Raymond K. Covington v. Edwina A. Covington ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
RAYMOND K. COVINGTON
MEMORANDUM OPINION * BY
v. Record No. 0995-96-2 CHIEF JUDGE NORMAN K. MOON
DECEMBER 17, 1996
EDWINA A. COVINGTON
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
John M. DiJoseph (Sattler & DiJoseph, P.C.,
on brief), for appellant.
No brief or argument for appellee.
Raymond K. Covington appeals the judgment of the circuit
court deciding matters of spousal support, custody, and equitable
distribution. Appellant raises six questions: (1) whether the
trial court erred by failing to consider all the factors for
determining spousal support under Code § 20-107.1; (2) whether
the trial court erred by refusing to give appellant an ore tenus
hearing on the issue of custody; (3) whether the trial court
erred when it held that the denial of visitation was not a change
of circumstances warranting a change in custody; (4) whether the
trial court miscalculated child support under the guidelines; (5)
whether the trial court's legal analysis of the parties'
antenuptial agreement was flawed and failed to consider the
factors enumerated by Code § 20-107.3(E) in determining equitable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
distribution; and (6) whether the trial court miscalculated the
marital share of appellant's federal government pension. We find
that the trial court did not err in its disposition of these
matters, and accordingly, we affirm the decision of the trial
court.
The parties were married on November 10, 1980. The parties
entered an antenuptial agreement dated November 12, 1980, wherein
appellee relinquished all rights in appellant's real estate in
exchange for $6,000, or one-third of the value of the real
estate, whichever was greater, at the time of appellant's death.
Appellee left the marital abode on April 2, 1993, after a
prolonged period of disagreement between the parties. Judgment
of the Circuit Court of Spotsylvania County was entered April 15,
1996, granting appellee a no-fault divorce, granting appellee
custody of the parties' two children, Edwina, age ten, and Rae-
Ann, age nine, determining equitable distribution of marital
assets, and awarding spousal and child support.
Several pieces of property were acquired during the
marriage. In 1980, appellant acquired three parcels totalling
about eight acres near Thornburg in Spotsylvania County
("Thornburg property"). Appellant contends that the property was
acquired with his income earned prior to the parties' marriage.
On January 22, 1993, shortly before the parties separated,
appellant created a trust (the "CQ Trust") benefitting the
parties' children and transferred the Thornburg property to the
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trust. Appellant, appellant's brother and a friend were named as
trustees. The property was valued at $28,800 and was not
encumbered.
In 1981, appellant purchased a house on Clay Street in the
District of Columbia ("Clay Street property"). The home served
as the parties' marital abode until they relocated to
Spotsylvania County. The property was sold in 1989.
On April 20, 1983, appellant bought a duplex in Rochester,
New York for $5,500 titled in his name. The home was in need of
much repair at the time of purchase and was repaired by members
of appellant's family. The home was purchased for appellant's
parents and was titled in appellant's name because at the time
appellant's mother's credit was "overextended." Appellant
asserts that the home was purchased with non-marital funds
supplemented by funds of appellant's mother. The property was
later sold.
In October, 1983, the parties jointly acquired a parcel in
Glenn Hill Subdivision in Camp Springs, Maryland ("Camp Springs
property"). The property was sold in 1990 to Mr. Covington's
brother for the $67,451 balance of the mortgage. The property
was valued at $118,000.
In 1987, appellant purchased a townhouse in Bragg Hill,
located in Fredericksburg ("Bragg Hill property"). Appellant
asserts that his family provided most of the purchase price.
Appellee contends that she made a substantial monetary
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contribution. On January 22, 1993, shortly before the parties'
separation, appellant transferred the property to the CQ Trust.
The property was valued at $30,400. It is not clear what the
balance was on the deed of trust, however, the balance was
$25,500 at the time appellant purchased the property.
On January 12, 1987, the parties purchased a home on Noel
Drive in Arrington Heights Subdivision in Spotsylvania County
("Noel Drive property"). This residence served as the marital
abode until the parties' separation on April 2, 1993.
Subsequently, the property went to foreclosure and was sold at
auction on December 3, 1993.
In 1988, the parties purchased a lot next to the Noel Drive
property. The lot was valued at $16,000 and was not encumbered.
In addition to the real property assets, the marital estate
also included appellant's government retirement. Appellant was
employed by the United States Patent and Trademark Office
beginning in 1974. The court calculated the marital share as
thirteen years over appellant's total years of service. Appellee
withdrew her retirement benefits during the course of the
marriage and consequently was not the beneficiary of a retirement
fund.
The parties' liabilities include appellee's medical and
legal bills totalling $22,000 and appellant's income tax
liability for 1990, 1991, and 1992 totalling more than $52,000.
Spousal Support
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Code § 20-107.1 delineates the specific factors to be
considered by the trial court in determining spousal support.
Appellant's assertion that the trial court failed to consider
these factors is contradicted by the record. The trial court's
cognizance of the statutory factors is evidenced by the court's
statement that "[c]onsidering all the factors enumerated in
§ 20-107.1, including the monetary award, the court is of the
opinion that . . . ." Appellant properly argues that mere
recitation that the factors have been considered is insufficient.
