Timothy James Silvester v. Susal Lee Silvester ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
TIMOTHY JAMES SILVESTER
MEMORANDUM OPINION * BY
v. Record No. 0515-96-3 CHIEF JUDGE NORMAN K. MOON
DECEMBER 31, 1996
SUSAN LEE SILVESTER
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
William W. Sweeney, Judge
Edward D. Barnes (Charles E. Powers; Joseph
E. Mayer; Edward D. Barnes & Associates,
P.C., on brief), for appellant.
John K. Taggart, III (Patricia D. McGraw;
Tremblay & Smith, on brief), for appellee.
Timothy James Silvester appeals the judgment of the circuit
court deciding matters of spousal support, custody, and equitable
distribution. Appellant contends the circuit court erred in: (1)
evaluating appellant's medical practice; (2) awarding forty
percent of appellant's medical practice and office building to
appellee; (3) awarding spousal support prior to issuing its
ruling on equitable distribution; (4) awarding spousal support in
an amount of $3,500 per month; (5) awarding spousal support based
on a financial situation created by the recipient's spending
habits; (6) refusing to impute income to appellee for purposes of
determining spousal support; (7) refusing to impute income to
appellee for purposes of calculating child support; (8)
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
calculating child support without including in the gross income
of the party requesting child support the spousal support which
was awarded her; and (9) awarding $8,000 in attorney's fees. We
affirm the judgment.
The parties were married on December 27, 1969. Four
children were born to the marriage, the first in 1972 and the
last and only minor in 1980. They separated on June 20, 1993. A
divorce decree was granted to appellant on October 13, 1994, on
the grounds that the parties had lived separate and apart for
more than one year.
When they married, appellant was in graduate school. Six
months later he completed graduate school and entered medical
school. He was in medical school for four years and subsequently
pursued five additional years of residency and practice before
moving to Lynchburg, Virginia. During the nine years in which he
was receiving his medical education, he borrowed money, worked as
a resident, and for the summer held part-time jobs. During this
time, appellee worked for two periods earning between $250 and
$300 a week in each position.
Once they relocated to Lynchburg, appellant borrowed $60,000
to $70,000 to begin his practice as a plastic surgeon. The
practice grew steadily and he added two partners. In the 1980's
one of the partners became sick and business problems developed.
The practice incurred substantial debt during the 1990's.
Appellee did not contribute to the practice or participate in
appellant's activities to establish himself in the medical
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community.
During the course of the marriage appellee managed the home
and tended to the day-to-day duties of raising the children.
Appellant's annual income eventually reached approximately
$175,000. Appellee was not employed during this period. Marital
troubles developed regarding family finances. Appellee concealed
from appellant some of her debts. She spent more than $75,000 on
clothing and accessories. She also borrowed without appellant's
knowledge.
In 1988, appellee inherited approximately $390,000 from her
mother. At separation her account balance was $269,000. At the
final hearing her account balance was $10,000.
In the trial court's February 14, 1996 final decree, (1)
custody of Chris, the only minor child, was awarded to appellee;
(2) child support was based on the statutory guidelines without
deviation; (3) spousal support was set at $3,500 with no income
imputed to appellee; (4) appellant's share in his medical
practice was valued at $70,000 and sixty percent was awarded to
appellant and forty percent to appellee; (5) appellant's share in
his office building was valued at $41,456 and sixty percent was
awarded to appellant and forty percent to appellee; and (6)
appellee was awarded $8,000 in attorney's fees and an additional
sum not to exceed $1,000 in costs.
Valuation of Medical Practice
Appellant's expert valued appellant's interest in his
medical practice at $65,275, and appellee's expert valued the
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practice at $79,333. However, appellant's expert admitted that
had he been aware of certain other assets, he would have valued
appellant's interest at $75,941.
Where experts offer conflicting testimony it is within the
purview of the trial court to determine credibility. Reid v.
