COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Bray and Senior Judge Duff 

Argued at Alexandria, Virginia 

DEBRA ANN BRUGGER 

v. Record No. 2446-95-4 MEMORANDUM OPINION* BY 

 CHIEF JUDGE NORMAN K. MOON 

ROGER L. BRUGGER JUNE 4, 1996 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 Paula Winchester Rank (Lawrence H. Bowen; 

Byrd, Mische, Bevis, Bowen, Joseph & 

O'Connor, P.C., on briefs), for appellant. 

 Benton S. Duffett, III (Grenadier, Davis & 

Simpson, P.C., on brief), for appellee. 

 Roger L. Brugger and Debra Ann Brugger appeal from the final 

decree of divorce entered on October 18, 1995. Mr. Brugger 

appeals from the trial court's decision permitting Mrs. Brugger 

to amend her complaint in order to request equitable 

distribution. Mrs. Brugger appeals from the court's distribution 

of marital assets, and from the court's failure to award 

attorney's fees. We affirm the trial court's decision permitting 

Mrs. Brugger to amend her complaint, reverse the trial court's 

distribution of marital assets, and affirm the trial court's 

denial of attorney's fees. 

 Roger and Debra Ann Brugger married on October 11, 1969 and 

separated on August 9, 1992. At the time of trial, Mrs. Brugger 

 

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

designated for publication. 
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was 45 years of age and Mr. Brugger was 47. The parties had one 

child, born in 1972. 

 Mr. Brugger was on active duty in the United States Air 

Force throughout the marriage. From the time of the marriage 

through 1981, Mrs. Brugger took care of the household and raised 

the parties' child, performing occasional part-time work outside 

the home. The parties moved nine times during the marriage, and 

Mrs. Brugger was responsible for making the arrangements, 

including one move overseas. Mr. Brugger's career involved 

extended duty away from the family on several occasions, leaving 

Mrs. Brugger entirely responsible for the household. 

 Mrs. Brugger had left school in order to marry. In 

approximately 1980 she began to attend night school for nursing 

and obtained her R.N. degree in 1981. Immediately upon 

graduating she moved to Germany with her husband, and volunteered 

with the Red Cross until a nursing position became available. 

From that time forward, at each duty station, she secured fulltime employment as a nurse, and often held down a part-time job 

as well. 

 In the early years of the marriage, Mrs. Brugger 

participated in activities expected of military wives, such as 

membership in the NCO wives' club. In the 1980's, she became 

less involved in these activities. Mrs. Brugger testified that 

her husband had thanked her publicly for helping advance his 

career, and proffered the testimony of a family friend to the 

effect that Mrs. Brugger was an asset to Mr. Brugger's career. 
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Mr. Brugger testified that Mrs. Brugger had a "little" positive 

effect on his career, and acknowledged that he may have thanked 

her publicly. 

 The parties separated briefly in July 1983, while they were 

living in Germany. Mrs. Brugger had a separation agreement 

prepared and returned with the parties' child to the United 

States. The parties reconciled in August when Mr. Brugger 

returned to the United States. Mrs. Brugger acknowledged that 

she was unhappy in the marriage due to her husband's travel, 

including for frequent fishing trips, and alleged infidelity. 

Mrs. Brugger left the marital residence in August 1992. 

 Mr. Brugger will take mandatory retirement from the Air 

Force on April 1, 1998. His work in the Air Force has been in 

the field of offset printing, for the past several years in a 

supervisory capacity. Offset printing is rapidly being replaced 

by other technologies, of which Mr. Brugger has minimal 

knowledge. He testified that the jobs available in the offset 

printing field would pay $18,000 to $24,000 per year. He earns 

approximately $42,000 in the Air Force, and his housing in Air 

Force quarters is free. 

 At the time of trial, Mrs. Brugger was earning $37,500 per 

year. She earned $53,000 in 1994, but at the time of trial the 

hours of the part-time job that produced the extra income had 

been greatly reduced, and she was seeking additional part-time 

employment. 
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WIFE'S AMENDMENT OF CROSS-BILL 

TO ADD EQUITABLE DISTRIBUTION CLAIM 

 On March 25, 1994, Mr. Brugger filed a bill of complaint for 

divorce, requesting spousal support, equitable distribution, and 

attorney's fees. In her cross-bill, Mrs. Brugger did not request 

equitable distribution, stating instead that there were "support 

and property issues that need to be resolved, however, the 

parties expect to enter into a Property Settlement Agreement 

resolving all issues arising between the parties . . . ." The 

prayer for relief requested that any PSA be incorporated, but not 

merged, into the final decree. 

 Mr. Brugger presented evidence on grounds for divorce to a 

commissioner in chancery, who recommended that he be granted a 

divorce on the grounds of having lived separate and apart for 

more than one year. The parties were unable to reach agreement 

on the property issues, and final hearing was set for February 2, 

1995. The parties expected to present evidence pertaining to 

equitable distribution at that hearing. On the day before trial, 

Mr. Brugger filed a praecipe withdrawing the request for 

equitable distribution from his complaint and striking it from 

the notice of hearing. 

 At the hearing on February 2, 1995, Mr. Brugger requested 

that the final decree be entered without consideration of 

equitable distribution. Mrs. Brugger objected, and moved to 

amend her cross-bill to request equitable distribution. The 

court entered the final decree, and Mrs. Brugger filed a motion 
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for reconsideration. The court then vacated the final decree and 

granted leave to Mrs. Brugger to file an amended cross-bill 

requesting equitable distribution. The court also granted leave 

to Mr. Brugger to reinstate his own request for equitable 

distribution. 

