Washington, D.C., where she was working and taking classes. During this time, wife did not visit husband in North Carolina, and husband traveled to D.C. to see the children. Wife refused to visit North Carolina to watch the air show husband had organized or to see his final flight.
Additionally, there was evidence that wife was less than fully supportive of husband's career. Evidence established that she reported alleged misconduct by her husband to Air Force authorities, but that the authorities were unable to confirm the allegations after investigating them. Furthermore, husband turned down a promotion as a Wing Commander that would have requiredthe family to relocate. Evidence established that turning down the promotion was likely harmful to husband's career and that he turned it down because the "family" refused to relocate.3
During the marriage, husband discovered e-mail correspondence between wife and his commanding officer. The correspondence was suggestive of an inappropriate romantic relationship between wife and husband's commanding officer.
In the wake of these difficulties, husband removed himself from the marital residence on August 13, 2013. Wife filed a complaint for divorce on desertion grounds on November 1, 2013; husband filed a cross-complaint for divorce alleging cruelty on November 25, 2013. Both parties amended their complaints to include allegations of adultery. On August 22, 2014, a consent pendente lite order was entered concerning child custody and visitation and child and spousal support.
While the divorce action was pending, husband retired from the Air Force after twenty-four years of service, on September 1, 2014. Less than three weeks later, on September 18, 2014, he suffered a ruptured cerebral aneurysm. On October 16, 2014, husband was declared an incapacitated adult; his mother was appointed as a co-guardian with an attorney, Mr. Labowitz, who also was appointed as his conservator. Mr. Labowitz, as conservator of husband's estate, was granted all powers granted to conservators "under Code Section 64.2-2000 et seq. of the . . . Code of Virginia . . . ." The matter, which originally had been set for trial on October 28, 2014, was continued to March 2015.
Because of his incapacity, husband did not participate in the proceedings, but his conservator was present, having been specifically empowered by court order to "change [husband's] marital status . . . ."
At trial, evidence was adduced regarding the parties' marital property, including real estate, automobiles, investment accounts, and retirement assets. In addition, evidence established that husband was the insured under life insurance policies obtained as a result of his service in the Air Force. Regarding the policies, wife was the beneficiary with the children listed as secondary beneficiaries. In court, when asked "Are you asking the court to retain - that [the] insurance be maintained as long as he has a child support obligation?", wife responded, "Yes." She sought only periodic child support consistent with the child support guidelines.
At the conclusion of the evidence, the court noted, The court continued, noting that
The circuit court announced its rulings from the bench on March 13, 2015. The court expressly noted, "During trial I observed the witnesses and the demeanor of the witnesses and made determinations as to their credibility," and stated that "I have considered each and every statutory factor in § 20-107.3(E) of the Code of Virginia as to which evidence was presented." The court added, "If I don't mention a factor, it's not because I haven't considered it[;]" and the court invited the parties to ask any questions related to the weight he accorded the factors.
The circuit court then relayed its findings as to all eleven statutory factors. The circuit court specifically found that, at the time of the distribution hearing, the parties had been married for fifteen years and ten months. With respect to the parties' contributions to the well-being of thefamily and to the acquisition of the marital property, the circuit court found that "husband made most of the monetary contributions . . . although wife did contribute financially" and "the parties equally contributed to the nonmonetary well-being" of the family.
The court noted that both parties were forty-six years old and found that while wife was in good health and able to work, husband "is in terrible health." The court specifically found that husband In contrast, wife testified at trial that she soon would begin a job that would pay her in excess of $100,000 per year.
The court also considered the circumstances pertaining to the termination of the marital relationship, crediting husband's desertion as the "ultimate circumstance," but including "[w]ife's attitude towards her husband, her attitude towards his career" as a contributing factor. The court also found that "her demanding nature towards her husband did contribute to the dissolution of this marriage."
The court relied on the "joint ED schedules" in assessing the factors associated with acquisition of specific property and the debts and liabilities of the parties. The court noted that the marital home constituted their largest debt and least liquid asset. Despite finding "no significant evidence on th[e] factor," the court considered the tax implications of selling the house, dividing the retirement plans, and ordering child support. Although some evidence was presented regarding dissipation of marital assets, the court found that neither party was able to show any waste by the other. With respect to any other factors, the court commented, "[T]here's nothing that the court finds significant to put into that slot at this time."
After relaying his findings in relation to the statutory factors, the circuit court addressed the specific items of the parties' property. The court expressed that it was For the most part, the circuit court ordered that the parties' marital assets and debts be divided equally.
Exceptions were made for certain items. For example, regarding any "reasonable and necessary unreimbursed medical and dental expenses," husband was found to be responsible for ninety-two percent of such expenses. Furthermore, as it regards the Individual Retirement Accounts of the parties that constituted marital property, the parties were allowed to keep the accounts that were in their individual names, resulting in an award to wife of over sixty percent of such marital assets.
The circuit court also deviated from an equal division regarding the marital share of husband's military pension. In addressing husband's military pension, the court stated, The court further noted that "the husband's present medical condition is something the court can consider;" and the court concluded, "under those circumstances and in light of everything else that's present in this case, 55 percent of the marital share will be awarded to husband, and 45 percent will be awarded to wife." The court also considered the statutory factors with respect to spousal support and awarded wife a reservation of support for half...
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