Henry E. Thomas, IV v. Marian M. Thomas ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
HENRY E. THOMAS, IV
MEMORANDUM OPINION * BY
v. Record No. 1619-95-4 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 26, 1996
MARIAN M. THOMAS
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald H. Kent, Judge
Robert B. Machen for appellant.
David H. Fletcher (Martin A. Gannon; Gannon,
Cottrell & Ward, P.C., on brief), for
appellee.
On appeal from a final decree granting his wife, Marian M.
Thomas, a divorce, Henry E. Thomas, IV contends that the trial
court erred (1) in granting the divorce on the ground of cruelty,
(2) in sanctioning him for his failure to comply with discovery
orders, (3) in awarding pendente lite and permanent spousal
support to Ms. Thomas, (4) in determining the equitable
distribution award, and (5) in awarding Ms. Thomas attorney's
fees. We find no error and affirm the judgment of the trial
court.
Mr. and Ms. Thomas were married on December 20, 1964. They
have two sons, both of whom are emancipated. Presently, Mr.
Thomas is unemployed and Ms. Thomas is employed by the Society
for the Prevention of Blindness. Throughout the marriage, Mr.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Thomas kept his money separate, paying only the mortgage, real
estate taxes, insurance, and utilities for the marital residence.
Ms. Thomas paid all other expenses. During the marriage, Mr.
Thomas failed on numerous occasions to pay the expenses that he
had accepted as his responsibility. In addition to her monetary
contributions to the marriage, Ms. Thomas cared for the parties'
children, maintained their home, including repairs and
renovations, and supported her husband's career by entertaining
his colleagues.
In November, 1993, Mr. Thomas left the marital home and
never returned. During the preceding ten years, the parties had
but one occasion of physical relationship. On that occasion, Mr.
Thomas told his wife that he fantasized about being homosexual
and that she was the only one who could "save" him. She later
found a register from a bed and breakfast establishment that
caters to homosexuals, revealing that husband had spent a weekend
there with another man. She also found correspondence that he
had received through a homosexual pen pal club, along with
homosexual pornographic videos and paraphernalia.
On November 19, 1993, Ms. Thomas sued for divorce on grounds
of cruelty and constructive desertion, alleging particularly Mr.
Thomas' homosexuality. In his answer and in response to requests
for admissions, Mr. Thomas admitted under oath his homosexuality.
On February 9, 1994, the parties entered into a consent order
and agreed that Ms. Thomas would have exclusive use and
- 2 -
possession of the marital home and that neither party would
dissipate the marital estate.
At a February 16, 1994 pendente lite hearing, Ms. Thomas was
awarded $800 per month spousal support and a $3,200 lump sum
spousal support award to meet her personal needs. Mr. Thomas
made no payment and on July 27, 1994, the trial court held him in
civil contempt and entered judgment against him for the
arrearage.
Prior to the final hearing on February 21, 1995, the trial
court sanctioned Mr. Thomas in accordance with Rule 4:12 for
failing to comply with discovery orders and failing to file
property lists. As a result of these sanctions, he was precluded
from claiming any personal property located in the marital
residence and from introducing in support of his claims any
documents not already produced.
On February 24, 1995, Mr. Thomas notified the trial court
that he had filed for bankruptcy in Washington, D. C. This
filing automatically stayed the divorce proceedings. On March 2,
1995, the stay was lifted until completion of the divorce
proceedings.
On June 26, 1995, the trial court entered a final decree
granting Ms. Thomas a divorce on the ground of cruelty. The
decree awarded her (1) the jointly titled marital home, requiring
her to pay a monetary award to Mr. Thomas equal to thirty percent
of the property's equity, (2) one-half of Mr. Thomas's A. T.
- 3 -
Kearney Retirement Plan, (3) one-half of any pension he may
receive through the United States Government as a result of
military or civil service, (4) $800 per month in spousal support,
(5) $66,326.39 in attorney's fees, and (6) judgment for the
past-due pendente lite spousal support. Items (5) and (6) were
offset against Mr. Thomas' thirty percent equity in the marital
residence.
I.
GROUND FOR DIVORCE
Mr. Thomas contends that the trial court erred in awarding
Ms. Thomas a divorce on the ground of cruelty. He argues that
there was no evidence that his alleged homosexual activity
amounted to cruelty and that Ms. Thomas condoned his homosexual
behavior. He also argues that Ms. Thomas did not specifically
plead his homosexuality as a ground of fault.
"'Under familiar principles we view [the] evidence and all
reasonable inferences in the light most favorable to the
prevailing party below. Where, as here, the court hears the
evidence ore tenus, its finding is entitled to great weight and
will not be disturbed on appeal unless plainly wrong or without
evidence to support it.'" Pommerenke v. Pommerenke, 7 Va. App.
241, 244, 372 S.E.2d 630, 631 (1988) (citation omitted).
The evidence established that Mr. Thomas admitted under oath
that he was homosexual, that he spent at least one weekend with
another man, that he received correspondence from homosexual men
- 4 -
through a homosexual pen pal club, and that he confessed his
homosexuality to his children and colleagues. He assaulted Ms.
