COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Elder and Senior Judge Overton
SONYA P. BRUNDIDGE MEMORANDUM OPINION * v. Record Nos. 1457-00-1 and PER CURIAM 1830-00-1 JANUARY 30, 2001
LAWRENCE A. BRUNDIDGE
FROM THE CIRCUIT COURT OF YORK COUNTY Prentis Smiley, Jr., Judge
(Sonya P. Brundidge, on briefs), pro se.
(Roy H. Lasris; Lasris & Vannan, P.C., on brief), for appellee.
In Record No. 1457-00-1, Sonya P. Brundidge, wife, appeals an
equitable distribution award of the trial court. She contends the
trial court erred by: (1) including the Langley Federal Credit
Union checking account as marital property, valuing it at
pre-separation amounts, and accepting Lawrence A. Brundidge's
(husband's) evidence for these amounts; (2) "not attributing the
correct amounts for property during the equitable distribution
hearing"; and (3) finding that the pilot bonus annuity could not
be included in property for equitable distribution, then including
it as part of husband's income for support calculation purposes.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. In Record No. 1830-00-1, wife appeals an order of the trial
court concerning child and spousal support. On appeal, she argues
the trial court erred in: (4) finding that the pilot bonus
annuity was included as part of husband's income, but not
providing "a specific timeframe for said amount to be paid until a
certain dollar figure was realized"; (5) attributing the pilot
annuity as income, "yet there is no reflection of that
attribution"; (6) decreasing wife's support payments although
husband's income increased; (7) not requiring husband to pay
support payments in arrears; (8) not allowing wife to have a
payroll deduction order effectuated through the military pay
center; (9) not giving wife the opportunity to note her objections
on orders before they were signed by the trial court; (10) not
addressing child custody in the final decree or post-decree
orders; (11) awarding husband attorney's fees; (12) not making
wife designated beneficiary of the military Survivor Benefit Plan
and not giving her the opportunity to maintain the policy; (13)
accepting post-decree amendments without notice or evidence to
"confirm calculations"; (14) not ordering husband to maintain a
life insurance policy for the children and to maintain the
children as beneficiaries; (15) not ordering husband to pay
uninsured medical and dental expenses for the children that exceed
$100 per year; and (16) giving husband every Christmas holiday
with the children. Upon reviewing the record and briefs of the
parties, we conclude that these arguments are without merit.
- 2 - Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
"Under familiar principles, we view the evidence and all
reasonable inferences in the light most favorable to the
prevailing party below . . . ." Lutes v. Alexander, 14 Va. App.
1075, 1077, 421 S.E.2d 857, 859 (1992).
"The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." We are not the fact-finders and an appeal should not be resolved on the basis of our supposition that one set of facts is more probable than another.
Id. (citations omitted).
BACKGROUND
The parties were married in 1988 and separated in 1998. The
parties have three children. The trial court ordered an equal
division of the marital property based on husband's request.
However, the trial court found that an overall analysis of the
factors favored husband. The trial court awarded custody of the
children to wife with visitation to husband. In addition, the
trial court awarded wife monthly child support and spousal
support. More detailed facts are recited where the specific
issues are addressed in this opinion.
RECORD NO. 1457-00-1
I.
Wife contends the trial court erred by including the Langley
Federal Credit Union checking account as property for equitable
- 3 - distribution and valuing this account at pre-separation amounts.
She also asserts that the trial court erred in accepting husband's
testimony concerning the amount of money in the account. However,
the trial judge's notes indicate that at the April 13, 2000
hearing, the parties agreed wife withdrew $7,000 from this account
prior to the parties' separation and in anticipation of the
parties' separation. Husband later withdrew the remaining $3,650
after the parties separated. Thus, contrary to wife's assertion,
the record does not indicate that the trial court accepted only
husband's evidence as to the value of the account. Rather, the
parties agreed to the amount of money in the account.
Furthermore, wife admits in her objections to the equitable
distribution order that the account was a "common checking
account" used to pay for "living expenses" and "bills." The
record contains no evidence that the account was the separate
property of either party. Therefore, the money in the account was
properly classified as marital property to be distributed as part
of the equitable distribution award. Property is presumed to be
marital if it was "acquired by either spouse during the marriage,
and before the last separation of the parties," unless evidence
proves that the property is separate. Code § 20-107.3(A)(2).
