John T. Wheaton v. Vicki W. Wheaton

• Court: Court of Appeals of Virginia
• Decided: April 15, 1997
• Docket: 1323963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Overton Argued at Salem, Virginia

JOHN T. WHEATON MEMORANDUM OPINION * BY v. Record No. 1323-96-3 CHIEF JUDGE NORMAN K. MOON APRIL 15, 1997 VICKI W. WHEATON

FROM THE CIRCUIT COURT OF NELSON COUNTY J. Samuel Johnston, Jr., Judge Richard L. Locke (Dana J. Finberg; Mezzullo & McCandlish, on briefs), for appellant.

Ronald R. Tweel; William C. Scott, IV (Michie, Hamlett, Lowry, Rasmunseen & Tweel, P.C., on brief), for appellee.

John T. Wheaton ("husband") appeals the decision of the

trial court deciding matters of spousal and child support.

Husband contends the trial court erred in: (1) replacing

husband's periodic support obligation with a lump sum spousal

support obligation; (2) awarding a lump sum spousal support award

of $84,000 after having determined that husband's gross annual

income was $23,000; (3) increasing child support to an award

three times greater than the presumptive award amount as

determined under Code § 20-108.2 after having determined that

husband's annual income in September, 1995 had fallen from

$235,000 to $23,000; (4) requiring husband to pay a portion of

his children's private school tuition despite husband's request

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. that his children not attend private school; (5) refusing to

impute income to Vicki W. Wheaton ("wife"); and (6) adding

language to its final order stating that the $100,000 lump

support obligation outlined in the parties' separation agreement

was "vested" and "accrued."

We hold that: (1) husband failed to object to the trial

court's award of a lump sum payment and, therefore, Rule 5A:18

bars consideration of this issue; (2) the trial court's award of

$84,000 in spousal support was supported by evidence of husband's

earning capacity and the earning potential of his stock assets;

(3) the record contained evidence sufficient to support the trial

court's award of child support payments three times greater than

the presumptive amount, however, the trial court erred in not

making written findings supporting its deviation from the

presumptive amount; (4) the evidence was sufficient to support

the trial court's order that husband pay support in order that

his children remain in private school, however as such payment

constituted an upward deviation in support, the court erred in

failing to provide written findings supporting such deviation;

(5) the trial court did not abuse its discretion in refusing to

impute income to wife because the evidence presented by husband

was insufficient to enable the trial court to reasonably project

wife's income; and (6) the trial court erred in adding language

to its order indicating that the lump sum award provided by the

parties' separation agreement was "vested" and "accrued." Husband and wife were married on July 22, 1977. The parties

- 2 - had two children before their separation in April, 1989. The

parties entered into a separation agreement on March 17, 1992,

and were divorced on March 31, 1992. The final decree of divorce

adopted and incorporated the parties' separation agreement which

provided that between 1992 and 1994 husband was to pay wife a

total of $267,000. Husband was also required to pay wife $2,800

in monthly spousal support and $2,000 in monthly child support.

Section 9(b) of the separation agreement provided that husband

was to make a final lump sum support payment to wife in 2003 of

$100,000. At the time of the parties' divorce in 1992, wife, a

licensed nurse, was not employed and had not worked since 1987.

Husband's income at the time of divorce was $185,000, derived

from dividends he received from Wheaton, Inc., a family held

corporation, of which husband owned 178,000 shares of stock. 1 In

August, 1995, Wheaton announced it would reduce dividends by

fifty percent because of significant deterioration in Wheaton,

Inc.'s financial position. Wheaton also reduced director

salaries to $22,500.

Husband determined that the reduction in his dividends and

salary would leave him with an annual income of $23,000. On

September 12, 1995, husband petitioned the trial court to modify

1 In 1994, husband's income was $215,000, reflecting an increase in Wheaton dividends. In June, 1995, husband reported expecting an income of $235,000 for 1995, reflecting payment of a $25,000 salary to husband for serving as a member of Wheaton's board of directors.

