Ronald W. Tschippert v. Elizabeth M. Tschippert

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

RONALD W. TSCHIPPERT MEMORANDUM OPINION * v. Record No. 0981-96-4 PER CURIAM NOVEMBER 26, 1996 ELIZABETH M. TSCHIPPERT

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Thomas D. Horne, Judge

(Ronald W. Tschippert, pro se, on brief). No brief for appellee.

Ronald W. Tschippert appeals the decision of the circuit

court awarding Elizabeth M. Tschippert $25,000 as an equitable

distribution monetary award. Husband contends that the trial

court erred by failing to grant him a proportionate credit upon

its revaluation of wife's 401(k) account. Upon reviewing the

record and opening brief, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the decision of the

trial court. Rule 5A:27.

On a prior appeal to this Court, we reversed the trial

court's initial equitable distribution decision valuing wife's

401(k) account and classifying as marital property husband's

post-separation contributions to a joint checking account.

Tschippert v. Tschippert, No. 2096-94-4 (Va. Ct. App. June 13,

1995). We affirmed all other issues. We remanded the case and * Pursuant to Code § 17-116.010 this opinion is not designated for publication. directed the trial judge to "reconsider the monetary award in

light of his decisions regarding the checking account funds and

the 401(k) account." Id. at 8.

On remand, the trial court received additional evidence.

Based upon the new evidence, the trial court found that

approximately $12,000 in the joint checking account was traceable

as husband's separate property. The most current value of wife's

401(k) account was $78,822, or $33,038 more than the value used

by the court at the time of the initial decision. Based upon the

reclassification of the funds in the joint checking account, the

trial court credited $12,000 of the monetary award to husband,

reducing the amount to be paid to $13,000. No additional

modification to the award was made based upon the increased value

of the 401(k) account. Husband contends that the trial court was required to retain

the prior equitable distribution share of fifty-two percent for

wife and forty-eight percent for him, and to leave unchanged its

previous determination that eighty percent of wife's 401(k)

account was marital property. According to husband's argument,

the increased value of wife's 401(k) account required awarding

him an additional credit of $12,686 against the monetary award.

"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

2 S.E.2d 675, 678 (1990). "Unless it appears from the record that

the trial judge has not considered or has misapplied one of the

statutory mandates, this Court will not reverse on appeal."

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630

(1989).

The evidence indicated that wife made post-separation

contributions to her 401(k) account. In seeking to impose a

claim on the increased value of wife's 401(k) account, husband

drew no distinction between increases attributable to these

contributions, which are wife's separate property, and increases

attributable to earnings on the marital portion of the account.

Code § 20-107.3(A). "'[T]he burden is always on the parties to

present sufficient evidence to provide the basis on which a

proper determination can be made, and the trial court in order to

comply . . . must have the evidence before it . . . to grant or

deny a monetary award.'" Bowers v. Bowers, 4 Va. App. 610, 617,

359 S.E.2d 546, 500 (1987) (citation omitted). In the absence of

evidence with which to make a distinction, we find no error on

the part of the trial court in failing to credit husband with an

additional interest in wife's 401(k) account.

Accordingly, the decision of the circuit court is summarily

affirmed.