(B)       Hybrid Property

2009---Riley v. Riley, 2009 Va. App. Unpublished, 91
Trial court did not err in refusing to apply the Brandenburg formula to divide the net proceeds of the parties' real estate.  Husband did not prove that his separate funds were not comingled with marital funds, nor did he provide "sufficient third-party institutional proof" to trace his separate funds.

2008---Rinaldi v. Rinaldi, 53 Va. App. 61
Trial court did not err in applying the Keeling approach to calculate marital equity in one parcel of real estate owned by the parties while simultaneously applying the Brandenburg formula to calculate marital equity in another parcel of real estate owned by the parties, as each produced an equitable result for the respective properties.  Whether the application of one or the other approaches would have also achieved an equitable result is not dispositive.

2008---Rinaldi v. Rinaldi, 53 Va. App. 61
Trial court did not err in using the Keeling approach to calculate marital equity in property that the parties purchased jointly during the marriage, given evidence that the parties' joint obligation on the mortgage for the property was necessary for them to obtain and make regular payments on the loan, that the property appreciated primarily due to market forces, and a lack of evidence that Husband's separate down payment contributed disproportionately to the couple's ability to acquire and hold the property.

2008---Rinaldi v. Rinaldi, 53 Va. App. 61
Trial court did not err in using the Brandenburg formula to calculate marital equity in property that the Husband had acquired in his name and made mortgage payments on for eight years prior to the parties' marriage, when Wife made no claim that, absent her assistance, Husband would have been unable to pay the mortgage on that property.

2007---Hosier v. Hosier, Va. Ct. of Appeals, Unpublished, No. 0767-06-1
Trial court did not err in refusing to apply the Brandenburg formula for calculating Wife’s separate interest in the marital home, and instead relying upon a “net percentage gain” formula for valuing that interest. The formula determined the percentage gain by comparing the purchase price to the net proceeds of the sale, and then increasing wife’s separate contributions at the time of purchase by that percentage gain in value. In doing so, the trial court properly recognized the role of wife’s separate property used to purchase the asset as well as the role of marital property used to hold the asset during marriage, including debt maintenance, insurance premiums, and real estate taxes. In this way, the court balanced the financial expectancies related to capital acquisition costs (supported by wife’s separate interest) and asset retention costs (supported by marital assets).

2006---Keeling v. Keeling, 47 Va. App. 484
Trial court did not err in calculating the increase in the value of property at too high a value and thereby failing to award Husband his proper return on the contribution of separate property to the purchase of the marital residence.  The court was entitled to conclude that applying the Brandenburg formula, without considering the parties joint loan obligation as a creditable contribution to acquiring and maintaining the property long enough to enjoy a significant increase in equity due primarily to market forces, would be harsh and inequitable.

1998---Hart v. Hart, 27 Va. App. 46
The Brandenburg formula is held to be an acceptable method of tracing and determining the value of the marital and separate property components of hybrid property.

1998---Martin v. Martin, 27 Va. App. 745
Trial court reversed.  Wife did not prove that hybrid property increased in value as a result of marital contributions.

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    (C)       Valuation Date

2011--- Parikh v. Parikh, Va. Ct. of Appeals, Unpublished, No. 1989-10-4
The trial court did not err in using an alternative valuation date for purposes of valuing wife’s accounts but not for purposes of valuing husband’s accounts. Husband moved the court pursuant to Va. Code §20-107.3(A) for the alternative valuation date for wife’s accounts, but wife never moved the court for similar relief regarding husband’s accounts.

2011---Moore v. Moore, a. Ct. of Appeals, Unpublished, No. 0117-10-4
Despite the absence of a timely motion for an alternative valuation date, the trial court did not err in valuing two of the parties’ accounts based on statements that were over two months old at the time of trial, where neither party presented evidence that the value of the accounts had changed as of the date of the hearing.

2010---Tucker v. Wilmoth-Tucker, Va. Ct. of Appeals, Unpublished, No. 2008-09-2
The trial court did not err in using the value on the date of acquisition and the value on the date of separation to classify certain property, despite the fact that neither party moved the court for an alternative valuation date pursuant to Va. Code §20-107.3. Because the dispute regarding the property involved classifying the increase in the value of the property during the marriage and after the separation, the consideration of the values on dates other than the date of the hearing served a different purpose (classification) than did the valuation on the date of the hearing (valuation). Thus, husband was not required to move the court for use of an alternative valuation date.

