HARRY Y. GAMBLE, JR. v. CONSTANCE P. GAMBLE
No. 1726-90-2
Richmond
Decided June 2, 1992
558
Peter McIntosh (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellant.
Susan D. White, for appellee.
OPINION
KOONTZ, C.J.—By final decree entered on September 21, 1990, the Circuit Court for the City of Charlottesville granted Constance P. Gamble a final divorce on the grounds of desertion and adultery from Harry Yandle Gamble, Jr. The decree further granted Mrs. Gamble a monetary award and spousal support, and ordered Mr. Gamble to convey his interest in the jointly owned marital home to Mrs. Gamble in partial satisfaction of the monetary award. On appeal, Mr. Gamble challenges the monetary and spousal support awards. He does not challenge the grounds for the divorce.
Mrs. Gamble filed her Bill of Complaint on March 16, 1990. On June 27, 1990, the parties presented their evidence before the chancellor ore tenus. Thereafter, in letter opinions dated July 20 and August 17, 1990, the chancellor recited the findings of fact upon which the monetary and spousal support awards were granted. These findings of fact are adequately supported by the record.
A detailed recitation of the history of this twenty-six-year marriage is not warranted. At the time the couple separated, June 21, 1989, their two children were adults. Mr. Gamble, who had previously earned a doctoral degree in religious studies, held a teaching position at the University of Virginia. He received a net monthly income of $2,607. Throughout the marriage, Mr. Gamble was the primary source of income for the family. However, Mrs. Gamble, who had previously earned a master‘s degree in education, held a teaching position in the Albemarle public school system from which she received a net monthly income of approximately $1,870. The chancellor, after determining the separate property of the parties, found that the parties had accumulated the following marital property:
Personal Property - $ 23,194.00 - jointly owned - Real Property - $ 69,713.00 - jointly owned
- Mrs. Gamble‘s pension - $ 14,100.00 - owned by Mrs. Gamble
- Mr. Gamble‘s pension - $113,674.72 - owned by Mr. Gamble
Total $220,681.72
From this marital property and pursuant to
On appeal, Mr. Gamble raises the following issues: (1) whether the chancellor erred in setting the valuation of the marital home at $135,200; (2) whether the determination of the amount of the monetary award and the order that Mr. Gamble transfer his interest in the marital home to Mrs. Gamble was an abuse of discretion; and (3) whether the determination of the amount of spousal support was an abuse of the chancellor‘s discretion.
In addressing these issues, we are able to do so with the benefit of the chancellor‘s reasoning which is recited in detail in the letter opinions in the record. For clarity, we will refer to this reasoning where each specific issue is addressed in this opinion.
At the ore tenus hearing, Mr. Gamble testified that in his opinion the marital home had an “approximate market value” of $175,000. In support of that opinion, he offered an exhibit which contained what he asserted to be valuations of other comparable properties in the neighborhood. The chancellor rejected this exhibit, but permitted Mr. Gamble to state his belief of the value of the home. In contrast, Mrs. Gamble introduced, without objection, a County of Albemarle tax appraisal reflecting a value of $135,200 for the home as of January 1, 1989. The chancellor found that the tax appraisal “is more satisfactory to establish the value of the residence.”
Because neither party filed a motion, pursuant to
Nonetheless, Mr. Gamble asserts that Mrs. Gamble offered little, if any, evidence that the value of the home had not increased since the 1989 appraisal. While pictures of the home were placed into evidence, he notes that Mrs. Gamble‘s only testimony on that point was that there had been little money available for “cosmetic repairs.”
In contrast, Mr. Gamble asserts that his opinion of the value of the home was worthy of more weight, in essence, because it was based upon his knowledge of the value of similar homes in the neighborhood and was formulated several days prior to the date of the evidentiary hearing. In addition, he asserts that because the chancellor assigned a “half-way” value to those items of personal property over which the parties disagreed concerning value, the same approach was required for the valuation of the marital
Upon familiar principles, “we consider the evidence in the light most favorable to the party prevailing in the trial court. Where the trial court‘s decision is based upon an ore tenus hearing, its determination will not be disturbed on appeal unless it is plainly wrong or without evidence in the record to support it.” Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). On brief, Mr. Gamble concedes that “in essence each party in this case was entitled to serve as his or her own expert regarding the valuation of the marital home.” Viewed in that context, we cannot conclude that the chancellor was plainly wrong in giving less weight to Mr. Gamble‘s opinion and more weight to Mrs. Gamble‘s opinion that the value of the home had not increased since the independent tax appraisal; thus, the chancellor was not plainly wrong in determining that appraisal reflected the value of the home on the date of the evidentiary hearing. Accordingly, we hold that the chancellor did not err in setting the value of the marital home at $135,200.
