Judith Carlisle v. George Carlisle

• Court: Court of Appeals of Virginia
• Decided: June 6, 2000
• Docket: 0306994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judge Annunziata, Senior Judge Duff and Retired Judge Kulp * Argued at Alexandria, Virginia

JUDITH CARLISLE MEMORANDUM OPINION ** BY v. Record No. 0306-99-4 JUDGE CHARLES H. DUFF JUNE 6, 2000 GEORGE CARLISLE

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Paul F. Sheridan, Judge

Judith Carlisle, pro se.

Edward V. O'Connor, Jr. (Byrd Mische P.C., on brief), for appellee.

Judith Carlisle (wife) appeals the final decree of divorce

entered on December 11, 1998, ending her marriage to George

Carlisle (husband). Wife contends that the trial court erred by

(1) permitting husband to have unsupervised visitation with the

parties' daughter; (2) imputing income to wife, and adjusting

spousal support and child support, as of the then future date of

September 1, 1999; (3) improperly awarding wife rehabilitative

support disguised as a lump sum amount of spousal support paid in

installments rather than awarding her permanent spousal support;

* Retired Judge James E. Kulp took part in the consideration of this case by designation pursuant to Code § 17.1-400, recodifying Code § 17-116.01. ** Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. (4) denying wife attorney's fees; (5) finding wife contributed to

the waste of marital assets; (6) failing to compensate wife for

husband's waste of marital assets; and (7) relying upon the

Fairfax County pendente lite child and spousal support guidelines

rather than wife's needs. We find substantial evidence in the

record supports the findings of the trial court, and affirm its

decision.

On appeal,

[u]nder familiar principles, we view the evidence and all reasonable inferences in the light most favorable to the prevailing party below . . . . "The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." We are not the fact-finders and an appeal should not be resolved on the basis of our supposition that one set of facts is more probable than another.

Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859

(1992) (citations omitted). The parties married in July 1992,

and their only child was born in January 1993. The parties'

marriage was marked by serious conflict, including physical

violence, leading to their separation in June 1997. There were

several pendente lite hearings and an additional multi-day

hearing August 31 through September 2, 1998. The trial court

issued the final decree of divorce on December 11, 1998.

Visitation

"In matters concerning custody and visitation, the welfare

and best interests of the child are the 'primary, paramount, and

- 2 - controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The

trial court is vested with broad discretion to make the

decisions necessary to safeguard and promote the child's best

interests. See Farley v. Farley, 9 Va. App. 326, 327-28, 387

S.E.2d 794, 795 (1990).

"Because the trial court heard the evidence at an ore tenus hearing, its decision 'is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it.'" "Absent clear evidence to the contrary in the record, the judgment of a trial court comes to an appellate court with a presumption that the law was correctly applied to the facts."

Brown v. Burch, 30 Va. App. 670, 684, 519 S.E.2d 403, 410 (1999)

(citations omitted). "Code § 20-124.3 specifies the factors a

court 'shall consider' in determining the 'best interests of a

child for . . . custody or visitation.'" Brown v. Brown, 30 Va.

App. 532, 538, 518 S.E.2d 336, 338 (1999). "Although the trial

court must examine all factors set out in Code § 20-124.3, 'it

is not "required to quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors."'"

Id. (citations omitted).

Wife alleged that husband abused her and the child due to

his violent temper. Husband admitted that he was an alcoholic

and had previously used drugs, but testified that he had been

sober for five years as of the September 1998 hearing. Wife

also alleged that husband was a pedophile who had sexually

- 3 - abused the parties' daughter. Child Protective Services

conducted an investigation which reached a conclusion that the

allegations were unfounded, but the investigator noted that she

found "red flags" concerning the behavior of both parents.

In addition to the evidence presented during the several

pendente lite hearings and the September 1998 hearing, the court

also received a report from Gregory L. Fissell. Fissell was a

counselor from the juvenile and domestic relations district

court who conducted a series of interviews with the parties and

the child. Based upon the extensive evidence received, the

trial court determined that it was in the best interests of the

child for her to have increased visitation with husband. The

trial court found that both parties had "relational

difficulties." The trial court also noted that, although none

of the allegations of sexual abuse by husband were proven, some

testimony concerning possible sexual abuse was presented that

the court found persuasive. Accordingly, the trial court ruled

that there would be no unsupervised, overnight visitation

between the child and husband. The trial court allowed husband

to have regular, unsupervised visitation during the day,

beginning in two months. The trial court also ordered the

parents and other involved persons to provide Fissell with all

pertinent information, particularly that from mental health

professionals, by November 1, 1998, and required that husband

undergo a psychological evaluation.

