COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

MARY BRUMSKILL 

 MEMORANDUM OPINION*

v. Record No. 0311-97-2 PER CURIAM 

 JULY 29, 1997 

AUSTIN E. BRUMSKILL 

FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY 

Richard S. Blanton, Judge 

 (George H. Edwards, on brief), for appellant. 

 (Phoebe P. Hall; Hall & Hall, on brief), for 

appellee. 

 Mary Brumskill (wife) appeals the decision of the circuit 

court denying her motion for reconsideration of its equitable 

distribution decision. Wife contends that the trial court (1) 

erred in determining the amount of rent proceeds from the 

parties' rental property subject to equitable distribution; (2) 

erred by denying her motion for reconsideration and to set aside 

the award for fraud; (3) erred by awarding her only twenty-five 

percent of the marital share of the pension of Austin E. 

Brumskill (husband); (4) erred by basing its equitable 

distribution on fraudulent information; and (5) abused its 

discretion by terminating her spousal support as a punitive 

measure due to her counsel's withdrawal. Wife withdrew several 

issues asserting error in the court's granting a divorce on the 

 

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

designated for publication. 
 2 

ground that the parties lived separate and apart. 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. 

 I. 

 Wife contends that the trial court erred by ordering her to 

pay husband one-half the $10,350 in rent she retained from the 

parties' jointly-owned rental property. Wife argues that she 

should be required to pay only one-half of $2,300, which was the 

net profit she retained after payment of the mortgage on the 

rental property. However, the wife presented no evidence that 

she had paid the mortgage from rent proceeds. The trial court 

did not allow either husband or wife to deduct any mortgage 

payments they made on jointly-owned property. Thus, while 

husband paid the first and second mortgages of the marital 

residence during the time wife continued to live there, he 

received no corresponding credit for the property's increased 

equity attributable to these post-separation payments. We cannot 

say the trial court's decision that each party bear a portion of 

their shared debt and that they divide the rental income earned, 

was plainly wrong. 

 The trial judge did not abuse his discretion in refusing to 

rehear this issue. Following the evidentiary hearing, the 

parties submitted memoranda concerning equitable distribution 

issues. No issue was raised at that time concerning the rents. 
 3 

 This issue was raised only after the judge's ruling. In view 

of the lack of proof concerning the source of the mortgage 

payments, the trial judge did not err in refusing to reopen the 

evidence. 

II. 

 In Stipulation 24, under the section entitled "Wife's 

Employment History," the parties stipulated that "[w]ife was 

employed by Philip Morris doing night work, taking tobacco out of 

a hoggie from 2/69 - 7/69." Almost two months after issuance of 

the court's opinion letter setting out its findings of fact, wife 

filed a motion to set aside the court's decision on the basis of 

fraud, contending that she never worked at Philip Morris. We 

find no error in the trial court's refusal to set aside its 

decision. 

 As the party seeking to set aside a final order on the basis 

of fraud, wife had the burden of proving "'(1) a false 

representation, (2) of a material fact, (3) made intentionally 

and knowingly, (4) with intent to mislead, (5) reliance by the 

party misled, and (6) resulting damage to the party misled.'" 

Batrouny v. Batrouny, 13 Va. App. 441, 443, 412 S.E.2d 721, 723 

(1991) (citation omitted).1 

 

 1Wife did not clearly indicate either before the trial court 

or on appeal whether her argument was based on actual or 

constructive fraud. 

 [C]onstructive fraud . . . [requires] a 

showing by clear and convincing evidence that 

a false representation of a material fact was 

made innocently or negligently, and the 
 4 

 

 Wife relies on the text of Stipulation 40, which provided: 

 The attached records were produced by the 

parties' employers and are hereby stipulated 

into evidence for purposes of showing the 

parties [sic] work histories, the dates and 

places of employment, the job performance, 

and the pay and benefits of the parties, as 

well as the reasons given by the employer or 

employee for any termination of employment by 

the employer or the employee and any 

disciplinary actions. 

That stipulation referenced an Exhibit D. Wife assigns fraud, 

or, at a minimum, a significant mistake, to the fact that 

Exhibit D did not reflect her employment at Philip Morris. 

 However, the stipulation does not purport to encompass all 

employment records. It included an application, signed by wife 

in 1986, listing Philip Morris employment from "2-69 [to] 07-69" 

as previous work experience. The wife does not allege that the 

signature on the application was not her signature. Thus, the 

representation made in the exhibit was made by the wife. 

 The trial court did not err in refusing to reopen the case. 

