Giso Asgari v. Abbas Asgari , 33 Va. App. 393 ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
ABBAS ASGARI
v. Record No. 2533-99-4
GISO ASGARI OPINION BY
JUDGE RICHARD S. BRAY
GISO ASGARI SEPTEMBER 5, 2000
v. Record No. 2560-99-4
ABBAS ASGARI
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
David L. Duff for Abbas Asgari.
Joyce M. Henry-Schargorodski (Gaughan &
Schargorodski, on briefs), for Giso Asgari.
Abbas Asgari (husband) and Giso Asgari (wife) were divorced
by decree of the trial court entered October 1, 1999. In
adjudicating the cause, the court classified the former marital
home of the parties and husband's "disability retirement" as
marital property, apportioned certain marital debt, awarded
husband retroactive child support from wife, and denied his
claim to spousal support. On appeal, husband complains the
court erroneously (1) "fail[ed] to recognize [his] separate
property component in . . . the marital home"; (2) awarded wife
a percentage of his "disability pay"; (3) failed to allocate
responsibility for a marital debt incurred by him; and (4)
denied spousal support. Wife challenges retroactivity of the
child support award. Finding no error, we affirm the decree.
The parties were married August 26, 1984, and separated on
July 20, 1997. Prior to the separation, husband filed a bill of
complaint with the trial court, seeking, inter alia, divorce,
temporary and permanent custody of the child born to the
marriage, child and spousal support from wife, and a
determination of the respective property interests pursuant to
Code § 20-107.3. Wife's responsive pleadings sought similar
relief. The court thereafter conducted several protracted
hearings, resulting in a voluminous record that embraced an
array of issues, much of which is irrelevant to our
determination of this appeal.
At the time of marriage, both husband and wife were
gainfully employed and financially independent. Wife had earned
a B.A. degree and husband a B.S. in civil engineering and
masters degrees in Social Planning and City Planning. Wife then
resided in a local apartment complex and husband occupied a home
in Arlington, acquired by him before the marriage. At the
inception of the marriage, the couple relocated to an apartment
in Crystal City, and husband rented his former residence to
others. Within a short time, however, they returned to
- 2 -
husband's Arlington residence and together undertook extensive
repairs and renovations. 1
Intending to purchase a marital home with wife, husband
sold his Arlington residence in 1986, depositing $66,000 from
the net proceeds into the parties' joint checking account. On
March 24, 1987, husband and wife contracted to purchase a new
home, which required a $5,000 "down payment" and an additional
$41,709.55 at closing, on July 24, 1987, all of which was drawn
from the joint account. The evidence does not disclose deposits
or withdrawals or continuing balances with respect to such
account for the period preceding settlement on the new
residence. However, "paychecks," expenditures, "everything,"
attributable to both parties were routinely deposited into and
withdrawn from the joint account both before and after receipt
of the proceeds from the sale of husband's residence into the
account.
During these years of marriage, the parties successfully
pursued respective employment opportunities, each contributing
both economically and otherwise to the marital partnership. On
April 17, 1989, a son, Armun Jonathan Asgari, was born to the
union, and the couple shared the attendant responsibilities,
1
Wife described husband's home as "totally destroyed," a
"shack," and detailed her extensive personal efforts
rehabilitating the property.
- 3 -
while maintaining employment, until husband was seriously
injured in an automobile accident on January 5, 1993.
Following the accident, which occurred while husband was
acting in the course of employment as an engineer with the
Virginia Department of Transportation (VDOT), husband claimed
permanent total disability and pursued both workers'
compensation benefits and disability retirement from VDOT and an
independent tort claim for "pain and suffering, medical expenses
and lost wages." Husband was "immediately" awarded biweekly
workers' compensation benefits of $941.14, a sum equaling 66.66%
of his VDOT salary, for 500 weeks, in addition to the payment of
all accident-related medical expenses. Later, on April 11,
1994, the Virginia Retirement System (VRS) approved husband's
"application for disability retirement," resulting in an initial
"Basic Benefit" of $2,084 per month, subject to a temporary
offset for the workers' compensation award. The tort claim,
settled for $300,000, provided $136,000 net to husband, after
satisfaction of attendant obligations, fees and expenses,
including a workers' compensation lien of $68,095.72.
