John Hanyok v. Kathleen Hanyok

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia

JOHN HANYOK
MEMORANDUM OPINION * BY
v. Record No. 1754-01-4 JUDGE JAMES W. BENTON, JR.
AUGUST 13, 2002
KATHLEEN HANYOK

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

Robert S. Ganey (Hanover Law Office, on
briefs), for appellant.

Paul F. Nichols (Cassandra M. Chin; Nichols,
Bergere, Zauzig & Sandler, P.C., on brief),
for appellee.

John Hanyok appeals from a final decree of divorce and raises

thirty issues challenging child custody, visitation, equitable

distribution, child support, spousal support, and attorney fees.

We affirm the decree, and we grant the wife's request for

attorney's fees related to this appeal.

I.

Kathleen and John Hanyok married in 1975. The husband filed

a bill of complaint for divorce in 1998, and the wife filed a

cross-bill of complaint. The parties have three children: a

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
daughter, who is over the age of majority, and two sons, who were

minors at the time of the final decree.

In a pendente lite consent order, the parties agreed that the

wife would have exclusive use of the marital residence, that they

would have joint legal custody of their sons, that the sons'

primary residence would be with the wife, that the husband would

have visitation every other weekend and one day a week, that both

parties would consult a mental health expert for purposes of

determining a visitation schedule, and that the husband would

refrain from contacting the wife. Various other consent orders

were entered resolving disputes between the parties. A second

pendente lite order required the husband to pay child support and

spousal support, and it granted other relief.

After a hearing, the commissioner in chancery recommended a

divorce on the ground the parties had lived "separate and apart

. . . in excess of one year." The husband filed a motion to

review, modify, and vacate provisions of the pendente lite orders

requesting the judge to order psychological and physical

examination for the wife, to hold the wife in contempt for

"intentional[ly] withholding visitation," and for other relief.

The trial judge held an evidentiary hearing and issued a letter

opinion. Following various motions and hearings, the judge

entered a final decree of divorce.

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 II. Child Custody and Visitation

The husband contends the trial judge erred in failing to

award him primary care of his children and in failing to respond

to his various concerns about visitation. He also contends the

judge's order violates his constitutional rights to parent his

children.

When the United States Supreme Court has reviewed

constitutional challenges to family matters, "the Court has

emphasized [that] the paramount interest [is] in the welfare of

children." Lehr v. Robertson, 463 U.S. 248, 257 (1983).

Likewise, the "established . . . rule in Virginia [is] that in

custody . . . cases the welfare of the child is of paramount

concern and takes precedence over the rights of parents."

Malpass v. Morgan, 213 Va. 393, 399-400, 192 S.E.2d 794, 799

(1972). Consistent with these rules, our statutes contain

factors for determining a child's best interest in custody and

visitation cases. See Code §§ 20-124.2 and 20-124.3. In

applying those statutes, we have held as follows:

Although the trial court must examine all
factors set out in Code § 20-124.3, "it is
not 'required to quantify or elaborate
exactly what weight or consideration it has
given to each of the statutory factors.'"
As long as evidence in the record supports
the trial [judge's] ruling and the trial
[judge] has not abused [his] discretion,
[his] ruling must be affirmed on appeal.

Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999)

(citations omitted).

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 The evidence indicates that a pendente lite order gave the

husband visitation every other weekend and one day a week. The

husband testified that those arrangements did not work out

because the wife was interfering in his efforts to see his sons.

He testified that after the arbitrator's report specified

visitations, he attempted to see his sons, but they would not go

with him. He also testified that the wife misled the sons to

believe that he had stolen their money and made other

allegations.

Although the husband testified the wife was interfering

with his efforts to visit the sons, the wife disputed those

claims and testified she encouraged the teenage sons to see

their father and "wanted them to continue having a relationship

with their father and his family." She testified that after

doing so she later "backed out because it really seemed to be

between [the husband] and the boys." To facilitate the

meetings, she would leave when it was time for the scheduled

visitation. She testified, however, that the sons were angry

with their father because he sometimes failed to appear for

visitations and was tardy.

