COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

STEPHEN A. EISENBERGER 

 MEMORANDUM OPINION* BY 

v. Record No. 2549-95-2 CHIEF JUDGE NORMAN K. MOON 

 NOVEMBER 19, 1996 

SUZANNE S. EISENBERGER 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 Lawrence E. Luck (Meyer, Goergen & Marrs, on 

briefs), for appellant. 

 Phoebe P. Hall (Franklin P. Hall; Hall & 

Hall, on brief), for appellee. 

 Stephen A. Eisenberger appeals from the final decree of 

divorce and distribution of property order of the circuit court. 

 Appellant raises the following arguments on appeal: (1) whether 

the circuit court erred in characterizing appellant's 

post-separation contributions to his Crestar-thrift account as 

marital property; (2) whether the circuit court erred in awarding 

each party their respective pension benefits without first 

declaring the specific value accorded each of the parties' 

pension benefits; (3) whether the circuit court erred in refusing 

to permit a reservation of spousal support for the appellant 

where such reservation was requested; (4) whether the circuit 

court erred in requiring appellant to pay a lump sum to appellee 

in accord with the court's use of the present offset method to 

 

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

designated for publication. 
 -2- 

 

distribute marital assets which included the marital portion of 

appellant's deferred management incentive plan awards for 1992 

and 1993; (5) whether the circuit court erred in characterizing 

the appellant's management incentive plan award for 1993 as 

marital property; and (6) whether the circuit court erred in 

refusing to amend or to suspend its final decree in order to hear 

additional evidence where appellant gave notice to the court 

within the period prescribed by Rule 1:1 of appellant's 

termination from employment, a factor considered by the court in 

making its distribution and support order.1

 In her response, 

appellee raises the additional argument of whether the circuit 

court erred in classifying the wife's disability benefits as 

marital where the disability occurred after the separation of the 

parties. We find that: (1) the circuit court erred in 

classifying the entirety of appellant's post-separation 

contributions to his Crestar-thrift account as marital property; 

(2) the circuit court's failure to announce the specific value 

accorded appellant's and appellee's pension benefits constituted 

 1We note that appellant's formal objections were filed in a 

written statement of objections on October 25, 1995, some 

nineteen days after the court's final decree of October 6, 1995. 

 In view of the record, we find that appellant made sufficient 

indication of his objections during the evidentiary hearing to 

warrant our consideration of the issues before us with the 

exception of appellant's argument concerning the circuit court's 

use of the present offset method in distributing marital assets 

which included appellant's management incentive awards. We wish 

to make clear, however, that such written objections alone, filed 

days after the court's final decree, are not regularly sufficient 

to comply with Rule 5A:18. 
 -3- 

harmless error; (3) the circuit court did not err in refusing to 

grant appellant's request for reservation of spousal support; 

(4) appellant failed to properly object to the circuit court's 

distribution of appellant's deferred management incentive awards 

via the present offset method and consequently, we do not reach 

this issue on appeal; (5) the court did not err in classifying 

appellant's management incentive plan award which appellant 

earned in 1993 as marital property; (6) the court did not err in 

refusing to amend or to suspend its final decree to hear 

additional evidence after being informed of appellant's 

termination from his position with Crestar Bank; and (7) appellee 

failed to timely object to the court's classification of her 

disability benefits as marital property, and we therefore do not 

reach this issue on appeal. 

 Appellant and appellee were married on April 20, 1973. A 

final divorce decree was entered on October 10, 1995, at which 

time appellant was forty-eight years of age and appellee was 

fifty years of age. Divorce was granted on the ground that from 

approximately January 14, 1994, the parties had lived separate 

and apart without any cohabitation or interruption for a period 

of more than one year. 

 During the majority of the parties' marriage appellant was 

employed by Crestar Bank and at the time of trial served as a 

vice-president in Crestar's commercial financial division. 

During the course of appellant's employment, he worked in Norfolk 
 -4- 

and Chesapeake, returning to the marital abode on weekends and 

occasional week nights. Appellee, who suffered from depression, 

remained in Richmond in the parties' home during this period. 

