Kevin B. Carr v. Mary Ellen Carr

• Court: Court of Appeals of Virginia
• Decided: May 7, 2002
• Docket: 1848014
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements Argued at Alexandria, Virginia

KEVIN B. CARR MEMORANDUM OPINION * BY v. Record No. 1848-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK MAY 7, 2002 MARY ELLEN CARR

FROM THE CIRCUIT COURT OF STAFFORD COUNTY James W. Haley, Jr., Judge

Timothy W. Barbrow for appellant.

Betty Moore Sandler (Nichols, Bergere, Zauzig & Sandler, P.C., on brief), for appellee.

Kevin B. Carr (husband) appeals a June 22, 2001 final

decree of divorce granting Mary Ellen Carr (wife) a divorce a

vinculo matrimonii on the ground that the parties had lived

separate and apart for more than one year. He contends that the

trial court erred in (1) using a valuation date that did not

provide an accurate value for husband's business, (2) failing to

remand the issue of valuation of his business to the

commissioner in chancery (commissioner), (3) failing to impute

income to wife in determining the amount of the spousal support

award, (4) failing to limit the duration of spousal support

awarded to wife, (5) setting an amount of monthly installments

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. due on the monetary award at $3,000 per month, and (6) awarding

wife attorney's fees and costs. Finding no error, we affirm.

I. PROCEDURAL HISTORY

Husband and wife were married on June 3, 1978. Husband

left the marital residence in June of 1998. Wife filed a bill

of complaint for divorce on April 22, 1999, seeking a divorce a

separate and apart for one year. The matter was referred to a

commissioner by a September 26, 2000 decree. On January 25,

2001, the commissioner heard evidence and filed his report on

March 23, 2001. In it, he made specific findings on the

valuation of husband's business, the amount of spousal support

to be paid to wife, and an award of attorney's fees and costs to

wife. The trial court entered the final decree of divorce on

June 22, 2001, adopting the findings and conclusions of the

commissioner on these issues.

II. STANDARD OF REVIEW

"On review, we consider the evidence in the light most

favorable to the party prevailing in the trial court."

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,

31 (1989).

"On appellate review, a divorce decree is presumed correct

and will not be overturned if supported by substantial,

competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va.

App. 77, 83, 448 S.E.2d 666, 670 (1994). - 2 - "A commissioner's findings of fact which have been accepted

by the trial court are presumed to be correct when reviewed on

appeal and are to be given great weight by this Court. The

findings will not be reversed on appeal unless plainly wrong."

Barker v. Barker, 27 Va. App. 519, 531, 500 S.E.2d 240, 245-46

(1998) (internal citations omitted). "Because of the

presumption of correctness, the trial judge ordinarily must

sustain the commissioner's report unless the trial judge

concludes that it is not supported by the evidence." Brown v.

Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) (citing

Morris v. United Virginia Bank, 237 Va. 331, 337-38, 377 S.E.2d

611, 614-15 (1989)).

III. ALTERNATE VALUATION DATE

Husband first argues that it was error for the commissioner

to use 1998 as the valuation date for K & K Finishing Systems,

Inc., a marital asset, rather than January 25, 2001, the date of

the commissioner's hearing. Under the facts of this case, we

disagree.

Code § 20-107.3(A) provides, in pertinent part:

The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. Upon motion of either party made no less than twenty-one days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used.

- 3 - "We have stressed that the trial judge in evaluating

marital property should select a valuation [date] 'that will

provide the Court with the most current and accurate information

available which avoids inequitable results.'" Gaynor v. Hird,

11 Va. App. 588, 593, 400 S.E.2d 788, 790 (1991) (quoting

Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21

(1987)).

On December 18, 2000, wife filed a timely motion to use

1998 as an alternate valuation date. After hearing the evidence

presented, the commissioner determined that husband had not

provided information about the value of the business post-1998

in a timely and usable manner. He found that "it does appear

appropriate, that the business should be valued as of the date

of the last information [1998] provided by Mr. Carr to Mrs. Carr

for use by her expert, Mr. Stephens." Credible evidence

supports this finding.

