                  COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia


PATRICIA D. IRLBACHER
                                         MEMORANDUM OPINION * BY
v.   Record No. 2083-00-4             JUDGE JEAN HARRISON CLEMENTS
                                              AUGUST 7, 2001
GEORGE W. IRLBACHER, JR.


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                     J. Peyton Farmer, Judge

          Charles B. Roberts (Roberts Law Office, on
          brief), for appellant.

          Timothy W. Barbrow (Joseph A. Vance, IV &
          Associates, on brief), for appellee.


     Patricia D. Irlbacher (wife) appeals from the equitable

distribution order prepared by George W. Irlbacher, Jr., (husband)

and entered by the trial court on July 27, 2000.   Wife contends

the trial court erred (1) in granting husband's first exception to

the commissioner's report and ordering that wife's retroactive

share of husband's military retired pay be based on husband's

"net" military retired pay rather than the "taxable income"

portion of his military retired pay, (2) in ordering that wife's

prospective share of husband's military retired pay and the

benefits under the Survivor Benefit Plan (SBP) be calculated using

a formula that is inconsistent with the commissioner's


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
recommendation, (3) in failing to order husband to be responsible

for all of the tax consequences associated with the North Carolina

property transferred to husband as recommended by the

commissioner, and (4) in refusing to add certain clarifying

language to the order.    For the reasons that follow, we affirm in

part, reverse in part, and remand.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below and grant to that evidence all

reasonable inferences fairly deducible therefrom.   Wagner v.

Wagner, 16 Va. App. 529, 532, 431 S.E.2d 77, 79 (1993).   In

challenging a decision on appeal, the party seeking reversal bears

the burden of demonstrating error on the part of the trial court.

D'Agnese v. D'Agnese, 22 Va. App. 147, 153, 468 S.E.2d 140, 143

(1996).   "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. Scrinivasan, 10 Va. App. 728, 732, 396

S.E.2d 675, 678 (1990).

     Wife's first three assignments of error involve claimed

inconsistencies between the trial court's order and the report of

                                - 2 -
the commissioner.    While the report of a commissioner in chancery

does not carry the weight of a jury's verdict, it has a

presumption of correctness and should be sustained unless the

trial court concludes that there is error on the face of the

report or that the commissioner's findings are not supported by

credible evidence.   Code § 8.01-610; Morris v. United States Bank,

237 Va. 331, 337, 377 S.E.2d 611, 614 (1989).   "This rule applies

with particular force to a commissioner's finding of fact based

upon evidence taken in his presence, but is not applicable to pure

conclusions of law contained in the report."    Hill v. Hill, 227

Va. 569, 577, 318 S.E.2d 292, 297 (1984) (citations omitted).

     Although a trial court has substantial discretion in the

manner in which it reviews a commissioner's report, it cannot

simply ignore the commissioner's findings and substitute its

judgment for the commissioner's.   Gulfstream Bldg. Ass'n v. Britt,

239 Va. 178, 185, 387 S.E.2d 488, 492 (1990).   Thus, where the

trial court disapproves of or modifies the findings of the

commissioner, we "must review the evidence and ascertain whether,

under a correct application of the law, the evidence supports the

findings of the commissioner or the conclusions of the trial

court."   Hill, 227 Va. at 577, 318 S.E.2d at 296-97.

     Wife first contends, on appeal, that the trial court erred in

ordering husband to pay wife, as her retroactive share of

husband's military retired pay, an amount calculated using

husband's "net" military retired pay (i.e., husband's gross

                                - 3 -
military retired pay less the total of SBP costs, disability pay

(VA waiver), withheld federal and state income tax, and payments

for insurance and bonds, rather than, as recommended by the

commissioner, the "taxable income" portion of husband's military

retired pay (i.e., husband's gross military retired pay less the

total of SBP costs and VA waiver).      We agree.

       During the commissioner's hearing, the parties agreed that

wife's marital share of husband's military retired pay should be

one-half of 89% (i.e., 44.5%) of husband's military retired pay.

However, they disagreed about whether the SBP costs and VA waiver

should be included in the marital portion of the retirement pay

and whether wife's share should be retroactive.     Husband argued

that wife's share should not be retroactive and should be limited

to 44.5% of the "taxable income" amount of the military retired

pay.   Wife argued that wife's share should be retroactive to March

1999 and should be 44.5% of husband's gross military retired pay.

       After hearing the evidence and argument of counsel, the

commissioner recommended that wife receive 44.5% of husband's

gross military retired pay after the SBP costs and VA waiver are

deducted, for a total of $1,545.46 per month, calculated as

follows:   $3,771.00 (husband's gross retirement pay) - $110.06

(SBP costs) - $188.00 (VA waiver) = $3,472.94 ("taxable income"

portion of husband's retirement pay); $3,472.94 x 44.5%

(percentage of wife's marital share) = $1,545.46 (wife's monthly



                                - 4 -
retroactive share).    The commissioner further recommended that

this award be made retroactive to February 2000.

