COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner Argued at Alexandria, Virginia
BRONSON F. BYRD MEMORANDUM OPINION * BY v. Record No. 2435-96-4 JUDGE RUDOLPH BUMGARDNER, III
RENATE M. BYRD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. Howe Brown, Jr., Judge Wyatt B. Durrette, Jr. (Richard P. Kruegler; Durrette, Irvin & Bradshaw, P.C., on briefs), for appellant.
Carol Ann Roop (Robert E. Shoun; Shoun & Bach, P.C., on brief), for appellee.
This is an appeal from the Circuit Court of Fairfax County
ordering Mr. Byrd to pay combined spousal and child support of
$3,000 per month. The court allocated the support as $1,168
child support and $1,832 spousal support. The court also ordered
Mr. Byrd to pay $12,000 in attorney's fees. He argues that the
trial court abused its discretion in setting support, erred in
awarding attorney's fees, and abused its discretion in ordering
support retroactively. Finding evidence to support the decisions
and that all factors were considered in arriving at them, we
affirm.
The parties entered a written agreement that settled most of
the issues between them. The agreement provided that Mr. Byrd
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. would pay his wife, until they sold the marital home, $2,000
support per month, split evenly between child and spousal
support. Upon the sale, the parties would attempt to negotiate
support, but if unsuccessful they could petition the court. They
sold the house in January 1996, support stopped, and shortly
afterwards Mrs. Byrd moved the court to set support. At the
conclusion of a two-day hearing, the trial judge ruled that Mr.
Byrd had annual income of $100,000 per year or $8,333.33 per
month. His wife had monthly income of $2,083 per month. In
addition to that, the court imputed income of $1,000 because she
chose not to work even part-time while attending nursing school.
The judge calculated the child support at $1,200 then set spousal
support at $1,800 for total support of $3,000 per month. When
counsel appeared to present the written order, counsel for Mr.
Byrd asked the court to reconsider the calculations of child
support because he was providing health insurance at $130 per
month. Mr. Byrd wanted to insure that he received the tax
benefit from having more of the combined support payment
allocated to spousal support. The court adjusted the child
support down to $1,168 and increased the spousal support to
$1,832, maintaining the combined total at $3,000. Mr. Byrd filed
a motion to reconsider which the court denied without further
hearing. In determining Mr. Byrd's net income, the trial court set
his expenses at 40 percent of his gross income. He complains
-2- that the 40 percent figure is arbitrary and not based on the
evidence. Evidence taken from tax returns show that Mr. Byrd
earned more than $130,000 from his law practice and investment
business each year from 1993 to 1995. Mr. Byrd had the burden of
showing his reasonable business expenses to reduce his gross
income to the net income. Code § 20-108.2. The trial court
rejected many items claimed by Mr. Byrd as business expenses. It
rejected his deductions of $50 per hour paid his fiancee for
paralegal help, rent claimed but not paid to his fiancee for
office space in the home where they resided, and more than
$14,000 in the legal fees that he claimed as business expenses,
but incurred in his divorce litigation. From the evidence presented, the trial court could have
computed Mr. Byrd's income with no deduction for expenses because
his evidence was not reasonable or credible. He cannot complain
about the figure the court used because he failed to present
evidence that would support his burden of proof. While an expert
did not state that the 40 percent figure was a reasonable figure
for law practices of Mr. Byrd's type, it is a figure that the
evidence presented supports. After the court rejected
inappropriate claims, the remaining expenses totaled
approximately 40 percent of gross income. Thus, we find the
evidence is sufficient to support the court's determination that
Mr. Byrd's business expenses were 40 percent of his gross income.
Mr. Byrd complains that the trial court failed to consider
-3- all the factors in Code § 20-107.1 in fixing the spousal support.
Our review shows that the court addressed all factors.
Appellant objects that the trial court failed to calculate
the child support correctly. He argues that the court failed to
determine first equitable distribution, then to calculate spousal
support, and finally to determine child support. He argues that
the decision in Frazer v. Frazer, 23 Va. App. 358, 477 S.E.2d 290
(1996), requires that a simultaneous decision fixing spousal
support be considered a pre-existing order and attributed to the
receiving spouse as income when calculating child support under
Code § 20-108.2. Frazer was decided after this trial, and neither the parties
nor the court had its ruling available to guide them. As the
case was presented and argued, child support was calculated first
and then spousal support was figured. The court's focus was
consistently on the total amount, child and spousal support
combined, that Mrs. Byrd would receive. The approach conformed
to that taken in the support agreement in which the parties first
calculated the total needed and then allocated it between the two
types of support. Mr. Byrd made no objection to the sequence
followed or the methodology used. In fact, both parties
concurred in that approach as shown by Mr. Byrd's request that
the court adjust the amount attributed to child support because
he was entitled to a credit for providing health insurance. Mr.
Byrd did not object to the sequence until the motion to
-4- reconsider when he had retained new counsel. He will not be
heard to object to that in which he had previously acquiesced.
