Patrick L. Overbey v. Patricia K. Overbey

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
PATRICK L. OVERBEY
MEMORANDUM OPINION * BY
v. Record No. 1395-00-3 JUDGE ROBERT P. FRANK
APRIL 3, 2001
PATRICIA K. OVERBEY
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Frankie C. Coyner for appellant.
No brief or argument for appellee.
Patrick L. Overbey (husband) contends the trial court erred
in awarding Patricia K. Overbey (wife) forty-five percent of his
pension, claiming: 1) wife's incarceration for embezzlement was
an economic fault that impacted the marital estate, 2) the trial
court did not give him adequate credit for his curtailment of
wife's pro rata share of marital debts, and 3) the trial court
should have awarded him a credit for the funds he paid to support
the parties' children during wife's incarceration. Finding no
error, we affirm the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
Husband and wife were married on August 24, 1974, and had
three children. At the time of the parties' separation, two of
the children, Christopher and Robert, were not emancipated.
Both husband and wife worked during the marriage,
frequently working a full-time job in addition to a part-time
job. Both husband and wife pooled their incomes. During the
marriage, husband and wife shared childcare responsibilities.
On January 5, 1995, wife was charged with felony
embezzlement. The parties were living together at that time.
Wife testified that although husband said he would "stand by
her," he left the marital home on January 23, 1995. Husband
returned to the marital home in May 1995. Husband testified he
returned to effect a reconciliation.
Husband again left the marital home in June 1995. He
testified that he struck his son Christopher after Christopher
cursed his brother. Later that same evening, Christopher went
to his aunt's home and refused to return home. Husband
testified that he told wife, "'This is it. It ain't going to
work,'" and then left the marital home. Wife testified she
asked husband to leave after he struck Christopher.
Wife was convicted of embezzlement in United States
District Court in February 1996 and was imprisoned until March
1999. She remained on house arrest until June 1999. At the
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time of the equitable distribution hearing, wife was on federal
probation.
During wife's confinement, husband had custody of both
children for a period of time and then Christopher went to live
with his aunt. Husband testified that he paid child support for
Christopher from December 4, 1996 to June 7, 1997 in the amount
of $25 per week. Husband paid $275 per month for health
insurance for the children from February 1996 to December 1997.
The premium then was reduced to $78 per month because
Christopher was emancipated and removed from the policy. In
December 1998, husband testified Robert had reached eighteen
years of age and was removed from coverage. During her
incarceration, wife did not pay child support and did not make
any other contributions for the children's support.
At the time of the hearing, wife was fifty-one years old,
and husband was forty-six years old. Wife had one year of
college. Wife testified her health was good. Husband testified
he had a heart attack a week after the parties separated in
January 1995, which was three weeks after wife was arrested for
embezzlement.
Wife testified that when the parties separated, they agreed
to evenly divide the marital debts, 1 which totaled between
$25,000 and $50,000. Husband denied any such agreement.
1
Wife testified that there was a written agreement as to
the debts but the writing was not produced.
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Wife also testified she was making payment on marital debt
to VISA, Montgomery Ward, and Household Beneficial. She stated
she was paying restitution of $112,000 on the embezzlement
charge at $100 per month. Husband testified he paid over
$20,000 in marital debts. He testified $10,385.71 was wife's
half share of the debts he paid.
Wife embezzled money from Staunton Employees Credit Union
while she was employed there. She testified that at least one
year to one year and one-half prior to her arrest, she told
husband she was embezzling money from the credit union. Husband
testified she told him two to three months prior to her arrest.
The charge arose out of wife making loans to herself.
The parties had a joint account at the credit union, in
which husband deposited his December 31, 1994 paycheck in the
amount of $1,100. Subsequently, the authorities seized that
account, and husband never recovered the amount of his paycheck.
Husband became a police officer in 1978 and conceded that
no part of his Virginia Retirement System pension accrued prior
to the marriage. At the time of separation, husband had
seventeen years of qualified service under the Virginia
Retirement System.
Husband, at the hearing, argued he should be given credit,
against wife's potential share of his pension 2 for the child
2
The parties had divided all other marital assets by
agreement. The pension is the only issue before this Court.
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support and insurance premiums paid on behalf of the children
and the $10,385.71 that represents wife's share of the marital
debts he paid.
