W. Bryan Settle v. Geraldine H. Settle ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
W. BRYAN SETTLE
MEMORANDUM OPINION * BY
v. Record No. 0935-01-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 26, 2002
GERALDINE H. SETTLE
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
T. Lee Brown, Jr. (Parker, Pollard & Brown,
P.C., on brief), for appellant.
Rose McC. Alexander for appellee.
On March 7, 2001, the trial court awarded W. Bryan Settle
(husband) and Geraldine H. Settle (wife) a no-fault divorce,
pursuant to Code § 20-91(A)(9)(a). Husband appeals the trial
court's award of spousal support and attorney's fees to wife,
and its allocation of marital property. For the reasons that
follow, we affirm the decision of the trial court.
I.
Background
The parties were married on December 24, 1985. During the
marriage, wife had at least five employers. She missed some
months of employment during her pregnancy and the infancy of the
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
parties' third child. As a result, she lost opportunities for
advancement. During this period, husband did not make payments
on the marital debt in wife's name and that debt fell
substantially behind.
The parties separated in August 1999. Husband did not pay
any child or spousal support until November 1999. On August 10,
2000, wife filed for bankruptcy because husband stopped paying
some of the joint debts of the parties.
Husband remained at the same employer for 12 years. His
gross annual earned income was approximately $46,900 per year.
During the parties' separation, husband incurred loans from his
401(k) plan and finance companies to pay joint marital debts and
child support. He also voluntarily contributed pre-tax dollars
to his 401(k) account.
On September 3, 1999, husband filed for divorce. The
circuit court held three hearings in this divorce case. On June
5, 2000, it heard evidence related to custody matters. On
August 14, 2000, it heard evidence on child support and
temporary spousal support. On November 3, 2000, it considered
evidence related to equitable distribution.
At the third hearing, the trial court determined that wife
did not desert husband. In reaching its decision, the court
considered evidence admitted during the earlier hearings on
custody and support, noting that "there was quite a bit of
testimony [at those hearings] about the reason for the
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separation and conflict that existed in the family and in the
marriage." 1 The trial court "accept[ed] the testimony of Ms.
Settle [from the earlier hearings] . . . [that she] was very
frightened of [her] husband, and that she left because it was an
intolerable conflict . . . ." The trial judge declined to hear
additional testimony from husband and his corroborative witness,
finding that husband had already testified regarding the issue
of fault and that the testimony of husband's corroborative
witness, as proffered, would not add anything to the evidence
already presented. The trial court concluded "that there is
insufficient evidence for a fault divorce."
The trial court found that the net equity in the marital
residence was $16,000 and awarded the marital home to husband.
Husband suggested that, in lieu of ordering him to pay wife
$8,000 in equity, the court require him to pay additional
amounts of their marital debt.
The court ordered the wife to pay marital debts to
Associates National ($7,342) and Chase Bank ($3,384), totaling
1
At those earlier hearings, testimony of Hank Mitchell,
Mary Farrell and Sharon Johnson corroborated wife's fright of
husband and the "intolerable" situation. Mitchell testified
that she observed wife crying during and after speaking with
husband on the telephone. Farrell testified that she did not
permit her daughters to play with the Settles' daughters because
"[Mr. Settle] was always yelling." Johnson testified that in
the summer of 1998, wife had told her that she wanted to leave
husband. In addition, as the trial judge noted, wife testified
that she left her husband because she was "frightened" of him
and the situation was "intolerable."
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$10,726. It ordered husband to pay the following marital debts,
totaling $25,284: Bank of America 401(k) loan ($10,185);
Washington Mutual ($4,923); Beneficial Finance ($3,714); Capital
One ($3,218); and Crestar ($3,244).
The trial court also ordered husband to pay $300 per month
in permanent spousal support, stating that it had considered all
of the relevant factors of Code § 20-107.1 and cited the
following reasons for its award:
(i) [wife] is setting up a new home; (ii)
she makes $7,000 less per year than
[husband]; (iii) she contributed the
majority of the child care responsibilities
post-separation; and (iv) she contributed a
great deal to the division of labor in the
household pre-separation.
