Joseph Kenneth Tatum v. Sarah Ruth Wofford Tatum

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia

SARAH RUTH WOFFORD TATUM

v. Record No. 0438-00-3

JOSEPH KENNETH TATUM MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
JOSEPH KENNETH TATUM DECEMBER 5, 2000

v. Record No. 0443-00-3

SARAH RUTH WOFFORD TATUM

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge

Cheryl Watson Smith (Mundy, Rogers & Frith,
L.L.P., on briefs), for Sarah Ruth Wofford
Tatum.

William H. Cleaveland (Rider, Thomas,
Cleaveland, Ferris & Eakin, P.C., on briefs),
for Joseph Kenneth Tatum.

Both Sarah Tatum (wife) and Joseph Tatum (husband) appeal the

circuit court's equitable distribution, spousal support, and child

support awards. Husband argues that the circuit court erred in

reopening its equitable distribution order to consider the value

and distribution of his stock options. Wife argues that the

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
circuit court erred in: (1) valuing husband's stock options on

the date of separation; (2) offsetting the husband's spousal

support obligation against wife's child support obligation;

(3) failing to consider the spousal support factors set forth in

Code § 20-107.1; (4) imputing income to her; and (5) awarding her

insufficient spousal support. For the following reasons, we

reverse and remand.

I. BACKGROUND

Husband and wife were married January 5, 1980. They were

divorced by final decree on May 27, 1997. Two children were born

to the marriage. Wife is a registered nurse, but at the time of

the parties' separation, wife had not been employed as a clinical

nurse for nearly fourteen years. During the marriage, husband was

employed by Wachovia Bank and, as part of his compensation,

husband received stock options, all of which were acquired during

the marriage and prior to the final separation. After the

divorce, husband exercised his options and purchased 4,700 shares

of stock for approximately $142,175. In December 1998, after

husband exercised the options, he sold the stock for over

$400,000.

A. Stock Options

A hearing on the equitable distribution issues was conducted

in June 1997 and the trial court entered an "Interlocutory Decree"

dated October 1, 1997, in which the trial court equitably

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distributed the parties' retirement accounts, vehicles, 401K plan,

and husband's interest in C&T Properties. The trial judge ordered

that the marital residence be sold and the parties divide the

proceeds equally and that "they shall endeavor to agree upon the

distribution of the household furnishings." The decree further

provided that the "court takes under advisement issues concerning

child support, spousal support, and an award of attorney's fees

and costs, pending the sale of the marital property and other

matters set forth in this order." At the hearings preceding the

October 1, 1997 decree, the parties presented no evidence

concerning the value or ownership of husband's stock options and

the decree did not mention the stock options. The decree provided

that in the event the parties were not able to agree upon the sale

or value of certain assets they "may set the matter for hearing."

In August 1998, after all other equitable distribution issues

had apparently been resolved, wife filed a notice for a "pre-trial

conference" "for the purpose of addressing a mechanism for the

resolution of the remaining issues in this matter." Wife

asserted, among other things, that the classification, evaluation,

and distribution of husband's stock options remained an issue to

be decided. In January 1999, wife filed a motion for entry of an

order finding that husband's stock options are marital property

and awarding wife an equitable share. The record shows that wife

was informed and knew of the existence of the stock options as

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early as November 22, 1996, when she was provided the information

concerning husband's ownership in "Supplemental Answers to

Defendant's Interrogatories."

The trial court referred the issue to a commissioner in

chancery. The commissioner opined that the trial court had

jurisdiction to hear and decide the issues concerning the stock

options because the trial court's October 1, 1997 decree was

interlocutory and was not a final decree equitably distributing

all of the parties' property. The commissioner specifically noted

that the October decree provided, with respect to the parties'

401K and thrift savings plan, "[t]hat the parties shall endeavor

to reach agreement concerning the value of said contributions. If

the parties are unable to reach agreement, then the parties may

set the matter for hearing." The commissioner further found that,

although husband informed wife of the stock options on or about

November 22, 1996, prior to the equitable distribution hearing,

the failure by either party to raise the issue at the equitable

distribution hearing was "a mutual mistake or oversight." Thus,

the commissioner ruled that the stock options were marital

property and that she would proceed to equitably distribute them.