Reid, 7 Va. App. 553, 563, 375 S.E.2d 533, 539 (1989). Here, the
court heard evidence by both parties' experts who offered their
opinions on the value of the appellant's interest, valuations
which included both experts' recognition of the buy-sell
agreement controlling the stock. Contrary to appellant's
argument on brief, in Bosserman v. Bosserman, we did not uphold
the trial court's use of a buy-sell agreement to value closely
held stock. 9 Va. App. 1, 7, 384 S.E.2d 104, 108 (1989). We
held that such an agreement is a factor to be considered in
valuing an asset, but it is not conclusive as to the value. Id.
The trial court was not plainly wrong in deciding the value
of $70,000, and was not bound to select the specific value
offered by either party's expert, regardless of their relative
qualifications as experts. See Zipf v. Zipf, 8 Va. App. 387,
394, 382 S.E.2d 263, 267 (1989). We find there is sufficient
evidence in the record to support the trial court's valuation.
Award of Forty Percent of Practice and
Office Building to Appellee
The trial court's award is not to be disturbed on appeal
unless plainly wrong or without evidence to support it.
Bosserman, 9 Va. App. at 5, 384 S.E.2d at 107. The trial court,
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after noting its consideration of all the factors prescribed by
Code § 20-107.3, awarded appellee forty percent of appellant's
interest in his medical practice and in the office building.
"The purpose of Code § 20-107.3 is to fairly divide the value of
the marital assets acquired by the parties during marriage with
due regard for both their monetary and nonmonetary contributions
to the acquisition and maintenance of the property and to the
marriage." Bosserman, 9 Va. App. at 5, 384 S.E.2d at 107 (citing
Robinette v. Robinette, 4 Va. App. 123, 130, 354 S.E.2d 808, 811
(1987)).
Here, the trial court determined that appellant's interest
in his medical practice and the office building was marital
property. Appellant argues that the trial court erred because
the court's award is not reconcilable with several of the factors
prescribed in Code § 20-107.3. Specifically, appellant argues
that his contributions both to the overall marital estate, and to
the practice and office building, vastly exceeded appellee's
contributions to the same assets.
While it is evident that appellant was almost entirely
responsible for the development and success of his practice, the
record also contains considerable evidence of appellee's
nonmonetary and monetary contributions to the marital estate.
Appellee and appellant were married for a period of twenty-five
years and during that time appellee was almost solely responsible
for the upkeep of the marital residence and the raising of the
children. In addition, appellee's parents contributed to the
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parties' marital estate, purchasing automobiles for them and,
until the death of appellee's mother, paying all of the private
educational expenses of the children. Appellee's inheritance,
while used in part for appellee's extensive purchasing of clothes
and accessories, was also contributed to the marital estate.
Appellee's separate funds were used to pay for various trips for
the family, for the purchase of household items, and for the
support of the children. Appellee used $139,000 to pay the
children's educational expenses; $5,000 was used in the purchase
of the office building.
Appellee's maintenance of the family home, support of the
parties' children, and use of a significant portion of her
separate assets for these causes allowed appellant to devote his
time and energies to the development of his practice. The trial
court was not plainly wrong in finding that the wife's
nonmonetary and monetary contributions to the marriage were
substantial. Thus, we find there is evidence in the record of
the trial court's consideration of the factors prescribed by Code
§ 20-107.3(E) and that the evidence was sufficient to support the
findings of the trial court.
Spousal Support
Code § 20-107.1 delineates the specific factors to be
considered by the trial court in determining spousal support. In
making a spousal support award, the trial court has broad
discretion, and on appeal the award will not be reversed unless
plainly wrong or without evidence to support it. Gibson v.
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Gibson, 5 Va. App. 426, 434, 364 S.E.2d 518, 523 (1988). Here,
the trial court's consideration of the statutory factors is
evidenced by the court's statement that "[p]ursuant to § 20-107.1
. . . spousal support is set at $3,500 per month."
Appellant properly notes that mere recitation that the
factors have been considered is insufficient. Id. at 435, 364
S.E.2d at 523. "[W]e must examine the record to determine if the
award is supported by evidence relevant to those factors." Id.
