COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
EDITH P. LANE DOTSON
OPINION BY
v. Record No. 0405-95-3 JUDGE LARRY G. ELDER
JANUARY 21, 1997
JIMMY A. DOTSON
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Nicholas E. Persin, Judge
Robert M. Galumbeck (Galumbeck, Simmons &
Reasor, on brief), for appellant.
No brief or argument for appellee.
By final decree entered February 2, 1995, Edith P. Lane
Dotson was awarded a divorce from her husband, Jimmy A. Dotson,
on the ground of adultery. The trial court awarded wife a lump
sum of $1.8 million, the parties' lake residence, various
personalty, and attorney's fees. The judge also ordered husband
either to provide health insurance for wife or to pay wife the
cost of her health insurance, in the amount of $425 per month.
Wife contends the trial court improperly consolidated
equitable distribution and spousal support considerations in
deciding to award her the $1.8 million lump sum. She argues the
trial court erred in failing to designate the lump sum award as
either spousal support or as a monetary award and argues that if
the award was intended as a monetary award, the support award was
insufficient. Alternatively, she argues that if the award was
intended as support, the monetary award was inequitable. Wife
also contends that in determining the award, the judge (1) failed
to consider all of the statutory factors; (2) failed to consider
the income husband's mining business would produce; and (3) erred
in assuming wife could support herself from the lump sum award.
For the following reasons, we reverse the lump sum award and
remand the case for further consideration.
I.
Husband and wife were married in 1961. Throughout the
marriage, husband was self-employed in the coal mining industry.
Wife was the homemaker and occasionally worked as a substitute
teacher when their children were minors. She also kept the books
for the parties' farm, helped with the bookkeeping for husband's
business, and frequently picked up parts for the business.
The evidence proved that the parties ceased having sexual
relations nineteen years ago after the wife had an operation.
The evidence also proved husband engaged in an adulterous
relationship for ten to fifteen years prior to 1992 when wife
filed for divorce. The trial court found that the husband's
conduct caused the marriage to end.
In conjunction with the equitable distribution hearing, the
parties stipulated that the value of their marital estate was
$5,312,150. The marital estate included the parties' farm,
valued between $210,000 and $240,000, the marital home, valued at
$55,000, the parties' lake house, valued at $38,000, and
certificates of deposit valued at $3,567,350. The marital estate
also included husband's coal company, the net asset value of
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which the parties stipulated was $689,267.
Evidence proved that the parties filed joint income tax
returns and reported income of $988,000 in 1987. Their income
declined to $428,000 in 1992. Wife submitted an expense sheet
reflecting monthly expenses of $4,218.35 after separation. She
also testified that health insurance would cost $425 per month.
The trial court granted wife a divorce from husband on the
ground of adultery. In consideration of "the factors . . . in
[Code] Sections 20-107.3 and 20-107," the trial court awarded
wife a "lump sum" of $1.8 million, the lake residence, and other
property. The trial court also ordered husband either to provide
wife health insurance or pay her $425 per month, the current cost
of her health insurance. The trial court also ordered the
parties to establish three large trust funds for their adult
children consistent with an agreement the parties made, and
granted other relief.
The trial court stated that in making the award he had
considered wife's health and the effect of husband's adultery on
wife, the lifestyle the parties maintained, the earnings the
parties received from husband's mining business, and the fact
that mining was an unpredictable industry and was not likely to
generate in the future the kind of income the parties had enjoyed
previously. In declining to grant wife's motion for
reconsideration and make an additional support award, the trial
court explained that the lump sum would allow wife both to save a
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substantial portion of the award and also to earn a return
through investment. The trial court stated that the lump sum
award was equitable "in construing the spousal support statute
and the equitable distribution statute" and further stated, "I
was considering . . . giving her less lump sum and [making] an
award of spousal support, but . . . I felt . . . it would be
better to give her a lump sum of money and let her cut the ties
with Mr. Dotson and not be worried about whether her spousal
support check is going to be coming in every month. But if I had
[made an award of spousal support], I would have lowered the lump
sum award." The trial judge also stated his understanding that
the court was not required to distinguish whether its lump sum
award was intended as support or as distribution.
II.
"A distinct difference . . . exists between a spousal
support award and a monetary award." Brown v. Brown, 5 Va. App.
238, 246, 361 S.E.2d 364, 368 (1987).
Spousal support involves a legal duty flowing
from one spouse to the other by virtue of the
marital relationship. By contrast, a
monetary award does not flow from any legal
duty, but involves an adjustment of the
equities, rights and interests of the parties
in marital property.