II. The Monetary Award Issue
In determining the amount and method of payment of the monetary award in favor of Mrs. Gamble, the chancellor specifically relied upon our decision in Brinkley v. Brinkley, 5 Va. App. 132, 361 S.E.2d 139 (1987). This decision outlined the steps to be followed in the application of
Mr. Gamble asserts a three-pronged argument in support of his position that the amount and method of payment of the monetary award are erroneous. First, Mr. Gamble asserts that by combining pension and non-pension marital property in the calculation of the amount of the monetary award, the chancellor “inequitably allowed [Mrs. Gamble] to enjoy the vast majority of the currently available marital assets and granted to [Mr. Gamble] future, only
The essence of Mr. Gamble‘s first assertion is that where the amount of the monetary award pursuant to
In order to focus upon the proper application of Subsection (G) to the factual situation presented by this appeal, we will assume, for now, that the chancellor correctly determined the equities and rights and interests of each party in the pension and non-pension marital property and correctly applied the factors listed in
The chancellor‘s letter opinions reveal in detail how the amount and method of payment of the monetary award were fashioned. In summary, the chancellor determined that the total value of all of the marital property was $220,681.72. The largest asset was Mr. Gamble‘s pension, which was valued at $113,674.72. Of the total amount of the marital property, Mr. Gamble owned or had joint title to property worth $160,128.22. Mrs. Gamble owned or had joint title to marital property worth $60,533.50. The chancellor found that “these figures consist of each having a one-half interest in the personalty and the marital residence and sole title to their respective pensions.” Based upon these amounts, the chancellor
In summary, it is clear that the value of Mr. Gamble‘s pension benefits was included in the chancellor‘s determination of the amount of the monetary award granted pursuant to Subsection (D). It is also clear that these pension benefits were considered again under Subsection (G). We must decide whether in fashioning an equitable distribution of the marital property the chancellor caused a portion of Mr. Gamble‘s pension benefits to be paid, directly or indirectly, prior to his receipt of those benefits in violation of Subsection (G).
In Keyser v. Keyser, 7 Va. App. 405, 412, 374 S.E.2d 698, 702 (1988), we noted that “pension plans, by their nature and diversity, present unique problems when making a division of marital wealth under any equitable distribution statute.” Similarly, Mr. Gamble correctly asserts that, as a general proposition, pension benefits are an unusual type of property in that, in most cases, the pension benefits are “future oriented.” In this context, we note
The chancellor‘s task of equitably applying Subsection (G) in conjunction with the other provisions of
In the event that any part of the monetary award is based upon pension or retirement benefits,
Code § 20-107.3(G) provides a limitation upon the method of payment. It places two restrictions upon payment: (1) no part of the award shall become effective until the party against whom such award is made actually begins to receive such benefits; and (2) no such award shall exceed fifty percent of the cash benefits actually received by the party against whom such award is made. The practical effect of subsection (G) is that the trial judge must specify separately any part of the monetary
award that is based upon pension or retirement benefits and make special provisions for the payment of it in order to conform with [these] restrictions.
We find that [wife‘s] argument that the trial court could include as a part of the monetary award the present value of pension or retirement benefits without applying the restrictions on payment in subsection (G) to be in error and we reverse the judgment of the trial court since it ordered payment within thirty days of the order rather than when the [husband] actually began to receive such benefits.
Id. at 121, 355 S.E.2d at 22-23 (emphasis added). See also Price v. Price, 4 Va. App. 224, 233, 355 S.E.2d 905, 910 (1987). Significantly, although Subsection (G) was amended effective July 1, 1985 to permit the trial court to award a percentage of pension benefits, this amendment was not applicable at the time the trial courts decided Mitchell and Price. Now, however, the “special provisions” for the payment of an award based in part upon pension benefits contemplated in Mitchell are an award of a percentage of those benefits pursuant to Subsection (G).
