Afaf Kanazeh Mann v. Michael Kay Mann

• Court: Court of Appeals of Virginia
• Decided: May 21, 1996
• Docket: 0333954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Annunziata Argued at Alexandria, Virginia

AFAF KANAZEH MANN MEMORANDUM OPINION * BY v. Record No. 0333-95-4 JUDGE ROSEMARIE ANNUNZIATA MAY 21, 1996 MICHAEL KAY MANN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Quinlan H. Hancock, Judge

Philip F. Hudock for appellant.

Lauren E. Shea (Sherman, Meehan & Curtin, P.C., on brief), for appellee.

In September 1993, Afaf Kanazeh Mann ("wife") filed a Bill

of Complaint seeking a divorce from Michael Kay Mann ("husband")

on grounds of cruelty and desertion. In May 1994, husband filed

a cross-bill seeking a divorce from wife on grounds of

constructive desertion and cruelty. In August 1994, wife filed

an Amended Bill of Complaint charging husband with adultery.

Following hearings in August and September 1994, the commissioner

reported that both husband's post-separation adultery and wife's

cruelty and constructive desertion had been proved. As such, the

commissioner applied the doctrine of recrimination, barring a

fault-based divorce. The commissioner recommended a no-fault

divorce based on one year of separation without cohabitation or

interruption. Following a December 1994 equitable distribution * Pursuant to Code § 17-116.010 this opinion is not designated for publication. hearing, the trial court adopted the commissioner's findings,

ordered a no-fault divorce, and entered its Final Decree of

Divorce and Qualified Domestic Relations Order.

Wife appeals the court's equitable distribution assigning as

error: (1) the failure to properly consider the factors set forth

in Code §§ 20-107.3 and 20-107.1; (2) application of the court's

finding that wife was responsible for the marriage's dissolution

to its equitable distribution and support award; (3) requiring

wife to pay the mortgage on the marital home after granting her

spousal support; (4) requiring wife to pay 50% of husband's 1993

outstanding federal income tax; (5) requiring wife to pay $10,000

of husband's attorney's fees; (6) requiring wife to pay $500 in

commissioner's fees; and (7) the failure to find husband in

arrears with his support payments. 1 For the following reasons,

we affirm, in part, reverse, in part, and remand, in part, for

further proceedings.

The parties were married January 14, 1984 and separated

September 9, 1993. Husband began working for Martin Marietta in

1966 and continued to work there throughout the proceedings. In

1993, husband reported wages of $123,572.23. In 1994, he earned

approximately $130,000, including a $112,000 salary and an

$18,000 incentive bonus he received the following January.

Husband testified that his gross monthly income was $9,307.

1 The husband filed a cross-appeal, the disposition of which is addressed in a separate opinion.

- 2 - Husband participated in both a defined benefit plan and a defined

contribution plan through his employer.

During the marriage, wife worked in real estate, held jobs

as a retail salesperson and cosmetologist, and was a property

manager earning $1,300 per month. Through the first nine months

of 1993, wife earned approximately $15,000 working in real

estate. Wife testified that she netted only $1,687. Initially,

wife testified that she stopped working in October 1993.

However, she later indicated that she continued to do some work

as a property manager. Wife testified that she had been unable to work since

October 1993 due to medical problems. Wife's physician estimated

that her condition caused her 50% permanent partial disability.

However, wife's physician testified that her prognosis was good

if she maintained a proper diet and took her medication. Wife's

physician testified that her conditions had existed since 1985 or

1986.

The parties' marital estate included their marital residence

valued at $252,000. At the time of the equitable distribution

hearing, the balance on the mortgage was $87,542 and the equity

was $144,298 after accounting for sales costs.

At the date of the equitable distribution, the parties had

credit card debt of approximately $40,000, much of which was

attributed to wife's post-separation spending. Husband paid the

credit card debt to preserve the good credit rating he needed to

- 3 - maintain his security clearance at work. Husband owed the IRS

$9,782.40 in back taxes for 1993, a year in which husband filed a

separate return.

Husband testified that he was the primary provider during

the marriage. Throughout the separation, husband made monthly

mortgage payments of $1,595 on the marital residence. During

that time, he also paid the utilities and $550 per month spousal

support. Wife's son testified that wife intended to perpetuate the

court proceedings in an attempt to force husband to capitulate to

her demands. In a memorandum of law submitted to the trial

court, husband referred the court to wife's refusal to settle the

parties' dispute contrary to the advice of her counsel.

The court made the following findings with respect to the

testimony: (1) as to the marital home, husband made most of the

contributions to its acquisition and maintenance; (2) as to the

marital debt, wife had no credible explanation for her incurring

substantial post-separation debt; (3) as to spousal support, wife

intended to bankrupt husband or, at least, cause him to lose

money through the litigation; (4) as to spousal support, wife

suffered from her various medical conditions since the mid-1980s

but that the conditions would not prevent her from continuing to

work; and (5) as to attorney's fees, wife was totally responsible

for the dissolution of the marriage.

