Timothy Todd Buch v. Laura Jeanne Buch ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Petty and Senior Judge Annunziata
Argued at Alexandria, Virginia
TIMOTHY TODD BUCH
MEMORANDUM OPINION * BY
v. Record No. 1833-07-4 JUDGE WILLIAM G. PETTY
MARCH 25, 2008
LAURA JEANNE BUCH
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Jr., Judge
Richard F. MacDowell, Jr. (MacDowell & Associates, P.C., on
brief), for appellant.
Harold T. Hughlett (Kimberly Ann Murphy; Hale Carlson Penn,
PLC, on brief), for appellee.
Timothy Todd Buch (husband) appeals the final divorce decree of the trial court in his
divorce from Laura Jeanne Buch (wife). On appeal, husband challenges several of the trial court’s
rulings on matters concerning child and spousal support and equitable distribution.1 As explained
below, we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Specifically, husband presents the following questions on appeal: (1) was the trial
court’s determination of wife’s income contrary to evidence presented at trial; (2) was the trial
court’s award of spousal support contrary to the evidence of wife’s need and husband’s ability to
pay; (3) was the trial court’s award of spousal support for an indefinite duration an abuse of
discretion based upon the evidence presented; (4) was the trial court’s lump sum award of
one-half of husband’s annual leave incorrect as a matter of law; (5) did the trial court abuse its
discretion by ordering husband to pay one-half of children’s extracurricular expenses when these
expenses had previously been considered by the court in the support award; (6) was it error for
the trial court to award the wife more than one-half of the marital share of the husband’s pension
benefits; and (7) was it an abuse of discretion to refuse to consider the tax consequences factor
under Code § 20-108.1 in the trial court’s denial of husband’s request for a child’s tax
exemption?
I. BACKGROUND
On appeal, we view the evidence in the light most favorable to wife, the prevailing party
below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). Husband and
wife were married in 1985 and separated in September 2005. They have two minor children. The
trial court granted the parties a divorce on the ground of having lived separate and apart for more
than one year without interruption or cohabitation. The trial court determined that a 50%
division of all marital property was appropriate. Among these assets were two residences,
husband’s pension, and husband’s annual leave.
The parties disagreed over whether wife should receive spousal support and, if so, in
what amount, and for what duration. The trial court awarded spousal support to wife in the
amount of $2,000 per month for an indefinite duration. The trial court determined that wife had
custody of the children 74.5% of the time and husband had the children 25.5% of the time.
Based upon the parents’ income and Virginia’s child support guidelines, the trial court imposed
monthly payments of $883. In addition, the court ordered that “the children’s extra curricular
activities and camps, agreed to by the parties, shall be paid by the parties’ equally, and not on a
pro rata basis as requested by [wife], as these expenses were considered by the Court in its
spousal support ruling.” Wife was given the annual tax exemptions and deductions for the
children.
Husband appeals.
II. ANALYSIS
A. Spousal Support and Children’s Extracurricular Expenses
Spousal Support
For purposes of awarding spousal support, husband contends that the trial court’s
determination of wife’s income and need and husband’s ability to pay was contrary to the
-2-
evidence presented at trial. Moreover, he argues that the trial court’s award of spousal support
for an indefinite duration was an abuse of discretion based upon the evidence presented.
“Whether and how much spousal support will be awarded is a matter of discretion for the
trial court.” Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). “‘In fixing the
amount of the spousal support award, . . . the court’s ruling will not be disturbed on appeal unless
there has been a clear abuse of discretion. We will reverse the trial court only when its decision
is plainly wrong or without evidence to support it.’” Moreno v. Moreno, 24 Va. App. 190,
194-95, 480 S.E.2d 792, 794 (1997) (quoting Gamble v. Gamble, 14 Va. App. 558, 574, 421
S.E.2d 635, 644 (1992)).
The trial court awarded wife spousal support of $2,000 per month. In making this
spousal support award, the trial court considered the statutory factors in Code § 20-107.1(E).
The trial court explained that it arrived at this figure by establishing wife’s base salary as a
teacher and determining that her base income would be supplemented “by some amount of
tutoring.” 2 Aditionally, the trial court considered the standard of living established during the
marriage and found that “[wife] cannot approximate her marital lifestyle without spousal
support.” See Miller v. Miller, 44 Va. App. 674, 684-86, 607 S.E.2d 126, 131-32 (2005). The
trial court also found that “[wife’s] monetary and nonmonetary contributions combined were at
least as substantial as [husband’s] income and her flexibility in career choice allowed him the
ability to focus on his job.”
