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.
- 2 -
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).
- 3 -
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
- 4 -
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.
- 5 -
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
- 6 -
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
- 7 -
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
- 8 -
(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
- 9 -
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
- 10 -
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
- 11 -
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
- 12 -
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.
- 13 -
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.
- 14 -