COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
PETER W. PANTAZES
MEMORANDUM OPINION * BY
v. Record No. 0129-00-4 JUDGE JAMES W. BENTON, JR.
DECEMBER 5, 2000
PATRICIA K. DREW PANTAZES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Chanda L. Kinsey (Kinsey, Lynch & Filipour,
on briefs), for appellant.
Michael A. Ward (Gannon, Cottrell & Ward,
P.C., on brief), for appellee.
Peter W. Pantazes appeals the final decree of divorce in
which the trial judge awarded spousal support to his wife,
Patricia K. Drew Pantazes, and distributed the couple's marital
property. He presents five issues for review. We affirm the
trial judge's ruling on all issues.
I.
The evidence proved that the parties were married in 1981,
that the husband attempted but failed to start a business between
1981 and 1984, and that he returned to work in 1986. He then held
various jobs until 1991 when he began employment with the
Department of Housing and Urban Development, where he still works.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The wife was employed at the Small Business Administration before
the marriage. During the marriage, she was employed in various
positions until 1989 when she became disabled. In 1992, she began
receiving disability checks.
The parties purchased a condominium in 1987. The husband
testified that after he moved away in March 1994, he continued to
make payments on the condominium in the amount of $1,000 a month
until November 1997. He ceased making payments on the marital
home after the wife inherited a substantial sum from her mother.
In the final decree, the trial judge ordered, inter alia,
that the wife would receive 60% of the jointly owned
condominium, that she would have the right to purchase the
husband's share of the condominium, and that the husband should
immediately transfer 50% of his interest in the Thrift Savings
Plan to the wife. The judge also ordered that the wife would
receive $1,000 a month in spousal support and that the husband
must pay $15,000 of the wife's attorney's fees.
II.
The husband argues that the trial judge erred in allowing the
wife to amend her cross-bill of complaint on the day of trial to
include a request for spousal support and in awarding spousal
support even though the wife never filed an amended pleading.
The record establishes that the husband filed a bill of
complaint on November 12, 1997, seeking a divorce a vinculo
matrimonii. The wife filed an answer and a cross-bill of
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complaint. Although both parties asked for a distribution of the
marital property in their pleadings, neither requested spousal
support. In January 1999, the wife filed a motion for spousal
support pendente lite and a notice of hearing. The husband
testified that he began paying spousal support of $375 per month
in April 1999 following the pendente lite hearing. Several months
later, the wife filed a notice to set a hearing on all the issues
in the case, including "spousal support." The parties then agreed
to a trial date on those issues.
Prior to the taking of evidence at trial, the husband sought
sanctions for the wife's failure to provide discovery and moved to
bar evidence regarding spousal support because the pleadings did
not request spousal support. Arguing that pendente lite support
had been awarded and that the parties had engaged in discovery
concerning spousal support, the wife orally moved "to amend [the]
pleadings to make a request for permanent spousal support." The
wife indicated she would not oppose a continuance if the husband
required additional preparation as a result of her motion.
The trial judge found that the husband "can[not] claim
surprise that support is an issue when there has been the amount
of discovery in this case, and . . . unobjected to pendente lite
[support]." He granted the oral motion to amend the pleadings and
also ruled, however, that the wife was precluded from asserting
that she received from her mother's estate less than $228,348,
which was the amount represented by husband's counsel.
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We have previously held that a court may not award support
without a request in the pleadings. Boyd v. Boyd, 2 Va. App. 16,
19, 340 S.E.2d 578, 580 (1986). "The office of pleadings is to
give notice to the opposing party of the nature and character of
the claim, without which the most rudimentary due process
safeguards would be denied." Id. Whether to grant an amendment
to pleadings, however, is a matter resting within the sound
discretion of the trial judge. Kole v. City of Chesapeake, 247
Va. 51, 57, 439 S.E.2d 405, 409 (1994). Furthermore, Rule 1:8
provides that "[l]eave to amend shall be liberally granted in
furtherance of the ends of justice."
The record supports the trial judge's rulings that the
husband had notice that spousal support would be an issue and
that the husband was not prejudiced by allowing this amendment.
The record establishes the parties exchanged information
regarding income and expenses, and it supports the trial judge's
ruling that the discovery was sufficient to allow the husband to
contest the spousal support issue. Furthermore, the husband
made no showing at the hearing that he needed additional
discovery. When the wife offered to agree to a continuance, the
husband did not assert that he needed more discovery.
Accordingly, we hold that the trial judge did not abuse his
discretion in allowing the wife to amend her pleading on the day
of trial.
