Curt C. F. Wolters v. Sylvana Wolters ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Clements and Senior Judge Willis
Argued at Alexandria, Virginia
CURT C. F. WOLTERS
MEMORANDUM OPINION* BY
v. Record No. 0106-03-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 12, 2003
SYLVANA WOLTERS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
Philip F. Hudock for appellant.
David M. Levy (Surovell, Markle, Isaacs, & Levy, PLC, on brief),
for appellee.
Curt Wolters (husband) contends the trial court erred in awarding pendente lite spousal
and child support to Sylvana Wolters (wife) and ordering that the parties’ assets be frozen during
the pendency of their divorce pursuant to Code § 20-103(A)(vii). Appellant argues that by
wrongly imputing income to him which required him to seek additional employment after
retirement, the order became an “injunction” and subject to an immediate appeal. We disagree.
I. BACKGROUND
On August 15, 2002, wife filed a bill of complaint for divorce and a motion for pendente
lite support for herself and her thirteen-year-old son. On October 15, 2002, husband filed an
answer asserting that he was a resident of the state of Washington, not Virginia.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On November 14, 2002, a hearing on wife’s request for pendente lite relief was held, and
the trial court took the matter under advisement. On November 18, 2002, the trial court, after
imputing his pre-retirement income to husband, awarded wife spousal and child support and
froze the assets of the parties pending the divorce. On December 30, 2002, the trial court entered
an order reflecting these rulings, and it is from this order that husband now appeals.
On appeal, we view the evidence in the light most favorable to the appellee. Pinkard v.
Pinkard, 12 Va. App. 848, 850, 407 S.E.2d 339, 340 (1991). The parties were married in 1989,
and have one son, age thirteen. After working for over 23 years as a developmental economist
with the U.S. Agency for International Development of the Department of State, husband retired
on July 31, 2002 and moved to his home state of Washington. He remained unemployed as of
the date of the pendente lite hearing.
Prior to retirement, husband’s income was $109,546. After retirement, his income
decreased to $53,652. This included $47,904 from a federal pension and $5,748 in Social
Security benefits. Wife earns $22,714 annually as a patient registration representative with
INOVA Fairfax Hospital. At the pendente lite proceeding, both parties testified as to support
and preservation of assets issues and submitted a Fairfax County Guideline Support Worksheet
and Monthly Income and Expense Worksheet.
In imputing additional income to husband, the trial court found that he “did not have to
retire” and that he had the “obligation of a 12 year old child.” Additionally, the trial court found
that “[husband] has far greater assets available to him. His inability to account for how he used
some of those assets is of concern to me.” He then imputed appellant’s amount of pre-retirement
income and stated: “I’m giving him an additional 30 days to find employment to supplement his
retirement.”
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II. Appeal from a Pendente Lite Award
Husband argues that in effect, the trial court issued a mandatory injunction when it
“required” him to work and earn the difference between his current and pre-retirement income.
Because an interlocutory appeal may be taken from an injunction under Code § 17.1-405, he
contends that his appeal is proper. This argument is without merit. The language used by the
trial court does not change a pendente lite support award into an injunction.
Both the Virginia Supreme Court and this Court have consistently held that pendente lite
support orders are interlocutory in nature and subject to modification during the pendency of the
divorce dispute. Under Code § 17.1-405, there is no appeal from an interlocutory order unless it
grants, dissolves, or denies an injunction, or adjudicates the principles of a cause. The appeal of
a claim of inadequacy of a pendente lite award in a divorce action is not an appeal from a “final
order” or from an order “granting, dissolving or denying an injunction” or “adjudicating the
principles of a cause,” because it does not “respond to the chief object of the suit,” and is
therefore not appealable under this section. Pinkard, 12 Va. App. at 851, 407 S.E.2d at 341; see
also Beatty v. Beatty, 105 Va. 213, 53 S.E. 2 (1906). Interlocutory decrees made pursuant to
Code § 20-103 “have no presumptive effect and shall not be determinative when adjudicating the
underlying cause.”
The necessity that husband find work or use other assets to pay court-ordered support
arises from the fact that he must make support payments based on his imputed income of
$109,546. The trial court observed that he would need to find work to make his support
payments. This observation is reflected in the order:
To pay support at the level provided in this Order, the Defendant is
required to obtain employment, and earn approximately $50,000
per annum (above his pension and Social Security benefit).
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The trial court’s statement recognized the nature of husband’s obligation at the proceeding
ordering pendente lite support: “I know as a practical matter that means in order to achieve the
income that I have imputed to him, he has to get a job that pays $50,000, in essence, on top of
the retirement pay he receives.”
Appellant’s reliance on Pinkard is misplaced. The plaintiff husband in that case appealed
a judgment granting him pendente lite support, and ordering him to vacate the marital residence
during the pending divorce. Contrary to husband’s position, we held that the pendente lite award
of spousal support was interlocutory and thus not appealable, and addressed only the vacation of
the marital residence. Further, appellant cites no authority for the proposition that the trial
court’s “requirement” that he obtain employment is itself an injunction. Because the pendente
lite order is interlocutory and unappealable, we need not address appellant’s additional
arguments. Thus, we dismiss the appeal of this issue.
III. Preservation of Assets
Additionally, husband argues that the trial court’s order freezing the parties’ assets
pursuant to Code § 20-103(A)(vii) was also an improper injunction. He contends that the freeze
order is unenforceable because it would prevent the enjoined parties from paying living
expenses, and fails to clearly state the “precise duties” of the parties. Assuming, without
deciding, that this issue was properly preserved (see Rule 5A:18), we find that the trial court did
not abuse its discretion in issuing the freeze order.1
Under Code § 20-103(A)(vii), the trial court has discretion to issue an order to preserve
the estate of either spouse pending suit. The record reflects that the trial court was concerned
1
Wife conceded on brief that this issue was properly before the court, so we address it.
However, see Rule 5A:18.
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with husband’s dissipation of assets before trial. Husband withdrew $47,000 and $10,000 from a
single account after his retirement. He purchased a pickup truck and paid $11,000 in dental fees
for a child not of the marriage who lived with him in Washington. For these reasons, the trial
court’s order to preserve the parties’ assets pending trial was justified.
Wife requested an additional sum of attorney fees relating to this appeal. “The key to a
proper award of counsel fees is reasonableness under all the circumstances.” Joynes v. Payne, 36
Va. App. 401, 429, 551 S.E.2d 10, 29 (2001) (citing McGinnis v. McGinnis, 1 Va. App. 272,
277, 338 S.E.2d 159, 162 (1985)). Upon consideration of the entire record in this case, we hold
that wife is entitled to a reasonable amount of attorney’s fees incurred in this appeal.
Accordingly, we remand to the trial court for an award of attorney’s fees incurred in this appeal.
See Fox v. Fox, 41 Va. App. 88, 99, 581 S.E.2d 904, 909 (2003).
Accordingly, we dismiss the appeal of the pendente lite order, affirm the judgment of the
trial court directing the preservation of assets and remand for a determination of attorney’s fees.
Dismissed, in part,
affirmed, in part, and
remanded, in part.
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