The Court of Appeals in Ozfidan v. Ozfidan, Va. Ct. App. unpub. 5/5/15 ("Ozfidan I") overturned an order for "rollover" of an IRA from husband to wife in a divorce, because §20-107.3(C) says in part, "Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property, or separate or marital debt, which is not jointly owned or owed." [Except that it may order transfer of one party's separate property in the other party's sole possession or control]
Subsection G is about dividing retirement assets. It says in part:
The 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. The court may order direct payment of such percentage of the marital share by direct assignment to a party from the employer trustee, plan administrator or other holder of the benefits. However, the court shall only direct that payment be made as such benefits are payable.
But the Court cites Broom v. Broom, 15 Va. App. 497, 505, 425 S.E.2d 90, 94 (1992) as "holding that an IRA is not a pension, profit-sharing or deferred compensation within the meaning of Code § 20-107.3(G)(1)".
Unequal division of marital property: The Court says it was not error for the trial court to say it had considered all the §20-107.3(E) factors, but only to discuss some of them in its ruling.
Although the trial court must consider all factors set out in Code § 20-107.3(E), it “need not quantify or elaborate exactly what weight was given to each of the factors” as long as its findings are “based upon credible evidence.” Taylor v. Taylor, 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988); see also, e.g., Judd v. Judd, 53 Va. App. 578, 592-93, 673 S.E.2d 913, 919 (2009). “Virginia law does not establish a presumption of equal distribution of marital assets. It is within the discretion of the court to make an equal division or to make a substantially disparate division of assets as the factors outlined in Code § 20-107.3(E) require.” Matthews v. Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998). “A circuit court, therefore, need not start off at the 50-yard line and then look to the discretionary factors of Code § 20-107.3(E) to move the ball marker up or down the sidelines.” Robbins v. Robbins, 48 Va. App. 466, 480, 632 S.E.2d 615, 622 (2006).
It was also appropriate to consider, and give great weight to, bad behavior that did not have any effect on the marital property. It was enough that "husband’s cruelty to wife caused the dissolution of the marriage and obviously detracted from the overall marital partnership."
But in the apportionment of debts, the trial court erred when it chose not to give the husband a $9,000 credit for his payment of marital debt, which the wife's closing argument had said was "fair" and "should" be done. It had also been on her ED forms. This specific limitation on what she was asking for was not negated by her original Complaint's general request for “all rights and remedies afforded by Section 20-107.3 of the Virginia Code” and “such other and further relief as the nature of this case may require.” A court cannot award a party more than she asked for, the Court says.
For this it cites Rosedale v. Rosedale, (Va. Ct. App. unpub. July 22, 2008), where a wife asked for 50% of an asset at trial but was awarded more of it; Brown v. Brown, 5 Va. App. 238, 245, 361 S.E.2d 364, 368 (1987) on "not seeking spousal support"; Carter v. Lambert, 246 Va. 309, 435 S.E.2d 403 (1993), and Johnson v. Buzzard Island Shooting Club, Inc., 232 Va. 32, 36, 348 S.E.2d 220, 222 (1986).
Waste was a significant issue in the trial, but was not appealed.
On spousal support, it was error to make no decision, thus leaving a juvenile court order, when the wife had not asked the divorce court to award alimony but the husband's pleadings had asked it to deny or limit alimony. This is discussed in more detail in our posting about the later "Ozfidan II" appeal opinion, after remand.