In the case of Jerry Dixon v. Rebecca Dixon, the Virginia Court of Appeals ruled, in a published opinion, that the trial court erred by offsetting husband's equitable distribution monetary award against wife’s spousal support award
In fashioning the equitable distribution award, the circuit court determined that the husband was entitled to “a credit” for $157,250, half of the parties’ equity in the marital home. The court also awarded the wife $1,500 monthly spousal support. It provided as follows:
"[T]he duration of spousal support must be tempered by the aforementioned credit of $157,250 [the husband] received in the equity of the marital home. That credit will serve to shorten the period of spousal support. Had the Court not awarded support but rather made a reservation to [the wife], the statutory presumption would have been that the right would continue for one half the duration of the 28 year marriage. Though not mandated, the Court takes guidance from that in concluding that a support duration of a similar time period—fourteen years (one half of 28)—would be appropriate. However, after applying the credit to [the husband] of his share of the equity [in] the marital home (or $157,250), the Court calculates that an award of spousal support for approximately 5.25 years (or 63 months) is appropriate."
Accordingly, the court ordered that the husband pay the wife the monthly amount of $1,500 in spousal support for sixty-three months.
The offset of the husband’s monetary award against the end of the wife’s spousal support award was based on the assumption that the wife would otherwise be due spousal support for fourteen years after the divorce decree was entered, the duration that the court noted that it would have imposed absent the “credit.” However, certain events can trigger the end of the duty to pay spousal support. Generally, spousal support terminates when either party dies, the supported party remarries, or the supported party lives with someone in a relationship analogous to marriage for one year or more. See Code § 20-109(A), (D). Therefore, the effect of offsetting the monetary award against spousal support was to make the award conditioned on future circumstances.
The question here is whether, in light of the applicable statutory provisions, the circuit court had authority to attach contingencies based on future events to a monetary award issued under Code § 20-107.3(D).
The equitable distribution statute provides, in pertinent part, that based on a variety of factors, a court granting a divorce “has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party.” Code § 20-107.3(D). The various factors relevant to determining a monetary award do not encompass the future continuity of a spousal support award. See Code § 20-107.3(D)-(E). The statute expressly provides that a court “shall determine the amount of any such monetary award without regard to maintenance and support awarded for either party.” Code § 20-107.3(F) (emphasis added). Further, the statute does not permit conditioning payment of such an award on future circumstances. See generally Code § 20-107.3(D) (not listing any future circumstances as relevant).
In contrast, the equitable distribution statute provides for conditional monetary awards in distributing pension, profit-sharing, deferred compensation, or retirement benefits (hereafter referred to collectively as retirement benefits).
“[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.” Fox, 61 Va. App. at 196. The inclusion of statutory language indicating that monetary awards based on retirement benefits are contingent on the actual distribution of those benefits signals that the omission of language permitting conditional monetary awards under subsection (D) was intentional. Therefore, based on the plain language of the statute, it does not authorize a general equitable distribution monetary award that is contingent on future circumstances.
Supporting this interpretation of the plain meaning of Code § 20-107.3(D) is the purpose of equitable distribution. A monetary award to equitably distribute marital property “involves an adjustment of the equities, rights and interests of the parties in marital property.” Patel v. Patel, 61 Va. App. 714, 729 n.8 (2013) (quoting Stumbo v. Stumbo, 20 Va. App. 685, 691 (1995)). “The clear legislative intent embodied in [Code § 20-107.3] is to maintain an appropriate separation between considerations of . . . spousal support and considerations of an equitable division of marital wealth. This is appropriate because support and equitable distribution awards are based on entirely different considerations and serve entirely different purposes.” Williams v. Williams, 4 Va. App. 19, 24 (1987). See generally Patel, 61 Va. App. at 729 n.8 (“Spousal support involves a legal duty flowing from one spouse to the other by virtue of the marital relationship.” (quoting Stumbo, 20 Va. App. at 691)). On the “termination of the marriage [,] . . . whatever marital wealth has been accumulated is to be equitably distributed at that time.” Reid, 7 Va. App. at 565. A court shall base the division of marital property, “the amount of any monetary award,” and “the method of payment” on a variety of circumstances. Code § 20-107.3(E). The relevant factors largely pertain to the parties’ marriage and contributions to the family. See Code § 20-107.3(E)(1)-(2), (5), (10). Such factors require the court to consider evidence of events prior to the date of the hearing.7 In short, the division of marital property and related monetary awards generally are grounded in the past and not based on the parties’ future circumstances. See Reid, 7 Va. App. at 565 (“Code § 20-107.3 provides for the equitable distribution of the accumulated marital wealth between the marital parties . . . .”). This approach logically stems from the purpose of equitable distribution to allocate the parties’ rights and interests in marital property, which typically have accrued prior to the time of separation or the evidentiary hearing. See id. An exception to this general rule exists for retirement benefits, which are necessarily “future oriented.
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