COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Alexandria, Virginia 

JACKSON H. GERWE 

v. Record No. 0860-95-4 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

JUDITH GERWE JANUARY 16, 1996 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Richard J. Jamborsky, Judge 

 Peter M. Fitzner (Shoun & Bach, P.C., on 

briefs), for appellant. 

 Morgan Brooke-Devlin, for appellee. 

 On appeal from a final decree granting his wife, Judith 

Gerwe, a divorce, Jackson H. Gerwe contends the trial court erred 

(1) in granting the divorce on the ground of desertion, (2) in 

determining the equitable distribution award, (3) in awarding 

spousal support to Ms. Gerwe, and (4) in requiring him to pay the 

cost of a survivor benefit for Ms. Gerwe under his pension plan. 

 We affirm in part and reverse in part. 

 Mr. and Ms. Gerwe were married on October 27, 1962. The 

only child of the marriage is emancipated. Mr. Gerwe is a 

retired employee of AT&T. Ms. Gerwe operates a small craft 

business from her home. Throughout the marriage, Mr. Gerwe 

supported Ms. Gerwe and made the majority of the monetary 

contributions to the marriage. 

 

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

designated for publication. 
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 In November 1992, Mr. Gerwe left the marital residence 

without telling Ms. Gerwe and moved in with another woman. He 

never returned. Prior to his leaving, the parties had no 

physical relationship for eighteen years and no social 

relationship for twenty-two years. Ms. Gerwe hired investigators 

to locate her husband, without success. 

 On June 7, 1993, Ms. Gerwe filed suit for divorce on the 

ground of desertion. After attempts to effect service on Mr. 

Gerwe were unsuccessful, the trial court entered ex parte orders 

on October 15 and 29, 1993, freezing Mr. Gerwe's assets, awarding 

Ms. Gerwe $3,100 per month spousal support pendente lite and 

$5,000 in attorney's fees, and garnishing Mr. Gerwe's pension in 

the amount of $4,884. 

 In November 1993, Mr. Gerwe appeared specially to contest 

the trial court's jurisdiction. Because it lacked in personam

jurisdiction over Mr. Gerwe, the trial court vacated the orders 

granting spousal support and attorney's fees. However, the trial 

court ruled that it had jurisdiction to freeze Mr. Gerwe's assets 

and did not vacate that provision. 

 The commissioner in chancery found that Mr. Gerwe deserted 

Ms. Gerwe on November 30, 1992, and recommended that Ms. Gerwe be 

granted a divorce on that ground. The trial court approved this 

finding and on March 24, 1995, entered a final decree awarding 

Ms. Gerwe a divorce on the ground of desertion. The decree 

awarded her the entire marital share of the marital home, a 
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$53,032 monetary award, $288 a month in spousal support, $10,000 

in attorney's fees, 35.6 percent of Mr. Gerwe's AT&T pension, and 

required Mr. Gerwe to pay the cost of providing that Ms. Gerwe's 

share would survive for her lifetime. 

 First, Mr. Gerwe contends that the trial court erred in 

awarding Ms. Gerwe a divorce on the ground of desertion. He 

argues that he did not desert her, but that their separation was 

by mutual agreement. He argues that even if his departure was 

not specifically by agreement, their marriage was "dead." 

 A legally recognizable event is necessary to dissolve a 

marriage. "One spouse is not legally justified in leaving the 

other spouse simply because the marital relationship has 

gradually broken down." Pillow v. Pillow, 13 Va. App. 271, 276, 

410 S.E.2d 407, 410 (1991). "Desertion occurs when one spouse 

breaks off marital cohabitation with the intent to remain apart 

permanently, without the consent and against the will of the 

other spouse." Barnes v. Barnes, 16 Va. App. 98, 101, 428 S.E.2d 

294, 297 (1993). The evidence supports the finding that Mr. 

Gerwe made a unilateral decision to leave home. Ms. Gerwe did 

not know his whereabouts and was unable to locate him, even with 

the help of investigators. We find no error in the trial court's 

award of the divorce on the ground of desertion. 

