Timothy James Silvester v. Susal Lee Silvester

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Elder and Bray Argued at Salem, Virginia

TIMOTHY JAMES SILVESTER MEMORANDUM OPINION * BY v. Record No. 0515-96-3 CHIEF JUDGE NORMAN K. MOON DECEMBER 31, 1996 SUSAN LEE SILVESTER

FROM THE CIRCUIT COURT OF BEDFORD COUNTY William W. Sweeney, Judge Edward D. Barnes (Charles E. Powers; Joseph E. Mayer; Edward D. Barnes & Associates, P.C., on brief), for appellant.

John K. Taggart, III (Patricia D. McGraw; Tremblay & Smith, on brief), for appellee.

Timothy James Silvester appeals the judgment of the circuit

court deciding matters of spousal support, custody, and equitable

distribution. Appellant contends the circuit court erred in: (1)

evaluating appellant's medical practice; (2) awarding forty

percent of appellant's medical practice and office building to

appellee; (3) awarding spousal support prior to issuing its

ruling on equitable distribution; (4) awarding spousal support in

an amount of $3,500 per month; (5) awarding spousal support based

on a financial situation created by the recipient's spending

habits; (6) refusing to impute income to appellee for purposes of

determining spousal support; (7) refusing to impute income to

appellee for purposes of calculating child support; (8)

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. calculating child support without including in the gross income

of the party requesting child support the spousal support which

was awarded her; and (9) awarding $8,000 in attorney's fees. We

affirm the judgment.

The parties were married on December 27, 1969. Four

children were born to the marriage, the first in 1972 and the

last and only minor in 1980. They separated on June 20, 1993. A

divorce decree was granted to appellant on October 13, 1994, on

the grounds that the parties had lived separate and apart for

more than one year. When they married, appellant was in graduate school. Six

months later he completed graduate school and entered medical

school. He was in medical school for four years and subsequently

pursued five additional years of residency and practice before

moving to Lynchburg, Virginia. During the nine years in which he

was receiving his medical education, he borrowed money, worked as

a resident, and for the summer held part-time jobs. During this

time, appellee worked for two periods earning between $250 and

$300 a week in each position.

Once they relocated to Lynchburg, appellant borrowed $60,000

to $70,000 to begin his practice as a plastic surgeon. The

practice grew steadily and he added two partners. In the 1980's

one of the partners became sick and business problems developed.

The practice incurred substantial debt during the 1990's.

Appellee did not contribute to the practice or participate in

appellant's activities to establish himself in the medical

- 2 - community.

During the course of the marriage appellee managed the home

and tended to the day-to-day duties of raising the children.

Appellant's annual income eventually reached approximately

$175,000. Appellee was not employed during this period. Marital

troubles developed regarding family finances. Appellee concealed

from appellant some of her debts. She spent more than $75,000 on

clothing and accessories. She also borrowed without appellant's

knowledge. In 1988, appellee inherited approximately $390,000 from her

mother. At separation her account balance was $269,000. At the

final hearing her account balance was $10,000.

In the trial court's February 14, 1996 final decree, (1)

custody of Chris, the only minor child, was awarded to appellee;

(2) child support was based on the statutory guidelines without

deviation; (3) spousal support was set at $3,500 with no income

imputed to appellee; (4) appellant's share in his medical

practice was valued at $70,000 and sixty percent was awarded to

appellant and forty percent to appellee; (5) appellant's share in

his office building was valued at $41,456 and sixty percent was

awarded to appellant and forty percent to appellee; and (6)

appellee was awarded $8,000 in attorney's fees and an additional

sum not to exceed $1,000 in costs.

Valuation of Medical Practice Appellant's expert valued appellant's interest in his

medical practice at $65,275, and appellee's expert valued the

- 3 - practice at $79,333. However, appellant's expert admitted that

had he been aware of certain other assets, he would have valued

appellant's interest at $75,941.

Where experts offer conflicting testimony it is within the

purview of the trial court to determine credibility. Reid v.