The trial judge met with the teenage sons in his chambers

to hear their concerns. Explaining his impression of the

meeting, the judge found that "it's just an extremely difficult

situation. They are estranged from their father. And I don't

think the court ordering practically adults into a visitation

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schedule is going to help the situation at all." The judge also

found that the boys "wouldn't even agree to have dinner every

two weeks" and that "they say that they don't want anything to

do with their father."

"When the court hears the evidence ore tenus, its findings

are entitled to the weight accorded a jury verdict, and they

will not be disturbed on appeal unless they are plainly wrong or

without evidence to support them." Bailes v. Sours, 231 Va. 96,

100, 340 S.E.2d 824, 827 (1986). Upon considering testimony of

the mother, the father, and the teenage sons, the judge ruled

that the continued relationship between the husband and the sons

"[was] going to be up to the father and the boys. And I can at

least take a stab at it by ordering a dinner every two weeks."

In view of the evidence in the record, we cannot say the judge

erred when he ordered a visitation schedule, which requires the

sons to attend "a dinner every two weeks with review of the

visitation in six months." In addition, upon considering the

wife's testimony and the findings made by the trial judge

following his interview and consideration of the evidence, we

hold that the trial judge did not err in refusing to order the

wife to undergo an evaluation or to order counseling or a

monitor. Moreover, no evidence supports a claim that the

husband's constitutional rights were violated. Credible

evidence in the record supports the trial judge's custody order

and visitation schedule.

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 III. Equitable Distribution

In reviewing the husband's challenges to the trial judge's

findings of fact, we are governed by the following standards:

On appeal, the trial [judge's] findings
must be accorded great deference. "In
determining whether credible evidence
exists, the appellate court does not retry
the facts, reweigh the preponderance of the
evidence, or make its own determination of
the credibility of witnesses." "We will not
disturb the trial [judge's] decision . . .
unless it is 'plainly wrong or without
evidence in the record to support it.'"

Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795

(1997) (citations omitted). The record contains credible

evidence supporting each of the trial judge's findings.

1. Valuation Date

The husband contends the trial judge used an improper date

to value the property. He argues the trial judge erred by not

accepting as an alternative valuation date the date the wife

moved out of their bedroom.

In pertinent part, Code § 20-107.3(A) provides as follows:

The court shall determine the value of any
such property as of the date of the
evidentiary hearing on the evaluation issue.
Upon motion of either party made no less
than twenty-one days before the evidentiary
hearing the court may, for good cause shown,
in order to attain the ends of justice,
order that a different valuation date be
used.

The husband makes the bare assertion that the wife ceased to

contribute to the marriage when she moved from the bedroom and

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that this was the proper date to valuate the property. We hold

the judge did not err in refusing to value the parties' property

as of the date on which the husband alleged the wife moved from

the bedroom.

2. Classification of Property

Asserting that "[p]roperty inherited during marriage must

be maintained as separate property in order to retain its

character as separate property," the husband argues that any

inheritance funds the wife used to improve the marital home were

transmuted into marital property.

Code § 20-107.3(A)(3)(d) provides, in pertinent part as

follows:

When marital property and separate
property are commingled by contributing one
category of property to another, resulting
in the loss of identity of the contributed
property, the classification of the
contributed property shall be transmuted to
the category of property receiving the
contribution. However, to the extent the
contributed property is retraceable by a
preponderance of the evidence and was not a
gift, such contributed property shall retain
its original classification.

The husband's witness testified he had reviewed various

bank statements and "was not able to trace each of the separate

deposits into [the wife's] account." His testimony, however,

was not dispositive because the wife testified that these funds

were used toward the home. Assessing the evidence, the judge

found that the wife adequately traced her separate contribution

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to the home. We will not reweigh the evidence on appeal. The

wife's testimony was credible and supports the judge's finding.