Subsequently, in Brinkley, the case relied upon by the chancellor in the present case, we reversed a Subsection (D) award to a wife of a $3,000 lump sum and a Subsection (G) award of an amount equal to thirty-six percent of the husband‘s pension benefits because the trial court did not follow the statutory scheme in determining whether a monetary award was appropriate, did not determine the present value of the husband‘s pension benefits in determining the amount of the award, and effectively granted two monetary awards. 5 Va. App. at 137-39, 361 S.E.2d at 141-42. At the time Brinkley was decided, unlike Mitchell, the 1985 amendment to Subsection (G) providing that the “court may direct payment of a percentage of pension . . . benefits” was applicable. In this context, we held:
Code § 20-107.3 , both as it read prior and subsequent to the 1985 amendment, contemplates only one monetary award, the amount of which is determined by the careful consideration of the eleven criteria enumerated in Subsection E. AlthoughCode § 20-107.3(G) as it read prior to its amendment required the trial court to identify that portion of the award based upon [pension] benefits, see Mitchell v. Mitchell, 4
Va. App. 113, 121, 355 S.E.2d 18, 22 (1987), that provision cannot be construed as authorizing multiple monetary awards. Furthermore, the statute now clearly indicates that the monetary award is not composed of discrete parts each based upon one of the enumerated factors, but is rather a single entity whose total amount is determined by examination of the
Code § 20-107.3(E) factors.
Brinkley, 5 Va. App. at 139, 361 S.E.2d at 142 (emphasis, in part, in original and in part added).
Subsequent to Mitchell, Price and Brinkley, in 1988, the legislature repealed
In addition to the monetary award made pursuant to Subsection D, and upon consideration of the factors set forth in Subsection E, the 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. However, the court shall only direct that payment be made as such benefits are payable. No such payment shall exceed fifty percent of the marital share of the cash benefits actually received by the party against whom such award is made.
(emphasis added). Subsection (G), in this form, was applicable at the time the chancellor decided the present case.
In his initial brief, Mr. Gamble asserts that the phrase, “In addition to the monetary award made pursuant to Subsection D” in the 1988 amendment to Subsection (G) “allowed for the first time separate monetary awards (non-pension and pension) [and] simplified and clarified the restrictions” of this subsection. He further asserts that the 1988 amendments did not legislatively overrule Mitchell and Price, but rather “were in response to this Court‘s decision in [Brinkley] which had been interpreted to mean a trial court could not make two monetary awards; one a present sum from non-pension marital property and another which adheres to the ‘when/as/if’ requirements of Subsection G.” In his reply brief, Mr. Gamble clarifies his position by stating that he does not con-
In our view, even if we assume that Subsection (G) was amended “in response to Brinkley,” this amendment does not alter our holdings in Mitchell, Price and Brinkley. Rather, we believe this amendment and the repeal of the Subsection (E)(8) requirement of consideration of the present value of pension benefits were intended only to clarify what has always been contemplated by the
We recognize that where pension benefits are a portion of the pool of marital assets to which all of the provisions of
Mitchell, for example, represents the clear factual situation in which a Subsection (D) monetary award was defective because the amount of the award was determined in part on the value of pension benefits but was ordered to be paid in violation of Subsection (G) prior to the time the party against whom the award was made actually received the pension benefits. In this context, Subsection (G), prior to and following the 1988 amendment, is a legislative recognition of the obvious: one cannot pay an award with funds he or she does not currently possess. Thus, an order to pay a portion of pension benefits prior to the actual receipt of such bene-
In Brinkley, which like Mitchell and Price, also involved pension and non-pension marital property, the primary error was that the chancellor failed to consider the Subsection (E) factors in fashioning an equitable distribution of all the marital property. Unlike Mitchell and Price, in Brinkley, the husband was presently receiving his pension benefits and Subsection (G) permitted an award of a percentage of those benefits to the wife. Without considering the Subsection (E) factors, the chancellor made a Subsection (D) monetary award of $3,000 and in addition a Subsection (G) award of thirty-six percent of the husband‘s pension benefits, which we found effectively amounted to two monetary awards. In this context, we held that Subsection (G) does not authorize multiple awards, but rather “the statute [that is,
Thus, when properly viewed, Mitchell, Price and Brinkley are entirely consistent and stand for the general proposition that where a monetary award is appropriate, the Subsection (E) factors must be considered in determining the total amount of a Subsection (D) monetary award which will equitably compensate a spouse for his or her contributions to the acquisition of all the marital property; and where pension benefits are a portion of that marital property, Subsection (G) permits the chancellor to award a percentage of those benefits conditioned upon the specific limita-
In the present appeal, Mr. Gamble‘s assertion that the award of twenty percent of his pension benefits was in violation of the restrictions of Subsection (G) does not describe to what the chancellor actually ordered. Although Subsection (E)(8) had been repealed, the chancellor had the benefit of the evidence which established the present value of all the pension benefits of the parties, in addition to the value of the non-pension property. Thus, the chancellor was able to and did apply the Subsection (E) factors to all of the marital property and fashioned an equitable distribution of the marital wealth of the parties so that Mrs. Gamble would receive the accumulated wealth represented by the equity in the non-pension property (the marital home) and Mr. Gamble would retain a larger portion of the pension property (eighty percent of his pension benefits).
