Carl A. Barrs v. Alice C. Barrs

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
CARL A. BARRS
MEMORANDUM OPINION *
v. Record No. 2093-95-1 BY JUDGE JOSEPH E. BAKER
AUGUST 20, 1996
ALICE C. BARRS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
James C. Roberts (Mays & Valentine, on
briefs), for appellant.
John F. Rixey (Rixey and Rixey, on brief),
for appellee.
Carl A. Barrs (husband) appeals from an award of spousal
support granted to Alice C. Barrs (wife) by a decree of divorce
entered by the Circuit Court of the City of Newport News (trial
court) on August 25, 1995. Although the decree granted a divorce
and made equitable distribution, attorney's fees, and costs
awards, the sole issue presented by this appeal is whether the
spousal support award exceeded the discretionary authority with
which the trial court is endowed.
There is little, if any, disagreement as to the value of the
many properties owned by husband as well as his latest annual
wage income or present net income from those properties. Because
the parties are thoroughly familiar with the extensive record and
exhibits, we refer only to those necessary to an understanding of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
this opinion.
Initial hearings were held by a commissioner in chancery to
whom this matter was referred for his report and recommendations.
The commissioner's report discloses that the parties married on
October 7, 1957. They lived together as husband and wife for
approximately thirty-two years. They have three children, all of
whom are emancipated. The parties were fifty-six years of age at
the time of the commissioner's report. Wife is unemployed and
husband is a successful contractor and investor. Husband is in
reasonably good health, while wife suffers from multiple
sclerosis. Wife's condition is in remission, however, the
probability of future medical care is likely, and she is
generally not capable of employment. On or about September 30,
1989, husband left the marital home and did not return.
With respect to spousal support, the trial court accepted
the commissioner's recommendation that wife be awarded $8,000 per
month. In considering the award, the commissioner found
husband's annual income to be $250,000. The commissioner
considered wife's itemized list of expenses and noted that while
several of the items could be reduced, the sum recommended was
reasonable in that husband had estimated wife's annual expenses
to be $60,400, and that estimate excluded mortgage payments and
tax considerations.
Husband introduced a cash flow projection covering a
twelve-month period from April 1993 through March 1994. Husband
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testified in accord with the exhibit that, by the end of the time
period which the exhibit covered, he would be required to expend
a sum of more than $184,000 in excess of his income funds in
order to meet his obligations. According to his testimony and
exhibits, husband asserted that his income sources totaled
$188,711, and that his expenditures required to maintain his
position with marital investments totaled $141,870.
Husband concedes that at the time he left the family home in
1989 and in the year 1990, his income was substantially higher
than during 1992 when the hearings before the commissioner were
held. The commissioner reported that during the year 1989, in
which the parties separated, the gross income shown on husband's
federal tax return was $341,000 and that husband's 1990 and 1991
federal tax returns disclosed $632,000 and $332,000,
respectively. Husband filed an exhibit claiming his "wage
earnings" from his business were as follows: 1989 - $253,000,
1990 - $336,000, 1991 - $183,000, and 1992 - $130,000. Husband
contends that although he still owns the properties from which
his "gross incomes" were derived, he makes payments on sums due
for loans secured by those properties which result in zero
spendable income.
The determination whether a spouse is entitled to support
and, if so, how much, is a matter within the discretion of the
trial court and will not be disturbed on appeal unless it is
clear that some injustice has been done. Oliver v. Oliver, 202
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Va. 268, 272, 117 S.E.2d 59, 62 (1960); see also Dukelow v.
Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986), and cases
there cited. The judgment of the trial court is presumed correct
and we may not disturb its ruling if there is credible evidence
to support it. Steinberg v. Steinberg, 11 Va. App. 323, 329, 398
S.E.2d 507, 510 (1990); Code § 8.01-680. Thus, in regard to the
amount of the spousal support award, we will reverse such award
only for an abuse of discretion or the judge's failure to
consider all the factors set forth in Code § 20-107.1. Barnes v.
Barnes, 16 Va. App. 98, 103, 428 S.E.2d 294, 298 (1993). It is
presumed further that a trial court properly based its decision
on the evidence presented, Williams v. Williams, 14 Va. App. 217,
221, 415 S.E.2d 252, 254 (1992), and on appeal the trial court's
findings must be accorded great deference. Bandas v. Bandas, 16
Va. App. 427, 432, 430 S.E.2d 706, 708 (1993); Hulcher v.
Hulcher, 177 Va. 12, 18, 12 S.E.2d 767, 769 (1941). A review of
the memorandum filed by the trial court and the decree of divorce
makes it clear that the trial court properly considered the
provisions of Code § 20-107.1.
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the nine factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on appeal
except for a clear abuse of discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
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(1986).
