John T. Wheaton v. Vicki W. Wheaton ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
JOHN T. WHEATON
MEMORANDUM OPINION * BY
v. Record No. 1323-96-3 CHIEF JUDGE NORMAN K. MOON
APRIL 15, 1997
VICKI W. WHEATON
FROM THE CIRCUIT COURT OF NELSON COUNTY
J. Samuel Johnston, Jr., Judge
Richard L. Locke (Dana J. Finberg; Mezzullo &
McCandlish, on briefs), for appellant.
Ronald R. Tweel; William C. Scott, IV
(Michie, Hamlett, Lowry, Rasmunseen & Tweel,
P.C., on brief), for appellee.
John T. Wheaton ("husband") appeals the decision of the
trial court deciding matters of spousal and child support.
Husband contends the trial court erred in: (1) replacing
husband's periodic support obligation with a lump sum spousal
support obligation; (2) awarding a lump sum spousal support award
of $84,000 after having determined that husband's gross annual
income was $23,000; (3) increasing child support to an award
three times greater than the presumptive award amount as
determined under Code § 20-108.2 after having determined that
husband's annual income in September, 1995 had fallen from
$235,000 to $23,000; (4) requiring husband to pay a portion of
his children's private school tuition despite husband's request
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that his children not attend private school; (5) refusing to
impute income to Vicki W. Wheaton ("wife"); and (6) adding
language to its final order stating that the $100,000 lump
support obligation outlined in the parties' separation agreement
was "vested" and "accrued."
We hold that: (1) husband failed to object to the trial
court's award of a lump sum payment and, therefore, Rule 5A:18
bars consideration of this issue; (2) the trial court's award of
$84,000 in spousal support was supported by evidence of husband's
earning capacity and the earning potential of his stock assets;
(3) the record contained evidence sufficient to support the trial
court's award of child support payments three times greater than
the presumptive amount, however, the trial court erred in not
making written findings supporting its deviation from the
presumptive amount; (4) the evidence was sufficient to support
the trial court's order that husband pay support in order that
his children remain in private school, however as such payment
constituted an upward deviation in support, the court erred in
failing to provide written findings supporting such deviation;
(5) the trial court did not abuse its discretion in refusing to
impute income to wife because the evidence presented by husband
was insufficient to enable the trial court to reasonably project
wife's income; and (6) the trial court erred in adding language
to its order indicating that the lump sum award provided by the
parties' separation agreement was "vested" and "accrued."
Husband and wife were married on July 22, 1977. The parties
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had two children before their separation in April, 1989. The
parties entered into a separation agreement on March 17, 1992,
and were divorced on March 31, 1992. The final decree of divorce
adopted and incorporated the parties' separation agreement which
provided that between 1992 and 1994 husband was to pay wife a
total of $267,000. Husband was also required to pay wife $2,800
in monthly spousal support and $2,000 in monthly child support.
Section 9(b) of the separation agreement provided that husband
was to make a final lump sum support payment to wife in 2003 of
$100,000.
At the time of the parties' divorce in 1992, wife, a
licensed nurse, was not employed and had not worked since 1987.
Husband's income at the time of divorce was $185,000, derived
from dividends he received from Wheaton, Inc., a family held
corporation, of which husband owned 178,000 shares of stock. 1 In
August, 1995, Wheaton announced it would reduce dividends by
fifty percent because of significant deterioration in Wheaton,
Inc.'s financial position. Wheaton also reduced director
salaries to $22,500.
Husband determined that the reduction in his dividends and
salary would leave him with an annual income of $23,000. On
September 12, 1995, husband petitioned the trial court to modify
1
In 1994, husband's income was $215,000, reflecting an
increase in Wheaton dividends. In June, 1995, husband reported
expecting an income of $235,000 for 1995, reflecting payment of a
$25,000 salary to husband for serving as a member of Wheaton's
board of directors.