     Husband then timely filed exceptions to the commissioner's

report.    Only the first exception is relevant to the issues on

appeal.    In that first exception, husband requested that wife's

retroactive share of his military retired pay be calculated using

the "net" amount rather than the "taxable income" amount of his

military retired pay because he had already paid taxes on the

retroactive share.    After hearing argument on husband's exceptions

to the commissioner's report and wife's objections to husband's

proposed decree, the trial court granted husband's first exception

and, overruling wife's objections, entered the equitable

distribution order prepared by husband.

     The order provides that wife's retroactive share of husband's

military retired pay is 44.5% of the "net" amount of husband's

military retired pay, for a six-month total of $7,524.22, or

$1,254.04 per month.   That total reflects deductions from the

marital portion of husband's retirement pay of not only the income

taxes withheld but also husband's insurance and bond payments, as

follows:   $3,771.00 (husband's gross retirement pay) - $110.06

(SBP costs) - $188.00 (VA waiver) - $312.79 (federal income taxes

withheld) - $150.00 (state income taxes withheld) - $192.09

(payments for insurance and bonds) = $2,818.06 (husband's "net"

retirement pay); $2,818.06 x 44.5% (percentage of wife's marital

share) = $1,254.04 (wife's monthly retroactive share).

                                - 5 -
     Husband concedes the commissioner never considered the issue

of whether the withheld income tax and the payments for insurance

and bonds should be excluded from the marital portion of husband's

military retired pay because husband did not raise the issue

before the commissioner.   Additionally, in explaining in his

exception to the commissioner's report why the "net" amount of

husband's military retired pay should be used to calculate wife's

marital share of that pay, husband stated solely that he had

"already paid taxes on the retirement pay."   He said nothing about

the payments for insurance and bonds.   Likewise, at the hearing on

husband's exceptions to the commissioner's report, husband made no

mention to the trial court of the payments for insurance and

bonds.   Instead, he simply presented to the court a proposed

equitable distribution order that stated merely that wife's

retroactive marital share of husband's military retired pay was

$7,524.22, or 44.5% of the "net proceeds" from husband's

retirement pay.   The order provided no details as to what

deductions were included to arrive at the "net proceeds."

     The trial court ruled that wife's retroactive share of the

retirement pay was to be calculated on the "net" amount of the

retirement pay and entered the order prepared by husband.    The

court, however, heard no evidence and made no findings regarding

its ruling.   Indeed, it appears from the record that the trial

court rejected the commissioner's recommendation and reduced

wife's retroactive share of husband's military retired pay without

                               - 6 -
considering the parties' respective equities and rights in the

taxes and payments for insurance and bonds deducted from husband's

gross pay.   For example, although the record indicates that

counsel for husband argued at the hearing on wife's motion for

reconsideration that the insurance partly benefited wife, we find

no evidence in the record before us as to the nature of the

subject insurance and bonds and whom they benefited.   Certainly,

the trial court made no findings in that regard.

     We conclude, therefore, that the evidence fails to support

the decision of the trial court to credit husband with the

additional retroactive amounts of his withheld federal and state

taxes and deducted payments for insurance and bonds.   Conversely,

our review of the record convinces us that the evidence supports

the commissioner's recommendation that the "taxable income"

portion of husband's military retired pay be used to calculate

wife's retroactive share of that pay.   Accordingly, we hold that

the trial court abused its discretion by improperly substituting

its judgment for the commissioner's.

     Wife next contends the trial court erred in entering the

equitable distribution order because the formula set forth in

paragraph six on page six of the order to compute wife's

prospective marital share of husband's military retired pay and,

upon the death of husband, wife's share of the SBP benefits is

incorrect and not in accord with the commissioner's

recommendations.   Husband argues there is no variance between the

                               - 7 -
commissioner's recommendations and the formula in the order.    We

agree with wife.

     The equitable distribution order entered by the trial court

provides as follows:

               It appearing to the Court that the
          Commissioner in Chancery took into
          consideration all proper evidence pertaining
          to the equitable distribution of the parties'
          marital properties and debts, and pursuant to
          all factors contained in Virginia Code
          Section 20-107.3, it is ADJUDGED and DECREED
          that the recommendations and findings set
          forth in the Report of the Commissioner in
          Chancery dated May 23, 2000, are incorporated
          into these specific findings described below.

               To facilitate the parties' use of this
          decree and as and for information to third
          parties who may be affected thereby, certain
          of the Court's awards may be hereinafter set
          out, but in no event shall this Decree be
          deemed to be inconsistent with the
          recommendations of the Commissioner in
          Chancery as set forth in his Report dated May
          23, 2000, except insofar as this document has
          specific changes reflecting the Judge's
          granting of exceptions to the Commissioner's
          Report, such exceptions filed by [husband].