 These records were available for review by wife's counsel. 

Counsel apparently failed to review the records until after 

injured party was damaged as a result of his 

reliance upon the misrepresentation. . . . 

Additionally, [it requires] . . . "clear and 

convincing evidence that one has represented 

as true what is really false, in such a way 

as to induce a reasonable person to believe 

it, with the intent that the person will act 

upon this representation." 

Mortarino v. Consultant Eng'g Servs., Inc., 251 Va. 289, 295, 467 

S.E.2d 778, 782 (1996) (citation omitted). We find no evidence 

to support either element of constructive fraud. 
 5 

signing the stipulation. Furthermore, the husband testified at 

the September 20, 1996 hearing in some detail concerning the 

efforts he made early in the marriage to obtain a job for wife at 

Philip Morris. Both the wife and her counsel were present. 

Although wife's counsel cross-examined husband, the wife raised 

no challenge to the husband's testimony concerning her brief 

employment at Philip Morris. The trial court found the husband's 

testimony to be credible. 

 We find no evidence supporting wife's allegations of fraud 

and find no error in the trial court's refusal to reopen the 

case. For the reasons stated forth above, we find no error in 

the trial court's reliance on the evidence submitted by the 

parties. 

 III. 

 "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). "Virginia's statutory scheme of equitable distribution 

does not have a presumption favoring an equal distribution of 

assets." Alphin v. Alphin, 15 Va. App. 395, 404, 424 S.E.2d 572, 
 6 

577 (1992). See Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 

S.E.2d 829, 830 (1986). 

 Under Code § 20-107.3(G), a trial court may not award more 

than fifty percent of the marital share of a pension. Here, the 

trial court awarded the wife twenty-five percent of the marital 

share of husband's pension and fifty percent of all other marital 

assets. The wife posits that the trial court relied on erroneous 

evidence of her one-time employment at Philip Morris. It is true 

that the trial court noted wife's lost opportunity to earn a 

retirement similar to that earned by husband. The trial court 

stated: 

 In regards to the pension and profit sharing 

funds with Philip Morris, all of the monetary 

contributions were provided by the husband. 

While the wife had the same opportunity at 

Philip Morris, she chose to leave that 

employment. Additionally, the wife chose to 

cash in her retirement fund with the 

Commonwealth of Virginia. However, as 

previously discussed, the wife did maintain 

the home and care for the husband while he 

worked each day at Philip Morris. 

 It is apparent that the trial court considered the parties' 

respective monetary and nonmonetary contributions to the marriage 

as well as other statutory factors, not just the wife's brief 

Philip Morris employment, when making its equitable distribution 

decision. The court contrasted the husband's history of 

employment against that of the wife, noting that the husband 

"commuted approximately 100 miles round trip per day while 

working shift work" and that "the vast majority of the monetary 
 7 

contributions were provided by the husband." On the other hand, 

the trial court found that the wife "held various jobs during the 

marriage but none for a long period of time, . . . [m]any of the 

jobs that the wife held during the marriage were part-time[, and 

wife] . . . testified that she did not seek further full-time 

employment because she 'didn't have to do so.'" The parties were 

married for over twenty-five years and had no children. 

 We cannot say, based upon the record, that the trial court 

failed to consider the statutory factors as they related to the 

evidence. 

 IV. 

 At the hearing scheduled for the presentation of evidence on 

 the issue of permanent spousal support, the wife presented no 

evidence and wife's counsel withdrew. The transcript indicates 

that the court viewed the wife's motion for reconsideration as 

groundless, noting that "with all the depositions that were 

taken, with all the testimony that's been taken in this 

courtroom, there was more than ample opportunity for [wife] to 

deny that she worked at Philip Morris." The court further noted 

that "[i]t troubles me that this matter is not going to end today 

because it should." The trial court did not believe that "it's 

in anybody's best interest for this litigation to continue." 

Nonetheless, the trial court granted wife's counsel extensive 

leeway to exercise whatever options she felt were ethically 

required. 
 8 

 As the party seeking permanent spousal support, the wife 

bore the burden to present evidence of her needs and expenses. 

Wife and her counsel elected to seek a continuance rather than 

present evidence at the scheduled hearing, thereby further 

delaying a final resolution. Unquestionably, by discontinuing 

all support payments until further order, the trial court 

intended to ensure that the wife would move quickly toward 

resolution of the issue. Under the circumstances, we do not find 

this action to be punitive. In the absence of proof by the wife 

regarding her current needs, we cannot say the trial court abused 

its discretion by suspending the payment of additional spousal 

support until further order. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.