FRANCES H. KEYSER v. DIRCK KEYSER
No. 0312-87-2
Richmond
Decided December 6, 1988
405
Ronald R. Tweel (Michie, Hamlett, Donato & Lowry, on brief), for appellant.
Williаm G. Barkley (Pickford and Barkley, on brief), for appellee.
OPINION
COLEMAN, J.—This appeal addresses whether the trial court erred in failing to include as part of a monetary award a sum for one spouse‘s pension and retirement plan and in failing to award spousal support. The circuit court granted Frances Keyser a divorce on the ground of desertion, granted her a monetary award of $900 and denied her spousal support. She appeals the monetary award and denial of spousal support, contending that the court abused its discretion in failing to divide equitably the marital wealth and that the court applied an incorrect standard in denying spousal support. We agree and reverse both rulings.
Dirck Keyser and Frances Hurdman each had been widowed approximatеly four years when they married in December 1978. No children were born to their marriage. Mr. Keyser, who is now sixty years old, has three adult sons, two of whom were attending college and living away from home when the parties married. Mrs. Keyser, who is fifty-four, has an eighteen year old daughter attending college and a fifteen year old son at a private secondary school. Before their marriage, Franсes Hurdman resided in Morristown, New Jersey, with her children. She is well educated and owned her home debt free. She chose not to work outside the home while her children were young. Her income was from investments and the inheritance from her first husband and from her children‘s social security survivor benefits. She had not been gainfully employed for a number of years prior to her marriage to Mr. Keyser. At the time of the marriage Dirck Keyser lived in Alexandria, Virginia and was employed by the United States Treasury Department at an annual salary of approximately $57,000. When they married Mrs. Keyser sold her home in New Jersey. She invested these proceeds in securities which she registered solely in her name, and she and her two children moved to Alexandria with Mr. Keyser. Shortly after the marriage Dirck Keyser sold his home and purchased a larger one in Alexandria to
In 1982, after four years of marriage, Dirck Keyser retired in order to pursue doctoral studies at the University of Virginia. He sold his northern Virginia home and he and the family, which at the time included Mrs. Keyser‘s children, moved to a newly purchased home at Keswick near Charlottesville. Both parties contributed to the purchase of the Keswick home. Although marital problems hаd surfaced early during the marriage, it was not until after the move in 1982 and Mr. Keyser‘s retirement that the strained situation burgeoned into Dirck Keyser‘s desertion of his wife and the marriage. According to Mrs. Keyser even though the parties had discussed his desire for early retirement to pursue an academic career, his decision came as an unwanted surprise because her children had yet to be educated. She testified that one consideration which Mr. Keyser promised before marriage was to help educate her children. She points out that his children are now educated, his income has been reduced to $23,000 per year from his retirement and investments, and she has her children‘s educational expenses ahead of her.
In the divorce proceeding the parties agreed upon the value of the property as well as which property was marital and which was separate. They also agreed to divide equally the equity from the sale of their Keswick home, receiving approximately $56,000 each.1 The Keysers were unable to agree upon a division of the remaining marital property and submitted to the court whether to grant a monetary award based upon the value of the remaining marital estate and their rights and equities in it. The agreed upon marital property consisted of that portion of Dirck Keyser‘s government retirement earned during the marriage,2 valued at $104,000; jewelry worth $4,500; a $1,100 1984 Chevette automo-
Frances Keyser does not challenge the trial court‘s monetary award to the extеnt it effectuates an equal division of the value of those marital assets included. She does, however, challenge the trial court‘s failure to include in the monetary award any sum for the $104,000 value of Dirck Keyser‘s government pension plan which they agreed was marital property because that amount represented contributions during the marriage.
We first review the monetary award because the spousal question may depend upon the resolution of that issue. See
[T]he chancellor is necessarily vested with broad discretion in the discharge of the duties the statute [
Code § 20-107.3 ] imposes upon him. Unless it appears from the record thаt the chancellor has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor‘s equitable distribution award will not be reversed on appeal.
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368 (1987) (quoting Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987)).
Classification and evaluation of the properties were agreеd upon by the parties. The parties testified to how they divided the proceeds from the sale of the marital home. The trial court had the evidence concerning the agreed value and classification of all separate and marital properties essential for it to decide whether to grant a monetary award and, if so, the amount of such award based upon the faсtors listed in
While the trial court has broad discretion in deciding whether to grant a monetary award, that determination must be based upon the equities and the rights and interеsts of each party in the marital property.
