John Stevens Norris, Jr. v. Amy Ann Norris ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
JOHN STEVENS NORRIS, JR.
MEMORANDUM OPINION * BY
v. Record No. 1742-96-1 JUDGE SAM W. COLEMAN III
AUGUST 5, 1997
AMY ANN NORRIS
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
E. Preston Grissom, Judge Designate
John Stevens Norris, Jr., pro se.
James R. McKenry (Heilig, McKenry, Fraim &
Lollar, on brief), for appellee.
In this domestic relations appeal, John Stevens Norris
(husband) contends that the trial court erred by: (1)
miscalculating the husband's gross income for purposes of child
and spousal support; (2) considering the parties' 1994 joint tax
return, which was not entered into evidence; (3) counting fee
distributions from the husband's former law firm as assets for
equitable distribution purposes and as income for support
purposes; (4) improperly valuing the husband's share in his
former law firm for equitable distribution purposes; (5)
affirming a visitation schedule in which the parties' children
spend every Christmas Eve and Christmas morning with the mother;
(6) awarding the wife spousal support; and (7) awarding the wife
attorney's fees. For the reasons that follow, we affirm the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court's decision.
DETERMINATION OF HUSBAND'S GROSS INCOME
Husband contends that the trial court miscalculated his 1994
income and, thereby, erred in calculating child support, spousal
support, and the allocation of medical and educational expenses
for the children.
"Decisions concerning both [spousal and child] support rest
within the sound discretion of the trial court and will not be
reversed on appeal unless plainly wrong or unsupported by the
evidence." Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d
875, 876 (1994).
In calculating the husband's income, the commissioner
considered the husband's income history of having earned $150,000
to $175,000 per year from 1988 through 1992, income of $144,960
for 1993, and income of $150,000 for 1994. However, the
commissioner recognized that the husband's 1993 and 1994 income
was inflated by "capital gains, rents and royalties" from his
former law firm which would not be income expected in the future.
Finding that "the husband's earning potential was greater when
he was a member of the firm of Anderson, Norris, and Geroe[,]
which is no longer in existence," the commissioner determined
that the husband's annual earnings, for purposes of computing his
support obligations, was $92,000.
In computing a party's gross income from which child support
obligations are calculated, it is necessary to include "all
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income from all sources." Code § 20-108.2(C). Although not
expressly provided by statute, in determining spousal support a
court shall consider all income of the parties. In addition, a
spouse's earning capacity shall be considered, which will be
based upon the parties' current circumstances. Code § 20-107.1;
Payne v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987).
Husband testified that, as to $120,000 of his 1994 income
from his firm expressed on the husband's W-2, $58,000 was
"phantom" income that he never received. He did not receive
$58,000 or its equivalent, but instead received a $58,000
promissory note from his law firm. The transaction at issue
consisted of a payment of $58,000 by check from the firm to
husband for income that he had earned and then a loan back to the
firm from husband for $58,000. At the time the firm did not have
sufficient funds to pay the check, thus, this was a paper
accounting transaction. The commissioner acknowledged that the
husband did not receive $58,000 in expendable funds and found
that he would not have the benefit of the funds until the firm
paid the promissory note.
We hold that the commissioner did not err by finding all or
part of the $58,000 to be earned income to the husband. The
$58,000 was income that the husband had earned, was entitled to
receive, and did receive. The fact that the husband, as sole
shareholder of the corporation, and the law firm used firm assets
for purposes other than paying the husband's salary and treated
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his earnings as a loan to the firm does not change the fact that
husband had $58,000 earned income. As with voluntary deferment
of income, the $58,000 loan from the husband to the firm was a
voluntary diversion of his funds to the corporation,
nevertheless, the commissioner properly considered it as income
to husband. See Frazer v. Frazer, 23 Va. App. 358, 378-79, 477
S.E.2d 290, 299-300 (1996).
The husband's next contention, that the commissioner based
husband's earning potential on the income he earned from his old
firm and not the newly formed firm, is without merit. The record
clearly shows that the commissioner considered the husband's
decreased earning potential with a new firm in determining his
earning capacity. In determining the husband's gross income, the
commissioner stated that "the husband's earning potential was
greater when he was a member" of a larger law firm. Moreover,
the amount that the commissioner determined to be the husband's
gross income was significantly lower than the husband's reported
taxable income for the years 1988 through 1994. Thus, upon our
review of the record, we find that the commissioner considered
the husband's change in circumstances as pertained to his
employment when the commissioner determined the husband's gross
income.
CONSIDERATION OF 1994 TAX RETURN
The husband asserts that the commissioner improperly
considered the parties' 1994 joint tax return, which included
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income from the wife's capital assets and her business pursuits.
The husband contends that the tax return was not admitted in
evidence as an exhibit, but rather, was submitted to the
commissioner ex parte.
The husband does not point to any portion of the record that
indicates the trial court relied on the 1994 income tax return.