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his spousal and child support obligations in light of his changed
circumstances. During the hearings on husband's motion to
modify, husband presented evidence of his reduced dividend income
and salary reduction. Husband also introduced testimony from
Gail Austin, a health care placement professional, who testified
that wife could work in the Charlottesville metropolitan area as
a licensed professional nurse, a position for which wife was
credentialed, earning between $26,000 and $37,900.
The trial court granted husband's motion to reduce spousal
and child support and determined that husband's income was
$23,000 and that husband should not seek other employment because
of the nature of his current employment. The court found that
pursuant to Code § 20-108.2 child support should be $912 from
June 1, 1995 through and including September 30, 1995, when
husband's stock dividends ceased entirely. The court found that
from October 1, 1995, the presumptively correct amount of child
support was $314.38. Having made these determinations, the trial
court, without written explanation, deviated upward from the
guidelines, ordering child support in the amount of $1,000 from
October 1, 1995.
The trial court also ordered that husband pay the following
expenses: (1) one-half of the private school tuition of the
parties' minor children for the second semester of the school
year which began in the fall of 1995, totalling $3,000; (2)
wife's attorney's fees in the amount of $15,000; (3) a lump sum
spousal support payment of $84,000; and (4) child support of $912
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per month from June 1, 1995 through September, 1995.
Periodic/Lump Sum Award
In granting husband's spousal and child support modification
petition, the trial court eliminated husband's obligation to pay
$2,800 in monthly spousal support and instead ordered husband to
make an $84,000 lump sum support payment to wife. Husband's
argument that the trial court "exceeded its authority" by
converting the periodic support award to a lump sum award is
raised for the first time on appeal. Further, husband's counsel
specifically invited the trial court to make a lump sum award,
arguing that husband "would like the Court to do a lump sum award
so that -- and with no reservations of spousal support, so he's
through with that issue. And I think the statute allows that.
You can clearly do a lump sum award." (Emphasis added). Rule
5A:18 provides that "[n]o ruling of the trial court . . . will be
considered as a basis for appeal unless the objection was stated
together with the grounds therefor at the time of the ruling
. . . ." McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460
S.E.2d 624, 626 (1995) (en banc). Having failed to properly
raise the issue at trial, and in fact, having invited the error
now alleged, Rule 5A:18 bars husband from raising this argument
now except for good cause shown or to meet the ends of justice.
Because the record does not show any obvious miscarriage of
justice, neither the ends of justice nor good cause permit waiver
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of the Rule 5A:18 bar. Commonwealth v. Mounce, 4 Va. App. 433,
436, 357 S.E.2d 742, 744 (1987).
Amount of Lump Sum Award
While a trial court may not order spousal support that
exceeds the capacity of the payor spouse to pay, Payne v. Payne,
5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987), the court must
consider all of the factors in Code § 20-107.1 including "the
property interests of the parties." The husband's property
interests in this case are sufficiently significant to outweigh
other factors such as his current level of income.
Here, ample evidence was introduced to support the trial
court's finding that husband could make the $84,000 lump sum
support payment. At the time of the hearing, husband possessed
178,000 shares of Wheaton, Inc. stock. Husband represented to
the court that the value of these shares was approximately five
dollars a share, totaling roughly $893,370, and that the shares
were not a liquid asset. However, on cross-examination husband
stated that his shares had been valued at $41.50 a share in
December, 1991. Further, husband's expert witness testified that
the value of the stock in December, 1991, based on the evidence
before the trial court, was between $31 and $25 per share,
2
totalling $4,450,000 at the $25 per share value. This evidence
2
Within one month of the trial court's final order, husband
sold his Wheaton, Inc. shares for $63 a share, grossing
$11,256,462.
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of husband's assets was sufficient to support the trial court's
finding that husband could pay wife a lump sum support payment of
$84,000.
