                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia


VAUGHAN MONROE CUNNINGHAM
                                         MEMORANDUM OPINION * BY
v.         Record No. 0663-95-2         JUDGE SAM W. COLEMAN III
                                             JULY 23, 1996
NOVELLA CUNNINGHAM


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     William R. Shelton, Judge

           Sharon A. Baptiste (Sylvia Cosby Jones;
           Sharon A. Baptiste, P.C.; Sylvia Cosby Jones,
           P.C., on briefs), for appellant.

           (John E. Dodson; Gordon, Dodson & Gordon, on
           brief), for appellee.



     Vaughan Monroe Cunningham (husband) appeals the final

divorce decree in which the trial court equitably distributed the

parties' marital property, awarded Novella Cunningham (wife) $500

per month in spousal support and $2,000 in attorney's fees, and

held husband in contempt for wilfully failing to pay $13,050 in
pendente lite spousal support arrears.    For the following

reasons, the decree is affirmed in part and reversed in part, and

the case is remanded to the trial court for further proceedings.
                        EQUITABLE DISTRIBUTION

     (1)   The trial court erred by failing to correctly calculate

the marital share of husband's military retirement, and by

awarding wife forty-five percent of husband's gross retirement
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
benefits.

     When equitably distributing retirement benefits, the trial

court shall classify the "marital share" of retirement or pension

benefits as "marital property."   Code § 20-107.3(A)(3)(b).

"'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, if at such time or thereafter at least

one of the parties intended that the separation be permanent."

Code § 20-107.3(G)(1); see Gamer v. Gamer, 16 Va. App. 335, 342,

429 S.E.2d 618, 624 (1993).

     In this case, the evidence showed that the parties were

married for eighteen of the twenty-one years that husband served

in the military.    At the time of the divorce, he had retired and

was receiving monthly retirement benefits.   Based on the eighteen

of twenty-one years ratio, the marital share of husband's $1,056

monthly retirement payment is $905.14, of which wife is entitled

to no more than fifty percent or $452.57.    Code § 20-107.3(G)(1).

However, rather than calculate the marital share, the trial

court awarded wife forty-five percent of husband's "gross
military retired pay," which amounts to $475.20 per month.

(Emphasis added).

     The wife contends the error is insignificant and harmless.

Because the error deprived the husband of the monthly retirement

funds to which he is entitled, the error is not harmless.

Therefore, we reverse the equitable distribution award and remand




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the case for the trial court to determine the marital share of

husband's military retirement benefits in accordance with Code

§§ 20-107.3(A)(3)(b) and 20-107.3(G)(1), and to adjust the

equitable distribution award accordingly.

     (2)   The trial court erred by awarding wife fifty percent of

the $13,000 in retirement benefits husband earned during his

employment with the Commonwealth of Virginia because the portion

of the retirement proceeds that were earned after the parties

separated are the husband's separate property.
     Retirement benefits earned after spouses have last

separated, with the intent to remain permanently separated, are

not marital property and, therefore, not subject to equitable

distribution.   Code § 20-107.3(G)(1); Price v. Price, 4 Va. App.

224, 231-32, 355 S.E.2d 905, 909 (1987).    Consequently, the trial

court erred by awarding wife fifty percent of the entire $13,000

of husband's state retirement contributions.   The parties

separated permanently in July 1989, but the husband continued to

contribute his separate property to the retirement plan after

July 1989 until 1992.   Therefore, the equitable distribution

decree awarded wife more than fifty percent of the marital share

of the husband's state retirement proceeds.    We reverse this

aspect of the equitable distribution award and remand the case

for the trial court to determine the marital share of the

husband's contributions to the state retirement plan in

accordance with Code § 20-107.3(G)(1), and to adjust the



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equitable distribution award accordingly.

     (3)    The trial court did not err by awarding wife fifty

percent of the personal injury settlement that husband received

for a back injury he sustained prior to July 1989 when the

parties last separated.

     The portion of a personal injury settlement "attributable to

lost wages or medical expenses to the extent not covered by

health insurance accruing during the marriage and before the last

separation of the parties" is marital property and is subject to

equitable distribution.   Code § 20-107.3(H).     However, the owner

of the settlement has the burden of proving the amount of the

settlement that is attributable to lost wages and medical

expenses.    See Thomas v. Thomas, 13 Va. App. 92, 95, 408 S.E.2d

596, 598 (1991).