Contrary to his assertion, Mr. Gamble was not required, directly or indirectly, to pay a portion of his pension benefits to Mrs. Gamble prior to his receipt of those benefits. He was required to satisfy the Subsection (D) award by the transfer of non-pension property — his interest in the marital home and the balance in cash. In return, as an offset, he was required to pay only twenty
We turn now to Mr. Gamble‘s assertion that the chancellor erroneously considered Mrs. Gamble‘s “future psychological, emotional and financial needs for the marital home” in determining the amount of the award and in ordering Mr. Gamble to convey his interest in the home to her. He relies upon our decision in Reid v. Reid, 7 Va. App. 553, 375 S.E.2d 533 (1989), to support his assertion. This reliance upon Reid is misplaced. In Reid, we held that ”
Our standard of review of this particular issue is well settled. ”
For all of these reasons, we affirm the chancellor‘s decision to grant Mrs. Gamble a monetary award and the amount and method of payment of that award.
III. The Spousal Support Award Issue
Well-established principles guide our resolution of the spousal support issue in this appeal. Where a claim for support is made by a party who has been held blameless for the marital breach, the law imposes upon the other party a duty, within the
Mr. Gamble‘s adultery and desertion and Mrs. Gamble‘s blamelessness, as determined by the chancellor, readily and adequately support the chancellor‘s threshold determination pursuant to
While the parties disagree over the appropriate weight to be given to each of the nine statutory factors contained in
Pursuant to factor one (obligations, needs and financial resources of the parties) the chancellor adjusted the monthly expenses claimed by each party and determined the reasonable anticipated monetary expenses of each party. For purposes of this opinion, except as we note below, we assume that the chancellor correctly made these determinations. The chancellor then determined that Mr. Gamble earned a net monthly income of $2,607 and Mrs. Gamble earned a net monthly income of $1,869.46. Mr. Gamble correctly asserts, however, that in determining Mrs.
Clearly, the current income of Mrs. Gamble is one factor that the chancellor is required to consider in fashioning the final spousal support award to her. See Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990). In setting the spousal support award at $850, the chancellor noted that “such award permits both parties to come close to meeting their anticipated monthly expenses.” (emphasis added). We interpret this comment to mean that the chancellor was aware that the determination of the net monthly income of both parties was not a precise mathematical calculation. Moreover, we are unwilling to conclude that the chancellor‘s failure to include Mrs. Gamble‘s current rental income into the calculation of her net monthly income, standing alone, is necessarily a fatal defect in the manner in which the chancellor fashioned the final award. While no evidence supports Mrs. Gamble‘s suggestion that this income was temporary, for the reasons that follow, we will treat the failure to consider this income as one of several considerations in our review of the final award.
Another consideration is Mr. Gamble‘s correct assertion that the $850 award results in Mrs. Gamble having a greater net monthly income than he. Factually, this is the case even without the inclusion of the rental income figure. The chancellor also recognized this result, but found that this “is not determinative of what is or what is not an appropriate award of support.” Mr. Gamble suggests “that there are no cases which result in the payee spouse” having a higher net disposable income level than the payor spouse and invites our review of several decisions of the Virginia appellate courts that factually support his position. We need not, and do not, decide whether such a result is necessarily a fatal defect in the calculation of a spousal support award. Rather, we will treat the fact that Mrs. Gamble has more net disposable income as a result of the award in her favor as an additional consideration in our review of the final award in this particular case.