"Statements unsupported by argument, authority, or citations to
the record do not merit appellate consideration. We will not
search the record for errors in order to interpret the
appellant's contention and correct deficiencies in a brief."
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992).
EQUITABLE DISTRIBUTION
In reviewing an equitable distribution award on appeal, we
accord the trial court's findings great deference. Accordingly,
we will not disturb the trial court's decision unless plainly
wrong or without evidence to support it. Keyser v. Keyser, 7 Va.
App. 405, 409, 374 S.E.2d 698, 701 (1988).
A. "Double Dip"
Husband contends that the trial court erred by considering
his share of the fees received from his former law firm as
intangible assets available for equitable distribution and then
considered the same funds as income for purposes of spousal and
child support.
To the extent that the collected fees were assets that the
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husband owned and had available as marital property, the trial
court did not err in considering that asset as part of the
marital estate for purposes of equitable distribution. Code
§ 20-107.3(A)(2); cf. Moreno v. Moreno, 24 Va. App. 190, 480
S.E.2d 792 (1997). Furthermore, the fees that a person earns and
collects are part of earned income and are to be considered in
determining both spousal and child support. The fact that earned
income is used as the basis for determining and paying support,
and that retained income may be an asset for equitable
distribution, does not constitute "double dipping." Equitable
distribution divides assets that have been accumulated from the
past, which may include earned income; child and spousal support
are concerned with payments from future income that is determined
or projected from past earnings and earning capacity.
B. Valuation of Husband's Interest in Former Law Firm
Husband received $37,883 in fees from his former law firm
between the date of the parties' separation and the
commissioner's hearing. He contends that the trial court erred
by considering those funds as assets for equitable distribution
purposes because he used the funds to pay for living expenses.
In the alternative, he argues that the circuit court should have
remanded the case to the commissioner to accept additional
evidence on whether the parties had agreed that the distributions
husband received from his former law firm would not be considered
for purposes of retroactive support to the wife in exchange for
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husband's abandonment of his interest in the marital assets in
wife's possession at the time of separation.
"[T]he burden is on the party who last had the funds to
establish by a preponderance of the evidence that the funds were
used for living expenses or some other proper purpose" in order
to have them removed from consideration for equitable
distribution. Clements v. Clements, 10 Va. App. 580, 587, 397
S.E.2d 257, 261 (1990). The trial court found, after reviewing
the record, that "the mortgage payments, credit line payment, and
taxes paid by Mr. Norris were paid from funds in his possession
at the time of separation and not from distributions he later
received" from his old law firm. Because this finding is
supported by the record, we will not reverse it on appeal.
As to the husband's contention that the trial court should
have remanded the issue to the commissioner for further findings
on the terms of the parties' agreement, the trial court does not
err by refusing to remand a case for additional evidence where
the parties have had a full opportunity to present evidence on an
issue. See Clements, 10 Va. App. at 586, 397 S.E.2d at 260
("Reviewing courts cannot continue to reverse and remand . . .
cases where the parties have adequate opportunity to introduce
evidence but have failed to do so.").
SPOUSAL SUPPORT
Husband contends that the trial court erred in awarding the
wife $1,000 per month in spousal support. However, the record
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proves that the trial court considered all the factors enumerated
in Code § 20-107.1 in arriving at the spousal support award and
credible evidence supports the award. Thus, we will not overturn
the spousal support award on appeal. See Steinberg v. Steinberg,
11 Va. App. 323, 329, 398 S.E.2d 507, 510 (1990).
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VISITATION
"A decision affecting visitation is left to the sound
discretion of the trial court and will not be reversed absent a
showing of an abuse of discretion." Carrico v. Blevins, 12 Va.
App. 47, 48, 402 S.E.2d 235, 236 (1991).
The commissioner recommended and the trial court found that,
in order to promote the best interests of the children, the wife
should have custody of the children every Christmas Eve and
Christmas morning so that the children could spend the holiday
with their step-sister, wife's child by a previous marriage.
Husband was awarded visitation from noon on Christmas Day until
5:00 p.m. on the day before he must next return to work.
Although alternating the custody/visitation arrangement between
the respective parents every other Christmas may arguably be
equitable, we cannot say that the trial court abused its
discretion by considering as a significant factor that the
siblings should be together on this holiday. Thus, we affirm the
trial court's decision.
ATTORNEY'S FEES
"An award of attorney's fees to a party in a divorce suit is
a matter for the exercise of the trial court's sound discretion
after consideration of the circumstances and equities of the
entire case." Ellington v. Ellington, 8 Va. App. 48, 58, 378
S.E.2d 626, 643 (1989).
The commissioner recommended that husband pay $9,890 of the
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wife's attorney's fees, which totaled approximately fifty percent
of the wife's total fees. The evidence proved that the wife was
entitled to spousal support and maintenance and that the husband
was financially able to meet those needs. Thus, the award of
attorney's fees does not constitute an abuse of discretion.
For the foregoing reasons, we affirm the trial court's
decision.
Affirmed.
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