Rakesh Kumar Dhawan v. Bonita Dhawan ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, Ortiz and Senior Judge Clements
Argued at Leesburg, Virginia
RAKESH KUMAR DHAWAN
MEMORANDUM OPINION* BY
v. Record No. 0887-22-4 JUDGE JEAN HARRISON CLEMENTS
AUGUST 1, 2023
BONITA DHAWAN
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Jeanette A. Irby, Judge
Samuel A. Leven (The Baldwin Law Firm, LLC, on briefs), for
appellant.
Brandy M. Poss (Barnes & Diehl, P.C., on brief), for appellee.
Rakesh Kumar Dhawan (husband) appeals a final order of divorce, which the circuit court
entered on May 17, 2022. Husband argues that the circuit court erred when “it placed prohibitions
and restrictions on the parties’ business.” Husband further contends that the circuit court erred in
distributing assets of the business and ordering husband “to personally pay debts belonging to the
parties’ business” “despite said business being a separate corporate entity.” Husband also
challenges the circuit court’s distribution of the business “when there was no evidence in the record
as to the valuation of the business.” In addition, husband argues that the circuit court erred in
determining his income for spousal support and child support purposes and ordering that the support
be retroactive. Husband asserts that the circuit court erred in ordering husband to pay Bonita
Dhawan (wife) $6,400 for her “post-separation paychecks.” Finally, husband contends that the
circuit court abused its discretion by ordering him to pay wife’s attorney fees “when the award was
*
This opinion is not designated for publication. See Code § 17.1-413(A).
based at least in part on other erroneous rulings and was not justified by the equities of the case.”
For the reasons stated below, we affirm the circuit court’s decision in part, reverse in part, and
remand this case to the circuit court for further proceedings consistent with this opinion.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Shah v. Shah, 70 Va. App. 588, 591 (2019) (quoting Congdon v. Congdon, 40 Va. App. 255, 258
(2003)). Here, wife is the prevailing party, so we consider all the evidence in the light most
favorable to her.
The parties married in 1995 and had two children. During the marriage, the parties
started Falco eMotors, Inc., an American corporation, (Falco) and Falco eMotors Private
Limited, an Indian company (Falco India).1 Falco “markets and sells electric bike conversion
systems”; whereas Falco India “manufactures and sells commercial fans” from India. Husband
owned 79% of the Falco shares, and wife owned 21%. Both parties also served as directors of
Falco; husband was the president, and wife was the vice president.
On August 1, 2019, the parties separated, and approximately three months later, husband
advised wife that she was “terminated” from Falco. He blocked her access to Falco and its
emails. Husband also withdrew funds from Falco for personal expenses. Wife subsequently
filed a complaint for divorce and an emergency motion to enjoin husband from “disposing [of]
and/or encumbering any assets” and “taking any adverse action against [her] with regard to her
position” with Falco. After wife filed her pleadings, husband removed wife as a director of
Falco, claiming that she stole money from the company. Husband opposed wife’s emergency
1
The parties were equal shareholders in Falco India. The circuit court did not “make any
equitable distribution of this asset,” which is not challenged on appeal. Therefore, all references
to Falco in this opinion are to the American corporation.
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motion and denied her claims that he was “wasting” corporate funds. On January 31, 2020, the
parties appeared before the circuit court for argument on wife’s emergency motion. Husband
agreed “to provide a full detailed accounting for any funds dispersed from the company
accounts” and represented that the accounting would be provided in discovery. In addition,
husband agreed to not “take[] any steps . . . to economically isolate [wife] by blocking her access
and/or use of the parties’ financial accounts or assets.” Husband and wife also agreed to a
mutual injunction against the “waste of marital assets.”
Then the parties each presented their arguments regarding husband’s management of
Falco’s assets and liabilities and wife’s involvement in the business. In her motion, wife had
requested an order enjoining husband from “selling, gifting, transferring, pledging and/or
otherwise disposing and/or encumbering any assets . . . or otherwise diminishing the marital
estate or increasing marital debt . . . , except as necessary in the ordinary course of business and
only as mutually and expressly agreed to by the [p]arties.” Acknowledging that the circuit court
could order husband “not to waste” a business asset, husband argued that there was “no
authority” to allow wife to “control” how he used business funds because as president and
majority shareholder, only he managed the business. Over husband’s objections, the circuit court
granted wife’s request. The circuit court did not address wife’s request to reinstate her as vice
president of Falco.
