COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Salem, Virginia 

PATRICK L. OVERBEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1395-00-3 JUDGE ROBERT P. FRANK 

 APRIL 3, 2001 

PATRICIA K. OVERBEY 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 Frankie C. Coyner for appellant. 

 No brief or argument for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Patrick L. Overbey (husband) contends the trial court erred 

in awarding Patricia K. Overbey (wife) forty-five percent of his 

pension, claiming: 1) wife's incarceration for embezzlement was 

an economic fault that impacted the marital estate, 2) the trial 

court did not give him adequate credit for his curtailment of 

wife's pro rata share of marital debts, and 3) the trial court 

should have awarded him a credit for the funds he paid to support 

the parties' children during wife's incarceration. Finding no 

error, we affirm the trial court. 
I. BACKGROUND 

 Husband and wife were married on August 24, 1974, and had 

three children. At the time of the parties' separation, two of 

the children, Christopher and Robert, were not emancipated. 

 Both husband and wife worked during the marriage, 

frequently working a full-time job in addition to a part-time 

job. Both husband and wife pooled their incomes. During the 

marriage, husband and wife shared childcare responsibilities. 

 On January 5, 1995, wife was charged with felony 

embezzlement. The parties were living together at that time. 

Wife testified that although husband said he would "stand by 

her," he left the marital home on January 23, 1995. Husband 

returned to the marital home in May 1995. Husband testified he 

returned to effect a reconciliation. 

 Husband again left the marital home in June 1995. He 

testified that he struck his son Christopher after Christopher 

cursed his brother. Later that same evening, Christopher went 

to his aunt's home and refused to return home. Husband 

testified that he told wife, "'This is it. It ain't going to 

work,'" and then left the marital home. Wife testified she 

asked husband to leave after he struck Christopher. 

 Wife was convicted of embezzlement in United States 

District Court in February 1996 and was imprisoned until March 

1999. She remained on house arrest until June 1999. At the 

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time of the equitable distribution hearing, wife was on federal 

probation. 

 During wife's confinement, husband had custody of both 

children for a period of time and then Christopher went to live 

with his aunt. Husband testified that he paid child support for 

Christopher from December 4, 1996 to June 7, 1997 in the amount 

of $25 per week. Husband paid $275 per month for health 

insurance for the children from February 1996 to December 1997. 

The premium then was reduced to $78 per month because 

Christopher was emancipated and removed from the policy. In 

December 1998, husband testified Robert had reached eighteen 

years of age and was removed from coverage. During her 

incarceration, wife did not pay child support and did not make 

any other contributions for the children's support. 

 At the time of the hearing, wife was fifty-one years old, 

and husband was forty-six years old. Wife had one year of 

college. Wife testified her health was good. Husband testified 

he had a heart attack a week after the parties separated in 

January 1995, which was three weeks after wife was arrested for 

embezzlement. 

 Wife testified that when the parties separated, they agreed 

to evenly divide the marital debts,1 which totaled between 

$25,000 and $50,000. Husband denied any such agreement. 

 1

 Wife testified that there was a written agreement as to 

the debts but the writing was not produced. 

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 Wife also testified she was making payment on marital debt 

to VISA, Montgomery Ward, and Household Beneficial. She stated 

she was paying restitution of $112,000 on the embezzlement 

charge at $100 per month. Husband testified he paid over 

$20,000 in marital debts. He testified $10,385.71 was wife's 

half share of the debts he paid. 

 Wife embezzled money from Staunton Employees Credit Union 

while she was employed there. She testified that at least one 

year to one year and one-half prior to her arrest, she told 

husband she was embezzling money from the credit union. Husband 

testified she told him two to three months prior to her arrest. 

The charge arose out of wife making loans to herself. 

 The parties had a joint account at the credit union, in 

which husband deposited his December 31, 1994 paycheck in the 

amount of $1,100. Subsequently, the authorities seized that 

account, and husband never recovered the amount of his paycheck. 

 Husband became a police officer in 1978 and conceded that 

no part of his Virginia Retirement System pension accrued prior 

to the marriage. At the time of separation, husband had 

seventeen years of qualified service under the Virginia 

Retirement System. 

 Husband, at the hearing, argued he should be given credit, 

against wife's potential share of his pension2 for the child 

 2

 The parties had divided all other marital assets by 

agreement. The pension is the only issue before this Court. 

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support and insurance premiums paid on behalf of the children 

and the $10,385.71 that represents wife's share of the marital 

debts he paid. 

