                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Alexandria, Virginia


JACKSON H. GERWE

v.        Record No. 0860-95-4          MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
JUDITH GERWE                              JANUARY 16, 1996


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Richard J. Jamborsky, Judge
          Peter M. Fitzner (Shoun & Bach, P.C., on
          briefs), for appellant.

          Morgan Brooke-Devlin, for appellee.



     On appeal from a final decree granting his wife, Judith

Gerwe, a divorce, Jackson H. Gerwe contends the trial court erred

(1) in granting the divorce on the ground of desertion, (2) in

determining the equitable distribution award, (3) in awarding

spousal support to Ms. Gerwe, and (4) in requiring him to pay the

cost of a survivor benefit for Ms. Gerwe under his pension plan.

  We affirm in part and reverse in part.

     Mr. and Ms. Gerwe were married on October 27, 1962.       The

only child of the marriage is emancipated.    Mr. Gerwe is a

retired employee of AT&T.    Ms. Gerwe operates a small craft

business from her home.    Throughout the marriage, Mr. Gerwe

supported Ms. Gerwe and made the majority of the monetary

contributions to the marriage.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     In November 1992, Mr. Gerwe left the marital residence

without telling Ms. Gerwe and moved in with another woman.        He

never returned.   Prior to his leaving, the parties had no

physical relationship for eighteen years and no social

relationship for twenty-two years.      Ms. Gerwe hired investigators

to locate her husband, without success.

     On June 7, 1993, Ms. Gerwe filed suit for divorce on the

ground of desertion.    After attempts to effect service on Mr.

Gerwe were unsuccessful, the trial court entered ex parte orders

on October 15 and 29, 1993, freezing Mr. Gerwe's assets, awarding

Ms. Gerwe $3,100 per month spousal support pendente lite and

$5,000 in attorney's fees, and garnishing Mr. Gerwe's pension in

the amount of $4,884.

     In November 1993, Mr. Gerwe appeared specially to contest

the trial court's jurisdiction.   Because it lacked in personam

jurisdiction over Mr. Gerwe, the trial court vacated the orders

granting spousal support and attorney's fees.      However, the trial

court ruled that it had jurisdiction to freeze Mr. Gerwe's assets

and did not vacate that provision.

     The commissioner in chancery found that Mr. Gerwe deserted

Ms. Gerwe on November 30, 1992, and recommended that Ms. Gerwe be

granted a divorce on that ground.       The trial court approved this

finding and on March 24, 1995, entered a final decree awarding

Ms. Gerwe a divorce on the ground of desertion.      The decree

awarded her the entire marital share of the marital home, a



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$53,032 monetary award, $288 a month in spousal support, $10,000

in attorney's fees, 35.6 percent of Mr. Gerwe's AT&T pension, and

required Mr. Gerwe to pay the cost of providing that Ms. Gerwe's

share would survive for her lifetime.

     First, Mr. Gerwe contends that the trial court erred in

awarding Ms. Gerwe a divorce on the ground of desertion.    He

argues that he did not desert her, but that their separation was

by mutual agreement.    He argues that even if his departure was

not specifically by agreement, their marriage was "dead."
     A legally recognizable event is necessary to dissolve a

marriage.   "One spouse is not legally justified in leaving the

other spouse simply because the marital relationship has

gradually broken down."     Pillow v. Pillow, 13 Va. App. 271, 276,

410 S.E.2d 407, 410 (1991).    "Desertion occurs when one spouse

breaks off marital cohabitation with the intent to remain apart

permanently, without the consent and against the will of the

other spouse."     Barnes v. Barnes, 16 Va. App. 98, 101, 428 S.E.2d

294, 297 (1993).    The evidence supports the finding that Mr.

Gerwe made a unilateral decision to leave home.    Ms. Gerwe did

not know his whereabouts and was unable to locate him, even with

the help of investigators.    We find no error in the trial court's

award of the divorce on the ground of desertion.

