Patrick L. Overbey v. Patricia K. Overbey

• Court: Court of Appeals of Virginia
• Decided: April 3, 2001
• Docket: 1395003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia

PATRICK L. OVERBEY MEMORANDUM OPINION * BY v. Record No. 1395-00-3 JUDGE ROBERT P. FRANK APRIL 3, 2001 PATRICIA K. OVERBEY

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Thomas H. Wood, Judge

Frankie C. Coyner for appellant.

No brief or argument for appellee.

Patrick L. Overbey (husband) contends the trial court erred

in awarding Patricia K. Overbey (wife) forty-five percent of his

pension, claiming: 1) wife's incarceration for embezzlement was

an economic fault that impacted the marital estate, 2) the trial

court did not give him adequate credit for his curtailment of

wife's pro rata share of marital debts, and 3) the trial court

should have awarded him a credit for the funds he paid to support

the parties' children during wife's incarceration. Finding no

error, we affirm the trial court.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND

Husband and wife were married on August 24, 1974, and had

three children. At the time of the parties' separation, two of

the children, Christopher and Robert, were not emancipated.

Both husband and wife worked during the marriage,

frequently working a full-time job in addition to a part-time

job. Both husband and wife pooled their incomes. During the

marriage, husband and wife shared childcare responsibilities.

On January 5, 1995, wife was charged with felony

embezzlement. The parties were living together at that time.

Wife testified that although husband said he would "stand by

her," he left the marital home on January 23, 1995. Husband

returned to the marital home in May 1995. Husband testified he

returned to effect a reconciliation.

Husband again left the marital home in June 1995. He

testified that he struck his son Christopher after Christopher

cursed his brother. Later that same evening, Christopher went

to his aunt's home and refused to return home. Husband

testified that he told wife, "'This is it. It ain't going to

work,'" and then left the marital home. Wife testified she

asked husband to leave after he struck Christopher.

Wife was convicted of embezzlement in United States

District Court in February 1996 and was imprisoned until March

1999. She remained on house arrest until June 1999. At the

- 2 - time of the equitable distribution hearing, wife was on federal

probation.

During wife's confinement, husband had custody of both

children for a period of time and then Christopher went to live

with his aunt. Husband testified that he paid child support for

Christopher from December 4, 1996 to June 7, 1997 in the amount

of $25 per week. Husband paid $275 per month for health

insurance for the children from February 1996 to December 1997.

The premium then was reduced to $78 per month because

Christopher was emancipated and removed from the policy. In

December 1998, husband testified Robert had reached eighteen

years of age and was removed from coverage. During her

incarceration, wife did not pay child support and did not make

any other contributions for the children's support.

At the time of the hearing, wife was fifty-one years old,

and husband was forty-six years old. Wife had one year of

college. Wife testified her health was good. Husband testified

he had a heart attack a week after the parties separated in

January 1995, which was three weeks after wife was arrested for

embezzlement.

Wife testified that when the parties separated, they agreed

to evenly divide the marital debts, 1 which totaled between

$25,000 and $50,000. Husband denied any such agreement.

1 Wife testified that there was a written agreement as to the debts but the writing was not produced.

- 3 - Wife also testified she was making payment on marital debt

to VISA, Montgomery Ward, and Household Beneficial. She stated

she was paying restitution of $112,000 on the embezzlement

charge at $100 per month. Husband testified he paid over

$20,000 in marital debts. He testified $10,385.71 was wife's

half share of the debts he paid.

Wife embezzled money from Staunton Employees Credit Union

while she was employed there. She testified that at least one

year to one year and one-half prior to her arrest, she told

husband she was embezzling money from the credit union. Husband

testified she told him two to three months prior to her arrest.

The charge arose out of wife making loans to herself.

The parties had a joint account at the credit union, in

which husband deposited his December 31, 1994 paycheck in the

amount of $1,100. Subsequently, the authorities seized that

account, and husband never recovered the amount of his paycheck.

Husband became a police officer in 1978 and conceded that

no part of his Virginia Retirement System pension accrued prior

to the marriage. At the time of separation, husband had

seventeen years of qualified service under the Virginia

Retirement System.

Husband, at the hearing, argued he should be given credit,

against wife's potential share of his pension 2 for the child

2 The parties had divided all other marital assets by agreement. The pension is the only issue before this Court.

- 4 - support and insurance premiums paid on behalf of the children

and the $10,385.71 that represents wife's share of the marital

debts he paid.