2003---Thomas v. Thomas, 40 Va. App. 639
Generally a date as near as possible to the evidentiary hearing should be used for valuation purposes.

2000---Rowe v. Rowe, 33 Va. App. 250
Valuation of property must be current. 

1987---Price v. Price, 4 Va. App. 224
The evidentiary hearing date or trial date may be the most practical and suitable date for determining the value of property. However, that date is not always the most appropriate since both fortuitous or intentional events can drastically affect values and equities between the date of classification and valuation, and courts should have the discretion to adopt a different date if the equities of the case demand it.

  § 5-7.   Retirement Accounts

  (A)      Classification

2011---Schuman v. Schuman, 282 Va. 443
Court of Appeals erred in classifying wife’s stock options as her separate property based on the fact that the options would not vest until after the separation of the parties. By specifically stating in Va. Code §20-107.3(G)(1) that the marital portion of any deferred compensation may be allocated “whether vested or nonvested,” the General Assembly clearly indicated that the date of vesting is not, by itself, dispositive of whether the deferred compensation is marital or separate property. The General Assembly clearly intended for retirement accounts and similar plans to be treated uniformly. Thus, the marital share of deferred compensation should be calculated in the same manner as the marital share of pensions or other retirement benefits.

Savedge v. Barbour, Va. Ct. of Appeals, Unpublished, No. 2713-09-1
Wife waived her rights to any interest in husband’s military retirement accounts when entering into a settlement agreement that did not mention the accounts, but which purported to be a “full settlement, release and discharge of all interest by dower and any and all other claims which wife has or might have for alimony and for support and maintenance or otherwise,” and which stated that the parties agreed to a mutual release of any and all rights in the property then owned or thereafter acquired by either party. That husband’s accounts were not made subject to equitable distribution under Virginia law until after the parties signed their agreement was not sufficient to overcome wife’s waiver. Where a valid release has been executed and made part of a decree, a party to that decree may not reopen it for modification based upon a change in the law. (Citing Himes v. Himes, 12 Va. App. 966 (1991)).

2004---Navas v. Navas, 43 Va. App. 484
A QDRO may not modify a final divorce order simply to adjust its terms in light of the parties’ changed circumstances, but must be consistent with the substantive provisions of the original order. • Trial court erred in refusing to enter QDRO submitted by wife based on court’s conclusion that disability benefits husband received from his employer were not part of husband’s “pension,” half of which the court awarded to wife in the final order of divorce. A pension, by definition, is a retirement benefit paid regularly, with the amount of such based generally on the length of employment and amount of wages or salary of pensioner. It is deferred compensation for services rendered. Clearly, the all inclusive language of Va. Code §20-107.3(G) permitting the court to direct payment of a percentage of the marital share of “any pension” does not suggest the exclusion of “disability pensions” from the statutory scheme, (citing Asgari v. Asgari, 33 Va. Pp. 393 (2000)). Here, husband was entitled to receive only one of three types of allowances from his pension plan: a “normal retirement allowance,” an “early retirement allowance,” or a “total and permanent disability allowance.” The disability allowance was computed in the same fashion as the other “retirement” allowances, and was thus encompassed by the term “husband’s pension,” as used in the final order of divorce.

2004---Boedeker v. Larson, 44 Va. App. 508
Trial court did not err in classifying a defined, lump-sum payment that Husband could opt to receive up front if he committed to remain on active duty in the military for a total of twenty years as a retirement benefit, based on Husband’s admission to the trial court that his electing to receive that payment would reduce his normal retirement benefit, and thus, wife’s share of that benefit. The parties’ settlement agreement specifically indicated that “all retirement and pension types of accounts have been disclosed,” and specifically provided that wife was entitled to share equally in the marital portion of husband’s military retirement. It made no mention of husband’s entitlement to any other sort of military benefit or bonus, and gave no indication that husband would be permitted under the terms of the agreement to reduce the amount of retirement benefit to which wife would be entitled by relinquishing a portion of his military retirement in exchange for some other benefit to which he alone would be entitled.

