Paul Brundage v. Edity Emily Brundage

• Court: Court of Appeals of Virginia
• Decided: May 23, 1995
• Docket: 1487944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff

PAUL BRUNDAGE

v. Record No. 1487-94-4

EDITH EMILY BRUNDAGE MEMORANDUM OPINION * BY JUDGE CHARLES H. DUFF EDITH EMILY BRUNDAGE MAY 23, 1995

v. Record No. 1571-94-4

PAUL BRUNDAGE FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Marcus D. Williams, Judge

Paul Brundage, pro se.

John S. Petrillo (Philip Schwartz; Schwartz & Ellis, Ltd., on brief), for Edith E. Brundage.

Paul Brundage (husband) appeals the decision of the circuit

court granting Edith E. Brundage (wife) a divorce on the grounds

of a one-year separation and deciding other issues. Wife has

also filed an appeal from the circuit court's decision.

Husband raises the following issues on appeal: (1) whether the trial court erred in overruling husband's objections to the findings of the commissioner in chancery that husband condoned wife's adultery;

(2) whether the trial court erred in failing to incorporate the parties' Property Settlement Agreement into the final decree of divorce;

(3) whether the trial court erred in awarding no attorney's fees to husband and awarding $23,000 in attorney's fees to wife;

(4) whether the trial court erred in awarding spousal * Pursuant to Code § 17-116.010 this opinion is not designated for publication. support to wife and failing to reserve a right to spousal support to husband; and

(5) whether the trial court erroneously awarded wife an interest in husband's pension exceeding the statutory marital share.

In response to wife's appeal, husband also raises as an issue

whether the trial court erred in determining the amount of child

support.

Wife raises two issues on appeal, both of which relate to

the award of an interest in husband's pension: (1) whether the trial court erred in awarding wife only thirty-five percent of the marital share of husband's pension; and

(2) whether the trial court erred in refusing to also award wife a survivor's annuity.

The commissioner in chancery heard evidence on the parties'

respective grounds for divorce. Additional hearings on the

issues of equitable distribution and spousal support were

conducted by the trial court. I. Grounds for Divorce

"The commissioner's report is deemed to be prima facie

correct." Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545,

548 (1990). "When the commissioner's findings are based upon ore

tenus evidence, 'due regard [must be given] to the commissioner's

ability . . . to see, hear and evaluate the witness at first

hand.'" Id. (citation omitted). "The decree confirming the

commissioner's report is presumed to be correct and will not be

disturbed if it is reasonably supported by substantial,

2 competent, and credible evidence." Brawand v. Brawand, 1 Va.

App. 305, 308, 338 S.E.2d 651, 652 (1986).

The commissioner found that, while wife committed adultery,

the parties resumed marital relations after husband knew of

wife's infidelities. Husband challenges the finding that he

condoned wife's adultery. At oral argument and in his brief,

husband pointed specifically to incidents of adultery that

occurred in March 1988. However, the "Agreement Concerning Trial

Reconciliation and Terms and Conditions in the Event of Divorce,"

drafted by husband and provided to wife in July 1990, contains

the following passage: On or about November 19, 1989, HUSBAND learned that during the previous twenty-two (22) months WIFE has had an ongoing adulterous relationship at various times and places in Europe, with one GILLES. One specific instance occurred at The Collin House, Ebury Street, SW1, London, England, on March 11, 1988.

The parties admitted that they resumed their marital relations,

albeit on a trial basis, in September 1990.

