Opinion
Record No. 0591-92-2
April 20, 1993
FROM THE CIRCUIT COURT OF CAROLINE COUNTY WILLIAM H. LEDBETTER, JR., JUDGE.
William J. Doran, III, for appellant.
Gerald F. Daltan (Scott, Daltan Van Leer, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Richardio A. Carr appeals from the trial court's equitable distribution of marital property. He contends that (1) the monetary award of $9,500 made to him, based mainly on the value of the marital residence, was inequitably low, especially in light of appellee's alleged misconduct during the marriage; (2) the chancellor erred in refusing to confirm the lump sum spousal support award recommended by the commissioner; and (3) the chancellor erred in upholding the commissioner's refusal to award him attorney's fees and in upholding the commissioner's recommendation that the costs of the proceedings (including the commissioner's fee) be divided equally between the parties. Appellee, Myrna Carr, presents one cross-assignment of error, alleging that the chancellor erred in confirming the commissioner's recommendation that she pay the monetary award within ninety days after entry of the final decree when there was no evidence of a liquid asset from which such lump sum could be paid. For the reasons set forth below, we affirm the rulings of the trial court.
The parties were married on December 30, 1985, lived together until September 21, 1988, and were legally divorced in 1992. At the time of the marriage, husband was a quadriplegic and remained so throughout. At the time of the marriage, wife owned a house on a parcel of real property, which had a fair market value of $119,000 as of January, 1991; $65,000 as of the date of the couple's marriage in 1985; and $92,000 as of the date of their separation in 1988. The property had an assessed value for tax purposes of $44,940 at the time of the marriage and $68,270 at the time of the separation. During the marriage, husband's insurance company provided $33,517.89 for certain improvements, including construction of a large bedroom, bath and closet, and deck and driveway. At the time of the evidentiary hearing, the balance on the mortgage was about $35,000. The parties purchased two automobiles during their marriage, one of which was a specially equipped van.
The record also contains the following evidence about the parties' income and other debts: Appellant testified that his income during the marriage was approximately $2,100 per month. He also testified that this income was greater than the amount to which he was entitled, however, because of the manner in which wife completed the relevant forms between 1985 and 1988. As a result, appellant's current Veterans' Administration disability payments have been reduced by $75 per month until the overpayment of more than $5,000 has been repaid. Wife testified that, to her knowledge, husband received only the V.A. benefits to which he was entitled during the marriage. Wife testified that she was earning $792 per month at the time of the hearing and that her highest earnings after 1984 had been $1,100 per month. Each party assumed liability for various other debts incurred during the marriage. Appellant is also responsible for child support arrearages of $3,640 for a child from another relationship. Finally, appellant testified to wife's repeated acts of abuse during their marriage, her attempts to prevent him from leaving her, and her vicious behavior thereafter.
I.
Appellant argues that the monetary award was inequitably low for several reasons. He asserts that the chancellor erred in failing adequately to consider the parties' debts and liabilities, and appellee's behavior upon the dissolution of the marriage as it affected the value of the marital estate, specifically her alleged waste of the vehicles and failure to make appellant's child support payments.
In deciding whether to make a monetary award, the chancellor must consider all eleven factors enumerated in Code § 20-107.3(E), but he is not required to consider all factors equally or to reveal what weight was given to each factor. See Marion v. Marion, 11 Va. App. 659, 663-64, 401 S.E.2d 432, 435-36 (1991). In addition, neither the statute nor our case law creates a presumption that the award must result in an equal division of marital property; proof that the monetary award does not reflect an equal division, standing alone, does not provide sufficient grounds for reversal or adjustment of the award.Lambert v. Lambert, 6 Va. App. 94, 106, 367 S.E.2d 184, 191 (1988). Unless it appears from the record that the chancellor has abused his discretion, has not considered or has misapplied one of the statutory mandates, or that no credible evidence supports the findings of fact underlying resolution of the conflict in the equities, the chancellor's equitable distribution award will not be reversed on appeal. Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987); see Aster v. Gross, 7 Va. App. 1, 7-8, 371 S.E.2d 833, 836 (1988);Taylor v. Taylor, 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988).
