Michael P. Martin v. Eileen M. Martin

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Powell and Senior Judge Clements
Argued at Richmond, Virginia
MICHAEL P. MARTIN
MEMORANDUM OPINION * BY
v. Record No. 0916-08-2 JUDGE CLEO E. POWELL
FEBRUARY 24, 2009
EILEEN M. MARTIN
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Daniel T. Balfour, Judge
Christopher W. McDonald (Goodwin, Sutton & DuVal, PLC, on
briefs), for appellant.
Richard L. Locke (Shannon S. Otto; Locke, Partin & Deboer, on
brief), for appellee.
Michael P. Martin (“husband”) appeals an order of the Circuit Court of Henrico County
granting Eileen M. Martin (“wife”) an increase in spousal support payments. On appeal,
husband contends (1) the trial court erred in its decision to only impute $500 per month in
income to wife; (2) the trial court erred in finding that wife demonstrated a financial need for
increased spousal support; and (3) the trial court erred in awarding wife support based on her
current standard of living rather than the standard of living enjoyed by the parties during their
marriage. We disagree and affirm the decision of the trial court.
I. BACKGROUND
Husband and wife were married on August 7, 1988. The parties separated on April 15,
2001 and were divorced on May 13, 2002. The parties had two children, Marilyn T. Martin,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
born August 14, 1990, and Julia H. Martin, born February 7, 1997. During the marriage,
husband worked a variety of jobs, while wife was primarily a homemaker.
On October 10, 2002, the trial court entered an order settling all outstanding issues
involving equitable distribution, spousal support, child support, and attorney’s fees. The trial
court ordered husband to pay $4,000 per month in spousal support and $1,150 in child support.
Additionally, wife was awarded the marital residence, provided she purchase husband’s interest
in the amount of $115,000. Wife subsequently used money she inherited to purchase husband’s
interest in the marital home.
On November 17, 2003, husband petitioned the court to reduce his spousal support
obligation, requesting the trial court impute income to wife. The trial court denied his request.
A subsequent appeal to this Court affirmed the trial court’s decision, holding the husband failed
to prove a material change in circumstances since entry of the initial spousal support order.
In 2006, husband again petitioned the trial court to reduce his spousal support obligation;
again husband’s petition was denied.
In October of 2007, both parties petitioned the court to modify husband’s spousal support
obligations. Wife sought an increase in spousal support based on a material change in
circumstances. Specifically, wife claimed that husband was making over $500,000 annually,
inflation had significantly decreased the value of the spousal support awarded in 2002, and
wife’s home was in need of significant repairs (e.g. $20,000 was needed to replace the furnace
and air conditioner). Husband sought a reduction and/or termination of spousal support based on
the fact that wife was not employed and did not have a need for support.
The trial court increased wife’s spousal support to $6,000 per month through August 31,
2008. Effective September 1, 2008, the trial court ruled that $500 per month income would be
imputed to wife, thus reducing spousal support to $5,500 per month. Additionally, the trial court
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increased the monthly child support payments to $2,400 until August 15, 2008, when the child
support payments would be reduced to $1,500 per month.
II. ANALYSIS
A. Imputed Income
Husband argues that the trial court’s decision to only impute $500 per month in income
to wife was not supported by the evidence, and is therefore plainly wrong. “In determining
whether credible evidence exists, the appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of the credibility of witnesses.”
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). “We will not
disturb the trial court’s decision where it is based on an ore tenus hearing, unless it is ‘plainly
wrong or without evidence in the record to support it.’” Furr v. Furr, 13 Va. App. 479, 481, 413
S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d
28, 30 (1989)).
In the present case, the record clearly shows that the trial court discussed with husband’s
expert the possibility for wife to make as little as $600 per month before taxes.
THE COURT: So that would be $600 a month if she worked
twenty days - - thirty hours a month, rather. Is that right? Did I do
that right? Yeah.
DR. SINSABAUGH: That’s about right, sir.
THE COURT: That’s my calculation.
DR. SINSABAUGH: And Hanover County had a community
resource specialist in that same rate of part-time work at $15 an
hour to $20 an hour. She’d start at the lower end of the range.
And those are - - those are the types of jobs. They’re two of them
I’ve identified during that period that occurred of this last month.