After the hearing, both parties sought clarification of the circuit court’s ruling, and
husband moved for reconsideration, which the circuit court denied.2 Furthermore, Falco, by
special appearance of counsel, moved to intervene and challenge the circuit court’s jurisdiction
to “enter an order regarding the assets and interests of Falco.” The circuit court denied Falco’s
2
Husband also filed an amended motion for reconsideration, which the circuit court
denied.
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motion because it had not yet entered an order after the hearing on wife’s emergency motion and
“therefore there [was] no order controlling corporate assets that are not marital property.”
Several months after the hearing, the circuit court entered an order memorializing its ruling on
wife’s emergency motion. As part of its order, the circuit court “reserved for further
adjudication” wife’s request to enjoin husband from “taking any adverse action against [her]
with regard to her position with the [c]ompany and to reinstate her as [v]ice [p]resident thereof.”3
In addition to the orders regarding Falco, the circuit court entered a pendente lite support
order, directing husband to pay $4,317 per month for spousal support and $1,508 per month for
child support, as of September 1, 2020.4 In addition, the circuit court granted wife’s request for
“retroactive” spousal and child support for the period between December 2, 2019 and August 31,
2020, and ordered husband to pay a lump sum amount totaling $52,425.
After the entry of the pendente lite order, wife filed a petition for a rule to show cause,
arguing that husband was not complying with the injunction order.5 Wife alleged that husband
had transferred and/or disposed of assets without “the mutual and express agreement” of the
parties and “[n]ot within the ordinary course of business.” Claiming that husband had
transferred funds from Falco to pay his retroactive support obligations, wife sought an order
requiring husband to “restore” the money he took and enjoin him from using marital funds to pay
his support obligations. In response, husband reiterated that wife “improperly allege[d] that the
assets of the corporation in the ordinary course of business are subject to the [c]ircuit [c]ourt’s
3
Husband had retained new counsel, who endorsed the order as “Seen and Agreed.”
4
The circuit court determined husband’s monthly income was $15,417 and wife’s
monthly income was $0. The parties had agreed that wife would have primary physical custody
of the children.
Upon entry of an agreed order, wife filed an “Amended Verified Petition for Rule to
5
Show Cause.”
-4-
jurisdiction in the divorce matter.” Acknowledging that the “shares of the company may be
considered marital assets,” husband argued that “categorization [did] not reach to the assets of
the corporation, or to any actions taken by the corporation via its fiduciaries.” After hearing
evidence and argument, the circuit court found that the evidence was sufficient to find husband
in contempt of the injunction order, but it declined to hold him in contempt. The circuit court
ordered husband to “consult” with wife “regarding all the withdrawals, expenditures and
pledges” of Falco as of July 31, 2020, and to “replenish any funds he withdrew and/or transferred
and/or pledged” from Falco which wife believed were “not in the ordinary course of business
and/or which were not necessary business expenses from July 31, 2020 forward.”
Less than four months later, husband again requested relief from the circuit court’s
orders, specifically that he needed wife’s approval “for every company expenditure.” He alleged
that because wife would “not approve regular and necessary business expenses, the businesses
[were] nearing collapse.” Wife responded that husband had not complied with the circuit court’s
order to provide her with “complete access” to Falco’s books, which “gravely inhibited” wife’s
ability to approve expenditures. At a review hearing, the circuit court found husband in
contempt and ordered him to “replenish the sum of $86,834.91,” which represented personal
expenses, to Falco’s business account and “make available” to wife all of the companies’
“electronic and other databases, records and bank accounts.” The circuit court found that wife
approved business expenses “on many occasions,” but also was “frozen out,” especially when
she questioned “figures appearing in the Falco account and then ending up in the personal
accounts.” It concluded that wife “should not have to fight and fight and fight and fight for
information.” It also ordered husband to “provide written confirmation to all employees,”
advising them that they were to “immediately” cooperate with wife by answering her questions
and providing her with information she requested.
