Michael E. Preston v. Mary Elizabeth Preston

• Court: Court of Appeals of Virginia
• Decided: January 20, 1998
• Docket: 0071974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Elder and Senior Judge Duff Argued at Alexandria, Virginia

MICHAEL E. PRESTON MEMORANDUM OPINION** BY v. Record Nos. 0071-97-4 and JUDGE CHARLES H. DUFF 0175-97-4 JANUARY 20, 1998

MARY ELIZABETH PRESTON

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Michael P. McWeeny, Judge

Judy A. Dugger for appellant.

Beth A. Bittel (Law Offices of Beth A. Bittel, on brief), for appellee.

Michael E. Preston (husband) appeals the decision of the

trial court finding that Mary Elizabeth Preston (wife) did not

desert the marriage. Husband also contends that the trial court

erred in finding that the parties separated sometime in May 1995

rather than on October 28, 1994; erred in awarding spousal

support to wife; erred in the allocation of costs and fees

arising from the commissioner's hearing and trial; and erred in

failing to award sanctions against wife's attorney. By way of

cross-error, wife contends that the trial court erred by refusing

to impute income to husband for the calculation of child and

spousal support and abused its discretion by failing to award her * On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as chief judge. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. sufficient attorney's fees. We find husband's contentions to be

without merit and award additional attorney's fees to wife for

expenses incurred on this appeal. We find no error in the trial

court's refusal to impute income to husband at the time of trial.

Background

The parties were married in 1972 and had four children. The

trial court found that husband made the majority of the monetary

contributions while wife made the majority of the nonmonetary

contributions during the marriage. The evidence on the ground of

divorce was heard by a commissioner in chancery. Based upon the

commissioner's recommendation, the trial court denied husband's

alleged grounds of desertion by wife and granted wife a divorce

on the basis of a one-year separation. Evidence on the issues of

equitable distribution, spousal and child support were heard by

the trial court. Desertion

The trial court did not err in confirming the commissioner's

finding that husband failed to prove that wife deserted the

marriage when she moved from the marital bedroom in October 1994. While the report of a commissioner in chancery does not carry the weight of a jury's verdict, it should be sustained unless the trial court concludes that the commissioner's findings are not supported by the evidence. This rule applies with particular force to a commissioner's findings of fact based upon evidence taken in his presence . . . .

Jamison v. Jamison, 3 Va. App. 644, 645-46, 352 S.E.2d 719, 720

2 (1987) (citations omitted).

Wife testified that she wanted husband to seek counseling,

and moved from the marital bedroom in October 1994 when he

returned from a trip to his parents because "I felt like I had to

show him how serious I felt about him seeking some kind of help."

She testified that she had not formed the intent to end the

marriage at that point.

Desertion requires the break off of marital cohabitation

with the intent to desert. See Petachenko v. Petachenko, 232 Va.

296, 298-99, 350 S.E.2d 600, 602 (1986). Merely ceasing sexual

relations does not constitute desertion. See id. at 299, 350

S.E.2d at 602. Instead, when sexual relations are willfully

withdrawn without just cause or excuse, desertion requires "the

breach of other significant marital duties." Jamison, 3 Va. App.

at 648, 352 S.E.2d at 722.

In Jamison, the wife moved out of the marital bedroom and

lived in a different room for a number of years. She withdrew

from sexual relations and no longer washed, cleaned or prepared

food for the husband. The husband assumed the cleaning duties

for himself and the children. The family ate together no more

than six times a year. The trial court found the wife had not

deserted the husband because the couple had continued to live

together and have "minimal family contacts." Id. at 645, 352

S.E.2d at 720.

On appeal, we reversed, holding that it was not necessary to

3 find that the spouse neglected all marital duties, but instead

neglected "significant marital duties, which results in the

practical destruction of homelife in every sense." Id. at 648,

352 S.E.2d at 722.

In this instance, there was no evidence of a total breakdown

of the family's homelife between October 28, 1994 and May 1995.

Wife testified that she continued to care for the home and

family, including husband. The couple's son corroborated wife's

testimony that she continued to do husband's laundry, cleaning

and cooking on a daily basis. The son testified further that his

father and mother ate with the children regularly. Therefore,

after moving out of the marital bedroom, his mother continued to

perform significant marital duties. The son testified that the household changed noticeably in

the spring of 1995, after husband presented wife with a proposed

settlement agreement. This change continued through the summer

of 1995 and through the 1995 Thanksgiving and Christmas holidays

when the son returned from college. There was a marked

difference in his father's participation in the holidays that

year compared to the year before.

While husband argued that the son's testimony concerning

events after May 1995 was not credible because the son did not

live in the house full time after leaving for college, husband

admitted that the son did not leave for college until August

1995. Thus, the son had the time and opportunity to observe any

4 noticeable change in the parties' interaction after husband

presented the proposed agreement.

Husband contended that the commissioner failed to adequately

consider the daughter's testimony. In light of the daughter's

age at the time of the events and her lack of specific and clear

testimony, the commissioner did not err in giving minimal weight

to the daughter's testimony. We find no merit in husband's

contention that the commissioner improperly limited his

cross-examination of the son concerning his absence from the home

after May 1995, as the only limitation imposed by the

commissioner barred husband's attorney from asking the son

whether he had been pressured or coached concerning his hearing

testimony. Therefore, we affirm the trial court's finding that wife did

not desert the marriage in October 1994.

Separation Date

Credible evidence established that the parties separated

sometime during May 1995 when husband presented wife with a

proposed settlement agreement. Neither party presented evidence

establishing with greater specificity when during May the final

separation occurred, and the commissioner was not required to

make a finding in the absence of evidence sufficient to support

it. See Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546,

550 (1987).

