Opinion
Record No. 0561-94-1
Decided: January 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Jerome B. Friedman, Judge
J. Russell Fentress, IV (Goss, Meier Fentress, on brief), for appellant.
Moody E. Stallings, Jr. (Kevin E. Martin-Gayle; Stallings Richardson, P.C., on brief), for appellee.
Present: Judges Baker, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Mary Ellen Guilfoyle (wife) appeals the trial court's equitable distribution and support awards. Wife contends the trial court erred: (1) in awarding wife a lump sum spousal support payment instead of periodic payments; (2) in failing to consider wife's use of funds for necessities in dividing the proceeds from the parties' certificate of deposit; (3) in not awarding wife any of husband's accumulated sick leave or accumulated vacation time; (4) in not awarding wife her marital share of the survivor benefits from husband's Navy retirement fund; (5) in awarding wife inadequate attorney's fees; and (6) in not awarding wife health care coverage. For the following reasons, we affirm in part, reverse in part, and remand to the trial court.
I. LUMP SUM SPOUSAL SUPPORT
First, we hold the trial court abused its discretion in ordering a lump sum spousal support award instead of periodic payments. In arriving at our decision, we are guided by several principles.
Code Sec. 20-107.1 provides that the trial court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments, in a lump sum award, or both. The exercise of the trial judge's discretion will not be disturbed upon appeal unless it has been exceeded.
Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (citation omitted); see also Kaufman v. Kaufman, 12 Va. App. 1200, 1205, 409 S.E.2d 1, 4 (1991). The trial court is required to consider all of the factors listed in Code Sec. 20-107.1, and its failure to do so is reversible error. Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d 363, 367 (1986). "Generally, when courts do make lump sum spousal support awards they do so because of special circumstances or compelling reasons . . . ." Blank, 10 Va. App. at 5, 389 S.E.2d at 725 (citations omitted). Finally, "[f]ault in the breakup of a marriage, or the lack thereof . . . may affect a spousal support award." Bacon v. Bacon, 3 Va. App. 484, 490, 351 S.E.2d 37, 41 (1986); Code Sections 20-107.1, 20-107.3.
In this case, both the commissioner and chancellor failed to demonstrate the compelling reasons or special circumstances for granting wife a lump sum spousal support award. In his report, the commissioner stated that he considered the factors set forth in Code Sec. 20-107.1. However, the only factor specifically mentioned was wife's "likely prospects for getting a job." The chancellor never explained his reasons for granting a lump sum award, although he noted wife's exceptions to such an award. The record reveals, among other things: (1) husband was at fault in the marriage's breakup; (2) wife was unemployed at the time of the trial; (3) wife had been unemployed for the previous nineteen years; (4) wife made sizeable non-monetary contributions to the marriage; and (5) wife's prospects of obtaining a teaching job were uncertain.
Additionally, the record indicates that wife's monthly expenses totalled $3,621, and husband's monthly expenses totalled $4,415.31. Husband had the means with which to make periodic payments beyond the eighteen months ordered by the trial court (his monthly income totalled $6,693). As there was no evidence in the record as to how much wife would earn when and if she secured employment, the trial court could not have placed a specific value on the amount of money that would be available for wife to meet her monthly expenses. Thus, the trial court's spousal support order unfairly placed wife in the situation of receiving no spousal support after eighteen months, even though her monthly expenses would total approximately $3,300 ($3,621 minus her tuition payments). This result would surely deprive wife of the standard of living to which she had become accustomed during her marriage. While the trial court gave wife the option of petitioning the court for additional support at a future date, the burden would be placed on her to prove her need for such support. See Furr v. Furr, 13 Va. App. 479, 413 S.E.2d 72 (1992) (stating the party moving for modification of support payments must prove both a material change in circumstances and that this change warrants a modification of support); see also Blank v. Blank, 10 Va. App. 1, 389 S.E.2d 723 (1990). This result is inequitable, especially in light of the fact that husband was at fault in the dissolution of the marriage.
