John A. Raiello v. Kathleen L. Raiello

• Court: Court of Appeals of Virginia
• Decided: July 17, 2001
• Docket: 2444004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee Argued at Alexandria, Virginia

JOHN A. RAIELLO MEMORANDUM OPINION * BY v. Record No. 2444-00-4 JUDGE G. STEVEN AGEE JULY 17, 2001 KATHLEEN L. RAIELLO

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY J. Howe Brown, Jr., Judge Designate

Donald S. Caruthers, Jr. (Donald S. Caruthers, Jr., P.C., on briefs), for appellant.

Carl P. Horton for appellee.

John A. Raiello (husband) appeals the September 8, 2000

decision of the Loudoun County Circuit Court 1 on the issues of

equitable distribution and spousal support upon the termination

of his marriage to Kathleen L. Raiello (wife). Husband contends

on appeal that the trial court exhibited gender and personal

bias in its decision. Further, husband contends the trial

court's rulings on spousal support and equitable distribution

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The Court notes that there is a clerical error in the decree appealed from in that the caption of the decree indicates that it was from the Circuit Court of Fairfax County, while the record clearly shows that it was from the Circuit Court of Loudoun County. were an abuse of discretion, plainly wrong and without evidence

to support them.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited. For the reasons that follow, we affirm in

part and reverse in part.

I. Judicial Bias

Husband's first contention on appeal is that the trial

court exhibited gender and personal bias against husband.

Husband's proffered evidence of the prejudice exhibited towards

him are quotations from the record on the deceased child's

ashes, "the tape incident" and wife's contribution to the

marriage, and what husband believes to be an unfair award in

wife's favor. We disagree. As we discuss later, the trial

court did not commit reversible error in its calculations of the

spousal support award and the equitable distribution of marital

property. The trial court properly exercised its role in

calculating these items.

The record shows no evidence of judicial bias. We find no

merit in this assignment of error in the performance of the

court's calculations. To the contrary, the judge commented at

length from the bench at the reconsideration hearing as to the

basis for his ruling and adherence to the statutory

requirements.

- 2- II. Spousal Support

Husband was ordered to pay wife $1,000 per month in spousal

support. Husband contends that the trial court erred in

(1) awarding spousal support to wife and (2) calculating the

amount of that support. Husband avers that the award was based

solely on a finding by the trial court that he was at fault for

the dissolution of the marriage and needed to be punished for

his actions. He also contends that while his fault in the

dissolution of the marriage was considered in the determination

of whether support should be awarded wife, her fault was not

duly considered. We disagree with these contentions.

A. Allegation of Ignored Factor in Determining Need for a Spousal Support Award

"The determination whether a spouse is entitled to support,

and if so how much, is a matter within the discretion of the

trial court and will not be disturbed on appeal unless it is

clear that some injustice has been done." Dukelow v. Dukelow, 2

Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). Husband concedes

that his actions contributing to the dissolution of the marriage

were properly considered in the determination of whether or not

an award of spousal support should be made. He alleges, though,

that the trial court failed to properly consider wife's

"desertion."

The trial court, however, did not find that any alleged

desertion by wife contributed to the break-up of the marriage.

- 3- In light of the evidence and its determination, the trial court

gave the evidence the weight it felt appropriate and we cannot

say as a matter of law that the trial court was plainly wrong.

B. Allegations of Error in Considering Factors as to Amount of Spousal Support

Husband's principal objection to the support award is its

duration. He contends that a temporary award may have been

justified but an award of support to wife for so long as she

remains unmarried is error based on the facts of this case. He

avers that the only reason for the perpetual award was to punish

him for fault in the dissolution of the marriage, a factor that

should not be considered by the trial court in its calculations

of the amount of a support award.

"In regard to the amount of the spousal support award, we

will reverse an award on that basis only for an abuse of

discretion or the judge's failure to consider all the factors

set forth in Code § 20-107.1." Barnes v. Barnes, 16 Va. App.

98, 103, 428 S.E.2d 294, 298 (1993) (citation omitted). The

award of spousal support "'will not be disturbed except for a

clear abuse of discretion.'" Dodge v. Dodge, 2 Va. App. 238,

246, 343 S.E.2d 363, 367 (1986) (citation omitted). The trial

court was careful to note it had considered all the statutory

factors. We find no evidence in the record of such abuse or

failure, and affirm the award.

- 4- 1. Abuse of Discretion

Husband alleges that the trial court abused its discretion

in calculating spousal support because it based the calculations

on husband's fault in the dissolution of the marriage. Husband

contends his allegation is evidenced by the perpetual support

award, which he finds inappropriate. We find no support for

husband's allegation.

