Ezzat Zein v. Nora H. Zein ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
EZZAT ZEIN
v. Record No. 1476-95-4 MEMORANDUM OPINION *
PER CURIAM
NORA H. ZEIN FEBRUARY 20, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Quinlan H. Hancock, Judge
(Richard C. Shadyac, Jr.; Richard B. Orsino; Shadyac &
Shadyac, on briefs), for appellant.
(Kenneth H. Rosenau; Susan H. Rosenau; Rosenau &
Rosenau, on brief), for appellee.
Ezzat Zein (husband) appeals the decision of the circuit
court awarding spousal support to Nora H. Zein (wife) and
deciding other issues. The husband raises the following
questions on appeal:
(1) whether the trial court erred in
determining the value of husband's
business;
(2) whether the trial court failed to
consider the statutory factors
before granting a monetary award to
wife;
(3) whether the trial court failed to
consider the statutory factors
before allocating the parties'
debt;
(4) whether the trial court erred in
determining husband's income;
(5) whether the trial court erred in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
awarding wife spousal support;
(6) whether the trial court abused its
discretion by awarding wife $25,000
in attorney's fees; and
(7) whether the trial court's equitable
distribution decision was
inequitable, punitive, and
unsupported by the evidence.
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. Rule 5A:27.
"The judgment of a trial court sitting in equity, when based
upon an ore tenus hearing, will not be disturbed on appeal unless
plainly wrong or without evidence to support it." Box v. Talley,
1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986). We note that in
the proceeding below "'[t]he credibility of witnesses was crucial
to the determination of the facts, and the findings of the trial
court based upon the judge's evaluation of the testimony of
witnesses heard ore tenus are entitled to great weight.'"
Gottlieb v. Gottlieb, 19 Va. App. 77, 83, 448 S.E.2d 666, 670
(1994) (citation omitted).
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). "Unless it appears from the record that
the trial judge has not considered or has misapplied one of the
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statutory mandates, this Court will not reverse on appeal."
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630
(1989).
The parties' single largest marital asset was the husband's
business, Zein, Inc. The wife's expert opined that the net value
of the business was $282,708. The husband's expert valued the
business at $48,920. Both experts admitted that they did not
have all relevant information when evaluating the business.
While the trial court found the wife's expert to be more
credible, it noted that it "was not impressed with the testimony
of either witness." The trial court did not, and was not
required to, "accept as conclusive the opinion of an expert."
Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471, 474
(1989).
The trial court gave greatest weight to the fact that the
valuation made by the wife's expert was consistent with the
husband's admissions in numerous unrelated submissions to the
Internal Revenue Service, the Immigration and Naturalization
Service, his bank, and the company from whom he leased his car.
While the husband characterized those filings as "puffing," the
trial court rejected the husband's testimony, noting that it "did
not and does not believe most of what [husband] testified to
during the trial of this case." Credible evidence supports the
trial court's determination of the value of Zein, Inc.
Noting the husband's property transfers and other dealings,
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the trial court observed that "this is a fifteen year marriage
and other than three children [wife] doesn't have much to show
for it." The husband lives in the former marital home, which is
now owned by his brother. The business, though a marital asset,
was not jointly owned and not subject to division. Code
§ 20-107.3(C).
Code § 20-107.3(C) provides, in part, that "[t]he court
shall also have the authority to apportion and order the payment
of the debts of the parties, or either of them, that are incurred
prior to the dissolution of the marriage, based upon the factors
listed in subsection E." "The purpose and nature of the debt,
and for and by whom any funds were used, should be considered in
deciding whether and how to credit or allot debt." Gamer v.
Gamer, 16 Va. App. 335, 341, 429 S.E.2d 618, 623 (1993). The
husband admitted that he incurred $25,000 in credit card debt
after the parties separated and that he obtained joint credit
cards without the wife's knowledge. The trial court accepted the
wife's testimony that she was responsible for $1,560 in credit
card debt. The trial court did not abuse its discretion in
holding the husband responsible for payment of any additional
outstanding debts owed by Zein, Inc. or by the husband.
We find no abuse of discretion in the trial court's decision
to grant the wife a monetary award equivalent to one-half the net
value of Zein, Inc. The trial court's opinion manifests that it
considered the statutory factors when making the equitable
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distribution decision. "The court need not quantify or elaborate
exactly what weight was given to each of the factors," provided
its findings are based upon credible evidence. Taylor v. Taylor,
5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988). The proof
offered for a number of the parties' financial transactions was
largely testimonial, and the trial court was entitled to
determine whether that testimony was credible. The husband has
not demonstrated that the trial court's findings of fact
underlying its equitable distribution decision were clearly
erroneous or that it abused its discretion.
Spousal Support
In its letter opinion, the trial court found as follows:
[T]he inescapable conclusion is that
[husband] has gone to great lengths to
misrepresent his income, his assets and the
value of Zein, Inc. He has taken advances
from Zein, Inc. and paid personal debts,
including child support, which clearly proves
that his yearly income, at a minimum is
between $75,000.00 and $100,000.00 per year.
Credible evidence supports the trial court's finding. The
husband wrote checks from the Zein, Inc. business account to pay
his personal expenses. The husband's unrelated representations
to third parties about his earnings provided additional support
for the trial court's conclusion that the husband's income was at
least $75,000. Therefore, we find no error in the trial court's
determination of the husband's income.
"In determining spousal support, a trial court has broad
discretion and 'the appellate court will not interfere with such
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discretion, unless it is clear that some injustice has been
done.'" Morris v. Morris, 3 Va. App. 303, 309, 349 S.E.2d 661,
664 (1986) (citation omitted).
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. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
The trial court's opinion demonstrates that it considered
the statutory factors before setting the amount of spousal
support. The trial court found the husband's income to be
greater than he claimed, and the wife's assets at the end of the
marriage to be few. Credible evidence supports the trial court's
assessment. The wife testified that her annual income was
$12,000, although earlier in the marriage and prior to the birth
of the parties' three children, she had earned as much as
$44,000. At the time of the hearing, the husband lived in the
marital home purchased by his brother at foreclosure for
$237,000, while the wife and the parties' children lived with her
father. The husband drove a leased Mercedes, while the wife
drove her father's 1986 Pontiac. Thus, the record contained
evidence from which the trial court could determine that the
wife's standard of living had declined and that the wife was in
need of support.
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We find no grounds to reverse the trial court's award based
upon the husband's argument that the trial court improperly
relied upon the pendente lite award in setting the amount of
permanent spousal support. In its letter opinion, the trial
court ordered the parties to submit spousal support and child
support worksheets for further consideration. After the
submission of the worksheets and accompanying argument, the trial
court ruled that "the spousal support I felt was correct at
$846.30." The husband has not demonstrated a clear abuse of
discretion. Therefore, we will not disturb the spousal support
decision.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The trial court specifically found that "the fact is that
[husband] has failed to provide truthful information in both
discovery and trial" and that "[a]s a consequence [wife] has had
to spend considerable time on this case." The wife incurred over
$50,000 in attorney's fees, including costs associated with
extensive and expensive discovery. Based on the number of issues
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involved, the husband's lack of cooperation with discovery, and
the respective abilities of the parties to pay, we cannot say
that the award was unreasonable or that the trial court abused
its discretion in awarding the wife $25,000 in attorney's fees.
Accordingly, the decision of the trial court is summarily
affirmed.
Affirmed.
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