COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

RUSSELL E. SWANSON 

 MEMORANDUM OPINION*

v. Record No. 0070-96-1 PER CURIAM 

 AUGUST 13, 1996 

MADELINE C. SWANSON 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

 (Stephen F. Forbes; Forbes & Broadwell, on 

briefs), for appellant. 

 (Kathy Gear Owens, on brief), for appellee. 

 Russell E. Swanson (husband) appeals the decision of the 

circuit court awarding a portion of his retirement benefits to 

Madeline C. Swanson (wife). Husband raises the following 

arguments on appeal: (1) whether the circuit court erred in 

determining the marital share of his retirement income; and (2) 

whether the circuit court erred in requiring husband to continue 

to pay the monthly premium for wife's survivor benefit. Upon 

reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. Rule 5A:27. 

 The evidence was heard by a commissioner in chancery, whose 

report was accepted by the trial court with only slight 

modification. "On appeal, a decree approving a commissioner's 

 

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

designated for publication. 
 2 

report must be affirmed unless plainly wrong." Scinaldi v. 

Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986). 

"Fashioning 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 evidence to support 

it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 

675, 678 (1990). "Unless it appears from the record that the 

trial judge has not considered or has misapplied one of the 

statutory mandates, this Court will not reverse on appeal." 

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 

(1989). 

Marital Share

 Under Code § 20-107.3(G), the trial court is authorized to 

"direct payment of a percentage of the marital share of any 

pension . . . or retirement benefits," provided that 

 [n]o such payment shall exceed fifty percent 

of the marital share of the cash benefits 

actually received by the party against whom 

such award is made. "Marital share" means 

that portion of the total interest, the right 

to which was earned during the marriage and 

before the last separation of the parties 

 . . . . 

Id. 

 In this case, the marital share of husband's retirement 

benefits could not be determined based solely upon his years of 

his employment or the duration of the marriage. Husband's 

monthly payment was based upon his years of military service 

prior to the marriage, his years of civilian service largely 
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during the marriage, and a cash pay-in of over $10,000 in marital 

assets. The commissioner found that $833 of the monthly payment 

of $1,796 was husband's separate property, based upon the amount 

actually received by husband as his military retirement prior to 

the marriage. 

 The commissioner found the testimony of both parties' 

experts to be inadequate. Wife's expert gave a present value 

calculation that failed to exclude husband's pre-marital military 

employment. Husband's expert identified $524 per month as the 

marital share, but failed to include any amount attributable to 

the $10,000 pay-in of marital assets. Moreover, "the finder of 

fact is not required to accept as conclusive the opinion of an 

expert." Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d 

368, 370 (1986). 

 The commissioner found the marital share of the monthly 

payment to be approximately $744, the average between $524 and 

$963. The trial court modified that recommendation to award wife 

21% of husband's monthly payment. We cannot say that the court's 

award exceeded the amount authorized by statute or that it was 

plainly wrong or without evidence to support it. Therefore we 

will not set aside the award. 

Survivor's Benefit

 Husband contends that the trial court erred in accepting the 

commissioner's recommendation that husband continue to pay the 

monthly survivor's benefit premium. The determination of which 
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party is to bear the cost of any survivor benefit is left to the 

discretion of the trial court. Code § 20-107.3(G)(2). We cannot 

say the trial court abused its discretion in continuing the 

payment. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.