After stating that it had considered all the factors set

- 4 - forth in Code §§ 20-107.1 and 20-107.3, the court ordered: (1)

that unless either party purchased the other's share of the

marital residence within thirty days, the home was to be sold and

husband given a credit for the principal payments he made during

the separation and until the sale of the house if he continued to

pay the mortgage; the remaining proceeds were to be split, 40%

for wife, 60% for husband; (2) that wife receive 40% of the

marital share of husband's retirement plans; (3) that wife pay

50% of the 1993 outstanding federal income tax; (4) that wife pay

a monetary award to husband of $10,126 representing the post-

separation credit card debt she incurred; (5) that wife pay

$10,000 of husband's attorney's fees and 50% of the cost of the

commissioner's hearing; and (6) that husband pay $1,600 per month

spousal support. On February 1, 1995, the trial court granted husband's

Motion for Financial Relief thereby ordering wife to make

mortgage payments on the marital residence for so long as she

resided there. By order dated February 2, 1995, the court denied

wife's motion seeking, inter alia, to modify the support award in

light of her obligation to pay the mortgage.

I

Wife argues that the trial court failed to make specific

findings in its consideration of the factors set forth in Code

§§ 20-107.1 and 20-107.3(E). In Alphin v. Alphin, 15 Va. App.

395, 424 S.E.2d 572 (1992), this Court concluded with respect to

- 5 - § 20-107.3(E) that the trial court's failure to consider all of

the statutory factors is reversible error and that the trial

court must do more than merely recite that it has considered all

the factors. Id. at 405, 424 S.E.2d at 577-78; see also Via v.

Via, 14 Va. App. 868, 872, 419 S.E.2d 431, 434 (1992) (addressing

Code § 20-107.1). However, the trial court is not required to

precisely or expressly state the consideration it gives each

factor, and, when the court fails to articulate its reasons

sufficiently, this Court examines the record to see if the

evidence supports the award. Alphin, 15 Va. App. at 405, 424

S.E.2d at 578 (quoting Gibson v. Gibson, 5 Va. App. 426, 435, 364

S.E.2d 518, 523 (1988)). Upon review of the court's findings

with respect to both the support award and equitable

distribution, as discussed above, we conclude that the trial

court gave proper consideration to each of the statutory factors.

II

Next, wife argues that the court abused its discretion by

improperly considering wife's fault in making its support award

and equitable distribution. However, the court made clear that

it considered wife's fault only with respect to its award of

attorney's fees. The court never referenced wife's fault

concerning either support or equitable distribution.

III In determining the appropriate amount of spousal support, the trial court must consider the needs of the requesting party and the other spouse's ability to pay. . . . In fixing the amount of support the trial court must look to the financial needs of the [receiving

- 6 - party], her age, physical condition and ability to earn, and balance against these circumstances the financial ability of the [other spouse] to pay, considering his income and his ability to earn.

Alphin, 15 Va. App. at 401, 424 S.E.2d at 575 (citation omitted).

When based on the statutory factors, a court's support award

will not be reversed absent an abuse of discretion. See id. at

401, 403, 424 S.E.2d at 575. Here, we cannot say that the trial

court abused its discretion in making its initial support award

of $1,600 per month. A support award may be modified when the party seeking

modification proves "both a material change in circumstances and

that this change warrants a modification of support." Furr v.

Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation

omitted); see also Code § 20-109. Husband had been paying the

mortgage on the marital home, approximately $1,600 per month

including both principal and interest, through the parties'

separation until entry of the final decree. The wife's expense

sheet, reflecting no expenditures for mortgage payments, was

admitted as evidence in the case.

In its final decree, the court awarded wife $1,600 per month

spousal support. It also provided for a credit to the husband,

from proceeds obtained upon the sale of the marital residence,

for mortgage payments he made in the intervening time. After the

entry of the decree, the court granted husband's motion for

financial relief, requiring wife to make the monthly mortgage

payments, but summarily denied wife's motion to modify the

- 7 - support award without further hearing or argument. Wife contends

that the court erred in so doing. We agree.

The court's subsequent order requiring wife to pay the

mortgage reapportioned the parties' relative financial postures,

relative to needs and ability to pay. Contrary to the court's

finding, the court's order constituted a material change in

circumstances, requiring further inquiry to determine whether

such change warranted a modification of support. The award of

spousal support is therefore remanded for further proceedings

consistent with this opinion. 2

IV

Wife next argues that the court erred by ordering her to pay

one-half of husband's outstanding 1993 tax liability. She

contends that the tax debt is separate property because husband

filed a separate income tax return in 1993.