Child Support
As is the case with determining spousal support, in
determining child support, the trial court must consider each
parent's "[e]arning capacity, obligations and needs, and
financial resources." Code § 20-108.1(B)(11). Here, the
evidence of husband's stock assets, discussed above, was
sufficient to sustain the trial court's award of child support in
an amount three times greater than the presumptive amount.
However, Code § 20-108.1(B) expressly provides that when a
trial court deviates from the presumptive amount "it must provide
written findings of fact that ``shall give a justification of why
the order varies from the guidelines.'" Solomond v. Ball, 22 Va.
App. 385, 391, 470 S.E.2d 157, 160 (1996) (citations omitted).
Here, the trial court offered no written explanation for its
deviation. Accordingly we remand for redetermination of child
support, with any deviation to be accompanied by the statutorily
required written findings.
On June 3, 1996, wife petitioned us to allow the trial court
to reconsider the child support award while this case was on
appeal. We declined to do so; however, when this matter returns
to the trial court, the child support amount should be
reconsidered and if deviation from the guidelines is justified,
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then the reasons therefor should be stated in writing for the
period from the date of the judgment appealed from to June 3,
1996, the date the said petition was filed in this Court. A new
hearing shall be conducted on the amount concerning child support
retroactive to June 3, 1996.
Payment of Private School Tuition
In Solomond, we delineated factors to be considered by a
trial court in determining whether a noncustodial parent should
be required to pay support to provide for a child's private
educational expenses. These factors include "the availability of
satisfactory public schools, the child's attendance at private
school prior to the separation and divorce, the child's special
emotional or physical needs, religious training and family
tradition." 22 Va. App. at 391, 470 S.E.2d at 160.
Here, the parties' children had attended private schools
during the entirety of their parents' marriage. Further, the
children were in the middle of a school year at the time of
husband's instruction that the children be pulled out of private
school and sent to public school. Husband's only grounds for
insisting that his children be sent to public school was
husband's personal determination that he could no longer afford
to send his children to private school. This evidence was
sufficient under our holding in Solomond to sustain the trial
court's finding that husband should pay one-half of his
children's private school tuition.
However, "implicit in the [child support] statutory scheme
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is that educational expenses are included in the presumptive
amount of child support as calculated under the Code." Smith v.
Smith, 18 Va. App. 427, 435, 444 S.E.2d 269, 275 (1994). Here,
the trial court ordered child support in excess of the
presumptive amount and then also ordered husband pay one-half of
his children's private school tuition. Even if the child support
ordered had not exceeded the presumptive amount, the requirement
that husband pay one-half of the children's tuition would
effectively result in a child support award greater than the
presumptive amount. As the trial court did not make written
findings in support of the deviation from the presumptive amount
of child support, we remand for redetermination of child support
and if required, provision of written findings.
Imputation of Income
Husband argues that the trial court erred in not imputing
income to wife for purposes of determining spousal and child
support because the evidence proves that wife is voluntarily
unemployed. A party seeking spousal support is obligated to earn
as much as he reasonably can in order to reduce the amount of
support needed. Srinivasan v. Srinivasan, 10 Va. App. 728, 734,
396 S.E.2d 675, 679 (1990). In keeping with this principle a
court may, under appropriate circumstances, impute income to a
party who seeks spousal or child support. Id. However, we have
also held that where imputation of income is proper, the evidence
must enable the trier of fact to reasonably project the amount to
be imputed. Hur v. Virginia Department of Social Services, 13
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Va. App. 54, 61, 409 S.E.2d 454, 459 (1991).
At trial, husband introduced testimony from Gail Austin, a
health care professional recruiter, who testified that wife could
work in the Charlottesville metropolitan area as a licensed
professional nurse, earning between $26,000 and $37,900.
However, Austin also stated that she had never seen wife's resume
nor interviewed her. Further, Austin testified that "the
marketplace for nurses is fairly tight at this time" and that
"[t]here are not a tremendous number of opportunities." When
asked to suggest "to a reasonable degree of certainty" what
salary wife could obtain, husband's counsel agreed with the trial
judge's observation that based on the fact that Austin had never
met or interviewed wife, there were too many variables to answer
the question.