Throughout the period appellant was employed in Norfolk and 

Chesapeake, appellee expressed her desire to relocate to Norfolk 

to be with appellant. Appellant refused and informed appellee 

that when he returned to Richmond he did not wish to resume 

living with appellee. In late 1993, appellant was reassigned to 

Richmond. Appellant returned to Richmond and in January 1994, 

appellant moved out of the marital abode and established a 

separate residence. Appellee expressed her desire that she did 

not want the marriage to end at this time, but she cooperated 

with appellant's decision to establish a separate residence. 

Appellee continued to suffer from depression at the time that 

appellant chose to depart from the marital abode. 

 Appellant established a variety of retirement assets prior 

to his separation from appellee in January of 1994. These 

included two IRAs, a Fidelity Investors IRA in his name, valued 

by stipulation at $95,072.80, classified as marital property, and 

a First Union IRA, valued by stipulation at $22.97, classified as 

marital property. Appellant also participated in a Crestar 

Thrift and Profit Sharing Plan which was valued at $46,718. In 

addition, prior to issuance of the final divorce decree, 

appellant received three Management Incentive Plan awards. These 

awards consisted of credit for deferred compensation in the 
 -5- 

amounts of $5,000 earned in 1992, $8,000 earned in 1993, and 

$10,000 earned in 1994. All three awards were actually declared 

in February of the preceeding year. The awards earned in 1992 

and 1993 were classified as marital property. 

 Appellant also had accrued pension benefits under a Crestar 

pension plan which would begin to provide income to appellant at 

age sixty-five. During the evidentiary hearing, appellant and 

appellee expressed extreme disagreement as to the appropriate 

valuation of the pension plan. Appellant's expert, Maxwell G. 

Cisne, a certified public accountant recognized by the trial 

court as an expert in pension valuations, offered different 

valuations of appellant's pension plan based on the number of 

years of completed employment time with Crestar used in the 

calculation. Cisne calculated the present value of appellant's 

plan at $14,278.02. This value was based on a projected monthly 

benefit of $784.13, a figure reflecting appellant's benefits if 

his employment with Crestar terminated on July 26, 1995, a point 

reflecting appellant's vested retirement benefits at 

approximately the time of the August 14 hearing. Alternatively, 

Cisne valued the plan at $10,645.55, if the monthly pension 

benefit used was $584.64, the value of appellant's benefits if he 

had terminated employment with Crestar on December 31, 1993, 

immediately prior to the parties' separation in January of 1994. 

 Appellee disagreed with the use of either value, arguing 

that appellant had not terminated his employment with Crestar on 
 -6- 

either date, as these figures assumed. Instead, appellee offered 

a value of $2,700 per month as the proper benefit amount to be 

used, as this would be the benefit to appellant if he remained 

with Crestar until age sixty-five according to Crestar's 1995 

Executive Benefits Statement. The Benefit's Statement was 

interpreted during the hearing by appellee's witness, Sue S. 

Sampson, Esq., a member of Crestar's legal department, serving as 

Crestar's designee. Sampson presented three valuations of 

appellant's retirement benefits based on appellant's last salary 

increase and differing retirement dates and accumulated years of 

service. Appellant's benefits were calculated at $784.13 if 

appellant had terminated employment with Crestar on July 26, 

1995. If appellant opted for early retirement and terminated 

employment at age fifty-five, his benefits were calculated at 

$732.97 a month. Retirement at age sixty would result in a 

monthly benefit of $2,090.19 and retirement at age sixty-five was 

calculated to produce a monthly benefit of approximately $2,700. 

 Appellant argued that the sum of $2,700 per month should not be 

used as it was "grossly speculative" given the possibility that 

appellant might leave Crestar prior to reaching age sixty-five. 

 Appellee was employed throughout the majority of the 

marriage by the Commonwealth of Virginia. Appellee began work 

for the Commonwealth as a librarian on July 1, 1971 and was so 

employed until her retirement on disability on June 1, 1994. 

Appellee accrued pension benefits under the Virginia Retirement 
 -7- 

System (VRS). At the time of trial the VRS provided appellee a 

monthly disability benefit of $2,474.34. In addition appellee 

received $1,238 in Social Security disability payments. During 

the evidentiary hearing, appellant's expert calculated a present 

value of appellee's VRS benefits as $476,691.32, based on an 

assumption of a 3.5% cost of living adjustment, an 8% discount 

rate and a predicted death at age 80.4. Appellee rejected this 

value, arguing that the appropriate valuation of her benefits was 

$18,475.62. This sum is the amount that appellee could withdraw 

if she had left work on June 1, 1994, a date near the date of the 

evidentiary hearing. Appellee also argued that appellant's 

figure of $476,691.32 was inappropriate in that it was highly 

speculative. Appellee noted that appellant's calculation 

presumed appellee's continued disability. However, appellee's 

disability, based on depression, is subject to annual review and 

should she be determined to no longer be disabled, or if she 

returned to full-time work, her disability retirement income 

would cease. 