  (B)       Valuation

2011--- Prizzia v. Prizzia, Va. Ct. of Appeals, Rec. No. 1343-10-2
The trial court erred in using a coverture fraction expressly reserved for use on defined benefit plans to value marital interest in husband’s defined contribution plan. The use of the coverture fraction is an inappropriate method of determining the marital share of a defined contribution plan (citing Mann v. Mann, 22 Va. App. 459 (1996)).

2009---Cusack v. Cusack, 53 Va. App. 315
Trial court did not err in providing in the Qualified Domestic Relations Order that "to the extent the Designated Agent is prohibited by law or regulation from paying the entire amount required by this [Qualified Domestic Relations Order], Husband shall personally pay any short fall to Wife."  Although the Qualified Domestic Relations Order was not entered until May 5, 2008, and not provided to the designated agent until sometime thereafter, Wife was entitled to payments as of the date of the final decree.  To hold otherwise would deprive Wife of payments to which she was entitled and would encourage Husband, as the owning spouse, to delay voluntary execution of the documents related to the Qualified Domestic Relations Order.

2009---Lewis v. Lewis, 53 Va. App. 528
Usually, divorcing parties use an equation to calculate the marital portion of a pension without using the actual dollar value of the pension.  This equation divides the number of months that a spouse was both married and working for the pensioning company by the total number of months that the spouse worked for the company to derive a percentage of the pension's value that is marital.  (citing Primm v. Primm, 12 Va. App. 1036).

2006---McGinness v. McGinness, 49 Va. App. 180
The trial court erred by valuing Wife's share of Husband's Civil Service Retirement System pension as if Husband retired on the date of the parties' separation, even though Husband was not eligible to receive pension payments on that date and he made no lump sum payment to Wife of the present value of the marital share.  Pursuant to Va. Code §20-107.3(G)(1), the trial court was required to apply the deferred distribution approach to calculate her share of the Civil Service Retirement System pension.

2006---Recker v. Recker, 48 Va. App. 188
Trial court did not err by not reducing the value of former Wife's share of civil service pension benefits by the cost of providing survivor benefits to second Wife.  The final decree expressed the intention that Wife receive 50% of Husband's accrued pension benefits before any deduction or reduction.

2002---Baker v. Baker, 38 Va. App. 384
Where final decree provided for Wife to receive one half of retirement account as of a fixed date, court cannot later award her gains and losses on account.

1997---Johnson v. Johnson, 25 Va. App. 368   
It is error to allocate retirement benefits as of date of hearing without present value of benefits.

1995--- Joyce v. Joyce, Va. Ct. of Appeals, Unpublished, No. 0001-95-4 (Jul. 18, 1995)
The trial court did not err in awarding wife fifty percent of the marital interest in husband’s civil service pension, determined by dividing the years of employment during the marriage by the total years of employment, despite the fact that, because husband’s eventual pension payments would be based on his salary in the highest three years of his total employment, and because husband had not yet retired, the eventual pension payments may be based in part on post-separation earnings. In many, if not most cases, it is the later years of employment that are the highest paid and bring the highest benefits. It would be inequitable to disassociate the early, lower-paid years of the marital partnership from later years when the partnership no longer exists but when the ultimate benefits from the parties’ joint efforts and cooperation are reaped, particularly where the pension benefits have been earned almost entirely during the marriage.

1993---Banagan v. Banagan, 17 Va. App. 321
The trial court erred in limiting the marital share of each party’s VSRS pension benefits to values based on an age-55 retirement date. Although the court initially adopted the correct formula for calculating the marital share of each pension (years of marriage during which pension benefits were earned / total years during which pension benefits were earned), it erred by then attempting to equalize differences in the parties’ job security and likely future income by assuming an age-55 retirement date for purposes of valuing the marital portions of the pensions. Though well-intentioned, this result denied to each party a full participation in the statutory marital share of the other’s entire pension.

