COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and
Retired Judge Kulp *
Argued at Alexandria, Virginia
JUDITH CARLISLE
MEMORANDUM OPINION ** BY
v. Record No. 0306-99-4 JUDGE CHARLES H. DUFF
JUNE 6, 2000
GEORGE CARLISLE
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Judith Carlisle, pro se.
Edward V. O'Connor, Jr. (Byrd Mische P.C.,
on brief), for appellee.
Judith Carlisle (wife) appeals the final decree of divorce
entered on December 11, 1998, ending her marriage to George
Carlisle (husband). Wife contends that the trial court erred by
(1) permitting husband to have unsupervised visitation with the
parties' daughter; (2) imputing income to wife, and adjusting
spousal support and child support, as of the then future date of
September 1, 1999; (3) improperly awarding wife rehabilitative
support disguised as a lump sum amount of spousal support paid in
installments rather than awarding her permanent spousal support;
*
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
(4) denying wife attorney's fees; (5) finding wife contributed to
the waste of marital assets; (6) failing to compensate wife for
husband's waste of marital assets; and (7) relying upon the
Fairfax County pendente lite child and spousal support guidelines
rather than wife's needs. We find substantial evidence in the
record supports the findings of the trial court, and affirm its
decision.
On appeal,
[u]nder familiar principles, we view the
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below . . . . "The burden is on the
party who alleges reversible error to show
by the record that reversal is the remedy to
which he is entitled." We are not the
fact-finders and an appeal should not be
resolved on the basis of our supposition
that one set of facts is more probable than
another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992) (citations omitted). The parties married in July 1992,
and their only child was born in January 1993. The parties'
marriage was marked by serious conflict, including physical
violence, leading to their separation in June 1997. There were
several pendente lite hearings and an additional multi-day
hearing August 31 through September 2, 1998. The trial court
issued the final decree of divorce on December 11, 1998.
Visitation
"In matters concerning custody and visitation, the welfare
and best interests of the child are the 'primary, paramount, and
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controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The
trial court is vested with broad discretion to make the
decisions necessary to safeguard and promote the child's best
interests. See Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990).
"Because the trial court heard the evidence
at an ore tenus hearing, its decision 'is
entitled to great weight and will not be
disturbed unless plainly wrong or without
evidence to support it.'" "Absent clear
evidence to the contrary in the record, the
judgment of a trial court comes to an
appellate court with a presumption that the
law was correctly applied to the facts."
Brown v. Burch, 30 Va. App. 670, 684, 519 S.E.2d 403, 410 (1999)
(citations omitted). "Code § 20-124.3 specifies the factors a
court 'shall consider' in determining the 'best interests of a
child for . . . custody or visitation.'" Brown v. Brown, 30 Va.
App. 532, 538, 518 S.E.2d 336, 338 (1999). "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."'"
Id. (citations omitted).
Wife alleged that husband abused her and the child due to
his violent temper. Husband admitted that he was an alcoholic
and had previously used drugs, but testified that he had been
sober for five years as of the September 1998 hearing. Wife
also alleged that husband was a pedophile who had sexually
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abused the parties' daughter. Child Protective Services
conducted an investigation which reached a conclusion that the
allegations were unfounded, but the investigator noted that she
found "red flags" concerning the behavior of both parents.
In addition to the evidence presented during the several
pendente lite hearings and the September 1998 hearing, the court
also received a report from Gregory L. Fissell. Fissell was a
counselor from the juvenile and domestic relations district
court who conducted a series of interviews with the parties and
the child. Based upon the extensive evidence received, the
trial court determined that it was in the best interests of the
child for her to have increased visitation with husband. The
trial court found that both parties had "relational
difficulties." The trial court also noted that, although none
of the allegations of sexual abuse by husband were proven, some
testimony concerning possible sexual abuse was presented that
the court found persuasive. Accordingly, the trial court ruled
that there would be no unsupervised, overnight visitation
between the child and husband. The trial court allowed husband
to have regular, unsupervised visitation during the day,
beginning in two months. The trial court also ordered the
parents and other involved persons to provide Fissell with all
pertinent information, particularly that from mental health
professionals, by November 1, 1998, and required that husband
undergo a psychological evaluation.
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While wife contends that the trial court failed to consider
the evidence of husband's behavior, the record demonstrates that
the trial court carefully considered and weighed all the
evidence presented. Its decision focused on the child's best
interests, while seeking to protect her from any possible abuse,
whether sexual, emotional or physical. We cannot say that the
visitation decision of the trial court was plainly wrong.