Husband presented evidence that the value of K & K

Finishing Systems, Inc., based on his bookkeeper's computation

of total stockholder equity, was $134,918 at the end of 1998 and

approximately $96,000 at the end of 1999. Wife relied on the

testimony of William Stephens (Stephens), an expert in the area

of business valuations, who evaluated the business as a single

owner business, with no plans for immediate sale. He used both

the asset and income methods to arrive at a valuation with the

most recent information provided being the 1996-1998 financial - 4 - statements. He then placed a value on the business as of

December 31, 1998, the most recent date for which he had

complete information. 1

The commissioner was not plainly wrong in finding that

Stephens "was working with the information that was available to

him at the time" or that it was "appropriate, however, that the

business should be valued as of the date of the last information

provided by Mr. Carr to Mrs. Carr for use by her expert, Mr.

Stephens."

IV. FAILURE TO REMAND ON VALUATION

Husband next argues the trial judge never ruled on the

alternate valuation date and that even if wife's expert did not

have sufficient time to include the 1999 information in his

valuation, the trial court should have remanded this issue to

the commissioner for further consideration. These contentions

are without merit.

"[A] trial court will usually have discretion to determine

the date on which an asset will be valued." Rowe v. Rowe, 33

Va. App. 250, 265, 532 S.E.2d 908, 916 (2000) (citing Mitchell

v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987)).

The commissioner, considering the evidence presented,

determined that 1998 was the appropriate date to use. Husband

1 We note that husband argues that he provided additional information early in December 2000. However, the record does not reflect that this was complete nor sufficient for wife's expert to adequately value the business at a later date. - 5 - filed exceptions to this finding, and the trial court overruled

these by accepting the commissioner's findings.

[T]his court adopts and incorporates herein by reference the [c]ommissioner's conclusions and findings of fact that [husband's] company, K & K Finishing Systems, Inc., has a value of One Hundred Ninety-Nine Thousand Six Hundred and Nineteen Dollars ($199,619.00) which should be divided between the parties with [husband] receiving seventy-five percent (75%) and [wife] receiving twenty-five percent (25%).

Thus, the motion for an alternate valuation date was ruled on by

the trial court and as noted above, no abuse of discretion has

been shown in the choice of date.

Additionally, the trial court was not required to remand

this issue for consideration of husband's later provided

financial information when he had the opportunity to present

this evidence at the time of the original hearing. See

Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107

(1989) (the burden is on the party to provide the trial court

with sufficient evidence to value the property); Clements v.

Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 260 (1990)

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

cases where the parties have adequate opportunity to introduce

evidence but have failed to do so").

Thus, the trial court did not abuse its discretion in

affirming the commissioner's finding that 1998 was the

- 6 - appropriate valuation date nor was it required to remand the

case for additional evidence.

V. IMPUTED INCOME

Husband next contends that the trial court erred in failing

to impute income to wife because she was voluntarily working

part-time and should have sought full-time employment. The

record provides ample evidence to support the trial court's

refusal to impute income.

"The decision to impute income is within the sound

discretion of the trial court and its refusal to impute income

will not be reversed unless plainly wrong or unsupported by the

evidence." Blackburn v. Michael, 30 Va. App. 95, 102, 515

S.E.2d 780, 784 (1999) (citing Saleem v. Saleem, 26 Va. App.

384, 393, 494 S.E.2d 883, 887 (1998)).

