COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Salem, Virginia 

LILLIAN H. JOHNSON 

 OPINION BY 

v. Record No. 3102-96-3 CHIEF JUDGE NORMAN K. MOON 

 AUGUST 5, 1997 

EDGAR D. JOHNSON 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles H. Smith, Jr., Judge 

 Timothy W. Barbrow (Gwyn & Tate, on brief), 

for appellant. 

 Ralph M. Dillow, Jr. (Dillow & Esposito, on 

brief), for appellee. 

 Lillian H. Johnson ("wife") appeals the judgment of the 

circuit court deciding matters of equitable distribution and 

spousal support. Wife asserts that the trial court: (1) abused 

its discretion in dividing the parties' intangible marital 

personal property; (2) erred in determining the amount of spousal 

support to be paid to wife; and (3) erred in limiting the 

duration of the spousal support award to thirty-six months. 

 We hold that the trial court erred in making the equitable 

distribution award and accordingly, we reverse and remand for 

reconsideration of the award consistent with this opinion. 

Because we reverse the equitable distribution award, we also 

remand for reconsideration of the spousal support award. 

 Wife and Edgar Johnson ("husband") were married on October 

11, 1964. The parties have one child who was twenty-four years 
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old at the time of parties' divorce. When the parties married, 

husband was serving in the United States Navy. In 1968, he was 

hired by the Virginia State Police and has been employed as a 

state trooper since that time. Wife left her work as an employee 

at a sewing factory when the parties married and did not re-enter 

the work force until 1976. At that time, wife began working 

part-time as a school bus driver, driving a bus four hours a day. 

 Wife continued to work as a school bus driver throughout the 

course of the parties' marriage and also worked part-time for 

K-Mart for a brief period. 

 The parties' marital assets consisted of their residence 

valued at $150,000, with equity of approximately $110,000, and 

various investments and retirement benefits. These interests 

included three hundred shares of Wal-Mart stock valued at $6,300, 

a Virginia Credit Union account with a balance of $2,600, a 

deferred compensation account in the husband's name with a 

balance of $12,111.12, a deferred compensation account in wife's 

name with a balance of $1,703.45, an individual retirement 

account in the husband's name with a balance of $5,127.96, an 

individual retirement account in wife's name with a balance of 

$2,315, and a life insurance policy with a cash value of 

$4,696.28. The marital assets also included husband's state 

police pension benefits. 

 Husband asserted his pension's value to be $46,830.09, based 

on the cash surrender value of his pension if he withdrew all 

contributions and interest from his pension fund before 
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retirement. No evidence was presented that the funds were to be 

withdrawn at or near the time of the hearing. Wife, however, 

argued that the pension was worth $510,539.22. This sum was 

determined by multiplying husband's estimated monthly pension 

benefit of $1,765.35, constituting husband's vested benefit 

amount if he were to retire at the time of the parties' divorce, 

by husband's remaining 24.1 year life expectancy as provided by 

Code § 8.01-419. The $510,539.22 value did not reflect 

discounting to present value. 

 The parties separated on October 21, 1993, allegedly 

because husband became physically abusive. Wife sought and was 

granted a protective order by the juvenile and domestic relations 

court and was granted exclusive occupation of the marital 

residence. The court also ordered husband to pay pendente lite

spousal support in the amount of $1,500 a month. On the basis of 

their twelve month separation, the parties obtained a final 

decree of divorce on November 13, 1996. Both wife and husband 

were fifty-one years old at the time of the divorce and were in 

good health. The trial court ordered an equal division of all 

tangible personal and real property. The court awarded each 

party one-half of the Wal-Mart stock, Virginia Credit Union 

account, and the cash value of the life insurance policy. The 

court further ordered that the parties were to retain their 

respective individual retirement accounts, deferred compensation 

accounts, and retirement benefits. As part of the equitable 

distribution award, the court also ordered husband to pay wife 
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the sum of $15,000 in order to "balance the equities." 

 The court vacated the pendente lite spousal support of 

$1,500 and ordered husband to pay spousal support in the amount 

of $400 a month for a period of thirty-six months or until wife's 

death or remarriage, "whichever first occurs." 

Pension Benefits

 The trial court's letter opinion of October 4, 1996, 

provided the following distribution of the parties' intangible 

personal property: 

 The intangible personal property consists of 

Wal-Mart stock, a Virginia Credit Union 

account of [husband's], a deferred 

compensation account of [husband's], the 

parties' respective IRA's, cash value in Mr. 

Johnson's life insurance policy, and the 

parties' respective retirement accounts with 

their respective employers. 

(Emphasis added). After ordering the division of all assets 

except the "parties' respective retirement accounts," the trial 

court provided that "[t]he court will allocate [wife's] 

retirement benefits 100% to her. The court will allocate 

[husband's] retirement benefits 100% to him." The court's final 

order incorporated its letter opinion and made no additional 

reference to retirement benefits. 

 The trial court listed the parties' respective IRAs and 

deferred compensation accounts in addition to "the parties' 

retirement accounts with their respective employers," and 

distributed each of these interests. However, we find no 

evidence in the record that wife had a "retirement account" with 
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her employer. To the contrary, husband testified that while wife 

had an IRA and a deferred compensation account, he was not aware 

of wife having any form of pension. Accordingly, because the 

award was based upon the erroneous premise that wife had 

retirement benefits, we reverse and remand for reconsideration of 

the award. 