Reid, 7 Va. App. 553, 563, 375 S.E.2d 533, 539 (1989). Here, the

court heard evidence by both parties' experts who offered their

opinions on the value of the appellant's interest, valuations

which included both experts' recognition of the buy-sell

agreement controlling the stock. Contrary to appellant's

argument on brief, in Bosserman v. Bosserman, we did not uphold the trial court's use of a buy-sell agreement to value closely

held stock. 9 Va. App. 1, 7, 384 S.E.2d 104, 108 (1989). We

held that such an agreement is a factor to be considered in

valuing an asset, but it is not conclusive as to the value. Id.

The trial court was not plainly wrong in deciding the value

of $70,000, and was not bound to select the specific value

offered by either party's expert, regardless of their relative

qualifications as experts. See Zipf v. Zipf, 8 Va. App. 387,

394, 382 S.E.2d 263, 267 (1989). We find there is sufficient

evidence in the record to support the trial court's valuation. Award of Forty Percent of Practice and Office Building to Appellee

The trial court's award is not to be disturbed on appeal

unless plainly wrong or without evidence to support it.

Bosserman, 9 Va. App. at 5, 384 S.E.2d at 107. The trial court,

- 4 - after noting its consideration of all the factors prescribed by

Code § 20-107.3, awarded appellee forty percent of appellant's

interest in his medical practice and in the office building.

"The purpose of Code § 20-107.3 is to fairly divide the value of

the marital assets acquired by the parties during marriage with

due regard for both their monetary and nonmonetary contributions

to the acquisition and maintenance of the property and to the

marriage." Bosserman, 9 Va. App. at 5, 384 S.E.2d at 107 (citing Robinette v. Robinette, 4 Va. App. 123, 130, 354 S.E.2d 808, 811

(1987)).

Here, the trial court determined that appellant's interest

in his medical practice and the office building was marital

property. Appellant argues that the trial court erred because

the court's award is not reconcilable with several of the factors

prescribed in Code § 20-107.3. Specifically, appellant argues

that his contributions both to the overall marital estate, and to

the practice and office building, vastly exceeded appellee's

contributions to the same assets.

While it is evident that appellant was almost entirely

responsible for the development and success of his practice, the

record also contains considerable evidence of appellee's

nonmonetary and monetary contributions to the marital estate.

Appellee and appellant were married for a period of twenty-five

years and during that time appellee was almost solely responsible

for the upkeep of the marital residence and the raising of the

children. In addition, appellee's parents contributed to the - 5 - parties' marital estate, purchasing automobiles for them and,

until the death of appellee's mother, paying all of the private

educational expenses of the children. Appellee's inheritance,

while used in part for appellee's extensive purchasing of clothes

and accessories, was also contributed to the marital estate.

Appellee's separate funds were used to pay for various trips for

the family, for the purchase of household items, and for the

support of the children. Appellee used $139,000 to pay the

children's educational expenses; $5,000 was used in the purchase

of the office building. Appellee's maintenance of the family home, support of the

parties' children, and use of a significant portion of her

separate assets for these causes allowed appellant to devote his

time and energies to the development of his practice. The trial

court was not plainly wrong in finding that the wife's

nonmonetary and monetary contributions to the marriage were

substantial. Thus, we find there is evidence in the record of

the trial court's consideration of the factors prescribed by Code

§ 20-107.3(E) and that the evidence was sufficient to support the

findings of the trial court.

Spousal Support

Code § 20-107.1 delineates the specific factors to be

considered by the trial court in determining spousal support. In

making a spousal support award, the trial court has broad

discretion, and on appeal the award will not be reversed unless

plainly wrong or without evidence to support it. Gibson v.

- 6 - Gibson, 5 Va. App. 426, 434, 364 S.E.2d 518, 523 (1988). Here,

the trial court's consideration of the statutory factors is

evidenced by the court's statement that "[p]ursuant to § 20-107.1

. . . spousal support is set at $3,500 per month."

Appellant properly notes that mere recitation that the

factors have been considered is insufficient. Id. at 435, 364

S.E.2d at 523. "[W]e must examine the record to determine if the

award is supported by evidence relevant to those factors." Id.

