                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia


GIRARD C. MILLER
                                         MEMORANDUM OPINION * BY
v.   Record No. 2261-02-4                 JUDGE LARRY G. ELDER
                                              JULY 15, 2003
LYNN E. MILLER


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                     Alfred D. Swersky, Judge

          Michael A. Ward (Michael A. Ward, P.C., on
          briefs), for appellant.

          David D. Masterman (Condo Masterman Kelly &
          Roop, P.C., on brief), for appellee.


     Girard C. Miller (husband) appeals from the equitable

distribution and spousal support awards accompanying his divorce

from Lynn E. Miller (Cox) (wife).   On appeal, he argues the

court's equal division of a particular marital investment

account was error and challenges the fact, amount and duration

of the award to wife of part of his deferred compensation,

including his supplemental executive retirement plan (SERP).   He

also challenges the fact, amount and duration of the spousal

support award and contends the trial court erroneously failed to

include in wife's income monies to be earned on assets she

received in the equitable distribution or, in the alternative,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
erroneously found five percent was a reasonable rate of return

for those assets.    Wife argues husband's appeal is barred

because he enforced a portion of the award, and she assigns

cross-error to the trial court's refusal to award her attorney's

fees.    Both parties seek an award of attorney's fees on appeal.

        We hold husband's selective enforcement of the equitable

distribution award does not bar this appeal.      On the merits, we

hold the court erroneously failed to divide $65,000 in deferred

compensation benefits and that the marital share of these

benefits is one hundred percent.      We also hold that the marital

share of husband's contract completion bonus, if one is

received, is five percent.      Next, we hold the formula the trial

court set out for calculating the marital share of husband's

SERP was incorrect.       We affirm as to all other challenged

aspects of the equitable distribution award.      We direct the

trial court to reconsider the spousal support award in light of

our reversal of a portion of the equitable distribution award.

Finally, we affirm the trial court's denial of wife's request

for attorney's fees and direct the parties to bear their own

fees on appeal, as well.      Thus, we affirm in part, reverse in

part, and remand for further proceedings in keeping with this

opinion.

                     I.    WAIVER OF RIGHT TO APPEAL

        Wife contends husband waived his right to challenge the

spousal support and equitable distribution awards when the trial

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court, at his request, entered qualified domestic relations

orders (QDROs) distributing two marital assets divided by the

equitable distribution award.   We acknowledge the general

principle that "[a] party availing himself of a decree as far as

favorable to him cannot appeal from the decree wherein it is not

favorable to him, if his acceptance of the benefit on the one

hand is totally inconsistent with appeal on the other."    1B

Michie's Jurisprudence, Appeal and Error § 54, at 196 (1995).

However, we hold that this is not what occurred here.

     First, wife has failed to establish that husband benefited

from the portions of the decree he sought to enforce.   The two

retirement accounts husband asked the court to divide were in

his name alone.   Absent the QDROs, husband retained the entire

interest in the accounts.   Upon entry of the QDROs, wife, not

husband, obtained a substantial benefit in the form of a right

to payment of half the sums disbursed from the accounts.

     Further, even if the QDROs benefited husband, his appeal of

other portions of the equitable distribution award is not

barred.   Husband assigned no error to the trial court's division

of the two retirement accounts, and their division is at issue

only indirectly as they are two of many components of the

equitable distribution of a sizeable marital estate.    A party

who appeals some aspects of an equitable distribution award

while enforcing others is not absolutely barred from having the

challenged issues considered on appeal.   Rather, that party

                                - 3 -
merely runs the risk that, if he wins on appeal, the trial

court, on remand, will be unable to provide him with the full

benefits of his victory because insufficient assets remain in

the marital estate.     Here, because the estate is sizable, the

trial court's ability to adjust the remaining portion of the

award, if necessary in the event of a reversal, is manifest.

                       II.   EQUITABLE DISTRIBUTION

     On appeal, we review the evidence in the light most

favorable to the party prevailing below.       Anderson v. Anderson,

29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).

           Unless it appears from the record that the
           chancellor 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.

Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).