 In addition to their individual retirement and savings 

accounts, the parties possessed certain other marital assets 

distributed by the court. The most significant of these other 

assets was the parties' marital residence, with a fair market 

value of $130,500. The residence was encumbered by a mortgage 

with a balance of $41,119.56 and an equity loan with a balance of 

$23,801.82. The couple also owned a home-built airplane, made by 
 -8- 

appellant, valued at $30,000. 

 The circuit court ordered the following distribution of the 

marital estate: (1) each party was to keep their respective 

pension benefits; (2) appellant was to receive 70% of the value 

of the home-built airplane, the appellee 30%; (3) appellant was 

to be solely liable for a contingent guarantee that appellant 

executed for a past business venture; and (4) all other marital 

assets were to be divided fifty-fifty. 

I. Characterization of appellant's post separation contributions

 to his Crestar-thrift account as marital property

 Throughout the course of appellant's employment with Crestar 

he participated in Crestar's Thrift and Profit Sharing Plan 

("Crestar-thrift plan"). The circuit court valued appellant's 

Crestar-thrift account as of the evidentiary hearing at $46,718 

and classified the entire account as marital. At the time of the 

parties' separation on or about January 14, 1994, appellant's 

Crestar-thrift account was valued at $17,419.90, consisting of 

298.0380 shares of Crestar stock (valued at $13,748.78) and 

327.1983 units of Crestfunds Value Fund (valued at $3,671.12). 

Following separation, appellant converted the entire 327.1983 

units of Crestfunds Value Fund into an additional 87.669 shares 

of Crestar common stock, bringing the pre-separation total to 

385.708 shares. The pre-separation stock also continued to 

appreciate. Appellant also continued to purchase additional 

shares of Crestar stock via the Crestar-thrift plan. The 

purchases were made with funds deducted from appellant's monthly 
 -9- 

pay check, combined with matching funds from Crestar. In 

February of 1994, appellant also received a profit sharing award 

of $3,855.76 into his Crestar-thrift account. 

 Code § 20-107.3(A)(2) addresses the treatment of deferred 

compensation plans: 

 All property including that portion of 

pensions, profit-sharing or deferred 

compensation or retirement plans of whatever 

nature, acquired by either spouse during the 

marriage, and before the last separation of 

the parties, if at such time or thereafter at 

least one of the parties intends that the 

separation be permanent, is presumed to be 

marital property in the absence of 

satisfactory evidence that it is separate 

property. 

Here the appellant has made purchases of additional Crestar stock 

subsequent to the parties "last separation." Consequently the 

post-separation stock is not presumptively treated as marital 

under the statute. However, the post-separation stock was 

commingled with the 385.708 shares of stock that the parties 

agree is properly characterized as marital property. Code 

§ 20-107.3(A)(3)(d) addresses the burdens of the parties in 

valuing commingled property: 

 When marital property and separate property 

are commingled by contributing one category 

of property to another, resulting in the loss 

of identity of the contributed property, the 

classification of the contributed property 

shall be transmuted to the category of 

property receiving the contribution. 

However, to the extent the contributed 

property is retraceable by a preponderance of 

the evidence and was not a gift, such 

contributed property shall retain its 

original classification. 
 -10- 

Accordingly, the burden is on the proponent of the property's 

classification as separate to produce evidence, a preponderance 

of which proves a portion of the asset to be separate. Here, the 

burden was on the appellant to prove what portion of his 

Crestar-thrift account was attributable to the post-separation 

purchases. Appellant introduced into evidence activity sheets, 

prepared by Crestar, indicating the various activity in the 

thrift account from 1/1/93 through 12/31/94. Using this 

information it is possible to determine what portion of the 

thrift account was separate as of 12/31/94. Had appellant 

introduced activity sheets for the period of 1/1/95 - 7/25/95, it 

would also be possible to accurately determine the separate and 

marital portions of the thrift as of 7/25/95, however appellant 

failed to enter those summaries. Nevertheless, the activity 

sheets of 1/1/93 to 12/31/94 allow for determining that some part 

of the account is separate. 

