Fulltext Opinions
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
DEBRA ANN BRUGGER
v. Record No. 2446-95-4 MEMORANDUM OPINION* BY
CHIEF JUDGE NORMAN K. MOON
ROGER L. BRUGGER JUNE 4, 1996
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Paula Winchester Rank (Lawrence H. Bowen;
Byrd, Mische, Bevis, Bowen, Joseph &
O’Connor, P.C., on briefs), for appellant.
Benton S. Duffett, III (Grenadier, Davis &
Simpson, P.C., on brief), for appellee.
Roger L. Brugger and Debra Ann Brugger appeal from the final
decree of divorce entered on October 18, 1995. Mr. Brugger
appeals from the trial court’s decision permitting Mrs. Brugger
to amend her complaint in order to request equitable
distribution. Mrs. Brugger appeals from the court’s distribution
of marital assets, and from the court’s failure to award
attorney’s fees. We affirm the trial court’s decision permitting
Mrs. Brugger to amend her complaint, reverse the trial court’s
distribution of marital assets, and affirm the trial court’s
denial of attorney’s fees.
Roger and Debra Ann Brugger married on October 11, 1969 and
separated on August 9, 1992. At the time of trial, Mrs. Brugger
*Pursuant to Code ? 17-116.010 this opinion is not
designated for publication.
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was 45 years of age and Mr. Brugger was 47. The parties had one
child, born in 1972.
Mr. Brugger was on active duty in the United States Air
Force throughout the marriage. From the time of the marriage
through 1981, Mrs. Brugger took care of the household and raised
the parties’ child, performing occasional part-time work outside
the home. The parties moved nine times during the marriage, and
Mrs. Brugger was responsible for making the arrangements,
including one move overseas. Mr. Brugger’s career involved
extended duty away from the family on several occasions, leaving
Mrs. Brugger entirely responsible for the household.
Mrs. Brugger had left school in order to marry. In
approximately 1980 she began to attend night school for nursing
and obtained her R.N. degree in 1981. Immediately upon
graduating she moved to Germany with her husband, and volunteered
with the Red Cross until a nursing position became available.
From that time forward, at each duty station, she secured full-
time employment as a nurse, and often held down a part-time job
as well.
In the early years of the marriage, Mrs. Brugger
participated in activities expected of military wives, such as
membership in the NCO wives’ club. In the 1980’s, she became
less involved in these activities. Mrs. Brugger testified that
her husband had thanked her publicly for helping advance his
career, and proffered the testimony of a family friend to the
effect that Mrs. Brugger was an asset to Mr. Brugger’s career.
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Mr. Brugger testified that Mrs. Brugger had a “little” positive
effect on his career, and acknowledged that he may have thanked
her publicly.
The parties separated briefly in July 1983, while they were
living in Germany. Mrs. Brugger had a separation agreement
prepared and returned with the parties’ child to the United
States. The parties reconciled in August when Mr. Brugger
returned to the United States. Mrs. Brugger acknowledged that
she was unhappy in the marriage due to her husband’s travel,
including for frequent fishing trips, and alleged infidelity.
Mrs. Brugger left the marital residence in August 1992.
Mr. Brugger will take mandatory retirement from the Air
Force on April 1, 1998. His work in the Air Force has been in
the field of offset printing, for the past several years in a
supervisory capacity. Offset printing is rapidly being replaced
by other technologies, of which Mr. Brugger has minimal
knowledge. He testified that the jobs available in the offset
printing field would pay $18,000 to $24,000 per year. He earns
approximately $42,000 in the Air Force, and his housing in Air
Force quarters is free.
At the time of trial, Mrs. Brugger was earning $37,500 per
year. She earned $53,000 in 1994, but at the time of trial the
hours of the part-time job that produced the extra income had
been greatly reduced, and she was seeking additional part-time
employment.
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WIFE’S AMENDMENT OF CROSS-BILL
TO ADD EQUITABLE DISTRIBUTION CLAIM
On March 25, 1994, Mr. Brugger filed a bill of complaint for
divorce, requesting spousal support, equitable distribution, and
attorney’s fees. In her cross-bill, Mrs. Brugger did not request
equitable distribution, stating instead that there were “support
and property issues that need to be resolved, however, the
parties expect to enter into a Property Settlement Agreement
resolving all issues arising between the parties . . . .” The
prayer for relief requested that any PSA be incorporated, but not
merged, into the final decree.
Mr. Brugger presented evidence on grounds for divorce to a
commissioner in chancery, who recommended that he be granted a
divorce on the grounds of having lived separate and apart for
more than one year. The parties were unable to reach agreement
on the property issues, and final hearing was set for February 2,
1995. The parties expected to present evidence pertaining to
equitable distribution at that hearing. On the day before trial,
Mr. Brugger filed a praecipe withdrawing the request for
equitable distribution from his complaint and striking it from
the notice of hearing.
At the hearing on February 2, 1995, Mr. Brugger requested
that the final decree be entered without consideration of
equitable distribution. Mrs. Brugger objected, and moved to
amend her cross-bill to request equitable distribution. The
court entered the final decree, and Mrs. Brugger filed a motion
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for reconsideration. The court then vacated the final decree and
granted leave to Mrs. Brugger to file an amended cross-bill
requesting equitable distribution. The court also granted leave
to Mr. Brugger to reinstate his own request for equitable
distribution.