"When asked to impute income to a [party], the trial court

must consider the [party's] earning capacity, financial

resources, education and training, ability to secure such

education and training, and other factors relevant to the

equities of the parents and children." Niemiec v. Department of

Social Services, 27 Va. App. 446, 451, 499 S.E.2d 576, 579

(1998) (citing Brooks v. Rogers, 18 Va. App. 585, 592, 445

S.E.2d 725, 729 (1994)). "The burden is on the party seeking

the imputation to prove that the other parent was voluntarily

foregoing more gainful employment, either by producing evidence

of a higher-paying former job or by showing that more lucrative - 7 - work was currently available." Id. (internal citations

omitted). "The evidence must be sufficient to "'enable the

trial judge reasonably to project what amount could be

anticipated.'" Id. (quoting Hur v. Virginia Dept. of Social

Services Div. Of Child Support Enforcement ex rel. Klopp, 13 Va.

App. 54, 61, 409 S.E.2d 454, 459 (1991)). Husband failed to

meet this burden.

Wife, a nurse, had not worked outside the home for fifteen

years prior to the parties' separation. At the time of trial,

she worked twenty-five hours a week in a doctor's office and

earned approximately $1,936 per month. Wife showed a monthly

deficit of $1,274. Husband earned approximately $1,100 per

week. 2 It was undisputed that the parties' youngest child was

having significant behavioral and emotional issues caused by the

divorce. The commissioner stated that "given the circumstances

of the two younger children, particularly the parties' son, it

is appropriate that Mrs. Carr not be required at this time to

work full time." Credible evidence supports this finding.

Additionally, husband failed to present evidence that there

were full-time jobs available to wife. Husband's statement on

brief that "wife holds a degree in a profession where there is a

great demand" does not satisfy his burden of giving the trial

2 Because of the nature of husband's business and the manner information was provided, the commissioner found in referencing husband's income that "getting a firm figure on anything above that is difficult." - 8 - court sufficient evidence to allow the trial judge to reasonably

project the amount of anticipated income. Thus, the trial court

was not plainly wrong in refusing to impute income to wife.

VI. DURATION OF SPOUSAL SUPPORT

Husband also contends that the trial court abused its

discretion by failing to limit to four years his spousal support

obligation. He argues that the need for wife to work part-time

will cease when their youngest child reaches eighteen and, thus,

her need for spousal support will terminate at that time. We

find no abuse of discretion in failing to limit the duration of

wife's support.

Code § 20-107.1(C) provides that "[t]he court, in its

discretion, may decree that maintenance and support of a spouse

be made in periodic payments for a defined duration, or in

periodic payments for an undefined duration, or in a lump sum

award, or in any combination thereof."

"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 clear abuse of discretion." Collier v. Collier, 2

Va. App. 125, 129, 341 S.E.2d 827, 829 (1986).

"'In fixing the amount of the spousal support award, . . .

the court's ruling will not be disturbed on appeal unless there - 9 - has been a clear abuse of discretion. We will reverse the trial

court only when its decision is plainly wrong or without

evidence to support it.'" Moreno v. Moreno, 24 Va. App. 190,

194-95, 480 S.E.2d 792, 794 (1997) (quoting Gamble v. Gamble, 14

Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)).

"'[S]pousal support awards must be determined in light of

contemporary circumstances and . . . redetermined [if necessary]

in light of new circumstances.'" Blank v. Blank, 10 Va. App. 1,

4, 389 S.E.2d 723, 724 (1990) (quoting Jacobs v. Jacobs, 219 Va.

993, 995, 254 S.E.2d 56, 58 (1979)). "The court, in setting

support awards, must look to current circumstances and what the

circumstances will be within the immediate or reasonably

foreseeable future, not to what may happen in the future."

Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675,

679 (1990) (citing Young v. Young, 3 Va. App. 80, 81-82, 348

S.E.2d 46, 47 (1986)).

The trial court adopted the commissioner's findings that

wife showed a current support need of $875 per month. He

further found that "given the circumstances of the two younger

children, particularly the parties' son, it is appropriate that

Mrs. Carr not be required at this time to work full time." The

commissioner stated that wife "should be able to increase to

full time employment when the situation with the parties'

younger children, primarily their son, Adam, becomes more

stable." - 10 - While husband argues that a change in wife's circumstances

is reasonably foreseeable because of the ages of the children,

wife's exact need for support four years hence cannot be

reasonably calculated at present. If supported by the evidence

at the time the children reach their majority, husband may

petition for termination of his support obligation at that time.

