Opinion
Record No. CH05-140.
September 23, 2010.
Appeal from the Circuit Court of City of Salem.
J. Emmette Pilgreen, IV, Esq., LUTINS PILGREEN, P.C., Roanoke, Virginia.
C. Gregory Phillips, Esq., Phillips Phillips, Salem, Virginia.
Dear Counsel:
Husband and Wife were previously granted a no-fault divorce based on their living separate and apart for one year. The facts of this case as they applied to equitable distribution matters were set forth in this Courts letter opinion dated July 22, 2010. That letter opinion is hereby incorporated by reference into this opinion to the extent that its facts also apply to spousal and child support, and attorney fees. In reaching the support and attorney fees decisions in this case the Court considered all of the dictates of § 20-107.1, § 20-108.1 and § 20-108.2, Code of Virginia (1950), as amended, and the related code sections, with special emphasis on those facts set forth in its opinions. In addition to hearing and seeing all of the evidence in this case, the Court had the opportunity to observe and weigh the testimony and demeanor of the parties and their witnesses. The Court also considered the bias and truthfulness of Husband and Wife in all aspects of this case, to include their testimony in this phase of their divorce.
HUSBAND
Husband testified that his income from the business he operates dropped from $141,623.00 per year at the start of this divorce case to $1,715.79 per month for the first seven months of this year. He projected his this year's income to be less than $20,500.00 gross. His CPA testified that based on the numbers given to him by Husband, those figures were accurate. No audit was conducted. His budget, which includes the $3,750.00 he pays each month as a unitary child and spousal support award, and the $1,333.00 he pays monthly for a house payment on the new home he purchased when he and Wife separated, amounts to $7,404.00 net. Using only the monthly income from his business and an approximate $12,000.00 increase in his business debt over a five-year term, Husband told the Court that he is current on all of his debt obligations. His business pays the health insurance premiums for he, Wife and children. He is able to play golf at least once per week and sometimes more frequently. His business has recently sent him to conferences in Hawaii, Las Vegas and one of the Carolina beaches. Husband is the CEO of his business.
Taking into consideration all of the evidence in this case, the Court concludes that Husband's report of his income for the year 2010 is not accurate. The overall decline in the economy is not as great as Husband contends. It is more equitable to determine his current income by averaging his annual income for the five-year period that includes 2005 through 2009. After completing that computation, the Court finds that Husband earns a gross income of $90,879.60 per year or $7,573.30 per month. For a case reaching a similar conclusions dealing with income averaging, see Butterman v. Butterman, 2009 Va. App. Lexis 365.
WIFE
Wife testified that throughout the majority of the five-year separation of the parties she was not gainfully employed and instead attended college part time and earned a bachelors degree in business and marketing. She supported herself and two children on the $3,750.00 monthly unitary award from Husband. She also paid part of her monthly living expenses by incurring approximately $8,000.00 per year in credit card debt over the past five years. Recently she has become employed part time earning $25.00 per hour for 25 hours per week. She is able to work out of her home. Although she said she was only able to work part time because of medical issues, no other evidence corroborated that assertion. She is voluntarily under-employed and the Court will treat her as though she is able to work 40 hours per week and earn a gross income of $1,000.00 per week. Her current monthly budget of $6,858.00 is found to be aspirational based on her history of income and debts over the last five years.
SPOUSAL SUPPORT
After considering all of the evidence presented, the Court finds that Wife has shown a need for spousal support and the Husband has shown the ability, earning capacity, education and training necessary to pay reasonable spousal support. The Court fixes Husband's spousal support obligation to Wife at $1,300.00 per month. Taking into consideration the reasons for the delays in this case, the less than forthright testimony presented and the actual attempt to hide facts from the Court, Husband's support obligation will change, pro rata, effective the date of this letter opinion. Any other date would be inequitable.
CHILD SUPPORT
The Court finds no reason to deviate from the child support guidelines set forth in § 20-108.2, Code of Virginia (1950), as amended. Using Husband's gross monthly imputed average income of $7,573.30 less $1,300.00 per month he pays in spousal support, he has a monthly income for computing child support in the amount of $6,273.30. Using the income imputed to Wife of $4,333.33 per month plus the $1,300.00 she is to receive in spousal support, she has a monthly income for computing child support in the amount of $5,633.33. The combined monthly income of the parties is $11,906.63. Rounded off, Husband earns 53% of that total and Wife earns 47%. The presumptive support figure for two children taken from the chart in § 20-108.2 is $1,577.00 for the first $10,000.00 of combined monthly income and 5.1% of the remaining $1,906.63 of monthly income, or $97.24, for a total monthly presumptive support figure of $1,674.24. There are no extraordinary medical or day care costs for the children. The health care insurance for the children is a benefit provided to Husband from his business at no cost to him. Husband's obligation for child support is calculated to be $887.35 per month plus providing health care insurance for the children. Wife's obligation is $786.89 per month. Husband will pay 53% of the medical costs not paid by the health insurance carrier for each child after Wife pays the first $250.00 annually. Wife will be responsible for the remaining 47% of the children's medical costs.
ATTORNEY FEES
Both parties have argued that they should be entitled to attorney fees. Reviewing the actions of the parties in this case and the evidence presented, the Court denies Husband's request for attorney fees. The Court awards a portion of the attorney fees incurred by the Wife, to be paid by Husband, directly to Wife's attorney in the amount of $12,600.00. That will be reduced to judgment and, if not sooner paid, will be payable 100 days from the date of this letter opinion.
Counsel for Wife should prepare an appropriate order, incorporating this letter opinion by reference, and present it for entry after first obtaining endorsement of counsel. All matters dealing with child and spousal support, custody and visitation will be transferred to the Juvenile and Domestic Relations District Court. The order from this opinion will be final and the case will be stricken from the docket.