As such, the record clearly demonstrates that the trial court considered the evidence
before it. Furthermore, based on the discussion with the husband’s expert, clearly there was
evidence to support the trial court’s finding. The record shows that wife had not worked outside
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the home during the course of the marriage, her last employment was in the banking and retail
industries during the 1980’s, and she still had school-aged children at home. Even though
husband’s expert testified that wife was qualified for positions in mental health counseling,
banking, and teaching, the evidence demonstrates that she had never worked in mental health
counseling and does not hold a teaching certificate.
There is simply no evidence that the trial court abused its discretion in its decision to
impute only $500 per month in income to wife. The fact that the amount imputed to wife is not
the amount husband was hoping for does not demonstrate an abuse of discretion.
B. Wife’s Financial Need
Husband argues that the trial court erred in increasing wife’s spousal support because
wife failed to demonstrate a need for the increased support. “A party seeking spousal support
bears the burden of proving all the facts necessary for an award.” Robbins v. Robbins, 48
Va. App. 466, 484, 632 S.E.2d 615, 624 (2006). “In fixing the amount of the spousal support
award, . . . the court’s ruling will not be disturbed on appeal unless there has been a clear abuse
of discretion. We will reverse the trial court only when its decision is plainly wrong or without
evidence to support it.” Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)
(citations omitted).
Husband argues that wife failed to demonstrate a need for increased spousal support
because her “need” was based on artificially inflated expenses. He argues that the trial court’s
award of spousal support based on these expenses represents an abuse of discretion. The
allegedly improper expenses appear on the income and expense sheet wife submitted to the trial
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court. Specifically, husband focuses his argument on the wife’s inclusion of $1,000 per month in
vacation expenses in the income and expense sheet. 1
An examination of the evidence demonstrates that the trial court did not abuse its
discretion in this matter. Although wife testified that some of the amounts were merely
guesswork or what she would like to spend, the evidence shows that husband agreed with a
majority of the amounts stated by wife. Wife’s income and expense sheet estimates her total
monthly expenses at $8,456.92. In response, husband submitted an income and expense sheet
that estimated wife’s total monthly expenses at $6,679.14. The trial court, however, only
awarded spousal support in the amount of $6,000 per month, $679.14 less than the amount
husband estimated wife’s expenses to be. Thus, the evidence plainly shows that the trial court
did not base its award of spousal support solely on artificially inflated expenses included on
wife’s income and expense sheet.
C. Wife’s Income from Assets
Husband next argues that the trial court erred in not considering the income potential of
wife’s property interests. Husband’s argument is based on the proposition that wife should sell
the home she currently lives in and purchase another, less expensive home in order to decrease
her mortgage.
The primary basis for calculating a support obligation is a spouse’s
current income or any additional income within the spouse’s
earning capacity. To this should be added monies derived from
income-producing assets or those assets that can be altered to
produce income. Additionally, in an appropriate case, other
1
Although husband raises other issues (i.e. the propriety of wife listing the mortgage on
the house she received in equitable distribution and expenses incurred on behalf of the parties’
children), these issues were never raised before the trial court and, pursuant to Rule 5A:18, are
procedurally barred. Moreover, this Court’s ruling in McKee v. McKee, 52 Va. App. 482, 495,
664 S.E.2d 505, 511-12 (2008) (en banc), is controlling and answers husband’s argument
regarding the inclusion of the mortgage payment on the income and expense statement.
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financial resources that may currently fail to produce income may
also be considered.
L.C.S. v. S.A.S., 19 Va. App. 709, 715, 453 S.E.2d 580, 583 (1995).
“In exercising its discretion, the trial court must consider all the factors enumerated in
Code § 20-107.1(E) when fashioning its award, but it is not ‘required to quantify or elaborate
exactly what weight or consideration it has given to each of the statutory factors.’” Miller v.
Cox, 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005) (citing Woolley v. Woolley, 3 Va. App.
337, 345, 349 S.E.2d 422, 426 (1986)). Moreover, “[w]here the . . . record discloses that the trial
court has given due consideration to each of these factors, we will not disturb its determination
as to spousal support on appeal.” Id. In announcing its decision, the trial court specifically
stated that it had considered the property interests of both parties, “both real and personal,
tangible and intangible.” Additionally, the trial court stated that it “was not going to place [wife]
in a position of trying to sell [her house].” As the record is clear that the trial court gave due
consideration to husband’s proposition, we find no abuse of discretion.