-5-
In preparation for trial, both parties submitted written pleadings regarding the equitable
distribution factors and their proposals for custody, visitation, and support.6 Husband and wife
agreed that Falco was a marital asset. Husband asserted that it had “little intrinsic value,” and
wife simply stated that the value had not yet been determined.
Thereafter, on February 4, 2022, the circuit court entered an order incorporating the
parties’ “Partial Marital Agreement,” in which they agreed to list the marital residence for sale,
pay for “all agreed-upon repairs” to the house “with funds contained in the Falco e-Motors, Inc.
Capital One Bank Account,” and to repay the bank account at the settlement before any other
distributions. The parties also agreed to use the proceeds from the sale of the marital residence
to pay certain debts, with any remaining funds to be held in escrow.
On February 28, March 1, 2, and 10, 2022, the parties presented evidence and argument
regarding Falco, its valuation, their marital assets and debts, and their incomes. Both parties had
retained vocational experts. Wife’s expert opined that husband was capable of earning at least
$250,000 per year. Husband’s expert opined that wife was capable of earning between $57,000
and $75,000 as a sales account manager, a sales representative, or an executive assistant.
Furthermore, wife presented evidence that she had incurred $307,861 in attorney fees and
$42,244.74 in costs as of March 23, 2022.
After the circuit court heard all the evidence and argument, but before it rendered an
opinion, the former marital residence sold. The parties agreed to reimburse the Falco Capital
One bank account for house repair expenses and to disburse some of the funds to their counsel,
with the remaining funds held in an escrow account pending equitable distribution.
6
On June 14, 2021, the circuit court entered a consent custody and visitation order, which
awarded joint legal custody and primary physical custody to wife with parenting time to
husband.
-6-
On March 24, 2022, the circuit court issued its ruling. As relevant to this appeal, the
circuit court reviewed the Code § 20-107.3(E) factors for equitable distribution. The circuit
court considered the parties’ roles in Falco and found that wife had been “very active” in the
company before their separation. During the marriage, the parties had used the Falco accounts
“as their personal accounts” to meet their expenses. The parties also had a home equity line of
credit of $300,000, from which they borrowed funds for Falco. In 2018, husband had
“approached” wife about “step[ping] down” from Falco, which she had refused to do.
Undeterred, husband removed wife from Falco, and then, when she tried to claim unemployment
benefits, she was denied because “of an unfounded allegation of theft.” The circuit court found
that wife’s removal had a “disastrous effect on the success” of the company. Husband had
withdrawn money from Falco for “nonbusiness-related expenses,” such as his payment of
pendente lite support arrearages, living expenses, and legal fees, and used his control of the
company to limit wife’s access “to any financial wherewithal.” After the parties separated,
husband also had “removed” Falco’s reimbursement of wife’s credit cards but did not do so with
his credit cards.
The circuit court classified Falco as marital property. It found that Falco was “a
corporation in name only as the husband freely used funds from the business for his personal
expenses and even when business expenses were refunded . . . , the refunded money sometimes
went into his personal account.”
The circuit court divided Falco’s Capital One checking account equally between the
parties.7 It also equalized the Falco shares, “so that they each become [50] percent
shareholders.” Alternatively, the circuit court offered to value Falco at “approximately
Despite finding that the accounts were marital, the circuit court did not divide Falco’s
7
PayPal account and Wells Fargo checking account.
-7-
$200,000,” based on an exhibit that was prepared for “purposes of the 401(k),” and allow
husband to pay wife a monetary award for her share. Wife objected and argued that she “had
asked not to distribute Falco USA because the valuation was . . . not represented” by that exhibit.
Wife asked the circuit court to equalize the Falco shares, which it did.
Next, the circuit court considered debts that “were taken out” by husband or Falco after
the separation, including a PayPal loan, a small business administration loan, a bank loan, and a
payroll protection program loan. The circuit court found that these debts were not marital, but
husband’s separate debts, and ordered him to be solely responsible for them.
Finding that wife had a need for spousal support and husband had the ability to pay, the
circuit court considered the Code § 20-107.1(E) factors to determine the amount of the spousal
support award. The circuit court found that Falco had “covered most if not all of the parties’
living expenses”; however, after they separated, husband “did not successfully maintain that
business” and wife had either “no real access” or “limited access” to the company. Thus, the
circuit court expressed concern as to whether Falco would be able to “generate a sufficient
income to provide for the living expenses that are needed to support a reasonable lifestyle.”
