John E. Clark v. Linda J. Clark ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
JOHN E. CLARK
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0827-99-2 JUDGE JAMES W. BENTON, JR.
JUNE 27, 2000
LINDA J. CLARK
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Christopher L. Perkins (L. B. Cann, III;
LeClair Ryan, on briefs), for appellant.
Ronald S. Evans (Brenner, Dohnal, Evans &
Yoffy, P.C., on brief), for appellee.
John E. Clark appeals the final order granting equitable
distribution of his marital estate and other relief. He
contends that the trial judge erred by (1) awarding Linda J.
Clark, the wife, eighty-five percent of the marital assets,
(2) failing to classify the parties' furniture and other
household items as either marital or separate property, (3)
classifying an automobile as the wife's separate property, and
(4) finding that the wife was entitled to a judgment against the
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
husband for a child support arrearage. The wife contends on
cross-appeal that the trial judge erred by (1) classifying the
stipulated increase in value of CM&H Lumber Company, Inc. as the
husband's separate property, (2) failing to accept the
commissioner's recommendation that the wife be awarded spousal
support, and (3) failing to accept the commissioner's
recommendation that the wife be awarded attorney's fees and
costs. We affirm, in part, and reverse, in part, the judgment.
I.
The husband failed to preserve for appeal several issues.
Rule 5A:18 provides that "[n]o ruling of the trial court . . .
will be considered as a basis for reversal unless the objection
was stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." As we have repeatedly
ruled, "[t]he purpose of Rule 5A:18 is to provide the trial
[judge] with the opportunity to remedy any error so that an
appeal is not necessary." Knight v. Commonwealth, 18 Va. App.
207, 216, 443 S.E.2d 165, 170 (1994); see also Lee v. Lee, 12
Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
The husband contends the trial judge failed to classify the
parties' furniture and other property. In his fifth exception
to the Commissioner's Report, the husband objected as follows:
V. Marital Property Contributions -
Monetary and Non-Monetary. The Commissioner
finds on Page 5, Paragraph v, of the Report
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that the Wife provided the greater portion
of the care and maintenance of the marital
property. However, in the transcripts, the
evidence clearly shows that not to be true.
This exception clearly does not preserve the husband's objection
to the trial judge's failure to classify the marital property.
It does not address that issue, and no other objection in the
record addresses the issue of classification.
The husband also contends that the trial judge erred in
classifying a 1994 Chrysler New Yorker automobile as the wife's
separate property. The record again fails to establish that he
objected. The husband's second and seventh exceptions to the
commissioner's report read as follows:
II. Separate Property. We take exception
with the Commissioner's finding on page 4 of
said Report that he should pay for her bar
debt. "This is her separate property and
debt," according to the findings of the
Commissioner; therefore, she is responsible
for said debt.
VII. Personal Expenditures. We except to
the fact that the husband purchased personal
items such as expensive clothing and
vehicles. It was the standard of living
which the parties had grown accustomed
during the marriage to spend on such items;
therefore, he should not be penalized for
same.
Nothing in these exceptions, on which the husband relies,
supports his claim that he objected to the trial judge's
determination that the automobile was the wife's separate
property.
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The husband further contends that his trial counsel
preserved the objection to both assignments of error when she
signed the Final Order, "Seen and Objected To." Such an
objection "'does not preserve an issue for appeal unless the
record further reveals that the issue was properly raised for
consideration by the trial court.'" Konefal v. Konefal, 18 Va.
App. 612, 615, 446 S.E.2d 153, 153 (1994) (citation omitted).
Moreover, the husband did not timely file the transcript of the
hearing at which he argued the exceptions to the commissioner's
report.
The record, therefore, provides no indication that the
husband raised either of these issues in the trial court. Upon
our review, we find no reason in the record to invoke the good
cause or ends of justice exceptions to Rule 5A:18.
"[T]he ends of justice exception is narrow
and is to be used sparingly. . . ." "[I]t
is a rare case in which, rather than invoke
Rule [5A:18], we rely upon the exception and
consider an assignment of error not
preserved at trial. . . ." In order to
avail oneself of the exception, a defendant
must affirmatively show that a miscarriage
of justice has occurred, not that a
miscarriage of justice might have occurred.
The trial error must be "clear, substantial
and material."
Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269,
272 (1997) (emphasis in original) (citations omitted). The
record does not establish that a miscarriage of justice
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occurred; therefore, Rule 5A:18 bars our consideration of issues
two and three on appeal.
II.
The husband contends that the trial judge's decision to
award the wife eighty-five percent of the marital assets was
unsupported by the evidence. In our review, we are guided by
the principle that "[u]nless it appears from the record that the
[trial judge] 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, the
[trial judge's] equitable distribution award will not be
reversed on appeal." Smoot v. Smoot, 233 Va. 435, 443, 357
S.E.2d 728, 732 (1987). On appeal, we construe the evidence in
the light most favorable to the wife, the prevailing party
below, granting to that evidence all reasonable inferences
fairly deducible therefrom. See Donnell v. Donnell, 20 Va. App.