                  A.    FIDELITY INVESTMENT ACCOUNT

     Husband contends the court should have awarded him sixty

percent rather than fifty percent of the Fidelity investment

account.   He avers that "the overwhelming weight of the evidence

. . . as to the contributions of the parties, both monetary and

non-monetary, [to the acquisition of marital property] favored"

him, but he focuses predominantly on his contention that "he

contributed more than 93% of the income during the marriage and

made the majority of investment decisions which resulted in the

                                   - 4 -
couples' accumulation of wealth."   Based on the factors in Code

§ 20-107.3 and the evidence in the record, viewed in the light

most favorable to wife, we hold the court did not abuse its

discretion by evenly dividing the Fidelity account.

      Although "there is no presumption in Virginia favoring

equal division of marital property," a court is not "constrained

from making an equal division if it finds it appropriate to do

so upon consideration of the factors set forth in Code

§ 20-107.3(E)."   Robinette v. Robinette, 10 Va. App. 480, 486,

393 S.E.2d 629, 633 (1990).   "[W]here one party contributes

substantially more to a marriage financially, the court may in

its discretion . . . make a greater award to the party

contributing the most financially," but it is not required to do

so.   Srinivasan v. Srinivasan, 10 Va. App. 728, 733, 396 S.E.2d

675, 678 (1990) (emphasis added).

      Here, the evidence, viewed in the light most favorable to

wife, supported the trial court's findings that, although

husband's "monetary contributions were far more significant from

a pure dollar standpoint," wife "was an integral part of the

marriage," "performing her role in a substantial way,"

"contributing both socially and economically" "in the manner

agreed to (whether expressly or implicitly) by the parties."

      Prior to and during the parties' marriage, wife wrote and

edited financial materials during the course of her professional

life, and she averred she was heavily involved in discussions

                               - 5 -
regarding how to invest the parties' money throughout the course

of their marriage.

     Wife worked throughout the marriage but testified that she

sacrificed her career for husband's, moving with him several

times in order to advance his career.   She maintained the home

and served as the primary caregiver for husband's son from his

first marriage when the son, who was ten years old when the

parties married in 1985, visited for three to seven weeks during

the summer.   The parties had limited professional help for house

cleaning, remodeling and landscaping.   Wife was primarily

responsible for maintaining the house and overseeing those who

came into the house to help.   Wife prepared each of the parties'

homes for sale and oversaw extensive litigation concerning one

home, which resulted in a $250,000 recovery.

     In 1993, wife made a "tremendous career sacrifice" by

"moving to Washington[, D.C.,] to facilitate . . . husband's

desire . . . to be the CEO of his own organization," a company

that managed retirement assets.   Wife was interviewed before

husband was hired for the position, and she participated

extensively in husband's entertaining and travel in that

position.   Wife testified that the board members of husband's

corporation "liked [her] because [she] could talk about

retirement and that's what th[e] company is all about."    Husband

told both wife's sister and his own friend and business



                               - 6 -
colleague that wife played a "vital role in furthering the

effectiveness of his career" and "he was fortunate to have her."

     This evidence, viewed in the light most favorable to wife,

established both (1) that wife made monetary and nonmonetary

contributions to the well-being of the family and the

acquisition, care and maintenance of the marital property during

the fifteen-year marriage and (2) that her nonmonetary

contributions were significant.    Thus, despite husband's

disproportionately large monetary contributions to the marriage,

we hold the trial court did not abuse its discretion in dividing

the Fidelity investment account equally.

            B.   DEFERRED COMPENSATION OTHER THAN SERP

     Marital property includes, inter alia, "that portion of

pensions, profit-sharing or deferred compensation or retirement

plans of whatever nature, acquired by either spouse during the

marriage, and before the last separation of the parties."      Code

§ 20-107.3(A)(2) (emphasis added).       "[T]he future benefit is

deemed acquired when the contribution is made and not when the

benefit is actually received."    Brett R. Turner, Equitable

Distribution of Property § 5.09, at 156, 161 (2d ed. 1994).         In

addition, a bonus "received at the end of a period of successful

employment [is] acquired gradually throughout the entire period

and not all at once . . . .   Thus if the husband receives after

the marriage a bonus for work performed during the marriage, the

bonus is marital property."   Id. at 156.