 In awarding wife forty-five percent of the pension, the 

trial court considered the length of the marriage and the 

contributions of the parties and addressed the marital debts 

paid by husband. The trial court stated, "So what I'm going to 

suggest is - what I believe is appropriate is 45 percent of the 

marital share. That's what I believe is appropriate. And that 

takes into account the debt that he - that he got stuck with, 

that he took on." 

 A final decree was granted to husband on November 3, 1998, 

on the grounds of wife's felony conviction of embezzlement and 

subsequent incarceration for a period exceeding one year 

pursuant to Code § 20-91(3). 

II. ANALYSIS 

 Husband contends the trial court failed to consider wife's 

economic fault in making the award of equitable distribution.3 

He argues that wife's arrest, conviction, and incarceration 

impacted the marital estate in three ways: 1) wife's arrest 

caused his heart attack in January 1995, which resulted in his 

two-month absence from work, 2) wife did not contribute to the 

support of the children during her incarceration, and 3) wife's 

 3

 Husband does not dispute that the other statutory factors 

of Code § 20-107(E) were considered. 

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arrest resulted in the seizure of the parties' joint account at 

the credit union and the loss of his $1,100 paycheck. 

 Code § 20-107.3(E)(5) states that the court, in making an 

award, may consider the circumstances and factors which 

contributed to the dissolution of the marriage, specifically any 

grounds of divorce under the provisions of Code § 20-91(1), (3), 

or (6), or Code § 20-95. Husband correctly cites Aster v. 

Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988), for the proposition 

that marital fault can only be considered in an equitable 

distribution award when the fault has economic consequences to 

the parties' marital estate.4 However, we reject husband's 

contention that wife's arrest, conviction, and subsequent 

incarceration had an economic impact on the marital estate. 

 4

 We limit our review to whether marital fault had economic 

consequences on the marital estate. Husband did not raise, nor 

do we consider, O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 

S.E.2d 323 (1995), in which we held: 

If the evidence of misconduct is 

relevant under any other factor than 

subparagraph (5), it may in the judge's 

discretion be considered when making an 

equitable award. The trial court may 

"consider the negative impact of [an] affair 

on the well-being of the family, see Code 

§ 20-107.3(E)(1) . . . ." Smith[v. Smith], 

18 Va. App. [427,] 431, 444 S.E.2d [269,] 

273 [(1994)]. 

Id. at 527-28, 458 S.E.2d at 326. 

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 First, there is no evidence that wife's arrest caused 

husband's heart attack. We could only speculate and surmise as 

to the causation of such. 

 It is uncontroverted that upon wife's arrest, husband 

indicated he would "stand by her." Husband did not relate the 

separation in January 1995 to wife's pending charges or to any 

other actions by wife. Husband was told of wife's embezzlement 

weeks or months prior to January 1995, and, aware of the 

charges, husband attempted a reconciliation in May 1995. 

Husband testified that in June 1995, he struck Christopher, and 

Christopher refused to return home from his aunt's house. When 

husband went to get Christopher, the aunt said Christopher would 

not leave. Husband then said to wife, "This is it. It ain't 

going to work." Husband left the marital home. Husband's 

testimony did not indicate that wife caused him to leave in June 

1995. 

 Since we have concluded that wife's embezzlement was not a 

marital fault that led to the dissolution of the marriage, the 

seizure of the parties' joint account at the credit union is not 

an economic consequence of the fault as contemplated by Aster. 

 Clearly, wife made no economic contributions to support the 

children during her incarceration. Husband contends he is 

entitled to a dollar-for-dollar credit against wife's share of 

his pension for the child support and insurance he paid during 

wife's incarceration. 

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 Husband paid child support for Christopher pursuant to a 

court order and supported Robert at home. He also paid health 

insurance for the children. Husband's contention ignores the 

fact that he is obligated to support the children and that he 

was under court order to support Christopher. See Code § 20-61. 

 Husband wants this Court to "adopt the position that, when 

a spouse is incarcerated . . . and leaves the infant children 

behind, some credit against equitable distribution should be 

awarded against the spouse left behind with the 

children . . . ." Husband acknowledges there is no authority to 

support his position, and we find none. Therefore, we decline 

husband's invitation to create such an offset. 

 As earlier discussed, this Court has refused 

dollar-for-dollar offsets in determining an equitable 

distribution award. But more basically, a parent's obligation 

to support a child is quite separate from an equitable 

distribution award. 

 As we said, in Lightburn v. Lightburn, 22 Va. App. 612, 472 

S.E.2d 281 (1996): 

 The legislature enacted Code § 20-107.3 

to divide the value of marital property 

between spouses based upon each spouse's 

contribution to the acquisition, 

preservation, or improvement of property 

obtained during the marriage. Sawyer v. 

Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 

279 (1985); see Roane v. Roane, 12 Va. App. 

989, 994, 407 S.E.2d 698, 701 (1991). "The 

clear legislative intent embodied in [Code 

§ 20-107.3] is to maintain an appropriate 

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separation between considerations of child 

or spousal support and considerations of an 

equitable division of marital wealth." 

Williams v. Williams, 4 Va. App. 19, 24, 354 

S.E.2d 64, 66 (1987); Reid v. Reid, 7 Va. 

App. 553, 564, 375 S.E.2d 533, 539 (1989). 

A trial court determines distribution of 

marital property without regard for the 

considerations of spousal support and the 

factors in Code § 20-107.1. Equitable 

distribution is based on different 

considerations than spousal support. Stumbo 

v. Stumbo, 20 Va. App. 685, 691, 460 S.E.2d 

591, 594 (1995). 

Id. at 619, 472 S.E.2d at 284.

 "Both parents owe a duty of support to their minor 

children." Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 

56 (1994) (citing Code § 20-61; Featherstone v. Brooks, 220 Va. 

443, 448, 258 S.E.2d 513, 516 (1979)). "A custodial parent has 

no less responsibility to provide support to a minor child than 

does the noncustodial parent." Bennett v. Commonwealth, Dep't. 

of Social Servs., Div. of Child Support Enforcement, 22 Va. App. 

684, 692, 472 S.E.2d 668, 672 (1996). See also Hur v. Dep't. of 

Social Servs., Div. of Child Support Enforcement, 13 Va. App. 

54, 58, 409 S.E.2d 454, 457 (1991) (citation omitted) ("Child 

support has long been recognized as an obligation owed to the 

infant child, not the payee parent. This duty arises from 

principles of natural law."). 

 We, therefore, find that husband is not entitled to an 

offset of the equitable distribution award by the monies he 

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expended for the support of his children. We believe that the 

rational of Lightburn equally applies to this factual situation. 

 Husband also contends he is entitled to a dollar-for-dollar 

credit for marital debts he paid post-separation. He argues 

that the trial court did not give him adequate credit for his 

curtailment of wife's pro rata share of marital debt after her 

incarceration. 

 We have previously held that a spouse is not entitled to a 

dollar-for-dollar credit for contributions and maintenance of 

marital property. Ellington v. Ellington, 8 Va. App. 48, 56, 

378 S.E.2d 626, 630 (1989); Barker v. Barker, 27 Va. App. 519, 

539, 500 S.E.2d 240, 250 (1998). 

 Although the separate contribution of 

one party to the acquisition, care, and 

maintenance of marital property is a factor 

that the trial court must consider when 

making its award of equitable distribution, 

Code § 20-107.3 does not mandate that the 

trial court award a corresponding 

dollar-for-dollar credit for such 

contributions. 

von Raab v. von Raab, 26 Va. App. 239, 249-50, 494 S.E.2d 156, 

161 (1997). 

 Similarly, the debts and liabilities of each spouse are one 

of the factors in Code § 20-107.3 for the court to consider. 

The trial court expressly indicated it took "into account the 

debt that [husband] . . . got stuck with . . . ." 

 "'In reviewing an equitable distribution award on appeal, 

we have recognized that the trial court's job is a difficult 

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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.'" Anderson v. Anderson, 29 Va. App. 

673, 692-93, 514 S.E.2d 369, 379 (1999) (quoting Klein v. Klein, 

11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990)). "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). 

 In Matthews v. Suzann, 26 Va. App. 638, 496 S.E.2d 126 

(1998), we stated: 

 In determining an equitable 

distribution award, the trial court must 

make "delicate and difficult judgments," 

Bentz[v. Bentz], 2 Va. App. [486,] 489, 345 

S.E.2d [773,] 774 [(1986)], and "weigh[ ] 

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). It is precisely "because rights 

and interests in marital property are 

difficult to determine and evaluate and 

competing equities are difficult to 

reconcile," that "the chancellor is 

necessarily vested with broad discretion in 

the discharge of the duties the statute 

imposes." Smoot v. Smoot, 233 Va. 435, 443, 

357 S.E.2d 728, 732 (1987). 

Id. at 645-46, 496 S.E.2d at 129. 

 In this case, the trial court considered husband's payment 

of marital debts in fashioning the distribution of husband's 

pension. We cannot say that the award of forty-five percent of 

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the pension to wife is an abuse of discretion unsupported by the 

evidence. We, therefore, affirm the decision of the trial 

court. 

Affirmed.

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