Robert Warren Gore v. Sylvia Swain Gore

• Court: Court of Appeals of Virginia
• Decided: May 20, 1997
• Docket: 2308963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

ROBERT WARREN GORE MEMORANDUM OPINION * v. Record No. 2308-96-3 PER CURIAM MAY 20, 1997 SYLVIA SWAIN GORE

FROM THE CIRCUIT COURT OF PATRICK COUNTY Charles M. Stone, Judge

(Richard D. Rogers, Jr., on brief), for appellant. (Philip G. Gardner; Gardner, Gardner, Barrow & Sharpe, on brief), for appellee.

Robert W. Gore (husband) appeals the final decree of divorce

and equitable distribution entered by the circuit court. Husband

contends that the trial court erred in (1) valuing the parties'

retirement benefits, (2) awarding attorney's fees to Sylvia S.

Gore (wife), (3) requiring husband to pay wife the value of a

lost engagement ring, (4) awarding wife one-half the face value

of savings bonds, and (5) awarding wife $375 in monthly spousal

support. Upon reviewing the record and briefs of the parties, we

conclude that this appeal is without merit. Accordingly, we

summarily affirm the decision of the trial court. Rule 5A:27. Pensions

Husband contends that wife's expert erred in valuing his

pension, that the present value calculation used post-separation * Pursuant to Code § 17-116.010 this opinion is not designated for publication. salary increases, that the marital share was erroneously

calculated, and that the effect of Social Security payments upon

his pension was not considered. We find these contentions to be

without merit.

While the court's final decree calculated the present value

of husband's pension, the qualified domestic relations order

(QDRO) which the court subsequently entered did not rely upon

present value. That order calculated the marital share of

husband's pension as a fraction of the total pension, based upon

the parties' final separation date of February 1992.

Specifically, the court awarded wife a pro rata portion of the

marital share, defined as: one-half (1/2) of the fraction whose numerator is the number of months of federal, civilian and military service that [husband] . . . performed during the marriage and whose denominator is the total number of federal, civilian, and military service performed by the [husband]. . . .

The court found the number of months of employment during the

marriage equaled 192. The total number of months of employment

will not be established until husband's retirement, based upon

his employment starting date of May 12, 1976. Thus, while the

court's final decree referred to a present value of husband's

pension, the implementing QDRO did not rely upon the present

value calculation. Therefore, husband's challenge to the

discount rate assumption used by wife's expert in calculating the

present value is moot.

2 Similarly, husband's contention that the present value

calculation relied on the value of post-separation earnings is

moot. Moreover, husband's argument that the calculation of the

marital share cannot rely on any salary levels earned

post-separation is incorrect. We rejected a similar argument in

Banagan v. Banagan, 17 Va. App. 321, 324-26, 437 S.E.2d 229,

230-31 (1993). "It is only fair that both parties share in the increased value of the pension," or one will be "receiving the increase in value" over time which is attributable to the other's marital interest. Contrary to husband's view, such enhancement is clearly a part of the "total [pension] interest" component of the marital share equation and obviously distinguishable from a judicial award of interest on a deferred share of a pension.

Id. at 325-26, 437 S.E.2d at 231 (citations omitted).

Husband also contends that the number of years of retirement

benefits earned during the marriage was fourteen, rather than

thirty. The QDRO in fact awarded wife benefits based on a total

of 192 months, or sixteen years. As this calculation was

supported by the evidence, husband has not demonstrated error.

Finally, the court's award to wife of a portion of the

marital share complied with the provisions of Code § 20-107.3(G).

Husband's contention that the court failed to consider possible

reductions in his pension due to Social Security payments is, at

best, based on speculation. Husband has not established

reversible error.

3 Attorney's Fees

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

sound discretion of the trial court 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). The key to a proper award

of counsel fees is reasonableness under all the circumstances.

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985). The trial court ruled that "most of [wife's attorney's fees]

are directly attributable to the recalcitrance of the [husband]

in honoring court orders and providing meaningful and forthcoming

discovery." The court's letter opinion, dated January 10, 1996,

noted that husband failed to furnish to wife "his equitable

distribution schedules on or before November 10." Wife testified

to the delays caused by husband's lack of cooperation.

Based on the number of issues involved, husband's lack of

cooperation with discovery, and the parties' respective abilities

to pay, we cannot say that the award was unreasonable or that the

trial judge abused his discretion in awarding wife $13,500. Engagement Ring

The trial court found more credible wife's testimony that

husband removed an engagement ring, valued at $4,500, from the

parties' safe deposit box. The ring was given to wife by

husband's family, but the parties agreed the ring was wife's

4 separate property. Wife testified that the ring was kept in the

safe deposit box to which both parties had keys. When she

checked the safe deposit box, she discovered that all of

husband's items were gone and the ring box was empty. Husband

admitted he had a key to the box, but testified that he had not

been in the box for "years" and that he had no idea that the ring

wasn't there.

The evidence was presented by depositions and exhibits. "A

decree based on testimony in deposition form, while presumed to

be correct, is not given the same weight as one where the

evidence is heard ore tenus by the chancellor." Moore v. Moore,

212 Va. 153, 155, 183 S.E.2d 172, 174 (1971). Nonetheless,

"'[o]n the testimony in deposition form, the decree is presumed

to be correct and should not be disturbed for lack of proof if

the controlling factual conclusions reached are sustained by a

fair preponderance of the evidence.'" Nash v. Nash, 200 Va. 890,

898-99, 108 S.E.2d 350, 356 (1959) (citations omitted). Because

credible evidence supports the trial court's finding, we affirm

its decree requiring husband to pay the value of the engagement

ring to wife. Savings Bonds

The savings bonds earmarked for the education of the

parties' son were accumulated during the marriage and were

properly classified as marital property. Code § 20-107.3(A)(2).

In his deposition, husband conceded that the savings bonds did

5 not belong to his son. Furthermore, the court noted that husband

failed to present evidence supporting his claim that the bonds

were worth less than their $31,200 face value. We find no error

in the trial court's classification or valuation of the bonds.

Spousal Support

Without citation to authority or evidence in the record,

husband contends that wife's alleged extravagance decreased the

value of the marital estate and, as a result, the trial court

erred in awarding her spousal support. "Statements unsupported

by argument, authority, or citations to the record do not merit

appellate consideration. We will not search the record for

errors in order to interpret the appellant's contention and

correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va.

App. 53, 56, 415 S.E.2d 237, 239 (1992). Therefore, we do not

consider this alleged error.

Accordingly, the decision of the circuit court is summarily

affirmed. Affirmed.