 The activity sheet for 1/1/94 - 3/31/94, beginning at the 

point just prior to the parties' separation on 1/14/94, indicates 

that the marital portion of the account was $17,419.90. To this 

sum must be added $3,855.76, which was a profit sharing award 

earned by appellant in 1993 prior to the parties' separation but 

not awarded to him until February of 1994. See infra part V. 

There is no separate indication of the profit sharing award on 

the activity sheet as it is grouped with the employer 

contribution which totalled $4,455.34 from 1/1/94 - 3/31/94. 
 -11- 

Adding the profit sharing award of $3,855.76 to the initial 

$17,419.90 which the parties agree is all marital, we reach a 

total of $21,275.66 which constitutes the marital portion at that 

time. To this sum was added funds from four different sources 

over the next two years: 1) additional employee contributions; 

 2) matching contributions from the employer (employer 

contributions); 3) profit sharing awards; and 4) earnings on the 

account in the form of interest and/or dividends. By calculating 

what percentage of earnings was attributable to the marital 

portion of the account throughout the life of the account from 

1/1/94, it is possible to determine what portion is properly 

classified as marital. We do not have activity sheets from 

12/31/94 on and consequently the calculations can not be employed 

beyond 12/31/94. The following calculations indicate the marital 

and separate shares as of 12/31/94: 

 $21,275.66 (marital share as of 1/1/94 [$17,419.90 + 

$3,855.76 profit sharing award = $21,275.66]) divided by the 

total in the account as of 3/31/94 which was $23,081.38 (the 

total indicated on the activity sheet was in fact $23,288.31, but 

subtracting the earnings during this period of $206.93, we have a 

total of $23,081.38 which reflects post-separation earnings and 

contributions to the account) results in a finding that the 

marital portion of the thrift accounted for 92.3% of the earnings 

on the account. The earnings indicated for 1/1/94 - 3/31/94 are 

$206.93. Applying the percentage, 92.3% of this sum is $191. 
 -12- 

Accordingly, earnings attributable to the marital portion of the 

account were $191 while $15.93 was attributable to the 

post-separation contributions made by appellant and his employer. 

 Turning to activity from 4/1/94 - 6/30/94, the marital 

portion at the beginning of the period was $21,466.66 

($21,275.66 - the original marital portion as of 1/1/94 + the 

marital earnings from 1/1/94 - 3/31/94 of $191) divided by the 

total in the account at the end of the period which was 

$24,836.07 (reflecting the post-separation contributions from 

1/1/94 - 6/30/94), indicates that the marital portion accounted 

for 86% of the earnings while the separate portion accounted for 

14% of the earnings. The reported earnings of $1,428.03 

multiplied by these percentages results in $1,228.11 in marital 

earnings and $199.92 in separate earnings. 

 Turning to activity from 7/1/94 - 12/31/94, the marital 

portion at the beginning of the period was $22,693.77 

($21,465.66, the marital portion as of 4/1/94 + the marital 

earnings from 4/1/94 - 6/30/94 of $1,228.11) divided by the total 

in the account at the end of the period which was $29,672.69 

(reflecting the post-separation contributions from 1/1/94 - 

12/31/94), indicates that the marital portion accounted for 76% 

of the earnings while the separate portion accounted for 24% of 

the earnings. The reported earnings of -$3,983.63 multiplied by 

these percentages result in -$3,027.56 loss to the marital 

portion and -$956.07 loss to the separate portion. 
 -13- 

 Consequently, as of 12/31/94, accounting for post-separation 

contributions by appellant and his employer, and accounting for 

earnings and losses on the respective marital and separate 

portions of the thrift account, the marital portion of the 

account was $19,666.21 on 12/31/94. The actual account balance 

as of that date was $25,689.06, resulting in a determination that 

$6,022.85 of the thrift account is properly classified as 

separate property. 

 Because appellant failed to provide activity sheets for 

1/1/95 - 7/25/95, it is not possible to continue these 

calculations for the remainder of the period. From 1/1/95 to 

7/25/95 there were substantial additional contributions to the 

account as indicated on the summary sheet provided by Crestar. 

On 7/25/96 the thrift account had a balance of $46,222.77, 

indicating additional contributions and earnings of $20,533.71. 