- 3 - his spousal and child support obligations in light of his changed

circumstances. During the hearings on husband's motion to

modify, husband presented evidence of his reduced dividend income

and salary reduction. Husband also introduced testimony from

Gail Austin, a health care placement professional, who testified

that wife could work in the Charlottesville metropolitan area as

a licensed professional nurse, a position for which wife was

credentialed, earning between $26,000 and $37,900. The trial court granted husband's motion to reduce spousal

and child support and determined that husband's income was

$23,000 and that husband should not seek other employment because

of the nature of his current employment. The court found that

pursuant to Code § 20-108.2 child support should be $912 from

June 1, 1995 through and including September 30, 1995, when

husband's stock dividends ceased entirely. The court found that

from October 1, 1995, the presumptively correct amount of child

support was $314.38. Having made these determinations, the trial

court, without written explanation, deviated upward from the

guidelines, ordering child support in the amount of $1,000 from

October 1, 1995.

The trial court also ordered that husband pay the following

expenses: (1) one-half of the private school tuition of the

parties' minor children for the second semester of the school

year which began in the fall of 1995, totalling $3,000; (2)

wife's attorney's fees in the amount of $15,000; (3) a lump sum

spousal support payment of $84,000; and (4) child support of $912

- 4 - per month from June 1, 1995 through September, 1995.

Periodic/Lump Sum Award

In granting husband's spousal and child support modification

petition, the trial court eliminated husband's obligation to pay

$2,800 in monthly spousal support and instead ordered husband to

make an $84,000 lump sum support payment to wife. Husband's

argument that the trial court "exceeded its authority" by

converting the periodic support award to a lump sum award is

raised for the first time on appeal. Further, husband's counsel

specifically invited the trial court to make a lump sum award,

arguing that husband "would like the Court to do a lump sum award

so that -- and with no reservations of spousal support, so he's

through with that issue. And I think the statute allows that. You can clearly do a lump sum award." (Emphasis added). Rule

5A:18 provides that "[n]o ruling of the trial court . . . will be

considered as a basis for appeal unless the objection was stated

together with the grounds therefor at the time of the ruling

. . . ." McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460

S.E.2d 624, 626 (1995) (en banc). Having failed to properly

raise the issue at trial, and in fact, having invited the error

now alleged, Rule 5A:18 bars husband from raising this argument

now except for good cause shown or to meet the ends of justice.

Because the record does not show any obvious miscarriage of

justice, neither the ends of justice nor good cause permit waiver

- 5 - of the Rule 5A:18 bar. Commonwealth v. Mounce, 4 Va. App. 433,

436, 357 S.E.2d 742, 744 (1987).

Amount of Lump Sum Award

While a trial court may not order spousal support that

exceeds the capacity of the payor spouse to pay, Payne v. Payne,

5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987), the court must

consider all of the factors in Code § 20-107.1 including "the

property interests of the parties." The husband's property

interests in this case are sufficiently significant to outweigh

other factors such as his current level of income. Here, ample evidence was introduced to support the trial

court's finding that husband could make the $84,000 lump sum

support payment. At the time of the hearing, husband possessed

178,000 shares of Wheaton, Inc. stock. Husband represented to

the court that the value of these shares was approximately five

dollars a share, totaling roughly $893,370, and that the shares

were not a liquid asset. However, on cross-examination husband

stated that his shares had been valued at $41.50 a share in

December, 1991. Further, husband's expert witness testified that

the value of the stock in December, 1991, based on the evidence

before the trial court, was between $31 and $25 per share, 2 totalling $4,450,000 at the $25 per share value. This evidence

2 Within one month of the trial court's final order, husband sold his Wheaton, Inc. shares for $63 a share, grossing $11,256,462.

- 6 - of husband's assets was sufficient to support the trial court's

finding that husband could pay wife a lump sum support payment of

$84,000.