 Second, Mr. Gerwe contends that the trial court erred in 

determining the equitable distribution award 1) by making a 

$53,032 monetary award to Ms. Gerwe and 2) by awarding Ms. Gerwe 
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the entire marital share of the parties' marital home. Mr. Gerwe 

argues that the trial court did not comply with Code § 20-107.3 

in making the monetary award, that it punished him for leaving 

the marriage, and that the award is not reconcilable with the 

facts. He argues that because the trial court did not find that 

he had wasted marital assets, it erred in considering his 

leaving, secreting himself, and taking money post-separation in 

fixing the monetary award. He argues that "[c]ircumstances that 

lead to the dissolution of the marriage but have no effect upon 

marital property or its value are not relevant to determining a 

monetary award and need not be considered." Marion v. Marion, 11 

Va. App. 659, 664, 401 S.E.2d 432, 436 (1991) (citation omitted). 

 We will not reverse an equitable distribution award 

"[u]nless it appears from the record that the chancellor has 

abused his discretion, that he has not considered or has 

misapplied one of the statutory mandates, or that the evidence 

fails to support the finding of fact underlying his resolution of 

the conflict of the equities. . . ." Smoot v. Smoot, 233 Va. 

435, 443, 357 S.E.2d 728, 732 (1987). We find no abuse of 

discretion in the equitable distribution award. The trial court 

considered the factors set forth in Code § 20-107.3(E) and 

applied them to the facts, taking into consideration specifically 

that Mr. Gerwe deserted Ms. Gerwe, that he secreted himself, and 

that he deprived her of support. A trial court when considering 

the statutory factors of Code § 20-107.3(E) "is not required to 
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quantify the weight given to each, nor is it required to weigh 

each factor equally, though its considerations must be supported 

by the evidence." Marion, 11 Va. App. at 664, 401 S.E.2d at 436. 

 The evidence supports the trial court's award of the marital 

share of the marital residence to Ms. Gerwe and the $53,032 

monetary award. 

 Third, Mr. Gerwe contends that the trial court erred in 

awarding spousal support to Ms. Gerwe. He argues that the trial 

court failed to apply Code § 20-107.1 properly. We disagree. 

 "[I]n awarding spousal support, the trial court 'must 

consider the relative needs and abilities of the parties.'" 

Mosley v. Mosley, 19 Va. App. 192, 197, 450 S.E.2d 161, 164 

(1994) (citation omitted). "When a [trial] court awards spousal 

support based upon due consideration of the factors enumerated in 

Code § 20-107.1, as shown by the evidence, its determination 

'will not be disturbed except for a clear abuse of discretion.'" 

Huger v. Huger, 16 Va. App. 785, 791, 433 S.E.2d 255, 259 (1993) 

(citation omitted). The trial court found 1) that Ms. Gerwe had 

an income of between $1,000 and $3,000 a year, while Mr. Gerwe 

had a yearly pension income of $28,115.28, 2) that Mr. Gerwe had 

made the majority of financial contributions to the marriage, but 

Ms. Gerwe had made the majority of non-monetary contributions, 

and 3) that Mr. Gerwe deserted Ms. Gerwe and then secreted 

himself, leaving her without support. These findings are 

supported by the evidence and justify the award of spousal 
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support to Ms. Gerwe. 

 Fourth, Mr. Gerwe contends that the trial court abused its 

discretion in requiring him to pay the cost of converting Ms. 

Gerwe's share of his pension to a benefit that will survive for 

her lifetime. He argues that this increased cost will accrue to 

her more than fifty percent of the marital share of his pension, 

in violation of Code § 20-107.3(G). We agree. 

 Code § 20-107.3(G) provides, in pertinent part: 

 No [pension award] shall exceed fifty percent of the 

marital share of the cash benefits actually received by 

the party against whom such award is made. 

The marital share of Mr. Gerwe's pension is 71.2 percent. The 

award to Ms. Gerwe of 35.6 percent of Mr. Gerwe's gross pension 

receipts represented the maximum allowance to her permissible 

under the statute. The requirement that Mr. Gerwe pay the cost 

of extending Ms. Gerwe's allowed benefit for her lifetime reduced 

pro tanto the benefit to be received by him, thus awarding her 

more than fifty percent of the marital share benefits to be 

received. 

 The judgment of the trial court is reversed and modified to 

delete the requirement that Mr. Gerwe pay the cost of fixing Ms. 

Gerwe's share of his pension as a benefit to survive for her 

lifetime. The judgment of the trial court is otherwise affirmed. 

 Affirmed in part, reversed in part.