Code ? 20-107.3 provides that the court shall, “upon the
request of either party,” undertake the process of equitable
distribution. Such requests are generally made in the prayer for
relief of either the bill, cross-bill, or answer. Gologanoff v.
Gologanoff, 6 Va. App. 340, 347, 369 S.E.2d 446, 449-50 (1988).
Here, the trial court correctly determined that Mrs. Brugger’s
reference in the cross-bill to “property issues that need to be
resolved” did not constitute a request for equitable distribution
under Gologanoff. Having so ruled, the trial court had ample
discretion to vacate the decree and permit amendment of the
cross-bill.
Mrs. Brugger’s request for reconsideration was filed within
twenty-one days after entry of the decree, and the court
therefore had jurisdiction to vacate the decree. Rule 1:1. The
right to file an amended pleading rests in the sound discretion
of the trial judge, and shall be liberally granted in furtherance
of the ends of justice. Rule 1:8; Alphin v. Alphin, 15 Va. App.
395, 400, 424 S.E.2d 572, 575 (1992); Rosenberg v. Rosenberg, 210
Va. 44, 48-49, 168 S.E.2d 251, 254 (1969). Here, where the
parties had prepared for trial on equitable distribution and Mr.
Brugger withdrew his request for that relief at the eleventh
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hour, the trial court did not abuse its discretion to permit an
amended cross-bill.
EQUITABLE DISTRIBUTION
The primary assets for the trial court to consider were Mr.
Brugger’s military pension and survivor’s benefits and a $22,000
mutual fund accumulated through deductions from Mr. Brugger’s
paycheck. Also, the parties borrowed $5,000 from a small trust
fund belonging to Mrs. Brugger. The trial court awarded Mrs.
Brugger fifteen percent of the marital share of military
retirement benefits and fifteen percent of the mutual fund. The
court also made a $5,000 lump sum distribution to Mrs. Brugger,
apparently to account for the debt Mr. Brugger owed to her trust
fund.
In making equitable distribution, the trial court must
consider all of the factors set forth in Code ? 20-107.3(E).
Failure to do so is reversible error. Alphin v. Alphin, 15 Va.
App. 395, 405, 424 S.E.2d 572, 577 (1992). This Court must be
able to determine from the record that the trial court has given
substantive consideration to the evidence as it relates to Code
? 20-107.3. See Donnell v. Donnell, 20 Va. App. 37, 42, 455
S.E.2d 256, 258 (1995); Trivett v. Trivett, 7 Va. App. 148, 153,
371 S.E.2d 560, 563 (1988). If its findings are not supported by
the evidence in the record, the court has abused its discretion,
and the findings must be reversed. Trivett, 7 Va. App. at 154,
371 S.E.2d at 563.
The court’s consideration of the statutory factors “entails
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more than a mere recitation in the record or decree that all the
statutory factors have been considered or reviewed.” Alphin, 15
Va. App. at 405, 424 S.E.2d at 578. The trial court’s failure to
articulate any reason for its decision hinders appellate review
and suggests that the award was not based on the required
factors. Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812,
815 (1987). Where the trial court failed to make specific
findings or explain its decision, we must examine the record to
determine whether there is credible evidence to support the
award. Trivett, 7 Va. App. at 154, 371 S.E.2d at 563.
Here, in a brief ruling from the bench, the trial judge
recited the statutory factors and stated that to the extent
evidence was presented on each factor, he considered it. He then
made the rulings set forth above. The court made no factual
findings and offered no explanation for his decision.
Accordingly, we examine the record to determine whether the trial
court abused its discretion in distributing the marital assets.
We hold that the record shows it was an abuse of discretion
to award less than twenty-five percent of the marital portion of
the pension to Mrs. Brugger. At trial, Mr. Brugger testified as
follows:
Q. And in terms of the Court’s division of
that asset, in terms of the percentage
of the marital portion of your
retirement, what percentage are you
asking the Court to award to your wife,
as being fair based upon what you
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believe her contribution was to the
marriage?
A. Twenty-five percent.
In light of this testimony and the other evidence in the record,
the trial court had no basis to award only fifteen percent of the
pension to Mrs. Brugger.
Mrs. Brugger argues that the trial court erred in
failing to determine the marital share of the pension before
making the distribution. We agree. The marital share is
determined according to a formula set forth in Code
? 20-107.3(G)(1). The trial court should determine the marital
share of the pension before it makes a marital award, either from
the pension or from the remainder of the marital estate. See
Banagan v. Banagan, 17 Va. App. 321, 326, 437 S.E.2d 229, 232
(1993). We remand the case to the trial court in order for the
trial court to make this determination.
ATTORNEY’S FEES
The award of attorney’s fees in a divorce case is a matter
committed to the sound discretion of the trial court. Alphin, 15
Va. App. 406, 424 S.E.2d at 578. The trial court did not abuse
its discretion in failing to award attorney’s fees to Mrs.
Brugger.
Affirmed in part, reversed in
part, and remanded.
