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AUGUST 29, 2000
Record No. 2756-99-3
Argued at Richmond, Virginia
ELECTRA MOORE McGAY
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
MEMORANDUM OPINION BY JUDGE
RUDOLPH BUMGARDNER, III
Kenneth L. Crosson for appellant.
Randall T. Perdue (P. Donald Moses; Timberlake,
Smith, Thomas & Moses, P.C., on brief), for appellee.
Present: Judges Benton, Bumgardner and Frank
Electra Moore McGay appeals from an equitable
distribution award and raises eight questions. She contends the
trial court erred (1) in ruling the parties lived separate and
apart since 1985; (2) in determining the date of separation
without reference to whether either party intended to live
separate and apart; (3) in finding that money spent after 1985 on
joint obligations was the sole income of the husband; (4) in
crediting the husband with separate income when the income came
from the sale of marital assets; (5) in awarding the husband a
share of marital property based upon the conclusion that the
husband used his separate income to pay for marital obligations;
(6) in awarding the husband 60% of the marital property based
upon the conclusion that the husband used his separate income to
pay for marital obligations; (7) in awarding the wife only 35% of
the husband’s military and civil service pensions based upon the
conclusion that she did not demonstrate financial need; and (8)
in awarding the husband both habitable real properties and
awarding the wife an uninhabitable property. The majority of the
separately stated questions, Questions (1)-(6), arise from a
single contention: the trial court erred by basing its equitable
distribution rulings on the finding that the marital partnership
ended in 1985. We conclude the trial court properly used 1985 as
the date of separation in its deliberations and did not err on
the remaining assignments of error. Accordingly, we affirm.
The divorce proceedings began May 28, 1996 when
the wife filed for divorce on the grounds of desertion. The trial
court granted the divorce February 19, 1997 on the grounds the
parties had lived separate and apart since April 1985. The trial
court did not decree equitable distribution in the final decree
of divorce but reserved jurisdiction over that issue for future
decision. Several months later, the trial court referred all
equitable distribution issues to a commissioner in chancery. The
commissioner heard extensive evidence the next summer and made
his report November 9, 1998. The report concluded with the
recommendation that 60% of the marital property and 65% of the
husband’s pensions be allocated to him. It proposed two
alternative methods for allocating the illiquid estate. The wife
filed timely exceptions to the commissioner’s report. After
hearing the exceptions, the trial court approved the
commissioner’s report, allocated the real estate according to the
second of two alternative plans for distribution, and entered the
final order of distribution November 1, 1999.
The wife took depositions on the issue of fault
December 16, 1996, and they became the sole evidence upon which
the divorce was decreed. Both parties and two of their adult
children testified about the marital history and its breakup. The
evidence established that the parties married November 16, 1943
and had three children. The husband worked for, and eventually
retired from, the civil service while the wife worked
intermittently. Throughout the marriage the parties lived apart
for substantial periods of time. The wife began to reside in
Augusta County, Virginia in 1978, though the husband lived and
worked in Georgia. The husband retired to Augusta County in April
1985, but the two never lived together. They resided on separate
farms about seven miles apart in a rural, remote part of the
county. No divorce action was initiated until May 1996 when the
wife brought the divorce action. When the divorce was decreed,
the parties had been married for 54 years. The wife was 81 years
old and in very poor health. The husband was 83 years old, in
reasonably good health, but actively farming their properties and
managing their finances.
From the evidence presented by deposition, the
trial court found that the parties last cohabited in Georgia, and
lived separate and apart from April 1985 without cohabitation or
interruption. The trial court recited the finding in the decree,
granted the divorce on that basis, and entered the decree
February 19, 1997. The decree of divorce was a consent order,
requested by both parties, to which neither party took exception.
The divorce decree and its finding became a
final adjudication of the issue between the parties just as it
would have become final if equitable distribution had never been
raised and not reserved for future consideration in the decree. See
Toomey v. Toomey, 251 Va. 168, 172, 465 S.E.2d 838, 840
(1996) (Code ? 20-107.3(A) permits the trial court either
to adjudicate equitable distribution when it decrees a divorce or
to retain jurisdiction to adjudicate equitable distribution
later, but if it does not retain jurisdiction, the trial court
has no jurisdiction once the decree of divorce becomes final).
The issue became final 21 days after entry of the order.