Provided the record indicates the court's consideration of the

factors prescribed by Code § 20-107.1, the trial court need not

disclose the totality of its considerations nor must the trial

court address each factor point by point in its opinion. Here,

the record contains evidence relating to the statutory factors

with which to make an award. Accordingly, we hold that the

record does not show that the trial court failed to consider the

appropriate factors or to accord them proper weight within the

bounds of his discretion. Imputation of Income

Appellant argues that the trial court erred in not imputing

income for purposes of determining spousal and child support

because the record indicates that appellee is voluntarily

underemployed. Appellant also argues that the trial court erred

by not considering income appellee receives from her personal

assets and income that will be generated by appellee's portion of

the equitable distribution award.

A party seeking spousal support is obligated to earn as much

- 7 - as they reasonably can in order to reduce the amount of support

needed. Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396

S.E.2d 675, 679 (1990). In keeping with this principle a court

may, under appropriate circumstances, impute income to a party

who seeks spousal support. Id. However, we have also previously

held that "the court, in setting support awards, must look to

current circumstances and what the circumstances will be `within

the immediate or reasonably foreseeable future,' not to what may

happen in the future. Id. at 734-35, 396 S.E.2d at 679 (quoting

Young v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986)).

Here, appellee was forty-four years of age, possessed a

two-year degree and had no appreciable work experience as she was

a full-time mother and homemaker during the parties' twenty-five

years of marriage. Appellee is considerably less well suited for

reentering the job market than was the wife in Srinivasan, where

we concluded that despite the fact that the wife possessed a

Ph.D. and had taught at George Mason University, the court

improperly imputed income to her. Id. at 735, 396 S.E.2d at

679-80. We found that "Mrs. Srinivasan, at the time of divorce,

was leading the life style she was accustomed to during the

marriage . . . [and] the evidence did not support a finding that

she had unreasonably refused to accept employment as of the date

of divorce and she was thus entitled to a reasonable time to

secure employment." Id. at 735, 396 S.E.2d at 679. Such a

finding is also appropriate here. If, after a reasonable time,

appellee unreasonably refuses to seek or accept employment, the - 8 - imputation of income may be justified. Further, no evidence was

presented as to the availability of a position for which appellee

was qualified, or what the amount of income would be for such

position.

Appellant's arguments regarding the court's failure to

consider the income wife could have earned or will earn from her

separate assets and the assets obtained via the equitable

distribution award are also unpersuasive. Although appellee did

receive substantial inheritance from her mother, evidence was

presented that those funds have since been all but exhausted. As

noted, in making a support award and determining whether to

impute income, the trial court must look at the present

circumstances of the parties. Id. The record indicates that the

trial court considered the assets to be awarded wife and those

separate assets remaining to her in making its support award and

refusing to impute income. The wife had considerable debt

including attorney's fees which she would be required to pay with

her current assets. Imputation of income is within the trial

court's discretion. Here, credible evidence supported the trial

court's decision that imputation of income was not appropriate,

and thus no abuse of discretion is proved. Child Support

Appellant asserts that the trial court erred in calculating

child support without including appellee's spousal support in her

gross income. We need not reach this issue as the question is

moot because the dependent child for whom support was ordered now - 9 - lives with appellant. Even assuming an error in the calculation

of the amount of the child support, appellant is not entitled to

restitution. See Reid v. Reid, 245 Va. 409, 415, 429 S.E.2d 208,

211 (1993).

Attorney's Fees

The award of attorney's fees is a matter vested in the sound

discretion of the trial court and is reviewable on appeal only

for an abuse of discretion. Alphin v. Alphin, 15 Va. App. 395,

425 S.E.2d 572 (1992). The trial court awarded appellee $8,000

in attorney's fees and a sum not to exceed $1,000 for costs. At

trial appellee testified that she had incurred fees in excess of

$30,000 and expenses in excess of $1,000. The lengthy nature of

the proceedings and the complexity of the deliberations are also

apparent from the record. We find that the trial court's award

of attorney's fees was not excessive. Accordingly, we affirm the trial court's award.

Affirmed.

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