COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
KEVIN B. CARR
MEMORANDUM OPINION * BY
v. Record No. 1848-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 7, 2002
MARY ELLEN CARR
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Timothy W. Barbrow for appellant.
Betty Moore Sandler (Nichols, Bergere,
Zauzig & Sandler, P.C., on brief), for
appellee.
Kevin B. Carr (husband) appeals a June 22, 2001 final
decree of divorce granting Mary Ellen Carr (wife) a divorce a
vinculo matrimonii on the ground that the parties had lived
separate and apart for more than one year. He contends that the
trial court erred in (1) using a valuation date that did not
provide an accurate value for husband's business, (2) failing to
remand the issue of valuation of his business to the
commissioner in chancery (commissioner), (3) failing to impute
income to wife in determining the amount of the spousal support
award, (4) failing to limit the duration of spousal support
awarded to wife, (5) setting an amount of monthly installments
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
due on the monetary award at $3,000 per month, and (6) awarding
wife attorney's fees and costs. Finding no error, we affirm.
I. PROCEDURAL HISTORY
Husband and wife were married on June 3, 1978. Husband
left the marital residence in June of 1998. Wife filed a bill
of complaint for divorce on April 22, 1999, seeking a divorce a
vinculo matrimonii on the ground that the parties had lived
separate and apart for one year. The matter was referred to a
commissioner by a September 26, 2000 decree. On January 25,
2001, the commissioner heard evidence and filed his report on
March 23, 2001. In it, he made specific findings on the
valuation of husband's business, the amount of spousal support
to be paid to wife, and an award of attorney's fees and costs to
wife. The trial court entered the final decree of divorce on
June 22, 2001, adopting the findings and conclusions of the
commissioner on these issues.
II. STANDARD OF REVIEW
"On review, we consider the evidence in the light most
favorable to the party prevailing in the trial court."
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
31 (1989).
"On appellate review, a divorce decree is presumed correct
and will not be overturned if supported by substantial,
competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va.
App. 77, 83, 448 S.E.2d 666, 670 (1994).
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"A commissioner's findings of fact which have been accepted
by the trial court are presumed to be correct when reviewed on
appeal and are to be given great weight by this Court. The
findings will not be reversed on appeal unless plainly wrong."
Barker v. Barker, 27 Va. App. 519, 531, 500 S.E.2d 240, 245-46
(1998) (internal citations omitted). "Because of the
presumption of correctness, the trial judge ordinarily must
sustain the commissioner's report unless the trial judge
concludes that it is not supported by the evidence." Brown v.
Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) (citing
Morris v. United Virginia Bank, 237 Va. 331, 337-38, 377 S.E.2d
611, 614-15 (1989)).
III. ALTERNATE VALUATION DATE
Husband first argues that it was error for the commissioner
to use 1998 as the valuation date for K & K Finishing Systems,
Inc., a marital asset, rather than January 25, 2001, the date of
the commissioner's hearing. Under the facts of this case, we
disagree.
Code § 20-107.3(A) provides, in pertinent part:
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.
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"We have stressed that the trial judge in evaluating
marital property should select a valuation [date] 'that will
provide the Court with the most current and accurate information
available which avoids inequitable results.'" Gaynor v. Hird,
11 Va. App. 588, 593, 400 S.E.2d 788, 790 (1991) (quoting
Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21
(1987)).
On December 18, 2000, wife filed a timely motion to use
1998 as an alternate valuation date. After hearing the evidence
presented, the commissioner determined that husband had not
provided information about the value of the business post-1998
in a timely and usable manner. He found that "it does appear
appropriate, that the business should be valued as of the date
of the last information [1998] provided by Mr. Carr to Mrs. Carr
for use by her expert, Mr. Stephens." Credible evidence
supports this finding.
Husband presented evidence that the value of K & K
Finishing Systems, Inc., based on his bookkeeper's computation
of total stockholder equity, was $134,918 at the end of 1998 and
approximately $96,000 at the end of 1999. Wife relied on the
testimony of William Stephens (Stephens), an expert in the area
of business valuations, who evaluated the business as a single
owner business, with no plans for immediate sale. He used both
the asset and income methods to arrive at a valuation with the
most recent information provided being the 1996-1998 financial
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statements. He then placed a value on the business as of
December 31, 1998, the most recent date for which he had
complete information. 1
The commissioner was not plainly wrong in finding that
Stephens "was working with the information that was available to
him at the time" or that it was "appropriate, however, that the
business should be valued as of the date of the last information
provided by Mr. Carr to Mrs. Carr for use by her expert, Mr.
Stephens."
IV. FAILURE TO REMAND ON VALUATION
Husband next argues the trial judge never ruled on the
alternate valuation date and that even if wife's expert did not
have sufficient time to include the 1999 information in his
valuation, the trial court should have remanded this issue to
the commissioner for further consideration. These contentions
are without merit.
"[A] trial court will usually have discretion to determine
the date on which an asset will be valued." Rowe v. Rowe, 33
Va. App. 250, 265, 532 S.E.2d 908, 916 (2000) (citing Mitchell
v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987)).