"'Condonation is defined to be the remission, by one of the

married parties, of an offense which he knows the other has

committed against the marriage, on the condition of being

continually treated by the other with conjugal kindness.'" Cutlip v. Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989)

(citation omitted). Condonation is a defense to a charge of

adultery as a grounds for divorce. Id. While husband contends

he had no knowledge that wife committed adultery on specific

dates during this period, substantial evidence demonstrates that

3 husband knew of wife's ongoing adulterous relationship prior to

the parties' reconciliation. Therefore, as credible evidence

supports the commissioner's finding, this Court will not disturb

the decision of the trial court to accept the commissioner's

report. II. Incorporation of Property Settlement Agreement

"The language of Code § 20-109.1 gives the trial court

discretion in determining whether a property settlement agreement

should be incorporated by reference into a final decree of

divorce. Absent an abuse of discretion, the trial court's

decision must be upheld on appeal." Forrest v. Forrest, 3 Va.

App. 236, 239, 349 S.E.2d 157, 159 (1986).

Husband alleges the trial court erred in failing to

incorporate into its final decree the property settlement

agreement outlined before the trial court during a hearing in

March 1994. We note, however, that "[t]o be valid and

enforceable, the terms of an oral agreement must be reasonably

certain, definite, and complete to enable the parties and the

courts to give the agreement exact meaning." Richardson v.

Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688, 690 (1990). In

contrast, the transcript upon which husband relies indicates that

the agreement was characterized as an "outline." The agreement

also failed to address significant marital property interests

held by the parties, most notably the parties' respective

pensions benefits.

4 Therefore, we cannot say the trial court abused its

discretion in failing to approve the parties' property settlement

agreement. III. Award of Attorney's Fees

A court's award of attorney's fees and costs is a matter

submitted to the sound discretion of the trial court 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). The key

to a proper award is reasonableness under all the circumstances. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985).

While husband contends that wife's suit was meritless, the

commissioner found the evidence supported wife's complaints

concerning husband's behavior towards her and the parties'

children, noting that "the marriage had nearly terminated because

of the factors proven by [wife]." Moreover, the trial court

indicated it had "taken into consideration the factors . . .

concerning who may be responsible for litigation or [a]

particular motion or so forth." The trial court noted also that

husband had used marital assets to pay some of his attorney's

fees and that husband had substantially higher income than wife.

Wife incurred $57,000 in attorney's fees, of which husband

was ordered to pay $20,000. Husband was also ordered to pay

$3,000 in costs. Based on the issues involved and the respective

abilities of the parties to pay, we cannot say that the award was

5 unreasonable or that the trial judge abused his discretion in

making the award. IV. Spousal Support

Husband challenges the trial court's award of spousal

support to wife, asserting that the trial court erred in failing

to impute annual income of $52,000 to wife. The testimony before

the trial court demonstrated that husband had been the primary

wage-earner for the family. When wife did work, it had been

primarily part-time. There was no year in which wife earned

$52,000. Moreover, the trial court found wife's testimony to be

credible. She testified that her current position alleviated the

need for child care and avoided unusual work hours "which would

be inappropriate, given [wife's] responsibilities and

circumstances." Cf. Butler v. Butler, 217 Va. 195, 197, 227

S.E.2d 688, 690 (1976) (father's decision to remain in lower-paid

position was "made in his own interest"). In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties. He is guided by the nine 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). The record demonstrates the trial court considered the

statutory factors and did not abuse its discretion. Therefore,

we affirm the trial court's decision awarding wife spousal

6 support.

Husband also requested spousal support in his Cross-Bill of

Complaint. While we cannot say on review that the trial court

abused its discretion in denying husband's request for spousal

support at this time, the trial court did err by failing to

reserve husband's right to seek spousal support in the future.

"[W]here there is no bar to the right of spousal support, it is

reversible error for the trial court, upon request of either

party, to fail to make a reservation in the decree of the right

to receive spousal support in the event of a change of

circumstances." Bacon v. Bacon, 3 Va. App. 484, 491, 351 S.E.2d

37, 41 (1986). Therefore, we reverse and remand to the trial

court for reservation of husband's right to seek spousal support

in the future. V. Interest in Husband's Pension

In the final decree, the trial court noted that the present

value of husband's "[Civil Service Retirement System] pension is

$75,085.00, and the marital share thereof is 96.92% or

$72,772.38." The court then awarded wife the following: [Wife] is awarded 35% of the gross amount of each pension payment due to [husband] pursuant to his Federal Government CSRS, in whatever manner the payments are made, whether by monthly allotment, or by lump sum payment, or by other means, and any payment due to [wife] shall be made directly to her . . . .

