Record No. 2249-92-4
March 29, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY ROSEMARIE ANNUNZIATA, JUDGE.
Stefan C. Long for appellant.
Ilona Ely Grenadier (Reid F. Trautz; Grenadier, Davis Simpson, on brief), for appellee.
Present: Judges Benton, Elder and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
David A. Lindsey appeals from a decree granting his wife, Katherine C. Lindsey, a no-fault divorce and other relief. He contends that the trial judge erred (1) in refusing to consider his wife's income from a trust when awarding spousal and child support; (2) in refusing to credit him the amount of a $7000 loan made by his parents to the parties for the purchase of a home;
In refusing to credit him the mortgage payments that he made while his wife lived in the marital home during the pendency of the divorce proceeding; (4) in refusing to credit him the amount of the loans the parties received from his parents for his dental school tuition and living expenses; (5) in awarding his wife, as part of a monetary award, 35% of the value of his dental practice; and (6) in dividing equally the marital real property, vehicles, and IRA funds. We affirm the decision.
In rendering this opinion, we recite the facts topically, as they relate to the issues posed by the husband.
In setting a child support award, the trial judge must first compute the parties' gross incomes and then, by reference to the tables in Code § 20-108.2(B), must arrive at a presumptively correct award. Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). Gross income shall include "income from all sources, and shall include, but not be limited to, . . . trust income, annuities, capital gains, . . . gifts, prizes, or awards." Code § 20-108.2(C). "No additions or subtractions from the gross income, as defined in Code § 20-108.2(C), . . . may be made before this [presumptive amount] is determined."Richardson, 12 Va. App. at 21, 401 S.E.2d at 896. If the trial judge deviates from the presumptive amount, the trial judge must explain why an award of the presumptive amount would be unjust and inappropriate. Hiner v. Hadeed, 15 Va. App. 575, 579, 425 S.E.2d 811, 813-14 (1993).
The evidence proved that the wife has as her separate property a 15% interest in a trust that owns real property. The trial judge found from the evidence that in 1990, prior to the separation of the parties, the wife received two distributions from the trust in the amounts of $80,000 and $30,000, respectively. The wife received an additional distribution of $7,000 after the separation. She used some of the funds for living expenses and invested $80,000. The evidence also proved that in 1992, when the evidentiary hearing was held, the investment generated income of $403,75 per month.
The wife testified that the trust sold property from which future payments may be made to the beneficiaries of the trust. No evidence proved that in 1992 the wife received income from the trust.
The trial judge's support order required the husband to make child support payments retroactive to March 1992. It appears from the record that the trial judge made her decision based upon the gross incomes of the parties in 1991 and 1992. The husband's exhibits showed his gross monthly income at the time of the hearing to be $6,900. Although in 1992 the wife's investment account had $80,000, that account initially was income received in 1990 and 1991. That account was the source from which she derived interest payments in 1992 that constituted her monthly income. The trial judge did not err in holding that the wife's monthly income in 1992 was $403.75.
The trial judge also did not abuse her discretion in refusing to consider future trust distributions as part of the wife's income in 1992. It is clear from the terms of the trust that the wife has little control over when, or even if, any future distributions are to be made, Consideration of those amounts prior to actual distributions would have been speculative. The trial judge properly did not count them when computing the wife's income because they had not been received and could not yet considered income to her. See Robertson v. Robertson, 215 Va. 425, 426, 211 S.E.2d 41, 44 (1975). Accordingly, the record does not support the husband's claim that the trial judge's decision was plainly wrong or without evidence to support it.
There is no indication that the trial judge failed to consider the relevant factors for computing spousal support. The determination whether a spouse is entitled to support, and if so how much, is a matter within the discretion of the court and will not be disturbed on appeal unless it is clear that some injustice has been done." Dukelow v. Dukelow, 2 Va. App. 21, 27, 141 S.E.2d 208, 211 (1986). The trial judge's letter opinion reveals that the trial judge was cognizant of the distributions the wife received from the trust in prior years and of the conditions under which future distributions could be made. The trial judge considered the parties' collective and individual earning power. In light of the wife's lack of control over future trust distributions, we cannot say that the trial judge's failure to consider the future distributions in calculating spousal support was error. Robertson, 215 Va. at 428, 211 S.E.2d at 44.
