COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

STEPHEN B. JOYCE

v. Record No. 0001-95-4 MEMORANDUM OPINION
PER CURIAM
PATRICIA K. JOYCE JULY 18, 1995

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge

(Gregory L. Murphy; David C. Schroeder; Murphy,
McGettigan, Richards & West, on briefs), for
appellant.

(Susan Massie Hicks; Thomas P. Sotelo; Leiner, Hicks &
Sotelo, on brief), for appellee.

Stephen B. Joyce (husband) appeals the decision of the
circuit court awarding Patricia K. Joyce (wife) a percentage of
husband's pension. Husband raises the following issue on appeal:
whether the trial court's award erroneously includes post-
separation increases in pension benefits due to husband's post-
separation efforts as marital property subject to division. 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.
The trial court is vested with broad discretion in
fashioning an equitable distribution award, and its decision will
not be reversed on appeal "[u]nless it appears from the record
that the chancellor has abused his discretion, that he has not
considered or has misapplied one of the statutory mandates, or
that the evidence fails to support the findings of fact
underlying his resolution of the conflict in the equities."
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted).
Code 20-107.3(G) specifically addresses the division of
pension or retirement benefits as part of an equitable
distribution award. In pertinent part, Code 20-107.3 provides:
[t]he court may direct payment of a percentage of the
marital share of any pension, profit-sharing or
deferred compensation plan or 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 the cash benefits
actually received by the party against whom such award
is made. "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 . . . .
Code 20-107.3(G)(1).
Husband notes that he is fully vested in his defined benefit
pension through the Civil Service Retirement System (CSRS).
Under the CSRS, the amount husband will actually receive in
pension payments will be determined by the average of his highest
three years' salary, and by the form in which he elects to take
his benefits. If husband elects to receive his CSRS benefits as
an annuity, those annuity payments may be subject to cost of
living adjustments. Husband is still employed, and thus the
amount of his pension has not been determined. Husband, however,
provided an estimate of the value of his pension as of the date
of the parties' separation if husband elected the deferred
annuity option for receiving his CSRS retirement benefits.
The trial court awarded wife a fractional interest in
husband's pension, determined by dividing the years of employment
during the marriage by the total years of employment. The
fractional share to be determined upon husband's retirement was
then further limited under the trial court's order to fifty
percent of the marital share. This calculation complies with the
requirements of Code 20-107.3 and has been approved by this
Court in Mosley v. Mosley, 19 Va. App. 192, 198, 450 S.E.2d 161,
165 (1994). Therefore, we cannot say the trial court erred in
its award.
While the three years' pay which forms the basis for
determining husband's actual pension benefit may include
post-separation salary increases, husband's right to any pension
was based in large part on years of service during the marriage.
"The 'equitable distribution' statute . . . is intended to
recognize a marriage as a partnership and to provide a means to
divide equitably the wealth accumulated during and by that
partnership based on the monetary and non-monetary contributions
of each spouse." Williams v. Williams, 4 Va. App. 19, 24, 354
S.E.2d 64, 66 (1987). In many, if not most, cases, it is the
later years of employment that are the highest paid and bring the
highest benefits. It would be inequitable to disassociate the
early, lower-paid years of the marital partnership from later
years when the partnership no longer exists but when the ultimate
benefits from the parties' joint efforts and cooperation are
reaped. This is particularly true where, as here, the pension
benefits to date have been earned almost entirely during the
parties' marriage of over twenty years. The formula used by the
trial court diminishes the percentage of husband's pension wife
will receive as husband's employment continues, retains the fifty
percent of the marital share limitation, and recognizes the
interconnection between early employment and later benefits.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.