                   COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


RALPH L. BENNETT
                                      MEMORANDUM OPINION * BY
v.   Record No. 1621-96-4              JUDGE CHARLES H. DUFF
                                        SEPTEMBER 23, 1997
JOYCE R. BENNETT


             FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                     James W. Haley, Jr., Judge

           Richard E. Crouch (John Crouch; Crouch &
           Crouch, on briefs), for appellant.
           Timothy T. Szabo (Szabo, Zelnick & Erickson,
           P.C., on brief), for appellee.



      Ralph L. Bennett (husband) appeals the equitable

distribution decision of the circuit court awarding Joyce R.

Bennett (wife) a portion of his disability retirement benefits

and deciding other issues.   Husband argues that the trial court

(1) erred in classifying the disability payments as marital

property; (2) erred in not classifying the disability payments as

partially separate property; (3) erred in crediting husband with

$23,000 in previously spent funds; (4) erred in denying husband

spousal support or a reservation of support; (5) abused its

discretion in awarding wife $3,000 in attorney's fees; and (6)

erred in classifying $27,000 in credit card debts as marital.

Joyce R. Bennett (wife) argues that the trial court erred in

setting the suspension bond in an amount insufficient to secure

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
recovery by her if she prevails.       We affirm the decision of the

trial court.

     "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).
          "Unless it appears from the record that the
          [trial judge] has abused his discretion, that
          he has not considered or has misapplied one
          of the statutory mandates, or that the
          evidence fails to support the findings of
          fact underlying his 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).    Applying these principles, we examine

the trial court's rulings which the parties contest.

                       Disability Retirement
     Husband contends that the trial court erred in finding his

disability retirement was wholly marital property.      Husband

contends the retirement is a "stream of income" which is entirely

post-separation.   Alternatively, husband argues that the

disability retirement is part marital and part separate property.

     While this issue has not been directly addressed by this

Court previously, we do not come to this question without the

guidance of earlier decisions and statutory requirements.      Under




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Code § 20-107.3, the rebuttable presumption is that benefits

earned during the marriage are marital property.    Pensions and

retirement benefits of whatever kind are expressly included as

marital property. 1   Previous decisions have focused on the

importance of retirement benefits as "compris[ing] a 'portion of

the pool of marital assets,' . . . clearly contemplated by the

'scheme' of Code § 20-107.3, which is intended to justly

distribute the 'marital wealth of the parties.'"     Banagan v.
Banagan, 17 Va. App. 321, 325, 437 S.E.2d 229, 231 (1993)

(citations omitted).

        Here, husband's evidence demonstrated that the disability

benefit husband received is a form of retirement benefit to which

he was entitled through his employment; the amount of his

disability benefit was calculated using his highest salary and

years of service.     It was, as wife points out, a defined benefit

plan.

        The letter informing husband of his disability retirement

benefit noted that he was entitled to a disability credit of ten

years and seven months.    This credit reflected the non-marital

portion of the asset.    In its final order the trial court

recognized that the husband's gross disability retirement was

marital property and awarded the wife 50% thereof.    However,
        1
      Husband cites cases from other jurisdictions treating
disability payments as separate property. In the absence of
evidence that the statutory schemes in those jurisdictions are
comparable to that of Virginia, we find those cases interesting
but inapposite.



                                   3
because the husband was entitled to the disability credit, the

actual percentage to be paid to the wife was 37.5% rather than

50%.   Therefore, we find no error in the trial court's decision

finding husband's disability retirement benefit a marital asset

subject to equitable distribution or in its calculation of the

percentage to be paid.

                            Credited Funds

       Following an evidentiary hearing, the trial court found

husband guilty of contempt for expending marital funds contrary

to the court's prohibition.    The evidence indicated that at least

$23,000 of funds earned during the marriage was spent by husband

for varied purposes, including repayment of an alleged 1978 loan

by husband's mother towards the purchase of the marital

residence, payment of husband's attorney's fees, a gift to the

parties' daughter, and other purposes.       Credible evidence

indicated that those funds were marital assets which husband had

improperly expended.     See Clements v. Clements, 10 Va. App. 580,

585-86, 397 S.E.2d 257, 261 (1990).    We find no error in the

commissioner's recommendation that the equitable distribution

award reflect husband's unilateral expenditure of those marital

assets.
                        Reservation of Support

       Husband contends that he filed a "Notice and Motion for

Pendente Lite Relief" in August 1994 in which he sought pendente
lite spousal support.    Wife conceded in her Final Reply




                                   4
Memorandum to the commissioner that husband filed a motion

seeking pendente lite support.     Husband first specifically

requested a reservation of permanent spousal support in his

Memorandum of Argument with Supporting Authority and Exhibits

submitted after the commissioner had issued an "interlocutory

ruling that Boyd v. Boyd [, 2 Va. App. 16, 340 S.E.2d 578

(1986),] . . . denies Husband's request for spousal support

because of his failure to raise the issue in the initial

pleading."    On appeal, husband also contends that the request for

general relief in his Bill of Complaint for Divorce was

sufficient to preserve his right to permanent spousal support.
     The action commenced by husband, Chancery 94-375, was

consolidated with wife's action under Chancery 94-363.    We have

no copies of husband's initial pleadings in the record before us.

