Elizabeth J. M. Hendrick v Howard Benton Hendrick

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
ELIZABETH JANE McMILLIAN HENDRICK
v. 	Record No. 1957-95-3 	MEMORANDUM OPINION*
PER CURIAM
HOWARD BENTON HENDRICK 	MARCH 12, 1996
FROM THE CIRCUIT COURT OF
CARROLL COUNTY Duane E. Mink, Judge
(Edwin C. Stone; Stone, Harrison, Turk &
Showalter, on brief), for appellant.
(Alan K. Caudell; Neff & Caudell, on
brief), for appellee.
Elizabeth Jane McMillian Hendrick (wife) appeals the
equitable distribution decision of the circuit court. 	Wife
raises the following issues on appeal: 	(1) whether the trial
court erred by granting wife thirty-eight percent of the pension
benefits payable to Howard Benton Hendrick (husband); (2) whether
husband's share of the equitable distribution award should have
been reduced to compensate wife for pension payments husband
received during the parties' separation; (3) whether the court
erred in reducing wife's share of the equitable distribution
award by the amount of note repayments she received during the
parties' separation; and (4) whether the court abused its
discretion in allowing husband to pay the monetary award over a
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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six-year period, without interest. 	Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. 	Accordingly, we summarily affirm the decision of the
trial court. 	Rule 5A:27.
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." 	Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396
S.E.2d 675, 678 (1990). 	"Unless it appears from the record that
the trial judge has not considered or has misapplied one of the
statutory mandates, this Court will not reverse on appeal."
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630
(1989).
Pension Share
The commissioner recommended that wife receive thirty-eight
percent of husband's monthly pension payments. 	The trial court
accepted the commissioner's recommendation, noting that, based
upon actuarial life expectancy tables, wife "is expected
actuarily [sic] to receive more pension benefits than [husband]."
In addition, the amount received by husband was already reduced
by an unspecified amount because husband elected to receive his
pension in a form that provided wife with a survivor's benefit.
The court awarded husband no interest in wife's pension benefits.
The commissioner found that husband had retired in 1991 and
was not likely to become reemployed, while wife "appears able to

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continue her employment." 	Based upon husband's monthly pension
benefit of approximately $2,000 at the time of the hearing, wife
was entitled to receive $760 a month. 	The court was not required
to divide the pension in equal parts, as there is no statutory
presumption of equal distribution of marital property. 	See
Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830
(1986). 	We cannot say the trial court's decision to award wife
thirty-eight percent of husband's pension was either plainly
wrong or unsupported by the evidence.
Pension Payments Received During Separation
Husband voluntarily endorsed his Social Security checks to
wife during the separation period, resulting in a total payment
to wife of $26,592 through October 31, 1994. 	The court found
that wife had a claim to husband's pension, which the parties
agreed was marital property, and that husband had made payments
to wife sufficient to satisfy her share. 	We find no error in the
trial court's decision.
Reed Note
Similarly, wife received $10,144 in payments on the Reed
note, which the parties acknowledged was marital property, during
the parties' separation. 	No portion of those payments was
distributed to husband. 	We find no error in the trial court's
decision to count the value of the payments received by wife
against the monetary award.
Monetary Award

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Finally, Code § 20-107.3(D) expressly authorizes the trial
court to make a monetary award "payable either in a lump sum or
over a period of time in fixed amounts." 	The statute also
authorizes the trial court to use its discretion in determining
whether to award interest, stating that "[t]he provisions of
§ 8.01-382, relating to interest on judgments, shall apply unless
the court orders otherwise." 	Code § 20-107.3(D) (emphasis
added). 	Stroop v. Stroop, 10 Va. App. 611, 616-17, 394 S.E.2d
861, 863-64 (1990), cited by wife, dealt with court-ordered
transfers of property under Code § 20-107.3(C) and is inapposite.
We find no grounds for reversing the trial court's decision to
order the monetary award payable over six years without interest.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.