Opinion
Record No. 1543-94-4
Decided: April 11, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Thomas A. Fortkort, Judge
James Ray Cottrell (David H. Fletcher; Gannon, Cottrell Ward, P.C., on briefs), for appellant.
William E. Findler for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Nancy Wheatley Longmyer (wife) appeals several trial court rulings on equitable distribution and support, including proof of the date of separation, division of a marital pension, spousal support, and a lump sum award to John Kenneth Longmyer (husband). Husband argues that the trial court erred in determining the date of separation, wife's share of the marital pension, and the lump sum award. We only address the merits of the monetary award issue because the other issues are barred by Rule 5A:18. Finding no error, we affirm the judgment of the trial court.
DATE OF SEPARATION
Both wife and husband argue that the trial court erred in: (1) adopting the date of separation determined by the commissioner in chancery (commissioner), and (2) calculating wife's share of husband's pension based on an incorrect date of separation.
In the hearing before the commissioner on March 23, 1994, wife argued that the parties separated in the summer of 1990 when husband moved out of the marital home and later submitted that the separation date was in 1993 when she was served notice of husband's intent to file for divorce. Husband asserted a separation date of March 1982, when he accepted a post as a Foreign Service officer in Sweden and wife remained in the United States. The commissioner found that the parties separated with the intent to end the marriage in January 1986 when, after husband's return, the parties purchased a separate house as husband's residence.
Both parties filed written exceptions to the commissioner's finding of a 1986 separation date. In a June 6, 1994 order, the trial court affirmed the commissioner's findings, and both parties signed the order "Seen and Agreed." The parties presented no further evidence or argument on this issue. Additionally, during final argument at the equitable distribution hearing, wife's attorney stated that the uncertainty over the separation date was "resolved by the legal finding in this case," and husband's attorney acknowledged that the parties "were separated by this Court's ruling sometime between the fall of 1985 and January 1986, period." Although motions to reconsider the final decree were filed, neither party raised the separation date issue.
"No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . ." Rule 5A:18. See also Lee v. Lee, 12 Va. App. 512, 515-16, 404 S.E.2d 736, 737-38 (1991). Both parties waived any objections to the 1986 date of separation established by the commissioner and confirmed by the trial court and its use in calculating wife's marital share of husband's pension. The parties signed as "Seen and Agreed" the trial court's order affirming the commissioner's finding of the separation date. Additionally, both parties failed to raise any objections to the separation date at the equitable distribution hearing and conceded a January 1986 date of separation in their arguments concerning the pension's valuation.
SPOUSAL SUPPORT
Wife argues that the trial court erred in giving her a reservation of spousal support instead of awarding her immediate support.
This issue is also barred by Rule 5A:18. Wife failed to note an objection to the reservation of support on the final decree or to raise the issue in her motion to reconsider. Additionally, wife waived the issue during the trial when discussing whether support was requested by wife or only a reservation. Her attorney stated: "[M]y recollection of what the testimony was is different, but the reservation of the right will be fine. We can come back and take that up in the future as necessary." (Emphasis added).
LUMP SUM MONETARY AWARD
Wife next argues that the trial court erred in giving husband a lump sum monetary award that credited husband for mortgage payments on jointly-owned marital property and that failed to account for rents received by husband. Husband contends that the trial court abused its discretion in failing to award him a larger amount, considering his greater monetary and nonmonetary contributions to the marriage. We hold that no abuse of discretion occurred.
The parties owned a marital residence and purchased a second residence for husband in January 1986 when they separated. Both houses were owned by the parties as tenants by the entirety. Husband made all mortgage payments on both houses and also made significant nonmonetary contributions to the maintenance of each house. Although husband received sporadic rents on the second house, he used the rents for expenses associated with the house.
At the equitable distribution hearing, the trial judge ordered wife to pay husband a lump sum monetary award of $31,000 and agreed to credit husband for any principal reduction that occurred as a result of his mortgage payments on the two properties. Husband submitted that the total principal reduction on the properties was $59,365.92. The final lump sum monetary award was $63,824, accounting for half of the principal reduction and the original $31,000 award.
In making an equitable distribution award, "the court distributes the property to the parties, taking into consideration the factors presented in Code Sec. 20-107.3(E)." Gottlieb v. Gottlieb, 19 Va. App. 77, 93, 448 S.E.2d 666, 676 (1994). The "division or transfer of jointly owned marital property and the amount of any monetary award, subject to the enumerated statutory factors, is within the sound discretion of the trial court." Dietz v. Dietz, 17 Va. App. 203, 216, 436 S.E.2d 463, 471 (1993).
Both parties' arguments are without merit. The trial judge thoroughly considered the factors in Code Sec. 20-107.3(E) in dividing the marital property and in requiring wife to pay husband a lump sum monetary award that accounted for only half of the principal reduction on both houses. Wife relies on Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992), in arguing that she is entitled to an accounting of the rental value. Gaynor involved an accounting in equity pursuant to Code Sec. 8.01-31, after the parties' property was converted from ownership as tenants by the entirety to ownership as tenants in common. Id. at 381, 424 S.E.2d at 242. We decline to extend Gaynor to require an accounting of rental value pre-divorce when the parties own the property as tenants by the entirety. See Dietz, 17 Va. App. at 216-17, 436 S.E.2d at 471 (declining to address the applicability of Gaynor to rents collected before divorce).
DIVISION OF PENSION
Husband argues that the trial court erred in awarding wife more than a twenty percent interest in his pension. "[I]n reviewing an equitable distribution award, we rely heavily on the trial judge's discretion in weighing the particular circumstances of each case." Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 837 (1988). Husband's argument is without merit. The trial judge thoroughly considered the factors in Code Sec. 20-107.3(E) in deciding to award wife a twenty-seven-and-one-half percent interest in the pension and reduced wife's share based on her refusal to go with her husband to Sweden.
Accordingly, the decision of the trial court is affirmed.
Affirmed.