Torian v. Torian

• Citation: 562 S.E.2d 355,38 Va. App. 167
• Decision Date: 23 April 2002
• Docket Number: Record No. 2090-01-3.
• Parties: Virginia Hahn TORIAN, v. Robert Ray TORIAN.
• Court: Virginia Court of Appeals

562 S.E.2d 355

38 Va. App. 167

Virginia Hahn TORIAN, v. Robert Ray TORIAN.

Record No. 2090-01-3.

Court of Appeals of Virginia, Salem.

April 23, 2002.

Sidney H. Kirstein, Lynchburg, for appellant.

Jennifer E. Stine (John J. O'Keeffe, Jr., Lynchburg; O'Keeffe & Spies, on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER and AGEE, JJ.

ELDER, Judge.

Virginia Hahn Torian (wife) appeals from the trial court's decision equitably distributing the assets from her marriage to Robert Ray Torian (husband) and awarding her spousal support for a defined duration. On appeal, wife contends the trial court erroneously failed to value husband's Virginia Retirement System (VRS) pension, which the parties agreed was marital property, and failed to award wife any portion of that pension or take its value into account in the equitable distribution. She also contends the trial court's award of spousal support for a defined duration of seven years was erroneous because the parties' marriage was a lengthy one, lasting twenty-six years, and she demonstrated a need to receive support for a longer period. Finally, she contends the trial court failed to include "written findings and conclusions" that "identify the basis for the nature, amount and duration of the award," as required by Code § 20-107.1(F) for a defined duration award.

We hold the trial court's failure to determine the present value of husband's VRS pension was not error because wife failed to present credible evidence of that value. Further, the trial court's failure to award wife a portion of the monthly VRS benefit as received did not constitute an abuse of discretion. We also conclude that the trial court's award of a defined duration spousal support award was not error under the facts of this case. Finally, we hold that wife failed to preserve for appeal her claim that the trial court failed to "identify the basis for the nature, amount and duration" of the defined duration award. Thus, we affirm the trial court's equitable distribution and spousal support awards.

I. BACKGROUND

Husband and wife were married in 1973 and separated in 1999, after twenty-six years of marriage and the birth of one child in 1974. Both parties requested the trial court grant them a divorce based on a one-year separation. As of the December 5, 2000 evidentiary hearing, husband was sixty-six years old and wife was fifty-two.

The parties agreed that all assets were marital and agreed to divide the value of most of them equally.¹ The parties' assets included husband's "457 deferred compensation plan," referred to by the parties as the ICMA account. Husband was required to draw on that account at a rate of $2,082 per month. Husband testified that all the funds in the account were invested and that, "if everything goes according to the way it is now," the value of the account would be zero in about six years due to the mandated monthly draw. The parties agreed to divide the ICMA account evenly.

Wife had an IRA with a stipulated value of $370,665. The parties disagreed over whether or how to divide that asset.

The parties agreed that husband's Virginia Retirement System (VRS) pension was marital property but disagreed over whether it should be divided and, if so, whether it should be divided as a lump sum based on present value or as husband received the monthly payments. Wife testified, without objection, "we paid somebody to tell me the value of his account" and that value was 1180,374." No further evidence, expert or otherwise, was offered by either party as to the present value of the VRS pension.

The parties also disagreed over whether wife was entitled to spousal support and, if so, in what amount. Husband argued that the parties had "decent assets" but "very little income" and contended he should not be required to pay spousal support, especially since he was sixty-six years old and had retired whereas wife was fifty-two years old and had worked on a full-time basis throughout most of their marriage. Wife claimed an income shortfall of $1,800 per month and fragile emotional health as a result of the parties' divorce. She sought $1,000 per month in ongoing spousal support.

II.

ANALYSIS

A.

VRS PENSION: VALUATION AND DIVISION

1. Husband's Statements Regarding Division of Property

We reject wife's argument that husband should be judicially estopped from denying an equal division of all marital assets. Judicial estoppel provides that "in successive actions between two parties, `a party will not be permitted to maintain inconsistent positions....'" Richfood, Inc. v. Ragsdale, 26 Va.App. 21, 23-24, 492 S.E.2d 836, 837 (1997) (quoting 28 Am.Jur.2d Estoppel and Waiver § 68 (1966)) (emphasis added). Because wife's contention involves a single proceeding, judicial estoppel does not apply.