Thomas during a confrontation over his homosexual conduct. The
trial court did not err in allowing Ms. Thomas to produce this
evidence because she specifically pleaded it in her bill of
complaint for divorce. The trial court properly awarded Ms.
Thomas a divorce on the ground of cruelty.
The trial court did not err in finding that Ms. Thomas had
not condoned her husband's homosexuality. "Knowledge of the
misconduct is necessary before condonation may occur." Hollis v.
Hollis, 16 Va. App. 74, 77, 427 S.E.2d 233, 235 (1993). The
evidence showed that at the time the parties had sexual
relations, Ms. Thomas believed Mr. Thomas' homosexuality was a
fantasy. When she discovered that it truly existed, she
terminated marital relations.
II.
DISCOVERY
Mr. Thomas contends that the trial court erred in imposing
sanctions against him pursuant to Rule 4:12 for failing to comply
with the February 3, 1995 order requiring discovery and the
filing of property lists. He argues that the February 3 order
was not entered until February 21, and that the court erred in
entering it on that date in violation of Rule 4:12(a), which
requires reasonable notice to all parties for entry of an order
compelling discovery.
- 5 -
We find no error with the trial court's entry of the
February 3 discovery order on February 21. Since February 14,
1994, when the first discovery order was entered, Mr. Thomas was
aware that he was required to comply with court-ordered discovery
requests. He stated his intent to comply, but never did so. His
attempt to produce documents on February 21 was evidence of his
knowledge that a discovery order was in existence and that
compliance with discovery orders was mandatory. However, his
attempt to comply came too late.
Mr. Thomas also contends that the court-ordered sanctions
were improper. He argues that because the documents requested in
the discovery order were in Ms. Thomas' possession until seven
days prior to the equitable distribution hearing, the trial court
erred in sanctioning him for noncompliance. He further argues
that the sanction precluding him from requesting any personal
property located in the marital residence prevented proper
equitable distribution of that property.
Mr. Thomas' argument that the documents requested were in
Ms. Thomas' possession until just prior to the hearing lacks
merit. On December 21, 1994, Mr. Thomas requested from Ms.
Thomas his personal papers located at their home. She complied
with his request and made the papers available, but not until two
months later did he actually pick them up. The documents
requested by Ms. Thomas were not among those papers. On the
morning of the equitable distribution hearing, Mr. Thomas
- 6 -
attempted to produce some of the requested documents. Because he
failed to comply with discovery, the trial court properly entered
an order precluding him from producing in support of his claims
any documents not already produced. Rule 4:12(b)(2)(B).
We find no error in the trial court's precluding Mr. Thomas
from claiming any personal property located in the marital
residence. On February 3, 1995, the court ordered the parties to
exchange personal property lists. Ms. Thomas complied. Because
Mr. Thomas had the opportunity to comply, but failed to, the
trial court properly precluded him from claiming any personal
property.
III.
EQUITABLE DISTRIBUTION
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396
S.E.2d 675, 678 (1990). We will not reverse an award, "[u]nless
it appears from the record that the chancellor has abused his
discretion, that he has not considered or has misapplied one of
the statutory mandates, or that the evidence fails to support the
finding of fact underlying his resolution of the conflict in the
equities. . . ." Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d
728, 732 (1987).
Mr. Thomas contends that the trial court erred in failing to
- 7 -
distribute the parties' personal property equitably and in
failing to apply the statutory factors of Code § 20-107.3(E). We
disagree.
Mr. Thomas was entitled to no personal property located in
the marital residence because he failed to comply with the
court-ordered property list requirement and was sanctioned
accordingly. Therefore, the trial court did not err by awarding
all personal property to Ms. Thomas.
In making the equitable distribution award of the parties'
three marital assets, the marital residence, Mr. Thomas' A. T.
Kearney Retirement Plan, and his government pension for both
military and civil service, the trial court considered the
factors set forth in Code § 20-107.3(E) and applied them to the
facts. A trial court when considering the statutory factors of
Code § 20-107.3(E) "is not required to quantify the weight given
to each, nor is it required to weigh each factor equally, though
its considerations must be supported by the evidence." Marion v.
Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436 (1991).
The parties' single largest marital asset was the marital
residence valued at $520,000, subject to a $65,000 mortgage. The
trial court found that Ms. Thomas made all the nonmonetary and
many of the monetary contributions to the marital residence.
While Mr. Thomas asserted that he assumed responsibility to pay
the mortgage, real estate taxes, utilities and insurance, he
lapsed in those duties on several occasions and paid nothing
- 8 -
since September, 1994. Ms. Thomas saved the home from
foreclosure and maintained it for the family. The trial court
stated expressly that it considered the statutory factors in
making the equitable distribution award. Mr. Thomas has not
demonstrated that the trial court's findings of fact underlying
its equitable distribution decision were clearly erroneous or an
abuse of discretion. Therefore, we find that the evidence
supports the trial court's award of seventy percent of the equity
of the marital residence to Ms. Thomas and thirty percent thereof
to Mr. Thomas, and its requirement that he transfer his interest
to Ms. Thomas upon receipt of his portion of the equity.
