COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

RALPH L. BENNETT 

 MEMORANDUM OPINION* BY 

v. Record No. 1621-96-4 JUDGE CHARLES H. DUFF 

 SEPTEMBER 23, 1997 

JOYCE R. BENNETT 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 Richard E. Crouch (John Crouch; Crouch & 

Crouch, on briefs), for appellant. 

 Timothy T. Szabo (Szabo, Zelnick & Erickson, 

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

 Ralph L. Bennett (husband) appeals the equitable 

distribution decision of the circuit court awarding Joyce R. 

Bennett (wife) a portion of his disability retirement benefits 

and deciding other issues. Husband argues that the trial court 

(1) erred in classifying the disability payments as marital 

property; (2) erred in not classifying the disability payments as 

partially separate property; (3) erred in crediting husband with 

$23,000 in previously spent funds; (4) erred in denying husband 

spousal support or a reservation of support; (5) abused its 

discretion in awarding wife $3,000 in attorney's fees; and (6) 

erred in classifying $27,000 in credit card debts as marital. 

Joyce R. Bennett (wife) argues that the trial court erred in 

setting the suspension bond in an amount insufficient to secure 

 

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

designated for publication. 
 2 

recovery by her if she prevails. We affirm the decision of the 

trial court. 

 "In reviewing an equitable distribution award on appeal, we 

recognize that the trial court's job is a difficult one. 

Accordingly, we rely heavily on the discretion of the trial judge 

in weighing the many considerations and circumstances that are 

presented in each case." Artis v. Artis, 4 Va. App. 132, 137, 

354 S.E.2d 812, 815 (1987). 

 "Unless it appears from the record that the 

[trial judge] 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 findings of 

fact underlying his resolution of the 

conflict in the equities, the . . . equitable 

distribution award will not be reversed on 

appeal." 

Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368 

(1987) (citation omitted). Applying these principles, we examine 

the trial court's rulings which the parties contest. 

Disability Retirement

 Husband contends that the trial court erred in finding his 

disability retirement was wholly marital property. Husband 

contends the retirement is a "stream of income" which is entirely 

post-separation. Alternatively, husband argues that the 

disability retirement is part marital and part separate property. 

 While this issue has not been directly addressed by this 

Court previously, we do not come to this question without the 

guidance of earlier decisions and statutory requirements. Under 
 3 

Code § 20-107.3, the rebuttable presumption is that benefits 

earned during the marriage are marital property. Pensions and 

retirement benefits of whatever kind are expressly included as 

marital property.1

 Previous decisions have focused on the 

importance of retirement benefits as "compris[ing] a 'portion of 

the pool of marital assets,' . . . clearly contemplated by the 

'scheme' of Code § 20-107.3, which is intended to justly 

distribute the 'marital wealth of the parties.'" Banagan v. 

Banagan, 17 Va. App. 321, 325, 437 S.E.2d 229, 231 (1993) 

(citations omitted). 

 Here, husband's evidence demonstrated that the disability 

benefit husband received is a form of retirement benefit to which 

he was entitled through his employment; the amount of his 

disability benefit was calculated using his highest salary and 

years of service. It was, as wife points out, a defined benefit 

plan. 

 The letter informing husband of his disability retirement 

benefit noted that he was entitled to a disability credit of ten 

years and seven months. This credit reflected the non-marital 

portion of the asset. In its final order the trial court 

recognized that the husband's gross disability retirement was 

marital property and awarded the wife 50% thereof. However, 

 

 1Husband cites cases from other jurisdictions treating 

disability payments as separate property. In the absence of 

evidence that the statutory schemes in those jurisdictions are 

comparable to that of Virginia, we find those cases interesting 

but inapposite. 
 4 

because the husband was entitled to the disability credit, the 

actual percentage to be paid to the wife was 37.5% rather than 

50%. Therefore, we find no error in the trial court's decision 

finding husband's disability retirement benefit a marital asset 

subject to equitable distribution or in its calculation of the 

percentage to be paid. 

Credited Funds

 Following an evidentiary hearing, the trial court found 

husband guilty of contempt for expending marital funds contrary 

to the court's prohibition. The evidence indicated that at least 

$23,000 of funds earned during the marriage was spent by husband 

for varied purposes, including repayment of an alleged 1978 loan 

by husband's mother towards the purchase of the marital 

residence, payment of husband's attorney's fees, a gift to the 

parties' daughter, and other purposes. Credible evidence 

indicated that those funds were marital assets which husband had 

improperly expended. See Clements v. Clements, 10 Va. App. 580, 

585-86, 397 S.E.2d 257, 261 (1990). We find no error in the 

commissioner's recommendation that the equitable distribution 

award reflect husband's unilateral expenditure of those marital 

assets. 