The chancellor's opinion in this case makes clear that he considered all of the required factors: "Upon a review of the evidence and the commissioner's findings, and upon an independent consideration of all the factors in subsection E of § 20-107.3, the court is of the opinion that the commissioner's recommendation of a monetary award of [$9,500.00] should be affirmed." The chancellor clearly considered the value of the marital residence in making the award, and we cannot conclude that he erred by undervaluing it. Although appellant argues that he should have received greater compensation based on the more than $30,000 spent by his insurance company to improve the house, he presented no evidence that those expenditures contributed to the increase in market value. Although the record provides no specific explanation as to how the chancellor arrived at the figure of $9,500, this amount is one-half the amount of equity developed in the residence during the marriage. The court also specifically noted
To reach this figure, we subtract the value of the home at the time of the marriage, $65,000, from the value at the time of the hearing, $119,000, which results in a figure of $54,000. From this amount, we subtract the amount remaining to be paid on the mortgage, $35,000, to arrive at a figure of $19,000. One-half of that amount is $9,500, the amount of the chancellor's lump sum monetary award.
the short duration of the marriage; the extraordinary nonmonetary contributions made by Mrs. Carr versus the considerable monetary contributions of Mr. Carr; the source [i.e., Mrs. Carr's parents] of the marital asset upon which the award is based; the nonliquid character of the property; and the fact that the improvements made to the residence with Mr. Carr's income were primarily for his benefit, not Mrs. Carr's, and there is no evidence of the impact, if any, of such improvements upon the market value of the house.
Given these factors, we cannot conclude that the award of $9,500 was inequitably low.
The chancellor also specifically addressed appellant's concerns about appellee's care of the vehicles, her alleged failure to make appellant's child support payments, and the parties' respective debts and liabilities, and concluded that none of these factors required alteration of the monetary award. Because we cannot conclude from our review of the record that the chancellor abused his discretion in confirming the monetary award of $9,500, we affirm the award.
II.
Appellant also challenges the chancellor's refusal to confirm the commissioner's recommendation of a $5,000 lump sum award of spousal support under Code § 20-107.1. Absent a clear abuse of discretion, we will not disturb the chancellor's determination as long as it appears from the record that he considered the factors set forth in the Code. Dodge v. Dodge, 2 Va. App. 238, 246-47, 343 S.E.2d 363, 367-68 (1986). The chancellor clearly stated that, after "[c]onsidering the factors enumerated in § 20-107.1, the court is of the opinion that neither party owes the other a duty of spousal support." In so doing, he discussed several of the specific factors affecting his decision. We cannot conclude, from our review of the record, that the chancellor abused his discretion. Accordingly, we affirm the chancellor's denial of an award of spousal support.
III.
Appellant also challenges the chancellor's denial of attorney's fees and his requirement that the parties bear equally the costs of the commissioner's review. He concedes that the decision whether to award attorney's fees rests within the sound discretion of the court. See Wagner v. Wagner, 4 Va. App. 397, 411, 358 S.E.2d 407, 414 (1987). Appellant contends, however, that abuse of discretion may be present if the court fails to award fees to a party who has substantially prevailed on the merits. Smith v. Woodlawn Constr. Co., 235 Va. 424, 431, 368 S.E.2d 699, 703 (1988). After reviewing the record, we conclude that appellant did not substantially prevail despite the fact that he received a monetary award of $9,500. The chancellor found that appellant failed to provide any evidence to show that either the home or the van increased in value based on the alterations made to accommodate his handicap. The chancellor also found that he was not entitled to an award of spousal support. Accordingly, we cannot say that the chancellor abused his discretion in refusing appellant's request for attorney's fees and in holding the parties equally responsible for the costs of the commissioner.
IV.
Lastly, appellee argues that the chancellor erred in requiring her to pay the monetary award of $9,500 in one lump sum within ninety days following entry of the decree, given that there was no evidence that she had any liquid assets from which to make the payment. The chancellor expressly considered appellee's request but denied it. Under Code § 20-107.3(E), "the method of payment shall be determined by the court after consideration of the [enumerated] factors," including "[t]he liquid or nonliquid character of all marital property." The chancellor stated clearly in his opinion that he considered all the factors set forth in § 20-107.3(E) before making his decision concerning the lump sum monetary award, and we must assume, absent evidence in the record to the contrary, that he did so. Simply because the record does not affirmatively show that appellee had liquid assets does not mean that the chancellor abused his discretion. The record revealed that appellee had equity in the marital residence in the amount of $83,500 against which she could have borrowed. Accordingly, we conclude that the chancellor did not err in requiring appellee to pay the monetary award within ninety days of entry of the decree.
For the aforementioned reasons, we affirm the judgment of the trial court.
Affirmed.