In the commissioner's report, considered by the trial court,
was the following:
The most difficult area in which to arrive
at a confident result is the spousal support
request made by the wife. Throughout this
couple's marriage, there is no question that
their standard of living was very high. They
traveled extensively, had a beautiful home,
and had a boat at the end of their marriage
which had a mortgage payment of $5,000 per
month. The wife's expert testified that she
will need $160,000 per year in support and
maintenance, which is $61,000 for taxes and
$99,000 per year for expenses. The wife
discounts this figure and requests the amount
of $12,000 per month or $144,000 per year.
Exhibit #12 for the wife indicates that the
husband's gross income on his federal tax
returns has been $341,000 (1989); $632,000
(1990); and $332,000 (1991). Exhibit #15 of
the husband shows his wage earnings from his
business at $253,000 (1989); $336,000 (1990);
$183,000 (1991); and $130,000 (1992). For
1993, his salary appears to be in the area of
$125,000. In addition to his salary,
however, the husband has also received a
payment of $120,000 from his business in rent
each year for the Grafton property, and his
various accountings indicate a number of
other additions to income from various
investments on an annual basis. However, the
husband also has a significant number of
required investment expenditures, which, if
not made, will decrease or ruin the value of
his business interests and, if non-payment is
assumed, necessitate a re-evaluation and a
reduction in the value of the marital
property under § 20-107.3. The most current
salary statement offered in evidence before
the commissioner is for 1992 in the amount of
$130,000, and the commissioner will find that
the annual income to Mr. Barrs is $250,000
per year, including the rent received from
his company for the Grafton real estate.
* * * * * * *
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After considering the award of marital
property recommended under § 20-107.3, and
after a consideration of the statutory
factors set forth in § 20-107.1, the
commissioner recommends that the wife be
awarded the amount of $8,000 per month, until
further order of the court. 1
The trial court accepted the recommendations of the commissioner
and the final divorce decree ordered husband to pay monthly to
wife the sum of $8,000 and, in addition, an amount not to exceed
$300 per month toward health insurance premiums. On appeal, a
decree which approves a commissioner's report will be affirmed
unless plainly wrong. Sprott v. Sprott, 233 Va. 238, 240, 355
S.E.2d 881, 882 (1987).
In a divorce case, where a claim for
alimony is made by a wife who has been held
blameless for the marital breach, the law
imposes upon the husband the duty, within the
limits of his financial ability, to maintain
his former wife according to the station in
life to which she was accustomed during the
marriage.
Klotz v. Klotz, 203 Va. 677, 680, 127 S.E.2d 104, 106 (1962).
Where the wife is possessed of a sizeable estate in her own
right, the law does not require her to invade that estate to
relieve the obligation of her former husband whose actions have
brought an end to their marriage. Id.; Ring v. Ring, 185 Va.
269, 273-74, 38 S.E.2d 471, 473 (1946).
In fixing the amount of alimony, the court
must look to the financial needs of the wife,
1
The commissioner also recommended that husband be required
to pay wife a sum not to exceed $300 per month toward the cost of
medical insurance premiums in accord with Code § 20-107.1.
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her age, physical condition and ability to
earn, and balance against these circumstances
the financial ability of the husband to pay,
considering his income and his ability to
earn. The amount awarded must, in any event,
be fair and just under all the circumstances
of the case.
Klotz, 203 Va. at 680, 127 S.E.2d at 106 (citations omitted).
Husband contends that the trial court abused its discretion
when it made the spousal support award because his annual income
is limited to $130,000. That assertion fails to consider the
requirement that a fair allotment to a wife is determined by
balancing her needs against the ability of the husband to pay,
considering both his actual earnings and his capacity to earn,
whether from his personal efforts or his property. Id.; Taylor
v. Taylor, 203 Va. 1, 3, 121 S.E.2d 753, 755 (1961).
In determining the propriety of allowing
alimony and in fixing its amount, there must
be taken into consideration, along with all
of the other circumstances of the particular
case, the needs of the wife and the ability
of the husband to pay--not necessarily the
amount of his actual earnings, but his
ability to earn.
Hawkins v. Hawkins, 187 Va. 595, 600, 47 S.E.2d 436, 439 (1948)
(citations omitted).
As noted above, the "ability of the husband to pay is
determined not necessarily by the amount of his actual earnings,
but also by his ability to earn and what, under all the
circumstances [including his possessions], will be a fair and
just allotment." Id. at 600-01, 47 S.E.2d at 439 (alteration in
original). In reaching its decision, income averaging is an
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acceptable method of determining a spouse's ability to earn. See
Russell v. Russell, 216 Va. 432, 219 S.E.2d 689 (1975); Klotz,
203 Va. 677, 127 S.E.2d 104; Ring, 185 Va. 269, 28 S.E.2d 471.
In view of the history of husband's ability to earn income
and considering the investment properties he owns, we cannot say
that the trial court's decision was plainly wrong or that it
abused its discretion in making the spousal support award of
which husband complains.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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