The court determined to grant a monetary award to Frances Keyser and did so. Thus, the question is not whether the court failed to make a monetary award, but whether it failed to properly consider the rights and interests each party had in the marital property, and whether it improperly considered any circumstances or failed to properly consider the enumerated statutory factors in determining the amount. In fashioning the monetary award, the trial court specifically reviewed each item of marital property and announced that the amount of the award to Frances Keyser represented one-half of the value of every item of marital property, except for Dirck Keyser‘s retirement plan. We have approved the approach of the trial court wherein the rights and equities of the parties in individual рroperties and their values are determined and an award is made by aggregating those separate values. See McGinnis v. McGinnis, 1 Va. App. 272, 276, 338 S.E.2d 159, 161 (1985). Although the court was aware that each party received approximately $56,000 in liquid assets from the sale of the Keswick home, nothing in the record indicates that the voluntary division of that asset influenced the decision to depart from its approach of determining the rights of the parties in the remaining assets. The trial court did not indicate that it denied the wife a sum for her interest in the pension because of the amount she received in the voluntary division. We find no reasonable explanation for denying her a monetary award based upon this approach. The court announced its ruling and reasoning for making no allowance for the retirement and pension, as follows:
“Suppose she hadn‘t married this man and had stayed in New Jersey. Financially, she‘s in the same identical position for all practical purposes today as she was then. . . . I don‘t see where her position financially has changed and this has worried me . . . . I just don‘t see where it changed . . . .”
“Now, in this marriage, she has little, if any, longevity, as we put it. She was only married six years and she hasn‘t been hurt finanсially . . . and I don‘t think she‘s entitled to any support and maintenance. And she‘s certainly not entitled to any of this man‘s pension. I just, I just don‘t see where she‘s, she‘s given up nothing for this marriage. She‘s in the same position financially as she was the day she went into the marriage.”
Retirement and pension plans, by their nature and diversity, present unique problems when making a division of marital wealth under any equitable distribution statute.3 Portions of the pension must be classified and valued as either marital or separate property depending on whether the contribution was before or during the marriage. Sawyer v. Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 280 (1985). The fact that $104,000 of the pension‘s value was based on contributions Dirck Keyser made during the marriage does not ipso facto entitle Frances Keyser to a monetary award, including a particular proportion or any sum for the pension.
While
Although the share of marital рroperty which Frances Keyser received is substantial it was based primarily upon a voluntary division of one asset, the marital home. The only reasons which the trial court assigned for denying Frances Keyser an award which included any value of her husband‘s pension earned during the marriage was that the marriage was of relatively short duration and that Mrs. Keyser‘s financial condition at the end of the marriage was comparable to her condition at the time she entered the marriage. First, we hold that the fact that a party‘s financial condition is no worse when the marriage is dissolved than when the party entered the marriage is not a proper factor to deny the party an award based upon property acquired during the marriage. While Mrs. Keyser‘s financial condition was a fаctor to be considered in adjusting the parties’ equities, the fact that her condition has not worsened does not justify denying her a monetary award based upon her interest in an item of marital property. Second, the only statutory factor which the record indicates that the trial court considered is the relatively short duration of the mar-
We do not rule that applying the factors of
The trial court will reconsider the issue of spousal support after deciding the issue of the monetary award. Because several issues appealed will be оf import on remand, we address those here. In denying spousal support, the trial court also found that the marriage was of short duration and that Frances Keyser was in as good a financial condition after the dissolution of the marriage as she was before. The trial court must consider all statutory factors, not just the duration of the marriage, in determining spousal support. Bristow v. Bristow, 221 Va. 1, 3, 267 S.E.2d 89, 90 (1980). While a party‘s comparative financial condition before marriage and after divorce may demonstrate one‘s ability to support oneself, the court must consider the needs of each spouse in relation to each party‘s ability to provide for those needs and the
Keenan, J., concurred.
Hodges, J., dissenting.
Reversed and remanded.
I respectfully disagree with the conclusion of the majority. Although in all probability I would have reached a different conclusion than the trial judge, I believe the majority have committed the grievous error of substituting their judgment for that of the trier of the fact. Upon review of the record, I cannot say as a matter of law that the trial judge erred. Accordingly, I would affirm.