Income tax debts incurred during the marriage are generally

treated as marital debt. Brett R. Turner, Equitable Distribution of Property § 6.29, at 457 (2d ed. 1994); see also Downey v.

Kamka, 428 S.E.2d 769, 771-72 (W. Va. 1993); cf. Turner, supra,

at 460 (property taxes on nonmarital property constitute

nonmarital debt). Filing separate returns does not change the

character of the debt. Downey, 428 S.E.2d at 772. Rather, 2 Our decision in Michael Kay Mann v. Afaf Kanazeh Mann, in a separate published opinion, reverses the trial court's equitable distribution award of certain pension benefits. The wife's spousal support award must be reconsidered in light of that decision as well. See Va. Code § 20-107.1(8).

- 8 - whether a debt is classified as marital or separate depends on

who benefitted from the debt. Turner, supra, at 455-56; see also

Gamer v. Gamer, 16 Va. App. 335, 341-42, 429 S.E.2d 618, 623

(1993). If both parties benefitted from the debt, it should be

considered marital, regardless of the fact that only one of the

parties may have incurred it. Id.

Here, the tax liability was based on husband's income, which

was marital property, benefitting both parties. Accordingly, we

find that the tax on that income is marital debt. Likewise, we

find the interest and penalty obligations were properly

considered marital debt. The interest and penalty reflect the

benefit to the marital estate accruing from the untimely payment

of the tax liability. We find the fact that husband filed a

separate return insufficient evidence that the debt should have

been classified as separate. In the absence of any evidence to

show that the debt should be attributed solely to husband, we

find the trial court did not abuse its discretion in ordering

wife to pay one-half the liability. See Gamer v. Gamer, 16 Va.

App. 335, 341-42, 429 S.E.2d 618, 623 (1993).

V

Wife next argues that the court erred, requiring her to pay

$10,000 of husband's attorney's fees. The court's award of

attorney's fees must be reasonable "under all the circumstances

revealed by the record." Alphin, 15 Va. App. at 406, 424 S.E.2d

at 578 (quoting Poliquin v. Poliquin, 12 Va. App. 676, 682, 406

- 9 - S.E.2d 401, 405 (1991)). The award is reviewable only for an

abuse of discretion. Id. (quoting Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987)). In light of the length

and complexity of this litigation and wife's apparent attempt to

prolong it, we cannot say that the trial court abused its

discretion awarding husband attorney's fees. Moreover, while the

fault of a spouse does not preclude a court from awarding

attorney's fees in favor of that spouse, see Davis v. Davis, 8

Va. App. 12, 17, 377 S.E.2d 640, 643 (1989), we find no principle

which precludes a court from considering fault in making an award

of fees against that spouse. Wife argues that the court was prejudiced by husband's

submission of the deposition excerpt showing wife's refusal to

settle. The general rule is that evidence of compromise and

settlement is inadmissible. E.g., Agelasto v. Atkinson Real

Estate, 229 Va. 59, 64, 327 S.E.2d 84, 86 (1985). However, a

trial judge, acting as the trier of fact, generally may inquire

into settlement negotiations. Hurt v. Newcomb, 242 Va. 36, 40,

405 S.E.2d 843, 844 (1991). Such a practice helps encourage an

early end to litigation and is permissible so long as the parties

receive a fair and impartial trial. Id. Here, nothing suggests

that the parties received anything but a fair and impartial

trial; accordingly, wife's claim lacks merit. 3 3 Wife also argues that the testimony of her son concerning her intent to bankrupt husband was improper because it was non-responsive, speculative, and included hearsay. The court

- 10 - VI

The court ordered wife to pay fifty percent of the combined

costs for the commissioner's hearing. Fifty percent of the

combined costs equals $1,079. Wife argues the court failed to

consider $300 she had previously paid the commissioner and,

therefore, improperly computed the amount she owed. We find no

merit in the wife's argument. The court ordered wife to pay a

total of $1,079, it did not order her to pay $1,079

notwithstanding any payments she had already made. VII

Finally, wife argues that husband is in arrears for payments

due under the sealed pendente lite order. Wife raised this issue

in a motion to modify and suspend the final order, bringing

evidence of her claim to the court's attention. However, the

court summarily denied the motion without a hearing. As such,

there are no findings of fact on this issue on which we can base

our review. Accordingly, this issue must be remanded for further

determination. Affirmed in part, reversed and remanded in part.

(..continued) instructed wife's son not to give hearsay testimony. The son answered the pending question and wife neither objected to the answer nor asked that it be stricken. Consideration of wife's assertion that the answer violated the court's instruction is, therefore, procedurally barred. Rule 5A:18.

- 11 -