COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Fitzpatrick and 

 Senior Judge Duff 

PAUL BRUNDAGE 

v. Record No. 1487-94-4 

 

EDITH EMILY BRUNDAGE MEMORANDUM OPINION* BY 

 JUDGE CHARLES H. DUFF 

EDITH EMILY BRUNDAGE MAY 23, 1995 

v. Record No. 1571-94-4 

PAUL BRUNDAGE 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Marcus D. Williams, Judge 

 Paul Brundage, pro se. 

 John S. Petrillo (Philip Schwartz; Schwartz & 

Ellis, Ltd., on brief), for Edith E. Brundage. 

 Paul Brundage (husband) appeals the decision of the circuit 

court granting Edith E. Brundage (wife) a divorce on the grounds 

of a one-year separation and deciding other issues. Wife has 

also filed an appeal from the circuit court's decision. 

 Husband raises the following issues on appeal: 

 (1) whether the trial court erred in overruling 

husband's objections to the findings of the 

commissioner in chancery that husband condoned wife's 

adultery; 

 (2) whether the trial court erred in failing to 

incorporate the parties' Property Settlement Agreement 

into the final decree of divorce; 

 (3) whether the trial court erred in awarding no 

attorney's fees to husband and awarding $23,000 in 

attorney's fees to wife; 

 (4) whether the trial court erred in awarding spousal 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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support to wife and failing to reserve a right to 

spousal support to husband; and 

 (5) whether the trial court erroneously awarded wife an 

interest in husband's pension exceeding the statutory 

marital share. 

In response to wife's appeal, husband also raises as an issue 

whether the trial court erred in determining the amount of child 

support. 

 Wife raises two issues on appeal, both of which relate to 

the award of an interest in husband's pension: 

 (1) whether the trial court erred in awarding wife 

only thirty-five percent of the marital share of 

husband's pension; and 

 (2) whether the trial court erred in refusing to also 

award wife a survivor's annuity. 

 The commissioner in chancery heard evidence on the parties' 

respective grounds for divorce. Additional hearings on the 

issues of equitable distribution and spousal support were 

conducted by the trial court. 

I. Grounds for Divorce

 "The commissioner's report is deemed to be prima facie 

correct." Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 

548 (1990). "When the commissioner's findings are based upon ore

tenus evidence, 'due regard [must be given] to the commissioner's 

ability . . . to see, hear and evaluate the witness at first 

hand.'" Id. (citation omitted). "The decree confirming the 

commissioner's report is presumed to be correct and will not be 

disturbed if it is reasonably supported by substantial, 
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competent, and credible evidence." Brawand v. Brawand, 1 Va. 

App. 305, 308, 338 S.E.2d 651, 652 (1986). 

 The commissioner found that, while wife committed adultery, 

the parties resumed marital relations after husband knew of 

wife's infidelities. Husband challenges the finding that he 

condoned wife's adultery. At oral argument and in his brief, 

husband pointed specifically to incidents of adultery that 

occurred in March 1988. However, the "Agreement Concerning Trial 

Reconciliation and Terms and Conditions in the Event of Divorce," 

drafted by husband and provided to wife in July 1990, contains 

the following passage: 

 On or about November 19, 1989, HUSBAND learned that 

during the previous twenty-two (22) months WIFE has had 

an ongoing adulterous relationship at various times and 

places in Europe, with one GILLES. One specific 

instance occurred at The Collin House, Ebury Street, 

SW1, London, England, on March 11, 1988. 

The parties admitted that they resumed their marital relations, 

albeit on a trial basis, in September 1990. 

 "'Condonation is defined to be the remission, by one of the 

married parties, of an offense which he knows the other has 

committed against the marriage, on the condition of being 

continually treated by the other with conjugal kindness.'" 

Cutlip v. Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989) 

(citation omitted). Condonation is a defense to a charge of 

adultery as a grounds for divorce. Id. While husband contends 

he had no knowledge that wife committed adultery on specific 

dates during this period, substantial evidence demonstrates that 
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husband knew of wife's ongoing adulterous relationship prior to 

the parties' reconciliation. Therefore, as credible evidence 

supports the commissioner's finding, this Court will not disturb 

the decision of the trial court to accept the commissioner's 

report. 

