                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


SANDRA C. LONG
                                          MEMORANDUM OPINION * BY
v.   Record No. 1723-98-2             JUDGE RUDOLPH BUMGARDNER, III
                                              OCTOBER 5, 1999
GEORGE MAURICE LONG, III


              FROM THE CIRCUIT COURT OF HANOVER COUNTY
                     Richard H. C. Taylor, Judge

          J. W. Harman, Jr. (Torrence M. Harman;
          Harman & Harman, on briefs), for appellant.

          Terrence R. Batzli (Barnes & Batzli, P.C., on
          brief), for appellee.


     Sandra Long appeals from a decree establishing equitable

distribution, denying spousal support, and awarding attorney's

fees to George Maurice Long, III.   The trial court referred the

case to a commissioner in chancery who heard the matter and

filed his report June 3, 1997.   Both parties filed exceptions to

the report.   The commissioner reported that the husband should

be granted a divorce on the grounds of desertion, but the trial

court decreed the divorce on grounds of a one-year separation.

Neither party objected to the divorce decree, or to reserving

decision on the remaining issues.   On July 14, 1998, the trial



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
court entered a decree affirming all remaining matters in the

commissioner's report.

     We combine the wife's assignments of error into four main

complaints:   the trial court failed to determine title to,

classify, or value the parties' property; allocated only 35% of

the marital estate to her but charged $4,000 against her share;

did not treat the husband's retirement supplement as marital

property subject to distribution; and ordered her to pay $2,500

of the husband's attorney's fees.   The wife had appealed the

denial of spousal support, but she conceded the issue became

moot when she remarried.

     The wife also contends that the commissioner erred in

finding that she deserted the marriage.   Though the commissioner

found that the wife deserted the marriage, the trial court did

not grant the divorce on that ground.   The wife did not object

to the trial court's decision to grant a no-fault divorce.     She

cannot now complain of a decision beneficial to her.

     The parties married in 1973 and had two children born in

1975 and 1977.   By mutual agreement the wife stayed at home and

raised their children.   The husband began work as a fireman with

Henrico County in 1977, and they lived in a home owned by the

husband's mother.   The wife returned to work in 1984.   The

parties' relationship began to deteriorate in 1990, and

separation was discussed several times.   They finally separated

in September 1995 when the wife insisted on taking a trip to

                               - 2 -
Cancun over the husband's objection.   She moved into an

apartment, and the husband remained in the marital home.

     In addition to the parties, several witnesses testified

about the marriage.   Much of the husband's evidence related to

the wife's relationship with a man who hired her to clean

apartments and with whom the husband claimed she had an affair.

The wife denied having an adulterous relationship with the man.

The children testified for the husband and stressed that for the

last seven years the wife had done little of the housework which

she previously had done.

     The parties' marital estate consisted principally of

tangible personal property and one parcel of real estate

consisting of fifty-eight acres of unimproved land in King and

Queen County.   They shared a joint account at a credit union,

and the wife had her own separate account.   Over a period of

several years prior to their separation, the wife withdrew

$3,887 from the joint account and deposited it into her separate

account.   Over a similar period prior to their separation, she

withdrew another $8,170 from the joint savings account, but the

evidence did not show where it went.   After the wife's

departure, the husband supported the children, made all credit

cards payments, made payments on the wife's van, and reduced the

principal owed on the property in King and Queen County by

$5,616.



                               - 3 -
     At separation, the husband had worked as a fireman for 18

years.    He was entitled to receive retirement benefits from the

county and to receive supplemental retirement benefits if he

worked for twenty years and retired before age 65.   The

supplement would continue until age 65 when Social Security

benefits would commence.

     First, the wife complains that the court did not make

findings as to legal title and value of the individual items of

property, did not distribute the individual items of property

between the parties, and did not partition the joint real

estate.   Essentially, she claims that the trial court did not

follow the statutory outline and sequence of procedures for

decreeing equitable distribution.   While we do not sanction a

trial court ignoring or condensing the statutory procedures for

classifying and valuing property, we conclude that the trial

court proceeded in a manner requested by the parties.

     The parties asked the commissioner simply to determine a

percentage allocation of marital assets.   Neither party could

agree on the value of assets and the differences in their

opinions were large, yet they did not have the resources to have

the numerous and varied items appraised and the issues fully

litigated.   The parties planned to divide the individual items

of property between themselves after the commissioner fixed a

percentage allocation.   The wife argued that she was entitled to

a 50% share, and the husband argued she was entitled to a 25%

                                - 4 -
share at most.   With their clients' approval, the attorneys

requested the truncated procedure as a proper and practical way

to resolve their dispute.    Having jointly made this request,

neither party can complain that the full, formal statutory

procedure should have been followed when later displeased with

the portion received.