VRS documentation relating to husband's disability claim
specifically referenced the "Retirement Benefit" as "Line of
Duty Disability Retirement," based upon weighted "Service: 17
years 10 months" and a computation "us[ing] salaries earned in
the 60 months . . . prior to . . . retirement date," "Effective:
- 4 -
7/1/94" at an age of "43 years 3 months." 2 Husband was further
advised of his entitlement "to receive a refund of accumulated
contributions and interest in the [VRS]," $14,085.
The effects of the accident brought immediate and lasting
changes to the household. Husband, no longer employed, assumed
a significantly greater responsibility for child rearing, while
wife, then age thirty-three and in good health, maintained
employment as a jewelry consultant with Neiman Marcus.
Understandably, wife's responsibilities "got a lot more" as she
alone assumed numerous tasks about the household, including
"grocery shopping," "laundry," transportation needs and
financial management, in addition to caring for husband.
Despite husband's continuing disability benefits and wife's
average annual income of approximately $76,462.89, the family
incurred substantial credit card and consumer debt, which
totaled approximately $70,000 at the time of the hearing,
exclusive of a $25,000 balance on a personal loan to husband
from another.
Husband testified that he remained totally disabled at the
time of the hearing, a circumstance corroborated by successive
annual reviews by VRS and the testimony of his treating
physician, Dr. Howard Hite. Husband insisted he "can't work" as
2
The VRS monthly benefit, $2,084, was a function of the
"average of [husband's] highest 36 consecutive months of
salary," $36,498.71, computed in accordance with Code
§ 51.1-157.
- 5 -
a result of intermittent severe pain and related physical
limitations, including an inability to sit, stand or lift within
normal limits, and the need for a multitude of prescription
medications. However, wife's evidence established that husband
often engaged in physical activities, including basketball,
hunting, swimming, tennis and extended travel, both overseas and
domestic. She recalled husband admitted that he had "no pain,"
no need for medication, and was "faking" disability to retain
benefits. Much of wife's testimony was corroborated by
independent witnesses and other evidence.
At the hearing below, each party presented extensive
economic evidence reflecting their respective needs and
resources. Husband's monthly disability and workers'
compensation benefits then aggregated $2,256, while his regular
expenses for a like period totaled approximately $7,000,
including a $2,038 mortgage payment on the marital home and an
assortment of increased costs attributable to the child, then in
his care. Similarly, wife reported a $4,421 monthly income
shortfall, despite net earnings of $5,193. Noteworthy expenses
reportedly incurred each month by wife included $1,800 for
"Furniture/Furnishings," $1,257 "Legal Expenses," and $1,154 on
"Charge Account Debt" of $88,346.
Immediately upon the conclusion of the evidentiary
hearings, the trial court decided the substantial issues, save
the determination of child support, orally announcing seriatim
- 6 -
the rulings, with no objections then noted by either party. 3
Subsequent motions, apparently later argued before the trial
court, focused on the retroactivity of the child support award.
The final decree, entered several months following the last
evidentiary hearing, determined a host of questions, including
the limited issues pertinent to the instant appeal.
RETROACTIVE CHILD SUPPORT
The trial court awarded husband $664 per month child
support from wife, "retroactive to October 1, 1997 . . . the
date [he] filed [a] pendente lite petition for child support,"
reciting simply that the child "lives with the father," without
otherwise addressing custody. Wife, thereafter, objected to the
retroactivity of the award by motion filed with the court,
contending, in pertinent part, that husband withdrew his claim
for child support prior to the evidentiary hearings. No
transcripts of hearings relative to wife's motion are a part of
the record before this Court. Later, above her endorsement to
the final decree, wife again excepted to "the court's ruling of
retroactive child support and the retroactive date the court
chose." On appeal, she argues that the retroactivity ruling was
error, "where procedurally the motion for child support had been
3
The final decree expressly "incorporated by reference" the
"numerous findings . . . reflected in the transcript of the
Court's ruling."
- 7 -
withdrawn," 4 adding, for the first time, "and where [husband's]
financial resources were vastly different in 1997 and 1998 than
at the date of trial."
In support of her contention that husband withdrew his
prayer for retroactive child support, wife asserts that
continuances or "removals" of two hearings scheduled on
husband's motion for pendente lite relief constituted an
abandonment of the claim. Wife further complains, citing no
authority, that husband's failure to pursue a hearing resulted
in an inequitable "creat[ion] of an arrearage beyond [her]
control," "not the intended use for retroactive [child]
support." Her arguments are belied by the record and contrary
to statute.