She further ruled that the valuation date for the stock options

should be April 8, 1996, the date the parties separated, because

the parties agreed to that evaluation date as to the other

property at the December 21, 1998 hearing. The commissioner

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further found that as of April 8, 1996, the value of the options

"on paper" was $12,925 but, because of the speculative nature of

the options, they had zero marital property value.

The trial court's final decree dated January 27, 2000

provided:

[Wife's] failure to raise the stock options
as an issue at the equitable distribution
hearing in this matter in June 1997 was an
oversight by [wife]. The court concludes
that the Commissioner erred by finding that
the total value of the marital share of
stock was zero. The court finds that the
value of the Wachovia stock at issue was
$12,925 on the date of the separation of the
parties, April 8, 1996, and awards [wife]
50% of that sum, which is $6,462.50.

B. Child and Spousal Support

As to matters of child and spousal support, in May 1996, the

court had entered an interlocutory decree ordering that the

parties’ two children shall reside with wife at the marital

residence, husband shall pay wife $1,323 per month in temporary

child support, and pay the mortgage and utilities for the marital

residence. In February 1997, the circuit court modified the

spousal support award and ordered husband to pay wife $500 per

month in temporary spousal support. In April 1998, the juvenile

and domestic relations district court transferred custody of the

two children to husband and ordered wife to pay husband $128.31

per month in child support. Husband appealed the child support

order, arguing that wife should be required to pay more child

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support because she was voluntarily unemployed and income should

be imputed to her.

At the circuit court hearing conducted in March 1999, wife

testified that she had enrolled in the seminary at Baylor

University in Waco, Texas in November 1998. Prior to relocating,

wife had been employed at Gentle Shepherd Hospice for

approximately six months at an annual salary of $30,000 with the

possibility of earning "on-call pay." She voluntarily left that

employment in July 1998 because she was unhappy at the position

and was required to perform duties for which she was not

qualified. When she left her employment, wife knew that she

intended to pursue her studies in women's ministries. Wife

further testified that she could no longer pursue a career in

clinical nursing because she has been diagnosed with dyslexia.

At the time of the March 10, 1999 child and spousal support

modification hearing, wife was paying husband $128.31 per month in

child support and husband was paying wife $500 per month in

spousal support. Following the hearing on child and spousal

support, the trial court suspended both support obligations,

giving the following explanation:

The Court recognizes the authority it has to
order spousal support and certainly to order
child support. I don't know that I have
done this before, but, based upon any
figures I would have used and the tax
consequences to him deducting spousal
support and her having income on it and he
clearly having the exemptions of the two

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 child dependants, the Court finds that is
imminently equitable with all the history of
this case, certainly with the expense he is
about to incur and which I believe will be
incurred regarding counseling for these
. . . girls.

At a hearing on April 2, 1999, the trial court further

stated:

It was my opinion that when tax consequences
were considered on the spousal support and
the amount of child support that would have
been awarded and the acrimony between the
parties, that there would have been a
virtual equality in payment one to other,
that is, the former husband to the former
wife and vice versa, in spousal support and
the child support.

In an effort to limit and end this
litigation, the Court simply suspended both
based upon those very similar numbers and
based upon the total inability of these
people to communicate and get along hoping
that they could then communicate and deal
with one another with the children, who are
more important than any of these other
things that we are talking about.

I said to counsel on the face of it
that doesn't look like the proper thing for
the Court to do, but I hope everybody
understands why the Court did as it did on
the ongoing support payments.

II. ANALYSIS

A. Stock Options

1. Finality of October 1997 Decree

Neither party raised the issue of the stock options at the

June 1997 equitable distribution hearing. Husband contends that

the October 1, 1997 decree which followed that hearing was a

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final decree and Rule 1:1 precluded the trial court from

"reopening" the equitable distribution order to consider the

stock option issue. However, the trial court ruled that the

equitable distribution issues had not been finally litigated and

wife was not precluded from having that issue decided. After

considering the stock option evidence, the court valued the

stock options as of April 8, 1996, the date of separation, at

$12,925 and ordered that husband pay wife half of that sum.

"A final decree is one 'which disposes of the whole subject,

gives all the relief that is contemplated and leaves nothing to

be done by the court.'" Wells v. Wells, 29 Va. App. 82, 85-86,

509 S.E.2d 549, 551 (1999) (quoting Erikson v. Erikson, 19 Va.

App. 389, 390, 451 S.E.2d 711, 712 (1994) (internal quotation

marks and citations omitted)).