The husband challenges the judge's calculation of the

wife's separate contribution and marital contribution. The

wife's testimony and exhibit plainly supported the judge's

findings. In view of the conflicting testimony, we cannot say

the judge erred when he accepted the wife's evidence and ruled

that the marital share of the property at Cabells Mill Drive was

$122,334, as opposed to $126,632 as the husband contends. The

trial judge found that the value of the property less costs of

sale and less a $83,000 lien amounted to $214,620. Of that

value, the judge found that the wife adequately traced $37,511

of separate contribution to the house and that the marital

contribution was $50,437. The judge therefore adjusted the

wife's separate equity at 43% and the marital equity at 57%.

See Moran v. Moran, 29 Va. App. 408, 414, 512 S.E.2d 834, 836-37

(1999) (holding property was properly classified as marital and

separate property). Code § 20-107.3(A)(1) provides, in

pertinent part, that "[t]he increase in value of separate

property during the marriage is separate property, unless

marital property or the personal efforts of either party have

contributed to such increases and then only to the extent of the

increases in value attributable to such contributions." See

also Smoot v. Smoot, 233 Va. 435, 439, 357 S.E.2d 728, 730

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(1987). Applying these principles, we hold that the judge did

not err in his calculations.

The trial judge also did not err in valuing the personal

property. The trial judge valued the household goods in the

husband's possession at $5,128 and those in the wife's

possession at $6,821. An appraiser who testified on the

husband's behalf assessed the values, and the wife testified

about the value of certain goods each party had. The trial

judge resolved the conflicts and was not required to accept in

total either party's evidence. Hence no error appears from the

record.

The judge also did not err in determining the value of the

Neon automobile. The wife's evidence indicated the value of the

vehicle was $1,500. The trial judge did not err in accepting

that valuation as credible.

The record does not indicate the trial judge erred

concerning the rental property. Although the husband contends

the trial judge erred by not crediting rental payments made by

him per court order, this argument was not preserved in the

court below.

The evidence also supports the trial judge's finding

concerning the Prudential and GPM life insurance policies. An

exhibit in the record lists the value of those policies as

$6,300. Moreover, when the wife's attorney asked the husband

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whether the cash value of those policies was $6,300, the husband

replied, "I believe so."

3. Division of Marital Property

The husband contends the trial judge improperly awarded the

wife 50% of the marital property, erred by not selling all of

the marital property, and erred by awarding the wife the primary

residence. The husband testified that his monetary contribution

was in excess of $1,062,000 during the marriage, while the

wife's was approximately $177,000. He contends, therefore, that

he should have been awarded a larger portion of the marital

property. The husband also expressed his desire that the wife

have the Dale City residence which is closer to her work and

offered to pay off the $7,000 mortgage on that property. He

wanted to reside in the marital home to parent his sons.

In addition to the wife's testimony, a witness who had been

a neighbor of the parties for over fifteen years, testified

about the wife's involvement in the lives and activities of the

children. She testified that the wife was "the predominant

person in the home" and that the wife "was always at the school

functions, the graduations from the kids, the choral

presentations, the plays, and that kind of thing." In contrast,

she testified that "[i]t was very rare that [the husband] was

able to make those events."

Upon considering the factors in Code § 20-107.3(E), the

trial judge determined that the marital property should be

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equally divided. The judge specifically noted the twenty-five

year duration of the marriage and the monetary and nonmonetary

contributions of the parties. The record supports the trial

judge's findings.

We have held that we will not reverse an equitable

distribution award on appeal "unless it appears from the record

that the chancellor has abused his discretion, that he has not

considered or misapplied one of the statutory mandates, or that

the evidence fails to support the findings of fact underlying

his resolution of the conflict of equities." Hart v. Hart, 27

Va. App. 46, 53, 497 S.E.2d 496, 499 (1998). The husband points

to no factor that the trial judge failed to consider. Moreover,

the record indicates no error. Hence, we hold that the judge

did not err in dividing the marital property equally and

permitting the wife, who had physical custody of the children,

to remain in the primary residence.