                                 - 7 -
        Husband challenges subsection (i) of the court's deferred

compensation award.    He contends wife is not entitled to any

portion of the benefit to be paid in September 2004 because

employer's contribution for this benefit was made after the

parties' separation and had no relation to husband's

pre-separation service.    We disagree.   Husband testified that

each of employer's contributions to the 457(f) account did not

vest for three years and that he could access a contribution

only after it vested.    Although the employment agreement does

not specify the period of service for which the September 2001

contribution was made, the contract covers the period from

January 1, 2001, to March 31, 2006, and provides that employer

will make a contribution on September 1 in each of the years

from 2001 to 2005 based on husband's earnings during the prior

year.    Thus, the court could reasonably have concluded that

employer's September 2001 contribution, payable on September 1,

2004, was for husband's service for the entire 2001 calendar

year.    Because the parties were married for the first three

months of 2001, the marital share of that contribution was 25%.

Thus, the trial court's award of 12.5% of the September 2004

distribution to wife was in keeping with its equal division of

the marital share of many assets.

        For similar reasons, we reject husband's claims of error in

subsections (iii) and (iv) of the deferred compensation

distribution.    The distributions payable in September 2002 and

                                 - 8 -
September 2003 were for husband's service in 1999 and 2000,

respectively.   Because the parties did not separate until April

2001, the marital share of the September 2002 and September 2003

distributions was one hundred percent, and the trial court's

award of 50% of each of those distributions to wife was in

keeping with its equal division of the marital share of many

assets.

     Husband also assigns error to the fact that the trial court

erroneously estimated the September 2002 and 2003 distributions

would equal "approximately $154,000," whereas in fact they

totaled only $102,000.   However, husband brought this alleged

error to the trial court's attention in his motion to

reconsider.   When the trial court entered the final decree, it

omitted its estimate of the amount of these distributions but

adhered to its earlier decision to divide the distribution

equally.   Because husband has failed to establish error, see,

e.g., Key v. Commonwealth, 21 Va. App. 311, 313, 464 S.E.2d 171,

172 (1995), we affirm the division of these distributions.

     Husband also assigns error to the trial court's failure to

divide $65,000 in 457(f) benefits receivable in March 2003.    He

represents that the marital share of the benefits is 33.4%,

entitling wife to an award of 16.7% of those benefits.   We agree

that the trial court failed to include this benefit payment in

the decree and, based on the court's duty to classify and divide

all marital property, see Code § 20-107.3(A), that this omission

                               - 9 -
constituted reversible error.    However, again, we disagree with

husband as to the amount of the benefit to which wife is

entitled.   The undisputed evidence at trial indicated that

husband was to receive a deferred compensation "payout" in March

2003 based on a contribution made in March 2000.    This

conclusion was supported by husband's testimony that deferred

compensation payments made by employer on his behalf did not

vest until three years after each contribution was made.   The

court could reasonably have concluded employer made the March

2000 contribution for service rendered during 1999 or 2000,

prior to the parties' separation in April 2001.    Thus, the

marital share was 100% rather than 33.4%.

     Husband next challenges the subsection (ii) award to wife

of "12.5% of the distribution received in March, 2002."    Husband

argues he did not receive a 457(f) distribution at that time but

did receive a performance bonus.    In response to argument on

this issue on the motion for reconsideration, the trial court

observed, "I thought that the only objection to that was the way

it was characterized . . . [that] I mischaracterized it as

deferred compensation" rather than as a bonus.    Subsection (ii),

as originally drafted, provided that "[Wife] is to receive 12.5%

of the 457(f) plan distribution payable in March, 2002, and a

similar percentage of the distribution in March, 2003."    After

the trial court heard argument from counsel, it struck from the

decree the "457(f) plan" language and the language awarding "a

                                - 10 -
similar percentage of the distribution in March, 2003," and

changed the phrase "payable in March, 2002," to "received in

March, 2002."    (Emphases added).   In light of the trial court's

statements on the record, we hold the removal of these phrases

from the decree demonstrates the court's confirmation that it

was dividing bonuses actually paid in March 2002.

