COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Clements 

Argued at Alexandria, Virginia 

PATRICIA D. IRLBACHER 

 MEMORANDUM OPINION* BY 

v. Record No. 2083-00-4 JUDGE JEAN HARRISON CLEMENTS 

 AUGUST 7, 2001 

GEORGE W. IRLBACHER, JR. 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

J. Peyton Farmer, Judge 

 Charles B. Roberts (Roberts Law Office, on 

brief), for appellant. 

 Timothy W. Barbrow (Joseph A. Vance, IV & 

Associates, on brief), for appellee. 

 Patricia D. Irlbacher (wife) appeals from the equitable 

distribution order prepared by George W. Irlbacher, Jr., (husband) 

and entered by the trial court on July 27, 2000. Wife contends 

the trial court erred (1) in granting husband's first exception to 

the commissioner's report and ordering that wife's retroactive 

share of husband's military retired pay be based on husband's 

"net" military retired pay rather than the "taxable income" 

portion of his military retired pay, (2) in ordering that wife's 

prospective share of husband's military retired pay and the 

benefits under the Survivor Benefit Plan (SBP) be calculated using 

a formula that is inconsistent with the commissioner's 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
recommendation, (3) in failing to order husband to be responsible 

for all of the tax consequences associated with the North Carolina 

property transferred to husband as recommended by the 

commissioner, and (4) in refusing to add certain clarifying 

language to the order. For the reasons that follow, we affirm in 

part, reverse in part, and remand. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

proceedings as necessary to the parties' understanding of the 

disposition of this appeal. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below and grant to that evidence all 

reasonable inferences fairly deducible therefrom. Wagner v.

Wagner, 16 Va. App. 529, 532, 431 S.E.2d 77, 79 (1993). In 

challenging a decision on appeal, the party seeking reversal bears 

the burden of demonstrating error on the part of the trial court. 

D'Agnese v. D'Agnese, 22 Va. App. 147, 153, 468 S.E.2d 140, 143 

(1996). "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. Scrinivasan, 10 Va. App. 728, 732, 396 

S.E.2d 675, 678 (1990). 

 Wife's first three assignments of error involve claimed 

inconsistencies between the trial court's order and the report of 

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the commissioner. While the report of a commissioner in chancery 

does not carry the weight of a jury's verdict, it has a 

presumption of correctness and should be sustained unless the 

trial court concludes that there is error on the face of the 

report or that the commissioner's findings are not supported by 

credible evidence. Code § 8.01-610; Morris v. United States Bank, 

237 Va. 331, 337, 377 S.E.2d 611, 614 (1989). "This rule applies 

with particular force to a commissioner's finding of fact based 

upon evidence taken in his presence, but is not applicable to pure 

conclusions of law contained in the report." Hill v. Hill, 227 

Va. 569, 577, 318 S.E.2d 292, 297 (1984) (citations omitted). 

 Although a trial court has substantial discretion in the 

manner in which it reviews a commissioner's report, it cannot 

simply ignore the commissioner's findings and substitute its 

judgment for the commissioner's. Gulfstream Bldg. Ass'n v. Britt, 

239 Va. 178, 185, 387 S.E.2d 488, 492 (1990). Thus, where the 

trial court disapproves of or modifies the findings of the 

commissioner, we "must review the evidence and ascertain whether, 

under a correct application of the law, the evidence supports the 

findings of the commissioner or the conclusions of the trial 

court." Hill, 227 Va. at 577, 318 S.E.2d at 296-97. 

 Wife first contends, on appeal, that the trial court erred in 

ordering husband to pay wife, as her retroactive share of 

husband's military retired pay, an amount calculated using 

husband's "net" military retired pay (i.e., husband's gross 

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military retired pay less the total of SBP costs, disability pay 

(VA waiver), withheld federal and state income tax, and payments 

for insurance and bonds, rather than, as recommended by the 

commissioner, the "taxable income" portion of husband's military 

retired pay (i.e., husband's gross military retired pay less the 

total of SBP costs and VA waiver). We agree. 

 During the commissioner's hearing, the parties agreed that 

wife's marital share of husband's military retired pay should be 

one-half of 89% (i.e., 44.5%) of husband's military retired pay. 

However, they disagreed about whether the SBP costs and VA waiver 

should be included in the marital portion of the retirement pay 

and whether wife's share should be retroactive. Husband argued 

that wife's share should not be retroactive and should be limited 

to 44.5% of the "taxable income" amount of the military retired 

pay. Wife argued that wife's share should be retroactive to March 

1999 and should be 44.5% of husband's gross military retired pay. 

 After hearing the evidence and argument of counsel, the 

commissioner recommended that wife receive 44.5% of husband's 

gross military retired pay after the SBP costs and VA waiver are 

deducted, for a total of $1,545.46 per month, calculated as 

follows: $3,771.00 (husband's gross retirement pay) - $110.06 

(SBP costs) - $188.00 (VA waiver) = $3,472.94 ("taxable income" 

portion of husband's retirement pay); $3,472.94 x 44.5% 

(percentage of wife's marital share) = $1,545.46 (wife's monthly 

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retroactive share). The commissioner further recommended that 

this award be made retroactive to February 2000. 