 Upon reconsideration of the equitable distribution award, 

particularly regarding husband's pension benefits, we make the 

following observations. 

 In considering valuation of the marital estate, we have held 

that Code § 20-107.3 "`mandates' that trial courts determine the 

ownership and value of all real and personal property of the 

parties." Nevertheless, "consistent with established Virginia 

jurisprudence, the litigants have the burden to present evidence 

sufficient for the court to discharge its duty." Bowers v. 

Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987). 

 Here, the parties introduced minimal credible evidence 

regarding the value of husband's pension, rendering it virtually 

impossible for the trial court to evaluate it effectively. The 

husband's value was grossly understated and the wife's claimed 

value was grossly overstated. The only evidence introduced by 

husband regarding the value of his pension was husband's exhibit 

number 6, a "Member Benefit Profile" produced by the Virginia 

Retirement System ("VRS"), prepared for husband on June 30, 1994. 

 The VRS profile reported husband's vested benefits and indicated 

that should husband choose to retire at age fifty-one, his 
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monthly benefit would be $1,765.35, and if he retired at age 

sixty, his monthly benefit would be $2,414.89. The VRS profile 

indicated that these amounts did not include the "law enforcement 

supplement" and no additional evidence was presented indicating 

the amount or value of such supplement. The VRS profile also 

reported that if husband terminated employment before retirement, 

he was entitled to withdraw his contributions to the plan, with 

interest. At the time the VRS profile was prepared this sum 

amounted to $46,830.09, the value assigned by husband to his 

pension benefits. 

 While no evidence other than the VRS profile was introduced 

regarding the value of husband's pension benefits, the profile 

was sufficient to establish that the pension benefits had value 

well in excess of $46,830.09. Husband's vested monthly benefit, 

had he retired at age fifty-one, paid out to him over the course 

of his remaining life expectancy of 24.1 years, as determined by 

Code § 8.01-419, would result in income to him of $510,539.22. 

 We have previously held that a court is not required to 

place a present value on pension benefits if the court orders 

deferred distribution of the benefit, using the formula set out 

in Code § 20-107.3(G)(1). Indeed, to order deferred distribution 

based on present value, is error. Zipf v. Zipf, 8 Va. App. 387, 

382 S.E.2d 263 (1989). However, where an award of the entire 

pension is made to the owning spouse at the time of the divorce, 

the court must determine the present value of the pension fund 

before such an award can be made. See Brett R. Turner, Equitable 
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Distribution of Property § 6:12 (2d ed. 1994). The present value 

of a defined benefit plan, such as the plan before the court, is 

not simply the total value of the contributions of the 

beneficiary at the time of the hearing. Turner, § 6:12 at 368, 

374. Such a method would reach "inaccurate results, because it 

does not recognize the fact that contributions appreciate in 

value after they are made." Id. at 374. Instead, a multiple 

step process is required to determine the present value, 

including a determination of future benefits and the application 

of various discount factors. Id. at 368-71. The party 

suggesting such an award, must provide proof of value. Where, as 

here, the evidence renders a precise determination of a pension's 

value practically impossible an award of pension benefits to a 

payee spouse, as those benefits are received by the payor spouse, 

as permitted by Code § 20-107.3(G)(1), may prove the only 

equitable method of considering the pension benefits in making an 

award. See Rowe v. Rowe, 24 Va. 123, 143, 480 S.E.2d 760, 769 

(1997). 

 Spousal Support

 Because the equitable distribution award must be 

redetermined, the spousal support award must also be 

redetermined. Recognizing that some of the issues presented in 

this appeal may arise upon rehearing, we make the following 

comment. 

 Here, the record establishes that the parties were married 

for nearly thirty years. During that time husband was employed 
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full time as a state trooper, while wife worked as a homemaker, 

mother, and for more than twenty years, as a part-time bus 

driver. At the time of the parties' divorce, wife earned 

approximately $9,600 a year while husband earned $48,899 a year. 

 The record also established that wife possessed an associates 

degree from a community college, was fifty-one years of age, and 

was in good health. Wife also introduced evidence of monthly 

expenses in the amount of $2,305.83. While $581.51 of these 

expenses were attributable to the mortgage payment which wife 

would not continue to incur, wife would have to acquire 

additional housing and thereby incur some significant expense in 

the form of rent or mortgage payments. 

 Based on the evidence presented, wife's monthly income of 

$800, combined with $400 of monthly spousal support, would not be 

sufficient to sustain her standard of living or to enable her to 

meet her monthly expenses. Further, the evidence did not support 

a finding that wife, at age fifty-one, with an associates degree 

and no work experience other than driving a school bus, was 

likely in the immediate or reasonably foreseeable future to 

acquire a position with substantially greater compensation. 

 Upon remand and upon the evidence presented, it would be 

error for the court to limit the award of spousal support to a 

thirty-six month period. Code § 20-107.1 provides that "[t]he 

court, in its discretion, may decree that maintenance and support 

of a spouse be made in periodic payments, or in lump sum award, 

or both." Code § 20-107.1 does not empower the trial court to 
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award periodic payments for a limited period without evidence 

that the need for support will cease within the immediate or 

reasonably foreseeable future. Thomas v. Thomas, 217 Va. 502, 

229 S.E.2d 887 (1976). 

 Reversed and remanded.