COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

VAUGHAN MONROE CUNNINGHAM 

 MEMORANDUM OPINION* BY 

v. Record No. 0663-95-2 JUDGE SAM W. COLEMAN III 

 JULY 23, 1996 

NOVELLA CUNNINGHAM 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Sharon A. Baptiste (Sylvia Cosby Jones; 

Sharon A. Baptiste, P.C.; Sylvia Cosby Jones, 

P.C., on briefs), for appellant. 

 (John E. Dodson; Gordon, Dodson & Gordon, on 

brief), for appellee. 

 Vaughan Monroe Cunningham (husband) appeals the final 

divorce decree in which the trial court equitably distributed the 

parties' marital property, awarded Novella Cunningham (wife) $500 

per month in spousal support and $2,000 in attorney's fees, and 

held husband in contempt for wilfully failing to pay $13,050 in 

pendente lite spousal support arrears. For the following 

reasons, the decree is affirmed in part and reversed in part, and 

the case is remanded to the trial court for further proceedings. 

EQUITABLE DISTRIBUTION

 (1) The trial court erred by failing to correctly calculate 

the marital share of husband's military retirement, and by 

awarding wife forty-five percent of husband's gross retirement 

 

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

designated for publication. 
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benefits. 

 When equitably distributing retirement benefits, the trial 

court shall classify the "marital share" of retirement or pension 

benefits as "marital property." Code § 20-107.3(A)(3)(b). 

"'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, if at such time or thereafter at least 

one of the parties intended that the separation be permanent." 

Code § 20-107.3(G)(1); see Gamer v. Gamer, 16 Va. App. 335, 342, 

429 S.E.2d 618, 624 (1993). 

 In this case, the evidence showed that the parties were 

married for eighteen of the twenty-one years that husband served 

in the military. At the time of the divorce, he had retired and 

was receiving monthly retirement benefits. Based on the eighteen 

of twenty-one years ratio, the marital share of husband's $1,056 

monthly retirement payment is $905.14, of which wife is entitled 

to no more than fifty percent or $452.57. Code § 20-107.3(G)(1). 

 However, rather than calculate the marital share, the trial 

court awarded wife forty-five percent of husband's "gross

military retired pay," which amounts to $475.20 per month. 

(Emphasis added). 

 The wife contends the error is insignificant and harmless. 

Because the error deprived the husband of the monthly retirement 

funds to which he is entitled, the error is not harmless. 

Therefore, we reverse the equitable distribution award and remand 
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the case for the trial court to determine the marital share of 

husband's military retirement benefits in accordance with Code 

§§ 20-107.3(A)(3)(b) and 20-107.3(G)(1), and to adjust the 

equitable distribution award accordingly. 

 (2) The trial court erred by awarding wife fifty percent of 

the $13,000 in retirement benefits husband earned during his 

employment with the Commonwealth of Virginia because the portion 

of the retirement proceeds that were earned after the parties 

separated are the husband's separate property. 

 Retirement benefits earned after spouses have last 

separated, with the intent to remain permanently separated, are 

not marital property and, therefore, not subject to equitable 

distribution. Code § 20-107.3(G)(1); Price v. Price, 4 Va. App. 

224, 231-32, 355 S.E.2d 905, 909 (1987). Consequently, the trial 

court erred by awarding wife fifty percent of the entire $13,000 

of husband's state retirement contributions. The parties 

separated permanently in July 1989, but the husband continued to 

contribute his separate property to the retirement plan after 

July 1989 until 1992. Therefore, the equitable distribution 

decree awarded wife more than fifty percent of the marital share 

of the husband's state retirement proceeds. We reverse this 

aspect of the equitable distribution award and remand the case 

for the trial court to determine the marital share of the 

husband's contributions to the state retirement plan in 

accordance with Code § 20-107.3(G)(1), and to adjust the 
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equitable distribution award accordingly. 

 (3) The trial court did not err by awarding wife fifty 

percent of the personal injury settlement that husband received 

for a back injury he sustained prior to July 1989 when the 

parties last separated. 

 The portion of a personal injury settlement "attributable to 

lost wages or medical expenses to the extent not covered by 

health insurance accruing during the marriage and before the last 

separation of the parties" is marital property and is subject to 

equitable distribution. Code § 20-107.3(H). However, the owner 

of the settlement has the burden of proving the amount of the 

settlement that is attributable to lost wages and medical 

expenses. See Thomas v. Thomas, 13 Va. App. 92, 95, 408 S.E.2d 

596, 598 (1991). 