The trial court complied with Code § 20-107.1 by considering the statutory factors and
making appropriate findings identifying the factors supporting the spousal support award.
2
The trial court averaged income wife derived from tutoring for the prior three years and
added this amount to her base salary as a teacher for a total income of $67,467. The trial court
did not include income wife made from the children’s clubs because it “[was] never a form of
consistent income.” It found that husband earned $160,800 a year.
-3-
Robinson v. Robinson, 50 Va. App. 189, 196, 648 S.E.2d 314, 317 (2007). We determine that
the trial court’s findings and conclusion did not constitute an abuse of discretion.
Children’s Extracurricular Expenses
Husband contends the trial court abused its discretion by ordering him to pay half of the
children’s “unspecified” extracurricular expenses when the court had already considered these
expenses when arriving at wife’s spousal support award. This argument is without merit.
Husband overlooks the critical language contained in the trial court’s order providing that
any activity must be “agreed to by the parties.” Therefore, he will not be subject to pay half of
any activity unless he agrees to the activity. Moreover, wife had requested that husband pay a
greater share of the children’s expenses. Thus, the trial court’s reference to the spousal support
award merely explained why the parties would be equally responsible for the expenses.
B. Equitable Distribution
When reviewing an equitable distribution award on appeal, we will not reverse the
decision of the trial court “unless it is plainly wrong or without evidence to support it.” Thomas
v. Thomas, 40 Va. App. 639, 644, 580 S.E.2d 503, 505 (2003). The amount and form of any
equitable distribution award “are matters committed to the sound discretion of the trial court.”
Barker v. Barker, 27 Va. App. 519, 535, 500 S.E.2d 240, 248 (1998).
A trial court must follow three steps in making an equitable distribution of property.
First, the trial court “must classify the property as either separate or marital. The court must then
assign a value to the property based upon evidence presented by both parties. Finally, the court
distributes the property to the parties, taking into consideration the factors presented in Code
§ 20-107.3(E).” Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436 (1991); see also
Code § 20-107.3(A).
-4-
In making its valuation findings, the trial court “must determine from the evidence that
value which represents the property’s intrinsic worth to the parties upon dissolution of the
marriage.” Bosserman v. Bosserman, 9 Va. App. 1, 6, 384 S.E.2d 104, 107 (1989). Because of
the fact-specific nature of valuation, “we give great weight to the findings of the trial court.”
Howell v. Howell, 31 Va. App. 332, 339, 523 S.E.2d 514, 518 (2000). “We affirm if the
evidence supports the findings and if the trial court finds a reasonable evaluation . . . .” Russell
v. Russell, 11 Va. App. 411, 415-16, 399 S.E.2d 166, 168 (1990). The parties bear the burden of
providing the trial court with sufficient evidence from which it can value their property. Taylor
v. Taylor, 5 Va. App. 436, 443, 364 S.E.2d 244, 248 (1988).
Husband’s Annual Leave
Husband asserts the trial court erred as a matter of law by granting wife a lump sum
award of one-half of his accumulated annual leave. He argues that the trial court erred both in
valuing the asset and in distributing it to wife prior to husband actually realizing the asset.
Because husband did not provide us with a legal basis for his argument, we do not address this
issue. Rule 5A:20(e).
Rule 5A:20(e) requires that an appellant’s opening brief contain “[t]he principles of law,
the argument, and the authorities relating to each question presented.” Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Here, husband’s brief fails to comply with Rule 5A:20(e) because it
solely relied on unpublished legal opinions as authority. 3 Moreover, husband failed to present
any legal argument predicated on the legal analyses in these opinions, relying instead on
conclusory statements. “‘Statements unsupported by argument, authority, or citations to the
3
An unpublished opinion of this Court is not “to be cited or relied upon as precedent
except for the purpose of establishing res judicata, estoppel or the law of the case.” Grajales v.
Commonwealth, 4 Va. App. 1, 2 n.1, 353 S.E.2d 789, 790 n.1 (1987) (en banc) (per curiam).
-5-
record do not merit appellate consideration.’” Budnick v. Budnick, 42 Va. App. 823, 833-34,
595 S.E.2d 50, 55 (2004) (quoting Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290,
297 (2003)).
