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Stricken Husband Gets Larger Pension Share

A circuit court did not err in dividing the marital share of husband’s military pension 55-45 in husband’s favor, in light of appointment of a conservator for hus­band due to his incapacity from a brain aneurysm suffered shortly after divorce proceedings began, wife’s lack of support for husband’s military career and wife’s new job paying over $100,000 annually; the Court of Appeals affirms the trial court’s equitable distribution award.

Threshold question

The circuit court’s July 6, 2015, order clearly and expressly suspends the June 30, 2015 order. The issue then is whether the circuit court’s July 17, 2015 order de­nying the motion to reconsider reinstated the June 30, 2015 order as a final order. Al­though the July 17, 2015 order denying the motion to reconsider does not clearly and expressly lift the suspension, that order, when read in conjunction with the July 6, 2015 suspending order, is sufficient to re­instate the June 30, 2015 order as a final order.

Although the better practice would have been for the July 17, 2015 order to address the order of suspension explicitly or to in­clude the circuit court’s statement from the bench that the June 30 order remained in full force and effect, the provisions of the two orders, read together, are sufficient to make clear that the circuit court’s denial of the motion to reconsider had the effect of confirming the June 30, 2015 order as a final order. We have jurisdiction over the appeal.

Equitable distribution

The record is clear that the circuit court reviewed the factors specified in Va. Code § 20-107.3(E) in reaching its decisions re­garding equitable distribution. The circuit court expressly stated that it had consid­ered all 11 factors and then reviewed its thought process regarding each factor. Finally, it invited the parties to inquire if either had any questions regarding the relative weight the circuit court had given each factor.

Wife argues the trial court abused its discretion in not maintaining wife as ben­eficiary for husband’s Survivor Benefit Plan (SBP). It would not have been error for the circuit court to reserve the decision of whether to maintain wife as the SBP beneficiary to husband had he not been in­capacitated, it was not error for the court to do so with an understanding that the decision would be made by the conservator on husband’s behalf. The statutory pow­ers and duties of the conservator are such that there was no reason for the circuit court to assume that leaving the decision to husband/conservator was likely to work a hardship on the children. Ultimately, the circuit court appropriately conducted the equitable distribution analysis required by statute and reached a permissible con­clusion regarding the SBP. We affirm the circuit court judgment regarding wife’s continuing status as the beneficiary of hus­band’s SBP.

Nor did the circuit court err in leaving the decision of the designation of beneficia­ries on husband’s life insurance policies to the conservator, in light of husband’s med­ical condition. Although the circuit court had the authority to order that the children be made the beneficiaries of the life insur­ance policies for the length of the child sup­port obligation, wife never asked the court to enter such an order; she only requested that she be maintained as the beneficiary.

Military pension

Wife also asserts the circuit court erred in its division of husband’s military pen­sion, granting him 55 percent of the pen­sion and her 45 percent. The circuit court clearly considered all the statutory factors. Husband’s incapacitated state, in and of it­self, would have been more than sufficient to justify the circuit court awarding him 55 percent of the marital share of his pension. Coupled with other evidence before the court (wife’s interactions with husband’s superior officer, the fact that husband was unemployable, while wife was about to start a job paying over $100,000 a year, etc.), the court’s determination appears even more reasonable.

Evidence of wife’s inappropriate email exchanges with husband’s superior officer, her reports to authorities of alleged profes­sional misconduct by her husband (reports that ultimately were deemed unsubstanti­ated by those authorities), and the circum­stances surrounding husband’s decision not to accept promotion to Wing Command­er provided a sufficient basis for a reason­able fact finder to conclude that wife was less than supportive of husband’s career.

We affirm the equitable distribution award.

Wife also contends the trial court erred in not including language in a Qualified Domestic Relations Order to protect her 45-percent interest in the marital share of husband’s pension. Issues related to a di­vorcing service member’s potential election to receive disability benefits, which are not subject to equitable distribution in lieu of full pension payments, which are subject to equitable distribution, can be complex.

The circuit court had authority to in­clude language in the orders that provided for compensatory payments from husband if he effectively reduces her interest in the marital share of his pension by accepting disability benefits in lieu of pension pay­ments. However, nothing in Virginia law requires the circuit court to enter an or­der prophylactically to protect against an event, the conversion of retirement pay­ments to disability payments, which may or may not occur. The trial court did not abuse its discretion when it did not add such pro­tective language to its orders.

Judgment affirmed.

Pederson v. Pederson (Russell) No. 1178- 15-4, Aug. 2, 2016; Fairfax Cir.Ct. (Schell) Kimberley A. Murphy for appellant; Mel­anie Hubbard for appellee. VLW 016-7-190(UP), 25 pp.


VLW 016-7-190

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