 Husband received approximately $13,000 from a settlement for 

a back injury that he suffered in the course of his employment 

with the state. He testified that a portion of the settlement 

represented pain and suffering, but he could not recall and did 

not prove the specific amount allocated for his non-economic 

injury. He stated that it was "very little." The evidence is 

not sufficient to prove that a specific amount of the settlement 

was attributable to husband's damages for other than lost wages 

and medical expenses. Accordingly, the trial court did not err 

and we affirm the equitable distribution award to the wife of 

fifty percent of the husband's personal injury settlement. 
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 (4) The trial court found that husband and wife incurred 

federal and state tax liabilities during certain years of the 

marriage during which wife did not work, and that it was 

husband's obligation to file income tax returns for those years. 

 The trial court did not err by refusing to credit husband for 

the delinquent tax payments that he made to satisfy their tax 

liabilities after they were separated. 

 Although income tax debts incurred during the marriage are 

generally classified as marital debt, a trial court does not 

abuse its discretion by holding that a spouse who did not have 

earnings and who did not create the liability should not be held 

liable for a late filing penalty. See Brett R. Turner, Equitable 

Distribution of Property § 6.29, at 457 (2d. ed. 1994). The 

trial court did not err by refusing to give husband credit for a 

portion of the tax debt when the entire tax obligation was 

incurred by the husband. 

SPOUSAL SUPPORT

 Code § 20-107.1(8) provides that when determining spousal 

support a trial court shall consider the "provisions made with 

regard to the marital property under Code § 20-107.3." 

Accordingly, because we are reversing and remanding "provisions 

made with regard to the [equitable distribution of] marital 

property," we necessarily must remand the issue of spousal 

support for reconsideration. See Brinkley v. Brinkley, 5 Va. 

App. 132, 141-42, 361 S.E.2d 139, 143-44 (1987). 
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Notwithstanding, because the trial court will necessarily 

confront on remand certain spousal support issues that the 

parties raise on appeal, we address those issues: 

 (1) We hold that the trial court erred to the extent that it 

based the wife's $500 per month spousal support award, in whole 

or in part, on the husband's portion of the marital share of his 

military retirement pension. 

 "Whether spousal support should be paid is largely a matter 

committed to the sound discretion of the trial court, subject to 

the provisions of Code § 20-107.1." McGuire v. McGuire, 10 Va. 

App. 248, 251, 391 S.E.2d 344, 347 (1990). Code § 20-107.1(1) 

expressly provides that in setting spousal support the trial 

court shall consider a party's financial resources, including 

income from "all pension, profit sharing or retirement plans, of 

whatever nature." However, the trial court must apply the 

provisions of Code § 20-107.1(1) in conjunction with the 

provisions and limitation imposed by Code § 20-107.3(G)(1), which 

prohibits awarding a spouse in excess of "fifty percent of the 

marital share of cash [retirement] benefits actually received by 

the party against whom such award is made." 

 The court may direct payment of a percentage 

of the marital share of any . . . retirement 

benefits, whether vested or nonvested, which 

constitutes marital property and whether 

payable in a lump sum or over a period of 

time. . . . No such payment shall exceed 

fifty percent of the marital share of cash 

benefits actually received by the party 

against whom such award is made. 
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Id. Although Code § 20-107.3(G)(1) by its terms applies to 

equitable distribution, and not to spousal support, the clear 

purpose of the provision is to ensure that a person who has 

contributed to a retirement or pension plan shall be guaranteed 

at least fifty percent of the marital share of retirement 

benefits actually received in a divorce proceeding. The trial 

court cannot indirectly exceed the fifty percent limitation on 

the equitable division of the marital share of retirement 

benefits by basing the spousal support award, in part, upon the 

husband's marital share of his pension. 

 As previously noted, when the trial court awarded wife 

forty-five percent of the husband's "gross military retired pay," 

the court already exceeded the limitation imposed by Code 

§ 20-107.3(G)(1). The trial court further exceeds the fifty 

percent limitation to the extent that it based the spousal 

support award, in whole or in part, upon the husband's remaining 

portion of the marital share of his military retirement. 

 The evidence proved that the husband had monthly income of 

$724 as a minister. He also had $1,056 per month in military 

retirement benefits, of which he was ordered to pay $475.20 to 

wife under the equitable distribution award. His assets 

consisted of his equitable distribution award of $8,500 for 

one-half the equity from the marital residence, his $6,500 for 

one-half of his contributions in Virginia retirement benefits, 

and his $6,500 for one-half of his personal injury award. 
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Although Code § 20-107.1(1), (7), and (8) expressly provide that 

the trial court shall consider the parties' incomes from 

pensions; their real and personal property interests; and the 

provisions from the equitable distribution award in determining 

spousal support, the limitation of Code § 20-107.1(G)(1) 

prohibits an award that, to the extent it is based on a party's 

cash retirement benefits actually being received, will exceed 

fifty percent of the husband's marital share of "cash benefits 

actually received by the party against whom such award is made." 