However, the record indicates that the trial court heard and
considered evidence addressing the factors and weighed them in
making its final award.
Contrary to appellant's apparent belief that the trial court
did not give proper consideration to appellee's ability to work,
the trial court specifically observed that "[appellant] appears
to be in good health. [Appellee] suffers from several medical
conditions, including diabetes and asthma. Her disability is
obvious. Thus, her work history and earnings records are of
marginal relevance at this point." While appellant may disagree
with the weight the trial court has accorded the evidence
regarding appellee's health, the record nonetheless indicates the
court's clear consideration of the matter.
Similarly, appellant argues that "the court failed to give
due weight to the huge tax bill of about $52,000, that
[appellant] owes." The court's opinion observes that "[t]he
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parties' liabilities that have been particularized for the court
are [appellee's] medical and legal bills . . . totalling about
$22,000.00, and an income tax liability of [appellant's] for
1990, 1991, and 1992 amounting to more than $52,000.00." Again,
the trial court's opinion clearly evidences consideration of the
factor. The court is under no obligation to give more or less
weight to this factor, and appellant's belief that the matter
should have been accorded more weight does not constitute grounds
on which this Court may interfere with the findings of the trial
court. Nor does the fact that the trial court did not proceed to
discuss each of the remaining factors enumerated by Code
§ 20-107.1 individually require a finding of error. Provided the
record indicates the court's consideration of these factors, as
is the case here, the trial court need not disclose the totality
of its considerations nor must it address each factor point by
point in its opinion.
Ore Tenus Hearing
Appellant accurately asserts that it is well established
that "[t]he trial court's decision, when based upon an ore tenus
hearing, is entitled to great weight and will not be disturbed
unless plainly wrong or without evidence to support it." Venable
v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).
However, this holding does not stand for the proposition that an
ore tenus hearing is required. It is within the discretion of
the trial court to take evidence in such a manner. The court's
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decision not to do so does not, as a matter of law, require
reversal of the trial court's decision.
It is also worth noting that appellant's claim that the
trial court erred, even if a meritorious claim, was not properly
preserved for consideration on appeal. As noted in the trial
court's thorough letter opinion which, in relevant part,
addressed appellant's exception to the method in which evidence
was taken, it was appellee, not appellant, who originally
requested an ore tenus hearing. Here, it is appellant that
objects to the fact that an ore tenus hearing was not held.
However, it was the parties' decision not to pursue such a
hearing. The trial court offered the parties the option of
having the matter referred to a commissioner in chancery or, if
the parties wished, of taking evidence by deposition. (Letter
Opinion from J. William H. Ledbetter, Jr. to Thomas Y. Savage,
Esq. and Nicholas A. Pampas, Esq., of 10/27/95, trial court
record at 329-330). Neither party ever submitted a sketch decree
of reference or otherwise informed the court that they wished to
have a commissioner appointed to receive evidence and
consequently, the trial court reached the logical conclusion that
the parties had decided to take evidence by deposition. Id. at
330.
In addition to relying on the parties' apparent preferences
with regard to this matter, the trial court's action in this
matter also reflects the fact the trial court was familiar with
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the parties. The trial court explained, noting that:
Finally, it should be noted that [the
parties] are not strangers to the court.
They have appeared and testified at ore tenus
hearings, so that the court has observed
their demeanor and has had occasion to
determine their credibility and to weigh
their testimony. Much of what is contained
in the depositions is a restatement, with
more detail and elaboration, of previous
testimony heard by the court. The court has
carefully reviewed the transcribed testimony
and the exhibits, and under the circumstances
of this case, has been able to give full and
fair consideration to the evidence.
Id.
The trial court acted within its sound discretion in taking
evidence and fairly relied on the preferences of the parties in
proceeding. Accordingly, we find the trial court did not err by
not conducting an ore tenus hearing.
Denial of Visitation
Appellant asserts that the court erred by holding that the
denial of visitation by appellee did not constitute a material
change in circumstances warranting a change in custody.
Appellant has misstated the court's holding. The court did not
decide it was not a change of circumstances; it decided that
"[appellant's] assertions about visitation are not, under the
circumstances, sufficient to justify change of custody even
giving due deference to all of his complaints."
The trial court's opinion clearly indicates the additional
circumstances it considered and which it found warranted
appellee's continued custody. The trial court indicated that the
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parties' children, ages ten and nine, had lived with appellee all
their lives, that appellee has been their primary caretaker, and
that appellee continues to reside in the Fredericksburg community
in which the children have grown up, whereas appellant has
relocated to Fort Washington, Maryland. In light of these
circumstances and considering all the factors enumerated by Code
§ 20-124.3, the trial court properly found that the best
interests of the children were served by continuing custody with
appellant.
Child Support Calculations
Appellant argues that in calculating child support, the
trial court did not give sufficient weight to appellant's ability
to pay and appellee's ability to work, factors prescribed under
Code § 20-108.1(B)(11).
