Opinion
Record No. 0039-92-4 Record No. 0103-92-4
August 17, 1993
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY WILLIAM SHORE ROBERTSON, JUDGE.
David L. Duff (David L. Duff, P.C., on brief), for Diana E. Mains.
Burke F. McCahill (Hanes, Sevila, Saunders McCahill, P.C., on briefs), for Thomas P. Mains, Jr.
Present: Judges Baker, Coleman and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Thomas P. Mains, Jr. (husband) and Diana E. Mains (wife) filed separate appeals from a final decree entered by the Circuit Court of Fauquier County (trial court) that ordered a reduction in the amount of a monetary award previously made to wife. The monetary award was reduced by one-half of the taxes found by the trial court to have been incurred by husband in the sale of property necessary to comply with the award.
The parties each contend that the trial court based its estimation of the tax consequences from the property sale upon an incorrect figure. Wife additionally argues that the trial court lacked jurisdiction to reduce the monetary award and abused its discretion in allowing any reduction for tax consequences. Husband asserts that the trial court erred in awarding judgment interest from August 3, 1989, the date of the final decree of divorce and equitable distribution, prior to reduction of the monetary award.
Under familiar principles, we view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the prevailing party below. "'Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.'"Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) (citation omitted). As the parties are fully conversant with the record in this case, we will recite only those facts necessary to a disposition of the issues on appeal.
The record discloses that, in its final decree of divorce and equitable distribution, the trial court made a monetary award to wife in the amount of $638,241.75. For purposes of the court's calculation of this award, certain marital property, known as the "Occoquan property," was valued at $1,451,054.90. The decree provided that the award was "to be reduced by one-half (1/2) of the taxes, commissions, and expenses associated with the disposition of this property by [husband] as may be approved by the court in the satisfaction of this award to [wife]." Although the phrase, "this property," was not identified, the decree later stated that the award "will be reduced by one-half (1/2) of the taxes, commissions expenses of sale necessarily incurred by [husband] in liquidating assets needed to make payment."
Husband appealed the decree to this Court, where the issue was not whether the monetary award was correctly entered, but whether the award made was final, a necessary precedent for the consideration of spousal support. In Mains v. Mains, No. 1362-89-4 (Va.Ct.App. Oct. 23, 1990), we held that the trial court properly "calculated the final amount (less credit to the husband) of the monetary award before it considered the issue of spousal support."
On February 26, 1991, the trial court conducted an ore tenus hearing and received expert testimony by accountants to determine the amount by which wife's monetary award should be reduced. Husband testified at the hearing that he sold his ownership interest in the "Occoquan property" to his business partner, the joint owner of the land, for $2,098,370.
By letter opinion dated October 1, 1991, the trial court stated that wife's monetary award was to be reduced by $244,865.53. The court calculated the reduction by applying a 33.75% tax rate to the value of the property in 1989, $1,451,054.90, "for a tax consequence of $489,731.06 of which 50% equals $244,865.53." In its final decree entered December 17, 1991, the trial court reduced wife's monetary award to $393,376.22 "with judgment interest from August 3, 1989."
Wife first contends that the trial court lacked jurisdiction to reduce the monetary award two years after entry of the original decree. However, the propriety of structuring an award which granted a specific amount to be reduced by future events was not raised before this Court in the previous Main case, nor was it raised before the trial court prior to entry of the award.
Rule 5A:18 "places the parties on notice that they must give the trial court the first opportunity to rule on disputed . . . procedural questions." Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). Because it does not appear from the record before us that an objection to the procedure was made at trial, it may not be raised as an issue on appeal.See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991); Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 727 (1990).
The parties next contend that the trial court based its estimation of the tax consequences from the property sale upon an incorrect figure. Husband argues that the trial court should have considered the tax consequences associated with the full sale price of the property, while wife contends that only those tax consequences applicable to the $638,241.75 monetary award should have been considered.
"In reviewing an equitable distribution award on appeal, we have recognized that the trial court's job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). "Unless it appears from the record that the chancellor has abused his discretion or has failed to consider or has misapplied one of the statutory factors, his determination will not be reversed on appeal." Id.
Code § 20-107.3 requires the trial court to consider certain enumerated factors prior to determining the amount and method of payment of a monetary award. Zipf v. Zipf, 8 Va. App. 387, 392, 382 S.E.2d 263, 266 (1989). Subsection (E)(9) of the statute specifically requires the trial court to consider the "tax consequences to each party." Barnes v. Barnes, ___ Va. App. ___, ___, 428 S.E.2d 294, 300 (1993).
Former subsection (E)(10)
In this case, the ultimate outcome achieved by the trial court was precisely the result it would have reached had the property been sold for the amount the court valued it at the time the divorce decree was entered. In complying with Code § 20-107.3, the trial court necessarily must estimate probable taxes based upon expert opinions and reduce the amount it would have awarded due to "tax consequences." However, in this instance the trial court achieved the same result by adopting the procedure it did that it could have accomplished had it calculated the tax consequences when the divorce decree was entered.
We do not by this opinion approve the trial court's method for use in other cases. Our affirmation is based upon the fact that neither party argued its impropriety before the trial court.
The property was valued at $1,451,054.90 in 1989 for purposes of the trial court's calculation of the monetary award. Thus, the trial court's ultimate use of this figure to estimate the tax consequences from the property sale was appropriate.
Wife's assertion that the trial court abused its discretion in permitting any reduction in the monetary award is without merit. The trial court was required by law to consider the "tax consequences to each party." We find that it neither abused its discretion nor misapplied the statutory factors in its reduction of the award.
Finally, husband argues that the trial court erred in awarding judgment interest from August 3, 1989, the date of the final decree of divorce and equitable distribution. Code § 20-107.3(D) provides, among other things, that "[t]he provisions of § 8.01-382, relating to interest on judgments, shall apply unless the court orders otherwise." Code § 8.01-382 provides that, in any action at law or suit in equity, the judgment or decree of the court may provide for interest on any principal sum awarded and fix the period at which the interest shall commence. Moreover, this Court has previously held that a monetary award made pursuant to Code § 20-107.3 "is the equivalent of a money judgment," and the trial court may exercise its discretion in determining when the award is due and payable. Brown v. Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368-69 (1987). Thus, we find that the trial court did not abuse its discretion in determining that wife's monetary award became due and payable when the decree was entered and awarding interest from that date.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.