"Additionally, an order of the circuit court becomes final
21 days after its entry unless modified, vacated, or suspended by
the court during that time." The Berean Law Group v. Cox,
259 Va. 622, 626, 528 S.E.2d 108, 111 (2000) (citing Rule 1:1).
The trial court fixed April 1985 as the date of
the last separation in this marriage. The record shows the trial
court based the finding on the depositions taken by the wife and
filed by her in support of her proposed decree. As stated in Dietz
v. Dietz, 17 Va. App. 203, 209-10, 436 S.E.2d 463, 467
(1993), "the legislature recognized that a marriage will be
deemed to have ended for purposes of classifying property on the
date of the last separation, in the absence of proof to the
contrary." The finding became a final adjudication of that
issue of fact and bound the parties during the subsequent
equitable distribution proceedings.
The record is clear that the parties accepted
April 1985 as the date of separation throughout the
commissioner’s hearing. The wife made no objection to the use of
that date in her exceptions to the commissioner’s report. Rule
5A:18 requires that objections to a trial court’s action or
ruling be made with specificity in order to preserve an issue for
appeal. See Campbell v. Commonwealth, 12 Va. App.
476, 480, 405 S.E.2d 1, 2 (1991) (en banc).
Accordingly, Rule 5A:18 bars our consideration of this issue on
appeal, and that bars consideration of Questions (1)-(6).
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
The trial court referred the issues of
equitable distribution to a commissioner in chancery, who heard
the evidence June 10, 1998 and filed his report November 9, 1998.
The wife filed exceptions to the commissioner’s report on
November 19, 1998 and noted four objections: (1) the wife was
denied due process of law because she was incapable of assisting
in the presentation of her evidence; (2) the commissioner
calculated the wife’s share of the husband’s pensions based on
need; (3) the commissioner erred in using an evaluation date
other than the date of the evidentiary hearing in the absence of
a motion filed as required by Code ? 20-107.3(A); and (4) the
commissioner sua sponte selected an alternate
evaluation date. The wife filed no further exceptions, made no
request, nor received leave to file additional exceptions at a
later time. See Code
? 8.01-615. No exception raised the issues now posed on
appeal in Questions (3)-(6), and for that additional reason, Rule
5A:18 bars consideration of those questions.
The record reflects no merit or basis for
objections to the commissioner’s report (1), (3), and (4).
The remaining exception to the report
contends the commissioner erroneously calculated the wife’s share
of the husband’s pensions based on need. In reviewing
whether the trial court considered need improperly, we must
examine the factors in Code ? 20-107.3(E) that the
commissioner considered when distributing the marital property.
In his report the recommendation for allocating the pensions
proceeded from and built upon that analysis because the same
factors must be considered in both decisions. See Code
The commissioner’s report was a careful,
ordered, and complete recitation of the steps taken in weighing
the evidence and in deciding upon a fair and equitable
distribution of the marital estate accumulated during the long
marriage. The commissioner determined the legal title, ownership,
and value of the real and personal property. It identified the
marital and separate property. It presented a clear, concise, and
cogent review and analysis of the evidence that embraced each
factor in Code ? 20-107.3(E). In orderly sequence, the
report gave a complete presentation of the salient details of the
marriage and fully evaluated all factors specified in Code
? 20-107.3(E). It then summarized its more detailed
discussion of the factors:
Throughout the parties’ 41-year marriage, Mr.
McGay was virtually the sole monetary contributor to the
well-being of the family and the acquisition of the marital
property. He was the principal nonmonetary contributor in the
care and maintenance of such property. Based upon the testimony
of the parties and their witnesses at the divorce depositions and
the Commissioner’s hearing, the circumstances and factors which
contributed to the dissolution of the marriage tend to favor Mr.
McGay although the Court did not find that either party was at
fault and, as previously noted, Mrs. McGay was unable to be an
effective witness on her own behalf. With the exception of Mrs.
McGay’s extremely poor physical and mental condition, none of the
other factors set forth in Virginia Code ? 20-107.3 E weigh
to either party’s advantage. After considering all of these
factors, a larger share of the marital property should be awarded
to Mr. McGay because he is almost solely responsible for the
accumulation of the marital wealth. A substantial provision must
be made for Mrs. McGay, however, in view of the length of the
parties’ marriage and her state of health and dependent
condition. Accordingly, your Commissioner recommends that 40% of
the marital property, excluding Mr. McGay’s military and civil
service pensions, be awarded to Electra Moore McGay and the
remaining 60% to Culbert McGay.