In awarding wife forty-five percent of the pension, the
trial court considered the length of the marriage and the
contributions of the parties and addressed the marital debts
paid by husband. The trial court stated, "So what I'm going to
suggest is - what I believe is appropriate is 45 percent of the
marital share. That's what I believe is appropriate. And that
takes into account the debt that he - that he got stuck with,
that he took on."
A final decree was granted to husband on November 3, 1998,
on the grounds of wife's felony conviction of embezzlement and
subsequent incarceration for a period exceeding one year
pursuant to Code § 20-91(3).
II. ANALYSIS
Husband contends the trial court failed to consider wife's
economic fault in making the award of equitable distribution. 3
He argues that wife's arrest, conviction, and incarceration
impacted the marital estate in three ways: 1) wife's arrest
caused his heart attack in January 1995, which resulted in his
two-month absence from work, 2) wife did not contribute to the
support of the children during her incarceration, and 3) wife's
3
Husband does not dispute that the other statutory factors
of Code § 20-107(E) were considered.
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arrest resulted in the seizure of the parties' joint account at
the credit union and the loss of his $1,100 paycheck.
Code § 20-107.3(E)(5) states that the court, in making an
award, may consider the circumstances and factors which
contributed to the dissolution of the marriage, specifically any
grounds of divorce under the provisions of Code § 20-91(1), (3),
or (6), or Code § 20-95. Husband correctly cites Aster v.
Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988), for the proposition
that marital fault can only be considered in an equitable
distribution award when the fault has economic consequences to
the parties' marital estate. 4 However, we reject husband's
contention that wife's arrest, conviction, and subsequent
incarceration had an economic impact on the marital estate.
4
We limit our review to whether marital fault had economic
consequences on the marital estate. Husband did not raise, nor
do we consider, O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458
S.E.2d 323 (1995), in which we held:
If the evidence of misconduct is
relevant under any other factor than
subparagraph (5), it may in the judge's
discretion be considered when making an
equitable award. The trial court may
"consider the negative impact of [an] affair
on the well-being of the family, see Code
§ 20-107.3(E)(1) . . . ." Smith[v. Smith],
18 Va. App. [427,] 431, 444 S.E.2d [269,]
273 [(1994)].
Id. at 527-28, 458 S.E.2d at 326.
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First, there is no evidence that wife's arrest caused
husband's heart attack. We could only speculate and surmise as
to the causation of such.
It is uncontroverted that upon wife's arrest, husband
indicated he would "stand by her." Husband did not relate the
separation in January 1995 to wife's pending charges or to any
other actions by wife. Husband was told of wife's embezzlement
weeks or months prior to January 1995, and, aware of the
charges, husband attempted a reconciliation in May 1995.
Husband testified that in June 1995, he struck Christopher, and
Christopher refused to return home from his aunt's house. When
husband went to get Christopher, the aunt said Christopher would
not leave. Husband then said to wife, "This is it. It ain't
going to work." Husband left the marital home. Husband's
testimony did not indicate that wife caused him to leave in June
1995.
Since we have concluded that wife's embezzlement was not a
marital fault that led to the dissolution of the marriage, the
seizure of the parties' joint account at the credit union is not
an economic consequence of the fault as contemplated by Aster.
Clearly, wife made no economic contributions to support the
children during her incarceration. Husband contends he is
entitled to a dollar-for-dollar credit against wife's share of
his pension for the child support and insurance he paid during
wife's incarceration.
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Husband paid child support for Christopher pursuant to a
court order and supported Robert at home. He also paid health
insurance for the children. Husband's contention ignores the
fact that he is obligated to support the children and that he
was under court order to support Christopher. See Code § 20-61.
Husband wants this Court to "adopt the position that, when
a spouse is incarcerated . . . and leaves the infant children
behind, some credit against equitable distribution should be
awarded against the spouse left behind with the
children . . . ." Husband acknowledges there is no authority to
support his position, and we find none. Therefore, we decline
husband's invitation to create such an offset.
As earlier discussed, this Court has refused
dollar-for-dollar offsets in determining an equitable
distribution award. But more basically, a parent's obligation
to support a child is quite separate from an equitable
distribution award.
As we said, in Lightburn v. Lightburn, 22 Va. App. 612, 472
S.E.2d 281 (1996):
The legislature enacted Code § 20-107.3
to divide the value of marital property
between spouses based upon each spouse's
contribution to the acquisition,
preservation, or improvement of property
obtained during the marriage. Sawyer v.
Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277,
279 (1985); see Roane v. Roane, 12 Va. App.