Rule 5A:18, Lee v. Lee, 12 Va. App. 512, 404 S.E.2d. 736 (1991).
Mr. Byrd objects to his wife claiming her mortgage payment
as an expense in calculating her need for support. He argues
that this results in double-dipping as proscribed in Gamble v.
Gamble, 14 Va. App. 558, 421 S.E.2d 635 (1992). Pursuant to the
settlement agreement, Mrs. Byrd received one-half of the proceeds
from the sale of the marital residence. She bought a new
residence with half the money and invested the balance. She
obtained a mortgage to pay for the balance of the purchase price
and claimed the debt service on that loan as an expense. She
included the income from the portion invested in the income
section of her income and expense sheet. In Gamble, the court disapproved considering the mortgage
obligations on marital property when determining both an
equitable distribution award under Code § 20-107.3 and a spousal
support award under Code § 20-107.1. In that case, the husband
was ordered to pay spousal support in an amount nearly equal to
the mortgage payments on the property. We found the trial court
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner Argued at Alexandria, Virginia
BRONSON F. BYRD MEMORANDUM OPINION * BY v. Record No. 2435-96-4 JUDGE RUDOLPH BUMGARDNER, III
RENATE M. BYRD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY J. Howe Brown, Jr., Judge Wyatt B. Durrette, Jr. (Richard P. Kruegler; Durrette, Irvin & Bradshaw, P.C., on briefs), for appellant.
Carol Ann Roop (Robert E. Shoun; Shoun & Bach, P.C., on brief), for appellee.
This is an appeal from the Circuit Court of Fairfax County
ordering Mr. Byrd to pay combined spousal and child support of
$3,000 per month. The court allocated the support as $1,168
child support and $1,832 spousal support. The court also ordered
Mr. Byrd to pay $12,000 in attorney's fees. He argues that the
trial court abused its discretion in setting support, erred in
awarding attorney's fees, and abused its discretion in ordering
support retroactively. Finding evidence to support the decisions
and that all factors were considered in arriving at them, we
affirm.
The parties entered a written agreement that settled most of
the issues between them. The agreement provided that Mr. Byrd
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. would pay his wife, until they sold the marital home, $2,000
support per month, split evenly between child and spousal
support. Upon the sale, the parties would attempt to negotiate
support, but if unsuccessful they could petition the court. They
sold the house in January 1996, support stopped, and shortly
afterwards Mrs. Byrd moved the court to set support. At the
conclusion of a two-day hearing, the trial judge ruled that Mr.
Byrd had annual income of $100,000 per year or $8,333.33 per
month. His wife had monthly income of $2,083 per month. In
addition to that, the court imputed income of $1,000 because she
chose not to work even part-time while attending nursing school.
The judge calculated the child support at $1,200 then set spousal
support at $1,800 for total support of $3,000 per month. When
counsel appeared to present the written order, counsel for Mr.
Byrd asked the court to reconsider the calculations of child
support because he was providing health insurance at $130 per
month. Mr. Byrd wanted to insure that he received the tax
benefit from having more of the combined support payment
allocated to spousal support. The court adjusted the child
support down to $1,168 and increased the spousal support to
$1,832, maintaining the combined total at $3,000. Mr. Byrd filed
a motion to reconsider which the court denied without further
hearing. In determining Mr. Byrd's net income, the trial court set
his expenses at 40 percent of his gross income. He complains
-2- that the 40 percent figure is arbitrary and not based on the
evidence. Evidence taken from tax returns show that Mr. Byrd
earned more than $130,000 from his law practice and investment
business each year from 1993 to 1995. Mr. Byrd had the burden of
showing his reasonable business expenses to reduce his gross
income to the net income. Code § 20-108.2. The trial court
rejected many items claimed by Mr. Byrd as business expenses. It
rejected his deductions of $50 per hour paid his fiancee for
paralegal help, rent claimed but not paid to his fiancee for
office space in the home where they resided, and more than
$14,000 in the legal fees that he claimed as business expenses,
but incurred in his divorce litigation. From the evidence presented, the trial court could have
computed Mr. Byrd's income with no deduction for expenses because
his evidence was not reasonable or credible. He cannot complain
about the figure the court used because he failed to present
evidence that would support his burden of proof. While an expert
did not state that the 40 percent figure was a reasonable figure
for law practices of Mr. Byrd's type, it is a figure that the
evidence presented supports. After the court rejected
inappropriate claims, the remaining expenses totaled
approximately 40 percent of gross income. Thus, we find the
evidence is sufficient to support the court's determination that
Mr. Byrd's business expenses were 40 percent of his gross income.
Mr. Byrd complains that the trial court failed to consider
-3- all the factors in Code § 20-107.1 in fixing the spousal support.
Our review shows that the court addressed all factors.