37, 39, 455 S.E.2d 256, 257 (1995).
The commissioner found that the parties' "monetary
contributions to the well-being of the family were nearly
equal." The evidence, however, does not support that finding.
At the beginning of their twenty-six year marriage, the
wife's salary was substantially equal to the husband's. In the
early 1990's, however, that changed significantly. In 1998, the
wife earned $26,500, the most she's earned in any year. The
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evidence indicated that the husband, on the other hand, earned
$262,100 in 1993, $217,700 in 1994, and $125,000 in 1995.
Although the wife paid half of the mortgage until 1989,
after that time, the husband paid the entire amount of the
mortgage. Moreover, the husband paid for all of the furniture
and expensive items, such as window treatments, for each of
their residences. The husband also paid for all of their
child's clothes, the entire electric bill, and weekend meals in
restaurants. The wife on the other hand, paid for the less
expensive home decorations, contributed to the telephone and
water bills, and, when their child was young, paid half the
child care bill.
In finding that the monetary contributions of the parties
were nearly equal, the commissioner focused on the perceived
negative impact the husband's lifestyle had on the family's
well-being. The commissioner found that the husband spent
excessively on personal items such as clothes and expensive
automobiles. He also found that, in spite of several years of
earning significant income, the husband did nothing to secure
the family's financial future. We have clearly held, however,
that "at least until the parties contemplate divorce, each is
free to spend marital funds." Booth v. Booth, 7 Va. App. 22,
27, 371 S.E.2d 569, 572 (1988).
In recommending that the husband receive only fifteen
percent of the marital assets, the trial judge focused primarily
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on the husband's spendings during the marriage. It is not
clear, however, "how the [trial judge or the commissioner]
arrived at an award of fifteen percent." Artis v. Artis, 4 Va.
App. 132, 137, 354 S.E.2d 812, 815 (1987). Nothing in the
record explains why the trial judge thought it was necessary to
make such a disproportionate division of the assets. The
commissioner found that the wife contributed more in terms of
non-monetary contributions to the well-being of the family.
Regardless of this finding, however, the respective
contributions of the parties do not justify a finding that the
marital assets should be split eighty-five percent in favor of
the wife and fifteen percent in favor of the husband. Although
"[t]he Virginia General Assembly has not adopted a statutory
presumption of equal distribution," Papuchis v. Papuchis, 2 Va.
App. 130, 132, 341 S.E.2d 829, 830 (1986), the distribution must
be based on a reasoned examination of the evidence. "[W]hen the
[trial judge] fails to state any basis for reaching a given
conclusion, the appellate court is hindered in its review."
Artis, 4 Va. App. at 137, 354 S.E.2d at 815.
"Equitable distribution in Virginia, as codified in Code
§ 20-107.3, 'is predicated on the philosophy that marriage
represents an economic partnership requiring that upon
dissolution each partner should receive a fair proportion of the
property accumulated during marriage.'" Matthews v. Matthews,
26 Va. App. 638, 648, 496 S.E.2d 126, 130 (1998) (quoting Roane
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v. Roane, 12 Va. App. 989, 994, 407 S.E.2d 698, 701 (1991)).
Our other cases and the record in this case do not indicate that
the husband's spending during the marriage was so severe as to
justify such a disproportionate distribution. See, e.g., L.C.S.
v. S.A.S., 19 Va. App. 709, 720, 453 S.E.2d 580, 586 (1995)
(where the husband's extraordinarily egregious criminal conduct
did not result in awarding the wife a greater proportion of the
marital assets).
We will not simply assume, in every
instance, that the trial court has followed
this settled law in [ruling as to the
property of the parties], particularly when
it appears that one or more factors is
difficult to reconcile with the award or the
award is inexplicable based on the facts,
when we are required to review on appeal an
issue arising under [Code § 20-107.3]. We
must be able to determine from the record
that the trial court has given substantive
consideration to the evidence as it relates
to the provisions of this Code section.
Trivett v. Trivett, 7 Va. App. 148, 153, 371 S.E.2d 560, 563
(1988). We hold that the record fails to support this
disproportionate award in favor of the wife.
III.
The husband also contends that the trial judge erred in
finding he owed the wife a child support arrearage. Although
the husband did not preserve the objection for appeal, because
the record contains no evidence that a child support order was
ever entered in this case, the ends of justice require that we
address the issue. See 5A:18.
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The following colloquy between the trial judge, the wife's
counsel, and the husband's counsel indicates that there appeared
to be a great deal of confusion concerning whether an arrearage
existed and if so, whether it was for spousal or child support.
[WIFE'S COUNSEL]: Very well, sir, I will.
But I would ask the court, at the present
time he's paying no child support. He's
paying nothing.
THE COURT: Yes, but he's ordered to pay his
arrearage on the child support.
[HUSBAND'S COUNSEL]: And we'll --
[WIFE'S COUNSEL]: But the arrearage of
$23,000 that the court had previously
ordered?