     Husband received approximately $13,000 from a settlement for

a back injury that he suffered in the course of his employment

with the state.    He testified that a portion of the settlement

represented pain and suffering, but he could not recall and did

not prove the specific amount allocated for his non-economic

injury.    He stated that it was "very little."   The evidence is

not sufficient to prove that a specific amount of the settlement

was attributable to husband's damages for other than lost wages

and medical expenses.   Accordingly, the trial court did not err

and we affirm the equitable distribution award to the wife of

fifty percent of the husband's personal injury settlement.



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     (4)   The trial court found that husband and wife incurred

federal and state tax liabilities during certain years of the

marriage during which wife did not work, and that it was

husband's obligation to file income tax returns for those years.

The trial court did not err by refusing to credit husband for

the delinquent tax payments that he made to satisfy their tax

liabilities after they were separated.

     Although income tax debts incurred during the marriage are

generally classified as marital debt, a trial court does not

abuse its discretion by holding that a spouse who did not have

earnings and who did not create the liability should not be held

liable for a late filing penalty.       See Brett R. Turner, Equitable

Distribution of Property § 6.29, at 457 (2d. ed. 1994).      The

trial court did not err by refusing to give husband credit for a

portion of the tax debt when the entire tax obligation was

incurred by the husband.
                           SPOUSAL SUPPORT

     Code § 20-107.1(8) provides that when determining spousal

support a trial court shall consider the "provisions made with

regard to the marital property under Code § 20-107.3."

Accordingly, because we are reversing and remanding "provisions

made with regard to the [equitable distribution of] marital

property," we necessarily must remand the issue of spousal

support for reconsideration.    See Brinkley v. Brinkley, 5 Va.

App. 132, 141-42, 361 S.E.2d 139, 143-44 (1987).



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Notwithstanding, because the trial court will necessarily

confront on remand certain spousal support issues that the

parties raise on appeal, we address those issues:

     (1) We hold that the trial court erred to the extent that it

based the wife's $500 per month spousal support award, in whole

or in part, on the husband's portion of the marital share of his

military retirement pension.

     "Whether spousal support should be paid is largely a matter

committed to the sound discretion of the trial court, subject to

the provisions of Code § 20-107.1."    McGuire v. McGuire, 10 Va.

App. 248, 251, 391 S.E.2d 344, 347 (1990).   Code § 20-107.1(1)

expressly provides that in setting spousal support the trial

court shall consider a party's financial resources, including

income from "all pension, profit sharing or retirement plans, of

whatever nature."   However, the trial court must apply the

provisions of Code § 20-107.1(1) in conjunction with the

provisions and limitation imposed by Code § 20-107.3(G)(1), which

prohibits awarding a spouse in excess of "fifty percent of the

marital share of cash [retirement] benefits actually received by

the party against whom such award is made."
          The court may direct payment of a percentage
          of the marital share of any . . . retirement
          benefits, whether vested or nonvested, which
          constitutes marital property and whether
          payable in a lump sum or over a period of
          time. . . . No such payment shall exceed
          fifty percent of the marital share of cash
          benefits actually received by the party
          against whom such award is made.




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Id.   Although Code § 20-107.3(G)(1) by its terms applies to

equitable distribution, and not to spousal support, the clear

purpose of the provision is to ensure that a person who has

contributed to a retirement or pension plan shall be guaranteed

at least fifty percent of the marital share of retirement

benefits actually received in a divorce proceeding.   The trial

court cannot indirectly exceed the fifty percent limitation on

the equitable division of the marital share of retirement

benefits by basing the spousal support award, in part, upon the

husband's marital share of his pension.
      As previously noted, when the trial court awarded wife

forty-five percent of the husband's "gross military retired pay,"

the court already exceeded the limitation imposed by Code

§ 20-107.3(G)(1).   The trial court further exceeds the fifty

percent limitation to the extent that it based the spousal

support award, in whole or in part, upon the husband's remaining

portion of the marital share of his military retirement.

      The evidence proved that the husband had monthly income of

$724 as a minister.   He also had $1,056 per month in military

retirement benefits, of which he was ordered to pay $475.20 to

wife under the equitable distribution award.   His assets

consisted of his equitable distribution award of $8,500 for

one-half the equity from the marital residence, his $6,500 for

one-half of his contributions in Virginia retirement benefits,

and his $6,500 for one-half of his personal injury award.