The commissioner, considering the evidence presented,
determined that 1998 was the appropriate date to use. Husband
1
We note that husband argues that he provided additional
information early in December 2000. However, the record does
not reflect that this was complete nor sufficient for wife's
expert to adequately value the business at a later date.
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filed exceptions to this finding, and the trial court overruled
these by accepting the commissioner's findings.
[T]his court adopts and incorporates herein
by reference the [c]ommissioner's
conclusions and findings of fact that
[husband's] company, K & K Finishing
Systems, Inc., has a value of One Hundred
Ninety-Nine Thousand Six Hundred and
Nineteen Dollars ($199,619.00) which should
be divided between the parties with
[husband] receiving seventy-five percent
(75%) and [wife] receiving twenty-five
percent (25%).
Thus, the motion for an alternate valuation date was ruled on by
the trial court and as noted above, no abuse of discretion has
been shown in the choice of date.
Additionally, the trial court was not required to remand
this issue for consideration of husband's later provided
financial information when he had the opportunity to present
this evidence at the time of the original hearing. See
Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107
(1989) (the burden is on the party to provide the trial court
with sufficient evidence to value the property); Clements v.
Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 260 (1990)
("reviewing courts cannot continue to reverse and remand . . .
cases where the parties have adequate opportunity to introduce
evidence but have failed to do so").
Thus, the trial court did not abuse its discretion in
affirming the commissioner's finding that 1998 was the
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appropriate valuation date nor was it required to remand the
case for additional evidence.
V. IMPUTED INCOME
Husband next contends that the trial court erred in failing
to impute income to wife because she was voluntarily working
part-time and should have sought full-time employment. The
record provides ample evidence to support the trial court's
refusal to impute income.
"The decision to impute income is within the sound
discretion of the trial court and its refusal to impute income
will not be reversed unless plainly wrong or unsupported by the
evidence." Blackburn v. Michael, 30 Va. App. 95, 102, 515
S.E.2d 780, 784 (1999) (citing Saleem v. Saleem, 26 Va. App.
384, 393, 494 S.E.2d 883, 887 (1998)).
"When asked to impute income to a [party], the trial court
must consider the [party's] earning capacity, financial
resources, education and training, ability to secure such
education and training, and other factors relevant to the
equities of the parents and children." Niemiec v. Department of
Social Services, 27 Va. App. 446, 451, 499 S.E.2d 576, 579
(1998) (citing Brooks v. Rogers, 18 Va. App. 585, 592, 445
S.E.2d 725, 729 (1994)). "The burden is on the party seeking
the imputation to prove that the other parent was voluntarily
foregoing more gainful employment, either by producing evidence
of a higher-paying former job or by showing that more lucrative
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work was currently available." Id. (internal citations
omitted). "The evidence must be sufficient to "'enable the
trial judge reasonably to project what amount could be
anticipated.'" Id. (quoting Hur v. Virginia Dept. of Social
Services Div. Of Child Support Enforcement ex rel. Klopp, 13 Va.
App. 54, 61, 409 S.E.2d 454, 459 (1991)). Husband failed to
meet this burden.
Wife, a nurse, had not worked outside the home for fifteen
years prior to the parties' separation. At the time of trial,
she worked twenty-five hours a week in a doctor's office and
earned approximately $1,936 per month. Wife showed a monthly
deficit of $1,274. Husband earned approximately $1,100 per
week. 2 It was undisputed that the parties' youngest child was
having significant behavioral and emotional issues caused by the
divorce. The commissioner stated that "given the circumstances
of the two younger children, particularly the parties' son, it
is appropriate that Mrs. Carr not be required at this time to
work full time." Credible evidence supports this finding.
Additionally, husband failed to present evidence that there
were full-time jobs available to wife. Husband's statement on
brief that "wife holds a degree in a profession where there is a
great demand" does not satisfy his burden of giving the trial
2
Because of the nature of husband's business and the manner
information was provided, the commissioner found in referencing
husband's income that "getting a firm figure on anything above
that is difficult."
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court sufficient evidence to allow the trial judge to reasonably
project the amount of anticipated income. Thus, the trial court
was not plainly wrong in refusing to impute income to wife.
VI. DURATION OF SPOUSAL SUPPORT
Husband also contends that the trial court abused its
discretion by failing to limit to four years his spousal support
obligation. He argues that the need for wife to work part-time
will cease when their youngest child reaches eighteen and, thus,
her need for spousal support will terminate at that time. We
find no abuse of discretion in failing to limit the duration of
wife's support.
Code § 20-107.1(C) provides that "[t]he court, in its
discretion, may decree that maintenance and support of a spouse
be made in periodic payments for a defined duration, or in
periodic payments for an undefined duration, or in a lump sum
award, or in any combination thereof."
"In awarding spousal support, the chancellor must consider
the relative needs and abilities of the parties. He is guided
by the . . . factors that are set forth in Code § 20-107.1.
When the chancellor has given due consideration to these
factors, his determination will not be disturbed on appeal
except for clear abuse of discretion." Collier v. Collier, 2
Va. App. 125, 129, 341 S.E.2d 827, 829 (1986).