Id. "[T]he amount of support is based on current needs of the
spouse . . . and the ability of the other spouse . . . to pay
from current assets." Williams v. Williams, 4 Va. App. 19, 24,
354 S.E.2d 64, 66 (1987). "The income of the party who is
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required to pay, however such income is derived or derivable, is
the fund from which the allowance [for support] is made." Ray v.
Ray, 4 Va. App. 509, 513, 358 S.E.2d 754, 756 (1987). "The
`equitable distribution' statute, however, is intended to
recognize a marriage as a partnership and to provide a means to
equitably divide the wealth accumulated during and by that
partnership." Williams, 4 Va. App. at 24, 354 S.E.2d at 66.
Under the statutory scheme, the trial judge must consider
its equitable distribution award in fashioning a support award,
but consideration of spousal support is improper when making an
equitable distribution award. See Code § 20-107.3(F) (monetary
award must be determined without regard to support); Code
§ 20-107.1(8) (in determining amount of support award, court must
consider, inter alia, provisions made with regard to the
distribution of marital property); see also Kaufman v. Kaufman,
7 Va. App. 488, 493-94, 375 S.E.2d 374, 377 (1988) (court cannot
determine parties' relative needs and abilities until after it
determines the monetary award).
The trial judge's initial opinion letter and the final
decree state that the judge considered both the statutory factors
relating to the determination of a support award, Code
§ 20-107.1, and the factors relating to the determination of a
monetary award, Code § 20-107.3(E), in determining the amount of
the lump sum. The court further stated that he gave her a lump
sum so that she would "not be worried about whether her spousal
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support check is going to be coming in every month." It is
apparent that the trial judge either considered support as a
factor in determining the equitable distribution award or lumped
together the equitable distribution award and a lump sum spousal
support award, either of which was erroneous. Furthermore, in
denying wife's motion for reconsideration of periodic support,
the trial court stated that he considered awarding wife periodic
support and would have granted her a smaller lump sum if he had
made separate awards.
In failing to distinguish spousal support from property
distribution as required by the statutory framework, the trial
court committed reversible error. Treating the property
distribution award and spousal support award as one not only
reflects an erroneous application of the law but also precludes
principled review. Accordingly, the decision of the trial court
is reversed and the case is remanded for a redetermination of
both the equitable distribution award and the spousal support
award. 1
Reversed and remanded.
1
We do not find it necessary to address the other issues
raised because a redetermination of the equitable distribution
award will necessarily require the trial judge to reconsider
spousal support and the statutory factors relating thereto.
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Annunziata, J., concurring.
I concur in the opinion of the majority that the trial court
erred in awarding wife a "lump sum," representing both an
equitable distribution award and a spousal support award.
However, I agree with wife's contention that the court clearly
erred as well in its consideration of certain factors relating to
spousal support, whatever amount the court intended its support
award to be. These issues will be of import on remand because,
in my opinion, such error would require reversal irrespective of
the reversible error the majority addresses. See Keyser v.
Keyser, 7 Va. App. 405, 414-15, 374 S.E.2d 698, 703-04 (1988).
Accordingly, I write separately to address those issues.
In determining spousal support, the trial court must
consider all of the statutory factors set forth in Code
§ 20-107.1. Keyser, 7 Va. App. at 414-15, 374 S.E.2d at 703-04.
Failure to do so is reversible error. Bristow v. Bristow, 221
Va. 1, 3, 267 S.E.2d 89, 90 (1980). Among other things,
"the court must look to the financial needs
of the wife, her age, physical condition and
her ability to earn, and balance against
these circumstances the financial ability of
the husband to pay, considering his income
and ability to earn."
Via v. Via, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992)
(quoting Klotz v. Klotz, 203 Va. 677, 680, 127 S.E.2d 104, 106
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(1962)); see also Code § 20-107.1(1).
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A.
"Income producing property conveyed pursuant to Code
§ 20-107.3 would alter the needs of one party and the ability of
the other party to pay spousal support." Gamble v. Gamble, 14
Va. App. 558, 577, 421 S.E.2d 635, 646 (1992). Thus, the court
must consider income which may be produced by a monetary award in
determining spousal support. Kaufman v. Kaufman, 7 Va. App. 488,
493, 375 S.E.2d 374, 377 (1988). However, a court may not
consider the corpus of a monetary award as income to the
receiving spouse. Ray v. Ray, 4 Va. App. 509, 513, 358 S.E.2d
754, 756 (1987). The law does not require a spouse, who is
possessed of a sizeable estate in his or her own right, "`to
invade that estate to relieve the obligation of her former
[spouse] whose actions have brought an end to their marriage.'"