As previously noted, the only exception granted by the trial court

pertaining to the issues before us involved the calculation of

wife's retroactive share of husband's military retired pay.

     Husband concedes that, in preparing the order, he attempted

to accurately set forth the commissioner's recommendation in the

form of a mathematical formula.   He does not dispute the

commissioner's recommendation or the meaning thereof.   In fact, in

his brief on appeal, husband, using the formula in the order,


                              - 8 -
reaches the same result recommended by the commissioner.     His

understanding of standard mathematical procedures, however, like

his formula, is flawed.

     The trial court failed, along with husband, to grasp the

significance of wife's argument on the issue and ruled simply at

the hearing on wife's objections to husband's proposed order that

the "language on page six, paragraph six, is proper."

     The commissioner found that 89% of husband's military retired

pay is marital property, of which wife is entitled to half.    Thus,

wife's share of husband's retirement pay is 44.5%.   The

commissioner further found that wife's prospective share of

husband's military retired pay "is 44.5% of his gross retirement

pay after the SBP cost and the disability pay are deducted."

"Currently," the commissioner went on to say, "this yields

$1,545.46 per month for her . . . ."   This result is calculated as

follows:   $3,771.00 (husband's gross retirement pay) - $110.06

(SBP costs) - $188.00 (VA waiver) = $3,472.94; $3,472.94 x 44.5%

(percentage of wife's marital share) = $1,545.46 (wife's monthly

prospective share).   Conversely, the formula set forth in the

order, calculated, as indicated, in a straight sequence, results

in an amount of $16.39 less, as follows:   89% x $3,771.00

(husband's gross retirement pay) = $3,356.19; $3,356.19 - $110.06

(SBP costs) - $188.00 (VA waiver) = $3,058.13; $3,058.13 x 50% =

$1,529.07.



                               - 9 -
     Thus, the formula in the equitable distribution order is

flawed because it fails to direct the person performing the

calculation to first subtract the SBP costs and VA waiver from the

gross retirement pay (or SBP benefits) before multiplying that

amount by 44.5% (or, as set out in the formula in the order,

multiplying that amount first by 89% and then by 50%).   Brackets

or some other appropriate marks before "monthly retirement pay"

and after "amount VA waiver" would cure the formula's flaw.

     We hold, therefore, that the formula in the equitable

distribution order does not properly reflect wife's prospective

marital share of husband's military retired pay and the SBP

benefits.   Accordingly, the trial court was plainly wrong in

entering the order. 1

     Wife also contends that paragraph two on page two of the

equitable distribution order, which provides for the transfer of

the parties' North Carolina home to husband but makes him

responsible only for the "tax consequences associated with such

transfer," is not in accord with the commissioner's

recommendation.    We agree.

     The commissioner found that the property's tax basis was low

and that there was the prospect for a large income tax liability

upon its sale.    Husband, the commissioner found, wanted the home


     1
       Having resolved this issue on other grounds, we need not
address wife's additional argument that the subject formula in
the equitable distribution order is contrary to federal law.


                                - 10 -
"and responsibility for . . . the difficult tax consequence."

Wife, on the other hand, the commissioner found, would neither be

able to avoid or handle the tax consequences in a timely fashion.

Husband had responsibility for the significant mortgage debt on

the property.   In light of such findings, the commissioner

recommended that the home be transferred to husband along with its

"difficult tax consequence."

     We conclude that the commissioner recommended that husband

bear all tax consequences related to the North Carolina property.

The order of the trial court, read literally, however, only

assigns to husband those tax consequences associated with the

transfer of the property from wife to husband.   Hence, we hold

that the trial court's equitable distribution order is improperly

inconsistent with the commissioner's recommendation and that the

trial court erred in entering the order as drafted.

     Lastly, wife contends the trial court committed reversible

error in refusing to add the words "and Reservation of Spousal

Support" to the existing title of its order--"Order of Equitable

Distribution"--and in refusing to change the word "spouse" to

"former spouse" in the order.   Such changes, wife argues, are

necessary to avoid delay in having the order processed and

approved by the United States Department of Defense Finance

Office.

     Wife, however, conceded at the reconsideration hearing that

she did not know the consequences of submitting the order as

                                - 11 -
drafted, without her suggested changes, to the military finance

office.   She simply did not want to "take the chance" that the

order would be rejected.   She presented no evidence to the trial

court to show that the changes were necessary and offers us no

authority pursuant to which we may conclude that the trial court

abused its discretion by not including the requested changes in

the order.   Moreover, as husband points out, the trial court's

order specifically reserves jurisdiction in the trial court for

the purpose of modifying the order "in order to effect payment of

any retirement benefits for either party."   Hence, we hold that

the trial court did not err in ruling as it did.

     Accordingly, the equitable distribution order appealed from

is affirmed in part and reversed in part and remanded for entry of

an order consistent with this opinion.

                                              Affirmed in part,
                                              reversed in part
                                              and remanded.




                               - 12 -