The summary itself recites evidence covering
factors (1) through (5), which were the factors the commissioner
deemed more important in this case. Our review of the record
reveals evidence presented on each statutory factor. The evidence
supports the findings made by the commissioner, and the report
reflects the commissioner carefully weighing and balancing the
various factors before arriving at his conclusion of law.
All decisions made in distributing the marital
property were an exercise of sound discretion. There is no
presumption favoring an equal division of marital property. See
Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829,
831 (1986). We recognize that "the trial court’s job [in
reviewing an equitable distribution award] is a difficult one,
and we rely heavily on the discretion of the trial judge in
weighing the many considerations and circumstances that are
presented in each case." Klein v. Klein, 11 Va. App.
155, 161, 396 S.E.2d 866, 870 (1990). The trial court’s decision
will not be reversed on appeal unless plainly wrong or
unsupported by the evidence. See Rahbaran v. Rahbaran,
26 Va. App. 195, 205, 494 S.E.2d 135, 139 (1997). The record
suggests no abuse of discretion by the trial court.
After dividing the marital property, the
commissioner’s report next addressed distribution of the
husband’s pensions. The wife contends they saved the husband’s
pensions for their joint benefit and an unequal distribution
unfairly benefits him. She argues the commissioner impermissibly
based the award on need. The report stated:
Mr. McGay’s military and civil service pensions
have been the parties’ principal sources of support during their
retirement and separation. The entire amounts of both pensions
are consumed in paying the parties’ debts and living expenses.
Mr. McGay has been the sole monetary and nonmonetary contributor
to the accumulation, acquisition, and maintenance of his pensions
and he should be awarded a larger share of the pensions than his
share in the rest of the marital property. In addition, Mrs.
McGay has not demonstrated the need for more than 35% of the
monthly total of these pensions for her continued maintenance and
The report shows that the commissioner
considered the proper factors in deciding to make an award of the
pension. Having discussed the factors in Code ? 20-107.3(E) for
purposes of distributing marital property, the report moved to
considering how those factors weighed differently when
distributing the pensions. The commissioner gave additional
weight to the factor that the husband was "the sole monetary
and nonmonetary contributor to the accumulation, acquisition, and
maintenance of his pensions."
The commissioner did not require the wife to
prove her need. The comment about lack of need was an aside to
make clear that the recommendation would provide for her
adequately. It related to the earlier comment that the wife
required "substantial provisions" because of the length
of marriage and her failing health, and it related to the finding
that the pension income had been consumed to pay debts and living
expenses during the separation. The commissioner was assuring the
trial court that the proposed division of the pensions would
continue to provide the wife a means of support as it had during
the separation. It was not limiting her pension award on the
basis of need. When a trial court "divides the pension
unequally, its reasons for doing so must be done on the
record." Artis v. Artis, 10 Va. App. 356, 362, 392
S.E.2d 504, 508 (1990). Based on the record, we find no error in
the division of the husband’s pension.
Finally, we consider whether the trial court
erred in distributing the jointly owned real property. The wife
objected to the trial court’s selection of the commissioner’s
second option for allocating the parties’ marital real estate and
his rejection of her alternative proposal which was not reported
by the commissioner. She contends that real estate allocated to
her is uninhabitable and that it was unconscionable to evict her
from her residence due to her age and failing health.
The parties’ primary asset was real estate
consisting of three separate farms. While the only indebtedness
encumbered the farm titled in the husband’s name, the marital
estate was illiquid. The three properties were called Hadlow,
Riverjack, and Epidarus.
Hadlow consisted of two separate parcels
divided by Route 600, a state secondary road. The husband bought
both parcels in 1964. Hadlow I contained 121 acres and the
farmhouse in which the wife resided. Despite the husband’s
periodic repairs, the farmhouse remained in poor condition. The
balance contained cropland and pasture which the husband farmed.
Hadlow II contained 133 acres of timberland.
The husband resided with his disabled daughter
on the farm called Riverjack. It contained 100 acres on which the
husband raised cows. The farmhouse was in poor condition; it had
only two heated rooms. The farm was in the village of Deerfield
approximately seven miles from Hadlow. Riverjack was titled in
the husband’s name alone.