Considering the vocational expert opinions, the circuit court found that wife did not
“meet the stated requirements” for many of the jobs that husband’s expert suggested for her.
Wife had been “out of the open job market for [20] years,” but had been “active” in Falco.
Accordingly, the circuit court found that wife would need some time to “transition to a career
outside the home,” so it imputed income to her of $30,000 per year, beginning one year after the
entry of the final decree. On the other hand, the circuit court found wife’s expert to be
“well-qualified” and accepted his opinion that husband could earn $250,000 per year. In 2021,
husband began working for Daikin Applied Americas, Inc., where he earned “at least $140,000
per year.” He testified that he was “transitioning out of Falco Motors but then later on during
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testimony said that he would not.” The circuit court found that husband had retained funds from
Falco, of which he availed himself for personal expenses, equaling “at least $134,600 per year.”
Therefore, the circuit court found that husband’s “actual income” was “at least $274,000 per
year.”
The circuit court awarded wife a lump sum spousal support award of $180,000 “for the
first three years,” to be paid from the funds held in escrow, and then in year four, she would
receive $5,000 per month for an undefined duration. The circuit court then prepared two
calculations of child support guidelines, one with no imputation of income for wife and one with
imputing income to wife. The circuit court ordered husband to pay $1,954 per month in child
support “for the first year from the date of entry” of the final order and $1,861 per month
thereafter. The circuit court also ordered that the support awards were retroactive to the filing of
the complaint for divorce, “after applying a credit” for all pendente lite support payments.
When considering whether to award attorney fees, the circuit court found that husband
had filed several “frivolous” motions and had been found in contempt more than once. The
circuit court noted that the issues were “complex,” especially when determining business and
personal expenses and the court’s “authority over a corporation that clearly, although no formal
corporate veil piercing was done, informally these parties just used this business however they
chose to use it.” After “balancing all of the equities and the totality of the circumstances and the
financial positions of the parties,” the circuit court awarded wife $68,000 in attorney fees, plus
$21,000 in costs.
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On May 17, 2022, the circuit court entered the final order of divorce, memorializing its
rulings.8 The final order provided that each party had 21 days from its entry to file objections.
Husband filed his objections on May 31, 2022.9 Husband appeals.
ANALYSIS
I. Equitable Distribution
“[A]ll trial court rulings come to an appellate court with a presumption of correctness.”
Sobol v. Sobol, 74 Va. App. 252, 272 (2022) (quoting Wynnycky v. Kozel, 71 Va. App. 177, 192
(2019)). The Court will not overturn an equitable distribution award unless we find “an abuse of
discretion, misapplication or wrongful application of the equitable distribution statute, or lack of
evidence to support the award.” Dixon v. Dixon, 71 Va. App. 709, 717-18 (2020) (quoting
Anthony v. Skolnick-Lozano, 63 Va. App. 76, 83 (2014)). “Because making an equitable
distribution award is often a difficult task, ‘we rely heavily on the discretion of the trial judge in
weighing the many considerations and circumstances that are presented in each case.’” Sobol, 74
Va. App. at 272 (quoting Howell v. Howell, 31 Va. App. 332, 350 (2000)).
A. Pendente Lite Order
Shortly after wife filed her complaint for divorce, she sought an injunction to preserve the
parties’ assets, including Falco. The circuit court entered a pendente lite order enjoining husband
from “disposing and/or encumbering any assets . . . , except as necessary in the ordinary course
of business and only as mutually and expressly agreed to by the [p]arties.” Husband argues that
8
On the same day, the circuit court also entered a qualified domestic relations order
transferring 4,355 shares of Falco common stock to wife from “the Falco eMotors Inc. 401K
Plan F/B/O Rakesh Dhawan.”
9
Wife argues that husband’s objections were not timely and did not preserve his
arguments for appeal because they were filed after the entry of the final order of divorce. We
disagree, as the circuit court expressly granted the parties leave to file their objections within 21
days of the entry of the final order, which husband did.
