Opinion
Record No. 0526-92-4
April 13, 1993
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG WILLIAM H. LEDBETTER, JR., JUDGE.
Donald C. Grey (Mercer, Grey Arsenault, on briefs), for appellant.
Joseph A. Vance, IV (V. James Ventura; Roberts, Sokol, Ashby Jones; Ackerman Ventura, on brief), for appellee.
Present: Judges Benton, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Henry L. Foiles, III, (husband) appeals a final decree of divorce entered by the Circuit Court of the City of Fredericksburg. He contends that the chancellor erred by: (1) awarding him a no-fault divorce based on a one-year separation rather than constructive desertion; (2) denying his request for spousal support; (3) failing to conduct a review of the parties' custody agreement; (4) improperly computing his child support obligation; and (5) assessing costs and attorney's fees against him. Finding no error in any of these rulings, we affirm.
BACKGROUND
The parties are familiar with the facts of this case and, therefore, we restate only those facts necessary to explain our holding. This was a marriage of two years with little or no marital property at issue. The parties were married on May 10, 1986 and separated in July 1988. Their only son, Andrew Lee, was born December 20, 1986. In late 1987 and early 1988 the parties experienced financial and marital problems. On April 14, 1988, wife filed a petition for custody with the City of Fredericksburg Juvenile and Domestic Relations District Court (juvenile court) seeking sole custody of their son. On June 10, 1988, husband filed an identical petition also seeking custody of Andrew. The juvenile court granted custody to wife with visitation rights to husband and ordered husband to pay child support. Husband appealed the juvenile court's order to the circuit court.
On November 21, 1988, husband filed for divorce in the circuit court. Wife answered and filed a cross-bill seeking a divorce on the grounds of desertion. The circuit court granted husband's request to consolidate the juvenile court appeal and the circuit court divorce suit.
On November 5, 1990, the parties agreed to share joint custody of their son, and to decrease husband's child support obligation to $350 a month. The trial judge referred the consolidated suits and all unresolved matters to a commissioner in chancery for specific findings of fact. After extensive hearings, testimony and submissions, the commissioner issued his report recommending, inter alia, that husband be granted a no-fault divorce pursuant to Code § 20-91(9). Exceptions to the commissioner's report were filed by both parties and were heard by the chancellor ore tenus. The chancellor issued a letter opinion on February 12, 1992 and entered the final decree of divorce on March 4, 1992.
DIVORCE AND SPOUSAL SUPPORT
Husband argues that the evidence was sufficient to prove wife guilty of constructive desertion and that he should have been awarded a divorce on this ground. At the initial hearing before the commissioner, husband amended his Bill of Complaint to request a divorce based on a one-year separation. Fault was reserved only in relation to spousal support and equitable distribution, although the marital property was minimal and equitable distribution was not ultimately requested. There is no basis in the record for awarding husband a divorce based on constructive desertion.
Appellant's briefs are saturated with personal attacks against opposing counsel, former counsel and the appellee. The purpose of a brief to this Court is to clarify the facts and the law as it relates to the questions presented. See Rule 5A:20. We expect the relevant information in the briefs to be presented in a professional manner, so as to uphold the dignity of the practice of law in this Commonwealth. See Va. Code of Professional Responsibility, EC 1-5, EC 7-10, EC 7-33, and EC 7-34. Appellant's briefs fail to meet this expectation. Moreover, we find appellant's briefs to be highly opprobrious and unprofessional.
Assuming, arguendo, that husband had presented sufficient evidence to establish wife's constructive desertion, we have held that "[w]here dual grounds of divorce exist," the chancellor "can use his sound discretion to select the appropriate grounds upon which he will grant the divorce."Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d 658, 663 (1986); Alphin v. Alphin, ___ Va. App. ___, ___, 424 S.E.2d 572, 574 (1992). Thus, the chancellor did not err by granting to the husband a divorce on the ground of a one-year separation pursuant to Code § 20-91(9).
"On appeal, a decree that has confirmed a commissioner's report is presumed to be correct, . . . and will be affirmed unless plainly wrong" or without evidence to support it. Seemann v. Seemann, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987);Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986). In addition, we review the evidence in the light most favorable to the party prevailing at trial and accord to that party all reasonable inferences fairly deducible therefrom.Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988).
The trial judge affirmed the commissioner's finding that neither party was entitled to spousal support pursuant to Code § 20-107.1. Husband argues that his wife's "inequities" entitled him to support regardless of any other considerations. We disagree. The trial judge found that the motivation behind the spousal support request was to satisfy marital debts. It was conceded that this proceeding predated the amendment to Code § 20-107.3(E) which now provides for the apportionment of marital debt. Nonetheless, while recognizing that debt is one consideration in awarding spousal support, the trial judge "declined to apportion the marital debts disguised as an award of spousal support."
"Whether a spouse is entitled to support, and if so how much, is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless it is clear that some injustice has been done," Steinberg v. Steinberg, 11 Va. App. 323, 329, 398 S.E.2d 507, 510 (1990), or that there is a clear abuse of discretion. See Code § 8.01-680. Neither requirement has been established in this case.