Code § 20-108.1(B) provides that "[l]iability for [child]
support shall be determined retroactively . . . from the date
that the proceeding was commenced by the filing of an action
with the court." Here, husband commenced an action for child
support at the inception of the instant cause, praying for such
relief in the bill of complaint. Husband's subsequent motion
for a pendente lite award, together with related scheduling
4
The record does not indicate that wife objected to the
amount of the award at any time before the trial court.
- 8 -
events, did nothing to displace the underlying claim. Thus, an
award of retroactive support clearly complied with statute. 5
EQUITABLE DISTRIBUTION
In adjudicating the numerous property interests of the
parties pursuant to Code § 20-107.3, the court declared
husband's disability retirement and the jointly titled residence
to be marital property 6 and did not apportion a debt of husband
to another, allegedly incurred to reduce marital debt. Husband
first argues that the VRS disability benefit was an award
intended "to make an injured employee 'whole,'" distinguishable
from the "extra" benefit of retirement "earned as a result of
longevity." Husband does not dispute the "propriety" of the
instant award, if the subject benefit constitutes "'retirement
benefits'" contemplated by statute.
Code § 20-107.3(G) empowers the court to
direct payment of a percentage of the
marital share of any pension . . . or
retirement benefits, whether vested or
nonvested, which constitutes marital
property and whether payable in a lump sum
or over a period of time. . . . "Marital
share" means that portion of the total
interest, the right to which was earned
5
To the benefit of wife, the court awarded retroactive
support from the date husband moved for pendente lite relief,
not the commencement of the suit. Husband, however, assigned no
error to the ruling.
6
The decree awarded wife "40% of the gross or total pension
benefits as such is received" by husband and ordered the marital
home sold, with the "net proceeds" equally divided between the
parties.
- 9 -
during the marriage and before the last
separation of the parties . . . .
(Emphasis added); see Code § 20-107.3(A)(3)(b). In enacting
Code § 20-107.3(A)(3)(b) and companion Code § 20-107.3(G), the
legislature clearly "intended all pensions . . . to be personal
property and subject to equitable distribution." Sawyer v.
Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 280 (1985). "A
pension, by definition, is 'a retirement benefit paid regularly,
with the amount of such based generally on length of employment
and amount of wages or salary of pensioner. It is deferred
compensation for services rendered.'" Banagan v. Banagan, 17
Va. App. 321, 324, 437 S.E.2d 229, 230-31 (1993) (citation
omitted). Clearly, the "all inclusive language of . . .
§ 20-107.3(G) permitting the court to direct payment of a
percentage of the marital share of 'any pension'" does not
suggest the exclusion of "disability pensions" 7 from the
statutory scheme. Peter N. Swisher et al, Virginia Family Law
§ 11-17, at 451 (2nd ed. 1997) (emphasis added).
Here, the record establishes that husband's disability
award constituted a VRS retirement benefit contemplated by the
statutory VRS plan, which expressly permitted "[a]ny member
. . . [to] retire for disability" upon specified terms and
7
In sharp contrast to Code § 20-107.3(G), veterans'
disability benefits are expressly exempted from division in
equitable distribution by federal law. See Lambert v. Lambert,
10 Va. App. 623, 627, 395 S.E.2d 207, 209 (1990) (citation
omitted).
- 10 -
conditions. Code § 51.1-156. Accordingly, all related
documentation referenced the benefit as a "Retirement Benefit,"
"Disability Retirement," or like characterization, including a
designated "retirement date." The resulting benefit received by
husband, a function of his employment service, average wages and
age, was earned and accrued during the marriage. Thus, governed
by the clear statutory scheme and particulars of the subject
award to husband, the court correctly distributed the benefit as
a "pension" or "retirement benefit" within the intendment of
Code § 20-107.3(G).
Husband next complains that the trial court, in declaring
the jointly titled home of the parties marital property, ignored
the $46,709.55 contribution of his separate property to the
acquisition costs. Husband argues that the deposit of $66,000
derived from the sale of his former home, clearly separate
property, into the parties' joint checking account, later
withdrawn to partially fund purchase of the new residence,
adequately traced such separate funds into the property.
However, husband's argument is without sufficient support in the
record.