 Husband then timely filed exceptions to the commissioner's 

report. Only the first exception is relevant to the issues on 

appeal. In that first exception, husband requested that wife's 

retroactive share of his military retired pay be calculated using 

the "net" amount rather than the "taxable income" amount of his 

military retired pay because he had already paid taxes on the 

retroactive share. After hearing argument on husband's exceptions 

to the commissioner's report and wife's objections to husband's 

proposed decree, the trial court granted husband's first exception 

and, overruling wife's objections, entered the equitable 

distribution order prepared by husband. 

 The order provides that wife's retroactive share of husband's 

military retired pay is 44.5% of the "net" amount of husband's 

military retired pay, for a six-month total of $7,524.22, or 

$1,254.04 per month. That total reflects deductions from the 

marital portion of husband's retirement pay of not only the income 

taxes withheld but also husband's insurance and bond payments, as 

follows: $3,771.00 (husband's gross retirement pay) - $110.06 

(SBP costs) - $188.00 (VA waiver) - $312.79 (federal income taxes 

withheld) - $150.00 (state income taxes withheld) - $192.09 

(payments for insurance and bonds) = $2,818.06 (husband's "net" 

retirement pay); $2,818.06 x 44.5% (percentage of wife's marital 

share) = $1,254.04 (wife's monthly retroactive share). 

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 Husband concedes the commissioner never considered the issue 

of whether the withheld income tax and the payments for insurance 

and bonds should be excluded from the marital portion of husband's 

military retired pay because husband did not raise the issue 

before the commissioner. Additionally, in explaining in his 

exception to the commissioner's report why the "net" amount of 

husband's military retired pay should be used to calculate wife's 

marital share of that pay, husband stated solely that he had 

"already paid taxes on the retirement pay." He said nothing about 

the payments for insurance and bonds. Likewise, at the hearing on 

husband's exceptions to the commissioner's report, husband made no 

mention to the trial court of the payments for insurance and 

bonds. Instead, he simply presented to the court a proposed 

equitable distribution order that stated merely that wife's 

retroactive marital share of husband's military retired pay was 

$7,524.22, or 44.5% of the "net proceeds" from husband's 

retirement pay. The order provided no details as to what 

deductions were included to arrive at the "net proceeds." 

 The trial court ruled that wife's retroactive share of the 

retirement pay was to be calculated on the "net" amount of the 

retirement pay and entered the order prepared by husband. The 

court, however, heard no evidence and made no findings regarding 

its ruling. Indeed, it appears from the record that the trial 

court rejected the commissioner's recommendation and reduced 

wife's retroactive share of husband's military retired pay without 

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considering the parties' respective equities and rights in the 

taxes and payments for insurance and bonds deducted from husband's 

gross pay. For example, although the record indicates that 

counsel for husband argued at the hearing on wife's motion for 

reconsideration that the insurance partly benefited wife, we find 

no evidence in the record before us as to the nature of the 

subject insurance and bonds and whom they benefited. Certainly, 

the trial court made no findings in that regard. 

 We conclude, therefore, that the evidence fails to support 

the decision of the trial court to credit husband with the 

additional retroactive amounts of his withheld federal and state 

taxes and deducted payments for insurance and bonds. Conversely, 

our review of the record convinces us that the evidence supports 

the commissioner's recommendation that the "taxable income" 

portion of husband's military retired pay be used to calculate 

wife's retroactive share of that pay. Accordingly, we hold that 

the trial court abused its discretion by improperly substituting 

its judgment for the commissioner's. 

 Wife next contends the trial court erred in entering the 

equitable distribution order because the formula set forth in 

paragraph six on page six of the order to compute wife's 

prospective marital share of husband's military retired pay and, 

upon the death of husband, wife's share of the SBP benefits is 

incorrect and not in accord with the commissioner's 

recommendations. Husband argues there is no variance between the 

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commissioner's recommendations and the formula in the order. We 

agree with wife. 

 The equitable distribution order entered by the trial court 

provides as follows: 

 It appearing to the Court that the 

Commissioner in Chancery took into 

consideration all proper evidence pertaining 

to the equitable distribution of the parties' 

marital properties and debts, and pursuant to 

all factors contained in Virginia Code 

Section 20-107.3, it is ADJUDGED and DECREED 

that the recommendations and findings set 

forth in the Report of the Commissioner in 

Chancery dated May 23, 2000, are incorporated 

into these specific findings described below. 

 To facilitate the parties' use of this 

decree and as and for information to third 

parties who may be affected thereby, certain 

of the Court's awards may be hereinafter set 

out, but in no event shall this Decree be 

deemed to be inconsistent with the 

recommendations of the Commissioner in 

Chancery as set forth in his Report dated May 

23, 2000, except insofar as this document has 

specific changes reflecting the Judge's 

granting of exceptions to the Commissioner's 

Report, such exceptions filed by [husband]. 

