Jo Anne Phelps, etc. v. Christopher P. Grazel ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
JO ANNE PHELPS, F/K/A
JO ANNE GRAZEL
MEMORANDUM OPINION *
v. Record No. 2511-96-1 PER CURIAM
APRIL 22, 1997
CHRISTOPHER P. GRAZEL
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
(Jo Anne Phelps, pro se, on briefs).
(James A. Evans; Dinsmore, Evans & Bryant, on
brief), for appellee.
Jo Anne Phelps (wife) appeals the decision of the circuit
court setting awards of child and spousal support, equitable
distribution, attorney's fees and costs. Christopher P. Grazel
(husband) was ordered to make monthly payments of $1,000 in
spousal support and $1,057 in child support. Wife contends the
trial court erred by: (1) accepting and considering the parties'
December 1, 1995 stipulation; (2) ruling on issues already
resolved through the parties' previously incorporated agreements;
(3) failing to follow the statutes on classification and
valuation of property, legal fees, costs and sanctions; (4)
interpreting the parties' agreement as limiting the court's
ability to receive evidence on child and spousal support
statutory factors; (5) interpreting the parties' agreement as
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
limiting an award of interest on husband's financial accounts;
(6) failing to apply the proper version of the statute; and (7)
allowing husband to exempt tax-deferred income from inclusion in
child support calculations. 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.
Husband commenced this action by filing of a bill of
complaint on September 5, 1989. On April 1, 1993, the parties
executed a hand-written agreement addressing property and support
issues. The trial court incorporated that agreement into a
decree entered March 11, 1994. That decree referred to a
commissioner in chancery the determination of "financial
accounts" set out in paragraph 13 of the agreement. The parties
executed a second hand-written agreement on June 3, 1994. The
trial court incorporated both agreements into the final decree of
divorce entered September 13, 1996. In addition, the parties
entered into a stipulation which was read into evidence before
the commissioner on December 1, 1995.
The commissioner in chancery received evidence ore tenus,
and "due regard [must be given] to the commissioner's ability
. . . to see, hear, and evaluate the witness at first hand."
Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 297 (1984). Both
parties filed exceptions to the commissioner's report, some of
which were sustained.
The chancellor is necessarily vested with
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broad discretion in the discharge of the
duties . . . [Code § 20-107.3] imposes upon
him. Unless 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 findings of
fact underlying his resolution of the
conflict in the equities, the chancellor's
equitable distribution award will not be
reversed on appeal.
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted).
Issue 1
Wife challenges the court's reliance upon the parties'
December 1, 1995 stipulation. Appellate courts in Virginia look
"with favor upon the use of stipulations . . . which are designed
to narrow the issues and expedite the trial or settlement of
litigation." McLaughlin v. Gholson, 210 Va. 498, 500, 171 S.E.2d
816, 817 (1970). Wife made no objection to the stipulation which
set out the parties' agreement, when it was read into evidence
before the commissioner, and there is no allegation that her
attorney's actions were unauthorized, therefore, the stipulation
was binding upon the parties. See Parker v. DeBose, 206 Va. 220,
223-24, 142 S.E.2d 510, 512-13 (1965). Wife's evidentiary
challenges to the stipulation are without merit.
Issue 2
Wife questions whether "the parties could enter into an
additional agreement to change or encumber this 1993 court order,
by virtue of agreements incorporation, award of support."
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Nothing in the first agreement or the decree incorporating the
first agreement barred the parties from further negotiating the
issues outstanding between them. This contention is without
merit.
Issue 3
"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). In determining the equitable
distribution of property, the trial court must first classify the
property as separate or marital, then value the property, and,
finally, determine the distribution of the property upon
consideration of the factors found in Code § 20-107.3(E). See
Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436
(1991). The most appropriate date for classification is the date
of the parties' last separation. See Price v. Price, 4 Va. App.
224, 231, 355 S.E.2d 905, 909 (1987). The most suitable date for
valuation is generally the evidentiary hearing date or trial
date. Id. at 232, 355 S.E.2d at 910. However, the parties may
agree to an alternative valuation date.
The record indicates that, in the December 1995 stipulation,
the parties agreed to use April 1, 1993 as the valuation date for
husband's net worth. Wife's contention that the commissioner
erred by failing to use 1995 or later valuation date is contrary
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to the evidence.
Wife contends that husband knowingly commingled his separate
property with marital assets, thereby transmuting these separate
assets into marital property to which, by agreement, wife is
entitled to a fifty percent share. We agree that under the law
in effect when this matter was commenced, Code § 20-107.3 did not
"'recognize a hybrid species of property.'" Ellington v.
Ellington, 8 Va. App. 48, 53, 378 S.E.2d 626, 628 (1989) (quoting
Smoot v. Smoot, 233 Va. 435, 441, 357 S.E.2d 728, 731 (1987)).