 II. Incorporation of Property Settlement Agreement

 "The language of Code § 20-109.1 gives the trial court 

discretion in determining whether a property settlement agreement 

should be incorporated by reference into a final decree of 

divorce. Absent an abuse of discretion, the trial court's 

decision must be upheld on appeal." Forrest v. Forrest, 3 Va. 

App. 236, 239, 349 S.E.2d 157, 159 (1986). 

 Husband alleges the trial court erred in failing to 

incorporate into its final decree the property settlement 

agreement outlined before the trial court during a hearing in 

March 1994. We note, however, that "[t]o be valid and 

enforceable, the terms of an oral agreement must be reasonably 

certain, definite, and complete to enable the parties and the 

courts to give the agreement exact meaning." Richardson v. 

Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990). In 

contrast, the transcript upon which husband relies indicates that 

the agreement was characterized as an "outline." The agreement 

also failed to address significant marital property interests 

held by the parties, most notably the parties' respective 

pensions benefits. 
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 Therefore, we cannot say the trial court abused its 

discretion in failing to approve the parties' property settlement 

agreement. 

III. Award of Attorney's Fees

 A court's award of attorney's fees and costs is a matter 

submitted to the sound discretion of the trial court and is 

reviewable on appeal only for an abuse of discretion. Graves v. 

Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The key 

to a proper award is reasonableness under all the circumstances. 

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). 

 While husband contends that wife's suit was meritless, the 

commissioner found the evidence supported wife's complaints 

concerning husband's behavior towards her and the parties' 

children, noting that "the marriage had nearly terminated because 

of the factors proven by [wife]." Moreover, the trial court 

indicated it had "taken into consideration the factors . . . 

concerning who may be responsible for litigation or [a] 

particular motion or so forth." The trial court noted also that 

husband had used marital assets to pay some of his attorney's 

fees and that husband had substantially higher income than wife. 

 Wife incurred $57,000 in attorney's fees, of which husband 

was ordered to pay $20,000. Husband was also ordered to pay 

$3,000 in costs. Based on the issues involved and the respective 

abilities of the parties to pay, we cannot say that the award was 
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unreasonable or that the trial judge abused his discretion in 

making the award. 

IV. Spousal Support

 Husband challenges the trial court's award of spousal 

support to wife, asserting that the trial court erred in failing 

to impute annual income of $52,000 to wife. The testimony before 

the trial court demonstrated that husband had been the primary 

wage-earner for the family. When wife did work, it had been 

primarily part-time. There was no year in which wife earned 

$52,000. 

 Moreover, the trial court found wife's testimony to be 

credible. She testified that her current position alleviated the 

need for child care and avoided unusual work hours "which would 

be inappropriate, given [wife's] responsibilities and 

circumstances." Cf. Butler v. Butler, 217 Va. 195, 197, 227 

S.E.2d 688, 690 (1976) (father's decision to remain in lower-paid 

position was "made in his own interest"). 

 In awarding spousal support, the chancellor 

must consider the relative needs and 

abilities of the parties. He is guided by 

the nine factors that are set forth in Code 

§ 20-107.1. When the chancellor has given 

due consideration to these factors, his 

determination will not be disturbed on appeal 

except for a clear abuse of discretion. 

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 

(1986). The record demonstrates the trial court considered the 

statutory factors and did not abuse its discretion. Therefore, 

we affirm the trial court's decision awarding wife spousal 
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support. 

 Husband also requested spousal support in his Cross-Bill of 

Complaint. While we cannot say on review that the trial court 

abused its discretion in denying husband's request for spousal 

support at this time, the trial court did err by failing to 

reserve husband's right to seek spousal support in the future. 

"[W]here there is no bar to the right of spousal support, it is 

reversible error for the trial court, upon request of either 

party, to fail to make a reservation in the decree of the right 

to receive spousal support in the event of a change of 

circumstances." Bacon v. Bacon, 3 Va. App. 484, 491, 351 S.E.2d 

37, 41 (1986). Therefore, we reverse and remand to the trial 

court for reservation of husband's right to seek spousal support 

in the future. 