1987---Wagner v. Wagner, 4 Va. App. 397
Trial court erred in making the portion of husband’s retirement benefits that it awarded to wife payable at the time of the decree where those benefits would not be payable to husband until after he retired from employment.

  (C)       Criteria/Award

2012--- Craig v. Craig, Va. Ct. of Appeals, No. 0785-11-4
The trial court had jurisdiction to modify a previously-entered QDRO pursuant to Va. Code §20-107.3(K)(4), where the interpretation that the Office of Personal Management applied to the formula for the payment to wife of husband’s retirement benefits contained in the QDRO did not match the intent of the parties as set forth in their settlement agreement.  The modification of the QDRO was consistent with the substantive provisions of the settlement agreement and divorce decree, and did not simply adjust the terms in light of changed circumstances.  Thus, Rule 1:1 didn’t apply, and the trial court had jurisdiction to modify the QDRO.

2011--- Moore v. Moore, Va. Ct. of Appeals, Unpublished, No. 0117-10-4
The trial court erred in ordering husband to maintain wife as beneficiary on a life insurance policy after the parties' divorce. The trial court found that the parties had agreed that husband would maintain wife as the beneficiary on the policy, based solely on husband's testimony that he "didn't want to remove her as a beneficiary, but had no choice after the divorce." Although Va. Code §20-109.1 allows the court to order the maintenance of a life insurance policy with one spouse as the beneficiary by incorporating a valid agreement by the parties to do so, Va. Code §§ 20-149 - 20-155 require any agreement between divorcing spouses to be in writing and signed by both parties, or alternatively, that the agreement be recorded and transcribed by a court reporter and affirmed on the record by the parties personally. No evidence of either was present here.

2010--- Haney v. Haney, Va. Ct. of Appeals, Unpublished, No. 1204-10-4
The trial court did not err in entering Qualified Domestic Relations Orders that awarded wife passive gains and losses on her share of husband's retirement, despite the absence of language in the final decree of divorce awarding wife such gains and losses. Because the final decree did not award wife a specific amount of husband's retirement as of a particular date, the trial court had the authority to enter QDRO's that awarded wife passive gains and losses on her share of the accounts.

2010--- Andrews v. Creacey, et. al., 56 VA. App. 606
Trial court did not err in refusing to award wife her share of husband’s civil service pension, where 93-year-old husband’s monthly income barely covered his expenses, not including nearly $75,000 in unpaid medical bills, and where evidence revealed that husband had paid the home equity line of credit debt on the marital residence where wife continued to reside as well as additional living expenses on her behalf during the separation.

2010--- Johnson v. Johnson, 56 Va. App. 511
Trial court did not err in approving husband’s transfer of $120,000 of the marital share of his retirement accounts as satisfaction of an installment payment on the monetary award to wife. Although wife argued that a liquidation of those assets after the transfer would net her less than the $120,000 installment ordered by the court, the court interpreted its own equitable distribution order to mean that husband was obligated to transfer property worth $120,000, not property which, when liquidated by wife, netted $120,000. (Citing Albert v. Albert, 38 Va. App. 284 (2002) for the principle that trial courts have the authority to interpret their own orders).

2009---Cusack v. Cusack, 53 Va. App. 315
Trial court did not err in providing in the Qualified Domestic Relations Order that “to the extent the Designated Agent is prohibited by law or regulation from paying the entire amount required by this [Qualified Domestic Relations Order], Husband shall personally pay any short fall to Wife.”  Although the Qualified Domestic Relations Order was not entered until May 5, 2008, and not provided to the designated agent until sometime thereafter, Wife was entitled to payments as of the date of the final decree.  To hold otherwise would deprive Wife of payments to which she was entitled and would encourage Husband, as the owning spouse, to delay voluntary execution of the documents related to the Qualified Domestic Relations Order.

2007---Cote v. Cote, 2007 Va. App. Unpublished, 85
The trial court did not abuse its discretion in awarding wife a 60% share of her retirement account.  Although the evidence supported a finding that, although Husband may have made more significant monetary contributions over the course of the marriage, Wife worked full-time during most of the marriage and made substantial contributions as well.  The evidence also supported a finding that Wife’s non-monetary contributions were more significant that Husband’s.  Additionally, Wife did not have sufficient funds to meet her expenses.

