Steven David Haykin v. Susan K D Haykin ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
STEVEN DAVID HAYKIN
MEMORANDUM OPINION *
v. Record No. 0403-02-2 PER CURIAM
AUGUST 20, 2002
SUSAN K. D. HAYKIN
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
(Nancy L. Quinn; Kanady & Quinn, P.C., on
briefs), for appellant.
(Janet E. Brown; Janet E. Brown, P.C., on
brief), for appellee.
Steven David Haykin (husband) appeals the decision of the
circuit court awarding Susan K.D. Haykin (wife) a final decree of
divorce. He argues the trial court erred by (1) finding the
withdrawals he made from his retirement account subsequent to July
16, 1999 amounted to a dissipation of a marital asset, and (2)
ordering him to continue paying for wife's health insurance
coverage. Upon reviewing the record and briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to wife as the party
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Background
On January 26, 1999, wife filed a bill of complaint for
divorce and a motion for pendente lite relief. The parties
submitted a consent order which the court entered on July 16,
1999. The order awarded wife exclusive possession of the
marital home and required husband to pay wife monthly support of
five hundred dollars for a six-month period. The order also
provided husband was to withdraw $15,000 from his individual
retirement account (IRA) and pay the post-tax balance of $10,200
to wife as additional support. The order specified that the
$10,200 would be "assessed against [husband's] share of the
parties' equitable distribution." Finally, the consent order
also provided that "neither party shall dispose of any marital
assets absent the written agreement of the parties or court
order."
In an August 2, 1999 opinion letter, the court ordered
husband to continue to pay the monthly five hundred dollars in
support and also required him to pay the mortgage and monthly
utilities for the marital home.
At the time of the parties' separation, husband owned an
IRA valued at $85,931.81. Pursuant to the consent order,
husband withdrew $15,000 from the account and paid the after-tax
amount to wife. Husband acknowledged that subsequent to the
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July 16, 1999 order he made withdrawals from the IRA which
totaled between $43,000 and $44,000. The withdrawals were not
agreed upon by the parties or made pursuant to a court order.
On October 16, 2000, the court heard the parties on the
issues of spousal support and equitable distribution. The trial
court issued an opinion letter on November 6, 2000, ruling that
all of the withdrawals husband made from the IRA should be
assessed against him in the equitable distribution award. The
court found the withdrawals were made in direct violation of the
court's order enjoining the disposing of marital property.
Additionally, the court ordered appellant to carry medical
insurance coverage on wife for so long as it was available
pursuant to COBRA.
Analysis
I.
Husband does not contend the IRA was not marital property.
Instead, he argues he used the funds he withdrew from the
account to pay for living expenses and that, therefore, he did
not dissipate marital property.
"The husband had the burden to establish by a preponderance
of the evidence that post-separation withdrawals of marital
funds were used for a legitimate marital purpose." Howell v.
Howell, 31 Va. App. 332, 348, 523 S.E.2d 514, 522 (2000)
(citation omitted). Husband failed to document fully the
expenditures he made with the IRA funds. The July 16, 1999
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consent order ordered the parties not to dispose of any marital
assets without the prior written approval of the other party or
by court order. Husband, in direct violation of this order,
withdrew a substantial amount of money from the IRA. The trial
court rejected husband's explanation. "It is well established
that the trier of fact ascertains a witness' credibility,
determines the weight to be given to their testimony, and has
the discretion to accept or reject any of the witness'
testimony." Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d
665, 668 (1997) (en banc). The trial court's conclusion that
husband dissipated the marital property was supported by the
evidence and not plainly wrong.
II.
"[I]n fixing spousal support, a trial court has broad
discretion which should not be interfered with by an appellate
court unless it is clear that some injustice has been done."
Papuchis v. Papuchis, 2 Va. App. 130, 133, 341 S.E.2d 829, 831
(1986).
The evidence showed wife incurs a large amount of medical
expenses monthly. She testified she has repeatedly had coverage
of her expenses denied by her workers' compensation insurance
carrier. In the past, when coverage was denied, wife filed
claims through husband's insurance carrier until the denial of
coverage was resolved. Based upon this unrebutted evidence, the
trial court ordered husband to pay the cost of health insurance
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coverage through his work for as long as allowed under COBRA.
We cannot say that the trial judge erred in the amount of
support awarded.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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