Moreover, husband failed to demonstrate any harm resulting

5 from the alleged error in failing to identify a specific date for

the separation. Husband challenged the classification of certain

property based upon his assertion that the parties separated in

October 1994, but he made no similar argument concerning the lack

of a specific date in May.

Spousal Support

Husband argues that the trial court erred in awarding

spousal support to wife. As noted above, we find no error in the

court's determination that wife did not desert the marriage.

Even so, Code § 20-107.1 does not preclude an award of spousal

support in instances of desertion. If the trial court has

considered the parties' needs and abilities and the statutory

factors set out in Code § 20-107.1, its decision to award spousal

support will not be disturbed absent an abuse of discretion. See

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

(1986).

"The judgment of the trial court concerning the extent to

which the wife's earning capacity should affect spousal and child

support awards will not be set aside unless it appears from the

evidence that such judgment is plainly wrong or without evidence

to support it." Kaufman v. Kaufman, 7 Va. App. 488, 494, 375

S.E.2d 374, 377 (1988). The trial court did not err in refusing

to impute income to wife. Wife was employed, and husband did not

demonstrate that wife was underemployed. While husband argued

that wife could earn more as a teacher, he failed to present

6 evidence that there were teaching positions for which wife was

currently qualified.

7 Equitable Distribution

As the trial court did not err in determining that the

parties' final separation occurred in May 1995, it did not err in

classifying $10,000 of the $23,000 NationsBank account acquired

between October 28, 1994 and May 1995 as marital property.

Husband acknowledged that the $6,000 NationsBank account was

marital property, and he may not now challenge the court's

classification of that account as marital property. The trial court did not err in classifying the Dodge Colt

acquired by husband in May 1995 as marital property. Husband

failed to prove when he purchased the car or when he presented

wife with the proposed settlement agreement. In addition,

credible evidence supported the court's determination of the

car's value. While husband testified that the car was damaged in

an accident, the trial court was not required to accept his

testimony that he "might get half" of its NADA book value.

In his Exhibit 3, husband asserted that wife owed him

approximately $7,000 for mortgage, telephone, gas, electric,

water and cable expenses incurred during 1996 while both parties

resided in the marital residence. The trial court ruled that

each party was to assume one-half these debts. While husband

objected to the final decree on the basis of "the rulings on the

overdue house bills and other debts," it is not clear that

husband raised a claim that wife reimburse any portion of the

$32,000 in payments. Assuming arguendo that the issue was

8 properly preserved, husband has not demonstrated reversible

error. He was the sole wage-earner until March 1995, and earned

at least twice what wife earned after that point. Requiring

husband to continue to support the family as he had done

throughout the marriage was not an abuse of discretion.

Finally, husband failed to demonstrate error in the trial

court's valuation and distribution of the parties' personal

property. The trial court was not required to accept husband's

unsubstantiated assertions of the value of the items of personal

property. Whereas wife submitted supporting documentation for

items claimed to be her separate property, husband testified in

general terms and did not establish that the items claimed by him

as family heirlooms were gifts only to him.

Allocation of Costs and Fees

The record indicated that wife sought to avoid the contested

hearing before the commissioner, but that husband refused to go

forward on no-fault grounds. The commissioner's affidavit

indicated that husband's attorney used well over half the total

hearing time. Wife ultimately was awarded a divorce on no-fault

grounds. In addition, husband was the primary wage-earner

throughout the marriage and had the greater income at the time of

trial. Therefore, husband did not demonstrate error in the

court's decision to allocate to him the greater portion of the

expenses incurred in the commissioner's hearing or order him to

pay $5,000 in wife's attorney's fees.

9 Sanctions on Wife's Attorney

Whether to impose sanctions under Code § 8.01-271.1 is a

matter left to the discretion of the trial court. See Oxenham v.

Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991). The record

indicates that wife's attorney did not pursue the issue of the

Putnam account at the December 20, 1996 hearing when the

possibility of a discrepancy in her understanding of that account

was brought to her attention. Husband did not demonstrate an

abuse of discretion in the denial of sanctions. Imputation of Income to Husband

The trial court considered the statutory factors prior to

determining whether to impute income to husband in connection

with the award of spousal support to wife. While husband was

earning substantially less than he had at other times during the

marriage, he also presented evidence that his lower earnings were

the result of the downturn in the defense industry. Because the

court's decision was supported by evidence, its failure to impute

additional income to husband as of the time of trial was not

clearly erroneous. See Alphin v. Alphin, 15 Va. App. 395, 402,

424 S.E.2d 572, 576 (1992).

Award of Attorney's Fees to Wife

Wife was awarded $5,000 of her attorney's fees, which

totalled more than $38,000. The record indicates that both

parties vigorously litigated this matter. While husband had the

greater income, he also was ordered to pay costs associated with

10 the commissioner's hearing, as well as child and spousal support.

In light of all the issues and the parties' respective abilities

to pay, the award was not unreasonable or a clear abuse of

discretion.

Wife also seeks an award of appellate attorney's fees. See

O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).

Husband's appeal was without merit, and we find that wife is

entitled to an award of appellate attorney's fees. Therefore, we

remand this matter to the trial court for the limited purpose of

determining and awarding the amount of attorney's fees incurred

by wife in this appeal. See id. at 694-95, 479 S.E.2d at 100.

Accordingly, the decision of the circuit court is affirmed, and

the case is remanded for the determination of wife's appellate

attorney's fees.

Affirmed and remanded.