2006---Kennedy v. Kennedy, 2006 Va. App. Unpublished, 471
Trial court erred in awarding Wife 55% of the value of Husband’s Individual Retirement Account by considering the parties’ future earning capacity.

2006---Recker v. Recker, 48 Va. App. 188
Trial court did not err by not reducing the value of former Wife’s share of civil service pension benefits by the cost of providing survivor benefits to second Wife.  The final decree expressed the intention that Wife receive 50% of Husband’s accrued pension benefits before any deduction or reduction.

2005---Irwin v. Irwin, 47 Va. App. 287
Trial court erred in ordering that, while Wife’s property interest vested and pension payments were due to her as of date of final decree, Husband was not liable for the difference between pendente lite spousal support paid and an amount equal to one-half of pension amount from the date of the final decree to the date Wife began receiving one-half of the pension under a Qualified Domestic Relations Order.  The court’s refusal to require Husband to pay Wife directly her one-half share of the monthly pension while the Qualified Domestic Relations Order was pending was an abuse of discretion upon a finding that she was due payment from the final decree date.

2005---Turner v. Turner, 47 Va. App. 76
Trial court did not err in entering a Qualified Domestic Relations Order without any prior order granting Wife an actual defined portion of Husband’s pension.  In entering the Qualified Domestic Relations Order the court did not create any substantive rights but only effectuated the intent of the final decree, which awarded Wife a share of Husband’s pension based on 15 years of marriage contemporaneous with the Husband’s employment.

2002---Baker v. Baker, 38 Va. App. 384
Where final decree provided for Wife to receive one half of retirement account as of a fixed date, court cannot later award her gains and losses on account.

2002---Bradley v. Bradley, 39 Va. App. 108
Trial court did not err by refusing to include pre-retirement survivor benefits in a Qualified Domestic Relations Order because they were not addressed at trial.

2002---Hubble v. Hubble, 2002 Va. App. Unpublished, 459
Former serviceman Husband obtained a disability rating which reduced his monthly retirement benefit.  Trial court modified final decree ordering Husband to continue to pay Wife the same monthly amount without reduction.  Affirmed.

2002---Torian v. Torian, 38 Va. App. 167
It is not error to award Husband 100% of his retirement account.  A retirement account may be divided by the immediate offset approach or by the deferred distribution approach.

2000---McLellan v. McLellan, 33 Va. App. 376
Federal law does not prevent former Wife from receiving a portion of former Husband’s disability retirement pay pursuant to their separation agreement. 

2000---Williams v. Williams, 32 Va. App. 72
Trial court was authorized to enter new order regarding payment of pension benefits in order to effectuate its final decree.

1999---Hastie v. Hastie, 29 Va. App. 776
Va. Code §20-107.3(k)(4)  may not be used to alter the substance of a prior division of a retirement benefit.

1997---Johnson v. Johnson, 25 Va. App. 368   
It is error to allocate retirement benefits as of date of hearing without present value of benefits.

1997---Wilson v. Wilson, 25 Va. App. 752 (1997)
After twenty-one days, when no appeal is taken, a trial court lacks the authority to substantively modify an order equitably distributing pension benefits, irrespective of any subsequent agreement by the parties to the contrary. The jurisdiction of the court cannot be established by consent.

1996---Brugger v. Brugger, Va. Ct. of Appeals, Unpublished, No. 2446-95-4
Trial court abused discretion in awarding wife only 15% of the marital share of husband’s retirement account where husband testified at trial that 25% of the marital share was a fair award, based on wife’s contributions to the marriage.
Trial court erred in failing to determine the marital share of husband’s pension prior to awarding wife a portion of the pension.

1996---Gerwe v. Gerwe, Va. Ct. of Appeals, Unpublished, No. 0860-95-4
Trial court erred in requiring husband to pay the cost of converting the share of his pension that was awarded to wife to a benefit that would survive for her lifetime, where the requirement would cause husband to incur costs significant enough to reduce his share of the marital portion of the pension to below 50% and increase wife’s share to above 50%, in conflict with Va. Code §20-107.3(G).

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