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the circuit court exceeded its authority when it placed “prohibitions and restrictions” on the
parties’ business by ordering that wife had to approve all corporate expenditures. Husband
emphasizes that the corporate veil had not been pierced and Falco was a separate corporate entity
that was not a party to the divorce proceedings.10
“[W]hile a divorce suit is pending, Code § 20-103(A)(vii) authorizes the circuit court to
enter orders ‘to preserve the estate of either spouse, so that it be forthcoming to meet any decree
which may be made in the suit[.]’” Hoffman P’ship, LLP by Hoffman v. Circuit Court of
Spotsylvania Cnty., 72 Va. App. 206, 216 (2020) (second alteration in original). A pendente lite
order preserves the status quo of the parties until a final decree of divorce. Everett v. Tawes, 298
Va. 25, 34 (2019). It has “no presumptive or determinative effect on the underlying cause of
divorce.” Id.; see also Code § 20-103(J) (“[a]n order entered pursuant to this section shall have
no presumptive effect and shall not be determinative when adjudicating the underlying cause”).
Here, the circuit court entered the pendente lite order to preserve the marital assets,
including Falco. At a subsequent hearing, the circuit court found that the parties owned “100
percent” of their companies and the companies were closely held corporations, “controlled”
solely by husband and wife. Throughout the pendency of the litigation, the parties disagreed over
wife’s involvement and authority in running the parties’ businesses; indeed, the circuit court found
husband in contempt when he failed to comply with the pendente lite order by spending
corporate funds “without mutual and express agreement.” At the final hearing, the circuit court
found that husband “continued throughout this litigation to take actions which diminished the
marital estate,” which it considered when issuing its final ruling.
10
During oral arguments, wife conceded that Falco was a separate legal entity and the
corporate veil had not been pierced.
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On appeal, husband asks this Court to reverse the circuit court’s pendente lite and contempt
orders and remand the matter to the circuit court “for further proceedings as necessary to undo the
damage done to the husband and to Falco USA and Falco India by these improper orders.”
Husband does not explain what damage he or the businesses sustained as a consequence of the
circuit court’s orders, other than that he had to reimburse Falco for funds that he spent without
wife’s consent.
“It is this Court’s duty ‘to decide actual controversies by a judgment which can be carried
into effect, and not to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case before it.’”
Hollowell v. Va. Marine Res. Comm’n, 56 Va. App. 70, 77 (2010) (quoting Harrison v. Ocean
View Fishing Pier, LLC, 50 Va. App. 556, 570 (2007)). An issue becomes moot “when an event
occurs while a case is pending . . . that . . . ‘renders it impossible’ for this Court to grant
appellant the relief requested.” Id. at 77-78 (quoting Jackson v. Marshall, 19 Va. App. 628, 635
(1995)).
At this stage of the proceeding, it is “impossible” for this Court to grant the relief that
husband requests. Id. The parties made decisions regarding Falco and its daily activities that
cannot be undone now. The circuit court considered husband’s actions throughout the pendency
of the suit when it issued its final ruling. Therefore, it is not possible for this Court to “undo” the
alleged damage to husband, Falco USA, and Falco India. Accordingly, we will not consider this
argument.
B. Valuation and Distribution of Falco
Husband argues that the circuit court erred in “distributing” Falco when neither party
presented evidence of its value. Husband further contends that the circuit court erroneously divided
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Falco’s Capital One checking account and apportioned several of Falco’s debts to husband. We
agree.
