ROBERTSON v. ROBERTSON

(unpublished)

SEPTEMBER 16, 1997
Record No. 3046-96-2

DABNEY C. ROBERTSON (LANG)

JAMES L. ROBERTSON

MEMORANDUM OPINION[1] BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF HANOVER COUNTY

Richard H. C. Taylor, Judge
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia

C. Thomas Mustian (Mustian & Parker, on brief), for
appellant.

No brief or argument for appellee.

Dabney C. Robertson (Lang) (wife) appeals the trial court’s
award of equitable distribution in her divorce from James L.
Robertson (husband). She contends that the trial court erred when
it calculated the amount of the credit awarded to husband from
the proceeds of the sale of the marital home. She also contends
that the trial court’s decision to award the parties "their
respective retirement accounts" is "confusing."
For the reasons that follow, we affirm.

CALCULATION OF HUSBAND’S MORTGAGE CREDIT

Wife contends that the trial court erred when it calculated
the amount of the credit it awarded to husband for paying wife’s
share of the parties’ mortgage since their separation (mortgage
credit). She argues that the trial court’s conclusion that
husband’s mortgage credit from September, 1993 through July, 1996
was $6,701 was erroneous because the trial court failed to give
sufficient credit to her for paying husband’s share of child
support during this time period. We disagree.

The trial court’s award of a mortgage credit to husband was
akin to a monetary award. Thus, we review the trial court’s
calculation of husband’s mortgage credit according the legal
principles applicable to such awards.

Code ? 20-107.3,
which governs awards of equitable distribution, "is intended
to recognize a marriage as a partnership and to provide a means
to divide equitably the wealth accumulated during and by that
partnership based on the monetary and non-monetary contributions
of each spouse." Williams v. Williams, 4 Va. App. 19,
24, 354 S.E.2d 64, 66 (1987). "Where an equitable
distribution is appropriate, then all of the provisions of
Code ? 20-107.3 must
be followed." Artis v. Artis, 4 Va. App. 132, 136,
354 S.E.2d 812, 814 (1987). The court must determine "the
legal title as between the parties," and "the ownership
and value" of all of the parties’ property and then classify
this property as "marital," "separate," or
"part separate and part marital." Code ? 20-107.3(A). After this is
done, the court may (1) order the division or transfer, or both,
of jointly owned marital property, (2) apportion and order the
payment of marital debts, or (3) grant a monetary award to either
party. See Code ? 20-107.3(C),
(D). The court must determine the amount of its award of any of
these remedies "upon the factors listed in [Code ? 20-107.3(E)]." Code ? 20-107.3(C), (D). Subject
to these enumerated statutory factors, "[t]his division or
transfer of jointly owned marital property [, the apportionment
of marital debts], and the amount of any monetary award,
. . . is within the sound discretion of the trial
court." Dietz v. Dietz, 17 Va. App. 203, 216, 436
S.E.2d 463, 471 (1993).

On appeal, the trial court’s award of equitable distribution
will not be reversed "unless it appears from the record that
the chancellor has abused his discretion, that he has not
considered or has misapplied one of the statutory mandates, or
that the evidence fails to support the findings of fact
underlying his resolution of the conflict in the equities." Robinette
v. Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 633
(1990) (citations omitted).

We hold that the trial court did not commit reversible error
when it calculated the amount of husband’s mortgage credit
according to the commissioner’s method. First, the trial court
correctly followed the mandates of Code ? 20-107.3, and all of its
factual findings are supported by evidence in the record. The
trial court incorporated the commissioner’s report into its final
order. In his report, the commissioner determined the ownership
and value of the marital home and classified it as marital
property. The commissioner also determined that the mortgage
obligation was incurred prior to the dissolution of the parties’
marriage. The commissioner then considered the evidence relevant
to each of the statutory factors of Code ? 20-107.3(E). Our review of
the commissioner’s findings indicates that they are supported by
credible evidence.

