Opinion
Record No. CL08-1673.
June 21, 2010.
Appeal from Circuit Court, Roanoke County.
Donna D. Knox, Esq., Roanoke, Virginia.
I. Ray Byrd, Jr., Esq., Salem, Virginia.
Dear Counsel:
The parties separated after seventeen years of marriage and were ultimately granted a no-fault divorce. They had no children. Approximately ten years into their marriage Husband's kidneys failed and Wife donated one of hers. Thereafter, Husband had a heart attack, developed COPD, lymphoma, a major hearing loss and the donated kidney ceased to function. He undergoes kidney dialysis three times per week. Husband lives on spousal support, Social Security disability income, gifts and loans from his family, and Medicare. His work history includes three to four years with the telephone company and doing general property maintenance for Wife's brother's business. Initially that was full time work, but as his health deteriorated his hours were gradually reduced until they ended entirely in early 2009.
Wife is employed as a social worker in her brother's business that provides housing for intellectually disabled individuals. Her base salary is approximately $44,500.00 per year and, with a bonus in 2009, earned almost $48,000.00. The marital home went into foreclosure and was sold in November 2009 for approximately $25,000.00 less than what was owed against it. A bank loaned Wife an additional $35,000.00 against the marital residence in 2007, however without Husband's endorsement, that debt did not become a lien against the marital residence.
The parties agree that no marital assets exist except for their household furnishings and vehicles, which have been divided to their satisfaction. A deficiency debt exists as to the sale of their marital residence and the parties acknowledge that it is a marital debt. Each party has incurred additional debt in his or her own name, some before the separation and some after. Neither party claims that their existing individual debts are marital. Husband claims that he is entitled to a monetary award in equitable distribution because of the numerous refinancings of their marital residence over the years to pay off Wife's separate credit card debts. He asks for a sufficient sum to offset his share of the deficiency debt, or to have Wife pay the debt, and to provide a profit to him for his share of the equity that would have existed but for Wife's excessive spending. No other equitable distribution issue exists. Husband asks for permanent spousal support, to which Wife objects, and both parties are requesting an award of attorney fees.
MONETARY AWARD
Pursuant to § 20-107.3, Code of Virginia (1950), as amended, the Court has the authority to grant a monetary award to one party to assure a proper and equitable distribution of the marital assets. In this case, Husband claims that a large portion of the equity in the marital home was a gift to the parties from the Husband's family, and that with the periodic note payments and appreciation of the value of the real estate over the years, there should have been a substantial profit in the house to divide. He contends that Wife irresponsibly spent money during the marriage, mostly for her own benefit and for non-marital purposes, and that she frequently amassed large debts that were paid off by borrowing money against the jointly owned house. His position is that he was economically forced to enter into the successively larger refinancings of their home, until more was owed against it than it was worth. The foreclosure and sale of the house resulted in a deficiency debt to be divided and not a profit to divide. Under Husband's view of the facts, Wife's actions caused the unfair result of Husband losing his share of the profit that should have existed upon the sale of their marital home. He argues that this inequity should be corrected by his receipt of a substantial monetary award from Wife.
Wife's testimony paints a different picture of the economic history of this family. She says that the parties never pooled their income. Husband paid half the house note and bought some groceries, and she paid all of the rest of the household bills and living expenses. She said that Husband did not have good credit so most of the furnishings for the house, their clothing, vacations and travel were charged on her credit cards. She claims to have also paid for the majority of the cost of the swimming pools installed at both their first house and their second house, mostly by credit card charges. Both parties spent more money than they earned throughout their married life. Wife contends that it was those expenditures and other marital debts and credit card charges that were paid off each time they refinanced their house. She argues that Husband spent much of his income on crack cocaine and alcohol, a practice that caused him to ignore medical advice and exacerbated the deterioration of his health and resulted in the rejection of the donated kidney. She contends that Husband was a willing participant in the continually increasing debt on the marital home, and that it benefited both of them. She believes that the deficiency debt on the house is marital, that Husband is responsible for half of that debt and that no monetary award should be granted to Husband.
Husband's request for a monetary award is based almost entirely upon his testimony that Wife irresponsibly incurred large credit card and other debts for her own benefit and for non-marital purposes. The Court does not believe large portions of Husband's testimony, and in every instance where it is contrary to Wife's testimony, she is the one believed. The Court finds, as a matter of fact, that the debts incurred and paid off by the periodic refinancing of the marital home were for marital purposes, were agreed to and ratified by Husband, are valued as set forth in the various exhibits, and constitute marital debt, both at their inception and when paid off by each new debt incurred and secured by the marital residence. In accordance with the logic of § 20-107.3, the Court denies Husband's request for a monetary award. The deficiency debt occasioned by the sale of their marital residence is marital and will be divided equally between the parties. All other existing debt is separate and is already in the name of the responsible party.
SPOUSAL SUPPORT
The reason for the separation and ultimate divorce in this case is apathy. When Husband's health started to deteriorate the parties began to drift apart. Wife accused Husband of running around on her and Husband accused Wife of the same. Neither party proved those allegations. Husband lives on a disability income from Social Security of approximately $1,450.00 per month, spousal support, Medicare, the cost of which is deducted from his Social Security award, and gifts and loans from his family. His earning capacity is nil. Wife is college educated and employed with an income as set forth above. Although this was a lengthy marriage, the standard of living that the parties established during marriage was far beyond their means, and of no relevance in trying to determine spousal support. Husband's physical condition is appalling in the extreme. Wife is in reasonably good health. The parties have no substantial property interests of any sort. They do have a great deal of debt, both marital and separate. Wife now owes more than $60,000.00 in unsecured debts, which includes the debt she incurred for cancer treatment on one of her pets. Husband's debt, also unsecured, approaches $25,000.00 and does not including the deficiency debt from the sale of their marital residence. It is unclear whether Wife has included that marital debt in her unsecured debts or not. Bankruptcy appears to be a consideration for each of them.
Both parties either continue to live beyond their means, or at least project budgets that include non-essential expenditures that are beyond what they can afford. After considering the equities as they exist between the parties and the factors contained in § 20-107.1 (E), Code of Virginia (1950), as amended, with special emphasis on those factors discussed in this letter opinion, the Court finds that Husband shows a need for spousal support from Wife and Wife has the earning ability to pay spousal support to Husband. Each party will have to make appropriate spending and standard of living adjustments. Neither one can continue to live beyond his or her means. Wife shall pay to Husband the sum of $480.00 per month as permanent spousal support. This payment is effective, pro rata, as of the date of this letter opinion. An inequitable result would occur if this increase were made retroactive to the date of the notice because of the unavoidable delays in setting this for trial.
ATTORNEY FEES
The attorney fee requests made by each party have been examined and considered. The Court is mindful of the fact that Husband's less than accurate rendition of the facts of this case to his attorney, and his corresponding testimony, caused a relatively simple case to become more complicated and expensive. The Court is also aware that directing Husband to pay any portion of Wife's costs for this case is an exercise in futility, and an impossibility will not be ordered. Accordingly, no award of attorney fees is made in this case. Each party shall be responsible for his or her own costs.
Counsel for Wife should prepare an appropriate final decree, incorporating this letter opinion by reference, and present it for entry after first obtaining endorsement of counsel.