The trial court provided its reasons for awarding spousal

support, including factors contributing to the dissolution of

the marriage, as permitted by Code § 20.1-107.1(E). The trial

court then moved to a determination of the nature, amount and

duration of the award. We do not find evidence to support the

allegation that fault, not a factor enumerated in Code

§ 20.1-107.1(E) to be considered in this calculation, was part

of the trial court's calculation. Therefore, we find no support

for the allegation by husband that the award was made to punish

him for his actions contributing to the divorce. It is in the

trial court's discretion to award support for a defined or

undefined duration. See § Code 20.1-107.1(C).

2. Consideration of Code § 20.1-107.1(E) Factors

Husband's last contention as to error in the spousal

support award is that the trial court failed to consider all the

factors required in Code § 20.1-107.1(E). This assertion is

contradicted by the record.

- 5- The trial court's cognizance and application of the

statutory factors is evidenced by the judge's statement that "I

listened to and considered the statutory factors . . . . The

fact that I don't mention one or another of them doesn't mean I

haven't considered it. I think--it just seems too rote to go

through the statute and say this one, this one, but I have

considered those things." The trial court then addresses

several of the factors, including husband's earnings, wife's

time away from the workplace to raise the children, and the

property awarded to wife which she could use to garner more

income. Provided the record indicates the trial court's

consideration of the statutory factors, as is the case here, the

trial court need not disclose the totality of its considerations

nor address each factor point by point in its opinion. 2

2 In this appeal, husband points to the trial court's failure to comply with Code § 20-107.1(F), which requires that an order granting a request for spousal support be accompanied by written findings and conclusions of the court. It appears that this allegation of error was not made to the trial court. Husband's brief contends that it was preserved in the trial court with his motion and argument for reconsideration, yet upon our reading of the motion we do not find this allegation of error. Inasmuch as it appears that the argument made before this Court was never made in the trial court, we decline to consider the issue for the first time on appeal. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18); Zipf v. Zipf, 8 Va. App. 387, 392, 382 S.E.2d 263, 265 (1989). Accordingly, Rule 5A:18 bars our consideration of this question on appeal.

- 6- Finding that the trial court considered all the statutory

factors and that there is no evidence of an abuse of discretion,

we affirm the spousal support award.

III. Equitable Distribution of the Marital Property

Husband also alleges the trial court erred in determining

the equitable distribution of the marital property. In

reviewing an equitable distribution award we defer to the trial

court's discretion in weighing the particular circumstances of

each case. Aster v. Gross, 7 Va. App. 1, 8, 371 S.E. 2d 833,

837 (1988) (citation omitted). Only under exceptional

circumstances will we interfere with the exercise of the trial

court's discretion. Id. (citation omitted). The trial court's

determination will be reversed only upon a showing in the record

that the court has abused its discretion by misapplying the

statutory factors in Code § 20-107.3(E). Anderson v. Anderson,

29 Va. App. 673, 693, 514 S.E.2d 369, 379 (1999). In the case

at bar we hold the trial court did not abuse its discretion and

did not fail to apply the requisite factors in making the

equitable distribution determination as to the marital property.

A. Allegation that the Code § 20-107.3 Factors were not Considered

Husband contends the trial court erroneously (1) failed to

consider all the requisite factors in its determination of the

property division; (2) considered fault factors notwithstanding

the absence of evidence those had any affect upon the marital

- 7- property or its value; and (3) weighted the fault factor of

subsection (E)(5) of Code § 20-107.3 over the other requisite

factors to be considered and undervalued husband's economic

contributions to the marriage and marital property.

1. All Factors Properly Considered

It is husband's contention that the trial court failed to

consider any factor, except fault, in its determination of the

equitable distribution award. The record reflects otherwise.

First, prior to announcing the equitable distribution award, the

judge said, "I listened to and considered the statutory factors

. . . . The fact that I don't mention one or another of them

doesn't mean I haven't considered it . . . . I have considered

these things . . . in the equitable distribution." Upon the

motion for reconsideration, the judge stated, "I looked at the

factors in 107.3 . . . . I didn't just give lip service to it,

I looked at it."

Husband is correct when he asserts the trial court

considered fault in its determination of the property division.

The trial court acknowledges the consideration:

"Factor five in . . . 107.3 is the cause of the dissolution of the marriage. I spent some of the time that I spent talking about how he viewed the marriage and how I viewed his view of the marriage, the non-partnership aspect, dealing with that particular factor."

Yet, contrary to husband's assertion that the consideration is

error, the consideration is permissible when the fault, here the

- 8- controlling and abusive behavior, has an affect upon the marital

property and its value. Aster, 7 Va. App. at 6, 371 S.E.2d at

836. It is also permissible to consider the fault factors

if the evidence of misconduct is relevant under any other factor than [Code § 20-107.3(E)](5), it may in the judge's discretion be considered when making an equitable award. The trial court may "consider the negative impact . . . on the well-being of the family . . . ."

O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527-28, 458 S.E.2d

323, 326 (1995) (citation omitted). Here, evidence indicated

that husband's controlling behavior led to the dissolution of

the marriage and also affected the parties' finances: he

transferred money from joint accounts to his sole account, he

controlled wife's purchasing, he prohibited her from using the

parties' computer, and he controlled what she took from the home

and locked her out so that she could not take or inspect other

pieces of personal property. We, therefore, cannot say it was

error to consider husband's fault in the equitable distribution

determination.

