Raymond F. Kuzemchak v. Ellen L. Kuzemchak ( 2021 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Humphreys and O’Brien
Argued by videoconference
RAYMOND F. KUZEMCHAK
MEMORANDUM OPINION* BY
v. Record No. 0230-21-2 JUDGE MARY GRACE O’BRIEN
OCTOBER 26, 2021
ELLEN L. KUZEMCHAK
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Lee A. Harris, Jr., Judge1
Jessica C. Boutwell (Stiles Ewing Powers, on brief), for appellant.
Eileen McNeil Newkirk (The McNeil Law Group, on brief), for
appellee.
Raymond F. Kuzemchak (“husband”) appeals the denial of his motion to terminate spousal
support to his former wife, Ellen L. Kuzemchak (“wife”). He argues that the court erred by failing
to make the written findings required by Code § 20-109(G). He also contends that the court abused
its discretion by failing to give the appropriate weight to the factors contained in Code § 20-109(F).
Because we find that husband waived his assignments of error, we affirm the judgment of the trial
court.
The parties married in August 1979 and divorced in November 2013. The final decree
incorporated their property settlement agreement requiring husband to pay monthly spousal support
of $3,250 and twenty-five percent of the commissions he received through his employment. The
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The Honorable Lee A. Harris, Jr., entered the final order. The Honorable James S. Yoffy
presided over the proceedings addressed in this opinion.
agreement provided that the support was modifiable. In June 2020, husband moved to amend or
terminate spousal support based on a material change in circumstances.
At a January 4, 2021 hearing, husband testified that he turned sixty-six on May 1, 2020, and
his employer notified him on June 17 that he would be laid off due to a company-wide workforce
reduction. Husband stated that he was unsuccessful in obtaining other employment within his
company and, based on his age, he did not search elsewhere. His July 15 final paycheck included
his severance package of approximately $34,000. Although his spousal support was in arrears,
husband used that money to pay a special assessment on a home titled in the name of his current
wife and her mother.
At the time of the hearing, husband was paying all expenses for that home, despite having
no ownership interest in it. He was receiving $3,043 per month in Social Security benefits, and his
checking account had a balance of $16,796. Husband also had an IRA and two annuities, but he
was not taking any income distributions from those investment accounts.
Wife testified that she had no plans to retire. Aside from spousal support, her monthly
income consisted of $1,557 from a part time job and $1,407 in Social Security benefits. Wife’s
assets included an annuity and various checking accounts that contained money from the divorce
settlement and spousal support.
Husband asked the court to terminate his spousal support obligation. Wife requested that
the court reduce husband’s monthly obligation to $2,000. The court found that husband’s
retirement was not voluntary and constituted a change in circumstance. The court further stated,
What is voluntary is his decision not to seek employment. At
[sixty-six], he still can seek employment. He’s in relatively good
health. But that’s his decision. He has the ability to pay, based on
his retirement, his annuities, his Social Security.
On the other hand, [wife], frankly, you know, [I] can appreciate the
fact that you like to donate to your church. I think that’s noteworthy.
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And I congratulate that. I think it’s a great thing to do. But
[husband] shouldn’t have to fund that. And that’s partially what
you’re asking him to do.
I can’t fault [wife] for spending money for a hobby, because you
have to do something other than work. And in today’s times, you
can’t go out. You need something to do other than your work.
So, taking into consideration [Code §] 20-107.1 and to a lesser extent
Driscoll [v. Hunter, 59 Va. App. 22 (2011)], when I consider all of
those factors, the standard of living, duration of the marriage, the age,
physical and mental capacity, all — all of those things, I find that I’m
going to award [wife] a spousal support in the amount of $1,250 . . .
a month.
The court ordered husband’s counsel to prepare the order.
Before concluding the hearing, the court had the following exchange with husband’s
counsel:
[COUNSEL]: Just, I would like to clarify, very briefly, for the
record, whether the [c]ourt also considered the factors
in [Code §] 20-109?
THE COURT: Yes. I’m sorry.
[COUNSEL]: Thank you.
THE COURT: I didn’t mention that. Do you want me to go through
it?
[COUNSEL]: No.
THE COURT: Okay. . . . [Y]ou’re right, I didn’t mention it. All
right. Thank you. [Husband’s counsel], do the order,
please.
On February 22, 2021, the court entered the order prepared by husband’s counsel, which
contained the following language: “And the [c]ourt, having considered the factors set forth in
[Code §§] 20-109 and 20-107.1 . . . .”
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ANALYSIS
Husband contends that the court “made an error of law in failing to make written findings
and conclusions, as required by [Code] § 20-109(G).” He also contends that the court failed to
“consider or give appropriate weight to the factors set forth in [Code] § 20-109(F)” after it found
that husband had attained full retirement age.
When reviewing the amount of a spousal support award, we accord great deference to the
discretion of the court. See Nielsen v. Nielsen, 73 Va. App. 370, 390 (2021). A court’s spousal
support decision “will not be disturbed except for a clear abuse of discretion.” Id. (quoting
Robinson v. Robinson, 50 Va. App. 189, 194 (2007)).