Appellant objects that the trial court failed to calculate
the child support correctly. He argues that the court failed to
determine first equitable distribution, then to calculate spousal
support, and finally to determine child support. He argues that
the decision in Frazer v. Frazer, 23 Va. App. 358, 477 S.E.2d 290
(1996), requires that a simultaneous decision fixing spousal
support be considered a pre-existing order and attributed to the
receiving spouse as income when calculating child support under
Code § 20-108.2. Frazer was decided after this trial, and neither the parties
nor the court had its ruling available to guide them. As the
case was presented and argued, child support was calculated first
and then spousal support was figured. The court's focus was
consistently on the total amount, child and spousal support
combined, that Mrs. Byrd would receive. The approach conformed
to that taken in the support agreement in which the parties first
calculated the total needed and then allocated it between the two
types of support. Mr. Byrd made no objection to the sequence
followed or the methodology used. In fact, both parties
concurred in that approach as shown by Mr. Byrd's request that
the court adjust the amount attributed to child support because
he was entitled to a credit for providing health insurance. Mr.
Byrd did not object to the sequence until the motion to
-4- reconsider when he had retained new counsel. He will not be
heard to object to that in which he had previously acquiesced.
Rule 5A:18, Lee v. Lee, 12 Va. App. 512, 404 S.E.2d. 736 (1991).
Mr. Byrd objects to his wife claiming her mortgage payment
as an expense in calculating her need for support. He argues
that this results in double-dipping as proscribed in Gamble v.
Gamble, 14 Va. App. 558, 421 S.E.2d 635 (1992). Pursuant to the
settlement agreement, Mrs. Byrd received one-half of the proceeds
from the sale of the marital residence. She bought a new
residence with half the money and invested the balance. She
obtained a mortgage to pay for the balance of the purchase price
and claimed the debt service on that loan as an expense. She
included the income from the portion invested in the income
section of her income and expense sheet. In Gamble, the court disapproved considering the mortgage
obligations on marital property when determining both an
equitable distribution award under Code § 20-107.3 and a spousal
support award under Code § 20-107.1. In that case, the husband
was ordered to pay spousal support in an amount nearly equal to
the mortgage payments on the property. We found the trial court
erred in allowing the spouse to seek and obtain an encumbered
marital asset and then requiring the conveying spouse to pay off
the encumbrance. In the present case, the mortgage expenses are
not calculated twice.
If Mrs. Byrd had put all the money into buying a new house,
-5- she would not have had a mortgage payment, but nor would she have
investment income. If she had invested it all, and borrowed the
entire purchase price, she would have more investment income.
While the expense of borrowing may be greater than the income
received from many investments, the trial court should not
dictate how litigants conduct their financial affairs. Mr. Byrd
would argue for the court to fashion a rule that all proceeds
from the sale of an encumbered home must be spent to buy a
replacement so that there would be no debt expense attributable
to that asset. We decline to do so. Mr. Byrd objects to the award of attorney fees arguing that
the settlement agreement stated there would be no attorney's fees
except when enforcing the agreement against a defaulting party.
He argues that there was no evidence he was in default. We
disagree with husband's reading of the agreement. The agreement
does not exclude an award of attorney's fees when the wife
requests that support be fixed by the court. Thus, the court has
discretion to set the fees under Code § 20-79(b).
Mr. Byrd also complains that there was no expert evidence to
support the reasonableness of the attorneys fees claimed. Mrs.
Byrd presented the detailed bills received from her attorney.
She also asked the court to recognize that those statements did
not reflect the time spent in court during the trial that was
still being held. She testified that the fees were for services
requested and performed for that hearing, they were in fact
-6- rendered, they were consistent with the rates for her attorney
and his firm, and they were as agreed. The exhibit was
introduced without objection, and she was not cross-examined
about the fees. If there had been any issue raised or even
suggested that the fees were not reasonable, Mrs. Byrd's attorney
could easily have taken the stand and testified on that limited
point.
Expert evidence is not necessary to establish the
reasonableness of attorney's fees. Seyfarth, Shaw, Fairweather &
Geraldson v. Lake Fairfax Seven L.P., 253 Va. 93, 480 S.E.2d 471
(1997). From the evidence presented and the inferences that the
trial court was entitled to draw while hearing the very matter
for which fees were being requested, we find that Mrs. Byrd made
a prima facie case of reasonableness of the fees. Mr. Byrd
cannot complain when he waited until he was endorsing the written
order to raise the issue of reasonableness for the first time.
Finally, Mr. Byrd objects that the court ordered spousal
support retroactively to the time when the motion was first
filed. The agreement did not make provision for spousal support
between the time of the sale of the house and the fixing of a new
amount either by negotiation or decree. The agreement being
silent on the point, the normal provisions apply. Whether to
decree support retroactively is within the discretion of the
trial court. Mr. Byrd concedes this point. In this case, not
only was it not an abuse of discretion to grant it, it was an
-7- appropriate decision considering the general structure of the
settlement as established in the settlement agreement.
We affirm the decisions of the trial court.
Affirmed.
-8-