Peter W. Pantazes v. Patricia K. Drew Pantazes

• Court: Court of Appeals of Virginia
• Decided: December 5, 2000
• Docket: 0129004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata Argued at Alexandria, Virginia

PETER W. PANTAZES MEMORANDUM OPINION * BY v. Record No. 0129-00-4 JUDGE JAMES W. BENTON, JR. DECEMBER 5, 2000 PATRICIA K. DREW PANTAZES

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY M. Langhorne Keith, Judge

Chanda L. Kinsey (Kinsey, Lynch & Filipour, on briefs), for appellant.

Michael A. Ward (Gannon, Cottrell & Ward, P.C., on brief), for appellee.

Peter W. Pantazes appeals the final decree of divorce in

which the trial judge awarded spousal support to his wife,

Patricia K. Drew Pantazes, and distributed the couple's marital

property. He presents five issues for review. We affirm the

trial judge's ruling on all issues.

I.

The evidence proved that the parties were married in 1981,

that the husband attempted but failed to start a business between

1981 and 1984, and that he returned to work in 1986. He then held

various jobs until 1991 when he began employment with the

Department of Housing and Urban Development, where he still works.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The wife was employed at the Small Business Administration before

the marriage. During the marriage, she was employed in various

positions until 1989 when she became disabled. In 1992, she began

receiving disability checks.

The parties purchased a condominium in 1987. The husband

testified that after he moved away in March 1994, he continued to

make payments on the condominium in the amount of $1,000 a month

until November 1997. He ceased making payments on the marital

home after the wife inherited a substantial sum from her mother.

In the final decree, the trial judge ordered, inter alia,

that the wife would receive 60% of the jointly owned

condominium, that she would have the right to purchase the

husband's share of the condominium, and that the husband should

immediately transfer 50% of his interest in the Thrift Savings

Plan to the wife. The judge also ordered that the wife would

receive $1,000 a month in spousal support and that the husband

must pay $15,000 of the wife's attorney's fees.

II.

The husband argues that the trial judge erred in allowing the

wife to amend her cross-bill of complaint on the day of trial to

include a request for spousal support and in awarding spousal

support even though the wife never filed an amended pleading.

The record establishes that the husband filed a bill of

complaint on November 12, 1997, seeking a divorce a vinculo

matrimonii. The wife filed an answer and a cross-bill of

- 2 - complaint. Although both parties asked for a distribution of the

marital property in their pleadings, neither requested spousal

support. In January 1999, the wife filed a motion for spousal

support pendente lite and a notice of hearing. The husband

testified that he began paying spousal support of $375 per month

in April 1999 following the pendente lite hearing. Several months

later, the wife filed a notice to set a hearing on all the issues

in the case, including "spousal support." The parties then agreed

to a trial date on those issues.

Prior to the taking of evidence at trial, the husband sought

sanctions for the wife's failure to provide discovery and moved to

bar evidence regarding spousal support because the pleadings did

not request spousal support. Arguing that pendente lite support

had been awarded and that the parties had engaged in discovery

concerning spousal support, the wife orally moved "to amend [the]

pleadings to make a request for permanent spousal support." The

wife indicated she would not oppose a continuance if the husband

required additional preparation as a result of her motion.

The trial judge found that the husband "can[not] claim

surprise that support is an issue when there has been the amount

of discovery in this case, and . . . unobjected to pendente lite

[support]." He granted the oral motion to amend the pleadings and

also ruled, however, that the wife was precluded from asserting

that she received from her mother's estate less than $228,348,

which was the amount represented by husband's counsel.

- 3 - We have previously held that a court may not award support

without a request in the pleadings. Boyd v. Boyd, 2 Va. App. 16,

19, 340 S.E.2d 578, 580 (1986). "The office of pleadings is to

give notice to the opposing party of the nature and character of

the claim, without which the most rudimentary due process

safeguards would be denied." Id. Whether to grant an amendment

to pleadings, however, is a matter resting within the sound

discretion of the trial judge. Kole v. City of Chesapeake, 247

Va. 51, 57, 439 S.E.2d 405, 409 (1994). Furthermore, Rule 1:8

provides that "[l]eave to amend shall be liberally granted in

furtherance of the ends of justice."

The record supports the trial judge's rulings that the

husband had notice that spousal support would be an issue and

that the husband was not prejudiced by allowing this amendment.

The record establishes the parties exchanged information

regarding income and expenses, and it supports the trial judge's

ruling that the discovery was sufficient to allow the husband to

contest the spousal support issue. Furthermore, the husband

made no showing at the hearing that he needed additional

discovery. When the wife offered to agree to a continuance, the

husband did not assert that he needed more discovery.

Accordingly, we hold that the trial judge did not abuse his

discretion in allowing the wife to amend her pleading on the day

of trial.