D. Wife’s Standard of Living
Husband next contends that the award of spousal support allows wife to enjoy a standard
of living that is not commensurate with the standard of living the parties enjoyed while married.
Husband argues that during the marriage, the parties’ highest annual income was $136,000; in
contrast, the court ordered appellant to pay appellee $66,000 annually in spousal support. This,
according to husband, indicates that the trial court awarded wife support based on her current
standard of living rather than the standard of living enjoyed by the parties during their marriage.
“It is well established that spouses ‘entitled to support have the right to be maintained in
the manner to which they were accustomed during the marriage,’ subject to the other spouse’s
ability to pay.” Furr, 13 Va. App. at 483-84, 413 S.E.2d at 75 (quoting Dukelow v. Dukelow, 2
Va. App. 21, 26, 341 S.E.2d 208, 210 (1986)).
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In the present case, husband concedes the fact that he has the ability to pay the amount of
spousal support awarded by the trial court. Additionally, as an indication of the standard of
living enjoyed by the parties prior to the divorce, the record demonstrates the parties owned real
estate in both Florida and Virginia, made contributions to a retirement fund, and went on
numerous vacations.
Since the divorce, however, wife’s standard of living has steadily declined. The evidence
shows that the only property owned by wife is the former marital home. That home is in need of
significant repairs, requiring an estimated $20,000 to repair the heating and air conditioning,
which she could not afford. Additionally, wife has not made any contributions to a retirement
fund or gone on a vacation since the divorce. Thus, it can hardly be said that the trial court
awarded wife spousal support based on her current standard of living rather than the standard of
living enjoyed by the parties during their marriage.
Husband begrudgingly acknowledges that, if wife has demonstrated a need for support,
wife’s spousal support should be adjusted for cost of living increases in order to maintain the
standard of living enjoyed by the parties during the marriage. He argues, however, that the
evidence does not support an increase to $6,000 per month. Rather, when cost of living
increases are taken into account, wife’s own expert testified that the support amount should only
be increased to $4,608 per month in order to maintain the standard of living she enjoyed in 2002,
when the parties first divorced. Thus, husband contends, an increase in support to $6,000 allows
wife to enjoy a standard of living beyond the standard of living the parties enjoyed while
married.
Code § 20-109 grants courts continuing jurisdiction to modify
awards where changed circumstances are demonstrated. Thus,
“[the] statutory scheme recognizes that comparative needs and
capacities change as circumstances change, that changes are not
fairly predictable, and that spousal support awards must be
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determined in light of contemporary circumstances and . . .
redetermined [if necessary] in light of new circumstances.”
Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (quoting Jacobs v. Jacobs, 219 Va.
993, 995, 254 S.E.2d 56, 58 (1979)).
As an initial matter, we note that the testimony relied upon by husband related to the
present value of wife’s 2002 support award and not to the actual amount of support that she
required. Additionally, it can hardly be said that, by increasing wife’s spousal support, the trial
court was allowing her to enjoy a standard of living beyond that which the parties enjoyed while
married. Rather, the record clearly demonstrates that wife is currently living far below the
standard of living the parties enjoyed while married. See Furr, 13 Va. App. at 484-85, 413
S.E.2d at 75 (“[Spouse’s] entitlement to be maintained in the manner to which she was
accustomed during the marriage should not be undermined simply because she did not foresee
[future expenses].”). As such, the trial court’s decision that wife was entitled to increased
spousal support in order to be maintained in the manner she was accustomed during the marriage
was neither an abuse of discretion nor plain error.
E. Wife’s Attorney’s Fees
Finally, wife seeks an award of attorney’s fees and costs incurred on appeal.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). As this appeal
lacks merit, we grant the wife’s request. Accordingly, we remand this case to the trial court for
determination and award of the appropriate appellate attorney’s fees and costs. Id.
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III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court, grant the wife’s
request for attorney’s fees and costs, and remand for determination of those fees and costs.
Affirmed and remanded.
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