 Code § 20-107.3 provides that the court shall, "upon the 

request of either party," undertake the process of equitable 

distribution. Such requests are generally made in the prayer for 

relief of either the bill, cross-bill, or answer. Gologanoff v. 

Gologanoff, 6 Va. App. 340, 347, 369 S.E.2d 446, 449-50 (1988). 

Here, the trial court correctly determined that Mrs. Brugger's 

reference in the cross-bill to "property issues that need to be 

resolved" did not constitute a request for equitable distribution 

under Gologanoff. Having so ruled, the trial court had ample 

discretion to vacate the decree and permit amendment of the 

cross-bill. 

 Mrs. Brugger's request for reconsideration was filed within 

twenty-one days after entry of the decree, and the court 

therefore had jurisdiction to vacate the decree. Rule 1:1. The 

right to file an amended pleading rests in the sound discretion 

of the trial judge, and shall be liberally granted in furtherance 

of the ends of justice. Rule 1:8; Alphin v. Alphin, 15 Va. App. 

395, 400, 424 S.E.2d 572, 575 (1992); Rosenberg v. Rosenberg, 210 

Va. 44, 48-49, 168 S.E.2d 251, 254 (1969). Here, where the 

parties had prepared for trial on equitable distribution and Mr. 

Brugger withdrew his request for that relief at the eleventh 
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hour, the trial court did not abuse its discretion to permit an 

amended cross-bill. 

 EQUITABLE DISTRIBUTION 

 The primary assets for the trial court to consider were Mr. 

Brugger's military pension and survivor's benefits and a $22,000 

mutual fund accumulated through deductions from Mr. Brugger's 

paycheck. Also, the parties borrowed $5,000 from a small trust 

fund belonging to Mrs. Brugger. The trial court awarded Mrs. 

Brugger fifteen percent of the marital share of military 

retirement benefits and fifteen percent of the mutual fund. The 

court also made a $5,000 lump sum distribution to Mrs. Brugger, 

apparently to account for the debt Mr. Brugger owed to her trust 

fund. 

 In making equitable distribution, the trial court must 

consider all of the factors set forth in Code § 20-107.3(E). 

Failure to do so is reversible error. Alphin v. Alphin, 15 Va. 

App. 395, 405, 424 S.E.2d 572, 577 (1992). This Court must be 

able to determine from the record that the trial court has given 

substantive consideration to the evidence as it relates to Code 

§ 20-107.3. See Donnell v. Donnell, 20 Va. App. 37, 42, 455 

S.E.2d 256, 258 (1995); Trivett v. Trivett, 7 Va. App. 148, 153, 

371 S.E.2d 560, 563 (1988). If its findings are not supported by 

the evidence in the record, the court has abused its discretion, 

and the findings must be reversed. Trivett, 7 Va. App. at 154, 

371 S.E.2d at 563. 

 The court's consideration of the statutory factors "entails 
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more than a mere recitation in the record or decree that all the 

statutory factors have been considered or reviewed." Alphin, 15 

Va. App. at 405, 424 S.E.2d at 578. The trial court's failure to 

articulate any reason for its decision hinders appellate review 

and suggests that the award was not based on the required 

factors. Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 

815 (1987). Where the trial court failed to make specific 

findings or explain its decision, we must examine the record to 

determine whether there is credible evidence to support the 

award. Trivett, 7 Va. App. at 154, 371 S.E.2d at 563. 

 Here, in a brief ruling from the bench, the trial judge 

recited the statutory factors and stated that to the extent 

evidence was presented on each factor, he considered it. He then 

made the rulings set forth above. The court made no factual 

findings and offered no explanation for his decision. 

Accordingly, we examine the record to determine whether the trial 

court abused its discretion in distributing the marital assets. 

 We hold that the record shows it was an abuse of discretion 

to award less than twenty-five percent of the marital portion of 

the pension to Mrs. Brugger. At trial, Mr. Brugger testified as 

follows: 

 Q. And in terms of the Court's division of 

that asset, in terms of the percentage 

of the marital portion of your 

retirement, what percentage are you 

asking the Court to award to your wife, 

as being fair based upon what you 
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 believe her contribution was to the 

marriage? 

 A. Twenty-five percent. 

In light of this testimony and the other evidence in the record, 

the trial court had no basis to award only fifteen percent of the 

pension to Mrs. Brugger. 

 Mrs. Brugger argues that the trial court erred in 

failing to determine the marital share of the pension before 

making the distribution. We agree. The marital share is 

determined according to a formula set forth in Code 

§ 20-107.3(G)(1). The trial court should determine the marital 

share of the pension before it makes a marital award, either from 

the pension or from the remainder of the marital estate. See

Banagan v. Banagan, 17 Va. App. 321, 326, 437 S.E.2d 229, 232 

(1993). We remand the case to the trial court in order for the 

trial court to make this determination. 

 ATTORNEY'S FEES 

 The award of attorney's fees in a divorce case is a matter 

committed to the sound discretion of the trial court. Alphin, 15 

Va. App. 406, 424 S.E.2d at 578. The trial court did not abuse 

its discretion in failing to award attorney's fees to Mrs. 

Brugger. 

 Affirmed in part, reversed in 

part, and remanded.