COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Salem, Virginia
JOHN L. STUMBO, JR.
v. Record No. 2522-93-3 OPINION BY
JUDGE SAM W. COLEMAN III
HELEN LAWSON STUMBO AUGUST 22, 1995
FROM THE CIRCUIT COURT OF PULASKI COUNTY
A. Dow Owens, Judge
Max Jenkins (Jenkins & Jenkins, on brief),
for appellant.
Deborah W. Dobbins (Robert J. Ingram; Gilmer,
Sadler, Ingram, Sutherland & Hutton, on brief),
for appellee.
John L. Stumbo, Jr. (husband) appeals the trial court's
equitable distribution, spousal support, and attorney's fee
awards to Helen L. Stumbo (wife). The husband contends that the
evidence is insufficient to support the trial court's granting
the wife a $30,000 "lump sum award" as recommended by the divorce
commissioner, regardless of whether the commissioner intended the
award to be an equitable distribution of marital property or lump
sum spousal support. We agree that, on this record, the evidence
does not prove the existence of $30,000 in marital assets or
marital debts to support the trial court's granting a $30,000
equitable distribution award. Accordingly, we reverse and remand
the issues of equitable distribution and spousal support for
further consideration. We affirm the trial court's attorney's
fee award, but because we remand the case for further
consideration, we remand the issue of attorney's fees for such
further awards as may be proper.
PRELIMINARY ISSUES
As a preliminary matter, the appellant's motion to be
allowed to execute a supersedeas bond and to be relieved of his
obligation to pay spousal support during the pendency of the
appeal is denied. 1 Also, because the support order for which the
appellee asks us to hold the appellant in contempt is not an
order of this Court, we refuse to consider that motion.
FACTS
John Stumbo and Helen Lawson Dempsey were married on
April 29, 1989. Prior to their marriage, wife established a
$20,000 home equity line of credit pledging her separate
residence as collateral. One month before the marriage, wife
drew approximately $8,000 on the line of credit to pay the
balance she owed on a loan for her separate automobile. Prior
to, but apparently in anticipation of the marriage, the parties
purchased a new Oldsmobile, jointly titled in their names, for
which wife traded her automobile and received a $6,244 credit on
1
A trial court may not order restitution from a spouse who
received spousal support payments pursuant to a court order when
that order is subsequently reversed on appeal. Reid v. Reid, 245
Va. 409, 429 S.E.2d 208 (1993). Consequently, whether a trial
court in the exercise of its sound discretion should suspend the
payment of spousal support and make a provision for security in
the event the support award is reversed on appeal necessarily
depends upon the needs of the parties and abilities to provide for
support. Accordingly, on remand, the trial court shall consider
the request to be relieved of the obligation to pay support during
the pendency of an appeal upon execution of a supersedeas bond.
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the purchase price. The balance of the purchase price, $12,706,
was financed jointly by the parties.
At the time of the marriage, both parties had separate
pensions. Wife owned a separate residence, and husband owned a
1987 Toyoto truck. The value of these items of separate property
was not proven.
During the marriage, the parties purchased a lawnmower, a
television, and a VCR. The value of this marital property was
not proven.
During the marriage, debts were incurred to renovate and
re-roof wife's residence and for other purposes. The evidence
was insufficient for the court to determine the amount of the
debt and how much debt was marital and how much was separate.
The court could not determine, to the extent the debt was
marital, how much was incurred to improve or acquire marital
property, how much was incurred to acquire separate property, or
how much was expended for non-property marital or separate
purposes. The evidence was insufficient to permit determination
of the rights and equities of the parties in the debt in order to
determine how the debt should be apportioned.
At the time of the separation, the $20,000 line of credit
had been exhausted. However, the record does not establish what
portion of that debt was incurred prior to or during the
marriage, whether the indebtedness was incurred to purchase
marital property that was subject to distribution, whether or how
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much of that debt was attributable to renovation or improvement
of wife's separate property, whether or how much of that debt was
attributable to the acquisition of marital property which wife
retained, and how much of that debt was used to maintain the
parties during the marriage. Moreover, the evidence was
insufficient to determine the amount of other debt, if any, and
how it should be classified or allocated.
TRIAL COURT'S HOLDING
The trial court referred the case to a commissioner,
including the issues of equitable distribution, spousal support,
and attorney's fees. The commissioner classified certain assets
as marital, but he did not address the debt and classify or value
it or determine the rights or equities of the parties therein so
the court could apportion debt. The commissioner reported, under
a heading titled "[r]ecommendations under Code § 20-107.3," that
"[b]ased upon the equities," the court should make a "monetary
award" of $30,000 to the wife with the $1,200 per month pendente
lite support payments that the husband had made to the wife
during the pendency of the suit "count[ing] as a credit against
the said monetary award." The commissioner further recommended a
$1,000 award of attorney's fees to the wife.
Upon hearing wife's exceptions to the commissioner's report,
the trial court concluded that the commissioner had "completely
failed" to address spousal support and that the $30,000 award,
less the "credits" for pendente lite support payments as
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recommended by the commissioner, was intended to be an equitable
distribution award. The trial court ordered that husband pay a
$30,000 equitable distribution award, but that no credit be
allowed him for the pendente lite support payments. The court
also ordered husband to pay $800 per month for permanent spousal
support and $1500 for the wife's attorney's fees.
ANALYSIS
Initially, the wife contends that we cannot consider the
husband's arguments because he did not file objections to the
commissioner's report. However, upon considering the wife's
objections, the trial judge's rulings upon equitable distribution
and spousal support were different from the commissioner's report
and recommendations upon those issues. The husband timely
objected to the trial judge's rulings. See Hodges v. Hodges, 2
Va. App. 508, 512, 347 S.E.2d 134, 136 (1986); Dukelow v.
Dukelow, 2 Va. App. 21, 24, 341 S.E.2d 208, 209-10 (1986).
A spousal support award under Code § 20-107.1 serves a
purpose distinctly different from an equitable distribution award
fashioned under Code § 20-107.3. 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. "In determining spousal support, the trial
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court's consideration must include earning capacity, obligations,
needs, the property interests of the parties, and the provisions
if any, made with regard to marital property." Goetz v. Goetz, 7
Va. App. 50, 51, 371 S.E.2d 567, 567 (1988) (citing
Code § 20-107.1). "A review of all the factors contained in
Code § 20-107.1 is mandatory" in making a spousal support award.
Ray v. Ray, 4 Va. App. 509, 513, 358 S.E.2d 754, 756 (1987)
(citing Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422,
426 (1986)).
Equitable distribution of marital property is based upon
different considerations than spousal support and is the means
for dividing the marital estate acquired by the parties during
the marriage.
Where an equitable distribution award is
appropriate, then all of the provisions of
Code § 20-107.3 must be followed. . . . The
court must "determine the legal title as
between the parties, and the ownership and
value of all property, real or personal,
tangible or intangible, of the parties and
shall consider which of such property is
separate property and which is marital
property." . . . Once the marital property is
identified and valued, then the court is
authorized to make a monetary award based on
all the factors enumerated in
Code § 20-107.3(E).
Artis v. Artis, 4 Va. App. 132, 136, 354 S.E.2d 812 814 (1987)
(citations omitted) (emphasis deleted).
The parties concede that they are uncertain whether the
commissioner recommended a $30,000 lump sum spousal support award
or an equitable distribution award. Nevertheless, the trial
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judge ruled that the commissioner was attempting to effect an
equitable distribution of the marital property. The confusion
and uncertainty of the parties and of the trial judge as to the
nature and purpose of the award demonstrates that the
commissioner and trial judge did not make the necessary findings
under Code § 20-107.3 to determine which assets and debts were
marital and separate, the values thereof, and the rights and
equities of the parties in the properties and debts. The trial
court did not classify all the property as marital or separate,
particularly the parties' debts, and did not value the marital
and separate property. Furthermore, the court did not determine
the rights and equities of the parties in the marital property.
Code § 20-107.3(D)(1).
"[A]s we have recognized, for [the] purposes of equitable
distribution, [the question of] when a marital partnership begins
. . . is a more dynamic and complex concept than the day on which
marital vows are exchanged." Dietz v. Dietz, 17 Va. App. 203,
209, 436 S.E.2d 463, 467 (1993). Thus, when property is
acquired, and, similarly, when debt is incurred, a trial court
must determine the purpose of expenditure in order to classify
property as marital or separate or to "allocate" debt as marital
or separate. When a court considers whether to make an equitable
distribution award, formulating an award must go beyond mere
guesswork. Artis, 4 Va. App. at 136, 354 S.E.2d at 814. There
must be a proper foundation in the record to support the granting
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of an award and the amount of the award. Woolley v. Woolley, 3
Va. App. 337, 342, 349 S.E.2d 422, 425 (1986). When considering
whether to make an award, the court must first classify and value
the parties' marital and separate property. Rexrode v. Rexrode,
1 Va. App. 385, 391-93, 339 S.E.2d 544, 548-49 (1986). "The
court shall also have the authority to apportion and order the
payment of the debts of the parties, or either of them, that are
incurred prior to the dissolution of the marriage, based upon the
factors listed in subsection E." See Code § 20-107.3(C).
From this record, we cannot determine on what basis the
trial court made a $30,000 equitable distribution award. The
trial court, although it did classify certain property as
marital, did not classify all the property. Moreover, the court
did not value the marital property. To the extent that the trial
court classified and valued some property as marital, the total
value of that property was not sufficient to justify an award of
$30,000. Furthermore, to the extent the trial court may have
based the award, in whole or in part, upon the amount of marital
debt, Code § 20-107.3(E)(7), or intended its award to "apportion"
marital debt, the trial court did not determine which or how much
of the debt was "incurred prior to the dissolution of the
marriage" or "the basis for such debts and liabilities, and the
property which may serve as security for such debts and
liabilities." Code § 20-107.3(E)(7). Because the trial court
did not properly classify or value marital and separate property
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or to classify or apportion marital debt, and did not properly
consider the rights and equities of the parties in the marital
property or debts, we reverse the equitable distribution award
and remand the matter for proper consideration and determination
in accordance with Code § 20-107.3.
Because the issues pertaining to permanent spousal support
cannot be decided by the trial court until the equitable
distribution issue is resolved, see Bacon v. Bacon, 3 Va. App.
484, 491, 351 S.E.2d 37, 41-42 (1986), we reverse and remand the
trial court's spousal support award of $800 per month.
An award of attorney's fees in a divorce case is a matter
within the sound discretion of the trial court. Broom v. Broom,
15 Va. App. 497, 502, 425 S.E.2d 90, 93 (1992). We will not
disturb such a decision absent an abuse of discretion. Id. The
record does not support the husband's assertion that the trial
court abused its discretion by awarding more attorney's fees than
recommended by the commissioner. However, because we are
remanding the case to the trial court for further consideration,
we also remand the matter of attorney's fees.
Affirmed in part,
reversed and remanded in part.
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