“The equitable distribution process is governed by Code § 20-107.3, which requires a
trial court to classify, value, and distribute property.” Sobol, 74 Va. App. at 273; see also
Hamad v. Hamad, 61 Va. App. 593, 602 (2013) (“Equitable distribution involves three distinct
decisions: classification, valuation, and distribution.”). “Code § 20-107.3(A) direct[s] the trial
court to ‘determine the value of any such property as of the date of the evidentiary hearing on the
evaluation issue.’” Sobol, 74 Va. App. at 274. “‘Code § 20-107.3 requires a trial court to value
the parties’ separate and marital property before making a monetary award. The trial court’s
valuation cannot be based on “mere guesswork.”’” Stratton v. Stratton, 16 Va. App. 878, 883
(1993) (quoting Bosserman v. Bosserman, 9 Va. App. 1, 5 (1989)). The “burden is on the parties
to provide the trial court sufficient evidence from which it can value their property.” Id. (quoting
Bosserman, 9 Va. App. at 5). “Trial courts valuing marital property for the purpose of making a
monetary award must determine from the evidence that value which represents the property’s
intrinsic worth to the parties upon dissolution of the marriage.” Bosserman, 9 Va. App. at 6; see
also Patel v. Patel, 61 Va. App. 714, 722-23 (2013) (same). “[E]xpert testimony is the most
expedient, and, in fact, the preferable method for [valuing marital property].” Koons v. Crane,
72 Va. App. 720, 740 (2021) (alterations in original) (quoting Stratton, 16 Va. App. at 883).
Neither husband nor wife presented any evidence, including expert testimony,
establishing Falco’s value. Husband emphasized the lack of valuation evidence during his
closing argument. Wife asserted that she could not “get these businesses valued because the
books are so cooked.”
During the trial, wife questioned husband about a document produced for Falco that
estimated the value of the business for purposes of their 401(k), which held their Falco shares.
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Husband testified that the document was not valuing the business, and the document itself
specifically states that its purpose was only to estimate the value for IRS Form 5500 and was not
“a formal business valuation.” Wife conceded that the exhibit could not “be used as a statement
of value for the business.” She further admitted that the circuit court could not divide Falco
“because there’s not a business valuation for a lot of reasons,” including husband’s “chicanery.”
Instead, wife asked the circuit court to divide the 401(k) that held the parties’ shares. The circuit
court granted wife’s request, ordered equalization of the shares held in the 401(k), and entered a
qualified domestic relations order.
Although husband argues on appeal that the circuit court could not distribute Falco
without first determining its value, he does not challenge the circuit court’s finding that the
shares of Falco were held in the 401(k) or the transfer of those shares. Moreover, husband did
not appeal the qualified domestic relations order. Considering husband’s concession, we will not
review the circuit court’s division of the shares.
In addition to equalizing the parties’ shares in Falco, the circuit court divided equally
Falco’s Capital One checking account and ordered husband to be “solely responsible” for “debts
he leveraged” against Falco, including a PayPal loan, payroll protection program loan, Clearbank
loan, SBA-EIDL loan, loan from CP Dhawan, loan from KL Dhawan, and payments made from
Falco’s account to Rachel Virk, Westlake Legal, Sareen & Associates, and Robbins Research.
The Capital One account was an asset of Falco, and the debts were Falco’s debts, not debts titled
in husband’s name.
“Property which is owned by third parties, including a corporation owned entirely by the
parties, is generally not marital property subject to equitable distribution.” Cabral v. Cabral, 62
Va. App. 600, 611 n.8 (2013) (quoting 1 Brett Turner, Equitable Distribution of Property § 5:51,
at 531 (3d ed. 2005)). Accordingly, Falco’s Capital One account and debts were not subject to
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distribution under Code § 20-107.3, and the circuit court erred in distributing them as part of its
equitable distribution award. Therefore, we reverse the circuit court’s distribution of the Capital
One account and the order directing husband to pay the PayPal loan, payroll protection program
loan, Clearbank loan, SBA-EIDL loan, loan from CP Dhawan, loan from KL Dhawan, as well as
the debts owed to Rachel Virk, Westlake Legal, Sareen & Associates, and Robbins Research.
C. Wife’s post-separation paychecks
Husband argues that the circuit court erred when it ordered him to pay wife $6,400 for
her “post-separation paychecks.”11 He contends that the circuit court “lacked authority” to order
him to pay wife because there was no evidence that the funds were in his “possession or control.”
Husband further asserts that there is no evidence in the record that “this property even exists.”
“[D]ecisions concerning equitable distribution rest within the sound discretion of the trial
court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.”