Child Support

As is the case with determining spousal support, in

determining child support, the trial court must consider each

parent's "[e]arning capacity, obligations and needs, and

financial resources." Code § 20-108.1(B)(11). Here, the

evidence of husband's stock assets, discussed above, was

sufficient to sustain the trial court's award of child support in

an amount three times greater than the presumptive amount. However, Code § 20-108.1(B) expressly provides that when a

trial court deviates from the presumptive amount "it must provide

written findings of fact that `shall give a justification of why

the order varies from the guidelines.'" Solomond v. Ball, 22 Va.

App. 385, 391, 470 S.E.2d 157, 160 (1996) (citations omitted).

Here, the trial court offered no written explanation for its

deviation. Accordingly we remand for redetermination of child

support, with any deviation to be accompanied by the statutorily

required written findings.

On June 3, 1996, wife petitioned us to allow the trial court

to reconsider the child support award while this case was on

appeal. We declined to do so; however, when this matter returns

to the trial court, the child support amount should be

reconsidered and if deviation from the guidelines is justified, - 7 - then the reasons therefor should be stated in writing for the

period from the date of the judgment appealed from to June 3,

1996, the date the said petition was filed in this Court. A new

hearing shall be conducted on the amount concerning child support

retroactive to June 3, 1996.

Payment of Private School Tuition

In Solomond, we delineated factors to be considered by a

trial court in determining whether a noncustodial parent should

be required to pay support to provide for a child's private

educational expenses. These factors include "the availability of

satisfactory public schools, the child's attendance at private

school prior to the separation and divorce, the child's special

emotional or physical needs, religious training and family

tradition." 22 Va. App. at 391, 470 S.E.2d at 160. Here, the parties' children had attended private schools

during the entirety of their parents' marriage. Further, the

children were in the middle of a school year at the time of

husband's instruction that the children be pulled out of private

school and sent to public school. Husband's only grounds for

insisting that his children be sent to public school was

husband's personal determination that he could no longer afford

to send his children to private school. This evidence was

sufficient under our holding in Solomond to sustain the trial

court's finding that husband should pay one-half of his

children's private school tuition.

However, "implicit in the [child support] statutory scheme - 8 - is that educational expenses are included in the presumptive

amount of child support as calculated under the Code." Smith v.

Smith, 18 Va. App. 427, 435, 444 S.E.2d 269, 275 (1994). Here,

the trial court ordered child support in excess of the

presumptive amount and then also ordered husband pay one-half of

his children's private school tuition. Even if the child support

ordered had not exceeded the presumptive amount, the requirement

that husband pay one-half of the children's tuition would

effectively result in a child support award greater than the

presumptive amount. As the trial court did not make written

findings in support of the deviation from the presumptive amount

of child support, we remand for redetermination of child support

and if required, provision of written findings. Imputation of Income

Husband argues that the trial court erred in not imputing

income to wife for purposes of determining spousal and child

support because the evidence proves that wife is voluntarily

unemployed. A party seeking spousal support is obligated to earn

as much as he reasonably can in order to reduce the amount of

support needed. Srinivasan v. Srinivasan, 10 Va. App. 728, 734,

396 S.E.2d 675, 679 (1990). In keeping with this principle a

court may, under appropriate circumstances, impute income to a

party who seeks spousal or child support. Id. However, we have

also held that where imputation of income is proper, the evidence

must enable the trier of fact to reasonably project the amount to

be imputed. Hur v. Virginia Department of Social Services, 13

- 9 - Va. App. 54, 61, 409 S.E.2d 454, 459 (1991).

At trial, husband introduced testimony from Gail Austin, a

health care professional recruiter, who testified that wife could

work in the Charlottesville metropolitan area as a licensed

professional nurse, earning between $26,000 and $37,900.

However, Austin also stated that she had never seen wife's resume

nor interviewed her. Further, Austin testified that "the

marketplace for nurses is fairly tight at this time" and that

"[t]here are not a tremendous number of opportunities." When

asked to suggest "to a reasonable degree of certainty" what

salary wife could obtain, husband's counsel agreed with the trial

judge's observation that based on the fact that Austin had never

met or interviewed wife, there were too many variables to answer

the question. We find the trial court did not abuse its discretion in

refusing to impute income on the basis of this limited evidence.