Provided the record indicates the court's consideration of the
factors prescribed by Code § 20-107.1, the trial court need not
disclose the totality of its considerations nor must the trial
court address each factor point by point in its opinion. Here,
the record contains evidence relating to the statutory factors
with which to make an award. Accordingly, we hold that the
record does not show that the trial court failed to consider the
appropriate factors or to accord them proper weight within the
bounds of his discretion.
Imputation of Income
Appellant argues that the trial court erred in not imputing
income for purposes of determining spousal and child support
because the record indicates that appellee is voluntarily
underemployed. Appellant also argues that the trial court erred
by not considering income appellee receives from her personal
assets and income that will be generated by appellee's portion of
the equitable distribution award.
A party seeking spousal support is obligated to earn as much
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as they reasonably can in order to reduce the amount of support
needed. Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396
S.E.2d 675, 679 (1990). In keeping with this principle a court
may, under appropriate circumstances, impute income to a party
who seeks spousal support. Id. However, we have also previously
held that "the court, in setting support awards, must look to
current circumstances and what the circumstances will be ``within
the immediate or reasonably foreseeable future,' not to what may
happen in the future. Id. at 734-35, 396 S.E.2d at 679 (quoting
Young v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986)).
Here, appellee was forty-four years of age, possessed a
two-year degree and had no appreciable work experience as she was
a full-time mother and homemaker during the parties' twenty-five
years of marriage. Appellee is considerably less well suited for
reentering the job market than was the wife in Srinivasan, where
we concluded that despite the fact that the wife possessed a
Ph.D. and had taught at George Mason University, the court
improperly imputed income to her. Id. at 735, 396 S.E.2d at
679-80. We found that "Mrs. Srinivasan, at the time of divorce,
was leading the life style she was accustomed to during the
marriage . . . [and] the evidence did not support a finding that
she had unreasonably refused to accept employment as of the date
of divorce and she was thus entitled to a reasonable time to
secure employment." Id. at 735, 396 S.E.2d at 679. Such a
finding is also appropriate here. If, after a reasonable time,
appellee unreasonably refuses to seek or accept employment, the
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imputation of income may be justified. Further, no evidence was
presented as to the availability of a position for which appellee
was qualified, or what the amount of income would be for such
position.
Appellant's arguments regarding the court's failure to
consider the income wife could have earned or will earn from her
separate assets and the assets obtained via the equitable
distribution award are also unpersuasive. Although appellee did
receive substantial inheritance from her mother, evidence was
presented that those funds have since been all but exhausted. As
noted, in making a support award and determining whether to
impute income, the trial court must look at the present
circumstances of the parties. Id. The record indicates that the
trial court considered the assets to be awarded wife and those
separate assets remaining to her in making its support award and
refusing to impute income. The wife had considerable debt
including attorney's fees which she would be required to pay with
her current assets. Imputation of income is within the trial
court's discretion. Here, credible evidence supported the trial
court's decision that imputation of income was not appropriate,
and thus no abuse of discretion is proved.
Child Support
Appellant asserts that the trial court erred in calculating
child support without including appellee's spousal support in her
gross income. We need not reach this issue as the question is
moot because the dependent child for whom support was ordered now
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lives with appellant. Even assuming an error in the calculation
of the amount of the child support, appellant is not entitled to
restitution. See Reid v. Reid, 245 Va. 409, 415, 429 S.E.2d 208,
211 (1993).
Attorney's Fees
The award of attorney's fees is a matter vested in the sound
discretion of the trial court and is reviewable on appeal only
for an abuse of discretion. Alphin v. Alphin, 15 Va. App. 395,
425 S.E.2d 572 (1992). The trial court awarded appellee $8,000
in attorney's fees and a sum not to exceed $1,000 for costs. At
trial appellee testified that she had incurred fees in excess of
$30,000 and expenses in excess of $1,000. The lengthy nature of
the proceedings and the complexity of the deliberations are also
apparent from the record. We find that the trial court's award
of attorney's fees was not excessive.
Accordingly, we affirm the trial court's award.
Affirmed.
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