- 4 - Furthermore, the absence of a written amended pleading does

not void the final decree. If the office of the pleading is to

provide notice, then the husband received sufficient notice of

the spousal support issue through the correspondence with the

wife's counsel and the notice to set a hearing date for spousal

support issues. The holding in Boyd does not affect our ruling

on this issue because in that case no party ever gave notice of

a request for spousal support in any form. Here, the wife gave

notice of her intent to request support.

III.

The husband argues that the trial judge abused his discretion

in his evidentiary findings and, consequently, in ordering

equitable distribution of marital property and spousal support in

accordance with the factors listed in Code §§ 20-107.1 and

20-107.3.

When a judge makes findings in a divorce proceeding in which

the parties present evidence ore tenus, those findings "are

entitled to the weight of a jury verdict and will not be disturbed

unless they are plainly wrong or without evidence to support

them." Lapidus v. Lapidus, 226 Va. App. 575, 580, 311 S.E.2d 786,

789 (1984). This principle applies particularly where the

credibility of witnesses is crucial to the determination of facts

and the trial judge makes findings based upon an evaluation of the

testimony of those witnesses. Gottlieb v. Gottlieb, 19 Va. App.

77, 83, 448 S.E.2d 666, 670 (1994). In the present case, the

- 5 - judge stated that "the credibility of witnesses is key to the

court's decision," and he found that "[the husband] was – to put

it mildly – not a credible witness."

The husband argues nevertheless that the trial judge erred in

determining his contributions to the marriage, monetary and

non-monetary, as required by Code §§ 20-107.1(E)(6) and

20-107.3(E)(1). The husband emphasizes his employment history, in

particular. The trial judge found, however, that "[t]he evidence

was very clear that [the husband], in essence, was unemployed from

the time of the marriage until 1991. . . . [I]t wasn't until 1991

that he went to work for the federal government at a significant

wage." The husband claims that such conclusions ignore the fact

that he returned to work in 1986 and that he supported his wife

after her disability.

Because the husband acknowledges that he was essentially

unemployed for the first five years of the marriage and because of

the limited salary of his employment before working for the

federal agency, the judge found that the husband's pre-1991

employment was "marginal." Furthermore, the judge relied on other

evidence of contributions, such as the wife's steady employment

history until the time of her disability and her receipt of

disability payments after that time. For these reasons, we cannot

say that the judge erred in finding that the contributions factors

favored the wife.

- 6 - In determining the "standard of living established during the

marriage," see Code § 20-107.1(E)(2), the trial judge found that

the parties had maintained a high standard of living and "ran in

. . . high political circles." The husband argues that the wife's

political appointment preceded the marriage and that the only

evidence on the issue indicated that their lifestyle was "modest."

This characterization, however, came from the husband's testimony,

which the trial judge found not to be credible. Furthermore,

other testimony supports the trial judge's finding that the

standard of living was "above normal" and provides other examples

of the couple's social and volunteer activities. Therefore, the

judge's rulings were not plainly wrong or without evidence to

support them.

The husband also argues that the trial judge impermissibly

ignored evidence that the wife had inherited income of $228,348

invested at a 10.4% interest rate and, therefore, the judge erred

when he determined the obligations, needs and financial resources

of the parties and their property interests, in accordance with

Code § 20-107.1. The husband claims that the judge's actions

constitute impermissible refusal to consider all the factors.

Before trial, the judge sanctioned the wife for refusing to

respond to discovery requests and ruled that the wife could not

present evidence that she had received less than $228,348 from her

mother's estate. Precluding the wife from presenting evidence on

this issue did not bind the judge to find the husband's evidence

- 7 - credible. For instance, the husband's evidence that the wife had

$228,348 included bank statements that were several years old; one

was from January 1984. Thus, there was not "sufficient evidence"

for the judge "to classify or evaluate marital or separate

property," and the trial judge was free to ignore this evidence.

Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987).

The husband also argues that the judge should not have found

him to be less credible than the wife. On brief and at oral

argument the husband speculated that the trial judge was affected

more by the impeachment of the husband than of the wife because

his impeachment occurred on the witness stand and hers occurred in

documents submitted to the court. We will not presume the trial

judge decided the issues in this case in this manner. The trial

judge has the discretion to believe or disbelieve evidence as long

as his findings have a credible basis.

The husband makes similar arguments regarding the tax

consequences of the property distribution, the age of the parties,

the date of acquisition of the condominium, the wife's income and

expenses, and the debts of the parties at the time of separation.

We find that the trial judge corrected any significant errors that

he made prior to issuing the final decree, that any remaining

errors were harmless, and that the trial judge correctly made

rulings based upon the credibility of the parties. See McDavid v.

McDavid, 19 Va. App. 406, 413, 451 S.E.2d 713, 718 (1994).