     The wife complains that the trial court did not partition

the real estate between the parties.    The parties completely

disagreed about its value, and they presented no evidence other

than their personal opinions of its value and to describe it as

containing approximately fifty-eight acres of farmland and

cut-over timberland.    The wife requested that the property "be

split right down the middle" and that "the choice of which gets

which half to be decided by a toss of the coin."   The

commissioner's report did not specifically address the real

estate.   Because we cannot determine whether the real estate was

partitioned, or the proportions and the manner of the division,

we remand for clarification or determination.

     The wife complains that the trial court awarded her only

35% of the marital estate.   Though the commissioner found that

the husband did not prove adultery, and the trial court did not

grant the divorce based on desertion, the wife asserts that the

commissioner's finding that she deserted the marriage tainted

all other findings.    In support of her contention, the wife

argues that the trial court erroneously applied the holding of

                                - 5 -
O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323

(1995), in determining equitable distribution.   The wife

interprets the trial court's order as finding that the husband's

monetary and the wife's non-monetary contributions were equal.

Thus, she argues the "lopsided" award was punishment for her

conduct but not supported by a finding that the desertion

created an adverse economic impact.

     The wife misreads the trial court's finding.    Although the

trial court granted the divorce on the ground of one-year

separation, the final order adopted the findings of the

commissioner.    That report stated that the husband made

excessive monetary contributions to both the well-being of the

family and the acquisition and maintenance of marital assets.

It said the wife made excessive non-monetary contributions to

the well-being of the family, but it said she did not make them

to the acquisition and maintenance of marital assets.   The

commissioner's finding did not equate the husband's monetary and

the wife's non-monetary contributions.

     The record does not support the wife's contention that the

trial court improperly stressed the evidence of fault or used it

to punish her.   The only time in the record the commissioner or

the trial court considered the evidence of her deserting the

marriage was when determining the equitable distribution

formula.   The negative impact of marital fault is an appropriate

consideration in making an equitable distribution award.      See

                                - 6 -
Code § 20-107.3.   Where there is marital fault that "affected

the marital estate or the well being of the family," it may be

considered in determining equitable distribution.      See

O'Loughlin, 20 Va. App. at 527, 458 S.E.2d at 325.     The fault

need not be sufficient to constitute grounds for divorce.        See

Aster v. Gross, 7 Va. App. 1, 5-6, 371 S.E.2d 833, 836 (1988);

Bentz v. Bentz, 2 Va. App. 486, 488, 345 S.E.2d 773, 774 (1986).

Consideration of marital fault is not limited to assessing waste

or dissipation of marital property.      See O'Loughlin, 20 Va. App.

at 527, 458 S.E.2d at 325.   Fault can "be considered in light of

the other factors, such as the couple's nonmonetary

contributions, under Code § 20-107.3(E)."      Id. at 528, 458

S.E.2d at 326.   The negative impact of marital fault can also be

considered when it detracts from the well-being of the family

and the marital partnership.   See id.

     The commissioner found that the wife's fault affected the

entire family.   During the marriage her primary contributions

were non-monetary contributions to the well-being of the family

and consisted of staying at home and being a housewife and a

homemaker.   The evidence established that she no longer made

those non-monetary contributions to the well-being of the

family.   During the last few years before the parties'

separation, the wife laid around the house complaining and

refused to do any household chores.    In addition, the parties'

children were aware that the wife's alleged boyfriend visited

                               - 7 -
the marital home late into the night while the husband was at

work.    The commissioner found that her fault was the

circumstance and factor that led to the dissolution of the

marriage and thus affected the duration of the marriage.    The

evidence established objectively that the wife's fault had a

negative impact on the marital partnership.

        In Virginia, there is no presumption that marital property

will be equally divided.     See Papuchis v. Papuchis, 2 Va. App.

130, 132, 341 S.E.2d 829, 830-31 (1986); Code § 20-107.    The

trial court has discretion to determine what weight to give each

statutory factor when making an equitable distribution award as

long as it considers all the factors.     See Booth v. Booth, 7 Va.

App. 22, 28, 371 S.E.2d 569, 573 (1988).    The record shows that

the trial court considered each of the statutory factors; it was

not required to quantify the weight given to each or weigh each

factor equally.     See Marion v. Marion, 11 Va. App. 659, 664, 401

S.E.2d 432, 436 (1991).    Based on all the evidence, we conclude

the trial court did not err in allocating 35% of the martial

estate to the wife.