From the bench, the trial judge noted that she "[c]onsider[ed]
the duration of the marriage and the relative positions of the
parties, especially the need of Mrs. Settle," as well as "the
fact that [husband] was going to keep the house." The trial
court also ordered husband to pay $1,000 of wife's attorney's
fees.
II.
Analysis
Husband alleges that the trial court erred by: (1)
determining the issue of fault solely from evidence admitted at
the hearings regarding custody and child support; (2) refusing
to admit husband's evidence regarding fault; (3) inequitably
allocating all of the parties' marital debt to him; (4) failing
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to consider all the statutory factors in awarding wife permanent
spousal support; and (5) ordering him to pay a portion of wife's
attorney's fees despite his alleged inability to pay the ordered
spousal support. Finding each of these allegations to be
without merit, we affirm the trial court's decision.
A. Trial Court's Determination of Fault
In reaching its decision that there was no marital fault in
this case, the trial court considered testimony from the
equitable distribution hearing, as well as the earlier hearings
on custody, child support and temporary spousal support.
Nevertheless, husband contends the trial court erred by: (1)
basing its determination on marital fault solely on notes from
the two earlier hearings; (2) its refusal to hear additional
evidence from husband on the issue of fault; and (3) crediting
wife's testimony that she was frightened of him and left because
the conflict was intolerable. We disagree.
First, we do not consider husband's contention that the
trial court improperly considered evidence from the first two
hearings because he made no objection below. Rule 5A:18.
Second, we find no error in the trial court's refusal to
hear husband's testimony on the issue of desertion. Because
husband did not proffer his expected testimony, we cannot, on
appeal, conclude that his testimony would have been relevant to
the issue of wife's intent in leaving the marital abode. See
Lockhart v. Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6
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(2001) ("[P]arty must proffer or avouch the evidence for the
record in order to preserve the ruling for appeal; otherwise,
the appellate court has no basis to decide whether the evidence
was admissible." (internal quotation and citation omitted)).
Likewise, we find that the trial court properly declined to
hear the testimony of husband's witness because, as proffered,
her testimony was not admissible on the issue of desertion.
The admissibility of evidence is within the
broad discretion of the trial court, and a
ruling will not be disturbed on appeal in
the absence of an abuse of discretion.
Evidence is admissible if it tends to prove
a matter that is properly at issue in the
case . . . .
Blain v. Commonwealth, 7 Va. App. 10, 16-17, 317 S.E.2d 838, 842
(1988) (citations omitted). Where a spouse alleges desertion by
a former spouse, the spouse must demonstrate an "'actual
breaking off of the marital cohabitation'" and "'an intent to
desert in the mind of the offender.'" Zinkhan v. Zinkhan, 2 Va.
App. 200, 205, 342 S.E.2d 658, 660 (1986) (quoting Nash v. Nash,
200 Va. 890, 893, 108 S.E.2d 350, 352 (1959)). Where the trial
court finds that a spouse is justified in leaving the marital
abode, it may not grant the other spouse a divorce on the ground
of desertion. Kerr v. Kerr, 6 Va. App. 620, 623, 371 S.E.2d 30,
32 (1988) (citing Graham v. Graham, 210 Va. 608, 616, 172 S.E.2d
724, 730 (1970)); Brawand v. Brawand, 1 Va. App. 305, 310, 338
S.E.2d 651, 653 (1986).
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In this case, the trial court ruled that wife was justified
in leaving the marital home, finding that she was "very
frightened" of him and the situation was intolerable. Because
such justification is determinative on the issue of desertion,
only evidence that tends to prove or disprove wife's
justification is relevant and admissible on the issue of
desertion. 2
Husband proffered that his witness would testify that he
had been surprised and upset when his wife left him. 3 In
ascertaining wife's state of mind when she left the marital
home, evidence of husband's reaction is irrelevant. In short,
because husband did not demonstrate that his proposed evidence
tended to prove that wife intended to desert him, the trial
court did not abuse its discretion by refusing to admit it into
evidence.