Furthermore, "waste" is defined as the "dissipation of
marital funds in anticipation of divorce or separation for a
purpose unrelated to the marriage and in derogation of the marital
relationship at a time when the marriage is in jeopardy." Booth
- 4 - v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). "Once
the aggrieved spouse shows that marital funds were either
withdrawn or used after the breakdown, the burden rests with the
party charged with dissipation to prove that the money was spent
for a proper purpose." Clements v. Clements, 10 Va. App. 580,
586, 397 S.E.2d 257, 261 (1990). "When waste has occurred, the
court must include the wasted assets as marital property and must
consider the waste as a factor in determining the monetary award."
Booth, 7 Va. App. at 28-29, 371 S.E.2d at 573. Expenditures for
living expenses and counsel fees in the divorce do not constitute
waste. Id. at 28, 371 S.E.2d at 573. The record indicates that
wife failed to prove she used the $7,000 for living expenses.
Accordingly, the trial court did not err in including the $7,000
in the equitable distribution award.
In addition, the record contains no evidence from wife
concerning what she claims the value of the account was at the
time of the evidentiary hearing. The only evidence presented to
the trial court was that wife withdrew $7,000 from the joint
account prior to the parties' separation and that husband later
withdrew the remaining $3,650 and closed the account. Based on
this record, we cannot say the trial court abused its discretion
in choosing a valuation date other than the date of the
evidentiary hearing. See Code § 20-107.3(A).
- 5 - II.
Wife contends the trial court erred in "not attributing the
correct amounts for property" during the equitable distribution
hearing. In her argument, wife states, "This [equitable
distribution] order had inaccurate amounts attributed to various
investment accounts." However, wife fails to specify the
"investment accounts" to which she is referring. "Statements
unsupported by argument, authority, or citations to the record do
not merit appellate consideration. We will not search the record
for errors in order to interpret appellant's contention [nor]
correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va.
App. 53, 56, 415 S.E.2d 237, 239 (1992).
Wife also asserts that, for "further clarification," the
final equitable distribution order "should state that [wife] is
awarded her USAA IRA account and [husband] is awarded his USAA IRA
account." Upon our review of the final equitable distribution
order, we find that the order clearly specifies that wife was
awarded her USAA IRA account and husband was awarded his USAA IRA
account. Accordingly, wife's argument is without merit.
III.
Wife argues that the trial court erred in ruling that the
pilot bonus annuity could not be included as property for
equitable distribution, then adding the pilot annuity as part of
husband's income for support calculation purposes. However, the
record does not indicate that wife argued to the trial court that
- 6 - the pilot bonus should be part of the equitable distribution
award.
The record contains no transcripts and no written statement
of facts. Indeed, the trial court rejected wife's proposed
written statement of facts, finding that it was inaccurate and
contained descriptions of events that occurred outside of the
courtroom. As appellant, wife had the burden of providing a
record which substantiates her claims of error. See Jenkins v.
Winchester Dep't of Soc. Servs., 12 Va. App. 1178, 1185, 409
S.E.2d 16, 20 (1991). We are unable to determine from this
record the arguments made by wife and the trial court's rulings
concerning whether the pilot bonus annuities should be part of
the equitable distribution award.
[O]n appeal the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of.
Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57
(1961).
Furthermore, the trial court correctly ruled that the pilot
bonuses were a part of husband's gross income for purposes of
calculating support awards. In computing a party's gross income
for child support purposes, Code § 20-108.2(C) requires the
inclusion of "all income from all sources." Such income "shall
- 7 - include, but not be limited to, income from salaries, wages,
commissions, [and] bonuses . . . ." Code § 20-108.2(C).
Wife appears to make an argument concerning calculation
errors related to the bonuses. However, she points to no
specific errors of the trial court, she advances no argument in
support of her contention, and she cites no legal authority for
her contention. Therefore, we will not address this argument.
See Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239.
RECORD NO. 1830-00-1
IV. and V.
Wife argues the trial court erred in attributing the pilot
bonus annuity as part of husband's gross income, yet "no
attribution was made and no timeframe was given for this amount to
be paid until a certain dollar amount was realized." As addressed
above, the trial court correctly attributed the pilot bonus as
part of husband's gross income. Furthermore, by order entered on
August 23, 2000, the trial court included in husband's gross
income calculation the $6,640 pilot bonus husband received on
September 1, 1999. The trial court then recalculated husband's
spousal and child support obligations, prospectively and
retroactively to July 1, 2000. The evidence included only the
amount of husband's 1999 pilot bonus. The trial court could not
speculate as to the amount of future bonuses husband may receive,
if any. Accordingly, the trial court properly included the 1999
pilot bonus in husband's gross income calculation.