While the issue of whether accrued leave time is a marital asset capable of equitable
distribution has not been addressed by a published appellate opinion in Virginia, it is not a novel
legal question. Courts of other states have addressed this issue, and both their legal rationales
and their conclusions are divided. In their analyses, those courts have both analogized and
contrasted accrued annual leave to pension or retirement benefits and alternative wages. 4
Despite an abundance of potentially persuasive legal analysis and authority, husband did not
provide us the critical legal link between the question he presents and the conclusion he wishes
us to reach. We cannot fashion a remedy for husband out of whole cloth:
A court of review is entitled to have the issues clearly defined and
to be cited pertinent authority. The appellate court is not a
depository in which the appellant may dump the burden of
argument and research. To ignore such a rule by addressing the
case on the merits would require this court to be an advocate for, as
well as the judge of the correctness of, [husband’s] position on the
issues he raises. On the other hand, strict compliance with the
rules permits a reviewing court to ascertain the integrity of the
parties’ assertions which is essential to an accurate determination
of the issues raised on appeal.
People v. Trimble, 537 N.E.2d 363, 364 (Ill. App. Ct. 1989) (internal citations omitted). 5
4
Some of these jurisdictions include: Schober v. Schober, 692 P.2d 267, 268 (Alaska
1984); Guillen v. Guillen, 751 So. 2d 1270 (Fla. 3d DCA 2000); Bratcher v. Bratcher, 26 S.W.3d
797, 800-01 (Ky. Ct. App. 2000); Akers v. Akers, 729 N.E.2d 1029, 1033 (Ind. Ct. App. 2000);
Thomasian v. Thomasian, 556 A.2d 675 (Md. App. 1989); Lesko v. Lesko, 457 N.W.2d 695, 699
(Mich. Ct. App. 1990), overruled on other grounds by Booth v. Booth, 486 N.W.2d 116, 119
(Mich. Ct. App. 1992); Ryan v. Ryan, 619 A.2d 692, 696 (N.J. Super. Ct. Ch. Div. 1992); Grund
v. Grund, 573 N.Y.S.2d 840, 844 (N.Y. Sup. Ct. 1991); In re Marriage of Williams, 927 P.2d
679 (Wash. Ct. App. Div. 3 1996).
5
This Court frequently cites Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239, for the
proposition that a party violates Rule 5A:20(e) when it fails to present a legal argument to this
Court. Buchanan cites Holmstrom v. Kunis, 581 N.E.2d 877, 882 (Ill. 1991), for this principle,
-6-
Husband’s Pension Benefits
Husband contends the trial court abused its discretion in dividing his Federal Employees
Retirement System pension with wife. 6
Because husband failed to develop or support this argument in his brief, it constitutes
little more than a bare assertion, and for the reasons just discussed, we will not address it. See
Rule 5A:20.
C. Child’s Tax Exemption
Husband contends the trial court erred in failing to grant him a tax exemption for one of
the parties’ children. Wife asserts, however, that husband waived the right to raise this issue
because he failed to timely and properly present the request to the trial court for disposition. We
agree with wife.
The record reveals that husband failed to request the tax exemption until after the trial
court rendered its letter opinion. Only at this point did husband’s attorney request that the court
consider granting husband the exemption. When the trial court denied the request and explained
the ruling on the record, husband’s attorney did not object to the ruling. Husband is foreclosed
from raising this issue on appeal. Rule 5A:18. Moreover, husband failed to develop or support
this argument in his brief, and we need not address it. See Rule 5A:20.
D. Attorney’s Fees
Wife is seeking an award of attorney’s fees and costs incurred in connection with this
appeal. We have held:
which in turn relies on Trimble, 537 N.E.2d at 364. Thus, this rationale is implicated in our prior
decisions.
6
Wife’s counsel cited a prior decision of our Court that rejected a similar argument set
forth by husband’s counsel. See McGinnis v. McGinnis, 49 Va. App. 180, 187, 638 S.E.2d 697,
700 (2006).
-7-
The rationale for the appellate court being the proper forum
to determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Applying these
principles here, we hold that wife is entitled to a reasonable amount of attorney’s fees because
the majority of husband’s questions presented were unsupported by any legal argument or were
otherwise without merit. Thus, we remand this case to the trial court for the imposition of an
award of attorney’s fees to wife.
III. CONCLUSION
For the reasons set forth above, we affirm the judgment of the trial court. We remand the
case, however, for the limited purpose of determining the amount wife should be awarded for
attorney’s fees she incurred with this appeal.
Affirmed.
-8-