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Although Code § 20-107.1(1), (7), and (8) expressly provide that

the trial court shall consider the parties' incomes from

pensions; their real and personal property interests; and the

provisions from the equitable distribution award in determining

spousal support, the limitation of Code § 20-107.1(G)(1)

prohibits an award that, to the extent it is based on a party's

cash retirement benefits actually being received, will exceed

fifty percent of the husband's marital share of "cash benefits

actually received by the party against whom such award is made."

     Although we cannot say with assurance from this record that

the spousal support award of $500 per month was based upon the

remaining fifty percent of the husband's cash retirement

benefits, on remand the court must take Code § 20-107.1(G)(1)

into consideration.   It does not appear that the trial court

based the monthly spousal support award upon husband's equitable

distribution award from his equity in the marital residence, his

share of his state pension contributions, or his share of the

personal injury award.   The court had equally divided those

assets and no evidence proved the husband's share generated

income sufficient to pay the monthly award or that the court

intended that husband would be required to liquidate his

resources for that purpose.   See Code § 20-107.1(7); L.C.S. v.

S.A.S., 19 Va. App. 709, 715-17, 453 S.E.2d 580, 583-84 (1995).

Furthermore, the court did not base the spousal support award, in

any degree, upon husband's separate property because, as



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previously noted, the court did not determine his separate

interest in either his military retirement or his post-separation

contributions to his state pension.    Because the $724 per month

received as a minister would not have supported a spousal support

award of $500, 1 the record indicates that the award may have been

based, at least in part, upon husband's monthly cash retirement

benefits, and to that extent would exceed the fifty percent

limitation of Code § 20-107.1(G)(1).   In reconsidering spousal

support on remand, the trial court shall consider the limitation

imposed by Code § 20-107.1(G)(1).
     (2)   The trial court did not err by finding husband in

contempt for failing to pay the court ordered pendente lite

spousal support, which appellant concedes is in arrears.

     A party is in contempt of a court's order to pay spousal

support only when the party fails or refuses to pay the

obligation "in bad faith or [in] willful disobedience of [the

court's] order."   Alexander v. Alexander, 12 Va. App. 691, 696,

406 S.E.2d 666, 669 (1991) (quoting Carswell v. Masterson, 224
Va. 329, 332, 295 S.E.2d 899, 901 (1982)).   Where the evidence

shows a party's failure to pay spousal support, the offending

party "has the burden of proving justification for his or her

     1
       Assuming that the trial court relied solely on husband's
income from his church activities in determining spousal support,
ordering husband to pay $500 per month when his income was $724
per month, without explanation, constitutes a clear abuse of
discretion on this record. See Gamble v. Gamble, 14 Va. App.
558, 574, 421 S.E.2d 635, 644 (1992).




                               - 9 -
failure to comply."     Id.

     Here, the pendente lite support order required husband to

pay wife $900 per month.      Husband concedes that he did not comply

with the court's order and that the accumulated arrearage is

$13,050.   Husband contends, however, that he was unable to pay

the support obligation because his wages were subject to a tax

levy beginning in April 1992, and he left his job with the state

in 1992 for medical reasons.      During the period between 1989 and

1992 that the pendente lite support order was in effect, husband
was receiving the full monthly benefits from his military

retirement, his income from his pastoral activities, the state

retirement proceeds, and the personal injury settlement.       On

these facts, he had funds available to pay the support

obligation.    The trial court did not err by finding that the

defendant wilfully failed to pay support as ordered.     The

contempt citation was "not plainly wrong [or] without evidence to

support it."    Id.   Furthermore, the court did not abuse its

discretion by requiring husband to immediately pay the arrearage

in order to purge the contempt; the order was remedial in nature.
 See Rainey v. City of Norfolk, 14 Va. App. 968, 974, 421 S.E.2d

210, 214 (1992).
                              ATTORNEY'S FEES

     The trial court has discretion to award attorney's fees that

are reasonable "under all of the circumstances revealed by the

record."   Gamer, 16 Va. App. at 346, 429 S.E.2d at 626 (quoting




                                  - 10 -
Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631

(1989)).   Here, the record shows that wife incurred attorney's

fees of at least $3,281.50.   Therefore, the trial court did not

abuse its discretion by awarding wife $2,000 in attorney's fees.

     For these reasons, the decree appealed from is affirmed in

part and reversed in part, and the case is remanded for further

proceedings consistent with this opinion.
                                                 Affirmed in part,
                                                 reversed in part,
                                                     and remanded.




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