Donna Ware Diehl v. William F. Diehl

• Court: Court of Appeals of Virginia
• Decided: November 12, 1996
• Docket: 0396964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Fitzpatrick and Annunziata Argued at Alexandria, Virginia

DONNA WARE DIEHL MEMORANDUM OPINION * BY v. Record No. 0396-96-4 JUDGE JERE M. H. WILLIS, JR. NOVEMBER 12, 1996 WILLIAM F. DIEHL

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Frank A. Hoss, Jr., Judge John E. Kilcarr (Kilcarr & Volzer, on brief), for appellant.

Timothy T. Szabo (Szabo, Zelnick & Erickson, P.C., on brief), for appellee.

On appeal from a final decree granting her a divorce from

William F. Diehl on ground of adultery, Donna Ware Diehl contends

that the trial court erred (1) in failing to award her a portion

of the pension payments received by Mr. Diehl between the date of

separation and the date of the divorce decree, (2) in failing to

award her a portion of Mr. Diehl's annual accrued leave pay, and

(3) in awarding her only $1,500 in attorney's fees. We find no

error and affirm the judgment of the trial court.

Mr. and Mrs. Diehl were married November 30, 1973. They

have three children, one of whom is emancipated. They separated

on April 24, 1994. On June 3, 1994, the trial court entered a

"temporary agreed order," endorsed by counsel for both parties,

providing, inter alia, that Mr. Diehl should "pay the mortgage * Pursuant to Code § 17-116.010 this opinion is not designated for publication. payment on the marital home . . . in the amount of $1,660.00 per

month . . . in lieu of child support . . . ."

As a result of military service, Mr. Diehl draws a pension

which provides disposable net pay of $2,267.28. The trial court

determined the marital share of the pension to be eighty-nine

percent. Mr. Diehl drew the pension for three months before the

parties' separation and has continued to draw it thereafter. In

addition, prior to the parties' separation, Mr. Diehl received a

lump sum payment of $4,529.88, representing accrued leave. The final decree recited the parties' agreement to sell the

marital home. It ordered them to pay equally the monthly

mortgage payment (PITI) pending sale, and it ordered that the net

proceeds of sale should be divided equally between them. The

decree recited that the trial court had considered all of the

factors set forth in Code § 20-107.3 and provided further that

Mr. Diehl should pay Mrs. Diehl a monetary award of $1,245.83,

that she was awarded 44.5 percent (one-half of the marital share)

of Mr. Diehl's "disposable retired pay," that Mr. Diehl should

pay to Mrs. Diehl $1,061 per month as child support, and that Mr.

Diehl should pay $1,500 against Mrs. Diehl's attorney's fees. I.

Mrs. Diehl first contends that the trial court erred in

refusing to award her a share of the pension income received by

Mr. Diehl between the time of their separation and the final

decree of divorce. She argues that this income, the entitlement

- 2 - to which accrued during the marriage, was a marital asset to be

divided.

"Fashioning an equitable distribution award lies within the

sound discretion of the trial judge and that award will not be

set aside unless it is plainly wrong or without evidence to

support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396

S.E.2d 675, 678 (1990). In determining the equitable

distribution of property, the trial court must first classify the

property as separate or marital, must then value the property,

and, finally, must determine the distribution of the property

upon consideration of the factors found in Code § 20-107.3(E). Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436

(1991). The most appropriate date for classification is the date

of the parties' last separation. Price v. Price, 4 Va. App. 224,

231, 355 S.E.2d 905, 909 (1987). The most suitable date for

valuation is generally the evidentiary hearing date or trial

date. Id. at 232, 355 S.E.2d at 910.

The marital share of Mr. Diehl's pension was a marital

asset. The portion received prior to the parties' separation did

not fall within the ambit of Code § 20-107.3. The portion

received between the parties' final separation and the date of

the final divorce decree was a marital asset, properly scheduled

as such. However, Mrs. Diehl's contention on appeal requires not

only that the retirement pay increment should have been scheduled

as a marital asset, but also the determination that some portion

- 3 - of that asset should have been distributed to her. We find no

error in the trial court's determination.

The initial agreed order required Mr. Diehl to service the

mortgage on the marital home for the benefit of both parties and

their dependent children. The trial court took into account this

application of Mr. Diehl's assets, along with the other factors

found in Code § 20-107.3(E), in determining the proportion of the

marital share of Mr. Diehl's retirement pay that should be

awarded to Mrs. Diehl and in determining her lump sum award. After hearing argument on a motion for reconsideration, the

trial court said: It's an asset of the two parties, but all of that was taken into consideration. . . . I could . . . make him pay her that money back, but in balancing all of the assets and the considerations that the statute requires, I thought that the way I did it was fair.

I'm not now going to go back, pick out one little item and say, well, maybe that could have gone another way. If I do that, I'd have to hold the whole trial again, because that would have an affect [sic] and somebody else would be here.

The record discloses unquestionably that the trial court

considered the increment of retirement pay received by Mr. Diehl

between the parties' separation and the final decree as a marital

asset and that it considered that asset in determining the total

equitable award. We find no abuse of discretion in that

determination.

- 4 - II.

Mrs. Diehl next contends that the trial court erred in

denying her a portion of Mr. Diehl's lump sum payment for annual

accrued leave. We find no error. This payment was received by

Mr. Diehl prior to the parties' separation. Mr. Diehl applied

the proceeds to marital purposes, including the acquisition of

tangible marital property which was included in the parties'

joint marital estate for distribution purposes. No waste was

proven. III.

Finally, Mrs. Diehl contends that the trial court erred in

awarding her only $1,500 in attorney's fees. She argues that the

need to prove Mr. Diehl's adultery justified a larger provision.

"An award of attorney's fees is a matter submitted to the

trial court's sound discretion and is reviewable on appeal only

for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,

333, 357 S.E.2d 554, 558 (1987). Noting that Mr. Diehl had

admitted his adultery, the trial court found that the

circumstances of the case did not warrant a higher award. We

perceive no abuse of discretion in this determination.

The judgment of the trial court is affirmed. Affirmed.

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