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Furthermore, the absence of a written amended pleading does
not void the final decree. If the office of the pleading is to
provide notice, then the husband received sufficient notice of
the spousal support issue through the correspondence with the
wife's counsel and the notice to set a hearing date for spousal
support issues. The holding in Boyd does not affect our ruling
on this issue because in that case no party ever gave notice of
a request for spousal support in any form. Here, the wife gave
notice of her intent to request support.
III.
The husband argues that the trial judge abused his discretion
in his evidentiary findings and, consequently, in ordering
equitable distribution of marital property and spousal support in
accordance with the factors listed in Code §§ 20-107.1 and
20-107.3.
When a judge makes findings in a divorce proceeding in which
the parties present evidence ore tenus, those findings "are
entitled to the weight of a jury verdict and will not be disturbed
unless they are plainly wrong or without evidence to support
them." Lapidus v. Lapidus, 226 Va. App. 575, 580, 311 S.E.2d 786,
789 (1984). This principle applies particularly where the
credibility of witnesses is crucial to the determination of facts
and the trial judge makes findings based upon an evaluation of the
testimony of those witnesses. Gottlieb v. Gottlieb, 19 Va. App.
77, 83, 448 S.E.2d 666, 670 (1994). In the present case, the
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judge stated that "the credibility of witnesses is key to the
court's decision," and he found that "[the husband] was – to put
it mildly – not a credible witness."
The husband argues nevertheless that the trial judge erred in
determining his contributions to the marriage, monetary and
non-monetary, as required by Code §§ 20-107.1(E)(6) and
20-107.3(E)(1). The husband emphasizes his employment history, in
particular. The trial judge found, however, that "[t]he evidence
was very clear that [the husband], in essence, was unemployed from
the time of the marriage until 1991. . . . [I]t wasn't until 1991
that he went to work for the federal government at a significant
wage." The husband claims that such conclusions ignore the fact
that he returned to work in 1986 and that he supported his wife
after her disability.
Because the husband acknowledges that he was essentially
unemployed for the first five years of the marriage and because of
the limited salary of his employment before working for the
federal agency, the judge found that the husband's pre-1991
employment was "marginal." Furthermore, the judge relied on other
evidence of contributions, such as the wife's steady employment
history until the time of her disability and her receipt of
disability payments after that time. For these reasons, we cannot
say that the judge erred in finding that the contributions factors
favored the wife.
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In determining the "standard of living established during the
marriage," see Code § 20-107.1(E)(2), the trial judge found that
the parties had maintained a high standard of living and "ran in
. . . high political circles." The husband argues that the wife's
political appointment preceded the marriage and that the only
evidence on the issue indicated that their lifestyle was "modest."
This characterization, however, came from the husband's testimony,
which the trial judge found not to be credible. Furthermore,
other testimony supports the trial judge's finding that the
standard of living was "above normal" and provides other examples
of the couple's social and volunteer activities. Therefore, the
judge's rulings were not plainly wrong or without evidence to
support them.
The husband also argues that the trial judge impermissibly
ignored evidence that the wife had inherited income of $228,348
invested at a 10.4% interest rate and, therefore, the judge erred
when he determined the obligations, needs and financial resources
of the parties and their property interests, in accordance with
Code § 20-107.1. The husband claims that the judge's actions
constitute impermissible refusal to consider all the factors.
Before trial, the judge sanctioned the wife for refusing to
respond to discovery requests and ruled that the wife could not
present evidence that she had received less than $228,348 from her
mother's estate. Precluding the wife from presenting evidence on
this issue did not bind the judge to find the husband's evidence
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credible. For instance, the husband's evidence that the wife had
$228,348 included bank statements that were several years old; one
was from January 1984. Thus, there was not "sufficient evidence"
for the judge "to classify or evaluate marital or separate
property," and the trial judge was free to ignore this evidence.
Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987).
The husband also argues that the judge should not have found
him to be less credible than the wife. On brief and at oral
argument the husband speculated that the trial judge was affected
more by the impeachment of the husband than of the wife because
his impeachment occurred on the witness stand and hers occurred in
documents submitted to the court. We will not presume the trial
judge decided the issues in this case in this manner. The trial
judge has the discretion to believe or disbelieve evidence as long
as his findings have a credible basis.
The husband makes similar arguments regarding the tax
consequences of the property distribution, the age of the parties,
the date of acquisition of the condominium, the wife's income and
expenses, and the debts of the parties at the time of separation.
We find that the trial judge corrected any significant errors that
he made prior to issuing the final decree, that any remaining
errors were harmless, and that the trial judge correctly made
rulings based upon the credibility of the parties. See McDavid v.
McDavid, 19 Va. App. 406, 413, 451 S.E.2d 713, 718 (1994).
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IV.
The husband next contends that the trial judge erred in
ignoring the parties' stipulation that the wife shall receive a
50% share of his Thrift Savings Plan, "if as and when received."
