John Stevens Norris, Jr. v. Amy Ann Norris

• Court: Court of Appeals of Virginia
• Decided: August 5, 1997
• Docket: 1742961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Senior Judge Hodges Argued at Norfolk, Virginia

JOHN STEVENS NORRIS, JR. MEMORANDUM OPINION * BY v. Record No. 1742-96-1 JUDGE SAM W. COLEMAN III AUGUST 5, 1997 AMY ANN NORRIS

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH E. Preston Grissom, Judge Designate John Stevens Norris, Jr., pro se.

James R. McKenry (Heilig, McKenry, Fraim & Lollar, on brief), for appellee.

In this domestic relations appeal, John Stevens Norris

(husband) contends that the trial court erred by: (1)

miscalculating the husband's gross income for purposes of child

and spousal support; (2) considering the parties' 1994 joint tax

return, which was not entered into evidence; (3) counting fee

distributions from the husband's former law firm as assets for

equitable distribution purposes and as income for support

purposes; (4) improperly valuing the husband's share in his

former law firm for equitable distribution purposes; (5)

affirming a visitation schedule in which the parties' children

spend every Christmas Eve and Christmas morning with the mother;

(6) awarding the wife spousal support; and (7) awarding the wife

attorney's fees. For the reasons that follow, we affirm the

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. trial court's decision.

DETERMINATION OF HUSBAND'S GROSS INCOME

Husband contends that the trial court miscalculated his 1994

income and, thereby, erred in calculating child support, spousal

support, and the allocation of medical and educational expenses

for the children.

"Decisions concerning both [spousal and child] support rest

within the sound discretion of the trial court and will not be

reversed on appeal unless plainly wrong or unsupported by the

evidence." Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d

875, 876 (1994).

In calculating the husband's income, the commissioner

considered the husband's income history of having earned $150,000

to $175,000 per year from 1988 through 1992, income of $144,960

for 1993, and income of $150,000 for 1994. However, the

commissioner recognized that the husband's 1993 and 1994 income

was inflated by "capital gains, rents and royalties" from his

former law firm which would not be income expected in the future.

Finding that "the husband's earning potential was greater when

he was a member of the firm of Anderson, Norris, and Geroe[,]

which is no longer in existence," the commissioner determined

that the husband's annual earnings, for purposes of computing his

support obligations, was $92,000.

In computing a party's gross income from which child support

obligations are calculated, it is necessary to include "all

- 2 - income from all sources." Code § 20-108.2(C). Although not

expressly provided by statute, in determining spousal support a

court shall consider all income of the parties. In addition, a

spouse's earning capacity shall be considered, which will be

based upon the parties' current circumstances. Code § 20-107.1;

Payne v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987).

Husband testified that, as to $120,000 of his 1994 income

from his firm expressed on the husband's W-2, $58,000 was

"phantom" income that he never received. He did not receive

$58,000 or its equivalent, but instead received a $58,000

promissory note from his law firm. The transaction at issue

consisted of a payment of $58,000 by check from the firm to

husband for income that he had earned and then a loan back to the

firm from husband for $58,000. At the time the firm did not have

sufficient funds to pay the check, thus, this was a paper

accounting transaction. The commissioner acknowledged that the

husband did not receive $58,000 in expendable funds and found

that he would not have the benefit of the funds until the firm

paid the promissory note. We hold that the commissioner did not err by finding all or

part of the $58,000 to be earned income to the husband. The

$58,000 was income that the husband had earned, was entitled to

receive, and did receive. The fact that the husband, as sole

shareholder of the corporation, and the law firm used firm assets

for purposes other than paying the husband's salary and treated

- 3 - his earnings as a loan to the firm does not change the fact that

husband had $58,000 earned income. As with voluntary deferment

of income, the $58,000 loan from the husband to the firm was a

voluntary diversion of his funds to the corporation,

nevertheless, the commissioner properly considered it as income

to husband. See Frazer v. Frazer, 23 Va. App. 358, 378-79, 477

S.E.2d 290, 299-300 (1996).

The husband's next contention, that the commissioner based

husband's earning potential on the income he earned from his old

firm and not the newly formed firm, is without merit. The record

clearly shows that the commissioner considered the husband's

decreased earning potential with a new firm in determining his

earning capacity. In determining the husband's gross income, the

commissioner stated that "the husband's earning potential was

greater when he was a member" of a larger law firm. Moreover,

the amount that the commissioner determined to be the husband's

gross income was significantly lower than the husband's reported

taxable income for the years 1988 through 1994. Thus, upon our

review of the record, we find that the commissioner considered

the husband's change in circumstances as pertained to his

employment when the commissioner determined the husband's gross

income. CONSIDERATION OF 1994 TAX RETURN

The husband asserts that the commissioner improperly

considered the parties' 1994 joint tax return, which included

- 4 - income from the wife's capital assets and her business pursuits.

The husband contends that the tax return was not admitted in

evidence as an exhibit, but rather, was submitted to the

commissioner ex parte.

The husband does not point to any portion of the record that

indicates the trial court relied on the 1994 income tax return.