In awarding wife forty-five percent of the pension, the

trial court considered the length of the marriage and the

contributions of the parties and addressed the marital debts

paid by husband. The trial court stated, "So what I'm going to

suggest is - what I believe is appropriate is 45 percent of the

marital share. That's what I believe is appropriate. And that

takes into account the debt that he - that he got stuck with,

that he took on."

A final decree was granted to husband on November 3, 1998,

on the grounds of wife's felony conviction of embezzlement and

subsequent incarceration for a period exceeding one year

pursuant to Code § 20-91(3).

II. ANALYSIS

Husband contends the trial court failed to consider wife's

economic fault in making the award of equitable distribution. 3

He argues that wife's arrest, conviction, and incarceration

impacted the marital estate in three ways: 1) wife's arrest

caused his heart attack in January 1995, which resulted in his

two-month absence from work, 2) wife did not contribute to the

support of the children during her incarceration, and 3) wife's

3 Husband does not dispute that the other statutory factors of Code § 20-107(E) were considered.

- 5 - arrest resulted in the seizure of the parties' joint account at

the credit union and the loss of his $1,100 paycheck.

Code § 20-107.3(E)(5) states that the court, in making an

award, may consider the circumstances and factors which

contributed to the dissolution of the marriage, specifically any

grounds of divorce under the provisions of Code § 20-91(1), (3),

or (6), or Code § 20-95. Husband correctly cites Aster v.

Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988), for the proposition

that marital fault can only be considered in an equitable

distribution award when the fault has economic consequences to

the parties' marital estate. 4 However, we reject husband's

contention that wife's arrest, conviction, and subsequent

incarceration had an economic impact on the marital estate.

4 We limit our review to whether marital fault had economic consequences on the marital estate. Husband did not raise, nor do we consider, O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995), in which we held:

If the evidence of misconduct is relevant under any other factor than subparagraph (5), it may in the judge's discretion be considered when making an equitable award. The trial court may "consider the negative impact of [an] affair on the well-being of the family, see Code § 20-107.3(E)(1) . . . ." Smith[v. Smith], 18 Va. App. [427,] 431, 444 S.E.2d [269,] 273 [(1994)].

Id. at 527-28, 458 S.E.2d at 326.

- 6 - First, there is no evidence that wife's arrest caused

husband's heart attack. We could only speculate and surmise as

to the causation of such.

It is uncontroverted that upon wife's arrest, husband

indicated he would "stand by her." Husband did not relate the

separation in January 1995 to wife's pending charges or to any

other actions by wife. Husband was told of wife's embezzlement

weeks or months prior to January 1995, and, aware of the

charges, husband attempted a reconciliation in May 1995.

Husband testified that in June 1995, he struck Christopher, and

Christopher refused to return home from his aunt's house. When

husband went to get Christopher, the aunt said Christopher would

not leave. Husband then said to wife, "This is it. It ain't

going to work." Husband left the marital home. Husband's

testimony did not indicate that wife caused him to leave in June

1995.

Since we have concluded that wife's embezzlement was not a

marital fault that led to the dissolution of the marriage, the

seizure of the parties' joint account at the credit union is not

an economic consequence of the fault as contemplated by Aster.

Clearly, wife made no economic contributions to support the

children during her incarceration. Husband contends he is

entitled to a dollar-for-dollar credit against wife's share of

his pension for the child support and insurance he paid during

wife's incarceration.

- 7 - Husband paid child support for Christopher pursuant to a

court order and supported Robert at home. He also paid health

insurance for the children. Husband's contention ignores the

fact that he is obligated to support the children and that he

was under court order to support Christopher. See Code § 20-61.

Husband wants this Court to "adopt the position that, when

a spouse is incarcerated . . . and leaves the infant children

behind, some credit against equitable distribution should be

awarded against the spouse left behind with the

children . . . ." Husband acknowledges there is no authority to

support his position, and we find none. Therefore, we decline

husband's invitation to create such an offset.

As earlier discussed, this Court has refused

dollar-for-dollar offsets in determining an equitable

distribution award. But more basically, a parent's obligation

to support a child is quite separate from an equitable

distribution award.