The third farm known as Epidarus was located in
Rockbridge County some distance from the other farms. It
contained 160 acres of which 53 were open and the remainder
cut-over timber. At the wife’s insistence, the husband purchased
it in 1971. The wife originally wanted to develop it as a land
restoration project, but nothing was done with the farm for many
years. It contained no electricity, plumbing, or water.
The commissioner’s report offered two
alternatives for allocating the real estate. The first
distributed Hadlow I (the residence) to the wife and distributed
Hadlow II, Riverjack, and Epidarus to the husband. The second
alternative distributed Epidarus to the wife and Hadlow I, Hadlow
II, and Riverjack to the husband. After hearing the exceptions to
the commissioner’s report and approving it, the trial court gave
the parties 21 days to select their preference of the two
recommended alternatives. The wife did not select one of the
alternatives but filed a new plan of distribution. She wanted all
of the Hadlow property, which required her to incur $48,589 of
debt. The trial court rejected her proposal and selected the
commissioner’s second alternative.
From 1966 when the wife broke a number of ribs,
she suffered from osteoporosis, which became progressively worse.
The wife had a severely compressed spine, moved with extreme
difficulty, and appeared to be in constant pain. She suffered
from hypertension, hypothyroidism, urinary tract infections, and
glaucoma. Her health was precarious, and she could not attend the
final hearing. She was recovering from a broken hip, living at
her grandson’s house, and not able to return to her own home
without continuous live-in care. Her memory and mental processes
were seriously impaired and serious enough that her attorney
suggested that a guardian ad litem was required.
Over the course of the litigation, the trial
court observed the wife’s physical condition and its
deterioration. The trial court expressed deep concern about her
ability to live at Hadlow, which it knew to be in a remote,
isolated area far removed from medical services. The trial court
considered her plan impracticable because it required the wife to
service $48,589 debt without the means to do so. The trial court
recognized that Epidarus had been a sound investment that the
wife could sell. The trial court expressed concern that, while
her attorney advised that the wife intended to return to Hadlow
with a full-time care provider, the attorney was not familiar
with the property or its isolation and had only talked with her
son, not with her.
It is clear that the trial court did not intend
for the wife to reside in the uninhabitable house at Epidarus but
found it unrealistic to expect that she could live at Hadlow. The
trial court reviewed the record, heard the arguments of counsel,
and concluded the wife’s proposal was not practicable for an
84-year-old woman in poor health. The trial court also felt the
commissioner’s plan permitted the husband to earn income by
continuing to farm both Riverjack and Hadlow. From the record, we
conclude the trial court properly exercised its discretion when
allocating the properties among the parties.
For the reasons stated, we affirm.
 Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.
 The wife concedes that she did not raise additional
objections and did not request or obtain an extension for filing
them. She maintains that she presented the additional issues to
the trial court in her "Reply Memorandum in Support of
Plaintiff’s Exceptions to the Report of Commissioner." She
filed the memorandum February 12, 1999 along with new exhibits
not presented at the commissioner’s evidentiary hearing. She
maintains the trial court ruled on the additional objections when
it stated at the beginning of the hearing on exceptions:
"And I reviewed everything the Commissioner said. I will
review everything that you-all bring out, and then I’ll go
through this record, every bit of it, to see whether it’s
supported or whether it isn’t."
A review of the arguments presented orally and
in the memoranda and briefs makes clear that the husband objected
to the wife’s expanding and recasting her objections beyond those
stated in her pleadings.
 The wife’s counsel asserted that the trial court erred
by not appointing a guardian ad litem and suggested
that she was not competent. Immediately on that representation,
the trial court inquired fully whether counsel felt his client
was not competent. Counsel assured the trial court she was
competent. When questioned during oral argument, counsel advised
this Court the wife was competent. Accordingly, there is no basis
to appoint a fiduciary to conduct her suit for her.
 In objections (3) and (4),
the wife asserted the commissioner chose an alternative valuation
date sua sponte without requiring a motion as
provided by Code ? 20-107.3(A). The record contains an
appropriate motion that the husband filed 21 days before the
commissioner’s hearing. The commissioner did not act sua sponte.
Additionally, the record reflects the commissioner applied an
alternative valuation date to only one parcel of real estate. He
gave precise reasons for that decision, and the evidence supports