COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
CAROL LYNN NORTHCUTT
OPINION BY
v. Record No. 3325-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 19, 2002
JACKEY RAY NORTHCUTT
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Charles H. Smith, Jr., Judge Designate 1
Dennis E. Jones (Dennis E. Jones &
Associates, P.C., on brief), for appellant.
Felicia H. de Courcy (James R. Henderson, IV;
Henderson and de Courcy, on brief), for
appellee.
Carol Lynn Northcutt ("wife") contends that the trial court
erred by failing to (1) award her permanent spousal support; (2)
order recoupment of marital assets Jackey Ray Northcutt
("husband") used for his sole benefit; and (3) abused its
discretion in awarding husband attorney's fees. Finding no error,
we affirm.
The parties were married on January 29, 1966 and separated on
March 27, 1998. Two children were born during the marriage, both
of whom were emancipated at the time wife filed her bill of
complaint for divorce. Wife sought permanent spousal support and
1
The trial judge was Judge Donald R. Mullins; however,
Judge Charles H. Smith entered the final decree.
equitable distribution of the marital property. Husband filed a
cross-bill of complaint for divorce, also seeking equitable
distribution of the marital property. The trial court entered a
final decree of divorce on July 30, 1999 and reserved ruling on
support and equitable distribution. By final order entered
November 5, 2001 the trial court denied both parties spousal
support, required an equal distribution of marital property and
obligations, and awarded husband $1,500 in attorney's fees. Wife
appealed.
On appeal, we construe the evidence in the light most
favorable to husband, the prevailing party below, granting to
his evidence all reasonable inferences fairly deducible
therefrom. Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d
256, 257 (1995) (citing McGuire v. McGuire, 10 Va. App. 248,
250, 391 S.E.2d 344, 346 (1990)).
I. SPOUSAL SUPPORT
"Whether and how much spousal support will be awarded is a
matter of discretion for the trial court." Barker v. Barker, 27
Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). "'In fixing the
amount of the spousal support award, . . . the court's ruling
will not be disturbed on appeal unless there has been a clear
abuse of discretion. We will reverse the trial court only when
its decision is plainly wrong or without evidence to support
it.'" Moreno v. Moreno, 24 Va. App. 190, 194-95, 480 S.E.2d
- 2 -
792, 794 (1997) (quoting Gamble v. Gamble, 14 Va. App. 558, 574,
421 S.E.2d 635, 644 (1992)).
The trial court denied both parties spousal support "[i]n
light of the equal division of marital property and of the
equivalent assets and the earning capability of each party
. . . ." Wife argues that the trial court abused its discretion
in failing to consider all the statutory factors. Specifically,
wife maintains that her earning capacity was limited by her
failing physical and mental health while husband had unlimited
earning capacity. The record does not support such a
conclusion. At the evidentiary hearing, both parties put on
evidence encompassing the statutory factors to be considered by
the trial court. In its final decree, the trial court
specifically noted that it had considered the requisite
statutory factors.
Wife and her doctor testified that she had a thyroid
condition that required medication. However, as long as she
took the medication, there were no deleterious health
consequences. Wife was also taking Prozac for depression.
Neither wife nor her doctor testified that these conditions
prevented her from working. Viewing this evidence in the light
most favorable to husband, there was no evidence that wife's
earning capacity was significantly different from husband's.
The evidence also proved that from 1985 to 1995 wife was
employed in a clerical position. Wife voluntarily left her
- 3 -
employment in October 1995 because she "couldn't deal with the
pressure that job caused" her. Wife declined subsequent job
offers because she wanted to spend time at the parties' vacation
home in Florida and did not want the pressure of a full-time
job. At the time of the hearing, wife was not employed and had
not worked since December 2000.
Husband was 55 years old and earned $250 per week working
as the manager of a convenience store. Husband also received
$400 per month in rent. Husband had managed the family trailer
park business since 1989, and his income during these years was
approximately $10,000 per annum. The family business was sold
as part of the divorce, and the net proceeds from the sale were
divided equally between husband and wife. The parties had
significant debt throughout the marriage.
The trial court concluded that wife's earning capacity was
equal to that of husband's. Credible evidence in the record
supports this finding, and the trial court did not abuse its
discretion in failing to award wife spousal support. 2
II. EQUITABLE DISTRIBUTION: WASTE
Next, wife argues that the trial court erred in failing to
allow her to recoup marital assets she alleges husband used for
his sole benefit. Again, the record does not support wife's
position.
2
Neither party requested a reservation of spousal support;
thus, that issue is not before us.
- 4 -
Waste of marital assets is a matter for equitable
distribution.
[I]n order to alter the evaluation for an
equitable distribution award under Code
§ 20-107.3(E)(5), there must be a showing of
use of the marital property for the benefit
of one spouse and for purposes unrelated to
the marriage in anticipation of divorce or
separation and at a time when the marriage
is in jeopardy.
O'Loughlin v. O'Loughlin, 20 Va. App. 522, 526, 458 S.E.2d 323,
325 (1995) (emphasis added) (citing Booth v. Booth, 7 Va. App.
22, 27, 371 S.E.2d 569, 572 (1988)). "A decision regarding
equitable distribution rests within the sound discretion of the
trial court and will not be disturbed unless it is plainly wrong
or without evidence to support it." Holden v. Holden, 31
Va. App. 24, 26-27, 520 S.E.2d 842, 844 (1999) (citing McDavid
v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715
(1994)).