V. Interest in Husband's Pension

 In the final decree, the trial court noted that the present 

value of husband's "[Civil Service Retirement System] pension is 

$75,085.00, and the marital share thereof is 96.92% or 

$72,772.38." The court then awarded wife the following: 

 [Wife] is awarded 35% of the gross amount of 

each pension payment due to [husband] 

pursuant to his Federal Government CSRS, in 

whatever manner the payments are made, 

whether by monthly allotment, or by lump sum 

payment, or by other means, and any payment 

due to [wife] shall be made directly to her 

 . . . . 

 As entered, the order is erroneous. "A present value 

calculation is of direct use only where payment of the portion of 
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the monetary award attributable to the pension is to occur 

immediately rather than over a period of time." Zipf v. Zipf, 8 

Va. App. 387, 397, 382 S.E.2d 263, 269 (1989). The trial court 

choose not to make a present monetary award to wife comparable to 

her share of husband's pension. 

 Instead, the trial court awarded wife a percentage of each 

CSRS pension payment husband receives at the time it is paid out. 

 Under Code § 20-107.3(G)(1), a trial court may award a 

percentage of any pension payout to the spouse, but the court 

must ensure that the amount paid to the spouse does not exceed 

fifty percent of the marital share. 

 The trial court's award of thirty-five percent of husband's 

CSRS pension at the time it is actually paid did not reflect an 

award of only the marital share. While the marital share at the 

time of trial was very nearly equal to husband's total pension, 

the marital share of the total pension will diminish with 

husband's continued employment. 

 Therefore, we reverse and remand for the trial court to 

enter an order awarding wife her thirty-five percent portion of 

the marital share of husband's pension, to be paid at the time 

husband begins to receive his pension. The marital share may be 

determined by use of a fraction, the numerator of which is the 

number of months husband was employed and contributing to his 

pension during the marriage and before the last separation of the 

parties, and the denominator of which is the total number of 
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months of husband's employment. See Code § 20-107.3(G)(1). 

 Wife argues that the trial court erred by failing to award 

her a survivor's annuity. As the issue of the equitable 

distribution of husband's pension has been remanded, the trial 

court may reconsider whether an award of a survivor's annuity is 

warranted under the circumstances and in light of the statutory 

factors set out in Code § 20-107.3(E). 

VI. Child Support

 In response to wife's appeal, husband also seeks review of 

the trial court's order setting child support. Husband alleges 

the trial court erred by deviating from the statutory guidelines 

without written findings, by failing to impute income to wife, 

and by failing to include his child care expenses in its 

calculation. 

 The trial court awarded child support based upon the 

statutory guidelines, expressly deviating from the guideline 

amount for split custody to include the additional costs for 

private school and orthodontia. See Code §§ 20-108.1(B) and 

20-108.2(G). Evidence was introduced to support those costs, and 

the amounts of the deviations were included in the guideline 

worksheet incorporated into the court's decree. The trial 

court's order rebutted the presumptive correctness of the 

statutory guideline amount with "enough detail and exactness to 

allow for effective appellate review of the findings." 

Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 897 
 10 

(1991). Therefore, we find no reversible error in the trial 

court's deviation from the statutory guidelines. 

 The trial court determined wife was not underemployed. This 

decision was supported by credible evidence. We therefore find 

no error in the trial court's decision not to impute income to 

wife. 

 Husband presented no evidence during the trial court's 

hearings concerning child care expenses. The only evidence 

concerning child care was a summary attached to one of several 

motions for reconsideration filed by husband after the close of 

the trial. As husband did not present any evidence of his child 

care costs during the trial, we cannot say the trial court erred 

in refusing to include in its calculations any of those alleged 

expenses. 

 In summary, we reverse and remand the trial court's award to 

wife of thirty-five percent of each payment received by husband 

from his CSRS pension. The trial court may review its 

determination concerning an award of a survivor's annuity, in 

light of its decision concerning husband's pension. We also 

reverse the trial court's failure to reserve husband's right to 

seek spousal support in the future. 

 We affirm all other aspects of the trial court's decision. 

Specifically, we affirm the finding that husband condoned wife's 

adulterous relationship; the award to wife of spousal support, 

attorney's fees, and costs; the refusal to incorporate the 
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property settlement agreement into the final decree of divorce; 

and the determination of child support. 

 Reversed in part,

affirmed in part, and remanded.