Without the summary sheets it is impossible to say what portion 

of this sum constitutes earnings attributable to the marital 

portion. Appellant failed to prove these amounts by failing to 

submit activity sheets for 1/1/95 - 7/25/95. However, it was 

established at trial, via the testimony of Sue Scott Sampson, 

that $4,818.27 of the additional $20,533.71 in the account was a 

profit sharing award earned by appellant for his work in 1994. 

As this is post-separation earnings, the $4,818.27 is properly 

classified and proven as non-marital property. 

 In addition to the $4,818.27 being proven as separate 
 -14- 

property, it is possible to calculate what portion of the 

$20,533.71 constitutes employee contributions and matching 

employer contributions. Through Sampson's testimony, it was 

established that during 1995 appellant was contributing 6% of his 

base pay and that Crestar matched 50% on the dollar up to the 

first 6% of contributions, such that appellant was contributing 

9% of his base pay. It was also established that appellant's 

present base pay was $78,500 and that contributions were made on 

each pay period and that there were 26 payroll dates. 

Accordingly, estimating2

 that thirteen such pay periods had 

occurred by 7/25/96, it is possible to determine that appellant 

and his employer had added $3,532.50 to the account (($78,500 x 

.09%)/2 = $3,532.50). 

 Totaling the profit sharing award of $4,818.27 with the 

employer/employee contribution of $3,532.50 it is possible to 

determine that $8,350.77 of the $20,533.71 is separate property. 

 Adding this amount to the $6,022.85 that is proven separate 

property by analyzing the activity sheets from 1/1/94 - 12/31/94, 

it appears the trial court should have declared $14,373.62 of the 

$46,222.77 as separate property. The remaining $31,849.15 should 

be treated as marital and divided in accordance with the trial 

court's order, that is 50% to each party. 

II. Award of pension benefits without assignment of specific 

value of each party's pension benefits

 

 2There is no indication of the actual dates of payment. 
 -15- 

 In accordance with Code § 20-107.3, the circuit court 

characterized appellant's and appellee's respective pension 

benefits as marital property and further ordered that each party 

was to retain their respective pension benefit proceeds. Code 

§ 20-107.3 provides that 

 [u]pon decreeing the dissolution of a 

marriage . . ., the court, upon request of 

either party, shall determine the legal title 

as between the parties, and the ownership and 

value of all property, real or personal, 

tangible or intangible, of the parties and 

shall consider which of such property is 

separate property, which is marital property, 

and which is part separate and part marital 

property . . . . 

 In considering valuation of the marital estate, we have held 

that while "Virginia's statute `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 produced qualified witnesses, 

Maxwell G. Cisne and Sue S. Sampson, providing evidence about the 

value of the parties' respective pensions. An extreme range of 

values was offered by each party and each side produced 

valuations of the other's benefits that differed dramatically 

from the party's own estimation of the value of their pension. 

Appellee estimated the present value of her pension benefits at 

$18,475.62. This is in contrast to the sum of $476,691.32 
 -16- 

offered by appellant as the appropriate calculation to be used in 

comparing appellant's and appellee's benefits. Appellee received 

$2,473 monthly from her state pension. With regard to 

appellant's benefits, appellant's expert valued the present value 

of his pension at $14,278.02 or $10,645.55 with monthly payments 

of either $784.13 or $584.64 depending on the selected date of 

termination of appellant's employment with Crestar. Appellee, 

however, offered a figure of $2,700 as the appropriate valuation. 

 Here the circuit court was left with the unenviable task of 

ascertaining the actual value, amongst the extremes offered, of 

the parties' respective pension benefits. Despite the 

difficulties involved, we have held that even as here, where the 

parties have presented such remarkably different valuations, the 

court must assign value where the parties have provided the 

necessary evidence to prove valuation. Bowers, 4 Va. App. at 

618, 359 S.E.2d at 551. Consequently, it was error for the court 

to have failed to indicate to the parties the specific value 

assigned their respective pension benefits. However, the record 

indicates that the court engaged in considerable valuation of the 

parties' respective pensions and actively reviewed the statements 

of both parties' witnesses with regard to the value of the 

pensions. The court's letter of September 20, 1995, evidences 

the court's valuation of the benefits: 