We also find no support for the allegation that the fault

consideration was weighted heavier than the other factors. The

trial court specifically recognizes husband's contribution of

87% of the parties' income, wife's income contribution, wife's

substantial non-monetary contributions to the family, the

duration of the marriage, and the parties' ages. Further, even

if the fault factor was weighted heavier, we have held the trial

- 9- court did not abuse its discretion as it considered all the

requisite factors and thus we must defer to the trial court's

discretion in weighing the particular circumstances of each

case. Aster, 7 Va. App. at 8, 371 S.E. 2d at 837.

2. No Abuse of Discretion in Proportional Division

Husband's unsupported allegations are based on the fact

that he did not receive a greater share of the marital property.

It is husband's belief that since he provided at least 87% of

the parties' income during much of the marriage he should be

awarded the lion's share of the marital property. This is an

incorrect assumption on husband's behalf.

It is within the discretion of the trial court to make an

equal division of assets, see Bentz v. Bentz, 2 Va. App. 486,

490, 345 S.E.2d 773, 775 (1986), or to make a substantially

disparate division of assets, see Aster, 7 Va. App. at 8, 371

S.E.2d at 837, as the factors outlined in Code § 20-107.3(E)

require. See Alphin v. Alphin, 15 Va. App. 395, 403, 424 S.E.2d

572, 576 (1992). In determining an equitable distribution

award, the trial court must make "delicate and difficult

judgments," Bentz, 2 Va. App. at 489, 345 S.E.2d at 774, and

"weigh[] the many considerations and circumstances that are

presented in each case." Klein v. Klein, 11 Va. App. 155, 161,

396 S.E.2d 866, 870 (1990). It is precisely "because rights and

interests in marital property are difficult to determine and

evaluate and competing equities are difficult to reconcile,"

- 10- that "the chancellor is necessarily vested with broad discretion

in the discharge of the duties the statute imposes." Smoot v.

Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).

In this case, the trial court was required to balance

husband's greater monetary contributions during the marriage

against wife's greater non-monetary contributions throughout the

marriage. Absent any showing of error, which we do not find, we

defer to the trial court's discretion in this balancing test.

Aster, 7 Va. App. at 8, 371 S.E. 2d at 837.

As we find no abuse of discretion and no failure to

consider the requisite factors in Code § 20-107.3(E), the

equitable distribution award of the marital property is

affirmed.

B. Allegation of Disproportionate Treatment of Marital Funds

As another allegation of error, husband challenges the

trial court's division of the couple's retirement plans. The

trial court awarded wife 100% of the funds in her Fidelity IRA

and 50% of the marital property funds in husband's 401(k).

Husband, however, fails to point out why this division

constitutes error; he cites no statutory provision or case law

to suggest why the trial court would be required to similarly

divide each retirement account. Due to the failure to explain

his allegation and to cite applicable law, we will not further

address this issue and we affirm the trial court's action.

- 11- IV. Calculation of Separate Property

In a final contention regarding the trial court's equitable

distribution award, husband challenges the court's failure to

recognize and credit his post-separation mortgage payments,

shown to have been paid with his post-separation earnings. The

trial court heard testimony and viewed exhibits showing that

husband made these payments out of his separate funds, yet the

trial court still ordered the remaining proceeds from sale of

the home to be equally divided. 3 The trial court remarked,

"I don't think he's entitled to a consideration of the mortgage. If it's separate property, let it be separate property. But he's been there and locked her out for that period of time, and so that's the amount he should pay in rent."

The mortgage payments shown to have been paid by husband

from his post-separation earnings should have received

recognition as separate property (the equity increase in the

home) and credited in the trial court's calculation. See

generally Von Raab v. Von Raab, 26 Va. App. 239, 494 S.E.2d 156

(1996). It is clear that the trial court was unsure of this

point and instead determined that if its classification was

wrong then any payments nonetheless should not be in the

3 The trial court did award husband $24,383.41 as his separate property from the proceeds of the house sale, with only the surplus being divided equally as marital property. The post-separation payments by husband of apparently $3,490.09 are separate and apart from the $24,383.41 amount. According to our holding on this issue the marital surplus of the house sale

- 12- husband's favor and should be considered rent to the wife. This

determination was made sua sponte, without an agreement between

the parties concerning rent, any evidence as to the propriety or

amount of rent and apparently without being weighed by the trial

court with the other factors in dividing the marital property.

The trial court abused its discretion. Accordingly, we reverse

the equitable distribution award with direction to the trial

court to consider, based on the evidence in the record, what

credit may be due the husband for the equity increase in the

home attributable to the post-separation mortgage payments.

Affirmed in part, reversed in part and remanded.

should be further adjusted to give husband credit for the additional separate property payments.

- 13-