                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


WILLARD MORRIS
                                                  MEMORANDUM OPINION *
v.   Record No. 1066-97-4                              PER CURIAM
                                                    JANUARY 27, 1998
JOANNE LYNNE NAGY MORRIS


                 FROM THE CIRCUIT COURT OF PAGE COUNTY
                  Joshua L. Robinson, Judge Designate

           (H. Webb Hudson, Jr., on brief), for
           appellant. Appellant submitting on brief.
           (Nancy M. Reed; Reed & Reed, on brief), for
           appellee. Appellee submitting on brief.



     Willard Morris appeals from the portion of the final decree

of divorce which awards to his wife, Joanne Lynne Nagy Morris,

the majority of the parties' marital assets.       The husband

contends that the trial judge erred when he (1) considered as a

statutory factor for equitable distribution under Code

§ 20-107.3(E) his criminal felony conviction and (2) gave

insufficient weight to his monetary contributions toward the

acquisition of the marital assets.    We agree.     Therefore, we

reverse the judgment and remand.

     "Equitable distribution is predicated upon the philosophy

that marriage represents an economic partnership requiring that

upon dissolution each partner should receive a fair portion of

the property accumulated during the marriage."       Aster v. Gross, 7

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Va. App. 1, 5, 371 S.E.2d 833, 836 (1988).   Although

"[f]ashioning an equitable distribution award lies within the

sound discretion of the trial judge," Srinivasan v. Srinivasan,

10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990), the trial judge

commits reversible error when "it appears from the record that

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

statutory mandates."   Ellington v. Ellington, 8 Va. App. 48, 56,

378 S.E.2d 626, 630 (1989).
     The statement of facts recites that the parties separated

several times during their marriage.   During one of the

separations, the husband purchased a parcel of real estate and a

mobile home in March 1989.    In September 1995, the husband was

convicted of several felonies.   Two months later, the husband

conveyed the real estate to himself and the wife as tenants by

the entirety.   The wife "contributed $8,000 toward the payments

made for the land and the mobile home."

     The divorce was granted on the ground that the parties had

lived separate for more than a year beginning in December 1994.

The residential mobile home and lot jointly, valued at $21,500,

were the parties' sole marital assets for distribution.    The

trial judge awarded the residence to the wife, subject to a $500

lien to pay the husband's guardian ad litem.
     The husband, who, at the time of trial, was serving a

twenty-year sentence for felony convictions, contends that the

trial judge erroneously attached "special weight" to his criminal




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activity.   He argues that no evidence proved that his crimes and

incarceration caused a negative economic impact on the marriage

or marital property.   We agree.

     In decreeing as to the property of the parties, the trial

judge is required to consider the factors contained in Code

§ 20-107.3(E).   "Code § 20-107.3, providing for equitable

distribution, is based on the notion that marriage is an economic

partnership in which the parties, through varying contributions,

monetary and nonmonetary, to the acquisition, maintenance, and

care of property and to the well-being of the family, may

accumulate marital wealth."   Dietz v. Dietz, 17 Va. App. 203,

210, 436 S.E.2d 463, 467 (1993).
          [C]ircumstances that affect the partnership's
          economic condition are factors that must be
          considered for purposes of our equitable
          distribution scheme. Circumstances that lead
          to the dissolution of the marriage but have
          no effect upon marital property, its value,
          or otherwise are not relevant to determining
          a monetary award, need not be considered. A
          trial court need only consider those
          circumstances leading to the dissolution of
          the marriage, that are relevant to
          determining a monetary award in order to
          avoid an unreasonable result.

Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836.     "Fault is not a

'wild card' that may be employed to justify what otherwise would

be an arbitrary or punitive award.     When fault is relevant in

arriving at an award, the trial judge is required to consider it

objectively, and how, if at all, it quantitatively affected the

marital estate or well being of the family."     O'Loughlin v.




                                   3
O'Loughlin, 20 Va. App. 522, 528, 458 S.E.2d 323, 326 (1995).

     Over the seventeen years of the marriage, the parties

separated several times.   Although the final decree recites that

the husband's "criminal activity . . . led up to the parties'

separation," no evidence tended to prove that the husband's

criminal activity or conviction had any effect upon the value of

the real estate or mobile home or had a negative economic impact

upon the marital estate.   In the absence of any such evidence,

the trial judge erred in determining that the husband had no

rights or equity in the marital property and was not entitled

under Code § 20-107.3(E) to an equitable award for his share of

the marital assets.   Accordingly, the trial court erred in

dividing the parties' marital assets by awarding $21,500 to the

wife, subject to a $500 lien to pay the husband's guardian ad
litem.   No evidence supports such a distribution of the property

of the parties.

     Accordingly, we reverse the decision and remand the matter

to the trial judge for reconsideration of his equitable

distribution award.
                                         Reversed and remanded.




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Willis, J., dissenting.

     The record does not support the majority's finding that the

trial court improperly applied the statutory factors found in

Code § 20-107.3(E) when making its equitable distribution

determination.   Specifically, proper consideration of the

parties' ages and physical and mental conditions, the

circumstances which contributed to the dissolution of the

marriage, the debts and liabilities of each party and the basis

for those debts and liabilities, the liquidity of the marital

assets, and other necessary and appropriate factors as determined

by the trial court supports the trial court's determination.     See

Code § 20-107.3(E)(4), (5), (7), (8), and (10).   Therefore, I

would affirm the judgment of the trial court.




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