                        COURT OF APPEALS OF VIRGINIA


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


ELECTRA MOORE McGAY
                                            MEMORANDUM OPINION * BY
v.   Record No. 2756-99-3               JUDGE RUDOLPH BUMGARDNER, III
                                               AUGUST 29, 2000
CULBERT McGAY


                FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                          Thomas H. Wood, Judge

          Kenneth L. Crosson for appellant.

          Randall T. Perdue (P. Donald Moses;
          Timberlake, Smith, Thomas & Moses, P.C., on
          brief), for appellee.


     Electra Moore McGay appeals from an equitable distribution

award and raises eight questions.     She contends the trial court

erred (1) in ruling the parties lived separate and apart since

1985; (2) in determining the date of separation without

reference to whether either party intended to live separate and

apart; (3) in finding that money spent after 1985 on joint

obligations was the sole income of the husband; (4) in crediting

the husband with separate income when the income came from the

sale of marital assets; (5) in awarding the husband a share of

marital property based upon the conclusion that the husband used

his separate income to pay for marital obligations; (6) in

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
awarding the husband 60% of the marital property based upon the

conclusion that the husband used his separate income to pay for

marital obligations; (7) in awarding the wife only 35% of the

husband's military and civil service pensions based upon the

conclusion that she did not demonstrate financial need; and (8)

in awarding the husband both habitable real properties and

awarding the wife an uninhabitable property.   The majority of

the separately stated questions, Questions (1)-(6), arise from a

single contention:   the trial court erred by basing its

equitable distribution rulings on the finding that the marital

partnership ended in 1985.   We conclude the trial court properly

used 1985 as the date of separation in its deliberations and did

not err on the remaining assignments of error.   Accordingly, we

affirm.

     The divorce proceedings began May 28, 1996 when the wife

filed for divorce on the grounds of desertion.   The trial court

granted the divorce February 19, 1997 on the grounds the parties

had lived separate and apart since April 1985.   The trial court

did not decree equitable distribution in the final decree of

divorce but reserved jurisdiction over that issue for future

decision.   Several months later, the trial court referred all

equitable distribution issues to a commissioner in chancery.

     The commissioner heard extensive evidence the next summer

and made his report November 9, 1998.   The report concluded with

the recommendation that 60% of the marital property and 65% of

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the husband's pensions be allocated to him.   It proposed two

alternative methods for allocating the illiquid estate.   The

wife filed timely exceptions to the commissioner's report.

After hearing the exceptions, the trial court approved the

commissioner's report, allocated the real estate according to

the second of two alternative plans for distribution, and

entered the final order of distribution November 1, 1999.

     The wife took depositions on the issue of fault December

16, 1996, and they became the sole evidence upon which the

divorce was decreed.   Both parties and two of their adult

children testified about the marital history and its breakup.

The evidence established that the parties married November 16,

1943 and had three children.   The husband worked for, and

eventually retired from, the civil service while the wife worked

intermittently.   Throughout the marriage the parties lived apart

for substantial periods of time.   The wife began to reside in

Augusta County, Virginia in 1978, though the husband lived and

worked in Georgia.   The husband retired to Augusta County in

April 1985, but the two never lived together.   They resided on

separate farms about seven miles apart in a rural, remote part

of the county.    No divorce action was initiated until May 1996

when the wife brought the divorce action.   When the divorce was

decreed, the parties had been married for 54 years.   The wife

was 81 years old and in very poor health.   The husband was 83



                                - 3 -
years old, in reasonably good health, but actively farming their

properties and managing their finances.

     From the evidence presented by deposition, the trial court

found that the parties last cohabited in Georgia, and lived

separate and apart from April 1985 without cohabitation or

interruption.   The trial court recited the finding in the

decree, granted the divorce on that basis, and entered the

decree February 19, 1997.   The decree of divorce was a consent

order, requested by both parties, to which neither party took

exception.

     The divorce decree and its finding became a final

adjudication of the issue between the parties just as it would

have become final if equitable distribution had never been

raised and not reserved for future consideration in the decree.

See Toomey v. Toomey, 251 Va. 168, 172, 465 S.E.2d 838, 840

(1996) (Code § 20-107.3(A) permits the trial court either to

adjudicate equitable distribution when it decrees a divorce or

to retain jurisdiction to adjudicate equitable distribution

later, but if it does not retain jurisdiction, the trial court

has no jurisdiction once the decree of divorce becomes final).