The chancellor‘s failure to consider Mrs. Gamble‘s current rental income and to either properly credit Mr. Gamble or to debit Mrs. Gamble with the amount of the second mortgage payment seriously lessens the reliability of the chancellor‘s determinations of the parties’ respective obligations and net incomes. The chancellor‘s conclusion that the fact that Mrs. Gamble‘s net income exceeds that of Mr. Gamble was of little significance does not strengthen the reliability of those determinations. When these defects are viewed in their totality, the spousal support award in this case effectively provided the financial means by which Mrs. Gamble could satisfy the monthly mortgage obligations on the marital property she sought and received under the provisions of
In Williams v. Williams, 4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987), and in Reid, 7 Va. App. at 564, 375 S.E.2d at 539, we
In the present case, we hold that there was a clear abuse of discretion when the chancellor fashioned the spousal support award that effectively required Mr. Gamble to satisfy the mortgage obligations on the marital home he was required to convey to Mrs. Gamble. Because we are unable to determine that the amount of the award would be the same had the chancellor properly considered the rental income and the payment of the second mortgage, we reverse the spousal support award and remand the issue of the amount of spousal support for reconsideration in light of the views expressed herein.
Affirmed in part, reversed in part, and remanded.
Duff, J., concurred.
Benton, J., concurring.
The trial judge‘s letter opinion in this case contains a clear and careful analysis that commendably demonstrates that his decision was reached consistent with the statutory requirements. Accordingly, I concur in the decision upholding the valuation and monetary award issues. I write separately, however, in order to address the significant effect that the changes in
The current equitable distribution statute has changed substantially from the statute that was in effect when Brinkley was decided. I believe that if Brinkley has continuing validity it is because Brinkley suggests that the statute is susceptible to parsing and may be better understood if subjected to an analysis of its elements. Obviously, we must use care in relying on cases decided prior to enactment of the current version of the statute. With that disclaimer, I believe it is necessary to reiterate, as we stated in Brinkley, that “[a]ll of the provisions of
The headnote to the statute that is commonly referred to as “the equitable distribution statute” states that the “court may decree as to property of the parties.”
[T]he court, upon request of either party, shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property in accordance with subdivision A 3. The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. Upon motion of either party made no less than twenty-one days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used.
Once these steps have been performed, the trial judge must determine the “rights and interests [of each party] in the marital property.”
Subsections C, D, and G of the statute contain discrete mechanisms by which the trial judge may decree as to the marital property so as to reach a fair and equitable result. The 1988 amendments require the trial judge to consider all the subsection E factors in distributing marital property under subsections C, D, G and H. Before 1988, the statute required trial judges to consider subsection E factors only when calculating the appropriate amount and method of payment of a subsection D monetary award. Under the current statute, however, the trial judge must also decide whether to make a decree as to the marital property under subsections C, D, G or H based on all the factors listed in subsection E. As a result of these changes, it is no longer sufficient for trial judges to make distribution decisions simply by asserting that they based their decisions on all of the statutory factors. The current statute requires an explanation of the manner in which the
Subsection C authorizes the trial judge “to order the division or transfer, or both, of jointly owned marital property, or any part thereof.”
Subsection D authorizes the trial judge “to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party.”
Subsection G authorizes the trial judge to make a deferred distribution of pension type benefits. That distribution may be made by “direct[ing] payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, . . . which constitutes marital property and whether payable in a lump sum or over a period of time.”
The statutory scheme explicitly states that whether the trial judge makes (1) a division or transfer under subsection C, or (2) a monetary award under subsection D, or (3) a deferred distribution under G, the decree must be based upon the factors set forth in subsection E.3 The statutory scheme does not prefer any one of
In the case we now decide, the husband argues that the trial judge incorrectly interpreted the provisions of subsections D and G of
In Brinkley, decided before the current version of the statute was enacted,
No 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. No such award shall exceed fifty percent of the cash benefits actually received by the party against whom such award is made.
(Emphasis added).
Thus, under the former statute, if the marital property included pension benefits and the monetary award was based in whole or in part upon the value of those benefits, a portion of the monetary award could not become effective until the benefits were paid.
The current subsection G contains a subtle but significant change. It now reads:
In addition to the monetary award made pursuant to subsection D, and upon consideration of the factors set forth in subsection E, the 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 nor nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time. However, the court shall only direct that payment be made as such benefits are payable. No such payment shall exceed fifty percent of the marital share of the cash benefits actually received by the party against whom such award is made. “Marital share” means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.
(Emphasis added).