 The disability benefits being received by 

Mrs. Eisenberger are marital property and are 

not to be shared by Mr. Eisenberger, either 

as to payments received or reduced to present 

value. In making this determination the 
 -17- 

following factors of § 20-107.3 are 

considered: Paragraphs (1), (2), (4), (5), 

(6), and (10). Especially the court 

considers that Mrs. Eisenberger is determined 

to be permanently disabled as contrasted with 

Mr. Eisenberger's good health and ability to 

provide well for himself. Also considered is 

that while in her depression, Mr. Eisenberger 

left, thereby imposing on Mrs. Eisenberger 

the burden and expense of living on her own 

and otherwise impacting adversely on the 

marital estate. Whatever family assets are 

available should be utilized to allow her to 

live in relatively the same standard of 

living as before his desertion. This may be 

done without any impact on Mr. Eisenberger's 

standard of living. Also considered is that 

Mr. Eisenberger's pension will not be shared 

by Mrs. Eisenberger. 

 While the court fails to state in its letter, final decree, 

or elsewhere in the record, the exact numerical value assigned to 

the pensions, nevertheless the court's order of distribution 

adequately demonstrates valuation by the court sufficient to meet 

the intent if not the letter of Code § 20-107.3, and 

consequently, we find the error to be harmless. 

 We also find unpersuasive appellant's argument that the 

circuit court abused its discretion when considering Mrs. 

Eisenberger's standard of living. "In reviewing an equitable 

distribution award, we rely heavily on the trial judge's 

discretion in weighing the particular circumstances of each 

case." Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 837 

(1988). Further, "[f]ashioning 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 
 -18- 

evidence to support it." Srinivasan v. Srinivasan, 10 Va. App. 

728, 732, 396 S.E.2d 675, 678 (1990). Here, appellant 

misinterprets the court's statement in its opinion letter of 

September 20, 1995. The court stated specifically that it 

considered the parties' respective physical conditions and 

appellant's departure during appellee's illness in arriving at 

its decision. Code § 20-107.3(E)(4) and (5) specifically 

authorize the court to consider these factors in making an 

equitable distribution. Further, Code § 20-107.3(E)(5) 

specifically instructs the court to consider "[t]he circumstances 

and factors which contributed to the dissolution of the marriage, 

specifically including any ground for divorce . . . ." The 

court's comments regarding the parties continuing to enjoy the 

same standards of living do not indicate a separate ground of 

consideration. Rather, the comments are merely proffered to 

explain the court's rationale that in light of the appellant's 

contribution to the deterioration of the marital estate by 

leaving appellee during her illness and the appellee's permanent 

disability, equity is served by allowing her to maintain her 

pension. Accordingly, we find no abuse of discretion. 

III. Refusal to permit a reservation of spousal support

 Code § 20-107.1 guides the circuit court in making decrees 

as to maintenance and support of spouses. Specifically, it 

provides that "[t]he court, in determining whether to award 

support and maintenance for a spouse, shall consider the 
 -19- 

circumstances and factors which contributed to the dissolution of 

the marriage, specifically including adultery and any other 

ground for divorce under the provisions of subdivisions (3) or 

(6) of § 20-91 or § 20-95." Here the court found sufficient 

evidence of appellant's desertion to deny him such support and 

consequently refused to reserve the right to spousal support. 

Appellant accurately asserts that desertion is no longer a per se

bar to spousal support, see Reid v. Reid, 7 Va. App. 553, 561, 

375 S.E.2d 533, 538 (1989), nevertheless, Code § 20-107.1 

requires the court to consider evidence pertaining to the 

circumstances of the dissolution of the marriage. See Thomasson 

v. Thomasson, 225 Va. 394, 398, 302 S.E.2d 63, 66 (1983). 

Accordingly, in weighing the equities of the parties, where the 

court finds proof of desertion, it may properly find such proof 

warrants a refusal to grant or reserve support. Such is the case 

here. Although divorce was not sought or granted on fault 

grounds, the record reflects that the court heard ample testimony 

ore tenus concerning the circumstances of divorce and therefrom 

determined appellant had deserted appellee during appellee's 

illness. The court was well within its statutory authority to 

deny reservation of support on these grounds. 

IV. Court's use of the present offset method to distribute 

marital assets including appellant's deferred management 

incentive plan awards

 In issuing its final decree the court employed the present 

offset method to distribute those assets that the court 
 -20- 

determined were to be divided equally between the parties. After 

determining which assets each party would retain, the court 

calculated that $29,722.19 should be paid by appellant to 

effectuate the fifty-fifty division of the assets. Included 

among the assets assigned and accounted for via the present 

offset method was the marital portion of the appellant's deferred 

management incentive plan awards. 