Finally, we find no merit in husband's contention that the
trial court abused its discretion by crediting wife's
uncorroborated testimony. Several witnesses corroborated wife's
contention that she was frightened and left the marriage due to
2
The issue of physical separation of the parties was not
before the court because the parties agreed that they did not
cohabitate after their separation. Therefore, the only matter
properly at issue regarding desertion is wife's intent. See
Kerr, 6 Va. App. at 623, 371 S.E.2d at 32 (noting that legal
justification rebuts the intent to desert).
3
Husband also proffered that Nancy Graham would testify
that the couple was separated continuously. Because this fact
was not in dispute, testimony on this issue is irrelevant.
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the intolerable conflict. Consequently, we will not disturb the
court's decision on this issue.
B. Allocation of Marital Debts
Husband contends that the trial court erred in allocating
all of the parties' joint marital debt to him.
In reviewing an equitable distribution award
on appeal, we have recognized that the trial
court's job is a difficult one, and we rely
heavily on the discretion of the trial judge
in weighing the many considerations and
circumstances that are presented in each
case. A decision regarding equitable
distribution . . . will not be reversed
unless it is plainly wrong or without
evidence to support it.
Gilman v. Gilman, 32 Va. App. 104, 115, 526 S.E.2d 763, 768
(2000) (internal citations and quotations omitted).
Accordingly, we find no merit in husband's contention.
First, we note that the trial court did not allocate all of
the marital debt to husband. In making this statement, husband
ignores the portion of the court's order requiring wife to pay
$7,342 in marital debt to Associates National and $3,384 in
marital debt to Chase. 4 Second, husband fails to articulate his
4
Although the trial court did not specify its
classification of these debts in its order, referring
ambiguously to these debts as the "debts in [wife's] name" it
had earlier ruled that "[the debts to Associates National and
Chase are] marital debt. . . . There's no question about [their]
classification whatsoever." See Richmond Dept. of Soc'l Servs.
v. Carter, 28 Va. App. 494, 496, 507 S.E.2d 87, 88 (1998)
(construing ambiguous language of court's order in light of the
record). Husband does not appeal this classification, nor did
he object to it before the trial court.
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basis for claiming that the court's assignment of more than half
of the marital debt to him is inequitable, and we cannot discern
one. See Moran v. Moran, 29 Va. App. 408, 417-18, 512 S.E.2d
834, 838 (1999) (finding no abuse of discretion in allocation of
52% of marital debt to husband). Husband ignores the various
equities balanced by the trial court in making its distribution,
including its award of the marital home, which had $16,000 in
equity, to husband. While the trial court allocated $25,284 of
the marital debt to husband and only $10,726 to wife, it did not
require him to pay wife her share of the equity in the marital
home. Indeed, husband asked the court to allocate a greater
share of the marital debt to him in lieu of awarding wife her
share of the equity in the marital home. Accordingly, we cannot
say that the court abused its discretion in its assignment of
marital debt.
C. Award of Permanent Spousal Support
i. Statutory Factors
In determining spousal support, the trial court must
consider all statutory factors. See Code § 20-107.1(E).
Husband contends that the trial court did not consider his
inability to pay, the parties' contributions to the well-being
of the family, and the circumstances and factors contributing to
the dissolution of the marriage and any grounds for divorce.
See Code § 20-107.1(E),(E)(1), and (E)(6). He bases his
conclusion on the absence of factual findings on each factor in
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the record. He also claims that the trial court improperly
cited wife's share of the child care responsibilities in making
its determination.
