COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and Alston
Argued at Salem, Virginia
ROBERT BRIAN STEPHENSON
MEMORANDUM OPINION * BY
v. Record No. 1903-09-3 JUDGE WILLIAM G. PETTY
MAY 18, 2010
DONNA LYNN MUSGRAVE
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
James R. Swanson, Judge
Neil E. McNally (Key, Tatel & McNally, P.C., on briefs), for
appellant.
Frank K. Friedman (John Gregory, Jr.; Woods Rogers PLC, on
brief), for appellee.
On July 29, 2009, the trial court entered a final decree of divorce between appellant,
Robert Brian Stephenson (“husband”), and appellee, Donna Lynn Musgrave (“wife”). On
appeal, husband argues that the trial court erred when it (1) designated certain assets as marital
waste, (2) valued husband’s office building without considering alleged adverse market
conditions, (3) failed to consider husband’s health and disability, 1 (4) admitted testimony of a
marriage counselor for the purpose of establishing an intent by husband to dissipate the marital
assets, (5) awarded wife $72,000 in attorneys’ fees, and (6) did not reserve husband the right to
seek spousal support in the future. 2
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Husband raises his health and disability with respect to the equitable distribution and his
later request for a reservation of the right to seek spousal support in the future.
2
We have modified the order of these issues as originally presented by husband in light
of the additional issues presented by wife in her brief.
Wife argues that we should not consider the substance of husband’s first five arguments
because husband voluntarily paid the equitable distribution and attorneys’ fees, thus barring his
right to appeal those issues. Wife further argues that the trial court did not abuse its discretion
when it failed to reserve the husband’s right to seek spousal support in the future. Wife finally
asks us to award attorneys’ fees related to this appeal pursuant to Code § 20-99(5).
For the following reasons, we agree with wife that husband made a voluntary payment of
the equitable distribution award and attorneys’ fees and that payment bars his right to appeal
those issues. However, we agree with husband that the trial court erred when it failed to reserve
his right to seek spousal support in the future. Finally, we deny wife attorneys’ fees related to
this appeal.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.
On appeal, we view those facts and incidents in the “light most favorable” to the prevailing party
below, in this case wife, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003), and we grant to her all fair inferences flowing therefrom, Coleman v. Commonwealth, 52
Va. App. 19, 21, 660 S.E.2d 687, 688 (2008).
Husband and wife married in 1993. Over the course of their marriage, they amassed
substantial assets valued altogether at several million dollars. The marriage subsequently
deteriorated, and in November of 2004 they filed for divorce.
On January 23, 2009, the trial court issued a letter opinion announcing its decision
regarding the issues before us. In that opinion, the court ruled that husband should pay
$3,061,698.47 to satisfy the equitable distribution. The court further ruled that husband should
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pay $72,000 in attorneys’ fees to wife as the result of his duplicitous behavior in attempting to
secrete assets. The letter opinion gave husband 150 days to pay the award. If unpaid after 150
days, the court said that it would convert the award to a judgment, and that judgment would
accrue interest. Finally, the court failed to reserve husband’s right to seek spousal support in the
future based on husband’s significant present assets and his behavior during the divorce.
Just before the expiration of the 150-day period, husband paid the above award in full.
He did so by tendering two checks to wife’s counsel, the first directing payment to wife in the
amount of $3,061,698.47, and the second directing payment to wife’s attorney in the amount of
$72,000. On July 29, 2009, the trial court issued a final divorce decree reflecting the
assessments of its previous letter opinion and further indicating that husband had paid the award.
This appeal followed.
II.
A. Voluntary Payment
Husband asserts several points of error by the trial court related to its award, with respect
to both the equitable distribution 3 and attorneys’ fees. However, wife argues that we should
dismiss these points of error because husband fully and voluntarily paid the trial court’s award.
For the reasons that follow, we agree with wife and therefore we do not reach the merits of these
issues.
“Voluntary payment of a judgment deprives the payor of the right of appeal.” Citizens
Bank and Trust Co. v. Crewe Factory Sales Corp., 254 Va. 355, 355, 492 S.E.2d 826, 826 (1997)
3
The equitable distribution award necessarily depends upon the trial court’s
determination with respect to marital waste, the value of husband’s office building, and
husband’s health and disability. Husband’s objection regarding the admission of the testimony
of the couple’s marriage counselor, Dr. Bundy, also exclusively relates to the award granted by
the trial court under the equitable distribution. Dr. Bundy’s testimony was submitted solely to
demonstrate husband’s contemplation of divorce, and therefore to show that husband intended to
dissipate marital assets, thus leading to the aforementioned marital waste.
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(hereinafter Citizens Bank) (citing Carlucci v. Duck’s Real Estate, Inc., 220 Va. 164, 166, 257
S.E.2d 763, 765 (1979)). In Citizens Bank, the Supreme Court held that a party voluntarily paid
a judgment when, three days after entry of the judgment, he sent a check to appellee in the full
amount of the judgment “before any proceedings were instituted to execute on the judgment.”