 During the evidentiary hearing both appellant and appellee 

participated in discussion with the court as to the appropriate 

method of allocating the assets once the court had made findings 

as to the appropriate distribution of the assets. Immediately 

following the court's decision to declare the $10,000 award for 

calendar year 1994 separate property, the court addressed the 

issue of what method of allocation would be employed. At that 

time appellant outlined two alternatives for the court: 

 [T]he court could look at the present value 

of those income streams [income streams from 

the deferred awards] and then in the greater 

scheme of things allocate the assets, perhaps 

other assets, to balance the scale and not 

touch these specific assets. 

 Or the Court could if it decided to 

enter a QDRO if, as and when, [sic] 

particular percentage should go to 

[appellee]. Frankly, I believe that the 

simpler matter would be to look at these 

things from the broader perspective before 

making a determination with respect to any 

particular retirement asset how to treat it 

for purposes of QDRO. 

Appellant reiterated his preference for the present offset method 

following some additional discussion, and appellee then stated 
 -21- 

her preference for the present offset method: "[w]e would 

certainly like to use a present offset method because my client 

would like to have the house and as much cash as possible at this 

point in time." The court then asked appellee if she wanted to 

use the present offset method in handling the marital portion of 

the deferred compensation awards--"You want it done that way as 

opposed to her getting money when he gets it?" Appellee 

responded in the affirmative and the court then asked the 

appellant if he objected to this. The appellant did not state an 

objection or a grounds for objection but instead stated that: 

 Your Honor, I think it is premature to 

determine whether -- my suggestion to the 

Court is we look at all the retirement 

benefits and see how it can be handled 

equitably, and if it cannot be handled 

equitably with present offset, then we deal 

through and [sic] if, as and when through a 

QDRO.

(Emphasis added.) Appellant said nothing else with regard to the 

values that should be accorded the management incentive plan 

awards. 

 In its final decree the court used $5,000 and $8,000 as the 

present values of the awards. Appellant's expert testified to a 

present value of $4,580.36 for the $5,000 and a $6,913.14 for the 

$8,000 award. Appellant now objects to the court's use of the 

present offset method to allocate the marital portion of the 

deferred compensation awards on the grounds that the court did 

not use the unrebutted present value calculations offered by 

appellant's expert. Rule 5A:18 of the Supreme Court of Virginia 
 -22- 

provides: 

 No ruling of the trial court or the Virginia 

Workers' Compensation Commission will be 

considered as a basis for reversal unless the 

objection was stated together with the 

grounds therefor at the time of the ruling, 

except for good cause shown or to enable the 

Court of Appeals to attain the ends of 

justice. 

Appellant's comments at the time the court specifically inquired 

about the use of the present offset method are fairly read as 

indicating appellant's agreement with the use of the method. 

However, even if they do not constitute agreement, they certainly 

do not amount to a cognizable objection of any kind. Likewise, 

appellant's objections to the final decree, which clearly 

evidenced the court's valuation of the management incentive plan 

awards at $5,000 and $8,000 respectively, do not constitute 

proper objection. The circuit court's order was entered on 

October 6, 1995, the written objections to the order, filed some 

nineteen days later on October 25, 1995, are not timely under 

Rule 5A:18. The law contemplates that objections be made during 

trial or before entry of the final decree. See Code § 8.01-384.3

 

 3Code § 8.01-384 provides in pertinent part: 

 Arguments made at trial via written pleading, 

memorandum, recital of objections in a final 

order, oral argument reduced to transcript, 

or agreed written statements of facts shall, 

unless expressly withdrawn or waived, be 

deemed preserved therein for assertion on 

appeal. 

(Emphasis added.) 
 -23- 

 While appellant's objections were filed within the period within 

which the circuit court retained discretion to amend or suspend 

its order, the objections were not necessarily timely made for 

purposes of preserving the issues for appeal to this Court. It 

was within the discretion of the trial court to vacate the 

judgment and reconsider the issue. Under the circumstances, we 

do not find the trial court to have abused its discretion in 

failing to vacate the judgment. Accordingly, we find the 

appellant has waived his right to argue this issue on appeal, and 

we therefore decline to consider it here. 