We find no merit in husband's contentions. First, he errs
in arguing that the trial court must make findings as to each
factor. See Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d
422, 427 (1986) (holding that trial court is not required "to
quantify or elaborate exactly what weight or consideration it
has given to each of the statutory factors"). Rather, the
court's determination to award spousal support, and the amount,
"must have some foundation based on the evidence presented."
Id. In this case, the trial court's order clearly states that
it considered all of the factors of Code § 20-107.1 and
specifically identified four factors that it had given
particular weight in its decision. Moreover, in explaining her
decision, the trial judge noted that while "there were some
factors that stood out[,] [t]hat does not mean that I didn't
consider all the factors . . . ."
Second, the record demonstrates that the court considered
the circumstances and factors contributing to the dissolution of
the marriage and any grounds for divorce, evidence of husband's
ability to pay spousal support, and the parties' contributions
to the well-being of the family. During the trial, the judge
stated that she heard "quite a bit of testimony about the reason
for the separation and conflict that existed in the family and
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in the marriage." She also stated that "[husband's] ability to
pay [and] the fact that he was going to keep the house had a
bearing [on her decision to award $300 per month in spousal
support to wife]," and her order notes that "[wife] makes $7,000
less per year than [husband]."
The court's order also stated that it awarded spousal
support, in part, because "[wife] contributed the majority of
the child care responsibilities post-separation . . . [as well
as] a great deal to the division of labor in the household
pre-separation." While husband contends that the court's
reliance on wife's child care responsibilities in awarding
spousal support is error, he cites no legal authority in support
of that contention, and we find none. Moreover, childrearing is
a non-monetary contribution to the well being of the family.
ii. Sufficiency of the Evidence
Husband also claims that wife failed to demonstrate need.
He argues that the evidence proved and the judge recognized that
wife did not have need because her expenses were approximately
equal to her income. We disagree.
The evidence supports the court's findings that, despite
the fact that wife's statement of expenses was "not too far off
of what her income is," wife was in need, and husband was able
to pay $300 per month in support. Husband earns $47,000 per
year, makes weekly contributions to his retirement fund, owns
two cars and a house, and spends $425 per month for food, plus
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$50 per month for lunch. 5 In contrast, wife earns $40,000 per
year, has no assets, owns one car and no home, was setting up a
new home, and spends $600 per month on groceries for herself and
her three children. The trial court, therefore, did not err in
concluding that wife was in need and husband was able to pay.
In sum, we hold that "[the court's] decision [to award $300
per month in spousal support to wife] was supported by the
evidence relevant to [the] factors [enumerated in Code
§ 20-107.1(E)]." Woolley, 3 Va. App. at 345, 349 S.E.2d at 427.
Finding no abuse of discretion, we affirm the support award.
D. Attorney's Fees
Husband contends that the court abused its discretion in
awarding wife counsel fees because: (1) he is unable to meet the
obligation; and (2) the trial court's motive for making the
award was improper. We disagree.
An award of attorney's fees is within the sound discretion
of the trial court. Wilkerson v. Wilkerson, 214 Va. 395, 398,
200 S.E.2d 581, 584 (1973). As noted in subsection C of this
opinion, the record supports the trial court's finding that
husband has an ability to meet wife's financial needs.
Consequently, his claim that the court erred by awarding wife a
portion of her counsel fees is without merit.
5
While husband presented evidence that his expenses
exceeded his income, the trial court was not required to accept
this testimony. See Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
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Additionally, husband offers no evidence to support his
contention that the trial court awarded counsel fees because
wife's bankruptcy eliminated wife's debt to counsel. Indeed,
the bankruptcy plan admitted at trial indicates that all
unsecured creditors would receive approximately 100% of the
present value of their allowed claims from the trustee.
Accordingly, we affirm the court's award of $1,000 of wife's
attorney's fees.
For the foregoing reasons, the decision of the trial court
is affirmed 6 .
Affirmed.
6
The Court grants appellee's motion to include the
statement of facts as an addendum to the appendix in this case.
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