Instead, the trial judge ordered an immediate transfer of this
asset. The husband argues that this ruling violates Code
§ 20-109.1 (providing for the affirmation of separation agreements
between parties) and Hart v. Hart, 27 Va. App. 46, 62, 497 S.E.2d
496, 503-04 (1998) (holding that a trial judge may not enter a
decree that is inconsistent with a valid agreement of the
parties). The husband's argument is not persuasive.
During the husband's testimony acknowledging he had a savings
plan, the following occurred:
Q. All right, sir. Do you also participate
in the Thrift Savings Plan?
A. Yes, sir.
Q. Have you participated in the Thrift
Savings Plan since the beginning of your
employment in 1991?
A. Yes, sir.
[Husband's Counsel]: Your Honor, just to
let the court know, my client will not
object to [the wife] receiving 50 percent of
the marital share of those plans.
THE COURT: All right.
[Wife's Counsel]: If as of and when he
receives it?
[Husband's Counsel]: If as of and when he
receives it.
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Although the parties said they would split evenly this
interest "if as . . . and when . . . receive[d]," no evidence
proved this asset was anything other than one immediately
available to the husband. The trial judge stated that the intent
of this agreement was "to do a normal marital share split." Thus,
he ruled that the interest in the plan "is going to be transferred
right now, that is what you do with thrift savings plans. . . .
[T]here is no if, as, and when as to a thrift savings plan."
The judge did not violate either the law or the stipulation
of the parties. The trial judge simply ruled concerning when the
moneys were available to the husband. The judge found that the
intent of the parties was to transfer the interest when it was
available. No evidence proved the funds were not immediately
available to the husband without discount. Thus, the trial judge
ruled in his discretion that the husband should receive and
transfer the interest immediately.
V.
The husband contends the trial judge should have ordered
the wife to re-finance the condominium mortgage to diminish her
need for spousal support. He argues that the judge's refusal to
do so, coupled with the decision to allow the wife to purchase
the husband's share of the condominium, was an abuse of
discretion. We disagree.
In Gamble v. Gamble, 14 Va. App. 558, 421 S.E.2d 635
(1992), we found an abuse of discretion when the trial judge
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linked the distribution of property under Code § 20-107.3
directly to the award of spousal support under Code § 20-107.1.
We ruled that the trial judge erred when he "fashioned" a
spousal support award "primarily for [the] purpose" of providing
"the financial means by which [the wife] could satisfy the
monthly mortgage obligations on the marital property she sought
and received under the provisions of Code § 20-107.3." 14 Va.
App. at 576, 421 S.E.2d at 646. We noted that maintaining an
appropriate separation "prevents a 'double dip' by a spouse who
seeks and receives encumbered property under Code § 20-107.3 and
also seeks and receives spousal support under Code § 20-107.1."
14 Va. App. at 577, 421 S.E.2d at 646-47.
In this case, although the trial judge ordered the spousal
support award at the same hearing at which he ordered the
parties to sell the home, he did not link the two. Responding
to the wife's request, he later amended that ruling to allow the
wife to retain the home and purchase the husband's share. Thus,
the order of spousal support preceded the wife's purchase of the
home. These facts distinguish this case from Gamble. We can
determine no impermissible connection between the spousal
support award in this case and the mortgage payments. Although
a reduction in the wife's mortgage payment might bear upon the
wife's expenses, and, thus, be a factor in her need for spousal
support, we cannot say the trial judge abused his discretion in
refusing to order the refinancing of the existing mortgage.
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VI.
The husband contends that the trial judge abused his
discretion in ordering him to pay the wife's attorney's fees.
The husband argues that the wife's recalcitrance in responding
to discovery requests and in answering questions at her
deposition added significantly to the legal bills she
accumulated. He also argues that her financial resources exceed
his.
An award of attorney's fees in a divorce case is a matter
within the sound discretion of the trial judge, and we will not
disturb such a decision absent an abuse of discretion. Broom v.
Broom, 15 Va. App. 497, 502, 425 S.E.2d 90, 93 (1992). If a
"'wife needs and is entitled to maintenance and support and the
husband has the financial ability to meet those needs,'" then
the trial judge has the authority to award attorney's fees to
the wife. 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)).
The trial judge found that the wife's income was
substantially less than the husband's because of her disability.
In arguing that the wife's resources surpass his own and,
therefore, she should pay her own attorney's fees, the husband
is merely asking us to revisit the substantive issues in the
case. The trial judge's findings were based on the evidence in
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the case. Thus, we find no abuse of discretion in the award of
attorney's fees to the wife.
For these reasons, we affirm the judgment.
Affirmed.
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Peter W. Pantazes v. Patricia K. Drew Pantazes
Combined Opinion