     Second, Mr. Gerwe contends that the trial court erred in

determining the equitable distribution award 1) by making a

$53,032 monetary award to Ms. Gerwe and 2) by awarding Ms. Gerwe



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the entire marital share of the parties' marital home.   Mr. Gerwe

argues that the trial court did not comply with Code § 20-107.3

in making the monetary award, that it punished him for leaving

the marriage, and that the award is not reconcilable with the

facts.   He argues that because the trial court did not find that

he had wasted marital assets, it erred in considering his

leaving, secreting himself, and taking money post-separation in

fixing the monetary award.   He argues that "[c]ircumstances that

lead to the dissolution of the marriage but have no effect upon

marital property or its value are not relevant to determining a

monetary award and need not be considered."    Marion v. Marion, 11

Va. App. 659, 664, 401 S.E.2d 432, 436 (1991) (citation omitted).

     We will not reverse an equitable distribution award

"[u]nless 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 finding of fact underlying his resolution of

the conflict of the equities. . . ."    Smoot v. Smoot, 233 Va.

435, 443, 357 S.E.2d 728, 732 (1987).   We find no abuse of

discretion in the equitable distribution award.   The trial court

considered the factors set forth in Code § 20-107.3(E) and

applied them to the facts, taking into consideration specifically

that Mr. Gerwe deserted Ms. Gerwe, that he secreted himself, and

that he deprived her of support.   A trial court when considering

the statutory factors of Code § 20-107.3(E) "is not required to




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quantify the weight given to each, nor is it required to weigh

each factor equally, though its considerations must be supported

by the evidence."     Marion, 11 Va. App. at 664, 401 S.E.2d at 436.

The evidence supports the trial court's award of the marital

share of the marital residence to Ms. Gerwe and the $53,032

monetary award.

     Third, Mr. Gerwe contends that the trial court erred in

awarding spousal support to Ms. Gerwe.    He argues that the trial

court failed to apply Code § 20-107.1 properly.    We disagree.
     "[I]n awarding spousal support, the trial court 'must

consider the relative needs and abilities of the parties.'"

Mosley v. Mosley, 19 Va. App. 192, 197, 450 S.E.2d 161, 164

(1994) (citation omitted).    "When a [trial] court awards spousal

support based upon due consideration of the factors enumerated in

Code § 20-107.1, as shown by the evidence, its determination

'will not be disturbed except for a clear abuse of discretion.'"

 Huger v. Huger, 16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993)

(citation omitted).    The trial court found 1) that Ms. Gerwe had

an income of between $1,000 and $3,000 a year, while Mr. Gerwe

had a yearly pension income of $28,115.28, 2) that Mr. Gerwe had

made the majority of financial contributions to the marriage, but

Ms. Gerwe had made the majority of non-monetary contributions,

and 3) that Mr. Gerwe deserted Ms. Gerwe and then secreted

himself, leaving her without support.    These findings are

supported by the evidence and justify the award of spousal



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support to Ms. Gerwe.

     Fourth, Mr. Gerwe contends that the trial court abused its

discretion in requiring him to pay the cost of converting Ms.

Gerwe's share of his pension to a benefit that will survive for

her lifetime.   He argues that this increased cost will accrue to

her more than fifty percent of the marital share of his pension,

in violation of Code § 20-107.3(G).    We agree.

     Code § 20-107.3(G) provides, in pertinent part:
     No [pension award] shall exceed fifty percent of the
     marital share of the cash benefits actually received by
     the party against whom such award is made.

The marital share of Mr. Gerwe's pension is 71.2 percent.   The

award to Ms. Gerwe of 35.6 percent of Mr. Gerwe's gross pension

receipts represented the maximum allowance to her permissible

under the statute.   The requirement that Mr. Gerwe pay the cost

of extending Ms. Gerwe's allowed benefit for her lifetime reduced

pro tanto the benefit to be received by him, thus awarding her

more than fifty percent of the marital share benefits to be

received.

     The judgment of the trial court is reversed and modified to

delete the requirement that Mr. Gerwe pay the cost of fixing Ms.

Gerwe's share of his pension as a benefit to survive for her

lifetime.   The judgment of the trial court is otherwise affirmed.

                               Affirmed in part, reversed in part.




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