989, 994, 407 S.E.2d 698, 701 (1991). "The
clear legislative intent embodied in [Code
§ 20-107.3] is to maintain an appropriate
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separation between considerations of child
or spousal support and considerations of an
equitable division of marital wealth."
Williams v. Williams, 4 Va. App. 19, 24, 354
S.E.2d 64, 66 (1987); Reid v. Reid, 7 Va.
App. 553, 564, 375 S.E.2d 533, 539 (1989).
A trial court determines distribution of
marital property without regard for the
considerations of spousal support and the
factors in Code § 20-107.1. Equitable
distribution is based on different
considerations than spousal support. Stumbo
v. Stumbo, 20 Va. App. 685, 691, 460 S.E.2d
591, 594 (1995).
Id. at 619, 472 S.E.2d at 284.
"Both parents owe a duty of support to their minor
children." Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55,
56 (1994) (citing Code § 20-61; Featherstone v. Brooks, 220 Va.
443, 448, 258 S.E.2d 513, 516 (1979)). "A custodial parent has
no less responsibility to provide support to a minor child than
does the noncustodial parent." Bennett v. Commonwealth, Dep't.
of Social Servs., Div. of Child Support Enforcement, 22 Va. App.
684, 692, 472 S.E.2d 668, 672 (1996). See also Hur v. Dep't. of
Social Servs., Div. of Child Support Enforcement, 13 Va. App.
54, 58, 409 S.E.2d 454, 457 (1991) (citation omitted) ("Child
support has long been recognized as an obligation owed to the
infant child, not the payee parent. This duty arises from
principles of natural law.").
We, therefore, find that husband is not entitled to an
offset of the equitable distribution award by the monies he
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expended for the support of his children. We believe that the
rational of Lightburn equally applies to this factual situation.
Husband also contends he is entitled to a dollar-for-dollar
credit for marital debts he paid post-separation. He argues
that the trial court did not give him adequate credit for his
curtailment of wife's pro rata share of marital debt after her
incarceration.
We have previously held that a spouse is not entitled to a
dollar-for-dollar credit for contributions and maintenance of
marital property. Ellington v. Ellington, 8 Va. App. 48, 56,
378 S.E.2d 626, 630 (1989); Barker v. Barker, 27 Va. App. 519,
539, 500 S.E.2d 240, 250 (1998).
Although the separate contribution of
one party to the acquisition, care, and
maintenance of marital property is a factor
that the trial court must consider when
making its award of equitable distribution,
Code § 20-107.3 does not mandate that the
trial court award a corresponding
dollar-for-dollar credit for such
contributions.
von Raab v. von Raab, 26 Va. App. 239, 249-50, 494 S.E.2d 156,
161 (1997).
Similarly, the debts and liabilities of each spouse are one
of the factors in Code § 20-107.3 for the court to consider.
The trial court expressly indicated it took "into account the
debt that [husband] . . . got stuck with . . . ."
"'In reviewing an equitable distribution award on appeal,
we have recognized that the trial court's job is a difficult
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one, and we rely heavily on the discretion of the trial judge in
weighing the many considerations and circumstances that are
presented in each case.'" Anderson v. Anderson, 29 Va. App.
673, 692-93, 514 S.E.2d 369, 379 (1999) (quoting Klein v. Klein,
11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990)). "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 Matthews v. Suzann, 26 Va. App. 638, 496 S.E.2d 126
(1998), we stated:
In determining an equitable
distribution award, the trial court must
make "delicate and difficult judgments,"
Bentz[v. Bentz], 2 Va. App. [486,] 489, 345
S.E.2d [773,] 774 [(1986)], and "weigh[ ]
the many considerations and circumstances
that are presented in each case." Klein v.
Klein, 11 Va. App. 155, 161, 396 S.E.2d 866,
870 (1990). It is precisely "because rights
and interests in marital property are
difficult to determine and evaluate and
competing equities are difficult to
reconcile," that "the chancellor is
necessarily vested with broad discretion in
the discharge of the duties the statute
imposes." Smoot v. Smoot, 233 Va. 435, 443,
357 S.E.2d 728, 732 (1987).
Id. at 645-46, 496 S.E.2d at 129.
In this case, the trial court considered husband's payment
of marital debts in fashioning the distribution of husband's
pension. We cannot say that the award of forty-five percent of
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the pension to wife is an abuse of discretion unsupported by the
evidence. We, therefore, affirm the decision of the trial
court.
Affirmed.
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