At issue are the proceeds from a business loan of
approximately $60,000 and the sale of unimproved property in
Florida. 3 Wife contends that the trial court's order that
required an equal division of the liabilities caused a
diminution in her share of the marital assets because she did
not realize any benefit from the business loan. Additionally,
3
Husband conceded that the Florida property was marital
property.
- 5 -
she argues she should have been allocated one-half of the
proceeds from the sale of the Florida property.
The trial court heard extensive evidence regarding the
business, business loans and tax liabilities. Husband
originally sought the trial court's permission to sell the
family business in July 1999 because it was losing money. At
the time of separation, there was a loan of approximately
$30,000, as well as other liabilities. Husband testified that
he borrowed an additional $30,000 and rolled the existing loan
into the new loan. Thus, there was $30,000 in new debt.
Husband used the loan proceeds to pay regular business operating
expenses. Additionally, husband provided the trial court with
an accounting of the business expenses. The record supports
husband's contention that he attempted to preserve the marital
estate.
In contrast, the evidence showed that wife's actions
exacerbated the parties' financial problems. Wife delayed the
sale of the family business for more than nine months, and it
took a court order to finally effectuate the sale. 4 In the
interim, interest on the business debts continued to accrue.
4
Husband requested court approval for the sale of the
business in July 1999 and had identified a buyer willing to pay
$600,000 for the business. Wife, however, insisted that the
business should be sold at auction. The court ordered a sale by
auction as she requested. However, wife never completed the
procedures necessary for this type of sale. Instead, she
eventually agreed to the private sale in February 2000 but did
not complete the necessary paperwork until April 2000.
- 6 -
Similarly, wife refused to return a leased vehicle timely,
thereby causing husband to incur penalties. Wife also conceded
that she had contributed nothing to running the family business
post-separation and that husband did all the work. Finally,
wife admitted that she did not make all the marital property
available for auction, notwithstanding a court order requiring
her to do so. Husband valued the wrongfully retained property
at $5,895.
Wife also complains that there was no accounting of the
proceeds of the sale of the Florida property. Husband prepared
and submitted an accounting to the trial court and to wife.
Wife argues that husband's expenditures from the proceeds of the
sale were for his sole benefit, including payments of temporary
spousal support, and that she is therefore entitled to a credit.
The trial court examined the evidence presented, including
the testimony of two accountants, and declined to make a finding
of waste. "We have held that the use of funds for living
expenses, medical bills and other necessities of life while the
parties are separated does not constitute dissipation." Alphin
v. Alphin, 15 Va. App. 395, 403, 424 S.E.2d 572, 576 (1992).
Here, the evidence showed that husband used the funds to pay
spousal support, the lease on wife's car, medical insurance for
the parties, personal property taxes on marital property and the
daughter's college tuition. Credible evidence supports the
trial court's finding that husband did not commit waste.
- 7 -
III. ATTORNEY'S FEE AWARD
"An award of attorney's fees 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 of counsel fees is reasonableness under all the
circumstances." Joynes v. Payne, 36 Va. App. 401, 429, 551
S.E.2d 10, 24 (2001) (citing McGinnis v. McGinnis, 1 Va. App.
272, 277, 338 S.E.2d 159, 162 (1985)). Wife contends that the
trial court abused its discretion in awarding husband $1,500 in
attorney's fees because wife caused "unnecessary litigation."
The parties were before the trial court on July 30, 1999
for a full hearing on the merits. At that hearing, wife
requested additional time to prepare appraisals of the family
business and present them to the court. The trial court awarded
the divorce and rescheduled the support and equitable
distribution hearing for August 24, 1999 to allow wife time for
her appraisals. When the parties reconvened on August 24, 1999,
wife insisted that the business be auctioned rather than sold at
private sale because she felt an auction would secure a higher
sales price. Although it required wife to assume the risk of
any price below $600,000, the trial court allowed wife to
proceed as she requested and ordered sale by auction no later
than October 1999. Wife did not complete the auction
procedures.
- 8 -
Husband then scheduled a final hearing for January 5, 2000.
At wife's request, this hearing was rescheduled to February 23,
2000. Finally, on February 23, 2000 wife agreed to the private
sale for a purchase price of $600,000. The trial court approved
the sale and ordered that the parties "execute promptly all such
documentation such that this sale may be completed as soon as
possible." Nevertheless, wife did not execute the deed until
compelled to do so at a subsequent court appearance on April 11,
2000.
There were similar delays in proceeding to final
distribution because wife did not promptly pursue discovery.
The trial court granted several continuances at wife's request,
and she still failed to produce an accounting. As the trial
court stated at the end of the equitable distribution and
support hearing, "I'm fed up with this case and the delays that
have been occasioned so unnecessarily, and some of the delays
. . . have created a decrease in [the] value of the property of
the marriage. This has been horrible." Under these
circumstances, the award of a part of husband's attorney's fees
was reasonable. Thus, the trial court did not abuse its
discretion in awarding husband attorney's fees.
IV. AWARD OF ATTORNEY'S FEES FOR APPEAL
Husband requested costs and an additional sum of attorney's
fees for matters relating to this appeal. Upon consideration of
the entire record in this case, we hold that husband is entitled
- 9 -
to a reasonable amount of attorney's fees incurred in this
appeal. Accordingly, we remand for an award of attorney's fees
incurred in this appeal, which should also include any
additional attorney's fees and costs incurred at the remand
hearing.
Affirmed and remanded.
- 10 -