Code § 20-107.3(A)(3) recognizes the concept of "property
. . . part marital and part separate," hybrid property. See
Rahbaran v. Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 140
(1997). The statute "presupposes that separate property has not
been segregated but, rather, combined with marital property."
- 11 -
Id. at 207, 494 S.E.2d at 141. When such interests are
commingled through the contribution of one to another,
resulting in the loss of identity of the
contributed property, the classification of
the contributed property shall be transmuted
to the category of property receiving the
contribution. However, to the extent the
contributed property is retraceable by a
preponderance of the evidence . . ., such
contributed property shall retain its
original classification.
Code § 20-107.3(A)(3)(d).
"In order to trace the separate portion of hybrid property,
a party must prove that the claimed separate portion is
identifiably derived from a separate asset." Rahbaran, 26 Va.
App. at 208, 494 S.E.2d at 141 (emphasis added). "Whether a
transmuted asset can be traced back to a separate property
interest is determined by the circumstances of each case" and
"the trial court's award . . . will not be reversed 'unless it
appears from the record that the chancellor . . . abused his
discretion, . . . has not considered or has misapplied [a]
statutory mandate[], or . . . the evidence fails to support the
findings of fact . . . ." von Raab v. von Raab, 26 Va. App.
239, 248, 246, 494 S.E.2d 156, 160, 159 (1997) (citation
omitted).
Here, assuming, without deciding, husband deposited his
separate funds into a joint checking account with wife,
commingling separate and marital assets, unspecified sums of
marital funds were thereafter deposited and withdrawn from the
- 12 -
account, the balance regularly ebbing and flowing for months.
Thus, when the parties withdrew from the account those monies
necessary to acquire the marital home, the identity of husband's
separate funds had been lost in countless unspecified
transactions involving marital funds, resulting in the
irreversible transmutation of separate into marital property.
Under such circumstances, the court was unable to properly trace
and preserve the integrity of husband's separate property.
In husband's final challenge to the trial court's decree of
equitable distribution, he assails the court's failure to
allocate, pursuant to Code § 20-107.3(C), "a $25,000 loan
incurred by [him] to pay marital credit card debts." Husband
testified that he "borrowed $50,000 cash from [a] Mr. Jahander,"
interest free, received as "cash in a bag." Husband contends
that such loan, dating from "late – 1996," was applied to
marital debt and "paid down to approximately $25,000 by the time
of trial." However, husband's counsel advised the court, during
the evidentiary hearing, that he was "not asking for any of the
Jahander loans back." Husband will not be permitted to
approbate and reprobate, ascribing error to an act by the trial
court that comported with his representations. See Manns v.
Commonwealth, 13 Va. App. 677, 679-90, 414 S.E.2d 613, 615
(1992).
- 13 -
SPOUSAL SUPPORT
Lastly, husband contends the trial court erroneously denied
him spousal support from wife. 8 Husband maintains that physical
and emotional disabilities render him unable to secure gainful
employment, causing severe economic hardship, including a
reduced standard of living and significant indebtedness. In
contrast, he points to wife's gainful employment and good
health, with consistent and substantial earnings in recent
years. Husband, therefore, asserts that the evidence
demonstrates his compelling "need," together with wife's ability
to pay.
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the
court and will not be disturbed on appeal unless it is clear
that some injustice has been done." Dukelow v. Dukelow, 2 Va.
App. 21, 27, 341 S.E.2d 208, 211 (1986) (citations omitted).
However, the trial court's discretion must not be exercised
without reference to Code § 20-107.1, which "commands that, in
order to exercise its discretion, '[t]he court shall . . .
consider' the specific factors contained therein. Failure to do
so is reversible error." Bristow v. Bristow, 221 Va. 1, 3, 267
S.E.2d 89, 90 (1980) (citation omitted). In reviewing the
disputed decision, "[w]e assume that the [court] followed the
8
In denying present support, the court reserved such relief
to husband.
- 14 -
statutory mandate," and the trial judge need not assign a weight
to each among the several factors, provided related evidence is
before the court. McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 161 (1985).
Without undertaking to again recite the abundance of
evidence relevant to the requisite statutory considerations, we
find sufficient support in the record for the court's decision
and, clearly, no abuse of discretion.
Accordingly, we affirm the decree.
Affirmed.
- 15 -