Opinion
Record Nos. 0228-93-2 and 0471-93-2
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY, Richard H. C. Taylor, Judge
Affirmed in part, Reversed and Vacated in part.
Carolyn P. Carpenter (Carpenter Harris, on briefs), for appellant.
Stephen L. Jaffe, pro se.
Present: Judges Coleman, Elder and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit, except that part relating to the provision automatically reducing the spousal support payment after twelve months. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
The appellant, Nancy Marie Jaffe, contends that the trial court failed to follow the guidelines established in Code Sec. 20-107.3 in making its decision regarding equitable distribution. Specifically, she alleges that the trial court erred in failing: (1) to determine the value of all of the property; (2) to determine the rights and interests of each party in the marital property; (3) to decide whether a monetary award in favor of either party is warranted; and (4) to determine the amount of the monetary award.
On April 25, 1991, this cause was referred to a commissioner in chancery to hear evidence and report his findings to the court on the issues set forth in the decree of reference. The decree was amended by order dated September 24, 1991. The commissioner heard the evidence and filed his report in the Clerk's office on October 16, 1992. Both the plaintiff, Stephen L. Jaffe, and the defendant, Nancy Marie Jaffe, filed exceptions to the report that were timely filed in the Clerk's office on October 26, 1992.
At a later date, the defendant lodged in the Clerk's office a document in her own handwriting entitled, "Defendant's Exceptions to the Report of the Commissioner Carl Witmeyer, II."
Exceptions to a commissioner's report must be made within ten days of the date the report is filed in the Clerk's office. Code § 8.01-615; see Klein v. Klein, 11 Va. App. 155, 159, 396 S.E.2d 866, 869 (1990). The trial court did not consider this document and neither do we because it was not timely filed.
After the exceptions were filed, and at the request of the parties, the commissioner wrote two letters to the court in further explanation of the report. The letters were dated November 13, 1992, and November 19, 1992, respectively. The trial court held a hearing on the exceptions, and in its final order, approved the commissioner's report. The court also approved the two explanatory letters and adopted them as a part of its order. The final order further decreed that the objections and exceptions of both parties were filed and made a part of the order, and that the exceptions to the order were duly noted. These were the only objections to the final order entered on January 4, 1993.
The established rule in Virginia is that parts of a commissioner's report not excepted to are "considered as admitted to be correct," as the party excepting " 'must put his finger on the error' so that the court may see what it has to decide."
McLaughlin v. McLaughlin, 2 Va. App. 463, 470, 346 S.E.2d 535, 539 (1986) (quoting Cralle v. Cralle, 84 Va. 198, 201, 6 S.E. 12, 13 (1887)). We will not consider on appeal rulings that were not excepted to in the trial court. Id.
The lack of a transcript or statement of facts in the record of the December 17, 1992, hearing on the exceptions is problematic. On appeal, the appellant is required to show that the evidence failed to support the trial court's decision. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Without a transcript or statement of facts or a complete recitation of the pertinent facts and proceedings in the trial judge's opinion, it is impossible for a litigant to show that the evidence did not support the judge's findings or constituted an abuse of discretion. The judgment of the trial court is presumed correct, and the burden is on the party alleging reversible error to show from the record that the remedy to which he is entitled is reversal. Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991).
The appellant makes a general argument in her exceptions to the commissioner's report that the court failed to determine the value of all of the property. The commissioner did not make a list of all of the property, set forth the valuations, and then add up the values and come to a total dollar value. Both parties were ordered to file a list of marital property with valuations. Both parties did this. Although neither totalled the values, the record contains sufficient evidence from which the total fair market values could be determined. We find no abuse of discretion under these circumstances.
We have reviewed the exceptions taken by the appellant to the commissioner's report and find that no exception was made to the commissioner's failure to determine the rights and interests of each party in the marital property, to his failure to decide whether a monetary award in favor of each party was warranted, or to his failure to determine the amount of the monetary award. Therefore, because no exception was taken, the appellant did not preserve these issues for appeal. We note, however, that one section of the commissioner's report addresses the equities and the rights and interest of each party in the marital property and reflects consideration of the factors set forth in Code Sec. 20-107.3. Implicit in his findings is that he made no monetary award to the appellant but decided the case under Code Sec. 20-107.3(C), that provides for the division or transfer, or both, of jointly owned marital property.