        Next, the wife objects that the trial court excluded a

supplement to the husband's retirement benefits from the marital

assets subject to distribution.    She contends that the trial

court erred when it ruled that the law enforcement officer

supplement to his normal retirement was not part of his marital

assets.    The husband was a fireman for Henrico County which had

                                 - 8 -
elected to be a part of the state retirement system.           The county

also elected to have its firemen participate in the State Police

Officers' Retirement System pursuant to Code § 51.1-138.          Under

that program a beneficiary was entitled to receive a normal

retirement benefit and an additional annual allowance if he

retired before age 65.   See Code § 51.1-206. 1       A retiree with

twenty years of service qualifies for the supplement, which




     1
         § 51.1-206. Service retirement allowance.
              A. A member shall receive an annual
         retirement allowance, payable for life, as
         follows:
              1. Normal retirement. - The allowance
         shall equal 1.70 percent of his average
         final compensation multiplied by the amount
         of creditable service.

          *      *       *      *      *          *        *

               B. In addition to the allowance
          payable under subsection A of this section,
          a member shall receive an additional
          allowance equal to $ 8,952 annually from
          date of retirement until his sixty-fifth
          birthday.
               Such allowance shall be reviewed and
          adjusted by the Board biennially to an
          amount recommended by the actuary of the
          Virginia Retirement System based upon
          increases in social security benefits in the
          interim. This subsection shall not apply to
          the following: (i) any member who qualifies
          for retirement under subsection C of
          § 51.1-205 and is credited with less than
          twenty years' service rendered in a
          hazardous position or (ii) any member
          employed initially on or after July 1, 1974,
          who is credited with less than twenty years'
          service rendered in a hazardous position.


                               - 9 -
terminates at age 65 when the retiree would begin receiving

Social Security benefits.

      The husband argues that the law enforcement officer

supplement is a post-retirement supplement that should not be

considered marital property or a part of his retirement

benefits.   Because he is not eligible to receive it until he has

worked twenty years, he could not acquire the right during the

marriage.   He cites Hodowal v. Hodowal, 627 N.E.2d 869 (Ind. Ct.

App. 1994), and Luczkovich v. Luczkovich, 26 Va. App. 702, 496

S.E.2d 157 (1998).

     Indiana provided a retirement supplement very similar to

the one in this case.    It paid until age 65 as a replacement to

Social Security, and the employee did not qualify until his age

and years of service totaled 85.   At the time of divorce,

Hodowal did not qualify for the supplement, but his basic

retirement benefit had vested.   In Hodowal the court held that

the basic retirement benefit was marital because it had vested,

but it held that the supplement was not marital because it had

not vested.   The Hodowal decision turned on whether the

supplement was vested.   In Virginia, the classification of a

pension as marital property does not depend on whether it vested

during the marriage.    "The court may direct payment of a

percentage of the marital share of any pension, profit-sharing

or deferred compensation plan or retirement benefits, whether

vested or nonvested, which constitutes marital property and

                               - 10 -
whether payable in a lump sum or over a period of time."     Code

§ 20–107.3(G)(1).

       Hodowal explained its decision by reviewing Indiana's

treatment of military pensions.    See Kirkman v. Kirkman, 555

N.E.2d 1293 (Ind. 1990).   The Hodowal decision showed that

Indiana only classified military pensions as marital property if

the service member accumulated twenty years of service before

leaving the service.    See Hodowal, 627 N.E.2d at 873.

       In Virginia, military pensions are classified exactly the

opposite from the way Indiana classified them.      See Holmes v.

Holmes, 7 Va. App. 472, 478, 375 S.E.2d 387, 391 (1988); Sawyer

v. Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 279-80 (1985).        In

Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894 (1994), the

parties were married for seven years, the husband was in the

service during the entire time the parties were married, and he

had completed a total of eleven years of military service.

Though he had to complete twenty years of active service for his

pension rights to vest, the trial court awarded the wife a share

of the pension.   This Court affirmed the decision and held:     "in

accord with our construction of Code § 20-107.3, awards may be

decreed prior to the pensioner's receipt of payments even though

future payments may be 'an expectancy.'     Based on this record,

it was not error to award wife seventeen percent of husband's

pension to be paid when received."      Id. at 729, 446 S.E.2d at

895.

                               - 11 -
     The rationale used in Hodowal provides a proper rationale

for analyzing the supplemental benefit in this case.   However,

it leads to the conclusion that in Virginia the supplement would

be classified in exactly the opposite manner from which it was

classified in Indiana.    The supplement retirement benefits in

this case are analogous to military pensions that we addressed

in Cook.   The members were potentially entitled to the benefit

immediately upon employment.   They had contract claims though

these were conditional, but the benefits would vest or mature if

the employee worked until retirement or the date it vested.    The

members must work for a minimum of twenty years before retiring

to receive any benefit.   In either the military or supplemental

pension, retirement at any point before serving twenty years

disqualified the member from receiving any benefit.