IV. Child Support

Although the husband estimated his income in 2001 would be

$97,000, the evidence proved his income was $105,490 in 1998,

$110,966 in 1999, and $132,566 in 2000. He testified that his

salary is $77,000, that he also receives commission depending on

his performance, and that he possibly could earn $110,000 in

2001. The evidence did not show the husband had changed careers

or employers. We hold that the trial judge did not err when he

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determined the husband's income was $107,983 by averaging the

husband's salary in 1998 and 1999.

The husband also contends the judge erred by failing to

impute income to the wife in calculating child support. Code

§ 20-108.2 provides that "[t]here shall be a rebuttable

presumption . . . that the amount of the award which would

result from the application of the guidelines . . . is the

correct amount of child support to be awarded." A party may

rebut this presumption by showing that income should be imputed

to a party "who is voluntarily unemployed or voluntarily

under-employed." Code § 20-108.1.

The record contains no evidence that income should be

imputed to the wife. Although the husband attempted to testify

as to job opportunities available in the wife's field, the judge

excluded the evidence because the husband did not qualify as an

expert. The judge also determined that the husband's testimony

concerning postings on the Internet of job opportunities was

inadmissible hearsay.

No evidence proved the wife had been offered a higher

paying position or that it would be more economical for her to

obtain a different position. The wife testified that although

she worked a full time schedule, she could only bill a portion

of the hours she actually worked. She testified that she

"definitely put[s] in a 40-hour week, but . . . can only bill

for those hours that I' m providing direct intervention." The

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trial judge accepted her testimony as credible and found that it

would be improper to impute income. The record supports the

findings.

V. Spousal Support

A trial judge must consider the factors in Code § 20-107.1

in fashioning an award of spousal support. "Where the [judge]

has given due consideration to each of these factors, as shown

by the evidence, his determination as to spousal support will

not be disturbed." Thomasson v. Thomasson, 225 Va. 394, 398,

302 S.E.2d 63, 66 (1983). "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).

Although the husband contends the trial judge erred in

awarding the wife $1,200 per month spousal support, the record

contains sufficient evidence concerning the relevant factors to

support the award. In particular, evidence was presented

concerning the parties' needs and standard of living. Based on

the evidence in the record, the judge did not err in awarding

spousal support.

The husband additionally contends the judge should have

imputed income to the wife in determining spousal support.

Although it is true that "[t]he party seeking spousal support

must earn as much as he or she reasonably can to reduce the

amount of the support needed," Konefal v. Konefal, 18 Va. App.

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612, 614, 446 S.E.2d 153, 154 (1994) (citation omitted), as we

held in the prior section, the husband presented no evidence

that the wife was foregoing more gainful employment.

Accordingly, the record supports the judge's award.

VI. Attorney's Fees

"The amount of counsel fees . . . [is] a matter for the

exercise of the sound discretion of the trial court. In the

absence of an abuse of this discretion, such an award will not

be disturbed." Ingram v. Ingram, 217 Va. 27, 29, 225 S.E.2d

362, 364 (1976). The judge's award to the wife of $5,000 in

attorney's fees was not unfair in light of the equities of the

parties as determined by the judge. We hold therefore that the

trial judge did not abuse his discretion.

Furthermore, we agree that an award of attorney's fees, as

requested by the wife, is warranted for this appeal. We

therefore remand to the trial judge for determination of

reasonable attorney's fees in connection with this appeal to be

awarded to the wife.

VII.

Upon our review of each of the thirty issues raised by the

husband, we conclude that the trial judge did not err.

Accordingly, we affirm the judgment and remand for determination

of attorney's fees to the wife.

Affirmed and remanded.

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