As we said, in Lightburn v. Lightburn, 22 Va. App. 612, 472

S.E.2d 281 (1996):

The legislature enacted Code § 20-107.3 to divide the value of marital property between spouses based upon each spouse's contribution to the acquisition, preservation, or improvement of property obtained during the marriage. Sawyer v. Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 279 (1985); see Roane v. Roane, 12 Va. App. 989, 994, 407 S.E.2d 698, 701 (1991). "The clear legislative intent embodied in [Code § 20-107.3] is to maintain an appropriate

- 8 - separation between considerations of child or spousal support and considerations of an equitable division of marital wealth." Williams v. Williams, 4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987); Reid v. Reid, 7 Va. App. 553, 564, 375 S.E.2d 533, 539 (1989). A trial court determines distribution of marital property without regard for the considerations of spousal support and the factors in Code § 20-107.1. Equitable distribution is based on different considerations than spousal support. Stumbo v. Stumbo, 20 Va. App. 685, 691, 460 S.E.2d 591, 594 (1995).

Id. at 619, 472 S.E.2d at 284.

"Both parents owe a duty of support to their minor

children." Kelley v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55,

56 (1994) (citing Code § 20-61; Featherstone v. Brooks, 220 Va.

443, 448, 258 S.E.2d 513, 516 (1979)). "A custodial parent has

no less responsibility to provide support to a minor child than

does the noncustodial parent." Bennett v. Commonwealth, Dep't.

of Social Servs., Div. of Child Support Enforcement, 22 Va. App.

684, 692, 472 S.E.2d 668, 672 (1996). See also Hur v. Dep't. of

Social Servs., Div. of Child Support Enforcement, 13 Va. App.

54, 58, 409 S.E.2d 454, 457 (1991) (citation omitted) ("Child

support has long been recognized as an obligation owed to the

infant child, not the payee parent. This duty arises from

principles of natural law.").

We, therefore, find that husband is not entitled to an

offset of the equitable distribution award by the monies he

- 9 - expended for the support of his children. We believe that the

rational of Lightburn equally applies to this factual situation.

Husband also contends he is entitled to a dollar-for-dollar

credit for marital debts he paid post-separation. He argues

that the trial court did not give him adequate credit for his

curtailment of wife's pro rata share of marital debt after her

incarceration.

We have previously held that a spouse is not entitled to a

dollar-for-dollar credit for contributions and maintenance of

marital property. Ellington v. Ellington, 8 Va. App. 48, 56,

378 S.E.2d 626, 630 (1989); Barker v. Barker, 27 Va. App. 519,

539, 500 S.E.2d 240, 250 (1998).

Although the separate contribution of one party to the acquisition, care, and maintenance of marital property is a factor that the trial court must consider when making its award of equitable distribution, Code § 20-107.3 does not mandate that the trial court award a corresponding dollar-for-dollar credit for such contributions.

von Raab v. von Raab, 26 Va. App. 239, 249-50, 494 S.E.2d 156,

161 (1997).

Similarly, the debts and liabilities of each spouse are one

of the factors in Code § 20-107.3 for the court to consider.

The trial court expressly indicated it took "into account the

debt that [husband] . . . got stuck with . . . ."

"'In reviewing an equitable distribution award on appeal,

we have recognized that the trial court's job is a difficult

- 10 - one, and we rely heavily on the discretion of the trial judge in

weighing the many considerations and circumstances that are

presented in each case.'" Anderson v. Anderson, 29 Va. App.

673, 692-93, 514 S.E.2d 369, 379 (1999) (quoting Klein v. Klein,

11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990)). "Fashioning

an equitable distribution award lies within the sound discretion

of the trial judge and that award will not be set aside unless

it is plainly wrong or without evidence to support it."

Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675,

678 (1990).

In Matthews v. Suzann, 26 Va. App. 638, 496 S.E.2d 126

(1998), we stated:

In determining an equitable distribution award, the trial court must make "delicate and difficult judgments," Bentz[v. Bentz], 2 Va. App. [486,] 489, 345 S.E.2d [773,] 774 [(1986)], and "weigh[ ] the many considerations and circumstances that are presented in each case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). It is precisely "because rights and interests in marital property are difficult to determine and evaluate and competing equities are difficult to reconcile," that "the chancellor is necessarily vested with broad discretion in the discharge of the duties the statute imposes." Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).

Id. at 645-46, 496 S.E.2d at 129.

In this case, the trial court considered husband's payment

of marital debts in fashioning the distribution of husband's

pension. We cannot say that the award of forty-five percent of

- 11 - the pension to wife is an abuse of discretion unsupported by the

evidence. We, therefore, affirm the decision of the trial

court.

Affirmed.

- 12 -