"'In fixing the amount of the spousal support award, . . .
the court's ruling will not be disturbed on appeal unless there
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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 792, 794 (1997) (quoting Gamble v. Gamble, 14
Va. App. 558, 574, 421 S.E.2d 635, 644 (1992)).
"'[S]pousal support awards must be determined in light of
contemporary circumstances and . . . redetermined [if necessary]
in light of new circumstances.'" Blank v. Blank, 10 Va. App. 1,
4, 389 S.E.2d 723, 724 (1990) (quoting Jacobs v. Jacobs, 219 Va.
993, 995, 254 S.E.2d 56, 58 (1979)). "The court, in setting
support awards, must look to current circumstances and what the
circumstances will be within the immediate or reasonably
foreseeable future, not to what may happen in the future."
Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675,
679 (1990) (citing Young v. Young, 3 Va. App. 80, 81-82, 348
S.E.2d 46, 47 (1986)).
The trial court adopted the commissioner's findings that
wife showed a current support need of $875 per month. He
further found that "given the circumstances of the two younger
children, particularly the parties' son, it is appropriate that
Mrs. Carr not be required at this time to work full time." The
commissioner stated that wife "should be able to increase to
full time employment when the situation with the parties'
younger children, primarily their son, Adam, becomes more
stable."
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While husband argues that a change in wife's circumstances
is reasonably foreseeable because of the ages of the children,
wife's exact need for support four years hence cannot be
reasonably calculated at present. If supported by the evidence
at the time the children reach their majority, husband may
petition for termination of his support obligation at that time.
See Code § 20-109.
As we recently stated in Joynes v. Payne, 36 Va. App. 401,
551 S.E.2d 10 (2001), "[Code § 20-107.1] does not require the
trial court to specify the date of termination of a spousal
support award. In fact, the language allows the trial court to
order an award for an undefined duration." Id. at 423, 551
S.E.2d at 21. Thus, we cannot say that the trial court abused
its discretion in awarding wife "periodic payments for an
undefined duration."
VII. AMOUNT OF MONTHLY INSTALLMENTS
Next, husband contends that the trial court erred in
requiring him to pay $3,000 per month to satisfy the equitable
distribution award, costs, and fees awarded to wife because he
lacks adequate funds from which to make the monthly payment.
Code § 20-107.3(D) provides, in pertinent part, that "the
court has the power to grant a monetary award, payable either in
a lump sum or over a period of time in fixed amounts, to either
party."
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The record reflects no abuse of discretion. The payment
plan, in effect, gives husband an opportunity to pay his
equitable distribution award and costs over approximately a
five-year time span rather than having it due upon entry of the
order. Credible evidence supports the trial judge's finding
that husband has the ability to pay according to the payment
plan.
VIII. ATTORNEY'S FEES AND COSTS
Lastly, husband argues that the trial court abused its
discretion in awarding wife attorney's fees of $15,000, $1,250
as her half of the commissioner's fee and $5,000 toward the cost
of the valuation of husband's business.
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion 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) (citing Ingram v. Ingram, 217
Va. 27, 29, 225 S.E.2d 362, 364 (1976)).
"'Where . . . the trial court finds the wife needs and is
entitled to maintenance and support and the husband has the
financial ability to meet those needs, its failure to award
counsel fees to her is, in our opinion, an abuse of . . .
discretion.'" Poliquin v. Poliquin, 12 Va. App. 676, 681, 406
S.E.2d 401, 405 (1991) (quoting Thomas v. Thomas, 217 Va. 502,
505, 229 S.E.2d 887, 890 (1976)).
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"'[T]he key to a proper award of counsel fees . . . [is]
reasonableness under all of the circumstances revealed by the
record.'" Poliquin, 12 Va. App. at 682, 406 S.E.2d at 405
(quoting Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d
523, 530 (1988)).
Husband argues that his income of $56,000 per year is
insufficient to meet the $21,250 awarded to wife in attorney's
fees and costs. However, the commissioner notes that for 1998,
husband's "effective income" was $98,243 and if he assumed
additional duties as office manager he would have an effective
income of $127,902. Further, for 1999, husband had compensation
of $96,419 and, with the office manager adjustment, $126,078.
The commissioner noted that "it is clear that [husband] can
produce significant income, if he can refocus on his business
and give it the attention that he previously gave it."
Wife had incurred over $30,000 in attorney's fees and over
$10,000 in costs for the business valuation. Wife works
part-time at $16 per hour. Under these circumstances, the award
of a part of wife's attorney's fees and costs was reasonable.
Thus, the trial court did not abuse its discretion in awarding
wife attorney's fees.
IX. ATTORNEY'S FEES FOR APPEAL
Wife has requested attorney's fees for matters relating to
this appeal. Upon consideration of the entire record in this
case, we hold that wife is entitled to a reasonable amount of
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additional attorney's fees, and we remand for an award of further
costs and counsel fees incurred in this appeal.
For the foregoing reasons, we affirm the trial court and
remand for consideration of counsel fees on appeal.
Affirmed and remanded.
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