The appellant contends that the trial court erred in awarding spousal support to her in an amount less than one-fourth of Dr. Jaffe's gross income. She alleges that the trial court erred in finding that she was physically able to work when, in fact, she has no marketable skills. She contends that her present income and expenses justify a spousal support award substantially greater than the $2,000 per month awarded to her, which amount will be reduced to $1,500 per month in twelve months under the court order.
It is well settled that the trial court has broad discretion in awarding spousal support under Code Sec. 20-107.1. Such awards will not be set aside unless the record shows that some injustice has been done. Gibson v. Gibson, 5 Va. App. 426, 434, 364 S.E.2d 518, 523 (1988). Evidence regarding spousal support was heard by a commissioner in chancery. "The commissioner's report is deemed to be prima facie correct." Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990). "The decree confirming the commissioner's report is presumed to be correct and will not be disturbed if it is reasonably supported by substantial, competent, and credible evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651, 652 (1986). "The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).
A court may, under appropriate circumstances, impute income to a party seeking spousal support. This conclusion logically flows from the principle that one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need. See Baytop v. Baytop, 199 Va. 388, 394, 100 S.E.2d 14, 19 (1957). A spouse may not choose a low paying position that penalizes the other spouse. See Butler v. Butler, 217 Va. 195, 227 S.E.2d 688 (1976). Code Sec. 20-107.1 directs the trial court to consider as a factor the earning capacity of the "parties," and the word "parties" includes the earning capacity of the payee spouse as well as the payor spouse. McGuire v. McGuire, 10 Va. App. 248, 251, 391 S.E.2d 344, 347 (1990); see also Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990).
The appellant has failed to carry the burden of proof in this case. Further, from the beginning of this case it was evident that there would be a shortage of cash until Stanley Farm was sold and the proceeds divided as directed by the court. A review of the evidence and the commissioner's report demonstrates that the court followed the statutes in determining the amount of spousal support. Code Sec. 20-107.1 requires that the trial court consider the parties' earning capacities and financial resources in relation to their respective needs. In determining the earning capacity of a spouse who is unemployed, the evidence must enable the court reasonably to project what amount could be anticipated. The court is not required to set forth a method by which it calculated with precision an exact wage or salary that an unemployed party could earn. We have reviewed the evidence in this record and the trial court's application of the law to the case and find substantial credible evidence in the record to support the amount of the spousal support awarded and no abuse of discretion, except as to the reduction to $1,500 after twelve months.
We have held that the court in setting spousal support must look to current circumstances and what the circumstances will be "within the immediate or reasonably foreseeable future," not to what may happen in the future. See Young v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986). Thus, the trial court erred by ordering that the spousal support would be reduced from $2,000 to $1,500 when awarding the spousal support. Therefore, we vacate the provision of the January 4, 1993, order that reduces the spousal support to $1,500 after twelve months. We will not remand for further proceedings because the court has continuing jurisdiction over spousal support under Code Sec. 20-109 upon petition by either party.
The appellant contends that the trial court erred when it ordered Dr. Jaffe to pay only two-thirds of the $21,000 owed to her present attorney (or $14,000), $1,000 toward the $3,437 bill of a former attorney, and $1,000 toward the $3,470 bill of another former attorney. The commissioner reported that "a large portion of Ms. Carpenter's bill has resulted from the illogical and unnecessary Motions and evidence of Ms. Jaffe." We agree with the assessment of the commissioner that was approved by the trial court. There was no dispute as to the marital assets. Each party provided a list to the commissioner, and those lists were substantially the same. In his opening statement, Dr. Jaffe stated that he would agree to a fifty-fifty split of the marital assets. The appellant's present attorney agreed that a fifty-fifty split of the assets was reasonable. Appellant requested a cash settlement instead of a division of property, but did not disclose the availability of the cash for such a purpose. Despite the narrow issues involved in the case, the commissioner conducted eight hearings resulting in eight volumes of transcripts containing 1,354 pages and approximately 100 exhibits, most of which were irrelevant to the issues in the case.
An award of attorney's fees is a matter submitted to the trial court's sound discretion 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 the reasonableness under all the circumstances. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). We find no abuse of discretion in the award of attorney's fees.
Accordingly, the decision of the trial court is affirmed in part and reversed in part. The provision that the spousal support award in the amount of $2,000 monthly be reduced to $1,500 monthly after twelve months is the sole basis for reversal, and is hereby vacated.
Affirmed in part, Reversed and Vacated in part.