Id. On the other hand, where a party pays pursuant to an execution on a judgment or the filing of
a suggestion in garnishment, he has made an involuntary payment and has not lost his right of
appeal. Carlucci, 220 Va. at 166, 257 S.E.2d at 763. 4
Here, husband’s payment tends even more towards a voluntary payment than the
payment made in Citizens Bank. While the payor in Citizens Bank paid the full amount of the
judgment three days after it was entered, here husband paid the full equitable distribution award
and attorneys’ fees before the trial court even entered a judgment against him. In fact, husband
wrote two checks for the precise amount of each award, with one check paid to his wife and the
other paid to her attorney. Unlike the involuntary payment in Carlucci, husband could not even
conceivably face the risk of execution or garnishment because the trial court had not yet entered
a judgment against him at the time he paid the award.
Husband simply did not bear the risk associated with an involuntary choice. Instead,
husband merely avoided the interest that would accrue upon entry of a judgment. Further, we
find no merit in husband’s argument that his failure to comply with the trial court’s letter opinion
subjected him to the risk of being held in contempt. The trial court’s letter opinion plainly
provided that failure to pay in the 150-day period would result in the conversion of the letter
opinion to a judgment. The trial court never threatened husband with contempt if he failed to
4
We have similarly applied this rule in appeals from divorce cases. See Klein v. Klein,
No. 0211-03-4 (Va. Ct. App. Dec. 2, 2003) (holding that a payment made as the result of an
express threat of imprisonment is involuntary); Wells v. Wells, No. 2601-96-4 (Va. Ct. App.
Nov. 18, 1997) (holding that an appellant’s payment to prevent the judicial sale of his home was
involuntary).
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pay the award. In fact, the trial court specifically rejected the notion that it would entertain a
contempt citation if the awards were not paid within the prescribed time. Therefore, we hold that
husband voluntarily paid the equitable distribution and attorneys’ fees awarded to wife, and
hence we cannot reach the merits of husband’s arguments with respect to those awards.
B. Reservation of the Right of Future Spousal Support
Husband also assigns error to the trial court’s failure to reserve him the right to seek
spousal support in the future under Code § 20-107.1(D). We agree with husband that the trial
court erred with respect to this issue.
We have previously held “that where 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) (citing D’Auria v. D’Auria, 1 Va. App.
455, 462, 340 S.E.2d 164, 168 (1986)). There is no bar to the right of spousal support where, as
here, the sole ground for the divorce arises under Code § 20-91(9) based on the husband and wife
living separately for one year and without cohabitation. Thomasson v. Thomasson, 225 Va. 394,
398, 302 S.E.2d 63, 65 (1983).
The trial court’s refusal to reserve husband the right to spousal support in the future
plainly conflicts with our holding in Bacon. The trial court relied on husband’s present financial
situation and his attempts to hide assets during the divorce proceedings when it failed to reserve
husband the right to seek spousal support in the future. However, husband’s present financial
situation does not speak to his financial situation in the future, 5 nor can the trial court punish
5
Of course, a reservation of the right to seek spousal support in the future only partially
removes a roadblock for husband. It allows the trial court to retain jurisdiction over the matter so
that it can consider the matter in the future. See Srinivasan v. Srinivasan, 10 Va. App. 728, 734,
396 S.E.2d 675, 679-80 (1990). At that time, husband must still demonstrate a change of
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husband for his attempts to hide assets during the divorce proceeding by denying him a
reservation of the right to seek spousal support in the future. Neither of these circumstances
bears any relationship to the grounds of divorce itself, which in this case rests solely on Code
§ 20-91(9). Accordingly, the rule set forth in Bacon clearly applies to this case. Therefore, we
hold that the trial court committed reversible error when it failed to reserve husband the right to
seek spousal support in the future.
III.
For the foregoing reasons, we conclude that husband lost his right of appeal with respect
to the equitable distribution and attorneys’ fees awarded by the trial court because husband
voluntarily paid those awards. “Accordingly, the appeal is dismissed” with respect to husband’s
first five issues. Citizens Bank, 254 Va. at 355, 492 S.E.2d at 826. We further conclude that the
trial court committed reversible error when it failed to reserve husband the right to seek spousal
support in the future. We therefore reverse and remand to the trial court with instructions that it
reserve husband the right to seek spousal support in the future. Finally, because husband has
partially prevailed on appeal, we deny wife’s request for attorneys’ fees as it relates to this
appeal.
Dismissed in part,
reversed in part,
and remanded.
circumstances to the court that justifies an award of spousal support. Code § 20-109; Hollowell
v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988).
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Robert Brian Stephenson v. Donna Lynn Musgrave
Combined Opinion