The issue became final 21 days after entry of the order.

"Additionally, an order of the circuit court becomes final 21

days after its entry unless modified, vacated, or suspended by

the court during that time."   The Berean Law Group v. Cox, 259

Va. 622, 626, 528 S.E.2d 108, 111 (2000) (citing Rule 1:1).

                               - 4 -
     The trial court fixed April 1985 as the date of the last

separation in this marriage.   The record shows the trial court

based the finding on the depositions taken by the wife and filed

by her in support of her proposed decree.   As stated in Dietz v.

Dietz, 17 Va. App. 203, 209-10, 436 S.E.2d 463, 467 (1993), "the

legislature recognized that a marriage will be deemed to have

ended for purposes of classifying property on the date of the

last separation, in the absence of proof to the contrary."     The

finding became a final adjudication of that issue of fact and

bound the parties during the subsequent equitable distribution

proceedings.

     The record is clear that the parties accepted April 1985 as

the date of separation throughout the commissioner's hearing.

The wife made no objection to the use of that date in her

exceptions to the commissioner's report.    Rule 5A:18 requires

that objections to a trial court's action or ruling be made with

specificity in order to preserve an issue for appeal.    See

Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2

(1991) (en banc).   Accordingly, Rule 5A:18 bars our

consideration of this issue on appeal, and that bars

consideration of Questions (1)-(6).    Moreover, the record does

not reflect any reason to invoke the good cause or ends of

justice exceptions to Rule 5A:18.

     The trial court referred the issues of equitable

distribution to a commissioner in chancery, who heard the

                               - 5 -
evidence June 10, 1998 and filed his report November 9, 1998.

The wife filed exceptions to the commissioner's report on

November 19, 1998 and noted four objections:   (1) the wife was

denied due process of law because she was incapable of assisting

in the presentation of her evidence; (2) the commissioner

calculated the wife's share of the husband's pensions based on

need; (3) the commissioner erred in using an evaluation date

other than the date of the evidentiary hearing in the absence of

a motion filed as required by Code § 20-107.3(A); and (4) the

commissioner sua sponte selected an alternate evaluation date.

The wife filed no further exceptions, made no request, nor

received leave to file additional exceptions at a later time. 1

See Code § 8.01-615.   No exception raised the issues now posed

on appeal in Questions (3)-(6), and for that additional reason,

Rule 5A:18 bars consideration of those questions.


     1
       The wife concedes that she did not raise additional
objections and did not request or obtain an extension for filing
them. She maintains that she presented the additional issues to
the trial court in her "Reply Memorandum in Support of
Plaintiff's Exceptions to the Report of Commissioner." She
filed the memorandum February 12, 1999 along with new exhibits
not presented at the commissioner's evidentiary hearing. She
maintains the trial court ruled on the additional objections
when it stated at the beginning of the hearing on exceptions:
"And I reviewed everything the Commissioner said. I will review
everything that you-all bring out, and then I'll go through this
record, every bit of it, to see whether it's supported or
whether it isn't."
     A review of the arguments presented orally and in the
memoranda and briefs makes clear that the husband objected to
the wife's expanding and recasting her objections beyond those
stated in her pleadings.


                               - 6 -
        The record reflects no merit or basis for objections to the

commissioner's report (1), 2 (3), and (4). 3    The remaining

exception to the report contends the commissioner erroneously

calculated the wife's share of the husband's pensions based on

need.       In reviewing whether the trial court considered need

improperly, we must examine the factors in Code § 20-107.3(E)

that the commissioner considered when distributing the marital

property.       In his report the recommendation for allocating the

pensions proceeded from and built upon that analysis because the

same factors must be considered in both decisions.       See Code

§ 20-107.3(G).

        The commissioner's report was a careful, ordered, and

complete recitation of the steps taken in weighing the evidence

and in deciding upon a fair and equitable distribution of the

marital estate accumulated during the long marriage.       The


        2
       The wife's counsel asserted that the trial court erred by
not appointing a guardian ad litem and suggested that she was
not competent. Immediately on that representation, the trial
court inquired fully whether counsel felt his client was not
competent. Counsel assured the trial court she was competent.
When questioned during oral argument, counsel advised this Court
the wife was competent. Accordingly, there is no basis to
appoint a fiduciary to conduct her suit for her.
        3
       In objections (3) and (4), the wife asserted the
commissioner chose an alternative valuation date sua sponte
without requiring a motion as provided by Code § 20-107.3(A).
The record contains an appropriate motion that the husband filed
21 days before the commissioner's hearing. The commissioner did
not act sua sponte. Additionally, the record reflects the
commissioner applied an alternative valuation date to only one
parcel of real estate. He gave precise reasons for that
decision, and the evidence supports it.