We agree generally with the principle that a party should not be permitted to "approbate and reprobate, by ascribing error to an act by the trial court that comported with [that party's] representations." Asgari v. Asgari, 33 Va.App. 393, 403, 533 S.E.2d 643, 648 (2000). However, we disagree that this principle can be applied in this case.

Wife's quotation of husband's testimony and argument that he desired an equal division of all assets takes these statements out of context. The record makes clear that husband did not agree to wife's receiving one-half his VRS pension, either as an immediate offset in the marital asset division based on its present value or as a deferred distribution of the monthly benefits as received. Husband's opening statement focused on his contention that the present value figure wife claimed for the VRS pension was "a false figure," but when the trial court observed that wife "could get half of [the VRS pension]," husband's attorney responded, "Yes, sir, she can.... But we don't want [her] to...."

Husband's written submissions to the trial court conveyed this position. He proposed an equitable distribution divided into two distinct sections. One section contained most of the assets, calculated their agreed total value, and labeled the sum, "Total Marital Assets." A separate section, titled "Other Assets," included husband's VRS pension plan and "Miriam's Legg Mason Account," the only other asset the value or character of which was in dispute. In his written argument, husband recommended expressly "that [his ICMA deferred compensation plan] be divided equally." In the section relating to the division of his VRS pension, however, he made no such recommendation. Instead, he indicated that he was sixty-six years old and unable to "obtain gainful employment," whereas wife was fifty-two years old and able to work gainfully. He also recited his prior agreement to share his ICMA benefits with wife and listed the other assets she had, including her IRA. Thus, although husband's argument may not expressly have indicated he did not wish to share the VRS pension with wife, the tenor of his argument was clear.

Finally, in a hearing to clarify the trial court's prior ruling, wife's attorney admitted to the court her understanding of husband's position. Wife's counsel conceded in that argument, "The single point that brought us to court was that [husband] said [wife] can't have fifty percent of my pensions and alimony and that's why [the trial court] had to decide the whale thing." Thus, the record does not support wife's argument that she believed husband agreed to an equal division of all marital assets.

2. The Trial Court's Preliminary Ruling

We reject wife's contention that the trial court was bound by its preliminary letter ruling that all marital assets would be evenly divided or that this ruling became the law of the case. The doctrine of the law of the case applies only in situations where a final determination or ruling has been made without objection. See, e.g., Med. Ctr. Hosps. v. Sharpless, 229 Va. 496, 498, 331 S.E.2d 405, 406 (1985)

(holding that jury instructions given without objection became law of the case and governed resolution of the proceedings even on appeal). Where a party objects to the ruling of a trial court, the court retains the authority to act on that objection within twenty-one days from entry of the final order. See Rule 1:1; Cloutier v. Queen, 35 Va.App. 413, 420-21, 545 S.E.2d 574, 577-78 (2001).

Here, the trial court's initial "approval" of the parties' agreement to split all marital property equally, to the extent it considered or included the VAS pension at all, clearly misperceived the nature of the parties' agreement and disagreement. Moreover, the trial court's reference to an even division of the marital estate specifically referred to a marital estate of $947,776 as provided in the parties' exhibits, which amount excluded the VRS pension. As set out above, the partie promptly informed the trial court of their disagreement and presented additional argument. Manifestly, under these circumstances, the trial court retained the authority to timely correct its preliminary ruling.

3. Valuation and Division of VRS Pension

Code § 20-107.3(A) provides that the trial court "upon request of either party, shall determine the ... value of all property, real or personal, tangible or intangible, of the parties." Subsection (G)(1) provides that "[t]he court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time."

We have recognized two methods for valuing and dividing a defined benefit plan, which "gives the employee a specific benefit upon retirement." Brett H. Turner, Equitable Distribution of Property §§ 6.02, 6.12, at 289, 367 (2d ed.1994).

An award may be a percentage of the marital share of the pension, in which case payment is to be made only as retirement benefits are paid. Code § 20-107.3(G). This method of making an award is

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