Opinion
Record No. 1887-93-1
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, John E. Clarkson, Judge
Michael D. Kmetz (Kmetz McMillin, on brief), for appellant.
Tazewell T. Hubard, III, for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Joan D. Hauger (wife) appeals from a decree of the Circuit Court of the City of Norfolk (trial court) that, pursuant to the provisions of Code Sec. 20-91(9), dissolved the bonds of matrimony between wife and Curran P. Hauger (husband) and made support and equitable distribution awards. Wife contends that the decree erroneously limited her right to receive spousal support from husband to one year; wrongfully awarded husband $15,000 from the sale of the marital home; incorrectly limited her interest in husband's pension to twenty-five percent; and mistakenly declared the Cash Management (CMA) and Individual Retirement (IRA) accounts in husband's name only to be separate properties of husband.
On September 20, 1989, wife filed a suit for divorce from husband charging that he deserted her on August 12, 1989. When the suit matured, it was referred to a commissioner in chancery whose report the trial court declined to approve. Instead, the trial court entered a decree making the awards that are the basis for this appeal.
The parties married in Wayne, Pennsylvania on June 17, 1979. There were no children born of the marriage. Wife is thirty-eight years old and in good health. She holds a B.A. degree in Archeology and is currently enrolled in a Masters program at The College of William and Mary. Since 1987, wife has worked eighteen to twenty hours per week for the Chrysler Museum, earning $4.70 per hour. On average, wife earned $4,224 and husband earned $45,000, annually. In January 1990, husband agreed to pay wife sufficient temporary support to enable wife to obtain a Masters degree. Wife's course work toward that degree was completed in 1991. However, at the time of the hearing, wife had completed only one-third of her thesis research.
Husband's future retirement benefits which accrued during the marriage were found to be $8,148 annually. The trial court made an award to wife equal to twenty-five percent of the pension payments when received.
Approximately three months after the parties married, using $15,000 of separate monies he had inherited prior to their marriage, husband purchased a house that became their marital home. At the time of purchase, the house was titled in the names of husband's mother and step-father. Two years later, the house was conveyed to husband and wife. Based upon the equity in the residence and the contributions of the parties, the trial court ordered that the $15,000 down payment be restored to husband.
When the parties married neither was employed and husband used an additional $8,000 of his inherited money to support themselves.
Husband converted his pre-marital inheritance into a CMA account with Merrill-Lynch, and some of the funds were then transferred into an IRA account. These accounts were separately maintained during the marriage and are traceable to husband's separate funds. The funds changed in character during the marriage, and income from their sale or conversion was reported on the parties' joint income tax returns. The trial court declared the accounts to be husband's separate property.
A.
The $15,000 husband used to purchase the marital home was clearly separate property acquired by inheritance prior to the parties' marriage. Where separate property is used for a down payment on property that becomes marital property, the trial court does not abuse its discretion to make an award that restores the down payment to the contributing spouse. See Pommerenke v. Pommerenke, 7 Va. App. 241, 249, 372 S.E.2d 630, 634 (1988). There is evidence in the record that supports the trial court's decision that $15,000 of the proceeds from the sale of the marital home should be paid to husband and that the remaining equity be divided equally.
B.
The term "equitable distribution" does not mean "equal distribution." Marion v. Marion, 11 Va. App. 659, 663, 401 S.E.2d 432, 435 (1991). An award of a percentage of the pension that equitably compensates the spouse for his or her contribution made during the marriage as the pension benefits are being accumulated will not be disturbed on appeal. The record discloses evidence that supports the trial court's award.
C.
The record clearly discloses that the funds in the CMA and IRA accounts were part of an inheritance received by husband prior to his marriage to wife and those funds were not commingled with any of the marital property. We reject wife's contention that the accounts were transmuted when the parties filed joint income tax returns declaring the income husband received from these accounts. The evidence supports the trial court's determination that the accounts were husband's separate property.
Fashioning an equitable distribution award lies within the sound discretion of the trial court and its award will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). We find no error in the equitable distribution awards.
D.
In setting spousal support, a trial court has broad discretion and its finding should not be reversed 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). Wife contends that the evidence does not support the trial court's finding that after one year she would be able to support herself in the manner to which the parties had become accustomed during the marriage. She asserts that because the trial court has continuing jurisdiction under Code Sec. 20-109 to alter the support as the then current circumstances would justify, the trial court wrongfully ruled that all spousal support would end after twelve months. Husband asserts that wife already has the education and ability to earn more than $4.70 per hour at a twenty-hour per week job and should be able to support herself after the Masters degree is obtained, which should be accomplished within twelve months from the date of the decree.
The only reason given by the trial judge to support his decision to order that all right to spousal support should cease after twelve months was stated in a letter opinion in which he said:
In reviewing the pertinent Code sections and the applicable law, I find that Plaintiff [wife] has been well-educated and young enough to start her career and is now ready to go to work. I think that any spousal support should be limited and therefore, I will limit the previously Ordered $900 a month to twelve months.
Neither the "pertinent Code sections" nor "the applicable law" is referenced.
In Blank v. Blank, 10 Va. App. 1, 389 S.E.2d 723 (1990), we reversed a trial court's judgment that made a lump sum award and declined to reserve the right, in the event of a change of circumstances, to petition for further support pursuant to Code Sec. 20-109. In Blank, we said:
[W]here there is no bar to the right of spousal support 'it is reversible error for the trial court, upon request of either party, to fail to make a reservation in the decree of the right to receive spousal support in the event of a change of circumstances.'
Blank, 10 Va. App. at 4, 389 S.E.2d at 724 (quoting Bacon v. Bacon, 3 Va. App. 484, 351 S.E.2d 37 (1986)). In Thomas v. Thomas, 217 Va. 502, 505, 229 S.E.2d 887, 889-90 (1976), the Court said:
Allowance of periodic payments for support and maintenance is made upon the basis of the circumstances disclosed by the evidence at the time of the award. The General Assembly has provided continuing jurisdiction for the court, where changed circumstances are demonstrated, to increase, decrease or terminate such an award of periodic payments for support and maintenance upon the petition of either spouse. Code Sec. 20-109.
There may be an expectation that upon being awarded a Masters degree wife may obtain employment that will entitle husband to seek relief pursuant to the provisions of Code Sec. 20-109. However, because this record does not assure that wife will be so fortunate, the trial court erred when it ordered wife's right to spousal support would cease upon the expiration of twelve months from the date of the decree.
Accordingly, the equitable distribution awards are affirmed and that portion of the spousal support award declaring that after twelve months all right to spousal support shall cease is reversed, and this case is remanded to the trial court for reconsideration of a spousal support award consistent with this opinion.
Affirmed in part, reversed in part, and remanded.