Russell E. Swanson v. Madeline C. Swanson

• Court: Court of Appeals of Virginia
• Decided: August 13, 1996
• Docket: 0070961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

RUSSELL E. SWANSON MEMORANDUM OPINION * v. Record No. 0070-96-1 PER CURIAM AUGUST 13, 1996 MADELINE C. SWANSON

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Walter J. Ford, Judge

(Stephen F. Forbes; Forbes & Broadwell, on briefs), for appellant. (Kathy Gear Owens, on brief), for appellee.

Russell E. Swanson (husband) appeals the decision of the

circuit court awarding a portion of his retirement benefits to

Madeline C. Swanson (wife). Husband raises the following

arguments on appeal: (1) whether the circuit court erred in

determining the marital share of his retirement income; and (2)

whether the circuit court erred in requiring husband to continue

to pay the monthly premium for wife's survivor benefit. 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.

The evidence was heard by a commissioner in chancery, whose

report was accepted by the trial court with only slight

modification. "On appeal, a decree approving a commissioner's

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. report must be affirmed unless plainly wrong." Scinaldi v.

Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986).

"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). "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).

Marital Share

Under Code § 20-107.3(G), the trial court is authorized to

"direct payment of a percentage of the marital share of any

pension . . . or retirement benefits," provided that [n]o such payment shall exceed fifty percent of the marital share of the cash benefits actually received by the party against whom such award is made. "Marital share" means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties . . . .

Id.

In this case, the marital share of husband's retirement

benefits could not be determined based solely upon his years of

his employment or the duration of the marriage. Husband's

monthly payment was based upon his years of military service

prior to the marriage, his years of civilian service largely

2 during the marriage, and a cash pay-in of over $10,000 in marital

assets. The commissioner found that $833 of the monthly payment

of $1,796 was husband's separate property, based upon the amount

actually received by husband as his military retirement prior to

the marriage.

The commissioner found the testimony of both parties'

experts to be inadequate. Wife's expert gave a present value

calculation that failed to exclude husband's pre-marital military

employment. Husband's expert identified $524 per month as the

marital share, but failed to include any amount attributable to

the $10,000 pay-in of marital assets. Moreover, "the finder of

fact is not required to accept as conclusive the opinion of an

expert." Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d

368, 370 (1986).

The commissioner found the marital share of the monthly

payment to be approximately $744, the average between $524 and

$963. The trial court modified that recommendation to award wife

21% of husband's monthly payment. We cannot say that the court's

award exceeded the amount authorized by statute or that it was

plainly wrong or without evidence to support it. Therefore we

will not set aside the award. Survivor's Benefit

Husband contends that the trial court erred in accepting the

commissioner's recommendation that husband continue to pay the

monthly survivor's benefit premium. The determination of which

3 party is to bear the cost of any survivor benefit is left to the

discretion of the trial court. Code § 20-107.3(G)(2). We cannot

say the trial court abused its discretion in continuing the

payment.

Accordingly, the decision of the circuit court is summarily

affirmed.