We find the trial court did not abuse its discretion in
refusing to impute income on the basis of this limited evidence.
Austin provided generalizations about the nursing field,
suggesting a broad salary range of $26,000 to $37,900, but had no
specific knowledge of wife's qualifications for any particular
position. At the time of the hearings on these matters, wife was
forty years of age and although she had maintained her nursing
license, she had not worked since 1987. 3 No evidence was
introduced of specific job openings, the requirements for such
3
The parties' second child, Garrett Wheaton, was born on
December 1, 1987, and from that time on, wife acted as a full
time mother and homemaker.
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positions, their salaries, or the likelihood that wife would be
hired for a particular nursing position.
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Vesting of Lump Sum Award
Section 9(b) of the parties' separation agreement,
incorporated by the trial court into its final decree of divorce
dated March 31, 1992, provided that: "Husband shall pay to Wife
. . . the sum of $100,000.00 on the eleventh anniversary of the
execution of this agreement." In its order of March 22, 1996,
addressing husband's petition for modification of support, the
trial court stated that husband's "obligation for lump sum
spousal support obligation in paragraph 9(b) of the Settlement
Agreement is not effected by this order because of its vested and
accrued nature."
Separation agreements are subject to the same rules of
construction and interpretation as other contracts. Tiffany v.
Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985). It is
well established that the "plain meaning" rule is to be employed
when interpreting contracts. Appalachian Power Co. v. Greater
Lynchburg Transit Co., 236 Va. 292, 295, 374 S.E.2d 10, 12
(1988). Clear and explicit language in a contract is to be
understood in accord with its ordinary meaning, and if the
meaning is plain when read, the instrument must be given effect
accordingly. Id.
In the separation agreement entered into by the parties and
incorporated into the court's final decree of divorce, the
parties specifically reserved the right to modify husband's
payment obligations upon material and adverse change in his
financial situation:
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Should Husband's financial situation
materially change adversely the parties agree
that Husband shall have the right, at his
option, to renegotiate any and all provisions
necessitating any payment by Husband to or
for the benefit of Wife or for the infant
children of the parties.
Consequently, we hold that the trial court's finding that the
lump sum payment of $100,000 was "vested" and "accrued" was a
misinterpretation of the terms of the separation agreement.
Accordingly we remand to the trial court for removal of language
indicating that the $100,000 lump sum payment is vested and
accrued and for replacement of that language with language
consistent with the parties' separation agreement.
Affirmed in part,
reversed in part,
and remanded.
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Coleman, J., concurring in part and dissenting in part.
I join in all aspects of the majority's opinion except the
holding that the trial court did not abuse its discretion in
refusing to impute income to the wife for purposes of determining
spousal support. Considering the husband's income and the value
of his assets, the trial court did not err in awarding the wife
spousal support. However, in determining the amount of support
to which the wife is entitled, the trial court is required to
consider the wife's earning capacity. Where she voluntarily
chooses not to be gainfully employed, the court should impute to
her the amount of income that she could reasonably earn
considering her ability, training, education, age, health, and
experience as well as the nature and availability of the jobs for
which she is qualified.
Here, the majority upholds the trial court's refusal to
impute any income to the wife because the expert witness was
unable to state "to a reasonable degree of certainty the specific
salary that the wife could earn due to the many variables that
would go into that determination." However, the evidence proved
that the wife was a forty-year-old woman, in good health, trained
as a licensed practical nurse, with experience in nursing as
recent as 1987, and capable of earning between $26,000 to $37,900
in the Charlottesville area. For the trial court to refuse to
impute any income to the wife on this evidence is an abuse of
discretion, in my opinion, and I would require the court on
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remand to impute a reasonable amount of income to the wife who
voluntarily chooses to be unemployed and to make no contribution
to her own support.
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