COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Frank 

Argued at Richmond, Virginia 

ELECTRA MOORE McGAY 

 MEMORANDUM OPINION* BY 

v. Record No. 2756-99-3 JUDGE RUDOLPH BUMGARDNER, III 

 AUGUST 29, 2000 

CULBERT McGAY 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 Kenneth L. Crosson for appellant. 

 Randall T. Perdue (P. Donald Moses; 

Timberlake, Smith, Thomas & Moses, P.C., on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

Electra Moore McGay appeals from an equitable distribution 

award and raises eight questions. She contends the trial court 

erred (1) in ruling the parties lived separate and apart since 

1985; (2) in determining the date of separation without 

reference to whether either party intended to live separate and 

apart; (3) in finding that money spent after 1985 on joint 

obligations was the sole income of the husband; (4) in crediting 

the husband with separate income when the income came from the 

sale of marital assets; (5) in awarding the husband a share of 

marital property based upon the conclusion that the husband used 

his separate income to pay for marital obligations; (6) in 
awarding the husband 60% of the marital property based upon the 

conclusion that the husband used his separate income to pay for 

marital obligations; (7) in awarding the wife only 35% of the 

husband's military and civil service pensions based upon the 

conclusion that she did not demonstrate financial need; and (8) 

in awarding the husband both habitable real properties and 

awarding the wife an uninhabitable property. The majority of 

the separately stated questions, Questions (1)-(6), arise from a 

single contention: the trial court erred by basing its 

equitable distribution rulings on the finding that the marital 

partnership ended in 1985. We conclude the trial court properly 

used 1985 as the date of separation in its deliberations and did 

not err on the remaining assignments of error. Accordingly, we 

affirm. 

The divorce proceedings began May 28, 1996 when the wife 

filed for divorce on the grounds of desertion. The trial court 

granted the divorce February 19, 1997 on the grounds the parties 

had lived separate and apart since April 1985. The trial court 

did not decree equitable distribution in the final decree of 

divorce but reserved jurisdiction over that issue for future 

decision. Several months later, the trial court referred all 

equitable distribution issues to a commissioner in chancery. 

 The commissioner heard extensive evidence the next summer 

and made his report November 9, 1998. The report concluded with 

the recommendation that 60% of the marital property and 65% of 

- 2 -
the husband's pensions be allocated to him. It proposed two 

alternative methods for allocating the illiquid estate. The 

wife filed timely exceptions to the commissioner's report. 

After hearing the exceptions, the trial court approved the 

commissioner's report, allocated the real estate according to 

the second of two alternative plans for distribution, and 

entered the final order of distribution November 1, 1999. 

The wife took depositions on the issue of fault December 

16, 1996, and they became the sole evidence upon which the 

divorce was decreed. Both parties and two of their adult 

children testified about the marital history and its breakup. 

The evidence established that the parties married November 16, 

1943 and had three children. The husband worked for, and 

eventually retired from, the civil service while the wife worked 

intermittently. Throughout the marriage the parties lived apart 

for substantial periods of time. The wife began to reside in 

Augusta County, Virginia in 1978, though the husband lived and 

worked in Georgia. The husband retired to Augusta County in 

April 1985, but the two never lived together. They resided on 

separate farms about seven miles apart in a rural, remote part 

of the county. No divorce action was initiated until May 1996 

when the wife brought the divorce action. When the divorce was 

decreed, the parties had been married for 54 years. The wife 

was 81 years old and in very poor health. The husband was 83 

- 3 -
years old, in reasonably good health, but actively farming their 

properties and managing their finances. 

From the evidence presented by deposition, the trial court 

found that the parties last cohabited in Georgia, and lived 

separate and apart from April 1985 without cohabitation or 

interruption. The trial court recited the finding in the 

decree, granted the divorce on that basis, and entered the 

decree February 19, 1997. The decree of divorce was a consent 

order, requested by both parties, to which neither party took 

exception. 

The divorce decree and its finding became a final 

adjudication of the issue between the parties just as it would 

have become final if equitable distribution had never been 

raised and not reserved for future consideration in the decree. 

See Toomey v. Toomey, 251 Va. 168, 172, 465 S.E.2d 838, 840 

(1996) (Code § 20-107.3(A) permits the trial court either to 

adjudicate equitable distribution when it decrees a divorce or 

to retain jurisdiction to adjudicate equitable distribution 

later, but if it does not retain jurisdiction, the trial court 

has no jurisdiction once the decree of divorce becomes final). 