Id. at 514, 358 S.E.2d at 757 (quoting Klotz, 203 Va. at 680, 127
S.E.2d at 106); see also Zipf v. Zipf, 8 Va. App. 387, 398-99,
382 S.E.2d 263, 269-70 (1989) ("[A] decree which singles out
[Code § 20-107.1(8)] to the exclusion of others, and which
essentially treats the support-seeking spouse's marital assets as
income, cannot withstand scrutiny on appeal").
Here, while the court expected wife to reinvest part of the
lump sum and support herself with the proceeds, no evidence
showed, and the court made no finding with respect to, what
amount of income, if any, the funds were likely to produce.
Thus, it is impossible to determine the extent to which the trial
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court properly considered the income which the lump sum would
produce in the future and the extent to which the court
improperly assumed wife could invade her share of the marital
estate to support herself. 2 It is clear, however, that the court
could not properly have considered the parties' relative needs
and their relative abilities to meet those needs in the absence
of evidence which established the income the lump sum could
produce. The failure to properly consider these factors is
error. See Code § 20-107.1(1); Via, 14 Va. App. at 870, 419
S.E.2d at 433.
B.
Furthermore, a support award which allows one party to
approximate more closely the "station of life" enjoyed during the
marriage while necessarily and materially diminishing that of the
other party, is improper in the absence of evidence directing
such a result. See Code § 20-107.1(3); Via, 14 Va. App. at 870,
419 S.E.2d at 433 (a support award should, within the limits of
the payor spouse's ability to pay, maintain the payee spouse
"according to the station of life to which she [or he] was
accustomed during the marriage").
While a party's comparative financial
condition before marriage and after divorce
may demonstrate one's ability to support
oneself, the court must consider the needs of
each spouse in relation to each party's
ability to provide for those needs and the
2
This impossibility is compounded, of course, by the fact
that we are unable to determine what amount of the lump sum, if
any, represents support and what amount represents a money award.
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other spouse's ability or resources to
provide for those needs. The station to
which a party may have grown accustomed
during marriage is to be considered in
determining support.
Keyser, 7 Va. App. at 413-14, 374 S.E.2d at 703-04 (citation
omitted); Homer H. Clark Jr., The Law of Domestic Relations in
the United States 427 (2d. ed. 1987) (A spouse is not limited to
receiving support which covers only the necessities of food,
clothing, and shelter. To the extent the payor spouse is able to
supply them, the recipient is entitled to have the comforts and
even the luxuries of life).
The evidence in this case fails to support the conclusion
that the trial court properly considered the parties' stations in
life in light of their relative abilities to meet their support
obligations. The court assumed wife's support needs would be
fully met from the income or corpus of the lump sum. In so
doing, the court failed to consider husband's income producing
property and his ability to earn income from his mining
operations as sources of support for wife. While the court's
lump sum award left each party approximately $1.8 million in
certificates of deposit, the court assumed wife's share would
earn income but disregarded the potential income husband's share
could produce. The court's distribution also left husband the
income his mining operations would earn, which the record shows
was between $1 million and $256,000 per year from 1989 to 1992.
Thus, the income producing value of husband's post-divorce estate
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would remain intact and his business income unburdened, while
wife's estate would effectively erode.
While a post-divorce reduction in each party's station in
life may be expected under the facts of this case, the court's
disparate treatment of the parties' estates and incomes in
determining spousal support makes manifest the likelihood of a
disproportionate change in wife's post-divorce station of life.
Such disparate treatment is not supported by the evidence or the
court's findings and is, therefore, erroneous. See, e.g.,
Keyser, 7 Va. App. at 414-15, 374 S.E.2d at 703-04.
C.
Finally, the trial court excluded husband's business income
from its determination of the lump sum award because it found
that mining in that part of the state is unpredictable and
unlikely to yield similarly high returns in the future. However,
"in setting support awards, [the court] must look to current
circumstances and what the circumstances will be `within the
immediate or reasonably foreseeable future,' not what may happen
in the future." Srinivasan v. Srinivasan, 10 Va. App. 728, 735,
396 S.E.2d 675, 679 (1990). An award "`premised upon the
occurrence of an uncertain future circumstance . . . ignores the
design and defeats the purpose of the statutory scheme.'" Payne
v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987)
(quoting Jacobs v. Jacobs, 219 Va. 993, 995-96, 254 S.E.2d 56, 58
(1979)). Thus, the court improperly speculated as to the demise
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of husband's mining operations.
I would direct the court to consider these factors on
remand.
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