E.C.P. v. D.G.P.

• Court: Court of Appeals of Virginia
• Decided: November 7, 1995
• Docket: 1030954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Willis

D.G.P.

v. Record No. 1004-95-4 MEMORANDUM OPINION * PER CURIAM E.C.P. NOVEMBER 7, 1995

E.C.P.

v. Record No. 1030-95-4 D.G.P.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert W. Wooldridge, Judge

(Brian M. McCormack; Dunn, McCormack, MacPherson & Orfe, on briefs), for D.G.P.

(James R. Tate; Tate & Bywater, on briefs), for E.C.P.

The parties appeal from the equitable distribution decision

of the circuit court. D.G.P. (husband) alleges that the trial

court erred in distributing the marital assets. E.C.P. (wife)

argues that the trial court erred in awarding her only a portion

of her attorney's fees. Upon reviewing the record and briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

Rule 5A:27.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Equitable Distribution Award

"Fashioning an equitable distribution award lies within the

sound discretion of the trial judge and that award will not be

set aside unless it is plainly wrong or without evidence to

support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396

S.E.2d 675, 678 (1990). If the trial court has considered the

factors set out in Code § 20-107.3(E) and the evidence supports

the trial court's conclusions, we will not disturb the trial

court's equitable distribution award merely because it is

unequal. Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 504,

508 (1990).

The trial court awarded wife the largest single marital

asset, the marital residence, which had an equity of $165,000.

Wife was also awarded her pension. Husband was awarded his Boy

Scout memorabilia collection with an estimated value of $60,000.

Other marital assets and debts were divided almost equally.

Husband argues that neither the evidence nor the factors set

out in Code § 20-107.3(E) support the trial court's equitable

distribution decision. While husband concedes wife made somewhat

greater nonmonetary contributions to the family than he did, he

asserts that the trial court failed to consider his greater

monetary contributions.

The trial court considered all the statutory factors, but

noted that "certain considerations and findings . . . bear

particular mention." Specifically, the trial court found that

2 both parties made significant monetary contributions to the

family, and husband earned somewhat more money throughout the

marriage. However, while wife's earnings "consistently went to

benefit the family," husband "spent thousands of family dollars

in pursuit of his sexual escapades." Husband also spent an

estimated $60,000 on his Boy Scout memorabilia collection, which

"far exceeded money one would be entitled to spend on a hobby

without having to account for it or without having it taken into

account at the conclusion of a marriage." The trial court also noted the nonmonetary contributions,

including the negative contributions, made by the parties. The

trial court found that wife made the more significant nonmonetary

contributions to the family. While husband worked long hours as

an attorney, he also traveled away from the family for the

purposes of adding to his scouting collection and participating

in sexual liaisons. In the beginning, husband traveled only

several times a quarter. Eventually husband was gone every other

weekend, from noon on Friday until late afternoon on Sunday.

Although husband denied having any sexual encounters on his scout

collection trips, he admitted that he sometimes claimed to be on

scouting trips when in fact he was pursuing sexual activities.

The trial court noted that almost ninety percent of wife's

pension was marital property. Wife's pension had a cash

withdrawal value of approximately $62,500. While wife's pension

funds had continued to accrue, husband repeatedly withdrew

3 retirement funds to spend on his Boy Scout memorabilia

collection. Husband testified that he spent thousands of dollars

of his federal government retirement funds and withdrew $12,000

of marital funds held in an IRA to add to his collection. The

evidence was inconclusive whether husband had other pension

benefits from his years in private practice. By awarding the

memorabilia collection to husband and the pension to wife, the

trial court gave each party an unencumbered interest in assets of

approximately equal value. We cannot say that that distribution

was an abuse of the court's discretion. Finally, we find no abuse of discretion in the trial court's

decision to award the marital home to wife. Wife had custody of

the parties' two minor children. The trial court specifically

found that husband's expenditures did not constitute waste, as

they were not made in anticipation of a divorce. Booth v. Booth,

7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). In this case,

however, husband's activities not only were detrimental to the

marriage and the family by drawing him farther and farther away,

but also were a financial drain on the marital assets. Thus,

these activities were relevant in determining the distribution

award. See Aster v. Gross, 7 Va. App. 1, 5-6, 371 S.E.2d 833,

836 (1988). Moreover, "while equitable distribution is not a

vehicle to punish behavior, the statutory guidelines authorize

consideration of such behavior as having an adverse effect on the

marriage and justifying an award that favors one spouse over the

4 other." O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527, 458

S.E.2d 323, 325 (1995). Therefore, the trial court did not abuse

its discretion in considering husband's activities in its

equitable distribution award and in awarding wife a greater share

of the marital assets.

Attorney's Fees

Wife argues that the trial court abused its discretion by

awarding her only $2,500 out of $11,436 in attorney's fees.

However, an award of attorney's fees is a matter submitted to the

sound discretion of the trial court and is reviewable on appeal

only for an abuse of discretion. Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award

of counsel fees is reasonableness under all the circumstances.

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985).

Wife's annual income was approximately $70,000, while

husband's was approximately $90,000. Wife had expended $5,500 in

marital assets to pay her attorney. Husband was responsible for

paying up to $1,800 for wife's therapy. Based on the number of

issues involved and the respective abilities of the parties to

pay, we cannot say that the award was unreasonable or that the

trial judge abused his discretion in making the award.

Accordingly, the decision of the circuit court is summarily

affirmed. Affirmed.