However, as the parties agree that husband later sought pendente

lite support by motion, we accept that representation for

purposes of this appeal.

      As noted in Boyd, 2 Va. App. at 19, 340 S.E.2d at 580,
"[t]he office of pleadings is to give notice to the opposing

party of the nature and character of the claim, without which the

most rudimentary due process safeguards would be denied."

Husband's request for general relief in his bill of complaint

failed to alert wife that husband was seeking permanent spousal

support.     See id. at 19, 340 S.E.2d at 579 (wife's general prayer

"'for such other and further relief as to equity may seem meet



                                   5
and the nature of her case may require'" was insufficient notice

of request for spousal support).       Similarly, husband's request

for a reservation of permanent support, first made after the

completion of the commissioner's hearing, failed to provide wife

with timely and sufficient notice of his claim for a reservation

of support.   We find no indication that husband ever sought leave

to amend his pleadings.

     We also find that husband's request for pendente lite

support was not sufficient to preserve his right to a reservation

of permanent support.   Permanent support is separate and distinct

from pendente lite support.   See Weizenbaum v. Weizenbaum, 12 Va.

App. 899, 903-04, 407 S.E.2d 37, 39-40 (1991).      Factors which the

court must consider prior to an award of permanent support are

not required to be considered before an award of pendente lite

support.   Cf. Code §§ 20-107.1 and 20-103.      A pendente lite order

"shall have no presumptive effect and shall not be determinative

when adjudicating the underlying cause."      Code § 20-103(E).

     Therefore, we find that husband's request for pendente lite
support was not sufficient to raise before the court a

reservation of his right to permanent spousal support.      The trial

court did not abuse its discretion by accepting the

commissioner's recommendation not to reserve spousal support for

husband.

                          Attorney's Fees
     An award of attorney's fees is a matter submitted to the




                                   6
sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion.       See Graves v. Graves, 4 Va.

App. 326, 333, 357 S.E.2d 554, 558 (1987).      The key to a proper

award of counsel fees is reasonableness under all the

circumstances.   See McGinnis v. McGinnis, 1 Va. App. 272, 277,

338 S.E.2d 159, 162 (1985).

     While husband alleges that wife extended the course of

litigation, the record does not so indicate.      Moreover, while

husband indicates that he is not as well situated financially as

wife, the evidence indicated that he had annual income of

approximately $34,000.   Based on the number of issues involved

and the respective abilities of the parties to pay, we cannot say

that the award was unreasonable or that the trial judge abused

his discretion in accepting the commissioner's recommended award.
                         Credit Card Debts

     Credible evidence indicated that approximately $27,000 in

debts were incurred during the marriage.      Approximately $8,000 of

these debts were costs for the wedding of the parties' daughter.

An additional amount was for the parties' truck.       Pursuant to a

credit workout, wife was obligated to pay $650 a month on these

debts.

     We find no error in the classification of the debts as

marital.   Clearly they were incurred during the marriage, and

husband has not presented any evidence supporting his allegation

that they were solely for wife's benefit.      Moreover, the



                                   7
commissioner assigned all the outstanding debts to wife,

diminishing the value of her equitable distribution award.   We

find no abuse of discretion.




                                8
                          Suspension Bond

     Wife contends that the trial court erred by setting a

suspension bond that was insufficient to ensure wife's recovery.

Neither wife nor husband conveyed the jointly-held property

awarded pursuant to the final decree.   Wife's monthly debt

obligation existed prior to the entry of the decree and is

unaffected by the amount of the bond.   Wife received no current

spousal support.   Thus, wife's current financial obligations are

substantially unchanged by the suspension of the court's decree

pending resolution on appeal.   We find unpersuasive wife's

assertion that her inability to benefit from the equity in the

marital residence requires that the suspension bond be set in an

amount equal to that equity.
     For the reasons stated, we affirm the decision of the trial

court.

                                              Affirmed.




                                 9
Benton, J., dissenting.

                        Disability Retirement

     I agree with the majority's holding that the trial judge did

not err in finding that the disability retirement benefit was

marital property subject to equitable distribution.    See

generally Lookingbill v. Lookingbill, 483 A.2d 1, 2-4 (Md. 1984)

(discussing disability retirement benefits as marital property).