As entered, the order is erroneous. "A present value

calculation is of direct use only where payment of the portion of

7 the monetary award attributable to the pension is to occur

immediately rather than over a period of time." Zipf v. Zipf, 8

Va. App. 387, 397, 382 S.E.2d 263, 269 (1989). The trial court

choose not to make a present monetary award to wife comparable to

her share of husband's pension.

Instead, the trial court awarded wife a percentage of each

CSRS pension payment husband receives at the time it is paid out.

Under Code § 20-107.3(G)(1), a trial court may award a

percentage of any pension payout to the spouse, but the court

must ensure that the amount paid to the spouse does not exceed

fifty percent of the marital share. The trial court's award of thirty-five percent of husband's

CSRS pension at the time it is actually paid did not reflect an

award of only the marital share. While the marital share at the

time of trial was very nearly equal to husband's total pension,

the marital share of the total pension will diminish with

husband's continued employment.

Therefore, we reverse and remand for the trial court to

enter an order awarding wife her thirty-five percent portion of

the marital share of husband's pension, to be paid at the time

husband begins to receive his pension. The marital share may be

determined by use of a fraction, the numerator of which is the

number of months husband was employed and contributing to his

pension during the marriage and before the last separation of the

parties, and the denominator of which is the total number of

8 months of husband's employment. See Code § 20-107.3(G)(1).

Wife argues that the trial court erred by failing to award

her a survivor's annuity. As the issue of the equitable

distribution of husband's pension has been remanded, the trial

court may reconsider whether an award of a survivor's annuity is

warranted under the circumstances and in light of the statutory

factors set out in Code § 20-107.3(E). VI. Child Support

In response to wife's appeal, husband also seeks review of

the trial court's order setting child support. Husband alleges

the trial court erred by deviating from the statutory guidelines

without written findings, by failing to impute income to wife,

and by failing to include his child care expenses in its

calculation.

The trial court awarded child support based upon the

statutory guidelines, expressly deviating from the guideline

amount for split custody to include the additional costs for

private school and orthodontia. See Code §§ 20-108.1(B) and

20-108.2(G). Evidence was introduced to support those costs, and

the amounts of the deviations were included in the guideline

worksheet incorporated into the court's decree. The trial

court's order rebutted the presumptive correctness of the

statutory guideline amount with "enough detail and exactness to

allow for effective appellate review of the findings."

Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 897

9 (1991). Therefore, we find no reversible error in the trial

court's deviation from the statutory guidelines.

The trial court determined wife was not underemployed. This

decision was supported by credible evidence. We therefore find

no error in the trial court's decision not to impute income to

wife.

Husband presented no evidence during the trial court's

hearings concerning child care expenses. The only evidence

concerning child care was a summary attached to one of several

motions for reconsideration filed by husband after the close of

the trial. As husband did not present any evidence of his child

care costs during the trial, we cannot say the trial court erred

in refusing to include in its calculations any of those alleged

expenses. In summary, we reverse and remand the trial court's award to

wife of thirty-five percent of each payment received by husband

from his CSRS pension. The trial court may review its

determination concerning an award of a survivor's annuity, in

light of its decision concerning husband's pension. We also

reverse the trial court's failure to reserve husband's right to

seek spousal support in the future.

We affirm all other aspects of the trial court's decision.

Specifically, we affirm the finding that husband condoned wife's

adulterous relationship; the award to wife of spousal support,

attorney's fees, and costs; the refusal to incorporate the

10 property settlement agreement into the final decree of divorce;

and the determination of child support. Reversed in part, affirmed in part, and remanded.