Had the trial court failed to consider these factors, this
would constitute error. Hiner v. Hadeed, 15 Va. App. 575, 578,
425 S.E.2d 811, 813 (1993). However, the record indicates that
the court gave consideration to these factors. The relative
weight accorded these factors is based on the evidence presented
to the trial court and is determined in the court's ultimate
discretion. Here the trial court concluded, "[c]onsidering the
factors enumerated in § 20-108.1, and with special consideration
of the statutory guidelines in § 20-108.2, . . . that [appellant]
should pay $950 per month as child support, the presumptive
amount . . . ." This amount constituted a reduction in
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appellant's prior support obligations.
Contrary to appellant's assertions, this reduction was made
in light of the trial court's recognition of appellant's
diminished capacity to pay. The trial court specifically stated
in its letter opinion that "[t]he diminution from previous
support orders is based on the significant tax indebtedness owed
by [appellant] and the money now being received by [appellee]
from Social Security for the children."
Likewise, with regard to the appellant's argument that the
court did not give proper weight to the ability of appellee to
work, the record clearly indicates the court considered this
factor. The trial court specifically observed that "[appellant]
appears to be in good health. [Appellee] suffers from several
medical conditions, including diabetes and asthma. Her
disability is obvious. Thus, her work history and earnings
records are of marginal relevance at this point."
Finding that the statutorily prescribed factors were
considered by the trial court in reaching its decision, we find
no error and again reiterate that the weight accorded the
evidence by the trial court is soundly within the discretion of
the court.
Antenuptial Agreement and Equitable Distribution
Prior to July 1, 1986, the validity of antenuptial
agreements was governed by conditions set forth in Batleman v.
Rubin, 199 Va. 156, 158, 98 S.E.2d 519, 521 (1957). By the
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enactment of the Virginia Premarital Agreement Act (Act),
effective July 1, 1986, execution of such contracts has been
given legislative approval within the limits set forth therein.
Batleman provided that:
To render an ante-nuptial agreement valid,
there must be a fair and reasonable provision
therein for the wife, or--in the absence of
such provision--there must be full and frank
disclosure to her of the husband's worth
before she signs the agreement, and she must
sign freely and voluntarily, on competent
independent advice, and with full knowledge
of her rights.
199 Va. at 158, 98 S.E.2d at 521 (citation omitted). Here, the
record supports the conclusion that the agreement is valid.
At issue, however, is the trial court's interpretation of
the agreement as being limited to only the Thornburg property and
further, being limited only to relinquishment of property rights
at the time of appellant's death. Antenuptial agreements are
subject to the same rules of construction and interpretation as
other contracts. Moore v. Gillis, 239 Va. 657, 662, 391 S.E.2d
255, 257 (1990). 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. Moore, 239 Va. at 662, 391 S.E.2d at 257.
In the agreement entered into by the parties, appellee
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relinquishes all interest in appellant's real estate in exchange
for payment of $6,000, or one-third of the value of the real
estate, whichever is greater, upon the death of appellant. The
payment is to be in lieu of dower and is to be paid on
appellant's death. The trial court has determined, and we agree,
that the "plain reading of the express language of the agreement
shows that it is limited to relinquishment of property rights by
[appellee] upon death of [appellant] . . . the agreement does not
address relinquishment of marital property rights upon the
breakup of the marriage."
"Where, as here, the intention of the parties has been
stated plainly, a court may not fashion a different agreement for
them under the guise of contract interpretation." Moore, 239 Va.
at 662, 391 S.E.2d at 257. Accordingly, we find that the trial
court properly determined that the parties' antenuptial agreement
has no effect on equitable distribution of the marital estate.
Having concluded that the trial court properly addressed the
antenuptial agreement, we conclude that the trial court
appropriately considered the prescribed factors enumerated in
Code § 20-107.3(E).
Marital Share of Appellant's Federal Government Pension
Code § 20-107.3(G) provides that no marital award of pension
benefits "shall exceed fifty percent of the marital share of the
cash benefits actually received . . . ." "Marital share" is
defined in that section as "that portion of the total interest,
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the right to which was earned during the marriage and before the
last separation of the parties . . . ." This provision is
mandatory and can be implemented through the use of a simple
formula. "The number of years that the spouse was in the pension
plan while in the marriage serves as the numerator and the total
number of years in the pension plan serves as the denominator.
This fraction establishes the marital share of the pension as
defined by the statute." Mosley v. Mosley, 19 Va. App. 192, 198,
450 S.E.2d 161, 165 (1994). This fraction is in turn to be
multiplied by the percentage of the marital share awarded to the
spouse, which may not exceed fifty percent of the marital amount.
Id. This formula serves to diminish the percentage of a
wife's/husband's pension the spouse will receive as
wife's/husband's employment continues and retains the fifty
percent of the marital share limitation.
Here, the court has properly employed this formula in
calculating the marital share and the appellee's benefit given
the court's award of thirty-three percent of appellant's pension
to appellee. Accordingly, we find the court did not err in
calculating the marital share.
Affirmed.
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