Reservation of Support

 Husband contends that he filed a "Notice and Motion for 

Pendente Lite Relief" in August 1994 in which he sought pendente 

lite spousal support. Wife conceded in her Final Reply 
 5 

Memorandum to the commissioner that husband filed a motion 

seeking pendente lite support. Husband first specifically 

requested a reservation of permanent spousal support in his 

Memorandum of Argument with Supporting Authority and Exhibits 

submitted after the commissioner had issued an "interlocutory 

ruling that Boyd v. Boyd [, 2 Va. App. 16, 340 S.E.2d 578 

(1986),] . . . denies Husband's request for spousal support 

because of his failure to raise the issue in the initial 

pleading." On appeal, husband also contends that the request for 

general relief in his Bill of Complaint for Divorce was 

sufficient to preserve his right to permanent spousal support. 

 The action commenced by husband, Chancery 94-375, was 

consolidated with wife's action under Chancery 94-363. We have 

no copies of husband's initial pleadings in the record before us. 

 However, as the parties agree that husband later sought pendente 

lite support by motion, we accept that representation for 

purposes of this appeal. 

 As noted in Boyd, 2 Va. App. at 19, 340 S.E.2d at 580, 

"[t]he office of pleadings is to give notice to the opposing 

party of the nature and character of the claim, without which the 

most rudimentary due process safeguards would be denied." 

Husband's request for general relief in his bill of complaint 

failed to alert wife that husband was seeking permanent spousal 

support. See id. at 19, 340 S.E.2d at 579 (wife's general prayer 

"'for such other and further relief as to equity may seem meet 
 6 

and the nature of her case may require'" was insufficient notice 

of request for spousal support). Similarly, husband's request 

for a reservation of permanent support, first made after the 

completion of the commissioner's hearing, failed to provide wife 

with timely and sufficient notice of his claim for a reservation 

of support. We find no indication that husband ever sought leave 

to amend his pleadings. 

 We also find that husband's request for pendente lite

support was not sufficient to preserve his right to a reservation 

of permanent support. Permanent support is separate and distinct 

from pendente lite support. See Weizenbaum v. Weizenbaum, 12 Va. 

App. 899, 903-04, 407 S.E.2d 37, 39-40 (1991). Factors which the 

court must consider prior to an award of permanent support are 

not required to be considered before an award of pendente lite

support. Cf. Code §§ 20-107.1 and 20-103. A pendente lite order 

"shall have no presumptive effect and shall not be determinative 

when adjudicating the underlying cause." Code § 20-103(E). 

 Therefore, we find that husband's request for pendente lite

support was not sufficient to raise before the court a 

reservation of his right to permanent spousal support. The trial 

court did not abuse its discretion by accepting the 

commissioner's recommendation not to reserve spousal support for 

husband. 

Attorney's Fees

 An award of attorney's fees is a matter submitted to the 
 7 

sound discretion of the trial court and is reviewable on appeal 

only for an abuse of discretion. See Graves v. Graves, 4 Va. 

App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper 

award of counsel fees is reasonableness under all the 

circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277, 

338 S.E.2d 159, 162 (1985). 

 While husband alleges that wife extended the course of 

litigation, the record does not so indicate. Moreover, while 

husband indicates that he is not as well situated financially as 

wife, the evidence indicated that he had annual income of 

approximately $34,000. Based on the number of issues involved 

and the respective abilities of the parties to pay, we cannot say 

that the award was unreasonable or that the trial judge abused 

his discretion in accepting the commissioner's recommended award. 

Credit Card Debts

 Credible evidence indicated that approximately $27,000 in 

debts were incurred during the marriage. Approximately $8,000 of 

these debts were costs for the wedding of the parties' daughter. 

 An additional amount was for the parties' truck. Pursuant to a 

credit workout, wife was obligated to pay $650 a month on these 

debts. 

 We find no error in the classification of the debts as 

marital. Clearly they were incurred during the marriage, and 

husband has not presented any evidence supporting his allegation 

that they were solely for wife's benefit. Moreover, the 
 8 

commissioner assigned all the outstanding debts to wife, 

diminishing the value of her equitable distribution award. We 

find no abuse of discretion. 
 9 

Suspension Bond

 Wife contends that the trial court erred by setting a 

suspension bond that was insufficient to ensure wife's recovery. 

 Neither wife nor husband conveyed the jointly-held property 

awarded pursuant to the final decree. Wife's monthly debt 

obligation existed prior to the entry of the decree and is 

unaffected by the amount of the bond. Wife received no current 

spousal support. Thus, wife's current financial obligations are 

substantially unchanged by the suspension of the court's decree 

pending resolution on appeal. We find unpersuasive wife's 

assertion that her inability to benefit from the equity in the 

marital residence requires that the suspension bond be set in an 

amount equal to that equity. 

 For the reasons stated, we affirm the decision of the trial 

court. 

 Affirmed.
 10 

Benton, J., dissenting. 

Disability Retirement

 I agree with the majority's holding that the trial judge did 

not err in finding that the disability retirement benefit was 

marital property subject to equitable distribution. See

generally Lookingbill v. Lookingbill, 483 A.2d 1, 2-4 (Md. 1984) 

(discussing disability retirement benefits as marital property). 