Spousal Support
The record supports the trial court's decision to award
wife a lump sum award of spousal support, and to impute income
of $30,000 to her beginning September 1999.
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 a clear abuse of
discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986). This Court has noted that "[g]enerally, when courts do
make lump sum spousal support awards they do so because of special
circumstances or compelling reasons, and appellate courts uphold
such awards where the record clearly reflects the court's
rationale for finding that the award will adequately provide for
contingencies." Blank v. Blank, 10 Va. App. 1, 5, 389 S.E.2d 723,
725 (1990). The record demonstrates that the trial court's award
of the lump sum payable over a year was based upon the parties'
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circumstances, including the duration of the marriage, the wife's
demonstrated earning ability based upon her past employment, as
well as her current needs. We cannot say that the evidence fails
to support the trial court's decision to make a lump sum award to
wife.
In addition, we find no error in the trial court's decision
to impute income to wife. Wife earned as much as $48,000
annually during the marriage. In her last employment, she
earned approximately $33,000. Wife lost her position in early
1998 due to her repeated absences and tardiness. No evidence
supports her allegation that husband's behavior caused her to
lose this position.
Wife also contends that the trial court's lump sum award
was an improper attempt to award spousal support for a defined
duration as allowed under the current provisions of Code
§ 20-107.1. Wife correctly notes that the amended provisions of
Code § 20-107.1 do not apply to this case because it was filed
prior to July 1, 1998. The trial court found that currently
"[wife] should be making $2,500 a month," but nonetheless
allowed her an additional period of time before imputing that
income. The trial court found that a lump sum, payable in
monthly installments, was appropriate under the circumstances to
meet wife's needs. The trial court also noted that wife had
failed to properly manage the pendente lite support award of
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$700. We find no error in the trial court's framing of wife's
spousal support.
While wife contends that she is unable to work due to a
medical condition, no evidence supports that assertion. The trial
court found that both parties were in good health. In addition,
no evidence supports wife's contention that the trial court erred
by failing to impute additional income to husband. The evidence
indicated that husband continued to earn a salary comparable to
what he earned during the marriage.
In her exceptions to the trial court's decision, wife did not
include any objection based upon the failure of the trial court to
reserve a right to modify spousal support in the future. In
addition, wife did not seek a reservation of the right to support
in the future. Therefore, wife may not raise that issue for the
first time on appeal. See Rule 5A:18; Lee v. Lee, 12 Va. App.
512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). The trial court found that wife was able to earn at least
$30,000 annually, and had earned $48,000 annually during the
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marriage; that she had hired three separate attorneys in the
course of the proceedings; that wife initiated a number of the
legal proceedings; and that wife avoided one set of attorney's
fees by filing for bankruptcy. Based on the number of issues
involved and the respective abilities of the parties to pay, we
cannot say that the trial court abused its discretion in ordering
the parties to bear their own attorney's fees.
Waste of Marital Assets
Wife contends that the trial court erred when it ruled that
both parties were responsible for the waste of marital assets.
"Waste or dissipation of assets occurs when 'one spouse uses
marital property for his own benefit and for a purpose unrelated
to the marriage at a time when the marriage is undergoing an
irreconcilable breakdown.'" Anderson v. Anderson, 29 Va. App.
673, 694, 514 S.E.2d 369, 380 (1999) (quoting Amburn v. Amburn,
13 Va. App. 661, 666, 414 S.E.2d 847, 850 (1992)). Whether
waste has occurred is a matter to be determined by the trial
court based upon the evidence presented. See Alphin v. Alphin,
15 Va. App. 395, 403, 424 S.E.2d 572, 576 (1992). The record
demonstrates that the parties acquired two pieces of real
property during the marriage, but that both parcels were lost
when the parties failed to make the necessary mortgage payments.
The parties blamed each other for the failure to make payments.
We find no error in the trial court's finding that both parties
committed waste. We find no merit in wife's contention that
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husband's culpability exceeded hers and, therefore, she was
entitled to compensation for her share of the forfeited marital
property.
Pendente Lite Support Guidelines
Wife presented no argument on this alleged error. It is
well established that "statements unsupported by argument,
authority, or citations to the record do not merit appellate
consideration. We will not search the record for errors in
order to interpret the appellant's contention and correct
deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53,
56, 415 S.E.2d 237, 239 (1992). Therefore, we decline to
address this issue.
Accordingly, as we find substantial evidence in the record
supporting the decision of the circuit court, we affirm.
Affirmed.
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