- 8 - VI.
Wife contends the trial court erred in decreasing the amount
of support she receives because husband did not request a decrease
and because the trial court lacked jurisdiction to modify the
awards. Wife appears to be arguing that the trial court erred in
making permanent spousal and child support awards in amounts that
were less than the amounts awarded to her in prior pendente lite
support orders.
The record indicates that on January 7, 2000, the trial court
awarded wife $1,425 per month in child support. The monthly
spousal support award in the order was $1,548 per month. The
final divorce decree entered on April 18, 2000 reserved
jurisdiction to make further determinations as to child and
spousal support. By order entered on July 12, 2000, the trial
court awarded wife $1,131 per month in periodic child support and
$1,150 per month in periodic spousal support. However, on August
23, 2000, the trial court entered an amended order to correct
clerical errors in the permanent child support award. In this
order, the trial court awarded wife $1,248 per month in periodic
child support.
Although the permanent periodic support awards were less than
the support amounts awarded in the January 7, 2000 pendente lite
court order, permanent support is separate and distinct from
pendente lite support. See Weizenbaum v. Weizenbaum, 12 Va. App.
899, 903-04, 407 S.E.2d 37, 39-40 (1991). Factors which the court
- 9 - must consider prior to an award of permanent support are not
required to be considered before an award of pendente lite
support. Cf. Code §§ 20-107.1 and 20-103. The record indicates
the trial court considered all of the factors required under Code
§§ 20-107.1 and 20-108.1 concerning the support awards.
Accordingly, we reject wife's argument that the trial court erred
in determining the amount of the support awards.
Furthermore, the record does not indicate wife argued to the
trial court that it lacked jurisdiction to make the permanent
support awards. See Rule 5A:18.
VII.
Wife makes no argument for this issue. Thus, we will not
address it. Buchanan, 14 Va. App. at 56, 415 S.E.2d at 239.
VIII.
Wife argues the trial court erred in not allowing her to
receive support through payroll deduction from the military
payment center. Code § 20-79.1 provides that the trial court has
discretion whether to require an involuntary payroll deduction for
support payments. Furthermore, Code § 20-79.1 provides
circumstances under which the trial court shall order such income
deductions. None of these circumstances apply here. Accordingly,
based on this record, we find that the trial court did not abuse
its discretion in refusing to require husband to pay support
through a mandatory payroll deduction.
- 10 - IX.
Wife argues the trial court erred in not allowing her the
opportunity to note her objections on court orders before the
trial court signed them. However, the record is replete with
wife's objections to the trial court's orders. Wife either noted
her objections in writing on the court's orders, or she filed
separate documents with the court noting her objections.
Therefore, we find wife was not denied the opportunity to object
to any of the trial court's orders.
Wife also contends she was not given the opportunity to
object to the final decree in this case. However, the record
indicates otherwise. The final divorce decree, entered on April
18, 2000, contains handwritten comments by wife regarding items
she wanted added to the decree. In addition, wife filed a
separate document entitled Motion Concerning Final Decree in which
she raised numerous concerns and objections regarding the final
divorce decree. Accordingly, we find that the trial court did not
deny wife the opportunity to voice her objections.
X.
Wife argues the trial court erred in not addressing child
custody in the final decree or post-decree order. In the final
divorce decree, entered on April 18, 2000, the trial court ordered
that all prior orders of the court remain in effect until
modified, and the trial court specifically reserved jurisdiction
to make further determinations related to child custody. The
- 11 - trial court had previously entered a pendente lite order
addressing child custody issues. On July 12, 2000, the trial
court entered the Spousal and Child Support Order and Attorney's
Fees Order, again addressing child custody matters. The July 12,
2000 court order provided for the maintenance, support, care and
custody of the children pursuant to Code § 20-79. Because the
child custody issues were addressed in this order, and because the
final divorce decree had specifically reserved jurisdiction to
address these issues at a later date, we find no error. "A court
speaks . . . through its orders." Cunningham v. Smith, 205 Va.
205, 208, 135 S.E.2d 770, 773 (1964). It is not necessary to
repeatedly address all the issues in a case in every order entered
in the case.
XI.
Wife contends the trial court abused its discretion in
ordering her to pay $7,000 in husband's attorney's fees.