                                   - 7 -
commissioner determined the legal title, ownership, and value of

the real and personal property.   It identified the marital and

separate property.    It presented a clear, concise, and cogent

review and analysis of the evidence that embraced each factor in

Code § 20-107.3(E).   In orderly sequence, the report gave a

complete presentation of the salient details of the marriage and

fully evaluated all factors specified in Code § 20-107.3(E).      It

then summarized its more detailed discussion of the factors:

          Throughout the parties' 41-year marriage,
          Mr. McGay was virtually the sole monetary
          contributor to the well-being of the family
          and the acquisition of the marital property.
          He was the principal nonmonetary contributor
          in the care and maintenance of such
          property. Based upon the testimony of the
          parties and their witnesses at the divorce
          depositions and the Commissioner's hearing,
          the circumstances and factors which
          contributed to the dissolution of the
          marriage tend to favor Mr. McGay although
          the Court did not find that either party was
          at fault and, as previously noted, Mrs.
          McGay was unable to be an effective witness
          on her own behalf. With the exception of
          Mrs. McGay's extremely poor physical and
          mental condition, none of the other factors
          set forth in Virginia Code § 20-107.3 E
          weigh to either party's advantage. After
          considering all of these factors, a larger
          share of the marital property should be
          awarded to Mr. McGay because he is almost
          solely responsible for the accumulation of
          the marital wealth. A substantial provision
          must be made for Mrs. McGay, however, in
          view of the length of the parties' marriage
          and her state of health and dependent
          condition. Accordingly, your Commissioner
          recommends that 40% of the marital property,
          excluding Mr. McGay's military and civil
          service pensions, be awarded to Electra


                                - 8 -
            Moore McGay and the remaining 60% to Culbert
            McGay.

     The summary itself recites evidence covering factors (1)

through (5), which were the factors the commissioner deemed more

important in this case.   Our review of the record reveals

evidence presented on each statutory factor.   The evidence

supports the findings made by the commissioner, and the report

reflects the commissioner carefully weighing and balancing the

various factors before arriving at his conclusion of law.

     All decisions made in distributing the marital property

were an exercise of sound discretion.   There is no presumption

favoring an equal division of marital property.    See Papuchis v.

Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 831 (1986).     We

recognize that "the trial court's job [in reviewing an equitable

distribution award] is a difficult one, and we rely heavily on

the discretion of the trial judge in weighing the many

considerations and circumstances that are presented in each

case."    Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866,

870 (1990).   The trial court's decision will not be reversed on

appeal unless plainly wrong or unsupported by the evidence.       See

Rahbaran v. Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 139

(1997).   The record suggests no abuse of discretion by the trial

court.

     After dividing the marital property, the commissioner's

report next addressed distribution of the husband's pensions.


                                - 9 -
The wife contends they saved the husband's pensions for their

joint benefit and an unequal distribution unfairly benefits him.

She argues the commissioner impermissibly based the award on

need.    The report stated:

                  Mr. McGay's military and civil service
             pensions have been the parties' principal
             sources of support during their retirement
             and separation. The entire amounts of both
             pensions are consumed in paying the parties'
             debts and living expenses. Mr. McGay has
             been the sole monetary and nonmonetary
             contributor to the accumulation,
             acquisition, and maintenance of his pensions
             and he should be awarded a larger share of
             the pensions than his share in the rest of
             the marital property. In addition, Mrs.
             McGay has not demonstrated the need for more
             than 35% of the monthly total of these
             pensions for her continued maintenance and
             support.

        The report shows that the commissioner considered the

proper factors in deciding to make an award of the pension.

Having discussed the factors in Code § 20-107.3(E) for purposes

of distributing marital property, the report moved to

considering how those factors weighed differently when

distributing the pensions.    The commissioner gave additional

weight to the factor that the husband was "the sole monetary and

nonmonetary contributor to the accumulation, acquisition, and

maintenance of his pensions."