As previously noted, the only exception granted by the trial court 

pertaining to the issues before us involved the calculation of 

wife's retroactive share of husband's military retired pay. 

 Husband concedes that, in preparing the order, he attempted 

to accurately set forth the commissioner's recommendation in the 

form of a mathematical formula. He does not dispute the 

commissioner's recommendation or the meaning thereof. In fact, in 

his brief on appeal, husband, using the formula in the order, 

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reaches the same result recommended by the commissioner. His 

understanding of standard mathematical procedures, however, like 

his formula, is flawed. 

 The trial court failed, along with husband, to grasp the 

significance of wife's argument on the issue and ruled simply at 

the hearing on wife's objections to husband's proposed order that 

the "language on page six, paragraph six, is proper." 

 The commissioner found that 89% of husband's military retired 

pay is marital property, of which wife is entitled to half. Thus, 

wife's share of husband's retirement pay is 44.5%. The 

commissioner further found that wife's prospective share of 

husband's military retired pay "is 44.5% of his gross retirement 

pay after the SBP cost and the disability pay are deducted." 

"Currently," the commissioner went on to say, "this yields 

$1,545.46 per month for her . . . ." This result is calculated as 

follows: $3,771.00 (husband's gross retirement pay) - $110.06 

(SBP costs) - $188.00 (VA waiver) = $3,472.94; $3,472.94 x 44.5% 

(percentage of wife's marital share) = $1,545.46 (wife's monthly 

prospective share). Conversely, the formula set forth in the 

order, calculated, as indicated, in a straight sequence, results 

in an amount of $16.39 less, as follows: 89% x $3,771.00 

(husband's gross retirement pay) = $3,356.19; $3,356.19 - $110.06 

(SBP costs) - $188.00 (VA waiver) = $3,058.13; $3,058.13 x 50% = 

$1,529.07. 

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 Thus, the formula in the equitable distribution order is 

flawed because it fails to direct the person performing the 

calculation to first subtract the SBP costs and VA waiver from the 

gross retirement pay (or SBP benefits) before multiplying that 

amount by 44.5% (or, as set out in the formula in the order, 

multiplying that amount first by 89% and then by 50%). Brackets 

or some other appropriate marks before "monthly retirement pay" 

and after "amount VA waiver" would cure the formula's flaw. 

 We hold, therefore, that the formula in the equitable 

distribution order does not properly reflect wife's prospective 

marital share of husband's military retired pay and the SBP 

benefits. Accordingly, the trial court was plainly wrong in 

entering the order.1 

 Wife also contends that paragraph two on page two of the 

equitable distribution order, which provides for the transfer of 

the parties' North Carolina home to husband but makes him 

responsible only for the "tax consequences associated with such 

transfer," is not in accord with the commissioner's 

recommendation. We agree. 

 The commissioner found that the property's tax basis was low 

and that there was the prospect for a large income tax liability 

upon its sale. Husband, the commissioner found, wanted the home 

 1

 Having resolved this issue on other grounds, we need not 

address wife's additional argument that the subject formula in 

the equitable distribution order is contrary to federal law. 

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"and responsibility for . . . the difficult tax consequence." 

Wife, on the other hand, the commissioner found, would neither be 

able to avoid or handle the tax consequences in a timely fashion. 

Husband had responsibility for the significant mortgage debt on 

the property. In light of such findings, the commissioner 

recommended that the home be transferred to husband along with its 

"difficult tax consequence." 

 We conclude that the commissioner recommended that husband 

bear all tax consequences related to the North Carolina property. 

The order of the trial court, read literally, however, only 

assigns to husband those tax consequences associated with the 

transfer of the property from wife to husband. Hence, we hold 

that the trial court's equitable distribution order is improperly 

inconsistent with the commissioner's recommendation and that the 

trial court erred in entering the order as drafted. 

 Lastly, wife contends the trial court committed reversible 

error in refusing to add the words "and Reservation of Spousal 

Support" to the existing title of its order--"Order of Equitable 

Distribution"--and in refusing to change the word "spouse" to 

"former spouse" in the order. Such changes, wife argues, are 

necessary to avoid delay in having the order processed and 

approved by the United States Department of Defense Finance 

Office. 

 Wife, however, conceded at the reconsideration hearing that 

she did not know the consequences of submitting the order as 

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drafted, without her suggested changes, to the military finance 

office. She simply did not want to "take the chance" that the 

order would be rejected. She presented no evidence to the trial 

court to show that the changes were necessary and offers us no 

authority pursuant to which we may conclude that the trial court 

abused its discretion by not including the requested changes in 

the order. Moreover, as husband points out, the trial court's 

order specifically reserves jurisdiction in the trial court for 

the purpose of modifying the order "in order to effect payment of 

any retirement benefits for either party." Hence, we hold that 

the trial court did not err in ruling as it did. 

 Accordingly, the equitable distribution order appealed from 

is affirmed in part and reversed in part and remanded for entry of 

an order consistent with this opinion. 

 Affirmed in part,

 reversed in part

and remanded.

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