J.M. LEWIS, JR. v. LYNNE H. LEWIS

COURT OF APPEALS OF VIRGINIA

53 Va. App. 528

Husband appeals from these April 9, 2008 orders

Issues:

• Whether the trial court erred in awarding wife half of the marital portion of his pension plan?
• Whether the trial court erred in awarding wife the growth on her portion of the marital share of husband's profit-sharing account?
• Whether the trial court has an authority to order that husband obtain life insurance for the benefit of wife?
• Whether the trial court erred in awarding attorney's fees to wife?

Whether the trial court erred in awarding wife half of the marital portion of his pension plan?

The court finds that "Marital share" means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties . . . ."  The trial court determined that the pension was worth $ 3,719.82 per month on June 1, 2003, the date that the parties separated. The evidence supports that finding."

Thus, the trial court did not err in the amount of husband's pension that it awarded to wife."

Whether the trial court erred in awarding wife the growth on her portion of the marital share of husband's profit-sharing account?

Husband took from wife the ability to control her portion of the profit-sharing account, without her permission. He exerted control over her portion after the PSA had specifically divided the account so that husband was no longer entitled to control that money.  Thus, in awarding wife the growth on her portion of the profit-sharing account after husband took the money and put it into the annuities, the trial court simply gave effect to this intention of the PSA, which husband had frustrated. Husband acted unilaterally, taking upon himself the responsibility for wife's money. Therefore, wife should be entitled to any profit made from her portion of these marital funds. Otherwise, husband would receive the benefit of his inappropriate actions.

Although he claims that wife should be faulted for her "own delay and refusal" to present a QDRO, wife was not required to concede to husband's interpretation of the PSA. In addition, although husband had the ability to remove the funds from the profit-sharing account, he had no legitimate authority to remove wife's portion of those funds, according to both the PSA and the court's order incorporating that agreement. Wife was clearly entitled under the PSA, under the court's order, and under basic principles of equity to the interest on her portion of the profit-sharing account, especially after husband removed those funds without her permission.  We find the trial court did not err in awarding wife the growth on her portion of the marital share of husband's Philip Morris profit-sharing account.

Whether the trial court has an authority to order that husband obtain life insurance for the benefit of wife?

The PSA did not address the issue of life insurance in any way, so the trial court did not derive authority to order husband to get the insurance under its terms.. Furthermore, under Virginia Divorce Code § 20-107.3(G)(2), a trial court cannot order that a person obtain life insurance on himself for the benefit of a former spouse, although a court can order that a person elect to have survivor's benefits on a pension or annuity.  Therefore, the trial court did not have authority, as part of the equitable distribution here, to order that husband obtain life insurance for the benefit of wife

Whether the trial court erred in awarding attorney's fees to wife?

The trial court had discretion to award attorney's fees.  Given husband's behavior here, and his use of marital funds to the exclusion of wife, the award was not an abuse of that discretion.

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content.