Roberta K. Godwin v. Forrest Dean Godwin

• Court: Court of Appeals of Virginia
• Decided: October 26, 1999
• Docket: 2790981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons and Frank Argued at Norfolk, Virginia

ROBERTA K. GODWIN MEMORANDUM OPINION * BY v. Record No. 2790-98-1 JUDGE JERE M. H. WILLIS, JR. OCTOBER 26, 1999 FORREST DEAN GODWIN

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE V. Thomas Forehand, Jr., Judge

James A. Leftwich, Jr. (Basnight, Kinser, Telfeyan & Leftwich, P.C., on brief), for appellant.

Forrest Dean Godwin, pro se.

On appeal from a final divorce decree, Roberta K. Godwin

contends that the trial court erred (1) in determining that her

retirement benefits are subject to equitable distribution, (2)

in awarding Forrest Dean Godwin twenty-five percent of the

marital portion of those benefits, (3) in calculating periodic

spousal support, (4) in not awarding the divorce on the basis of

Mr. Godwin's desertion or post-separation adultery, and (5) in

finding no arrearage in spousal support payments from February

1996 through November 1998. We affirm in part, modify in part,

reverse in part, and remand.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Mr. and Ms. Godwin were married in 1983. In 1988, Ms.

Godwin was injured during job training as a Virginia Beach

Deputy Sheriff. The injury left her permanently disabled, with

lingering pain and impaired health. In 1993, Mr. Godwin left

the marital residence due to a deteriorating relationship with

Ms. Godwin and the resulting hostile environment. The couple

has one child, who resides with Mr. Godwin.

1.

Ms. Godwin contends that the trial court erred in

classifying her Virginia Disability Entitlement Benefits as

marital property, subject to equitable distribution. Following

her injury, she received a lump sum from the City of Virginia

Beach in settlement of her workers' compensation benefits. The

parties applied this sum to marital purposes. At the time of

the commissioner's hearing, she was receiving $819.77 per month

in disability retirement benefits. The commissioner reported

that the monthly payments were retirement benefits subject to

equitable distribution, and the trial court so held.

"In reviewing an equitable distribution award on appeal, we

recognize that the trial court's job is a difficult one.

Accordingly, we rely heavily on the discretion of the trial

judge in weighing the many considerations and circumstances that

are presented in each case." Artis v. Artis, 4 Va. App. 132,

137, 354 S.E.2d 812, 815 (1987). Pensions and retirement

benefits are expressly presumed to be marital property. See

- 2 - Code § 20-107.3. The record supports the trial court's holding

that the monthly payments should be considered retirement

benefits. We affirm that holding.

2.

Ms. Godwin next contends that assuming the monthly benefits

are subject to equitable distribution, the trial court erred in

awarding twenty-five percent of the marital portion to Mr.

Godwin. She argues that the record before the trial court was

insufficient to permit identification of the marital share of

the pension.

Unless it appears from the record that the [trial court] has abused [its] discretion, that [it] has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying [its] resolution of the conflict in the equities, the . . . equitable distribution award will not be reversed on appeal.

Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368

(1987) (citation omitted).

The trial court decreed "[Mr. Godwin] is awarded twenty

five percent (25%) of the marital share of [Ms. Godwin's]

disability benefits . . . ." Thus, it appears on the face of

the decree that the trial court sought to divide only the

marital portion of the monthly disability retirement benefits, a

property subject to equitable distribution. However, the trial

court failed to determine the marital portion of Ms. Godwin's

pension, a determination essential to a fair and effective

- 3 - division. Therefore, we reverse the judgment of the trial court

insofar as it undertakes equitable distribution of Ms. Godwin's

pension, and remand the case to the trial court for

identification of the marital portion of that pension and an

appropriate division of that marital portion.

3.

Because determination of equitable distribution is

prerequisite to the fixing of spousal support, we reverse and

vacate the judgment of the trial court fixing spousal support

and remand the case to the trial court for the determination of

spousal support following a determination of all matters of

equitable distribution. See Rowe v. Rowe, 24 Va. App. 123, 139,

480 S.E.2d 760, 767 (1997).

4.

The commissioner reported that "[Mr. Godwin] is guilty of

desertion and post-separation adultery, however, neither of

these was the actual cause of the dissolution of marriage." Mr.

Godwin excepted to this finding, and the trial court sustained

his exception. Ms. Godwin contends that this was error, because

sufficient evidence proved Mr. Godwin's desertion and

post-separation adultery.

The trial court ruled that the evidence was insufficient to

prove desertion, because Ms. Godwin had asked Mr. Godwin to

leave. Further, "the evidence strongly suggests that he had

good reason for initially leaving and remaining separated. [Ms.

- 4 - Godwin] was argumentative, despondent, and, at times, suicidal."

The record supports this ruling.

The trial court ruled that the evidence that Mr. Godwin was

sharing a residence and financial responsibilities with a woman

other than his wife was not "clear and convincing" proof that he

was guilty of adultery. See Derby v. Derby, 8 Va. App. 19, 24,

378 S.E.2d 74, 76 (1989). We need not review that ruling.

The divorce was granted on the ground that the parties had

lived separately for at least one year. Even had the trial

court sustained the commissioner's findings of fault, "the trial

court was not compelled 'to give precedence to one proven ground

of divorce over another.'" Williams v. Williams, 14 Va. App.

217, 220, 415 S.E.2d 252, 253 (1992) (citation omitted). We

affirm the judgment of the trial court on the granting and

ground of the divorce.

5.

Finally, Ms. Godwin contends that the trial court erred in

finding no arrearage in spousal support from February 1996

through November 1998. The February 1994 pendente lite order

required Mr. Godwin to pay Ms. Godwin $300 per month, payable in

equal amounts on the first and fifteenth of every month. On

February 23, 1996, Mr. Godwin moved for abatement. The trial

court found an arrearage in spousal support totaling $1,800,

calculated upon omitted spousal support payments from August 1,

1995, through January 31, 1996. The trial court thus awarded

- 5 - Mr. Godwin abatement retroactive to February 1, 1996. This was

error.

The abatement could not precede Mr. Godwin's filing of the

motion. See Code § 20-112; Reid v. Reid, 245 Va. 409, 412-13,

429 S.E.2d 208, 210 (1993). Thus, while it lay within the trial

court's discretion to modify or abate spousal support, the

abatement could not take effect before February 23, 1996. Mr.

Godwin was to make payments of $150 on February 1 and February

15, both dates preceding February 23. These payments should

have been required. We therefore reverse the trial court on

this issue and modify its decree to award Ms. Godwin an

additional $300 spousal support for February 1996.

The judgment of the trial court is affirmed in part,

modified in part, reversed in part, and remanded.

Affirmed in part, reversed and modified in part, and reversed and remanded in part.

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