Samuel Victor Palmer v. Edna Lee Palmer ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
SAMUEL VICTOR PALMER
v. Record No. 1214-95-2 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
EDNA LEE PALMER MAY 14, 1996
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
James Emmett Anderson for appellant.
Harry P. Anderson, Jr., for appellee.
Edna Lee Palmer (wife) and Samuel Victor Palmer (husband)
were divorced by decree of the trial court which retained
jurisdiction to thereafter "adjudicate the remedies provided by
. . . Code [§§] 20-107.1, 107.2 and 107.3" and "to award counsel
fees and costs . . . ." These remaining issues were resolved by
a further order which allocated certain marital property and
debts between the parties, vested physical custody of their
infant child in wife, fixed the related child support
obligations, and awarded wife spousal support and counsel fees.
Husband challenges each ruling on appeal. For those reasons
hereinafter set forth, we reverse in part and affirm in part.
The parties are fully conversant with the record, and a
recitation of the facts is unnecessary to this memorandum
opinion. "Upon familiar principles, we review the evidence on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appeal in the light most favorable to . . . the party prevailing
below." Cook v. Cook, 18 Va. App. 726, 731, 446 S.E.2d 894, 896
(1994).
EQUITABLE DISTRIBUTION
"[I]n reviewing an equitable distribution award, we rely
heavily on the trial judge's discretion in weighing the
particular circumstances of each case." Aster v. Gross, 7 Va.
App. 1, 8, 371 S.E.2d 833, 837 (1988). Accordingly, we defer to
the chancellor's resolution of the conflicting equities and will
upset an award only if unsupported by the evidence or the result
of an abuse of discretion or failure to follow statutory mandate.
Banagan v. Banagan, 17 Va. App. 321, 326, 437 S.E.2d 229, 231-32
(1993) (citations omitted).
Here, the record discloses a $50,438 IRS lien on the marital
home. However, the trial court, without support in the record,
concluded that "a realistic settlement of the lien would be
approximately $20,000." 1 This determination infected the related
equitable distribution with error, necessitating a
reconsideration by the trial court of the parties' respective
interests pursuant to Code § 20-107.3.
On remand, although the trial court need not assign a weight
to each factor prescribed by Code § 20-107.3, we caution that it
must be guided by the statute in fashioning a proper award.
1
Because we reverse and remand on this issue, we decline to
specifically address husband's additional challenges to the
award.
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CUSTODY
When addressing matters concerning a child
. . . the paramount consideration of a trial
court is the child's best interests. On
review, "[a] trial court is presumed to have
thoroughly weighed all the evidence,
considered the statutory requirements, and
made its determination based on the child's
best interests." Furthermore, the evidence
is viewed in the light most favorable to the
prevailing party below and its evidence is
afforded all reasonable inferences fairly
deducible therefrom. "In matters of a
child's welfare, trial courts are vested with
broad discretion in making the decisions
necessary to guard and to foster a child's
best interests." The trial court's judgment,
"when based on evidence heard ore tenus, will
not be disturbed on appeal unless plainly
wrong or without evidence to support it."
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123,
128, 409 S.E.2d 460, 463 (1991) (citations omitted); see Code
§§ 20-124.1 through 20-124.3.
Here, the trial court vested legal custody of the child in
both parents, "with [wife] having the primary physical and
residential custody of the child and [husband] having liberal and
reasonable visitations . . . ." The court noted a "concern[]
about the inability of the parties to communicate" but concluded
that "joint custody should be attempted in fostering the best
interest of [the child]." The resulting custodial arrangement
comports with Code §§ 20-124.1 through 20-124.3.
Our review of the record discloses ample evidence to support
the trial court's order, without suggestion of an abuse of
2
discretion.
2
Husband's contention that the trial court "recant[ed]" an
earlier ruling is without merit.
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CHILD SUPPORT
In determining an appropriate award of child support, "the
court shall consider all evidence presented relevant to any
issues joined in that proceeding," and the "decision . . . shall
be rendered upon the evidence relevant to each individual case."
Code § 20-108.1(B). "However, there shall be a rebuttable
presumption . . . that the amount of the award which would result
from the application of the guidelines set out in Code § 20-108.2
is the correct amount of child support . . . ." Id. Deviation
is permissible upon consideration of specific statutory factors,
if accompanied by "written findings in the order . . . that the
. . . guidelines would be unjust or inappropriate in a particular
case." Id.
Here, in computing the parties' support obligations pursuant
to Code § 20-108.2, the trial court assigned monthly "gross
income" to husband of $2,300, without evidence to support this
finding. See Code § 20-108.2(C). The statutory formula
correlates the gross income of the parents, the amount of the
support award, and the respective obligation of each parent.
Code § 20-108.2. Thus, attribution of an incorrect gross income
component to husband resulted in an erroneous computation of his
support obligation, an error which requires remand.
SPOUSAL SUPPORT
Code § 20-107.1 requires the court to consider certain
enumerated circumstances in ascertaining an award of spousal
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support, if any. "This does not mean that the trial court is
required to quantify or elaborate exactly what weight . . . it
has given to each . . .," provided "the court's findings . . .
have some foundation based on the evidence presented." Woolley
v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
Because our disposition of several issues subject of this
appeal impact upon circumstances relevant to spousal support, we
must also reverse and remand the instant award for
reconsideration by the trial court, guided by the provisions of
3
Code § 20-107.1.
ATTORNEY'S FEES
The trial court will doubtless revisit attorney's fees in
the context of other issues remanded by this decision, and we,
therefore, reverse and remand the present award to permit such
further consideration. See Westbrook v Westbrook, 5 Va. App.
446, 458, 364 S.E.2d 523, 530 (1988) (citations omitted); Code
§ 20-79.
Accordingly, the order of the trial court is reversed in
part and affirmed in part, and the cause is remanded for further
proceedings in accordance with this opinion.
Affirmed in part,
reversed in part,
3
Should the issue of "lump sum" spousal support arise on
remand, the unique character of such relief must be considered by
the trial court. Code § 20-107.1; Blank v. Blank, 10 Va. App. 1,
389 S.E.2d 723 (1990); Mosley v. Mosley, 19 Va. App. 192, 450
S.E.2d 161 (1994).
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and remanded.
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