Austin provided generalizations about the nursing field,

suggesting a broad salary range of $26,000 to $37,900, but had no

specific knowledge of wife's qualifications for any particular

position. At the time of the hearings on these matters, wife was

forty years of age and although she had maintained her nursing

license, she had not worked since 1987. 3 No evidence was

introduced of specific job openings, the requirements for such

3 The parties' second child, Garrett Wheaton, was born on December 1, 1987, and from that time on, wife acted as a full time mother and homemaker.

- 10 - positions, their salaries, or the likelihood that wife would be

hired for a particular nursing position.

- 11 - Vesting of Lump Sum Award

Section 9(b) of the parties' separation agreement,

incorporated by the trial court into its final decree of divorce

dated March 31, 1992, provided that: "Husband shall pay to Wife

. . . the sum of $100,000.00 on the eleventh anniversary of the

execution of this agreement." In its order of March 22, 1996,

addressing husband's petition for modification of support, the

trial court stated that husband's "obligation for lump sum

spousal support obligation in paragraph 9(b) of the Settlement

Agreement is not effected by this order because of its vested and

accrued nature." Separation agreements are subject to the same rules of

construction and interpretation as other contracts. Tiffany v.

Tiffany, 1 Va. App. 11, 15, 332 S.E.2d 796, 799 (1985). It is

well established that the "plain meaning" rule is to be employed

when interpreting contracts. Appalachian Power Co. v. Greater

Lynchburg Transit Co., 236 Va. 292, 295, 374 S.E.2d 10, 12

(1988). Clear and explicit language in a contract is to be

understood in accord with its ordinary meaning, and if the

meaning is plain when read, the instrument must be given effect

accordingly. Id.

In the separation agreement entered into by the parties and

incorporated into the court's final decree of divorce, the

parties specifically reserved the right to modify husband's

payment obligations upon material and adverse change in his

financial situation:

- 12 - Should Husband's financial situation materially change adversely the parties agree that Husband shall have the right, at his option, to renegotiate any and all provisions necessitating any payment by Husband to or for the benefit of Wife or for the infant children of the parties.

Consequently, we hold that the trial court's finding that the

lump sum payment of $100,000 was "vested" and "accrued" was a

misinterpretation of the terms of the separation agreement.

Accordingly we remand to the trial court for removal of language

indicating that the $100,000 lump sum payment is vested and

accrued and for replacement of that language with language

consistent with the parties' separation agreement. Affirmed in part, reversed in part, and remanded.

- 13 - Coleman, J., concurring in part and dissenting in part.

I join in all aspects of the majority's opinion except the

holding that the trial court did not abuse its discretion in

refusing to impute income to the wife for purposes of determining

spousal support. Considering the husband's income and the value

of his assets, the trial court did not err in awarding the wife

spousal support. However, in determining the amount of support

to which the wife is entitled, the trial court is required to

consider the wife's earning capacity. Where she voluntarily

chooses not to be gainfully employed, the court should impute to

her the amount of income that she could reasonably earn

considering her ability, training, education, age, health, and

experience as well as the nature and availability of the jobs for

which she is qualified. Here, the majority upholds the trial court's refusal to

impute any income to the wife because the expert witness was

unable to state "to a reasonable degree of certainty the specific

salary that the wife could earn due to the many variables that

would go into that determination." However, the evidence proved

that the wife was a forty-year-old woman, in good health, trained

as a licensed practical nurse, with experience in nursing as

recent as 1987, and capable of earning between $26,000 to $37,900

in the Charlottesville area. For the trial court to refuse to

impute any income to the wife on this evidence is an abuse of

discretion, in my opinion, and I would require the court on

- 14 - remand to impute a reasonable amount of income to the wife who

voluntarily chooses to be unemployed and to make no contribution

to her own support.

- 15 -