[HUSBAND'S COUNSEL]: Yes.
[WIFE'S COUNSEL]: I understand that. But
at the present time, he's paying nothing.
No child support for the child. He's in her
primary physical custody. He's paying
nothing.
THE COURT: And I rule he doesn't have to
pay the mortgage.
[WIFE'S COUNSEL]: I understand that.
[HUSBAND'S COUNSEL]: So he needs to start
paying the child support right now.
THE COURT: Yes.
* * * * * * *
[WIFE'S COUNSEL]: There is no order
specifically for child support.
THE COURT: Well, go back to what he was
making to when he was having a salary, set
the child support at that figure and enter
an order.
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Upon the wife's motion for pendente lite support, the trial
judge ordered on February 6, 1997, that the husband continue to
pay the monthly mortgage payments and pay the wife $300 a week
as temporary spousal support. Although the commissioner did not
recommend an award of child support, the trial judge granted the
wife a "judgment against the [husband] in the amount of $23,900
as a child support arrearage through February 19, 1999." The
record does not indicate that the husband was in arrears on the
mortgage payments. Indeed, the trial judge found "that [the
husband] doesn't owe any arrearage in the mortgage."
The trial judge offered no support for his finding that a
child support arrearage exists. Indeed, the wife's counsel,
when asking for child support on February 4, 1999, confirmed
that "[t]here is no order specifically for child support." As
we earlier stated, "when the [trial judge] fails to state any
basis for reaching a given conclusion, the appellate court is
hindered in its review. 'Aside from obvious defects which may
be revealed when only the end product of deliberation is
announced, the [trial judge] who fails to provide at least some
of the steps in his thought process leaves himself open to the
contention that he did not in fact consider the required
factors.'" Artis, 4 Va. App. at 137, 354 S.E.2d at 815(citation omitted).
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The husband does not dispute that on February 4, 1999, the
trial judge ruled that he no longer had to pay the mortgage and
on March 18, 1999, ordered that the husband begin paying child
support. He argues, however, that because he complied with the
pendente lite order concerning the mortgage, the trial judge's
finding of an arrearage is erroneous. We agree that the record
does not support the finding.
IV.
On cross-appeal, the wife contends that the trial judge
erred in classifying the stipulated increase in value of CM&H
Lumber Company, Inc., as the husband's separate property. The
husband received his shares of stock in the company from his
father by gift. Although the parties stipulated that the
increase in the value of the property was $180,000, "[t]he
increase in value of separate property during the marriage is
separate property, unless marital property or the personal
efforts of either party have contributed to such increases and
then only to the extent of the increases in value attributable
to such contributions." Code § 20-107.3(A)(1). To overcome the
presumption that the company was the husband's separate
property, the wife bore the burden of proving that "the personal
efforts [of the husband] have contributed to such increases,
. . . [and] any such personal efforts must be significant and
result in substantial appreciation of the property." Code
§ 20-107.3(E)(2). The wife's evidence did not prove that the
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husband's efforts were significant or that they resulted in a
substantial increase.
Although the wife testified that the husband worked Monday
through Friday from 5:30 a.m. to 7:30 p.m. and most of the day
on Saturdays, she presented no other evidence concerning his
efforts at the company. No evidence proved that the husband
increased the company's customer base or expanded the business
in any way. Moreover, the evidence concerning the value of the
business proved that the increase in the value of the business
from the date of the husband's acquisition to approximately six
years later, on the date of the hearing, was $180,000. The
commissioner found that the increase in the business averaged
only five percent each year and did not find that to be a
substantial increase. Thus, the trial judge's finding was not
clearly erroneous or without evidence to support it.
V.
The wife also contends that the trial judge erred in not
accepting the commissioner's recommendation that she be awarded
$1,800 per month in spousal support. The decision to award
spousal support includes the consideration of the marital
property under the equitable distribution statute. Code
§ 20-107.1(8) provides that "[i]f the court determines that an
award should be made, it shall, in determining the amount,
consider . . . the provisions made with regard to the marital
property under § 20-107.3." Rowe v. Rowe, 24 Va. App. 123, 138,
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480 S.E.2d 760, 767 (1997). Because we are remanding the
equitable distribution award, the issue of spousal support must
necessarily be remanded for reconsideration.
VI.
Finally, the wife contends that the trial judge erred in
not accepting the recommendation of the commissioner that she be
awarded $9,783.12 in attorney's fees and costs. "An award of
attorney fees is a matter submitted to the trial [judge's] sound
discretion and is reviewable on appeal only for an abuse of
discretion." Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d
554, 558 (1987). The trial judge must consider "the
circumstances of the parties," Barnes v. Barnes, 16 Va. App. 98,
106, 428 S.E.2d 294, 300 (1993), and the "equities of the entire
case." Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643
(1989). The record fails to establish that the trial judge
abused his discretion in finding that the husband does not have
the means to give "anything else at this time."
For these reasons, the judgment is affirmed, in part,
reversed, in part, and remanded.
Affirmed, in part,
reversed, in part,
and remanded.
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