We agree with the trial court that the October 1, 1997

equitable distribution order did not dispose of all the equitable

distribution issues and, therefore, was not a final decree. The

decree provided for the sale of the marital residence and the

distribution of the proceeds, distribution of the husband's

retirement accounts, and distribution of husband's partnership

interest in C&T Properties. However, the trial court did not

determine the value of husband's interest in C&T properties or

equitably divide that asset. Rather, the court directed that the

parties shall either agree to the value of the husband's interest

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or engage the services of an appraiser. If the parties could not

reach an agreement, the matter would be scheduled for a hearing.

Clearly, the court was providing a method to evaluate this marital

asset. Further, the court stated, with respect to husband's

combined 401K and Thrift Savings Plan, that wife shall receive

one-half of the balance of the account, less any contributions

made by husband after the date of separation. The court ordered

that "the parties shall endeavor to reach agreement concerning the

value of said contributions. If the parties are unable to reach

agreement," then the matter may be set for a hearing. Here again

the court directed the method by which the court and parties were

to value this marital asset. Additionally, the trial court stated

that it was taking the attorney's fees and spousal and child

support issues under advisement, pending the sale of the marital

home.

Accordingly, we find that, although the October 1, 1997

equitable distribution order purported to distribute the parties'

assets, some of the assets had not been valued, and valuation was

contingent upon agreement of the parties or was pending a further

hearing. Therefore, the October decree was an interlocutory

decree, and the trial court retained jurisdiction to consider

further valuation and distribution of the marital assets.

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 2. Valuation of Stock Options

The trial court conducted the first evidentiary hearing on

the marital assets in June 1997 and entered its interlocutory

equitable distribution decree in October 1997. After the court

entered the interlocutory equitable distribution decree, wife

requested equitable distribution of husband's stock options. The

trial court conducted a separate hearing in September 1999 solely

for the purpose of determining the classification and value of the

stock options, all of which had been acquired during the marriage.

In December 1998, prior to the equitable distribution hearing,

husband had exercised the options and purchased the stock.

We hold that the trial court erred in finding that the value

of the marital asset was the value of the stock options as of the

date of separation, rather than the net value of the stock at the

time the stock had been sold. We do not agree that wife

acquiesced in using the date of separation as the date for valuing

the stock options merely because she may have agreed upon that

date for valuing other marital assets. The fact that she

acquiesced in using the separation date as the appropriate date

for valuing the property which the court was considering is not

binding where the court later considers the value of other

property that has significantly appreciated or depreciated in

value due solely to passive factors. The valuation date should be

that date which most accurately reflects the fair market value of

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the asset to the parties. See Rowe v. Rowe, 33 Va. App. 250,

264-65, 532 S.E.2d 908, 915-16 (2000).

Admittedly, had the court been required to value the stock

options as of the separation date, their value would have been

speculative as the special commissioner and trial court ruled.

However, because the valuation hearing for this asset took place

after the options had been exercised and after the stock had been

sold, the value of the marital asset had been fixed and the court

erred in not using the date of the evidentiary hearing to

determine the value of the asset.

"We have stressed that the trial judge in
evaluating marital property should select a
valuation '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, 790-91 (1991) (quoting
Mitchell v. Mitchell, 4 Va. App. 113, 118,
355 S.E.2d 18, 21 (1987)); see also Wagner
v. Wagner, 16 Va. App. 529, 531, 431 S.E.2d
77, 78 (1993) (en banc) (stating that "the
reasons for re-valuation on remand are the
same as in the original hearing -- to obtain
the most accurate valuation and equitable
distribution"). We held [in Mitchell] that
because the Code "does not fix a date for
determining the value of [the parties'
assets], the trial court must select a
valuation date if the parties cannot agree
to one." Mitchell, 4 Va. App. at 118, 355
S.E.2d at 21. The 1998 amendments to Code
§ 20-107.3(A) codified the rule announced in
Mitchell. Code § 20-107.3(A) provides:

"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

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 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 be used."

Rowe, 33 Va. App. at 263-64, 532 S.E.2d at 915.