The issue became final 21 days after entry of the order. 

"Additionally, an order of the circuit court becomes final 21 

days after its entry unless modified, vacated, or suspended by 

the court during that time." The Berean Law Group v. Cox, 259 

Va. 622, 626, 528 S.E.2d 108, 111 (2000) (citing Rule 1:1). 

- 4 -
The trial court fixed April 1985 as the date of the last 

separation in this marriage. The record shows the trial court 

based the finding on the depositions taken by the wife and filed 

by her in support of her proposed decree. As stated in Dietz v. 

Dietz, 17 Va. App. 203, 209-10, 436 S.E.2d 463, 467 (1993), "the 

legislature recognized that a marriage will be deemed to have 

ended for purposes of classifying property on the date of the 

last separation, in the absence of proof to the contrary." The 

finding became a final adjudication of that issue of fact and 

bound the parties during the subsequent equitable distribution 

proceedings. 

The record is clear that the parties accepted April 1985 as 

the date of separation throughout the commissioner's hearing. 

The wife made no objection to the use of that date in her 

exceptions to the commissioner's report. Rule 5A:18 requires 

that objections to a trial court's action or ruling be made with 

specificity in order to preserve an issue for appeal. See

Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 

(1991) (en banc). Accordingly, Rule 5A:18 bars our 

consideration of this issue on appeal, and that bars 

consideration of Questions (1)-(6). Moreover, the record does 

not reflect any reason to invoke the good cause or ends of 

justice exceptions to Rule 5A:18. 

The trial court referred the issues of equitable 

distribution to a commissioner in chancery, who heard the 

- 5 -
evidence June 10, 1998 and filed his report November 9, 1998. 

The wife filed exceptions to the commissioner's report on 

November 19, 1998 and noted four objections: (1) the wife was 

denied due process of law because she was incapable of assisting 

in the presentation of her evidence; (2) the commissioner 

calculated the wife's share of the husband's pensions based on 

need; (3) the commissioner erred in using an evaluation date 

other than the date of the evidentiary hearing in the absence of 

a motion filed as required by Code § 20-107.3(A); and (4) the 

commissioner sua sponte selected an alternate evaluation date. 

The wife filed no further exceptions, made no request, nor 

received leave to file additional exceptions at a later time.1

See Code § 8.01-615. No exception raised the issues now posed 

on appeal in Questions (3)-(6), and for that additional reason, 

Rule 5A:18 bars consideration of those questions. 

 1

 The wife concedes that she did not raise additional 

objections and did not request or obtain an extension for filing 

them. She maintains that she presented the additional issues to 

the trial court in her "Reply Memorandum in Support of 

Plaintiff's Exceptions to the Report of Commissioner." She 

filed the memorandum February 12, 1999 along with new exhibits 

not presented at the commissioner's evidentiary hearing. She 

maintains the trial court ruled on the additional objections 

when it stated at the beginning of the hearing on exceptions: 

"And I reviewed everything the Commissioner said. I will review 

everything that you-all bring out, and then I'll go through this 

record, every bit of it, to see whether it's supported or 

whether it isn't." 

A review of the arguments presented orally and in the 

memoranda and briefs makes clear that the husband objected to 

the wife's expanding and recasting her objections beyond those 

stated in her pleadings. 

- 6 -
The record reflects no merit or basis for objections to the 

commissioner's report (1),2 (3), and (4).3 The remaining 

exception to the report contends the commissioner erroneously 

calculated the wife's share of the husband's pensions based on 

need. In reviewing whether the trial court considered need 

improperly, we must examine the factors in Code § 20-107.3(E) 

that the commissioner considered when distributing the marital 

property. In his report the recommendation for allocating the 

pensions proceeded from and built upon that analysis because the 

same factors must be considered in both decisions. See Code 

§ 20-107.3(G). 

 The commissioner's report was a careful, ordered, and 

complete recitation of the steps taken in weighing the evidence 

and in deciding upon a fair and equitable distribution of the 

marital estate accumulated during the long marriage. The 

 2

 The wife's counsel asserted that the trial court erred by 

not appointing a guardian ad litem and suggested that she was 

not competent. Immediately on that representation, the trial 

court inquired fully whether counsel felt his client was not 

competent. Counsel assured the trial court she was competent. 

When questioned during oral argument, counsel advised this Court 

the wife was competent. Accordingly, there is no basis to 

appoint a fiduciary to conduct her suit for her. 

3

 In objections (3) and (4), the wife asserted the 

commissioner chose an alternative valuation date sua sponte

without requiring a motion as provided by Code § 20-107.3(A). 