 Although we cannot say with assurance from this record that 

the spousal support award of $500 per month was based upon the 

remaining fifty percent of the husband's cash retirement 

benefits, on remand the court must take Code § 20-107.1(G)(1) 

into consideration. It does not appear that the trial court 

based the monthly spousal support award upon husband's equitable 

distribution award from his equity in the marital residence, his 

share of his state pension contributions, or his share of the 

personal injury award. The court had equally divided those 

assets and no evidence proved the husband's share generated 

income sufficient to pay the monthly award or that the court 

intended that husband would be required to liquidate his 

resources for that purpose. See Code § 20-107.1(7); L.C.S. v. 

S.A.S., 19 Va. App. 709, 715-17, 453 S.E.2d 580, 583-84 (1995). 

Furthermore, the court did not base the spousal support award, in 

any degree, upon husband's separate property because, as 
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previously noted, the court did not determine his separate 

interest in either his military retirement or his post-separation 

contributions to his state pension. Because the $724 per month 

received as a minister would not have supported a spousal support 

award of $500,1

 the record indicates that the award may have been 

based, at least in part, upon husband's monthly cash retirement 

benefits, and to that extent would exceed the fifty percent 

limitation of Code § 20-107.1(G)(1). In reconsidering spousal 

support on remand, the trial court shall consider the limitation 

imposed by Code § 20-107.1(G)(1). 

 (2) The trial court did not err by finding husband in 

contempt for failing to pay the court ordered pendente lite

spousal support, which appellant concedes is in arrears. 

 A party is in contempt of a court's order to pay spousal 

support only when the party fails or refuses to pay the 

obligation "in bad faith or [in] willful disobedience of [the 

court's] order." Alexander v. Alexander, 12 Va. App. 691, 696, 

406 S.E.2d 666, 669 (1991) (quoting Carswell v. Masterson, 224 

Va. 329, 332, 295 S.E.2d 899, 901 (1982)). Where the evidence 

shows a party's failure to pay spousal support, the offending 

party "has the burden of proving justification for his or her 

 

 1 Assuming that the trial court relied solely on husband's 

income from his church activities in determining spousal support, 

ordering husband to pay $500 per month when his income was $724 

per month, without explanation, constitutes a clear abuse of 

discretion on this record. See Gamble v. Gamble, 14 Va. App. 

558, 574, 421 S.E.2d 635, 644 (1992). 
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failure to comply." Id.

 Here, the pendente lite support order required husband to 

pay wife $900 per month. Husband concedes that he did not comply 

with the court's order and that the accumulated arrearage is 

$13,050. Husband contends, however, that he was unable to pay 

the support obligation because his wages were subject to a tax 

levy beginning in April 1992, and he left his job with the state 

in 1992 for medical reasons. During the period between 1989 and 

1992 that the pendente lite support order was in effect, husband 

was receiving the full monthly benefits from his military 

retirement, his income from his pastoral activities, the state 

retirement proceeds, and the personal injury settlement. On 

these facts, he had funds available to pay the support 

obligation. The trial court did not err by finding that the 

defendant wilfully failed to pay support as ordered. The 

contempt citation was "not plainly wrong [or] without evidence to 

support it." Id. Furthermore, the court did not abuse its 

discretion by requiring husband to immediately pay the arrearage 

in order to purge the contempt; the order was remedial in nature. 

See Rainey v. City of Norfolk, 14 Va. App. 968, 974, 421 S.E.2d 

210, 214 (1992). 

ATTORNEY'S FEES

 The trial court has discretion to award attorney's fees that 

are reasonable "under all of the circumstances revealed by the 

record." Gamer, 16 Va. App. at 346, 429 S.E.2d at 626 (quoting 
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Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631 

(1989)). Here, the record shows that wife incurred attorney's 

fees of at least $3,281.50. Therefore, the trial court did not 

abuse its discretion by awarding wife $2,000 in attorney's fees. 

 For these reasons, the decree appealed from is affirmed in 

part and reversed in part, and the case is remanded for further 

proceedings consistent with this opinion. 

Affirmed in part,

reversed in part,

and remanded.