Here, the court erred by not adhering to the mandate of

Code § 20-107.3(A) to use the date of the evidentiary hearing

for evaluating the marital asset. We hold, therefore, that the

trial court erred in failing to value the stock options as of the

date of the September 1999 evidentiary hearing, which was after

husband had exercised the options and the value of the asset had

become fixed. On remand, the trial judge shall determine the

actual net value of the stock as of the date of the evidentiary

hearing and shall then equitably distribute the net value of the

marital asset between the parties in accordance with the

provisions of Code § 20-107.3(E). While we note the husband

invested significant funds in order to exercise the options, on

these facts the capital investment to exercise the options, even

if partly from separate funds, was not at risk since the stock had

to be sold immediately and, therefore, the increase in value was

marital because it was not the result of the husband's active

efforts. See Code § 20-107.3(A)(1).

B. Child and Spousal Support

We next consider the propriety of the trial court's order

"offsetting" husband's spousal support obligation against wife's

child support obligation and suspending any child or spousal

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support awards. We hold that the trial court erred by offsetting

the support obligations, by failing to calculate and order the

payment of the child support and spousal support awards, and by

suspending the determination of the child or spousal support

award.

In April 1998, the juvenile and domestic relations district

court transferred custody of the parties' two children to husband

and ordered wife to pay husband $128.31 per month in child

support. While it is unclear from the record how the court

determined the $128.31 amount, apparently the juvenile and

domestic relations district court had awarded this amount based

upon the parties' actual incomes and by applying the child support

guidelines. The juvenile and domestic relations district court

also had ordered husband to pay wife $500 per month spousal

support. Thus, at the time the circuit court heard the child and

spousal support issues, the wife had been ordered to pay husband

$128.31 per month for support of the two children and husband had

been ordered to pay wife $500 per month for spousal support.

When the issues of child and spousal support then came before

the trial court for a permanent award, the wife took the position

that her $500 per month spousal support award should be increased

and that no income should be imputed to her for purposes of either

spousal or child support because she is a full-time student and is

not capable of gainful employment in her prior profession as a

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nurse. The husband contended, on the other hand, that wife is

fully capable of gainful employment as evidenced by her last

employment at an annual salary of $30,000 and that income should

be imputed to her for purposes of reducing her spousal support

award and increasing her child support obligation.

The trial court found that wife was voluntarily unemployed,

that she was capable of being gainfully employed, and imputed

income of $30,000 per year to her. However, without determining

the amount of child support to which the children were entitled or

the amount of spousal support to which the wife might be entitled,

the trial court then suspended husband's spousal support

obligation and wife's child support obligation.

As we have held, "pursuant to Code § 20-108.1(B) . . . the

court has an affirmative duty to calculate expressly the

presumptive guideline amount of child support under the

guidelines and, if it deviates from that presumptive amount, to

explain adequately the basis for such deviation." Herring v.

Herring, 33 Va. App. 281, 287, 532 S.E.2d 923, 927 (2000). "The

trial court's deviation from the child support guidelines

without first calculating and stating the presumptive amount of

support due constitute[s] reversible error." Id. at 283-84, 532

S.E.2d at 925. Moreover, an award that fails to state the

presumptive amount of the award or the basis and amount of the

deviation, does not provide an adequate basis for future

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modifications of support. See id. at 288-89, 532 S.E.2d at 927.

As we have stated,

to allow the non-conforming award to stand
without adequate explanation as to how the
amount of support was determined would
seriously handicap a court overseeing future
modification proceedings because that court
would have an insufficient understanding of
the manner in which the existing award was
set and the extent to which a change in
circumstances might warrant a change in the
amount of support.

Id. at 289, 532 S.E.2d at 927 (citation omitted).

Here, the trial court, failed to "calculate expressly the

presumptive amount of child support under the guidelines."

Although the pre-existing award of $128.31 per month from the

juvenile and domestic relations district court was presumably

based on the child support guidelines, the circuit court, when

considering permanent child support, is not relieved of the

responsibility to determine the presumptive amount based on the

child support guidelines. Even assuming that $128.31 would have

been the correct presumptive amount under the guidelines, by

offsetting or suspending the award the court deviated from the

guidelines without making a sufficient explanation, particularly

without addressing the effect that imputed income would have

upon the determination. Although husband asks us to approve the

trial court's ruling suspending his right to receive child

support, he does so provided we suspend and offset his obligation

to pay spousal support. We hold that husband's attempt to waive

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child support is ineffectual; the father cannot waive the

children's right of support from a parent. See generally Kelley

v. Kelley, 248 Va. 295, 298, 449 S.E.2d 55, 56 (1994)

