Jean J. Aidonis v. Jessie M. Brooks

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
JEAN J. AIDONIS
v. Record No. 1901-94-4 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
JESSIE M. BROOKS MAY 30, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Paul P. Vangellow for appellant.
David D. Masterman (Cohen, Gettings, Dunham & Harrison, on
brief), for appellee.
Jean J. Aidonis (husband) and Jessie M. Brooks (wife) were
divorced by decree of the trial court, which also awarded custody
of the parties's two children to wife, spousal support to
husband, and resolved the respective property interests pursuant
to Code § 20-107.3. On appeal, husband complains that the trial
court erroneously (1) valuated the parties's contributions to the
marriage, (2) determined that certain credit card debts were
marital, (3) awarded wife custody of the children, and (4) failed
to include "reimbursement alimony" in the spousal support award.
Wife assigns cross-error to the trial court's denial of her
prayer for attorney fees. For the reasons that follow, we affirm
the decree.
The parties are fully conversant with the extensive record,
including a comprehensive written opinion of the trial judge
which was expressly incorporated into the decree by reference.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
We, therefore, recite only those facts necessary to explain our
holding.
"'Where . . . the court hears the evidence ore tenus, its
finding[s are] entitled to great weight and will not be disturbed
on appeal unless plainly wrong or without evidence to support
[them].'" Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372
S.E.2d 630, 631 (1988) (quoting Martin v. Pittsylvania County
Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16
(1986)). A decree based upon depositions is "'not as strong and
conclusive as one based on evidence heard ore tenus,'" but is
also "'presumed to be correct . . . [and] will not be reversed if
. . . reasonably supported by substantial, competent, and
credible evidence.'" Martin v. Martin, 202 Va. 769, 773, 120
S.E.2d 471, 474 (1961) (quoting Canavos v. Canavos, 200 Va. 861,
866, 108 S.E.2d. 359, 363 (1959)); see also Williams v. Williams,
14 Va. App. 217, 219, 415 S.E.2d 252, 253 (1992). "[T]he burden
is on him who seeks to overturn it to show that it is manifestly
wrong." Canavos, 200 Va. at 866, 108 S.E.2d at 363.
Equitable Distribution
Husband complains that the trial court erroneously found
that the parties equally contributed monetarily and nonmonetarily
to the marriage 1 which resulted in an inequitable distribution of
the marital estate.
Our review of an equitable distribution order pursuant to
1
The parties cohabited for ten years prior to the marriage,
and both children were born during this time.
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Code § 20-107.3 requires deference to the chancellor's resolution
of the equities, and the decision will be disturbed only if it
fails to comport with the statutory scheme, is without support in
the evidence, or reflects an abuse of discretion. Banagan v.
Banagan, 17 Va. App. 321, 326, 437 S.E.2d 229, 231-32 (1993)
(citations omitted). Code § 20-107.3 requires the court to
ground any relief under the statute upon consideration of several
specific factors. Code § 20-107.3(E). However, "[t]he 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).
Here, the trial court acknowledged that husband made a "vast
majority" of the monetary contributions and "aided" in wife's
education prior to the marriage. However, on completion of
wife's education and the marriage of the parties in 1988, "the
roles changed," as wife pursued a successful professional career.
Accordingly, the trial court found that "the parties made
approximately equivalent monetary and nonmonetary contributions,
both to the acquisition and care of the marital assets and to the
well-being of the family." Any "premarital contributions" were
properly considered only as they "affected the value of the
marital property." Floyd v. Floyd, 17 Va. App. 222, 226, 436
S.E.2d 457, 459 (1993). Our review of the record, therefore,
discloses ample support for the court's conclusion, and it will
not be disturbed on appeal.
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Credit Card Debt
Based upon evidence of expenditures reflected in several
credit card obligations, the court determined that "marital debt
by credit card" aggregated $28,102.24, equally dividing that
total between the parties. The findings of the trial court are
supported by the record and the attendant allocation of the debt
is consistent with the evidence relevant to the statutory
considerations.
Husband's claim for an offset against his portion of this
marital debt in consideration of marital funds expended in
payment of wife's educational expenses is without merit.
Assuming, without deciding, that marital funds were applied to
the payment of wife's separate debt incidental to her education,
any resulting monetary contribution of husband was thereby
attributable to the "well-being of the family" and properly
considered by the court pursuant to Code § 20-107.3(E)(1).
Child Custody
In custody disputes, the best interests of the children is
of primary and paramount importance. Smith v. Pond, 5 Va. App.
161, 163, 360 S.E.2d 885, 886 (1987). In determining the best
interests of the children, a court must consider all the evidence
and facts before it. Venable v. Venable, 2 Va. App. 178, 186,
342 S.E.2d 646, 651 (1986). "[O]n review the [custody] 'decision
of the trial judge is peculiarly entitled to respect for he saw
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the parties, heard the witnesses testify and was in closer touch
with the situation than the [appellate] Court, which is limited
to a review of the written record.'" Sutherland v. Sutherland,
14 Va. App. 42, 44, 414 S.E.2d 617, 618 (1992) (citation
omitted). "Thus, . . . these matters are left largely to the
discretion of the trial court whose judgments will not be
reversed in the absence of a showing that the discretion given
has been abused." Id.
The trial court was unpersuaded by husband's allegations of
wife's parental unfitness and noted that, although husband "loves
his daughters," his "parenting skills are weak." The court,
therefore, determined that custody in wife, with liberal
visitation reserved to husband, was in the best interests of the
children. These findings are well supported by the evidence and
reflect appropriate consideration of those factors enumerated in
Code § 20-107.2.
Spousal Support
"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) (citations omitted). "The
challenge to the amount of support raises the issue of the
sufficiency of the evidence to support the judgment. The
judgment of the trial court is presumed correct and we may not
disturb its ruling if there is credible evidence to support it."
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Steinberg v. Steinberg, 11 Va. App. 323, 329, 398 S.E.2d 507,
510 (1990) (citation omitted).
In determining appropriate spousal support to the husband,
the trial court thoroughly examined the earnings history and
potential of each party as well as the remaining factors
prescribed by Code § 20-107.1. The resulting award is
sufficiently supported by credible evidence and reflects no abuse
of discretion.
Attorney Fees
"An award of attorney 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,
333, 357 S.E.2d 554, 558 (1987) (citation omitted). Although,
"there can be no doubt that some of the fees in this case were
incurred as the result of [husband's] unrealistic view of some of
the facts in the case," the trial court also correctly noted that
wife's "prayers [were likewise] not free from unreasonable
positions." Accordingly, we find that the trial court properly
used its discretion in refusing to award wife attorney fees.
For the foregoing reasons, we affirm the order of the trial
court.
Affirmed.
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