IV.
SPOUSAL SUPPORT
Mr. Thomas contends that the trial court erred (1) in
awarding Ms. Thomas $800 a month and a $3,200 lump sum payment of
pendente lite spousal support, (2) in failing to consider the
factors of Code § 20-107.1 in making the pendente lite award, and
(3) in holding him in civil contempt for failing to pay. He
argues that because he was unemployed and suffered from a mental
illness, he was unable to pay the pendente lite support and
should not have been held in contempt. We disagree.
Code § 20-103 states in pertinent part:
A. In suits for divorce . . . the court
having jurisdiction of the matter may, at any
time pending a suit pursuant to this chapter,
in the discretion of such court, make any
order that may be proper (i) to compel a
spouse to pay any sums necessary for the
maintenance and support of the petitioning
- 9 -
spouse . . . (ii) to enable such spouse to
carry on the suit . . . .
See Kleinfield v. Veruki, 7 Va. App. 183, 190, 372 S.E.2d 407,
411 (1988). We find no error in the trial court's award of
pendente lite spousal support to Ms. Thomas. Her income was
insufficient to cover her living expenses and the mortgage and
real estate taxes on the marital residence. She needed support.
Although Mr. Thomas was not then working, he had the ability to
work and the obligation to pay Ms. Thomas spousal support
pursuant to Code § 20-103. See Weizenbaum v. Weizenbaum, 12 Va.
App. 899, 904, 407 S.E.2d 37, 40 (1991).
We find no error in the trial court's holding Mr. Thomas in
contempt for failing to pay the pendente lite spousal support.
"A trial court 'has the authority to hold [an] offending party in
contempt for acting in bad faith or for willful disobedience of
its order.'" Alexander v. Alexander, 12 Va. App. 691, 696, 406
S.E.2d 666, 669 (1991) (citing Carswell v. Masterson, 224 Va.
329, 332, 295 S.E.2d 899, 901 (1982)). The trial court found no
justification for Mr. Thomas not paying the pendente lite
support. We cannot say that the trial court's finding that Mr.
Thomas willfully violated the order is plainly wrong or without
evidence to support it. Therefore, the trial court did not err
in finding Mr. Thomas in civil contempt.
Mr. Thomas next contends that the trial court abused its
discretion in awarding $800 per month spousal support to Ms.
Thomas without considering the factors in Code § 20-107.1.
- 10 -
Specifically, he argues that the trial court failed to consider
his current earning capacity, his mental and physical health, the
property interests of the parties, and the provisions made with
regard to the marital property under Code § 20-107.3. We
disagree.
"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). "In awarding spousal
support, the chancellor must consider the relative needs and
abilities of the parties. He is guided by the nine factors that
are set forth in Code § 20-107.1." Collier v. Collier, 2 Va.
App. 125, 129, 341 S.E.2d 827, 829 (1986). "When the court does
not quantify or elaborate on what weight or consideration it has
given each factor, we must examine the record to determine if the
award is supported by evidence relevant to those factors."
Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d 518, 523 (1988)
(citing Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422,
426 (1986)).
It is clear from the record that the trial court considered
the statutory factors before making the award of spousal support.
The trial court found that Mr. Thomas was capable of earning a
substantial income based on his salary history and that Ms.
Thomas needed support because she could not pay the mortgage,
- 11 -
insurance, and real estate taxes on the marital residence and her
living expenses. A trial court's discretion to order support may
be based not only on actual earnings, but also on earning
capacity. See Brooks v. Brooks, 201 Va. 731, 113 S.E.2d 872
(1960). The trial court considered Mr. Thomas' testimony
regarding his alleged illness, the fact that he was not awarded
any personal property, and the fact he was awarded a thirty
percent equity in the marital residence. The evidence
established that for Ms. Thomas to maintain the marital residence
and support herself, she needed spousal support. The evidence
supported the finding that Mr. Thomas was not mentally ill and
was capable of working.
We find no merit in Mr. Thomas' argument that the trial
court did not decide spousal support pursuant to Code § 20-107.1,
but rather relied on the pendente lite award. The trial court
heard all the evidence and examined Ms. Thomas' monthly income
and expense statement before ruling that "$800 per month [spousal
support] is reasonable, based upon the needs of the complainant,
and the earning capacity of the defendant." Therefore, we will
not disturb the spousal support award.
V.
ATTORNEY'S FEES
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
- 12 -
333, 357 S.E.2d 554, 558 (1987). "[T]he key to a proper award of
counsel fees [is] to be reasonableness under all of the
circumstances . . . ." McGinnis v. McGinnis, 1 Va. App. 272,
277, 338 S.E.2d 159, 162 (1985).
The trial court specifically found the itemized list of Ms.
Thomas' attorney's fees to be reasonable and necessary. Based on
Mr. Thomas' lack of cooperation with discovery, we cannot say the
award was unreasonable or that the trial court abused its
discretion in awarding Ms. Thomas $66,326.39 in attorney's fees.
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
- 13 -