- 4 - While wife contends that the trial court failed to consider

the evidence of husband's behavior, the record demonstrates that

the trial court carefully considered and weighed all the

evidence presented. Its decision focused on the child's best

interests, while seeking to protect her from any possible abuse,

whether sexual, emotional or physical. We cannot say that the

visitation decision of the trial court was plainly wrong.

Spousal Support

The record supports the trial court's decision to award

wife a lump sum award of spousal support, and to impute income

of $30,000 to her beginning September 1999.

In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties. He is guided by the . . . factors that are set forth in Code § 20-107.1. When the chancellor has given due consideration to these factors, his determination will not be disturbed on appeal except for a clear abuse of discretion.

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829

(1986). This Court has noted that "[g]enerally, when courts do

make lump sum spousal support awards they do so because of special

circumstances or compelling reasons, and appellate courts uphold

such awards where the record clearly reflects the court's

rationale for finding that the award will adequately provide for

contingencies." Blank v. Blank, 10 Va. App. 1, 5, 389 S.E.2d 723,

725 (1990). The record demonstrates that the trial court's award

of the lump sum payable over a year was based upon the parties'

- 5 - circumstances, including the duration of the marriage, the wife's

demonstrated earning ability based upon her past employment, as

well as her current needs. We cannot say that the evidence fails

to support the trial court's decision to make a lump sum award to

wife.

In addition, we find no error in the trial court's decision

to impute income to wife. Wife earned as much as $48,000

annually during the marriage. In her last employment, she

earned approximately $33,000. Wife lost her position in early

1998 due to her repeated absences and tardiness. No evidence

supports her allegation that husband's behavior caused her to

lose this position.

Wife also contends that the trial court's lump sum award

was an improper attempt to award spousal support for a defined

duration as allowed under the current provisions of Code

§ 20-107.1. Wife correctly notes that the amended provisions of

Code § 20-107.1 do not apply to this case because it was filed

prior to July 1, 1998. The trial court found that currently

"[wife] should be making $2,500 a month," but nonetheless

allowed her an additional period of time before imputing that

income. The trial court found that a lump sum, payable in

monthly installments, was appropriate under the circumstances to

meet wife's needs. The trial court also noted that wife had

failed to properly manage the pendente lite support award of

- 6 - $700. We find no error in the trial court's framing of wife's

spousal support.

While wife contends that she is unable to work due to a

medical condition, no evidence supports that assertion. The trial

court found that both parties were in good health. In addition,

no evidence supports wife's contention that the trial court erred

by failing to impute additional income to husband. The evidence

indicated that husband continued to earn a salary comparable to

what he earned during the marriage.

In her exceptions to the trial court's decision, wife did not

include any objection based upon the failure of the trial court to

reserve a right to modify spousal support in the future. In

addition, wife did not seek a reservation of the right to support

in the future. Therefore, wife may not raise that issue for the

first time on appeal. See Rule 5A:18; Lee v. Lee, 12 Va. App.

512, 514, 404 S.E.2d 736, 737 (1991) (en banc).

Attorney's Fees

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. See 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.

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

(1985). The trial court found that wife was able to earn at least

$30,000 annually, and had earned $48,000 annually during the

- 7 - marriage; that she had hired three separate attorneys in the

course of the proceedings; that wife initiated a number of the

legal proceedings; and that wife avoided one set of attorney's

fees by filing for bankruptcy. Based on the number of issues

involved and the respective abilities of the parties to pay, we

cannot say that the trial court abused its discretion in ordering

the parties to bear their own attorney's fees.

Waste of Marital Assets

Wife contends that the trial court erred when it ruled that

both parties were responsible for the waste of marital assets.

"Waste or dissipation of assets occurs when 'one spouse uses

marital property for his own benefit and for a purpose unrelated

to the marriage at a time when the marriage is undergoing an

irreconcilable breakdown.'" Anderson v. Anderson, 29 Va. App.

673, 694, 514 S.E.2d 369, 380 (1999) (quoting Amburn v. Amburn,

13 Va. App. 661, 666, 414 S.E.2d 847, 850 (1992)). Whether

waste has occurred is a matter to be determined by the trial

court based upon the evidence presented. See Alphin v. Alphin,

15 Va. App. 395, 403, 424 S.E.2d 572, 576 (1992). The record

demonstrates that the parties acquired two pieces of real

property during the marriage, but that both parcels were lost

when the parties failed to make the necessary mortgage payments.

The parties blamed each other for the failure to make payments.

We find no error in the trial court's finding that both parties

committed waste. We find no merit in wife's contention that

- 8 - husband's culpability exceeded hers and, therefore, she was

entitled to compensation for her share of the forfeited marital

property.

Pendente Lite Support Guidelines

Wife presented no argument on this alleged error. It is

well established that "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). Therefore, we decline to

address this issue.

Accordingly, as we find substantial evidence in the record

supporting the decision of the circuit court, we affirm.

Affirmed.

- 9 -