However, “[a] trial court abuses its discretion as a matter of law when it fails to adhere to
statutory requirements.” Benzine v. Benzine, 52 Va. App. 256, 260 (2008). “[W]here a trial court
is required to make written findings supporting its decision, its failure to do so constitutes reversible
error.” Robinson, 50 Va. App. at 194 (reversing initial spousal support award for court’s failure to
include in divorce decree any findings or conclusions identifying the factors in analogous Code
§ 20-107.1(E)).
Code § 20-109 addresses amending or terminating spousal support. The statute provides
that, for purposes of modification, “the payor spouse’s attainment of full retirement age shall be
considered a material change in circumstances.” Code § 20-109(E). When determining if a support
modification is appropriate in that situation, the court “may consider” the factors of Code
§ 20-107.1(E) (the factors taken into account when making an initial spousal support award), but
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“shall” consider additional factors enumerated in Code § 20-109(F) (specifically addressing payor
reaching retirement age). Code § 20-109(F).2
In both circumstances, the court is required to provide “written findings and conclusions . . .
identifying the factors . . . that support the court’s order.” Code § 20-109(G). See Cleary v. Cleary,
63 Va. App. 364, 373 (2014) (reversing the court for failing to provide written findings specifying
the factors relevant to a spousal support award and identifying the basis for the duration of the
award as required by Code § 20-107.1(F)).
In the written findings, the court is not “required to quantify or elaborate exactly what
weight or consideration it has given to each of the statutory factors.” Pilati v. Pilati, 59 Va. App.
176, 183 (2011) (quoting Duva v. Duva, 55 Va. App. 286, 300 (2009)). Further, “[t]he written
explanation requirement can be satisfied by trial court orders, written letter opinions filed in the
court’s record, [and] oral rulings ‘from the bench’ recorded in a written transcript.” Cleary, 63
Va. App. at 368 n.2 (first alteration in original) (quoting Pilati, 59 Va. App. at 182).
2
Code § 20-109(F) provides that the court “shall consider the following factors.”
1. Whether retirement was contemplated by the court and specifically
considered by the court when the spousal support was awarded;
2. Whether the retirement is mandatory or voluntary, and the terms
and conditions related to such retirement;
3. Whether the retirement would result in a change in the income of
either the payor or the payee spouse;
4. The age and health of the parties;
5. The duration and amount of spousal support already paid; and
6. The assets or property interest of each of the parties during the
period from the date of the support order and up to the date of the
hearing on modification or termination.
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Here, the court found a material change of circumstances based on husband’s retirement. In
its oral ruling, the court referred to its “consideration” of the factors in Code § 20-107.1, without
explaining the import of any particular factor. The court noted husband’s decision not to seek
further employment, his ability to pay spousal support, and wife’s current income and expenses.
The court also stated that it considered the factors in Code § 20-109 but did not specify which of the
factors it considered, or what weight it gave them.
Husband is correct that Code § 20-109(G) requires the court to make “written findings and
conclusions” identifying the factors in Code §§ 20-107.1 and 20-109(F) that “support the court’s
order.” However, our analysis does not end there. At the end of the hearing, when the court stated
in response to husband’s counsel’s question that it considered the factors included in Code § 20-109
and offered to elaborate, counsel explicitly declined the court’s offer.
“[A]n appellate court will not ‘notice error which has been invited by the party seeking to
take advantage thereof on appeal.’” McBride v. Commonwealth, 44 Va. App. 526, 529 (2004)
(quoting Saunders v. Commonwealth, 211 Va. 399, 400 (1970)). Husband invited the exact error
that he now raises on appeal, and in doing so, he has waived the issue. A party may not “invite error
and then attempt to take advantage of the situation created by his own wrong.” Cangiano v. LSH
Bldg. Co., 271 Va. 171, 181 (2006) (rejecting appellant’s argument that was contradictory to his
trial position).
The court expressly offered to review the factors on the record, which would have
constituted the requisite “written findings” once transcribed. See Cleary, 63 Va. App. at 368 n.2.
However, husband unequivocally responded that articulating the factors was not necessary. Further,
in the proposed order, husband’s counsel affirmatively stated that the court considered the factors
set out in Code § 20-109. Husband may not assign error to the court’s action that he endorsed
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below. See Rowe v. Commonwealth, 277 Va. 495, 501-03 (2009). Accordingly, we find the first
assignment of error waived.
Husband also argues that the court did not give proper weight to the statutory factors in
Code § 20-109(F) when determining the effect of his retirement on the spousal support obligation.
However, husband rejected the court’s offer to explain how it considered the factors of Code
§ 20-109(F). Therefore, for the reasons stated above, we conclude that husband waived this
assignment of error as well, and we will not consider it. See id. at 503 (finding that it was “not
necessary” to address an invited error).
Therefore, we affirm the judgment of the trial court.
Affirmed.
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