The change is not inconsequential. It allows the trial judge to chose the best method for valuing pensions. The legislature has created a statutory scheme that recognizes alternative methods by which the trial judge may distribute pension benefits. The language of subsection G indicates that the limitation on the trial
In Mitchell, this Court relied upon the language of
Subsection G, as now written, does not prohibit a trial judge from including the marital portion of the pension, or some part of the marital portion, in the consideration of marital property from which a monetary award is fashioned under subsection D. Sufficient non-pension marital property and evidence of the present value of the pension is all that is required. Although the 1988 amendment to the statute deleted the mandatory requirement to consider present value of pension benefits as a factor under subsection E, the trial court is not prohibited by the revised statute from considering present value when making a determination of a monetary award under subsection D. Removing from the statute by amendment the mandatory requirement of considering present value of pensions is not tantamount to prohibiting its use where
If there is sufficient non-pension marital property and the trial judge has evidence of the present value of the pension, the trial judge may make a monetary award under subsection D, based upon a consideration of the present value of the pension; provided, it is fair and equitable to do so. Such an award would be immediately effective, provided only that payment of the award may not be directed from a pension, retirement, or similar benefits that are not then payable. Indeed, if a monetary award is based upon use of a present value calculation of a pension, the payment may not be deferred until actual receipt of pension benefits. See Zipf v. Zipf, 8 Va. App. 387, 397, 382 S.E.2d 263, 268 (1989). Carried to its broadest application, this reasoning would allow the trial judge to award the entire marital portion of the pension to the spouse in whom the pension is titled and award the other spouse an equivalent portion of non-pension marital property. Such a ruling would have the desirable effect of eliminating the need for further contact between the parties and the court and resolving the equitable distribution of the marital property without delay. As amended, the statute now brings Virginia into line with the position followed in most states that the trial judge may, if it is equitable to do so, award the spouse with the pension the entire pension and grant the other spouse a monetary award or offsetting property equal to the value of the marital share of the pension.
Including the marital portion of the pension within the calculations of a subsection D monetary award, however, is not always practicable, desirable, or equitable. For instance, it would be inequitable to base a monetary award on the marital portion of the pension “when the value of the pension benefits is so disproportionate in relation to other marital property that an immediate distribution would be inappropriate.” Seifert, 319 N.C. at 371-72, 354 S.E.2d at 509. It is also obvious that the trial judge must know the present value of the pension in order to direct such payment. A further complicating factor is the uncertainty that often results in reaching a determination of present value and in predicting future activity.
If the trial judge determines that a distribution of pension benefits is necessary to achieve an equitable distribution of the marital property and the non-pension marital property is not sizeable, the trial judge may elect to award to the non-employee spouse a per-
In the absence of inequity and impracticality, nothing in
The court must be given flexibility to determine which method of distribution to utilize in a given case. Whether any particular option represents an appropriate exercise of discretion depends upon the individual facts and circumstances of the case. It may even be feasible to combine the [deferred distribution] and present value methods. It should also be remembered that it is not always necessary for pension benefits to be specifically divided; rather, they may simply be added to the other marital assets, out of which the court will make the final award.
Golden, supra at § 6.16 (footnotes omitted).
There are, however, limitations that must be adhered to. Under the current statutory scheme, a trial judge may not subject any single portion of a marital asset to multiple methods of distribution. This limitation does not, however, prohibit the trial judge
Here, the trial judge first classified and valued all the parties’ marital property. The trial judge considered the equities, rights and interests of the parties in all the marital property, including both pension and non-pension property. The trial judge then applied the statutory factors under subsection E to determine the amount of the monetary award and the method of payment. The trial judge “conducted the same analysis under [subsection] G as to the pension benefits taking into consideration [his] determination of the monetary award.” In fashioning an award, the trial judge determined that the wife should retain the marital residence and the husband should retain the principle interest in the parties’ largest marital asset, the husband‘s pension. To this end, the trial judge ordered a monetary award to the wife of $35,524.96, to be satisfied in large part by the husband‘s conveyance to the wife of his interest in the marital residence. This sum is approximately equivalent to thirty percent of the present value of the marital share of the husband‘s pension, as proved by the husband. Under
Because each pension plan presents a different set of problems, an appellate court should hesitate to dictate any specific techniques for equitably distributing pension benefits. See Pulliam v. Pulliam, 796 P.2d 623 (Okla. 1990). Our scope of review of the trial judge‘s choice of equitable distribution methods should be limited to whether the choice made in a particular case constitutes an abuse of discretion. Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987). See also Imagnu v. Wodajo, 85 Md. App. 208, 582 A.2d 590 (1990). In this case, the trial judge‘s method was novel, but clearly in line with statutory requirements and supported by the facts recounted in the record.
Accordingly, I would affirm the property decree judgment. For the reasons stated in the majority opinion, I would also reverse the spousal support award.