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Gore v. Gore

Court of Appeals of Virginia

May 20, 1997

ROBERT WARREN GORE
v.
SYLVIA SWAIN GORE

FROM THE CIRCUIT COURT OF PATRICK COUNTY. Charles M. Stone, Judge.

(Richard D. Rogers, Jr., on brief), for appellant.

(Philip G. Gardner; Gardner, Gardner, Barrow & Sharpe, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick.

MEMORANDUM OPINION [*]

PER CURIAM

Robert W. Gore (husband) appeals the final decree of divorce and equitable distribution entered by the circuit court. Husband contends that the trial court erred in (1) valuing the parties' retirement benefits, (2) awarding attorney's fees to Sylvia S. Gore (wife), (3) requiring husband to pay wife the value of a lost engagement ring, (4) awarding wife one-half the face value of savings bonds, and (5) awarding wife $ 375 in monthly spousal support. 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.

Pensions

Husband contends that wife's expert erred in valuing his pension, that the present value calculation used post-separation salary increases, that the marital share was erroneously calculated, and that the effect of Social Security payments upon his pension was not considered. We find these contentions to be without merit.

While the court's final decree calculated the present value of husband's pension, the qualified domestic relations order (QDRO) which the court subsequently entered did not rely upon present value. That order calculated the marital share of husband's pension as a fraction of the total pension, based upon the parties' final separation date of February 1992. Specifically, the court awarded wife a pro rata portion of the marital share, defined as:

one-half (1/2) of the fraction whose numerator is the number of months of federal, civilian and military service that [husband] . . . performed during the marriage and whose denominator is the total number of federal, civilian, and military service performed by the [husband]. . . .

The court found the number of months of employment during the marriage equaled 192. The total number of months of employment will not be established until husband's retirement, based upon his employment starting date of May 12, 1976. Thus, while the court's final decree referred to a present value of husband's pension, the implementing QDRO did not rely upon the present value calculation. Therefore, husband's challenge to the discount rate assumption used by wife's expert in calculating the present value is moot.

Similarly, husband's contention that the present value calculation relied on the value of post-separation earnings is moot. Moreover, husband's argument that the calculation of the marital share cannot rely on any salary levels earned post-separation is incorrect. We rejected a similar argument in Banagan v. Banagan, 17 Va.App. 321, 324-26, 437 S.E.2d 229, 230-31 (1993).

" It is only fair that both parties share in the increased value of the pension, " or one will be " receiving the increase in value" over time which is attributable to the other's marital interest. Contrary to husband's view, such enhancement is clearly a part of the " total [pension] interest" component of the marital share equation and ...

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