"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. The key to a proper award of counsel
fees is reasonableness under all the circumstances." Brooks v.
Brooks, 27 Va. App. 314, 319, 498 S.E.2d 461, 463-64 (1998)
(citations omitted).
On April 3, 2000, the trial court entered an order finding
wife in contempt of court for intentionally frustrating husband's
contact with the children and for denying him visitation ordered
- 12 - by the trial court. The trial court ordered wife to spend thirty
minutes in jail, and it suspended wife's spousal support until
further order of the court. The record also indicates wife failed
to timely comply with discovery orders. Therefore, based on the
issues involved and wife's conduct during the proceedings, the
award was reasonable, and the trial court did not abuse its
discretion in making the award.
Wife also argues in her brief that the trial court lacked
jurisdiction to award attorney's fees pursuant to Rule 1:1. On
the contrary, the record shows that the trial court retained
jurisdiction over the case at the time it entered the award of
fees.
XII.
Wife contends the trial court erred in not making her the
beneficiary of husband's military survivor benefit plan. Under
Code § 20-107.3(G)(2), the trial court may order that a spouse be
designated as irrevocable beneficiary of a survivor benefit plan.
Therefore, the trial court has discretion in deciding whether to
order the designation of wife as an irrevocable beneficiary.
Based on this record and the facts of this case, no evidence
supports a finding that the trial court abused its discretion in
refusing to order husband to designate wife as an irrevocable
beneficiary.
- 13 - XIII.
Wife contends the trial court erred in signing the August 23,
2000 amended post-decree order "without having the proper
evidentiary documents to confirm calculations." In her argument,
wife asserts that the trial court violated Rule 1:1 when it
entered the order more than twenty-one days after the entry of the
July 12, 2000 order.
The August 23, 2000 order is entitled, "Amended Order On Post
Decree Motions to Correct Clerical Errors." This order corrects
clerical errors contained in the July 28, 2000 court order related
to monthly spousal and child support payments.
Code § 8.01-428(B) provides:
Clerical Mistakes.--Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order.
On this record, we cannot say the trial court erred in
amending the July 28, 2000 order. Moreover, we note that the
clerical corrections were beneficial to wife.
XIV.
Wife argues the trial court erred in failing to order husband
to maintain an existing life insurance policy for his children and
to name them as beneficiaries. Code § 20-108.1(D) provides that
the trial court:
- 14 - shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance . . . .
On this record, we find that the trial court acted within its
statutory authority based upon the evidence presented.
XV.
Wife argues the trial court erred in not ordering husband to
pay for uninsured medical and dental expenses for the children
that exceed $100 per year. As wife correctly states, the pendente
lite order provided that husband was to pay one hundred percent of
any uninsured medical and dental bills for the children. Although
the final Spousal and Child Support Order did not address
uninsured medical and dental bills, the order states that "all
previous orders regarding the support, [and] care" of the children
"are continued in full force and effect," with the exception of
child support payments. Accordingly, husband is required to pay
the uninsured medical and dental expenses of the children.
Therefore, wife's argument is without merit.
XVI.
Wife argues the trial court erred in awarding a visitation
schedule in which husband spends the Christmas holiday with the
children. She contends the trial court's order bars her from
sharing the holiday with her children.
- 15 - Determination of visitation rights is a matter of judicial
discretion. See Eichelberger v. Eichelberger, 2 Va. App. 409,
412, 345 S.E.2d 10, 11 (1986). We will not set aside the trial
court's decision on visitation unless plainly wrong or without
evidence to support it. Farley v. Farley, 9 Va. App. 326, 328,
387 S.E.2d 794, 795 (1990).
The trial court awarded wife sole custody of the children.
The trial court entered a pendente lite order allowing husband
"reasonable visitation" with the children. By order entered on
January 7, 2000, the trial court found that wife committed acts
"specifically designed to frustrate the pendente lite order" and
"deliberately and intentionally aimed at denying" husband contact
with his children. The trial court then ordered the visitation
schedule that provided husband would have visitation with the
children from "Christmas Day at 12:00 noon and ending on New
Year's Day at 12:00 noon." The order clearly provides that wife
will spend Christmas Day with the children until 12:00 noon.
Therefore, she is not denied the opportunity to spend the
Christmas holiday with the children. Furthermore, under these
circumstances, we cannot say the trial court abused its discretion
in ordering the visitation schedule.
Accordingly, the decision of the trial court is summarily
affirmed.
- 16 -