COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

SHARON A. HARVEY 

v. Record No. 0524-95-4 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

JAN VORIS HARVEY DECEMBER 29, 1995 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

William Shore Robertson, Judge 

 Julia S. Savage (Walker, Jones, Lawrence, Duggan & 

 Savage, P.C., on briefs), for appellant. 

 

 Linda I. Dodge for appellee. 

 Sharon A. Harvey ("wife") and Jan Voris Harvey ("husband") 

were divorced by decree entered February 24, 1995. In her appeal 

of the decree, wife contends the trial court abused its 

discretion in failing to quantify her interest in pension 

benefits paid to the husband during the pendency of the 

proceedings, where a pendente lite decree ordered the husband 

both to preserve marital assets and to pay support and 

maintenance. We find no error and affirm the judgment of the 

trial court. 

 The parties were married on June 25, 1966. During the 

marriage, the husband was an active member of the United States 

military, retiring as a Colonel in December 1988. The wife 

worked at home, providing support for the husband's career. The 

 

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

designated for publication. 
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trial court concluded that the husband's military career was a 

joint endeavor of the husband and wife. 

 The husband received his first pension payment around 

January 1, 1989, just days before the wife filed for divorce. By 

the end of that month, the court had entered a decree pendente

lite, restraining both parties from "disposing of any property 

from his or her estate in order to preserve the respective 

estates so that it may be forthcoming to meet any decree which 

may be entered." The pendente lite decree also ordered the 

husband to pay, "for support and maintenance . . . expenses 

necessary for the maintenance and running of the household . . . 

and other marital expenses customarily paid by him." 

 The evidence shows that, during the pendency of the 

proceedings, the husband incurred numerous expenses to support 

himself, the wife, and both their minor son and emancipated 

daughters. The husband contends that he had to use his pension 

payments to abide by the pendente lite decree's support order 

because his new income alone was insufficient. The wife alleges 

that the husband made many frivolous expenditures and that, in so 

doing, he disposed of a marital asset, his pension, in 

contravention of the pendente lite decree. 

 Following the equitable distribution hearing, the trial 

court concluded that eighty percent of the husband's pension was 

marital property of which the wife was entitled to one-half. To 

determine the value of the wife's one-half share of the proceeds 
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which accrued during the pendency of the proceedings (roughly 

1989-1993), the court was required to apply the value of those 

proceeds as of the date of the November 1993 and February 1994 

evidentiary hearings since neither party requested an alternate 

valuation date. See Code § 20-107.3(A); Gottlieb v. Gottlieb, 19 

Va. App. 77, 86, 448 S.E.2d 666, 672 (1994). By the date of 

those hearings, the value of the husband's pension proceeds that 

accrued during the 1989-1993 period was zero; the husband had 

spent it all. However, the court found that the value of the 

wife's share of those proceeds would have been $87,043 had the 

husband not spent the funds. Thus, the court sought to determine 

what amount of those proceeds the husband spent legitimately 

pursuant to the pendente lite order to provide support and what 

amount, if any, he improperly wasted or dissipated. 

 After reviewing substantial evidence seeking to establish or 

discredit the propriety of the husband's expenses, the court 

concluded that the evidence of waste was inconclusive. The court 

expressed "reservations" about some of the husband's claimed 

expenses, but it found that he had not "intentionally" dissipated 

the pension. The court concluded that it should award the wife 

something, but, since it was unable to determine which 

expenditures where proper and which were not, the court entered 

no award. The wife argues that this was error; we disagree. 

 Among the statutory factors the court must consider in 

making a "fair and equitable monetary award" are the 
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contributions of the parties to the "care and maintenance" of 

marital assets. See Code §§ 20-107.3(E)(2),(10). This Court has 

concluded that the trial court may consider a party's dissipation 

of marital assets under these sections when determining an 

appropriate monetary award for the other party. See Stroop v. 

Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990); Booth 

v. Booth, 7 Va. App. 22, 28, 371 S.E.2d 569, 572 (1988).1 Thus, 

although the trial court was required under § 20-107.3(A) to 

value the pension at the time of the hearing, it could still 

consider the issue of waste when making a monetary award under 

§ 20-107.3(E). Indeed, "[w]hen waste has occurred, the trial 

court must include the wasted asset as marital property and must 

consider the waste as a factor in determining the monetary 

award." Booth, 7 Va. App. at 28-29, 371 S.E.2d at 573. 

 It is clear under Virginia law that not every conveyance of 

marital property after the marriage breaks down is waste. See

Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 261 

(1990). Instead, dissipation occurs "where one spouse uses 

marital property for his own benefit and for a purpose unrelated 

to the marriage at a time when the marriage is undergoing an 

irreconcilable breakdown." Id. (quoting Hellwig v. Hellwig, 100 

Ill. App. 3d 452, 426 N.E.2d 1087 (1981)). The use of marital 

assets for marital purposes is not waste. Decker v. Decker, 17 

 

 1Booth addresses Code § 20-107.3(E)(11) which became 

§ 20-107.3(E)(10) after § 20-107.3(E)(8) was repealed. 
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Va. App. 12, 19, 435 S.E.2d 407, 412 (1993).2

 The husband bore the burden of proving by a preponderance of 

the evidence that he did not dissipate the pension. Clements, 10 

Va. App. at 586, 397 S.E.2d at 261. Accordingly, the husband 

produced evidence documenting his expenses, claiming that they 

were for a proper purpose. The court found that the husband had 

not "intentionally dissipated" the pension. While the court 

expressed reservations about accepting the husband's claim that 

all his expenditures were proper, the wife presented insufficient 

rebuttal evidence to enable the court to segregate proper 

expenditures from improper ones. Thus, the court was unable to 

make an award to reflect what it deemed would have been the 

wife's share of the husband's pension funds. 

 At the reconsideration hearing upon motion of the wife, the 

court again asked her to demonstrate an amount, based on the 

evidence, that would reflect the husband's obligation under the 

pendente lite decree so that the court could determine what 

portion of the husband's expenditures was waste and what amount, 

if any, it should award the wife. The wife refused to address 

the doctrine of waste, notwithstanding that, at the time of the 

hearing, the value of the proceeds she sought was zero. Instead, 

 

 2The pendente lite decree should be construed in accordance 

with these principles. See Brown v. Commonwealth, 8 Va. App. 

126, 133, 380 S.E.2d 8, 12 (1989) (describing presumption that 

trial judges properly apply the law); Paul v. Paul, 214 Va. 651, 

653, 203 S.E.2d 123, 125 (1974) (law in force at time property 

settlement agreement was made determines rights and duties under 

it). 
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she asked for her entire 40% share of the pension, contending 

that its future value at the time of the separation was all that 

was required to enable the court to make its award. The wife 

also argued that, in any event, the evidence before the court was 

sufficient for the court to make its determination and urged the 

court to "pick" a number. The court properly declined to do so. 

 A review of the record discloses that the evidence was 

insufficient to enable the court to identify funds which properly 

belonged to the wife. Having failed to provide evidence 

demonstrating the amount she should receive, the wife may not 

benefit on appeal for her failure to produce evidence at trial. 

See Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 500 

(1987). "The burden is always on the parties to present 

sufficient evidence to provide the basis on which a proper 

determination can be made, and the trial court in order to comply 

. . . must have the evidence before it . . . to grant or deny a 

monetary award." Id. (quoting Hodges v. Hodges, 2 Va. App. 508, 

516, 347 S.E.2d 134, 139 (1986)). Moreover, a reviewing court 

cannot remand an equitable distribution case where the parties 

"had an adequate opportunity to introduce evidence but have 

failed to do so." Id. (quoting In re Marriage of Smith, 114 Ill. 

App. 3d 47, 54-55, 448 N.E.2d 545, 550 (1983)). 

 The judgment of the trial court is therefore affirmed. 

Affirmed.