 However, because the trial judge's order contains a patent

inconsistency, I would reverse and remand this issue to the trial

judge for reconsideration.
     Although the parties were married during the complete term

of the husband's employment, the commissioner's report found that

only "a portion of the [disability retirement pay was] . . .

marital." 2   Apparently, the commissioner chose to allocate as

non-marital the portion of the disability pay that was defined

under the Virginia Retirement System as a "disability credit."

The Virginia Retirement System had determined that the husband's

benefits would be based on his actual years of service plus a

"disability credit" that equalled the difference between the

husband's age at the time of his retirement and the age of 60.

To allocate the credit as non-marital property, the commissioner

calculated the marital portion to be a fraction of the total

benefit, the numerator of which was the number of years of actual
     2
      The record proved that the parties were married when the
husband began his employment, and when the husband left his
employment on disability retirement.



                                 10
service and the denominator of which was the number of years of

actual service plus the service credit.    The commissioner found

that the wife was entitled to 50% of that portion of the

disability payments. 3

     The trial judge's order states, in pertinent part, the

following:
             [Husband's] disability retirement pay
             . . . is found to be marital property subject
             to equitable distribution . . . pursuant to
             §20-107.3(G) of the Code of Virginia . . . .
             After analysis and consideration of all
             factors contained in §20-107.3, the [wife] is
             hereby awarded a 50% marital share of the
             [husband's] gross disability retirement pay
             . . . . [Husband] is presently receiving
             disability retirement pay and is ordered to
             pay [wife] 37.5% gross thereof each month
             beginning February 1, 1996 and each month
             thereafter until the death of either party.
             The aforesaid percentage is 50% of the
             fraction found by the Commissioner on page 21
             of his report.

     Thus, after finding the disability retirement pay to be

marital property and stating that he was granting the wife a 50%

share of that asset, the trial judge ordered the husband to pay

the wife only 37.5% of the disability payments he received.    The

trial judge reached that result by using "the fraction found by

the commissioner," which was a ratio based upon the

commissioner's finding that a portion of the disability
     3
      It is worth noting that the commissioner committed an error
by using 24 in the numerator as the number of years of actual
service. The record reveals that the husband's length of service
was approximately 22 years. It appears that the commissioner
confused the date the husband's employment terminated, 1992, with
the date of the parties' separation, which was 1994.




                                  11
retirement pay was non-marital.    This presents a patent

inconsistency on the face of the trial judge's order.    Thus, I

would remand this issue for reconsideration.   Furthermore, the

record does not clearly establish whether the trial judge

intended to award the wife 50% or 37.5% of the retirement

benefit.

                          Credited Funds

     The evidence proved that the husband expended $23,000 of

marital funds to pay marital debts.    The record contains a

specific accounting of the debts and the payments made by the

husband.   Indeed, the wife did not dispute the debts.
     Although the husband paid those debts in violation of the

trial judge's order, such a violation does not per se constitute

waste.   However, the record reveals that the trial judge did not

believe the husband's explanation that he used $14,000 of the

money to repay a debt the parties owed to his mother.    Thus, the

trial judge did not err in crediting the husband with $14,000.

     Of the remaining $9,000, $5,000 represented legal fees and

$4,000 represented a variety of living expenses set forth in a

detailed exhibit offered by the husband.   No evidence showed that

the husband's use of the remaining $9,000 constituted waste.

Moreover, the trial judge made no such finding.    See Amburn v.

Amburn, 13 Va. App. 661, 666, 414 S.E.2d 847, 850 (1992) (stating

that use of marital funds to pay attorney's fees is not waste);
Clements v. Clements, 10 Va. App. 580, 587, 397 S.E.2d 257, 261




                                  12
(1990) (stating that use of marital funds for living expenses is

not waste).   Accordingly, I would reverse the trial judge's order

crediting the husband with this $9,000 sum.

                          Attorney's Fees

     The record in this case established that the trial judge

abused his discretion in requiring the husband to pay $3,000 of

the wife's attorney's fees.   The wife earned approximately

$40,000 annually.   The husband's total income was approximately

$45,000 per year.   However, the trial judge's division of the

marital property required the husband to pay the wife 37.5% of

his disability pay, approximately $10,500 per year.   Thus, the

wife's adjusted annual income was approximately $50,000 while the

husband's adjusted annual income was approximately $35,000.
     The trial judge stated no reason for requiring the husband

to pay the wife's attorney's fees.   Although a fee award is

justified when the payor is in an economically superior position,

see Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558

(1987), no reason is advanced for requiring the husband, who is

in an economically inferior position, to pay the wife's fees.

     For these reasons, I would reverse the judgment and remand

with direction to the trial judge to reconsider the equitable

distribution award.   I would also reverse and set aside the award

of attorney's fees.




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