        Husband contends the trial court erroneously failed to

award to wife an equal portion of the marital shares of the

long-term "Summit" bonus incentives to be received in 2003 and

2004.    However, subsections (v) and (vi) of the final decree

expressly provide for the division of the 2003 and 2004 Summit

incentives.    Further, the decree sets the amount of the 2004

incentive at 4.2%, the amount requested by husband.    Thus, we

conclude the trial court committed no error on these issues.      As

to the 2003 Summit incentive, husband's employment contract

provided that incentive covered the service period of 2000

through 2002, making the marital share 41.6%.    Although the

trial court divided evenly the marital share of many of the

assets, it was not required to do so.    Thus, we hold it did not

abuse its discretion in awarding less than half the marital

share of the 2003 incentive to wife.

        Lastly, husband asks for clarification of the court's

subsection (vii) award to wife of half the marital share of the

contract completion bonus if and when husband receives that

bonus.    Husband seeks the addition of language indicating that

                                - 11 -
"one-half of the marital share of the contract completion bonus

is one-half of 1/21st (there being 21 calendar quarters in the

contract), or 1/42nd or 2.38 per cent [sic]."   Husband's

employment contract expressly covers the term of January 1,

2001, through March 31, 2006, unless husband dies or is

terminated.   The provision of the contract detailing the terms

of the completion bonus states as follows:

          In the event that overall performance
          targets established under each of his annual
          incentive compensation programs shall have
          been met in each of the five years ending in
          December 2005, Executive shall be paid in
          January 2006 a contract completion
          performance bonus of $[X]. In the event
          that, at the time, the performance targets
          in his annual incentive compensation
          programs shall have been met or exceeded in
          four of the five years ending in December
          2005, he shall be paid a contract completion
          performance bonus of $[0.5X].

The completion bonus relates expressly to husband's performance

under the contract during the years 2001 through 2005, is

payable in January 2006, and does not include his performance

during the twenty-first and final quarter of the contract.

Thus, the marital share of the completion bonus is 5%.

                         C.   THE SERP PLAN

               1.   Calculation of the Marital Share

     The 2000 SERP agreement provides an absolute limit of 12

years of SERP benefits based on actual years of service, whereas

the amendment contained in the 2001 employment contract allows

husband to earn additional years of benefits based on

                               - 12 -
performance goals rather than years of service.       Wife offered

expert testimony that the SERP plan was limited to 12 years of

actual service, but wife's expert reviewed only the 2000 SERP

plan.    The expert's testimony did not take into consideration

the amendment contained in husband's 2001 employment contract.

        Based on the SERP amendment contained in husband's 2001

employment contract, we hold that the final decree did not set

out the correct formula for calculating the marital share of the

SERP benefits.    The decree should have defined the denominator

for the marital share as husband's actual years of service up to

12 years plus any performance-based "years-of-service" credits

earned by husband under the 2001 SERP amendment.       If husband

earns an additional year of service for performance in 2001,

wife is entitled to have the numerator for calculating the

marital share increased by 0.25 to represent the portion of 2001

prior to the parties' separation.

                 2.   Tax Consequences of SERP Division

        Husband's expert testified that the SERP is "a nonqualified

retirement plan which means that contributions that go into it

are not tax free or tax deferred."        He also testified that it is

not covered by "the ERISA rules that have to do with

divisibility upon divorce," meaning it is not subject to

division by QDRO.     Husband explained that he will have "a

complete tax liability immediately upon [the SERP's] vesting,"

which he testified would occur in January 2006 if he continues

                                 - 13 -
to work for his present employer through that date, even if he

is not eligible to begin receiving SERP benefits at that time.

Husband argues that wife should be required to pay her share of

any taxes due in advance of the distribution of benefits.        We

hold that the decree, as written, is broad enough to require

wife to make her share of such tax payments as they become due,

even if this occurs in advance of any distributions.