CHILD CUSTODY AND VISITATION
Husband argues that the trial judge erred by failing to conduct a review of the "day to day supervision of their child." The parties signed an agreement on November 5, 1990 establishing joint custody of the child. This consent agreement was approved by the court and incorporated into decrees dated January 18, 1991 and February 1, 1991. Therefore, the issue of child custody was not properly before the trial court as there was a valid custody order in existence and husband failed to show a material change in circumstances which would have required an additional hearing. Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986) (citations omitted). Pursuant to Code § 20-79(c) all matters pertaining to custody of the parties' minor child were transferred to the juvenile court.
CHILD SUPPORT
Husband argues that the trial court erred in affirming the commissioner's findings as to the parties' income, asserting that the commissioner improperly imputed income to him and reduced the actual income his wife received from her part-time employment. This argument is without merit. The trial judge affirmed the commissioner's calculations and findings of the parties' gross monthly income. In so doing, the trial judge specifically rejected any reference in the commissioner's report as to imputed income.
"The starting point . . . for determining the child support obligation of a party, . . . is to compute the presumptive amount using the schedule found in Code § 20-108.2(B)."Watkinson v. Henley, 13 Va. App. 151, 158, 409 S.E.2d 470, 473 (1991). "This amount is determined according to a schedule that varies according to the combined gross income of the parties and the number of children involved." Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). "'Gross income' used to enter the Schedule of Monthly Basic Child Support Obligations is carefully defined and includes only actual income." Farley v. Liskey, 12 Va. App. 1, 5, 401 S.E.2d 897, 899 (1991). After the statutory calculation is made, the amount attributable to the non-custodial parent becomes the presumptively correct amount of his child support obligation. This figure must then be gauged against the general standards found in Code § 20-108.1.
The trial judge found that the figure of $1,788.98 per month accurately reflected the husband's gross monthly income and that the commissioner's calculation was amply supported by the evidence without regard to imputed income. Husband's exhibit No. 28 purports to establish his gross monthly income at $1482. This amount was found to be slightly low because the income was incorrectly divided by ten (10) weeks rather than the proper eight and one-half (8 1/2) weeks. This discrepancy justified an increase in husband's admitted gross monthly income. In so finding, the trial judge rejected wife's argument that the calculation amount of her husband's income should be increased to account for underemployment.
The trial judge agreed with the commissioner that no additional income should be imputed to wife's gross monthly income. The commissioner's findings on the pro rata share of custody payments was also affirmed by the trial judge. Rejecting husband's argument that the commissioner failed to give him "credit" for a second child support obligation, the trial judge noted that Code § 20-108.1 lists such obligations as one of sixteen factors to consider in setting a child support award. Accordingly, the trial judge found that the commissioner properly considered all the statutory factors in setting the award.
Child care costs of $215 were similarly affirmed by the trial judge. Health care costs were stipulated separately by the parties, and thus, were not included within the child support obligations of the parties. The trial judge properly affirmed all these findings.
EQUITABLE DISTRIBUTION
It is conceded by the parties that there is no marital property. No monetary awards are sought. Accordingly, the trial judge found it unnecessary to rule on equitable distribution.
ATTORNEY'S FEES AND COSTS
The most compelling issue in this case was the excessive costs associated with the manner in which this case was litigated. This case involved a marriage of two years with little or no marital property. The issues of custody, equitable distribution and the grounds of divorce were resolved prior to the commissioner's hearing. The trial judge in his letter opinion succinctly set out his rationale for assessing costs and attorney's fees against husband, whom he found was primarily responsible for the length and expense of the litigation, as follows:
[T]he commissioner's hearings consumed four days, generated numerous exhibits 1,200 pages of transcript, and gave rise to several briefs and memoranda. The point of most of that testimony, . . . was to establish Mr. Foiles' position that Mrs. Foiles had lied, cheated, forged signatures, stolen money, made false statements on employment applications, destroyed his credit rating, spent money excessively, and was a convicted felon. Assuming that some or even all of these things have at least some tangential relevance to issues of child support and spousal support, it is obvious that they did not deserve the attention they got. To impose upon Mrs. Foiles, the defendant, the costs of that unnecessary ordeal would be unjust.
Joint Appendix Vol. I at 350. "It is well established that an award of attorney's fees in a divorce proceeding is 'a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion.'"Alphin, ___ Va. App. at ___, 424 S.E.2d at 578 (quotingGraves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987)). Under the circumstances of this case, requiring husband to assume all the costs of the litigation, his own attorney's fees and fifty percent (50%) of wife's attorney's fees was not an abuse of discretion. Code §§ 20-99 and 20-79(b).
APPELLATE COSTS AND CONCLUSION
For the reasons set forth above, we conclude that all of the trial court's findings are amply supported by evidence in the record. In addition, the language used by counsel for husband during trial, on brief to this Court and in argument before us demonstrates clearly that husband and his counsel caused the trial court and this Court to be diverted by issues tangential to the actual questions to be decided. This conduct has caused this case to become unnecessarily protracted, contentious and expensive. Wife is therefore awarded her taxable costs incurred in this appeal and all reasonable and necessary attorney's fees, the amount of which shall be determined by the trial court. Accordingly, we affirm the judgment and remand this matter for entry of an order for attorney's fees and costs consistent with this opinion.
Affirmed and remanded.