V. Characterization of the appellant's management

incentive plan award for 1993 as marital property

 Code § 20-107.3(A)(2) addresses the treatment of deferred 

compensation plans: 

 All property including that portion of 

pensions, profit-sharing or deferred 

compensation or retirement plans of whatever 

nature, acquired by either spouse during the 

marriage, and before the last separation of 

the parties, if at such time or thereafter at 

least one of the parties intends that the 

separation be permanent, is presumed to be 

marital property in the absence of 

satisfactory evidence that it is separate 

property. 

Here, appellant argues that the management incentive plan award 

made to him in February 1994, which appellant opted to defer, was 

improperly categorized as marital property, because it was 

awarded after his separation from appellee. The pertinent 

question before us is whether appellant "acquired" the award made 

in 1994, at that time, or previously. Crestar's Management 
 -24- 

Incentive Compensation Plan states that "[a]n employee is 

eligible for consideration for an incentive award for a Year if 

he meets the eligibility standards established by his employer 

for such Year." App. at 784. Assuming the employee meets the 

criterion in the given year, the employee's supervisor may 

recommend the employee for an award for a given year by 

submitting the employee's "performance ratings and 

recommendations . . . to the committee or its designee on or 

before February 15 of the following Year . . . ." App. at 786. 

Despite appellant's arguments to the contrary, the plan 

provisions make clear that the award to appellant in February of 

1994 was made in view of his performance during 1993. That the 

specific amount of the award was not known, and that the plan 

committee reserved the right to ultimately make or not make an 

award, does not negate the fact that any award eventually made 

was made for the work of the appellant in calendar year 1993, 

during the period of the appellant's marriage. Consequently, the 

court did not err in classifying the award made in February 1994 

as marital property. 

VI. Court's refusal to amend or to suspend its final decree in

order to hear additional evidence in light of appellant's

termination from employment

 The granting or denial of a motion to reconsider is within 

the sound discretion of the trial court. See Morris v. Morris, 

3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986). The court's 

decision to deny an award or reservation of support will be 
 -25- 

upheld where the court has considered the appropriate statutory 

factors, as delineated by Code § 20-107.1. Where these factors 

are considered, the court's decision will only be reversed where 

there is a clear abuse of discretion. Thomasson, 225 Va. at 398, 

302 S.E.2d at 66. 

 Here, the court based its denial of support on its finding 

that appellant deserted appellee during her illness. As noted 

supra at II., proof of desertion was properly considered by the 

circuit court and when weighed with the other statutory factors, 

resulted in a permissible decision by the court to deny support. 

 The record indicates that the court also gave proper 

consideration to the other statutory factors, specifically 

including appellant's earning capacity, age, and health. While 

appellant's position with Crestar was clearly considered by the 

court, it was not the only, or even most important factor 

considered by the court in reaching its decision. Appellant's 

current employment was one of many circumstances weighed by the 

court. Accordingly, the court's refusal to hear additional 

evidence concerning the change in this single circumstance was 

well within the court's broad discretion in weighing all the 

equities of the parties in determining support. 

VII. Classification of the wife's disability benefits as marital

 In its letter opinion of September 20, 1995, the court 

determined that "[t]he disability benefits being received by 

[appellee] are marital property and are not to be shared by 
 -26- 

[appellant] . . . ." This ruling was incorporated into the 

court's final decree which was endorsed "Seen and Objected to" by 

appellee. 

 In her brief, appellee indicates her objection to the 

court's classification of her benefits as marital property. 

While an objection need not be made in a specific form, Rule 

5A:18 requires that the action taken must embody the objection 

and reason therefor. The "Seen and Objected to" endorsement of 

the final decree does not constitute a reasoned objection. Rule 

5A:18 provides that "[a] mere statement that the judgment or 

award is contrary to the law and the evidence is not sufficient"; 

it follows that a statement that an order is "Seen and Objected 

to" is also insufficient. Accordingly, we find that appellee has 

waived her right to argue this issue on appeal and we therefore 

decline to consider it here. 

 The case is remanded to the trial court to enter a new order 

compatible with this opinion to reflect our holding in Part II 

that $31,849.15 of appellant's thrift account be treated as 

marital property and $14,373.62 be treated as separate property. 

 Affirmed in part,

reversed in part, 

and remanded.