Wright v. Wright, 61 Va. App. 432, 450 (2013) (quoting McDavid v. McDavid, 19 Va. App. 406,
407-08 (1994)); see also Dixon, 71 Va. App. at 717-18 (same). Wife did not raise the issue of her
post-separation paychecks in her pretrial equitable distribution submission, nor did she address
11
Wife argues that “to the extent the funds held in escrow have been disbursed to [her],
[h]usband’s appeal is moot.” She contends that the “[v]oluntary payment of a judgment deprives
the payor of the right of appeal.” Sheehy v. Williams, 299 Va. 274, 279 (2020). The Supreme
Court further explained that a party makes a voluntary payment when “‘the law would not
compel him to make’ the payment.” Id. (quoting Kent Sinclair, Sinclair on Virginia Remedies
§ 9-2, at 9-5 (5th ed. 2016)). Any payment made to wife, however, was not voluntary; therefore,
husband’s argument is not moot.
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the issue in her closing argument.12 Wife testified about her income from Falco and offered into
evidence her W-2’s showing how much she had earned from 2016 through 2019. She also
testified that she had not received any compensation “from 2019 onwards” without further
explanation. This record contains no evidence to support the circuit court’s ruling that husband
had to “reimburse” wife for $6,400 in post-separation paychecks, so we reverse the circuit
court’s ruling.
II. Support
Husband also appeals the circuit court’s spousal support and child support awards.
Virginia’s statutory scheme mandates that a determination of spousal support requires
consideration, either directly or indirectly, of the equitable distribution provisions governing the
marital property. Code § 20-107.1(E)(8). The circuit court also is required to consider the
impact of the equitable distribution award on child support. See Code § 20-108.1(B)(11), (12),
(15) (permitting a court to deviate from the presumptive calculation under the child support
guidelines based on the “[e]arning capacity, obligations, and financial resources” of the parents,
“[p]rovisions made with regard to the marital property under § 20-107.3, where said property
earns income or has an income-earning potential,” and “the equities for the parents and
children”). In addition, the child support guidelines include spousal support in the calculation.
Code § 20-108.2(C). “Because we here reverse in part the trial court’s award of equitable
distribution, our case law is clear that, on remand, the trial court will also have to thoroughly
12
The record in this case spans more than 16,000 pages, and despite wife’s reference in
her brief to her income, neither party pointed this Court to where the issue of wife’s
post-separation paychecks was discussed. “[I]t is not the function of this Court to ‘search the
record for error in order to interpret the [parties’] contention and correct deficiencies in a brief.’”
Alwan v. Alwan, 70 Va. App. 599, 612 (2019) (first alteration in original) (quoting West v. West,
59 Va. App. 225, 235 (2011)). “Nor is it this Court’s ‘function to comb through the record . . . to
ferret-out for ourselves the validity of [the parties’] claims.’” Id. (first alteration in original)
(quoting Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012)).
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reassess” its spousal support and child support awards. Stark v. Dinarany, 73 Va. App. 733,
754-55 (2021).
III. Attorney Fees
A circuit court’s decision to award attorney fees is reviewed “under the deferential abuse
of discretion standard.” Sobol, 74 Va. App. at 288.
Husband argues that the circuit court abused its discretion by ordering him to pay
$68,000 in attorney fees and $21,000 in costs. He contends that “the award of attorney[] fees
was made in the setting of numerous other rulings made by the trial court that . . . were
erroneous.” Thus, if this Court reverses any of the circuit court’s rulings, then husband asserts
that the attorney fee award also should be reversed and remanded for reconsideration. We
decline to do so.
Although husband had argued that any attorney fee award should be reasonable, he did
not object to the circuit court’s award. Accordingly, we find that husband did not preserve his
argument for appeal. “No ruling of the trial court . . . will be considered as a basis for reversal
unless an objection was stated with reasonable certainty at the time of the ruling, except for good
cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18. Therefore, we
will not consider this argument.
IV. Appellate Attorney Fees and Costs
Wife asks this Court to award her attorney fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). “This Court has discretion to grant or
deny attorney’s fees incurred on appeal.” Stark, 73 Va. App. at 757. “[W]e do not find that
husband’s appeal was ‘frivolous or lacked substantial merit,’ or that the ‘equities of the case’
favor an award.” Koons, 72 Va. App. at 742-43 (quoting Rule 5A:30(b)(3)-(4)). Accordingly,
we deny wife’s request for attorney fees and costs.
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CONCLUSION
For the reasons discussed above, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
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