        The commissioner did not require the wife to prove her

need.    The comment about lack of need was an aside to make clear

that the recommendation would provide for her adequately.       It


                                - 10 -
related to the earlier comment that the wife required

"substantial provisions" because of the length of marriage and

her failing health, and it related to the finding that the

pension income had been consumed to pay debts and living

expenses during the separation.   The commissioner was assuring

the trial court that the proposed division of the pensions would

continue to provide the wife a means of support as it had during

the separation.   It was not limiting her pension award on the

basis of need.    When a trial court "divides the pension

unequally, its reasons for doing so must be done on the record."

Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 504, 508

(1990).   Based on the record, we find no error in the division

of the husband's pension.

           Finally, we consider whether the trial court erred in

distributing the jointly owned real property.   The wife objected

to the trial court's selection of the commissioner's second

option for allocating the parties' marital real estate and his

rejection of her alternative proposal which was not reported by

the commissioner.   She contends that real estate allocated to

her is uninhabitable and that it was unconscionable to evict her

from her residence due to her age and failing health.

     The parties' primary asset was real estate consisting of

three separate farms.   While the only indebtedness encumbered

the farm titled in the husband's name, the marital estate was



                               - 11 -
illiquid.    The three properties were called Hadlow, Riverjack,

and Epidarus.

        Hadlow consisted of two separate parcels divided by Route

600, a state secondary road.    The husband bought both parcels in

1964.    Hadlow I contained 121 acres and the farmhouse in which

the wife resided.    Despite the husband's periodic repairs, the

farmhouse remained in poor condition.    The balance contained

cropland and pasture which the husband farmed.    Hadlow II

contained 133 acres of timberland.

        The husband resided with his disabled daughter on the farm

called Riverjack.    It contained 100 acres on which the husband

raised cows.    The farmhouse was in poor condition; it had only

two heated rooms.    The farm was in the village of Deerfield

approximately seven miles from Hadlow.    Riverjack was titled in

the husband's name alone.

        The third farm known as Epidarus was located in Rockbridge

County some distance from the other farms.    It contained 160

acres of which 53 were open and the remainder cut-over timber.

At the wife's insistence, the husband purchased it in 1971.      The

wife originally wanted to develop it as a land restoration

project, but nothing was done with the farm for many years.      It

contained no electricity, plumbing, or water.

        The commissioner's report offered two alternatives for

allocating the real estate.    The first distributed Hadlow I (the

residence) to the wife and distributed Hadlow II, Riverjack, and

                                - 12 -
Epidarus to the husband.   The second alternative distributed

Epidarus to the wife and Hadlow I, Hadlow II, and Riverjack to

the husband.    After hearing the exceptions to the commissioner's

report and approving it, the trial court gave the parties 21

days to select their preference of the two recommended

alternatives.   The wife did not select one of the alternatives

but filed a new plan of distribution.   She wanted all of the

Hadlow property, which required her to incur $48,589 of debt.

The trial court rejected her proposal and selected the

commissioner's second alternative.

     From 1966 when the wife broke a number of ribs, she

suffered from osteoporosis, which became progressively worse.

The wife had a severely compressed spine, moved with extreme

difficulty, and appeared to be in constant pain.   She suffered

from hypertension, hypothyroidism, urinary tract infections, and

glaucoma.   Her health was precarious, and she could not attend

the final hearing.   She was recovering from a broken hip, living

at her grandson's house, and not able to return to her own home

without continuous live-in care.   Her memory and mental

processes were seriously impaired and serious enough that her

attorney suggested that a guardian ad litem was required.

     Over the course of the litigation, the trial court observed

the wife's physical condition and its deterioration.   The trial

court expressed deep concern about her ability to live at

Hadlow, which it knew to be in a remote, isolated area far

                               - 13 -
removed from medical services.   The trial court considered her

plan impracticable because it required the wife to service

$48,589 debt without the means to do so.   The trial court

recognized that Epidarus had been a sound investment that the

wife could sell.   The trial court expressed concern that, while

her attorney advised that the wife intended to return to Hadlow

with a full-time care provider, the attorney was not familiar

with the property or its isolation and had only talked with her

son, not with her.

     It is clear that the trial court did not intend for the

wife to reside in the uninhabitable house at Epidarus but found

it unrealistic to expect that she could live at Hadlow.   The

trial court reviewed the record, heard the arguments of counsel,

and concluded the wife's proposal was not practicable for an

84-year-old woman in poor health.   The trial court also felt the

commissioner's plan permitted the husband to earn income by

continuing to farm both Riverjack and Hadlow.   From the record,

we conclude the trial court properly exercised its discretion

when allocating the properties among the parties.

     For the reasons stated, we affirm.

                                                          Affirmed.




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