- 8 - IV.

The husband next contends that the trial judge erred in

ignoring the parties' stipulation that the wife shall receive a

50% share of his Thrift Savings Plan, "if as and when received."

Instead, the trial judge ordered an immediate transfer of this

asset. The husband argues that this ruling violates Code

§ 20-109.1 (providing for the affirmation of separation agreements

between parties) and Hart v. Hart, 27 Va. App. 46, 62, 497 S.E.2d

496, 503-04 (1998) (holding that a trial judge may not enter a

decree that is inconsistent with a valid agreement of the

parties). The husband's argument is not persuasive.

During the husband's testimony acknowledging he had a savings

plan, the following occurred:

Q. All right, sir. Do you also participate in the Thrift Savings Plan?

A. Yes, sir.

Q. Have you participated in the Thrift Savings Plan since the beginning of your employment in 1991?

[Husband's Counsel]: Your Honor, just to let the court know, my client will not object to [the wife] receiving 50 percent of the marital share of those plans.

THE COURT: All right.

[Wife's Counsel]: If as of and when he receives it?

[Husband's Counsel]: If as of and when he receives it.

- 9 - Although the parties said they would split evenly this

interest "if as . . . and when . . . receive[d]," no evidence

proved this asset was anything other than one immediately

available to the husband. The trial judge stated that the intent

of this agreement was "to do a normal marital share split." Thus,

he ruled that the interest in the plan "is going to be transferred

right now, that is what you do with thrift savings plans. . . .

[T]here is no if, as, and when as to a thrift savings plan."

The judge did not violate either the law or the stipulation

of the parties. The trial judge simply ruled concerning when the

moneys were available to the husband. The judge found that the

intent of the parties was to transfer the interest when it was

available. No evidence proved the funds were not immediately

available to the husband without discount. Thus, the trial judge

ruled in his discretion that the husband should receive and

transfer the interest immediately.

V.

The husband contends the trial judge should have ordered

the wife to re-finance the condominium mortgage to diminish her

need for spousal support. He argues that the judge's refusal to

do so, coupled with the decision to allow the wife to purchase

the husband's share of the condominium, was an abuse of

discretion. We disagree.

In Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635

(1992), we found an abuse of discretion when the trial judge

- 10 - linked the distribution of property under Code § 20-107.3

directly to the award of spousal support under Code § 20-107.1.

We ruled that the trial judge erred when he "fashioned" a

spousal support award "primarily for [the] purpose" of providing

"the financial means by which [the wife] could satisfy the

monthly mortgage obligations on the marital property she sought

and received under the provisions of Code § 20-107.3." 14 Va.

App. at 576, 421 S.E.2d at 646. We noted that maintaining an

appropriate separation "prevents a 'double dip' by a spouse who

seeks and receives encumbered property under Code § 20-107.3 and

also seeks and receives spousal support under Code § 20-107.1."

14 Va. App. at 577, 421 S.E.2d at 646-47.

In this case, although the trial judge ordered the spousal

support award at the same hearing at which he ordered the

parties to sell the home, he did not link the two. Responding

to the wife's request, he later amended that ruling to allow the

wife to retain the home and purchase the husband's share. Thus,

the order of spousal support preceded the wife's purchase of the

home. These facts distinguish this case from Gamble. We can

determine no impermissible connection between the spousal

support award in this case and the mortgage payments. Although

a reduction in the wife's mortgage payment might bear upon the

wife's expenses, and, thus, be a factor in her need for spousal

support, we cannot say the trial judge abused his discretion in

refusing to order the refinancing of the existing mortgage.

- 11 - VI.

The husband contends that the trial judge abused his

discretion in ordering him to pay the wife's attorney's fees.

The husband argues that the wife's recalcitrance in responding

to discovery requests and in answering questions at her

deposition added significantly to the legal bills she

accumulated. He also argues that her financial resources exceed

his.

An award of attorney's fees in a divorce case is a matter

within the sound discretion of the trial judge, and we will not

disturb such a decision absent an abuse of discretion. Broom v.

Broom, 15 Va. App. 497, 502, 425 S.E.2d 90, 93 (1992). If a

"'wife needs and is entitled to maintenance and support and the

husband has the financial ability to meet those needs,'" then

the trial judge has the authority to award attorney's fees to

the wife. 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)).

The trial judge found that the wife's income was

substantially less than the husband's because of her disability.

In arguing that the wife's resources surpass his own and,

therefore, she should pay her own attorney's fees, the husband

is merely asking us to revisit the substantive issues in the

case. The trial judge's findings were based on the evidence in

- 12 - the case. Thus, we find no abuse of discretion in the award of

attorney's fees to the wife.

For these reasons, we affirm the judgment.

Affirmed.

- 13 -