Opinion
Record No. 1896-93-3 Record No. 1907-93-3
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY, Charles H. Smith, Jr., Judge
Lawrence L. Moise, III (Robert Austin Vinyard; Vinyard and Moise, on brief), for Brenda Rose.
R. Wayne Austin (Johnson, Scyphers Austin, on briefs), for Ronald L. Rose.
Present: Judges Koontz, Elder and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Brenda Rose (wife) was awarded a divorce from Ronald L. Rose (husband) based upon desertion. The decree also ordered that (1) husband pay $100 per month spousal support, (2) the "marital home" be sold, with the net proceeds divided 60%/40% between husband and wife, respectively, and (3) husband be "allocated" 100% of his pension benefit. Both parties appeal the spousal support award, and wife challenges the distribution of the home and pension.
The parties are fully conversant with the record in this case, and a recitation of the facts is unnecessary to this memorandum opinion.
Under well established principles, we must " 'view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below.' " Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (citation omitted). Although a decree based upon depositions is " 'not as strong and conclusive as one based on evidence heard ore tenus, [it, also, is] presumed to be correct. . . .[and] will not be reversed if. . . . reasonably supported by substantial, competent, and credible evidence.' " Martin v. Martin, 202 Va. 769, 773, 120 S.E.2d 471, 474 (1961) (quoting Canavos v. Canavos, 200 Va. 861, 866, 108 S.E.2d 359, 363 (1959)); see also Williams v. Williams, 14 Va. App. 217, 219, 415 S.E.2d 252, 253 (1992). "[T]he burden is on him who seeks to overturn it to show that it is manifestly wrong." Canavos, 200 Va. at 866, 108 S.E.2d at 363.
Spousal Support
"[W]hether a spouse is entitled to support, and if so how much, is a matter within the discretion of the court . . . ." Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). Having decided that spousal support is appropriate, the court must base the award " 'upon due consideration of the factors enumerated in Code Sec. 20-107.1, as shown by the evidence, [and it] "will not be disturbed except for a clear abuse of discretion." ' " Poliquin v. Poliquin, 12 Va. App. 676, 679, 406 S.E.2d 401, 403 (1991) (citations omitted); see Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992). However, it is not necessary for the chancellor to recite specific findings with respect to the numerous factors in support of the determination. Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
Here, in a thorough opinion letter to counsel, the trial judge explained his rationale for awarding wife spousal support and settling upon the amount, all within the context of the evidence and the relevant statutory factors. Moreover, the decree expressly confirmed that the decision resulted from "consideration of the [statutory] factors," and this recitation is supported by the record. Thus, the findings and conclusions of the trial court and attendant award were clearly fashioned in accordance with Code Sec. 20-107.1 and the evidence.
Equitable Distribution
Like spousal support, our review of an equitable distribution order pursuant to Code Sec. 20-107.3 requires deference to the chancellor's resolution of the conflicting equities, and the decision will be disturbed only if it fails to comport with the statutory scheme, is without support in the evidence, or reflects an abuse of discretion. Banagan v. Banagan, ___ Va. App. ___, ___, 437 S.E.2d 229, 231-32 (1993) (citations omitted). Code Sec. 20-107.3 requires the court to ground relief under the statute upon consideration of certain specific factors, Code Sec. 20-107.3(E), but the court need not assign a weight to each or consider them equally. Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436 (1991). There is no presumption favoring an equal distribution between the parties. Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986).
" 'Retirement and pension plans, by their nature and diversity, present unique problems' in a 'division of marital wealth,' and the 'task of the trial court in making an equitable distribution' of such benefits is 'not an easy one.' " Banagan, ___ Va. App. at ___, 437 S.E.2d at 231 (citations omitted). "Nevertheless, when pension benefits comprise a 'portion of the pool of marital assets,' they are clearly contemplated by the 'scheme' of Code Sec. 20-107.3," and "Code Sec. 20-107.3(G) authorizes the trial court, '[i]n addition to the monetary award made pursuant to subsection D' of the statute, to 'direct payment of a percentage of the marital share of any pension . . . or retirement benefits, . . .' also based 'upon consideration of the factors set forth in subsection E of the statute.' " Id. (citation omitted).
In the instant case, the evidence and related written findings, conclusions and decree of the trial court all clearly reflect appropriate consideration of the relevant statutory factors. The court's decision to distribute disproportionately the marital interest in the home and assign to husband the entire martial share of his pension is consistent with a proper application of the relevant statutory factors to the instant facts and circumstances and will not be disturbed on appeal.
Accordingly, we affirm the decision of the trial court.
Affirmed.