Thus, balancing the equities and noting the absence of any compelling reasons, see Kaufman v. Kaufman, 12 Va. App. 1200, 1205, 409 S.E.2d 1, 4 (1990), we hold the trial court abused its discretion in ordering a lump sum spousal support award.
II. USE AND DIVISION OF CERTIFICATE OF DEPOSIT PROCEEDS
In this case, after a careful review of the record, we cannot say that the marital assets spent on wife's education constituted waste, as wife did not "squander" or "destroy" the assets for an improper purpose. See Alphin v. Alphin, 15 Va. App. 395, 402, 424 S.E.2d 572, 576 (1992). Even though wife began her recertification training four months after the parties' separation, the goal of her educational training was to provide wife with a more marketable career with which to adequately support herself. There was no evidence presented that wife's educational expenditures were unreasonable or unnecessary. Thus, we hold wife did not dissipate that portion of marital funds spent on her educational training.
Additionally we hold that wife's expenditures of marital funds on attorney's fees was a valid purpose and did not constitute dissipation of marital assets. See, e.g., Decker v. Decker, 17 Va. App. 12, 19, 435 S.E.2d 407, 412 (1993); Amburn v. Amburn, 13 Va. App. 661, 666, 414 S.E.2d 847, 850 (1992). Thus, on remand, the division of the certificate of deposit proceeds ($41,000) must be made after subtracting the value of wife's necessary expenditures on her education and her attorney's fees ($9,000).
III. ACCUMULATED SICK LEAVE AND VACATION TIME
We hold the trial court did not abuse its discretion in denying wife an award of husband's accumulated sick leave and vacation time. There is no Virginia case law or statutory authority to support wife's proposition that accumulated sick leave or vacation leave is a marital asset before it is awarded to the spouse to whom the value is credited. It was impossible for the trial court to place an exact value on the sick leave and vacation leave husband will accumulate upon retirement, because husband may become ill or use his vacation time at any point before retirement. It is only upon retirement that the lump sum values would be added to husband's retirement payments, according to federal law. 5 U.S.C. § 5551(a); 5 U.S.C. § 8339(m) (1994). Because the values of husband's leave times were only speculative before his retirement, the trial court correctly found it had no authority with which to award wife half of the values as a marital award.
IV. SURVIVOR BENEFITS
Wife was awarded one-half of the marital share of husband's military and civil service pensions. Wife contends that there are certain "survivor benefits" to which she is entitled and the chancellor erred in not so ordering pursuant to Code Sec. 20-107.3(G) (2). We find the record inadequate to address this issue, a fact conceded at oral argument.
V. ATTORNEY'S FEES
Because we remand this matter on other issues we do not address the attorney's fees issue at this time. We remand to the trial court to reconsider the total award of attorney's fees in view of the successful appeal and additional fees incurred.
VI. HEALTH CARE COVERAGE
Lastly, we hold the trial court did not abuse its discretion in deciding not to order husband to pay for wife's health care coverage.
Code Sec. 20-60.3(5) requires that spousal support orders contain [p]rovision . . . for whether and to what extent health care coverage for a spouse or former spouse is required. There is no statutory mandate that health care coverage be provided, though physical and medical condition of the parties is one fact a court must consider in awarding spousal support. Code Sec. 20-107.1(5).
Lassen v. Lassen, 8 Va. App. 502, 505-06, 383 S.E.2d 471, 473 (1989) (quotations omitted). A trial court's refusal to include health care benefits in a spousal support award will not be reversed unless we can say that the trial court abused its discretion in making no separate provision for health care coverage. A review of the record reveals no evidence that clearly established wife's medical problems were caused by husband or the breakup of the marriage. Without such evidence, or evidence wife was unable to obtain health coverage on her own, we hold the trial court did not abuse its discretion in denying wife's request for health care coverage.
For the foregoing reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.