There is no dispute that in 1992 the wife earned approximately $403.75 per month in interest from the investment. The trial judge credited the wife with $403.75 monthly income. There is no evidence in the record that the wife had any other source of income in 1992. We conclude that the trial judge considered the interest income in arriving at the spousal support award. Accordingly, we affirm the trial judge's decision regarding spousal support.
The trial judge did not err in refusing to credit the husband for the amount of a loan from husband's parents for the purchase of a house. The parties concede that the husband's parents gave them $7000 in 1984 for the purchase of a house. The record contains no indication that the money was to be repaid. Indeed, when the house was sold, no repayment was made or demanded by husband's parents. Moreover, the trial judge did not err in failing to credit the husband out of wife's share of the marital property an amount claimed by the husband to be a joint debt owed by husband and wife. See Woolley v. Woolley, 3 Va. App. 337, 341-43, 349 S.E.2d 422, 425 (1986). Husband did not prove that he paid the loan and did not ask that both parties' equitable award be reduced equally to account for the debt.See Code § 20-107.3(E). Finally, we note that husband's parents were not parties to this litigation, and the trial judge had no occasion to decide their interests.
The trial judge did not err in refusing to give the husband a specific credit for mortgage payments he made during the pendency of the divorce. Nothing in Code § 20-107.3 requires that a party be compensated for payments made on marital debt during a separation. Moreover, we will not disturb the trial judge's equitable distribution of property absent an abuse of discretion. Dukelow, 2 Va. App. at 27, 341 S.E.2d at 211.
Evidence at trial proved that when the husband lived in the marital home alone, he paid the entire mortgage payment. For a period of time, the parties divided the mortgage payment. For only one period during the parties' separation did the husband pay the entire mortgage payment and then only in exchange for one-half of the spousal support to which the wife was entitled by a pendente lite order. We cannot say that in considering the equities the trial judge abused her discretion in failing to give the husband a specific credit for mortgage payments he made during the parties' separation.
We note, however, that after the divorce and until the marital home is divided pursuant to the trial judge's order, the parties own the home as tenants in common. Code § 20-111. As a consequence, husband as co-tenant may have rights to rents or to a ratable contribution for discharging encumbrances on the property. See Jenkins v. Jenkins, 211 Va. 797, 799-800, 180 S.E.2d 516, 518 (1971).
The trial judge did not err in refusing to credit the husband with $90,000 that the husband alleges to be loans made by the husband's parents to the parties. "The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it." Box v. Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986). The husband and his mother testified that husband's parents loaned him thousands of dollars to pursue his education and to help support him and his wife during the early years of his career. The wife testified that she never understood the husband's parents' support to be a loan. Although the evidence proved that husband's parents gave money to the parties during the early years of their marriage, the evidence proved neither that the amount totaled $90,000 nor that the amount provided was a loan. No documentary evidence was introduced to prove that a loan had been made to the parties.See Woolley, 3 Va. App. at 342, 349 S.E.2d at 425. Because weighing the credibility of witnesses is a matter within the sound discretion of the trial judge, Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 381-82, 363 S.E.2d 433, 436-37 (1987), the decision not to credit the husband for these alleged loans was not plainly wrong.
"Unless it appears from the record that the trial judge has not considered or has misapplied one of the statutory mandates [for equitably distributing property], this Court will not reverse on appeal." Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989). The wife maintained the family home, raised the parties' children, moved the family residence several times in order to accommodate husband's professional aspirations, and researched how to overcome the parties' difficulties in conceiving children. In light of evidence that supports the wife's contributions, the trial judge did not abuse her discretion in making the awards concerning the dental practice, the parties' real property, the vehicles, and the IRA funds.
For the foregoing reasons, we affirm the trial judge's decision.