In addition, we cannot say that the method used by the
commissioner and adopted by the trial court to calculate the
amount of husband’s mortgage credit was an abuse of discretion.

Pursuant to Code ?
20-107.3(D), once the trial court decided to award husband a
monetary award in the form of a credit against the proceeds from
the sale of the marital home, it was required to base the amount
of this award "upon (i) the equities and the rights and
interests of each party in the marital property, and (ii) the
factors listed in [Code ?
20-107.3(E)]." In determining the amount of husband’s
mortgage credit, the commissioner considered all of the
enumerated factors of Code ?
20-107.3(E) including other factors that he deemed
"necessary . . . to consider in order to arrive at a fair
and equitable monetary award." The additional factors
considered by the commissioner included the fact that husband had
paid wife’s share of the monthly mortgage since the parties
separated and that husband had declined to financially support
the parties’ children since that time. Based on these
considerations, the commissioner developed a method of
calculating husband’s mortgage credit that accounted for his
nonpayment of child support. The result of the commissioner’s
method ultimately reduced husband’s mortgage credit from $14,456
to $6,701.[2]
Based on our review of the trial court’s analysis, we conclude
that it was within the proper exercise of its discretion when it
calculated husband’s mortgage credit by applying the
commissioner’s method to account for husband’s nonpayment of
child support.
We disagree with wife that Code ? 20-107.3 compelled the
trial court to calculate husband’s mortgage credit in the manner
prescribed in her brief. Code ?
20-107.3(D) does not mandate that a trial court use specific
formulas to calculate monetary awards in specific factual
situations. Instead, the determination of the amount of a
monetary award in a given case is within the discretion of the
trial court subject to its consideration of the factors of Code ? 20-107.3(E). See Dietz,
17 Va. App. at 216, 436 S.E.2d at 471. Wife’s method of
calculating husband’s mortgage credit is merely one of many
methods that was available to the trial court when it exercised
its discretion to grant husband such a credit.
II.
THE PARTIES’ RETIREMENT ACCOUNTS
Wife also contends that the trial court’s award regarding the
parties’ retirement accounts was "confusing." Wife
concedes that the trial court’s award of the retirement accounts
was not an abuse of discretion. Instead, she asks us to remand
the trial court’s award regarding the retirement accounts
"to properly address which . . . pension plans" were
included in the award. Because the trial court’s order indicates
that it intended to include both the parties’ individual
retirement accounts and husband’s employer-sponsored pension plan
in its award regarding the parties’ retirement accounts, we
disagree.
At the hearing before the commissioner, the parties offered
evidence regarding their individual retirement accounts and
husband’s employer-sponsored pension plan. The parties testified
that they each had an "individual retirement account"
that they established in their individual names during the
marriage. Regarding husband’s employer-sponsored pension plan,
the evidence proved that husband’s employer provided husband with
a pension plan and that husband’s vested benefit "under the
10 years certain and life annuity option" was currently $279
per month starting in 2010.
In his report, the commissioner stated that "the parties
stipulated . . . that each would keep their respective individual
retirement accounts." He made no mention of husband’s
employer?sponsored pension plan. Wife objected to the omission
of the pension plan from the commissioner’s recommended award of
equitable distribution. In its final order, the trial court
ordered "that the parties keep their respective retirement
accounts." We conclude that the trial court’s deletion of
the word "individual" from the language used by the
commissioner indicates its clear intention to include husband’s
employer?sponsored pension plan in its award of equitable
distribution and to award the full amount of the plan to husband.
For the foregoing reasons, we affirm the trial court’s award of
equitable distribution.
Affirmed.

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

[2]
$14,456 is wife’s share of the total mortgage payments made by
husband from September, 1993 through July, 1996 [(35,100 x .32) +
(10,400 x .31)]. The mortgage credit actually awarded to husband
for this time period under the commissioner’s method was $6,701.

FOOTNOTES: