Opinion
Record No. 0254-94-1
Decided: January 17, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, John K. Moore, Judge
J. Barbour Rixey (Rixey Rixey, on briefs), for appellant.
Morris H. Fine (Fine, Fine, Legum and Fine, P.A., on brief), for appellee.
Present: Judges Baker, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Husband and wife appeal various aspects of the trial court's equitable distribution and support awards. Husband contends: (1) the trial court failed to consider all of the factors enumerated in Code Sec. 20-107 in determining the amount of spousal support husband was ordered to pay; (2) the trial court erred in awarding wife attorney's fees; and (3) the trial court erred in failing to award husband a portion of the marital share of wife's retirement. Both parties appeal wife's monetary award of $5,000. We affirm the trial court on all issues.
I. SPOUSAL SUPPORT AWARD
We affirm the trial court's decision to award spousal support to wife in the amount of $300 per month. "In fixing spousal support, a trial court has broad discretion which should not be interfered with by an appellate court unless it is clear that some injustice has been done." Papuchis v. Papuchis, 2 Va. App. 130, 133, 341 S.E.2d 829, 831 (1986). Nevertheless, Code Sec. 20-107.1 commands that, in order to exercise its discretion, the trial court shall consider the specific factors contained in Sec. 20-107.1; failure to do so is reversible error. Ray v. Ray, 4 Va. App. 509, 514, 358 S.E.2d 754, 757 (1987); see also Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d 363, 367 (1986). The record reveals the commissioner considered the factors enumerated in Code Sec. 20-107.1 before determining wife's spousal support award, and the trial court adopted the commissioner's findings after considering them. Because we cannot say there was an abuse of discretion, we refuse to disturb the trial court's spousal support award.
II. ATTORNEY'S FEES
We also affirm the trial court's award of attorney's fees in favor of wife. "An award of attorney's fees is a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion." Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987) (citation omitted); see Code Sec. 20-99(5) (stating in divorce cases, "costs may be awarded to either party as equity and justice may require."). "The burden is upon the party appealing to point out the error in the decree and to show how and why it is wrong." Kaufman v. Kaufman, 7 Va. App. 488, 499, 375 S.E.2d 374, 380 (1988) (citation omitted). The commissioner's findings, which were adopted by the trial court, were based on a consideration of the circumstances and equities of the entire case, including the income and assets of the parties available to defray their expenses. Furthermore, there is evidence that wife paid for the commissioner's hearing and was never reimbursed for the expenses associated with her payment. Because the award is reasonable under the circumstances, we cannot say the trial court abused its discretion. Gamer v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993).
III. WIFE'S RETIREMENT BENEFITS
Third, we hold the trial court did not err in failing to award husband a share of wife's retirement benefits. Under Code Sec. 20-107.3(G), the trial court "may direct payment of a percentage of the marital share of any pension . . . or retirement benefits." Like a monetary award, retirement benefit awards must be based upon consideration of the factors set forth in Code Sec. 20-107.3(E). See Banagan v. Banagan, 17 Va. App. 321, 326, 437 S.E.2d 229, 232 (1993). In ordering husband to pay a share of his retirement benefits to wife, the record shows the trial court considered the rights and equities of each party in the marital property and the factors listed in Code Sec. 20-107.3(E). In making his recommendation, the commissioner acknowledged the existence of wife's pension, considered that factor in the context of Code Sec. 20-107.3, and chose not to award a portion of that pension to husband.
IV. MONETARY AWARD
Lastly, we hold the trial court did not abuse its discretion in ordering husband to pay wife a $5,000 monetary award.
Under our statutory equitable distribution scheme, the trial court, "[b]ased upon the equities and the rights and interests of each party in the marital property," is empowered to "grant a monetary award, payable either as a lump sum or over a period of time in fixed amounts, to either party," upon decreeing a divorce.
Brinkley v. Brinkley, 5 Va. App. 132, 135, 361 S.E.2d 139, 140 (1987) (citing Code Sec. 20-107.3(D)). When the trial court orders a monetary award, it must be based on all of the factors enumerated in Code Sec. 20-107.3(E). Robinette v. Robinette, 4 Va. App. 123, 130, 354 S.E.2d 808, 811 (1987). There is adequate evidence in the record to establish the commissioner and trial court took these factors into consideration.
Wife asserts husband was enjoined from disposing of any of the marital assets after the time of the separation and thus, the marital assets should have been the same as of the separation date and the hearing date. Husband asserts that an improper valuation date was used by the trial court. We view this as a question of waste or dissipation, not as a valuation date issue.
Implicit in the trial court's ruling is that it did not accept husband's use of these funds to support an adult child to be legitimate. See Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (1990) (holding that a party in possession must be able to prove that marital funds were used for living expenses or other legitimate purposes). Consequently, we hold that the evidence supports the trial court's findings as to value.
"Unless it appears from the record that the trial judge has not considered or has misapplied one of the statutory mandates, this Court will not reverse on appeal." Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989). Furthermore, there is no presumption that there will be an equal division of property. See Lambert v. Lambert, 6 Va. App. 94, 106, 367 S.E.2d 184, 191 (1988). There is evidence in the record that husband used these marital assets to support an adult son and his wife.
Accordingly, we affirm the decision of the trial court.
Affirmed.