                         III.   SPOUSAL SUPPORT

     Husband challenges the fact, amount and duration of the

trial court's spousal support award.      He contends that, in

calculating wife's income, the trial court erroneously failed to

include monies to be earned by wife on assets received in the

equitable distribution or, in the alternative, erroneously found

five percent was a reasonable rate of return on the investment

of such assets.

     Because we reverse portions of the equitable distribution

award, we must direct that the trial court reconsider its

spousal support award in light of changes in the distribution of

the parties' property.     See Code § 20-107.3(E)(8).   Thus, we do

not consider any aspect of the spousal support award on the

merits.   However, based on husband's claim that the court failed

properly to consider wife's investment income in determining her

need for support and the fact that wife's income will again be a

factor in the trial court's consideration of the spousal support

award on remand, cf., e.g., Virginia Elec. & Power Co. v.

                                 - 14 -
Westmoreland-LG&E Partners, 259 Va. 319, 324-25, 526 S.E.2d 750,

754 (2000) (addressing on merits issue not necessary for

decision on appeal but "likely to arise [again] on remand"), we

make the following observations:

     A court determining whether to award spousal support

pursuant to Code § 20-107.1 and if so, how much, must consider

any investment income each spouse is able to earn on assets

received in the equitable distribution.   Code § 20-107.1(E)(1),

(8); see Rowe v. Rowe, 24 Va. App. 123, 129, 480 S.E.2d 760, 767

(1997).   Although a spouse seeking support may not be required

to invade the corpus of funds or other assets received pursuant

to the equitable distribution, a court must consider any income

those assets are able to produce.   Rowe, 24 Va. App. at 129, 480

S.E.2d at 767.   If the evidence supports a finding that the

assets are "underinvested," the court may, in its discretion,

impute a higher rate of return to such assets than they are

actually earning, see L.C.S. v. S.A.S., 19 Va. App. 709, 715-16,

453 S.E.2d 580, 583-84 (1995), but it is not required to do so.

                       IV.   ATTORNEY'S FEES

     Whether to award attorney's fees and costs rests within the

sound discretion of the trial court.    See, e.g., Lightburn v.

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

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).

                               - 15 -
        Wife appears to contend she was entitled to an award of

fees because the divorce resulted from husband's desire to

commit adultery and because husband inaccurately responded to

discovery, which caused wife to incur additional attorney's

fees.    However, the trial court did not grant the divorce based

on a finding of adultery and expressly stated that wife had

"failed to prove adultery occurring before the separation."

Further, even if the court had granted a divorce based on a

finding of adultery, it would not be compelled to hold husband

responsible for some or all of wife's attorney's fees.

Similarly, assuming a discovery violation occurred, whether to

award attorney's fees as a discovery sanction also is

discretionary.     See Code § 8.01-271.1.   We hold the court did

not abuse its discretion in refusing the request for attorney's

fees.

        Each party also requests an award of attorney's fees on

appeal.    Because we hold that the trial court erred in some of

the respects complained of by husband on appeal and because both

parties received substantial assets in the equitable

distribution, we decline to make an award of fees and direct

that the parties bear their own fees incurred on appeal.

                                  V.

        We hold husband's selective enforcement of the equitable

distribution award does not bar this appeal.     On the merits, we

hold the court erroneously failed to divide $65,000 in deferred

                                - 16 -
compensation benefits and that the marital share of these

benefits is one hundred percent.   We also hold that the marital

share of husband's contract completion bonus, if one is

received, is five percent.   Next, we hold the formula the trial

court set out for calculating the marital share of husband's

SERP was incorrect.   We affirm as to all other challenged

aspects of the equitable distribution award.   We direct the

trial court to reconsider the spousal support award in light of

our reversal of a portion of the equitable distribution award.

Finally, we affirm the trial court's denial of wife's request

for attorney's fees and direct the parties to bear their own

fees on appeal, as well.   Thus, we affirm in part, reverse in

part, and remand for further proceedings in keeping with this

opinion.

                                                 Affirmed in part,
                                                 reversed in part,
                                                     and remanded.




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