The record contains an appropriate motion that the husband filed 

21 days before the commissioner's hearing. The commissioner did 

not act sua sponte. Additionally, the record reflects the 

commissioner applied an alternative valuation date to only one 

parcel of real estate. He gave precise reasons for that 

decision, and the evidence supports it. 

- 7 -
commissioner determined the legal title, ownership, and value of 

the real and personal property. It identified the marital and 

separate property. It presented a clear, concise, and cogent 

review and analysis of the evidence that embraced each factor in 

Code § 20-107.3(E). In orderly sequence, the report gave a 

complete presentation of the salient details of the marriage and 

fully evaluated all factors specified in Code § 20-107.3(E). It 

then summarized its more detailed discussion of the factors: 

Throughout the parties' 41-year marriage, 

Mr. McGay was virtually the sole monetary 

contributor to the well-being of the family 

and the acquisition of the marital property. 

He was the principal nonmonetary contributor 

in the care and maintenance of such 

property. Based upon the testimony of the 

parties and their witnesses at the divorce 

depositions and the Commissioner's hearing, 

the circumstances and factors which 

contributed to the dissolution of the 

marriage tend to favor Mr. McGay although 

the Court did not find that either party was 

at fault and, as previously noted, Mrs. 

McGay was unable to be an effective witness 

on her own behalf. With the exception of 

Mrs. McGay's extremely poor physical and 

mental condition, none of the other factors 

set forth in Virginia Code § 20-107.3 E 

weigh to either party's advantage. After 

considering all of these factors, a larger 

share of the marital property should be 

awarded to Mr. McGay because he is almost 

solely responsible for the accumulation of 

the marital wealth. A substantial provision 

must be made for Mrs. McGay, however, in 

view of the length of the parties' marriage 

and her state of health and dependent 

condition. Accordingly, your Commissioner 

recommends that 40% of the marital property, 

excluding Mr. McGay's military and civil 

service pensions, be awarded to Electra 

- 8 -
Moore McGay and the remaining 60% to Culbert 

McGay. 

The summary itself recites evidence covering factors (1) 

through (5), which were the factors the commissioner deemed more 

important in this case. Our review of the record reveals 

evidence presented on each statutory factor. The evidence 

supports the findings made by the commissioner, and the report 

reflects the commissioner carefully weighing and balancing the 

various factors before arriving at his conclusion of law. 

All decisions made in distributing the marital property 

were an exercise of sound discretion. There is no presumption 

favoring an equal division of marital property. See Papuchis v. 

Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 831 (1986). We 

recognize that "the trial court's job [in reviewing an equitable 

distribution award] 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). The trial court's decision will not be reversed on 

appeal unless plainly wrong or unsupported by the evidence. See

Rahbaran v. Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 139 

(1997). The record suggests no abuse of discretion by the trial 

court. 

After dividing the marital property, the commissioner's 

report next addressed distribution of the husband's pensions. 

- 9 -
The wife contends they saved the husband's pensions for their 

joint benefit and an unequal distribution unfairly benefits him. 

She argues the commissioner impermissibly based the award on 

need. The report stated: 

Mr. McGay's military and civil service 

pensions have been the parties' principal 

sources of support during their retirement 

and separation. The entire amounts of both 

pensions are consumed in paying the parties' 

debts and living expenses. Mr. McGay has 

been the sole monetary and nonmonetary 

contributor to the accumulation, 

acquisition, and maintenance of his pensions 

and he should be awarded a larger share of 

the pensions than his share in the rest of 

the marital property. In addition, Mrs. 

McGay has not demonstrated the need for more 

than 35% of the monthly total of these 

pensions for her continued maintenance and 

support. 

The report shows that the commissioner considered the 

proper factors in deciding to make an award of the pension. 

Having discussed the factors in Code § 20-107.3(E) for purposes 

of distributing marital property, the report moved to 

considering how those factors weighed differently when 

distributing the pensions. The commissioner gave additional 

weight to the factor that the husband was "the sole monetary and 

nonmonetary contributor to the accumulation, acquisition, and 

maintenance of his pensions." 

The commissioner did not require the wife to prove her 

need. The comment about lack of need was an aside to make clear 

that the recommendation would provide for her adequately. It 

- 10 -
related to the earlier comment that the wife required 

"substantial provisions" because of the length of marriage and 

her failing health, and it related to the finding that the 

pension income had been consumed to pay debts and living 

expenses during the separation. The commissioner was assuring 

the trial court that the proposed division of the pensions would 

continue to provide the wife a means of support as it had during 

the separation. It was not limiting her pension award on the 

basis of need. When a trial court "divides the pension 

unequally, its reasons for doing so must be done on the record." 

Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 504, 508 

(1990). Based on the record, we find no error in the division 

of the husband's pension. 

 Finally, we consider whether the trial court erred in 

distributing the jointly owned real property. The wife objected 

to the trial court's selection of the commissioner's second 

option for allocating the parties' marital real estate and his 

rejection of her alternative proposal which was not reported by 

the commissioner. She contends that real estate allocated to 

her is uninhabitable and that it was unconscionable to evict her 

from her residence due to her age and failing health. 

 The parties' primary asset was real estate consisting of 

three separate farms. While the only indebtedness encumbered 

the farm titled in the husband's name, the marital estate was 

- 11 -
illiquid. The three properties were called Hadlow, Riverjack, 

and Epidarus. 

Hadlow consisted of two separate parcels divided by Route 

600, a state secondary road. The husband bought both parcels in 

1964. Hadlow I contained 121 acres and the farmhouse in which 

the wife resided. Despite the husband's periodic repairs, the 

farmhouse remained in poor condition. The balance contained 

cropland and pasture which the husband farmed. Hadlow II 

contained 133 acres of timberland. 

 The husband resided with his disabled daughter on the farm 

called Riverjack. It contained 100 acres on which the husband 

raised cows. The farmhouse was in poor condition; it had only 

two heated rooms. The farm was in the village of Deerfield 

approximately seven miles from Hadlow. Riverjack was titled in 

the husband's name alone. 

 The third farm known as Epidarus was located in Rockbridge 

County some distance from the other farms. It contained 160 

acres of which 53 were open and the remainder cut-over timber. 

At the wife's insistence, the husband purchased it in 1971. The 

wife originally wanted to develop it as a land restoration 

project, but nothing was done with the farm for many years. It 

contained no electricity, plumbing, or water. 

The commissioner's report offered two alternatives for 

allocating the real estate. The first distributed Hadlow I (the 

residence) to the wife and distributed Hadlow II, Riverjack, and 

- 12 -
Epidarus to the husband. The second alternative distributed 

Epidarus to the wife and Hadlow I, Hadlow II, and Riverjack to 

the husband. After hearing the exceptions to the commissioner's 

report and approving it, the trial court gave the parties 21 

days to select their preference of the two recommended 

alternatives. The wife did not select one of the alternatives 

but filed a new plan of distribution. She wanted all of the 

Hadlow property, which required her to incur $48,589 of debt. 

The trial court rejected her proposal and selected the 

commissioner's second alternative. 

From 1966 when the wife broke a number of ribs, she 

suffered from osteoporosis, which became progressively worse. 

The wife had a severely compressed spine, moved with extreme 

difficulty, and appeared to be in constant pain. She suffered 

from hypertension, hypothyroidism, urinary tract infections, and 

glaucoma. Her health was precarious, and she could not attend 

the final hearing. She was recovering from a broken hip, living 

at her grandson's house, and not able to return to her own home 

without continuous live-in care. Her memory and mental 

processes were seriously impaired and serious enough that her 

attorney suggested that a guardian ad litem was required. 

Over the course of the litigation, the trial court observed 

the wife's physical condition and its deterioration. The trial 

court expressed deep concern about her ability to live at 

Hadlow, which it knew to be in a remote, isolated area far 

- 13 -
removed from medical services. The trial court considered her 

plan impracticable because it required the wife to service 

$48,589 debt without the means to do so. The trial court 

recognized that Epidarus had been a sound investment that the 

wife could sell. The trial court expressed concern that, while 

her attorney advised that the wife intended to return to Hadlow 

with a full-time care provider, the attorney was not familiar 

with the property or its isolation and had only talked with her 

son, not with her. 

It is clear that the trial court did not intend for the 

wife to reside in the uninhabitable house at Epidarus but found 

it unrealistic to expect that she could live at Hadlow. The 

trial court reviewed the record, heard the arguments of counsel, 

and concluded the wife's proposal was not practicable for an 

84-year-old woman in poor health. The trial court also felt the 

commissioner's plan permitted the husband to earn income by 

continuing to farm both Riverjack and Hadlow. From the record, 

we conclude the trial court properly exercised its discretion 

when allocating the properties among the parties. 

 For the reasons stated, we affirm. 

 Affirmed.

- 14 -