     In this case, the basic retirement benefit was marital

property and subject to equitable distribution for the period of

service accumulated during the marriage.   The basic benefit was

marital property to the extent it accrued during the marriage

even though the member might work for years after divorce before

receiving any payment.    The supplemental benefit was different

than the basic benefit because it could not vest until the

qualifying period of service, twenty years, was met.   The

benefit did not accrue, but it was similar to the military

pensions which did not accrue benefits either.   In the essential

way the supplemental benefit differed from the basic benefit, it

                               - 12 -
corresponded to the military pension.      However, military

pensions are treated as marital property despite that

characteristic.    The feature that distinguished the husband's

basic retirement benefit and the supplemental benefit did not

affect the classification of military pensions.      It should not

affect the classification of the supplemental benefit.

        The second line of cases cited by the husband dealt with

post-separation severance benefits.      In Luczkovich, the

husband's employer was being acquired by another large drug

store chain.    After the divorce, the employer offered the

husband an incentive package to encourage the husband to take an

early retirement.    The employer offered the severance package to

pay the husband for past efforts and to encourage him to remain

with the company pending the sale.       The employer conditioned the

offer on merger with the other company.       See 26 Va. App. at 711,

496 S.E.2d at 161.    This Court held that the severance package

was not marital property.    However, the type of benefit offered

in Luczkovich was a post-separation severance package, not a

retirement benefit, and is not similar to the supplement in this

case.

        Viewing the state retirement benefits as a whole, the basic

benefit and the supplemental benefit are both part of an

integrated and coordinated retirement package.      It is one

complete program, not a grouping of unrelated items different

and separate in nature and methodology.      There is no reason to

                                - 13 -
classify the supplement differently than the basic benefit.

Unlike a post-separation retirement incentive, the supplement is

not something offered after the divorce as an incentive to

encourage the employee to retire earlier than normal.    The trial

court erred when it classified the retirement supplement as

separate property and excluded it from the equitable

distribution award.

     The wife argues that the trial court erred in charging her

share of the allocation of the marital estate with $4,000 which

it characterized as a "prior contribution."   The trial court

found that between March 1992 and March 1995 the wife had

transferred nearly $4,000 from a joint savings account and put

it in her separate account.

     The commissioner stated the evidence did not show whether

or not the money withdrawn was a dissipation of marital funds.

He found no evidence of the purposes for which the wife used the

funds.   The evidence was not sufficient to support a finding

concerning the use of the funds.   Waste is the "dissipation of

marital funds in anticipation of divorce or separation for a

purpose unrelated to the marriage and in derogation of the

marital relationship at a time when the marriage is in

jeopardy."   Booth, 7 Va. App. at 27, 371 S.E.2d at 572.    The

evidence that she spent some of the money on her alleged

boyfriend suggests a dissipation of funds, but the evidence of

the expenditures was vague and suppositional.   It showed that

                              - 14 -
several years prior to separation the wife withdrew funds.    The

evidence also proved the wife occasionally spent funds for

non-marital purposes, but it did not connect the times and

amounts of the withdrawals.   Because the evidence was

insufficient to permit an inference that the wife used the

withdrawals for a non-marital purpose, the decision to charge

$4,000 against the wife's marital share was in error.

     Finally, the wife objects to the trial court ordering her

to pay $2,500 of the husband's attorney's fees.   "An award of

attorney's fees is a matter submitted to the trial court's sound

discretion and is reviewable on appeal only for an abuse of

discretion."   Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d

554, 558 (1987) (citing Ingram v. Ingram, 217 Va. 27, 29, 225

S.E.2d 362, 364 (1976)).   "The key to a proper award of counsel

fees is reasonableness under all the circumstances."     Lightburn

v. Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996)

(citing McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d

159, 162 (1985)).   The trial court ratified the commissioner's

findings that the wife caused unnecessary additional expense by

changing attorneys right before the commissioner's hearing which

forced a continuance in the case.   It also found that she was

responsible for additional fees being incurred and that she

could afford to bear $2,500 of the husband's fees.   The record

supports the finding.   Accordingly, we conclude the trial court

did not err in making that award.

                              - 15 -
     We reverse and remand the trial court's decision to

classify the husband's supplemental retirement benefits as

separate property and to charge $4,000 against the wife's share

of the marital estate.   We also remand the issue of partition of

the real estate for clarification or determination.   All other

issues are affirmed.

                                              Affirmed in part,
                                              reversed in part,
                                              and remanded.




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