TRAYNHAM v. TRAYNHAM, 2436-92-1, Unpublished (Va.App. 8-2-1994)

CHIEF JUDGE NORMAN K. MOON:

Joan Fuller Traynham (wife) appeals the amount of her equitable distribution award and the distribution of her husband's pension and profit sharing plan. We find no abuse of discretion in the trial court's decision not to award retroactive interest on wife's monetary equitable distribution award. Additionally, we hold that the trial court did not err by refusing to provide for the distribution of wife's interest in her husband's pension by a formula she suggested. Accordingly, we affirm.

In considering the equitable distribution award, the Commissioner in Chancery recommended a monetary award to wife, amortized over twelve years. The circuit court approved the monetary award, but denied wife's request for interest retroactive to the date of separation, and ordered the first payment due on the thirtieth day following the entry of the decree.

"In reviewing an equitable distribution award on appeal, we have recognized that the trial court's job 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) (citing Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987)). An equitable distribution award should not be disturbed on appeal "[u]nless it appears from the record that the [trial judge] has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support [his] findings of fact." Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987). We cannot say that as a matter of law the trial judge abused his discretion in fixing the amount of the award and the terms of its payment.

Code Sec. 20-107.3(D) provides, in part, that "[t]he provisions of Sec. 8.01-382, relating to interests on judgments, shall apply unless the court orders otherwise." Moreover, this Court has previously held that a monetary award made pursuant to Code Sec. 20-107.3 "is the equivalent of a money judgment," and the trial court may exercise its discretion in determining when the award is due and payable. Brown v. Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368-69 (1987). Thus, we find that the trial court did not abuse its discretion in determining that wife's monetary award became due and payable thirty days following the entry of the decree and awarding interest from that date.

In an earlier appeal, the trial court's original equitable distribution award to wife of $161,767, which included $72,655 or thirty-five percent (35%) of husband's pension and profit sharing plan, was reversed because the award erroneously required payment to wife of the pension and profit share before benefits were payable under the plan to husband. See Code Sec. 20-107.3(G). On remand, the commissioner found that the present value of wife's marital share of husband's pension and profit sharing plan was $72,655. The commissioner recommended that wife receive fifty percent (50%) of the benefits paid to husband, commencing when husband begins to receive benefits under the plan, until wife is paid her $72,655 share. The commissioner also recommended that interest "accrue at the judgment rate in effect at the time payment begins until paid in full." The circuit court approved the commissioner's recommendations.

Wife concedes that the trial court may not require a payor spouse to pay interest on a pension award that is not yet being collected. See Kaufman v. Kaufman, 12 Va. App. 1200, 1210, 409 S.E.2d 1, 7 (1991); Pledger v. Pledger, 6 Va. App. 627, 371 S.E.2d 43 (1988). However, she claims that the trial court abused its discretion by failing to apply a fractional percentage formula to distribute the pension and profit sharing plan benefits.

The authority of trial courts to deal with pension benefits is limited. Steinberg v. Steinberg, 11 Va. App. 323, 398 S.E.2d 507 (1990). In rejecting wife's claim that the pension award should be paid according to a fractional percentage formula, the trial court noted that there was insufficient information concerning the details of the pension plan, particularly whether the contributions to it could be increased or decreased in future years. Although wife will not benefit from any appreciation in her marital share before it is paid out, there is a reduced risk-of-loss to her share because she will receive her marital share at the same time husband receives equal payments from the plan. Based upon the evidence concerning the plan, we cannot say, as a matter of law, that the method of payment selected by the trial court to satisfy wife's award constituted an abuse of discretion. Accordingly, we affirm.

Affirmed.