"Property must be classified as either all marital or all
separate, not both." Id. However, the record reflects that,
pursuant to the terms of the parties' agreement, husband received
a credit of $44,895 for his premarital separate accounts. The
remaining items were found to be marital property equally divided
between the parties. We find no error.
Wife also challenges the court's distribution of the
parties' Indvidual Retirement Accounts (IRAs). Under the 1993
agreement, the parties agreed to split the IRAs equally as of the
date of separation, excluding post-separation contributions. The
reference in the 1994 agreement to the waiver of interest on
financial accounts excluding IRAs did not modify this original
agreement. Therefore, the trial court's order complies with the
terms of the parties' agreement and wife's challenge is without
merit.
The record reflects the fact that the parties presented
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substantial evidence before the commissioner. Wife presented her
evidence related to the commingling and transmutation of assets.
Numerous exceptions based upon challenges to the valuation of
assets were filed by both parties and were considered by the
court. The court sustained several of wife's exceptions. As the
trial court's decision is supported by evidence, we find no
reversible error in the court's valuation or classification of
these assets.
Awards of costs or attorney's fees are submitted to the
sound discretion of the trial court and are reviewable on appeal
only for an abuse of discretion. See 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. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 162 (1985). The parties agreed husband would pay
$2,500 in wife's attorney's fees. The court also ordered husband
to pay seventy-five percent of the costs. Based on the number of
issues involved and the respective abilities of the parties to
pay, we cannot say that the award was unreasonable or that the
trial judge abused his discretion in making the award. We find
no grounds for sanctions against husband.
Issue 4
In the 1994 agreement, the parties agreed that, for the
period April 1, 1993 through March 31, 1994, spousal support was
$1,200 per month and child support was $811. The December 1,
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1995 stipulation noted that there were no spousal support
arrearages through November 1995. The court found no child
support arrearage, and wife's argument has failed to demonstrate
reversible error.
Wife also alleges that the trial court erred by failing to
modify support in light of changed circumstances. We find that
contention without merit. We find no support for wife's
allegation that the commissioner prevented her from fully
presenting evidence as to the needs of the parties' child or that
the commissioner only considered husband's W-2 income. As the
amount of spousal support comports with the terms of the parties'
agreement and the amount of child support was determined based
upon the presumptively correct statutory guidelines, we find no
error.
Wife contends that the court erred in using the 1996
guidelines to determine child support. We reject wife's
contention that the court was obligated to use the previous
guidelines. As we stated in Cooke v. Cooke, 23 Va. App. 60, 474
S.E.2d 159 (1996):
The wife and the trial court mistakenly rely
on Gaynor v. Hird, 11 Va. App. 588, 400
S.E.2d 788 (1991), to support the contention
that the instant award is controlled by the
guidelines which pertained when wife filed
her petition. In Hird, we concluded that, in
the absence of a contrary legislative intent,
the authority of a trial court to order the
transfer of property in equitable
distribution was limited by the statute in
effect at the commencement of that action.
Id. at 590-91, 400 S.E.2d at 789. In
contrast, the statutory scheme established by
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Code §§ 20-107.2, -108, -108.1, and -108.2,
and related enactments, manifest a clear
legislative intent that the courts of this
Commonwealth determine the issue of child
support with contemporaneity, in
consideration of prevailing circumstances and
consistent with existing guidelines. The
application of a repealed guideline schedule
to ascertain a current award would subvert
this legislative design.
Id. at 65, 474 S.E.2d at 161. The parties agreed to compute
child support pursuant to "the guidelines." Wife's contention
that the 1993 guidelines applied is without merit.
Issue 5
Wife contends that paragraph 7 of the June 1994 agreement
improperly linked equitable distribution and spousal support.
Wife further contends that she could not legally waive her right
to interest earned on husband's financial accounts, and the trial
court erred by finding her waiver valid.
No authority supports wife's contention. The parties were
free to make whatever arrangements for support and distribution
they found mutually satisfactory. Moreover, pursuant to the
parties' agreement, the trial court entered an order setting
spousal support separately from its equitable distribution
monetary award. Therefore, wife's contention is without merit.
Wife also contends that there was no evidence that she
agreed to waive her right to interest on these accounts beyond
the period of April 1, 1993 through March 31, 1994. The trial
court found convincing evidence indicating wife made an
indeterminate waiver in exchange for the monthly spousal support
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payment of $1,200. As the court's finding was supported by
evidence, we find no reversible error.
Issue 6
Wife correctly notes that the court was required to apply
the version of Code § 20-107.3 in effect at the time this matter
commenced in 1989. Both the commissioner and the trial court
applied the correct version.
Issue 7
Wife challenges the court's decree excluding husband's
tax-deferred income from inclusion in the calculation for
purposes of child and spousal support. Wife's references to the
record do not support her allegation that there were additional
sources of unaccounted income. We find wife's argument without
merit.
Wife's request for interest on judgment is denied.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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