See Code § 20-109.

As we recently stated in Joynes v. Payne, 36 Va. App. 401,

551 S.E.2d 10 (2001), "[Code § 20-107.1] does not require the

trial court to specify the date of termination of a spousal

support award. In fact, the language allows the trial court to

order an award for an undefined duration." Id. at 423, 551

S.E.2d at 21. Thus, we cannot say that the trial court abused

its discretion in awarding wife "periodic payments for an

undefined duration."

VII. AMOUNT OF MONTHLY INSTALLMENTS

Next, husband contends that the trial court erred in

requiring him to pay $3,000 per month to satisfy the equitable

distribution award, costs, and fees awarded to wife because he

lacks adequate funds from which to make the monthly payment.

Code § 20-107.3(D) provides, in pertinent part, that "the

court has the power to grant a monetary award, payable either in

a lump sum or over a period of time in fixed amounts, to either

party."

- 11 - The record reflects no abuse of discretion. The payment

plan, in effect, gives husband an opportunity to pay his

equitable distribution award and costs over approximately a

five-year time span rather than having it due upon entry of the

order. Credible evidence supports the trial judge's finding

that husband has the ability to pay according to the payment

plan.

VIII. ATTORNEY'S FEES AND COSTS

Lastly, husband argues that the trial court abused its

discretion in awarding wife attorney's fees of $15,000, $1,250

as her half of the commissioner's fee and $5,000 toward the cost

of the valuation of husband's business.

"An award of attorney's fees is a matter submitted to the

trial court's sound discretion 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) (citing Ingram v. Ingram, 217

Va. 27, 29, 225 S.E.2d 362, 364 (1976)).

"'Where . . . the trial court finds the wife needs and is

entitled to maintenance and support and the husband has the

financial ability to meet those needs, its failure to award

counsel fees to her is, in our opinion, an abuse of . . .

discretion.'" Poliquin v. Poliquin, 12 Va. App. 676, 681, 406

S.E.2d 401, 405 (1991) (quoting Thomas v. Thomas, 217 Va. 502,

505, 229 S.E.2d 887, 890 (1976)).

- 12 - "'[T]he key to a proper award of counsel fees . . . [is]

reasonableness under all of the circumstances revealed by the

record.'" Poliquin, 12 Va. App. at 682, 406 S.E.2d at 405

(quoting Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d

523, 530 (1988)).

Husband argues that his income of $56,000 per year is

insufficient to meet the $21,250 awarded to wife in attorney's

fees and costs. However, the commissioner notes that for 1998,

husband's "effective income" was $98,243 and if he assumed

additional duties as office manager he would have an effective

income of $127,902. Further, for 1999, husband had compensation

of $96,419 and, with the office manager adjustment, $126,078.

The commissioner noted that "it is clear that [husband] can

produce significant income, if he can refocus on his business

and give it the attention that he previously gave it."

Wife had incurred over $30,000 in attorney's fees and over

$10,000 in costs for the business valuation. Wife works

part-time at $16 per hour. Under these circumstances, the award

of a part of wife's attorney's fees and costs was reasonable.

Thus, the trial court did not abuse its discretion in awarding

wife attorney's fees.

IX. ATTORNEY'S FEES FOR APPEAL

Wife has requested attorney's fees for matters relating to

this appeal. Upon consideration of the entire record in this

case, we hold that wife is entitled to a reasonable amount of - 13 - additional attorney's fees, and we remand for an award of further

costs and counsel fees incurred in this appeal.

For the foregoing reasons, we affirm the trial court and

remand for consideration of counsel fees on appeal.

Affirmed and remanded.

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