                     COURT OF APPEALS OF VIRGINIA


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

SHARON A. HARVEY

v.         Record No. 0524-95-4          MEMORANDUM OPINION * BY
                                       JUDGE ROSEMARIE ANNUNZIATA
JAN VORIS HARVEY                           DECEMBER 29, 1995


               FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                     William Shore Robertson, Judge

          Julia S. Savage (Walker, Jones, Lawrence, Duggan &
          Savage, P.C., on briefs), for appellant.

          Linda I. Dodge for appellee.



     Sharon A. Harvey ("wife") and Jan Voris Harvey ("husband")

were divorced by decree entered February 24, 1995.    In her appeal

of the decree, wife contends the trial court abused its

discretion in failing to quantify her interest in pension

benefits paid to the husband during the pendency of the

proceedings, where a pendente lite decree ordered the husband

both to preserve marital assets and to pay support and

maintenance.    We find no error and affirm the judgment of the

trial court.

     The parties were married on June 25, 1966.     During the

marriage, the husband was an active member of the United States

military, retiring as a Colonel in December 1988.    The wife

worked at home, providing support for the husband's career.      The

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court concluded that the husband's military career was a

joint endeavor of the husband and wife.

     The husband received his first pension payment around

January 1, 1989, just days before the wife filed for divorce.    By

the end of that month, the court had entered a decree pendente

lite, restraining both parties from "disposing of any property

from his or her estate in order to preserve the respective

estates so that it may be forthcoming to meet any decree which

may be entered."   The pendente lite decree also ordered the
husband to pay, "for support and maintenance . . . expenses

necessary for the maintenance and running of the household . . .

and other marital expenses customarily paid by him."

     The evidence shows that, during the pendency of the

proceedings, the husband incurred numerous expenses to support

himself, the wife, and both their minor son and emancipated

daughters.   The husband contends that he had to use his pension

payments to abide by the pendente lite decree's support order

because his new income alone was insufficient.   The wife alleges

that the husband made many frivolous expenditures and that, in so

doing, he disposed of a marital asset, his pension, in

contravention of the pendente lite decree.
     Following the equitable distribution hearing, the trial

court concluded that eighty percent of the husband's pension was

marital property of which the wife was entitled to one-half.    To

determine the value of the wife's one-half share of the proceeds




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which accrued during the pendency of the proceedings (roughly

1989-1993), the court was required to apply the value of those

proceeds as of the date of the November 1993 and February 1994

evidentiary hearings since neither party requested an alternate

valuation date.    See Code § 20-107.3(A); Gottlieb v. Gottlieb, 19

Va. App. 77, 86, 448 S.E.2d 666, 672 (1994).   By the date of

those hearings, the value of the husband's pension proceeds that

accrued during the 1989-1993 period was zero; the husband had

spent it all.   However, the court found that the value of the

wife's share of those proceeds would have been $87,043 had the

husband not spent the funds.   Thus, the court sought to determine

what amount of those proceeds the husband spent legitimately

pursuant to the pendente lite order to provide support and what
amount, if any, he improperly wasted or dissipated.

     After reviewing substantial evidence seeking to establish or

discredit the propriety of the husband's expenses, the court

concluded that the evidence of waste was inconclusive.   The court

expressed "reservations" about some of the husband's claimed

expenses, but it found that he had not "intentionally" dissipated

the pension.    The court concluded that it should award the wife

something, but, since it was unable to determine which

expenditures where proper and which were not, the court entered

no award.   The wife argues that this was error; we disagree.

     Among the statutory factors the court must consider in

making a "fair and equitable monetary award" are the



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contributions of the parties to the "care and maintenance" of

marital assets.    See Code §§ 20-107.3(E)(2),(10).    This Court has

concluded that the trial court may consider a party's dissipation

of marital assets under these sections when determining an

appropriate monetary award for the other party.       See Stroop v.

Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990); Booth

v. Booth, 7 Va. App. 22, 28, 371 S.E.2d 569, 572 (1988). 1     Thus,

although the trial court was required under § 20-107.3(A) to

value the pension at the time of the hearing, it could still

consider the issue of waste when making a monetary award under
§ 20-107.3(E).    Indeed, "[w]hen waste has occurred, the trial

court must include the wasted asset as marital property and must

consider the waste as a factor in determining the monetary

award."   Booth, 7 Va. App. at 28-29, 371 S.E.2d at 573.

     It is clear under Virginia law that not every conveyance of

marital property after the marriage breaks down is waste.       See

Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 261

(1990).   Instead, dissipation occurs "where one spouse uses

marital property for his own benefit and for a purpose unrelated

to the marriage at a time when the marriage is undergoing an

irreconcilable breakdown."    Id. (quoting Hellwig v. Hellwig, 100

Ill. App. 3d 452, 426 N.E.2d 1087 (1981)).   The use of marital

assets for marital purposes is not waste.    Decker v. Decker, 17

     1
      Booth addresses Code § 20-107.3(E)(11) which became
§ 20-107.3(E)(10) after § 20-107.3(E)(8) was repealed.




                                - 4 -
Va. App. 12, 19, 435 S.E.2d 407, 412 (1993). 2

     The husband bore the burden of proving by a preponderance of

the evidence that he did not dissipate the pension.      Clements, 10

Va. App. at 586, 397 S.E.2d at 261.    Accordingly, the husband

produced evidence documenting his expenses, claiming that they

were for a proper purpose.   The court found that the husband had

not "intentionally dissipated" the pension.      While the court

expressed reservations about accepting the husband's claim that
all his expenditures were proper, the wife presented insufficient

rebuttal evidence to enable the court to segregate proper

expenditures from improper ones.    Thus, the court was unable to

make an award to reflect what it deemed would have been the

wife's share of the husband's pension funds.

     At the reconsideration hearing upon motion of the wife, the

court again asked her to demonstrate an amount, based on the

evidence, that would reflect the husband's obligation under the

pendente lite decree so that the court could determine what

portion of the husband's expenditures was waste and what amount,

if any, it should award the wife.   The wife refused to address

the doctrine of waste, notwithstanding that, at the time of the

hearing, the value of the proceeds she sought was zero.     Instead,
     2
      The pendente lite decree should be construed in accordance
with these principles. See Brown v. Commonwealth, 8 Va. App.
126, 133, 380 S.E.2d 8, 12 (1989) (describing presumption that
trial judges properly apply the law); Paul v. Paul, 214 Va. 651,
653, 203 S.E.2d 123, 125 (1974) (law in force at time property
settlement agreement was made determines rights and duties under
it).



                               - 5 -
she asked for her entire 40% share of the pension, contending

that its future value at the time of the separation was all that

was required to enable the court to make its award.    The wife

also argued that, in any event, the evidence before the court was

sufficient for the court to make its determination and urged the

court to "pick" a number.   The court properly declined to do so.

     A review of the record discloses that the evidence was

insufficient to enable the court to identify funds which properly

belonged to the wife.   Having failed to provide evidence

demonstrating the amount she should receive, the wife may not

benefit on appeal for her failure to produce evidence at trial.

See Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 500

(1987).   "The burden is always on the parties to present

sufficient evidence to provide the basis on which a proper

determination can be made, and the trial court in order to comply

. . . must have the evidence before it . . . to grant or deny a

monetary award."    Id. (quoting Hodges v. Hodges, 2 Va. App. 508,

516, 347 S.E.2d 134, 139 (1986)).   Moreover, a reviewing court

cannot remand an equitable distribution case where the parties

"had an adequate opportunity to introduce evidence but have

failed to do so."    Id. (quoting In re Marriage of Smith, 114 Ill.

App. 3d 47, 54-55, 448 N.E.2d 545, 550 (1983)).

     The judgment of the trial court is therefore affirmed.

                                                            Affirmed.




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