In a divorce battle fought by preeminent members of the Virginia trial bar, Edward D. Barnes and Ronald R. Tweel, over a Hunton & Williams partner’s 1.492 million dollar interest in his firm, among other high-stakes issues, Mr. Barnes' client, the husband-lawyer, prevails on two matters out of six. Wright v. Wright, Record No. 0947-12-2 (Va. App., February 19, 2013).
The 32-paged reported opinion subtly chides husband for raising too many issues, for arguing implausibly that fourteen (14) years of retirement contributions during the marriage are “entirely” separate property, and for seeking reversal of precedent without considering the interpanel accord doctrine. Had husband’s employer and both parties’ counsel not been so prominent, I believe that the rather mundane errors made by the trial court would have been relegated to an unreported opinion.
I will now explain the trial court's two (2) errors of law.
1. The spousal support reservation.
Wife asks for permanent alimony in her complaint. The trial court awards wife four (4) years of support plus an open-ended reservation of support thereafter.
The Court of Appeals rules that a reservation of support is always required when spousal support is before the court. The lower court erred in failing to limit the reservation to one-half the length of the marriage, as it was obligated to do pursuant to the statutory presumption and in the absence of sufficient evidence to overcome the presumption. VA Code § 20-107.1(D).
2. The definition of the marital portion of husband’s retirement.
The second error of law is again the trial judge’s failure to establish the end-point of a time period. This period of time would have closed out the definition of the marital portion of husband’s retirement. The trial judge properly recognized that the beginning point was when husband became equity partner. The defining period of time should have ended on the date of the parties’ last separation, but in the trial court’s final order there was no ending point.
Elsewhere, the Wright decision reviews the “deferred distribution [also known as the 'if and when'] method approach” to dividing a private pension, and describes how to calculate the “coverture fraction”. The opinion defines the terms “intrinsic value”, “goodwill”, “bottom-up” valuation, and “excess earnings method” before consigning the choice between battling retirement valuation experts to what this blogger whimsically calls the “oubliette” of appellate decision-making — the sound discretion of the court.