D.G.P. v. E.C.P.

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
D.G.P.
v. Record No. 1004-95-4 MEMORANDUM OPINION *
PER CURIAM
E.C.P. NOVEMBER 7, 1995
E.C.P.
v. Record No. 1030-95-4
D.G.P.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Judge
(Brian M. McCormack; Dunn, McCormack,
MacPherson & Orfe, on briefs), for D.G.P.
(James R. Tate; Tate & Bywater, on briefs),
for E.C.P.
The parties appeal from the equitable distribution decision
of the circuit court. D.G.P. (husband) alleges that the trial
court erred in distributing the marital assets. E.C.P. (wife)
argues that the trial court erred in awarding her only a portion
of her attorney's fees. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Equitable Distribution Award
"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). If the trial court has considered the
factors set out in Code § 20-107.3(E) and the evidence supports
the trial court's conclusions, we will not disturb the trial
court's equitable distribution award merely because it is
unequal. Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 504,
508 (1990).
The trial court awarded wife the largest single marital
asset, the marital residence, which had an equity of $165,000.
Wife was also awarded her pension. Husband was awarded his Boy
Scout memorabilia collection with an estimated value of $60,000.
Other marital assets and debts were divided almost equally.
Husband argues that neither the evidence nor the factors set
out in Code § 20-107.3(E) support the trial court's equitable
distribution decision. While husband concedes wife made somewhat
greater nonmonetary contributions to the family than he did, he
asserts that the trial court failed to consider his greater
monetary contributions.
The trial court considered all the statutory factors, but
noted that "certain considerations and findings . . . bear
particular mention." Specifically, the trial court found that
2
both parties made significant monetary contributions to the
family, and husband earned somewhat more money throughout the
marriage. However, while wife's earnings "consistently went to
benefit the family," husband "spent thousands of family dollars
in pursuit of his sexual escapades." Husband also spent an
estimated $60,000 on his Boy Scout memorabilia collection, which
"far exceeded money one would be entitled to spend on a hobby
without having to account for it or without having it taken into
account at the conclusion of a marriage."
The trial court also noted the nonmonetary contributions,
including the negative contributions, made by the parties. The
trial court found that wife made the more significant nonmonetary
contributions to the family. While husband worked long hours as
an attorney, he also traveled away from the family for the
purposes of adding to his scouting collection and participating
in sexual liaisons. In the beginning, husband traveled only
several times a quarter. Eventually husband was gone every other
weekend, from noon on Friday until late afternoon on Sunday.
Although husband denied having any sexual encounters on his scout
collection trips, he admitted that he sometimes claimed to be on
scouting trips when in fact he was pursuing sexual activities.
The trial court noted that almost ninety percent of wife's
pension was marital property. Wife's pension had a cash
withdrawal value of approximately $62,500. While wife's pension
funds had continued to accrue, husband repeatedly withdrew
3
retirement funds to spend on his Boy Scout memorabilia
collection. Husband testified that he spent thousands of dollars
of his federal government retirement funds and withdrew $12,000
of marital funds held in an IRA to add to his collection. The
evidence was inconclusive whether husband had other pension
benefits from his years in private practice. By awarding the
memorabilia collection to husband and the pension to wife, the
trial court gave each party an unencumbered interest in assets of
approximately equal value. We cannot say that that distribution
was an abuse of the court's discretion.
Finally, we find no abuse of discretion in the trial court's
decision to award the marital home to wife. Wife had custody of
the parties' two minor children. The trial court specifically
found that husband's expenditures did not constitute waste, as
they were not made in anticipation of a divorce. Booth v. Booth,
7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). In this case,
however, husband's activities not only were detrimental to the
marriage and the family by drawing him farther and farther away,
but also were a financial drain on the marital assets. Thus,
these activities were relevant in determining the distribution
award. See Aster v. Gross, 7 Va. App. 1, 5-6, 371 S.E.2d 833,
836 (1988). Moreover, "while equitable distribution is not a
vehicle to punish behavior, the statutory guidelines authorize
consideration of such behavior as having an adverse effect on the
marriage and justifying an award that favors one spouse over the
4
other." O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527, 458
S.E.2d 323, 325 (1995). Therefore, the trial court did not abuse
its discretion in considering husband's activities in its
equitable distribution award and in awarding wife a greater share
of the marital assets.
Attorney's Fees
Wife argues that the trial court abused its discretion by
awarding her only $2,500 out of $11,436 in attorney's fees.
However, an award of attorney's fees is a matter submitted to the
sound discretion of the trial court 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). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
Wife's annual income was approximately $70,000, while
husband's was approximately $90,000. Wife had expended $5,500 in
marital assets to pay her attorney. Husband was responsible for
paying up to $1,800 for wife's therapy. Based on the number of
issues involved and the respective abilities of the parties to
pay, we cannot say that the award was unreasonable or that the
trial judge abused his discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
5