Opinion
Record No. 0165-93-4
January 18, 1994
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY BENJAMIN N. A. KENDRICK, JUDGE.
Sammy S. Knight (Knight Associates, on brief), for appellant.
Carol Schrier-Polak (Bean, Kinney Korman, P.C., on brief), for appellee.
Present: Judges Benton, Elder and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Ursula Rourke, hereinafter wife, appeals from the trial court's determinations concerning equitable distribution and spousal support. On appeal, she argues that the trial court erred (1) in fashioning the equitable distribution by (a) failing to give her proper credit for her contributions to the well-being of the family; (b) improperly crediting Brian Rourke, hereinafter husband, for the downpayment made on the home in 1984; (c) failing to consider husband's recent inheritance; (d) considering wife's withdrawal of funds as dissipation of martial assets; and (e) granting wife the right to defer capital gains taxes on the sale of the new home. She also claims the trial court erred (2) in imputing $30,000 in annual income to her and denying her request for spousal support; (3) in denying her motion for a continuance after she fired her attorney during the week before the equitable distribution hearing; and (4) in awarding husband $20,000 in attorneys' fees. For the reasons that follow, we affirm the ruling of the trial court in part, and reverse and remand in part on the issue of spousal support.
I.
The bulk of appellant's assignments of error relates to the trial court's determination of the parties' respective contributions to the marriage. In reviewing the equitable distribution, we are guided by the following principles:
The chancellor is necessarily vested with broad discretion in the discharge of the duties the statute [Code § 20-107.3] imposes upon him. Unless it appears from the record that the chancellor has abused his discretion, that he had not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor's equitable distribution award will not be reversed on appeal.
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368 (1987) (quoting Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987)). After careful review of the record, we conclude that the trial court (1) properly credited the parties for their respective contributions, both monetary and non-monetary, to the well-being of the family and the acquisition and maintenance of marital property, and (2) properly considered all other required statutory factors in fashioning the equitable distribution award. We also conclude that the award as a whole is reasonable and therefore constitutes no abuse of discretion. See Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 727 (1990).
II.
Appellant also claims the trial court erred in denying her spousal support by imputing $30,000 annual income to her. "A court may under appropriate circumstances impute income to a party seeking spousal support." Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990). In this case, however, viewing the evidence in the light most favorable to husband, we hold that the evidence was insufficient to support the trial court's imputation of a $30,000 annual income to wife. Husband's expert testified that the only full-time position for which wife was facially eligible was one with the Voice of America, an organization against which she had a class action age discrimination suit pending. He admitted that although she was qualified to teach at the college level, no vacancies were available for the 1992-93 academic year on either a full or part-time basis and that such jobs would be difficult to obtain in the following years. He testified on direct examination that translating and interpreting positions were available on an intermittent basis, but admitted on cross-examination that wife would not be qualified for many of these jobs if she did not have the proper certification. He also admitted to being uncertain as to whether her computer and word processing skills were sufficient to qualify her for these positions. Finally, the evidence showed that wife had never earned more than $14,000 a year. We conclude, from a review of this testimony, that the record contained insufficient evidence to support the trial court's imputation of income. Accordingly, we remand to the trial court for a redetermination of wife's entitlement to spousal support in light of our decision.
III.
Appellant next challenges the trial court's denial of her motion for a continuance based on the discharge of her attorney. Although husband contends that our review of this issue is barred, we hold that wife's specific objection to the denial entered October 13, 1992, made at trial on October 14, 1992, when she first became aware of its entry, was sufficient under Rule 5A:18 to preserve this assignment of error for appeal.
We conclude, however, that the trial court did not abuse its discretion in denying wife's motion for a continuance. See Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986) (must show abuse of discretion and prejudice). In this case, wife discharged her third attorney within four days prior to the scheduled equitable distribution hearing. She presented no evidence that she attempted to hire new counsel to proceed in a timely fashion upon the discharge of her prior counsel. We conclude under these circumstances that the trial court did not abuse its discretion in denying wife's motion for a continuance. See C.A.H. v. L.H., 434 S.E.2d 268, 269-70 (S.C. 1993) (denial not abuse of discretion where both party and attorney requested withdrawal); Cross v. Cross, 407 S.E.2d 720, 723 (W.Va. 1991) (denial not abuse of discretion following multiple changes in counsel, even though party would be forced to proceed pro se).
IV.
We also conclude that the trial court did not abuse its discretion in granting husband's request for attorney's fees.See Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The record in this case is replete with evidence supporting the conclusion that wife needlessly defied various court orders and discovery requests, thereby justifying the award of attorney's fees under Rule 4:12(a)(4). As of July 28, 1992, husband had incurred over $70,000 in legal fees and a debt of $20,000, excluding costs for representation at the hearings of October 9, 13 and 14, 1992. Based on this evidence, we conclude that the trial court did not abuse its discretion in entering a $20,000 judgment for husband to defray a portion of his attorney's fees.
For the foregoing reasons, the judgment of the trial court is affirmed in all respects except as it relates to spousal support. The issue of spousal support is remanded for redetermination consistent with this opinion.
Affirmed in part, reversed in part, and remanded.