"Statements unsupported by argument, authority, or citations to

the record do not merit appellate consideration. We will not

search the record for errors in order to interpret the

appellant's contention and correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239

(1992).

EQUITABLE DISTRIBUTION

In reviewing an equitable distribution award on appeal, we

accord the trial court's findings great deference. Accordingly,

we will not disturb the trial court's decision unless plainly

wrong or without evidence to support it. Keyser v. Keyser, 7 Va.

App. 405, 409, 374 S.E.2d 698, 701 (1988). A. "Double Dip"

Husband contends that the trial court erred by considering

his share of the fees received from his former law firm as

intangible assets available for equitable distribution and then

considered the same funds as income for purposes of spousal and

child support.

To the extent that the collected fees were assets that the

- 5 - husband owned and had available as marital property, the trial

court did not err in considering that asset as part of the

marital estate for purposes of equitable distribution. Code

§ 20-107.3(A)(2); cf. Moreno v. Moreno, 24 Va. App. 190, 480

S.E.2d 792 (1997). Furthermore, the fees that a person earns and

collects are part of earned income and are to be considered in

determining both spousal and child support. The fact that earned

income is used as the basis for determining and paying support,

and that retained income may be an asset for equitable

distribution, does not constitute "double dipping." Equitable

distribution divides assets that have been accumulated from the

past, which may include earned income; child and spousal support

are concerned with payments from future income that is determined

or projected from past earnings and earning capacity. B. Valuation of Husband's Interest in Former Law Firm

Husband received $37,883 in fees from his former law firm

between the date of the parties' separation and the

commissioner's hearing. He contends that the trial court erred

by considering those funds as assets for equitable distribution

purposes because he used the funds to pay for living expenses.

In the alternative, he argues that the circuit court should have

remanded the case to the commissioner to accept additional

evidence on whether the parties had agreed that the distributions

husband received from his former law firm would not be considered

for purposes of retroactive support to the wife in exchange for

- 6 - husband's abandonment of his interest in the marital assets in

wife's possession at the time of separation.

"[T]he burden is on the party who last had the funds to

establish by a preponderance of the evidence that the funds were

used for living expenses or some other proper purpose" in order

to have them removed from consideration for equitable

distribution. Clements v. Clements, 10 Va. App. 580, 587, 397

S.E.2d 257, 261 (1990). The trial court found, after reviewing

the record, that "the mortgage payments, credit line payment, and

taxes paid by Mr. Norris were paid from funds in his possession

at the time of separation and not from distributions he later

received" from his old law firm. Because this finding is

supported by the record, we will not reverse it on appeal. As to the husband's contention that the trial court should

have remanded the issue to the commissioner for further findings

on the terms of the parties' agreement, the trial court does not

err by refusing to remand a case for additional evidence where

the parties have had a full opportunity to present evidence on an

issue. See Clements, 10 Va. App. at 586, 397 S.E.2d at 260

("Reviewing courts cannot continue to reverse and remand . . .

cases where the parties have adequate opportunity to introduce

evidence but have failed to do so.").

SPOUSAL SUPPORT

Husband contends that the trial court erred in awarding the

wife $1,000 per month in spousal support. However, the record

- 7 - proves that the trial court considered all the factors enumerated

in Code § 20-107.1 in arriving at the spousal support award and

credible evidence supports the award. Thus, we will not overturn

the spousal support award on appeal. See Steinberg v. Steinberg,

11 Va. App. 323, 329, 398 S.E.2d 507, 510 (1990).

- 8 - VISITATION

"A decision affecting visitation is left to the sound

discretion of the trial court and will not be reversed absent a

showing of an abuse of discretion." Carrico v. Blevins, 12 Va.

App. 47, 48, 402 S.E.2d 235, 236 (1991).

The commissioner recommended and the trial court found that,

in order to promote the best interests of the children, the wife

should have custody of the children every Christmas Eve and

Christmas morning so that the children could spend the holiday

with their step-sister, wife's child by a previous marriage.

Husband was awarded visitation from noon on Christmas Day until

5:00 p.m. on the day before he must next return to work.

Although alternating the custody/visitation arrangement between

the respective parents every other Christmas may arguably be

equitable, we cannot say that the trial court abused its

discretion by considering as a significant factor that the

siblings should be together on this holiday. Thus, we affirm the

trial court's decision. ATTORNEY'S FEES

"An award of attorney's fees to a party in a divorce suit is

a matter for the exercise of the trial court's sound discretion

after consideration of the circumstances and equities of the

entire case." Ellington v. Ellington, 8 Va. App. 48, 58, 378

S.E.2d 626, 643 (1989).

The commissioner recommended that husband pay $9,890 of the

- 9 - wife's attorney's fees, which totaled approximately fifty percent

of the wife's total fees. The evidence proved that the wife was

entitled to spousal support and maintenance and that the husband

was financially able to meet those needs. Thus, the award of

attorney's fees does not constitute an abuse of discretion.

For the foregoing reasons, we affirm the trial court's

decision.

Affirmed.

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