 However, because the trial judge's order contains a patent 

inconsistency, I would reverse and remand this issue to the trial 

judge for reconsideration. 

 Although the parties were married during the complete term 

of the husband's employment, the commissioner's report found that 

only "a portion of the [disability retirement pay was] . . . 

marital."2 Apparently, the commissioner chose to allocate as 

non-marital the portion of the disability pay that was defined 

under the Virginia Retirement System as a "disability credit." 

The Virginia Retirement System had determined that the husband's 

benefits would be based on his actual years of service plus a 

"disability credit" that equalled the difference between the 

husband's age at the time of his retirement and the age of 60. 

To allocate the credit as non-marital property, the commissioner 

calculated the marital portion to be a fraction of the total 

benefit, the numerator of which was the number of years of actual 

 

 2The record proved that the parties were married when the 

husband began his employment, and when the husband left his 

employment on disability retirement. 
 11 

 

service and the denominator of which was the number of years of 

actual service plus the service credit. The commissioner found 

that the wife was entitled to 50% of that portion of the 

disability payments.3

 The trial judge's order states, in pertinent part, the 

following: 

 [Husband's] disability retirement pay 

. . . is found to be marital property subject 

to equitable distribution . . . pursuant to 

§20-107.3(G) of the Code of Virginia . . . . 

After analysis and consideration of all 

factors contained in §20-107.3, the [wife] is 

hereby awarded a 50% marital share of the 

[husband's] gross disability retirement pay 

. . . . [Husband] is presently receiving 

disability retirement pay and is ordered to 

pay [wife] 37.5% gross thereof each month 

beginning February 1, 1996 and each month 

thereafter until the death of either party. 

The aforesaid percentage is 50% of the 

fraction found by the Commissioner on page 21 

of his report. 

 Thus, after finding the disability retirement pay to be 

marital property and stating that he was granting the wife a 50% 

share of that asset, the trial judge ordered the husband to pay 

the wife only 37.5% of the disability payments he received. The 

trial judge reached that result by using "the fraction found by 

the commissioner," which was a ratio based upon the 

commissioner's finding that a portion of the disability 

 3It is worth noting that the commissioner committed an error 

by using 24 in the numerator as the number of years of actual 

service. The record reveals that the husband's length of service 

was approximately 22 years. It appears that the commissioner 

confused the date the husband's employment terminated, 1992, with 

the date of the parties' separation, which was 1994. 
 12 

retirement pay was non-marital. This presents a patent 

inconsistency on the face of the trial judge's order. Thus, I 

would remand this issue for reconsideration. Furthermore, the 

record does not clearly establish whether the trial judge 

intended to award the wife 50% or 37.5% of the retirement 

benefit. 

Credited Funds

 The evidence proved that the husband expended $23,000 of 

marital funds to pay marital debts. The record contains a 

specific accounting of the debts and the payments made by the 

husband. Indeed, the wife did not dispute the debts. 

 Although the husband paid those debts in violation of the 

trial judge's order, such a violation does not per se constitute 

waste. However, the record reveals that the trial judge did not 

believe the husband's explanation that he used $14,000 of the 

money to repay a debt the parties owed to his mother. Thus, the 

trial judge did not err in crediting the husband with $14,000. 

 Of the remaining $9,000, $5,000 represented legal fees and 

$4,000 represented a variety of living expenses set forth in a 

detailed exhibit offered by the husband. No evidence showed that 

the husband's use of the remaining $9,000 constituted waste. 

Moreover, the trial judge made no such finding. See Amburn v. 

Amburn, 13 Va. App. 661, 666, 414 S.E.2d 847, 850 (1992) (stating 

that use of marital funds to pay attorney's fees is not waste); 

Clements v. Clements, 10 Va. App. 580, 587, 397 S.E.2d 257, 261 
 13 

(1990) (stating that use of marital funds for living expenses is 

not waste). Accordingly, I would reverse the trial judge's order 

crediting the husband with this $9,000 sum. 

Attorney's Fees

 The record in this case established that the trial judge 

abused his discretion in requiring the husband to pay $3,000 of 

the wife's attorney's fees. The wife earned approximately 

$40,000 annually. The husband's total income was approximately 

$45,000 per year. However, the trial judge's division of the 

marital property required the husband to pay the wife 37.5% of 

his disability pay, approximately $10,500 per year. Thus, the 

wife's adjusted annual income was approximately $50,000 while the 

husband's adjusted annual income was approximately $35,000. 

 The trial judge stated no reason for requiring the husband 

to pay the wife's attorney's fees. Although a fee award is 

justified when the payor is in an economically superior position, 

see Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 

(1987), no reason is advanced for requiring the husband, who is 

in an economically inferior position, to pay the wife's fees. 

 For these reasons, I would reverse the judgment and remand 

with direction to the trial judge to reconsider the equitable 

distribution award. I would also reverse and set aside the award 

of attorney's fees.