("[P]arents cannot contract away their children's rights to

support nor can a court be precluded by agreement from

exercising its power to decree child support."). Child support

and spousal support involve separate rights and obligations

between different parties and are to be determined based on

separate statutory factors. Cf. Code §§ 20-107.1(E) and

20-108(B). For these reasons, a court is not authorized to

offset one support obligation against another or to suspend

those obligations. See Mosley v. Mosley, 30 Va. App. 828, 837,

520 S.E.2d 412, 416-17 (1999) (holding that "a disabled,

non-custodial parent may not receive credit for social security

disability payments in excess of that due for child support as

against past-due spousal support" because payments of child

support are for the benefit of the child and are based on the

child's status as a dependant of the non-custodial parent,

whereas spousal support is awarded based on the circumstances of

the parties' prior marriage); see also Poland v. Poland, 895

S.W.2d 670, 672 (Mo. Ct. App. 1995) (holding that husband was

not entitled to offset monies he owed wife for child support

against monies wife owed him pursuant to property settlement

agreement because wife received child support monies in trust

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for the benefit of the children). Accordingly, the court erred

in failing to expressly determine the child support award and

the spousal support award amounts and erred in offsetting the

awards against one another. Thus, we reverse the trial court's

ruling and remand the spousal and child support awards to the

trial court for determination.

In regard to the spousal support award, wife also contends

that the trial court erred by failing to consider the factors

articulated in Code § 20-107.1, by imputing $30,000 in income to

her, and by making an insufficient award of spousal support.

Because we have held that the trial court erred in its equitable

distribution decision in valuing the stock options and in

offsetting and suspending wife's child support obligation and

husband's spousal support obligation, on remand the trial court

must necessarily reconsider an award of spousal support in light

of the factors set forth in Code § 20-107.1(E). See Code

§ 20-107.1; Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d

422, 426 (1986) (holding that failure to consider the factors set

forth in Code § 20-107.1 in determining the spousal support award

constitutes reversible error). Therefore, we do not separately

address the insufficiency of the spousal support award or the

failure to apply the statutory factors since those matters will be

reconsidered on remand. However, because the trial court's

finding that wife was voluntarily unemployed and imputing $30,000

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in income to her will affect the support awards on remand, we must

address that issue.

"The decision to impute income is within the sound discretion

of the trial court and its [decision] 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) (citation

omitted). In determining whether to impute income, "the trial

court must consider the [parties'] 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 the children." Niemiec v.

Commonwealth, 27 Va. App. 446, 451, 499 S.E.2d 576, 579 (1998)

(citation omitted). Wife acknowledges that she voluntarily left

her prior employment to attend the seminary and that her

decision to do so rather than work is a sufficient basis to

support the imputation of income. However, she argues that the

amount of income imputed to her, $30,000, is not supported by

the record. We disagree. At the time wife voluntarily left her

employment with Gentile Shepherd Hospice, she was earning

$30,000 per year plus on-call pay. Although wife asserted that

she left her employment because she was displeased with the

hours and type of work, she admitted that she voluntarily

terminated her employment because she no longer wanted to pursue

a career in nursing. See Antonelli v. Antonelli, 242 Va. 152,

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156, 409 S.E.2d 117, 119-20 (1991) (finding that spouse is not

prohibited from voluntarily changing employment; however, when

the party, under a court-ordered obligation to pay child

support, chooses to pursue other employment, the risk of the

spouse's success is upon the spouse not the spouse's children).

Accordingly, we hold that the trial court's order imputing $30,000

annual income to wife, based on the facts that existed at the time

of the trial court's order, was not erroneous and shall be

considered by the trial court on remand to the extent that the

imputation justifies a deviation from the child support

guidelines, Code § 20-108.1(B)(3) and to the extent that it

affects a spousal support award, Code § 20-107.1(9), (10) and

(11). However, we note that, on remand, the trial court may need

to consider any change in circumstances which, including but not

limited to intervening employment, may have occurred during the

pendency of the appeal that would affect the amount of income

imputed to wife during any ensuing time periods.

For the foregoing reasons, we reverse the trial court's

decree and remand for further proceedings consistent with this

opinion.

Reversed and remanded.

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