Sawyer v. Sawyer, 0076-85

• Decision Date: 17 September 1985
• Docket Number: No. 0076-85,0076-85
• Citation: 1 Va.App. 75,335 S.E.2d 277
• Parties: James Pugh SAWYER v. Barbara Lee Brinn SAWYER. Record
• Court: Virginia Court of Appeals

Page 277

335 S.E.2d 277

1 Va.App. 75

James Pugh SAWYER v. Barbara Lee Brinn SAWYER.

Record No. 0076-85.

Court of Appeals of Virginia.

Sept. 17, 1985.

Henry M. Schwan, Norfolk, for appellant.

Janet B. Brydges, Virginia Beach (Brydges & Brydges, Virginia Beach, on brief), for appellee.

MOON, Judge.

James P. Sawyer appeals from a judgment requiring him to pay $700 per month spousal support, and in addition, $40,000, payable in monthly installments of $250, as part of the wife's equitable distribution of the marital property which consists almost entirely of Mr. Sawyer's military retirement pension. Mr. Sawyer seeks reversal on the following grounds: (1) that his military retirement pension is not property subject to equitable distribution as contemplated in Code § 20-107.3; (2) that if his pension is property it is separate property; (3) that the trial court, in violation of Code § 20-107.3(C), awarded Mrs. Sawyer a share of the pension; (4) that the court disregarded Code § 20-107.3(B) by ignoring all of the marital property except the pension in granting an award; (5) that there was no evidence to support the finding that the pension's present value is $103,700; and (6) that it was error to award Mrs. Sawyer an equitable share of the pension and also spousal support which Mr. Sawyer claims must both be paid from the pension. We disagree.

The Sawyers were married in 1952, one year after Mr. Sawyer entered the Air Force. The couple's two children were both emancipated when Mr. Sawyer left the marital home on February 15, 1982. Mr. Sawyer retired from the Air Force in 1972, at which time he began receiving his pension of $850 per month. He presently grosses $31,000 per year as a long-haul truck driver. His net income from all sources, including his military pension, is $2,244 per month. Mrs. Sawyer earned substantial sums during the marriage but because of illness now earns only $248 per month. She has established a need of $1,567 per month to meet her living expenses. She continues to live in the marital home which she and her husband rented during the marriage.

The parties owned a parcel of real estate in Florida jointly titled in the names of both parties. When they separated, Mr. Sawyer kept a sewing machine and was in possession of a 1975 jointly titled Cadillac and a Toronado Oldsmobile titled to him but having a lien equal to its fair market value. Mrs. Sawyer retained all of the home furnishings, including the silver. She also had about $4,500 in inventory from a former business and $1,400 in the bank.

We must first decide if a military retirement pension is "personal property" as contemplated by Code § 20-107.3, which states:

Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, the court, upon motion of either party, shall determine the legal title as between the parties, and the ownership and value of all real and personal property of the parties and shall consider which of such property is separate property and which is marital property.

Mr. Sawyer argues that a military pension is not susceptible to equitable distribution because it is neither property acquired by the husband nor is it property acquired during the marriage. He also alleges that it is a stream of income that has no cash value, and cannot be assigned, borrowed against, redeemed, or converted.

Mr. Sawyer cites numerous cases from other jurisdictions where courts have held that military pensions are not property subject to equitable distribution. The rationale of those cases primarily is that a military retirement pension is income only and is without the qualities normally associated with assets. See, e.g., Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); Ellis v. Ellis, 191 Colo. 317, 552 P.2d 506 (1976); Brown v. Brown, 279 S.C. 116, 302 S.E.2d 860 (1983).

Mrs. Sawyer cites authority from other states where the military retirement pension has been considered property susceptible to equitable distribution. See, e.g., In re Marriage of Campise, 115 Ill.App.3d 610, 616, 71 Ill.Dec. 454, 458, 450 N.E.2d 1333, 1337 (1983); Anderson v. Anderson, 13 Ohio App.3d 194, 197, 468 N.E.2d 784, 787 (1984).

Assuming that our statute is ambiguous and in need of construction, it is our duty to try to ascertain the intent of the legislature from the statute itself. Stanley v. Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925). A statute is to be construed from its four corners, and we should not give the term "personal property" a narrow meaning suggested by Mr. Sawyer when it has other meanings. See Commonwealth Natural Resources, Inc. v. Commonwealth, 219 Va. 529, 536, 248 S.E.2d 791, 795 (1978). This reasoning is particularly true where the narrow meaning will frustrate the intent of the legislature. See Kohlberg v. Virginia Real Estate Commission, 212 Va. 237, 239, 183 S.E.2d 170, 172 (1971); 17 Michie's Jurisprudence Statute § 38 (Repl.vol. 1979).

The legislature enacted Code § 20-107.3 to give the courts power to compensate a spouse for his or her contribution to the acquisition of property obtained during the marriage without regard to title when the marriage is dissolved. Mr. Sawyer's position would frustrate this intent.

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.

Mr. Sawyer further submits that the military pension, if it is property at all, is property acquired prior to the marriage, and thus separate property. Mr. Sawyer entered the Air Force the year preceding his marriage. He remained in the Air Force for twenty years during the marriage. Had he left the Air Force the day he was married, he would have no pension. Had he left the Air Force at anytime during the first nineteen years of his marriage, he would have no pension. His right to a military pension did not accrue until the day he had served twenty years, 10 U.S.C. § 1331(a)(2) (1982), which occurred during the marriage. He began receiving the pension ten years before he left his wife. Code § 20-107.3(A)(2) provides: "All property acquired by either spouse during the marriage is presumed to be marital property in the absence of satisfactory evidence that it is separate property." The pension was acquired during the marriage, and is, therefore, marital property.

Mr. Sawyer next argues that the court has no...