COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Salem, Virginia
RODNEY EMIL DEANE
MEMORANDUM OPINION * BY
v. Record No. 2347-98-2 JUDGE SAM W. COLEMAN III
JULY 20, 1999
REGENIA LYNN DEANE
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
William C. Scott IV (Ronald R. Tweel;
Michie, Hamlett, Lowry, Rasmussen & Tweel,
on briefs), for appellant.
John K. Taggart, III (Patricia D. McGraw;
Tremblay & Smith, LLP, on brief), for
appellee.
Following the entry of a final divorce decree on May 19,
1997, Rodney Emil Deane (husband) and Regenia Lynn Deane (wife),
filed numerous post-decree motions requesting that the trial
court correct errors on the face of the record, clarify its
rulings, and modify child and spousal support. As a result, the
trial court entered a decree on September 16, 1998, modifying
child and spousal support nunc pro tunc. The modification
created instant support arrearages. That decree also found that
no agreement existed between the parties to divide certain
*Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
marital assets and further found that it no longer had
jurisdiction to equitably divide those assets since the divorce
decree had became final for more than twenty-one days.
Husband appeals the September 16, 1998 decree contending
that the trial court lacked jurisdiction to modify support and,
alternatively, that it erred in calculating the appropriate
modification and resulting arrearages. Wife, who also appeals,
contends that the trial court erred by finding that the parties
had not agreed on an equitable division of certain marital
assets. Alternatively, she asserts that the trial court ordered
that all marital assets be equally divided and that ruling
controls the assets in question.
We find that the trial court did not err in holding that
the final divorce decree did not equitably divide certain
marital assets and that the parties did not enter into an
enforceable equitable distribution agreement. As to the child
and spousal support issues, we find that the trial court had
jurisdiction to modify support prospectively from the date the
motion to modify was filed, but did not have authority to modify
support retroactively. Finally, we find that the trial court
erroneously calculated the adjustment to the spousal support
award. Accordingly, we affirm the trial court's rulings in
part, but reverse the spousal support ruling and remand the case
for the trial court to correct the modification of the spousal
support award.
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BACKGROUND
Wife filed a bill of complaint for divorce. Following ore
tenus hearings, the trial court entered a final divorce decree
on May 19, 1997, which neither party appealed. The final decree
awarded wife $698.28 per month for child support and $924.06 per
month for spousal support. Also, the decree, which equitably
distributed some of the parties' marital property and debt, did
not reserve the right to distribute the remaining marital
property as authorized by Code § 20-107.3(A). See Christensen
v. Christensen, 26 Va. App. 651, 654-55, 496 S.E.2d 132, 133
(1998).
On September 24, 1997, wife filed a "Motion to Correct
Errors" apparent on the face of the record. The motion asserted
that the final decree had failed to include a provision setting
forth the trial court’s spousal support award and that the trial
court failed to include a provision dividing certain marital
property, namely Mercury Services, Express Car Wash Company, and
Express Charlottesville (hereinafter, the "undivided assets").
After hearing evidence on wife's "Motion to Correct
Errors," the trial court ruled that the final decree contained a
ministerial error in that it omitted the court's prior ruling
awarding spousal support. Additionally, after reviewing the
transcripts, the court ruled that the parties had reached no
agreement regarding the undivided marital assets, and therefore,
the court had not erred in the final decree by omitting a
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provision enforcing the purported agreement or by refusing to
divide those assets. Thus, the trial court entered a decree on
October 24, 1997, incorporating these rulings. Neither party
appealed that decree.
On December 2, 1997, wife filed a "Motion for
Clarification" in which she alleged that in the October 24, 1997
decree the trial court failed to
address the issue of whether the respondent
continues to be obligated under the May 19,
1997, order to divide income with the
Complainant as provided therein 1 and if the
court so finds, whether he is in contempt of
court for failure to either pay her any
funds from these assets for the last year or
to provide her any accounting of the same.
Wife asserted in her motion to clarify "[t]hat in computing
child and spousal support, the Court added $3,658.00 of unearned
income to Complainant’s salary from those [undivided] assets,
however, Complainant has never receive[d] any income" from those
assets after entry of the final decree. In other words, the
court had based its support award upon the fact that at the time
of the award wife was receiving one-half of the income from the
undivided marital assets, which husband stopped paying her after
entry of the final divorce decree. Wife requested that the
1
The May 19, 1997 decree incorporated the trial judge's
May 6, 1997 letter opinion in which the court made a finding as
to the parties’ respective incomes for the purpose of
calculating support. In the opinion letter, the trial court
allocated half the income to each spouse from each of the
"undivided assets."
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trial court either order husband to pay one-half the accrued
income from the undivided assets or to modify the support award
nunc pro tunc to reflect that she had not received the income
but husband had retained it.
On May 26, 1998, the trial court ruled on the "Motion for
Clarification" in a letter opinion which stated that as to
"equitable distribution of the property of the parties, the
Court finds the parties never did agree to a division of [the
undivided assets]" and "[t]here has been no division of those
assets by the Court." As to spousal support, the court noted
that it had calculated the wife's support award based upon the
fact that the parties were equally dividing the income from the
undivided assets and the assumption that the equal division
would continue.
On July 16, 1998, the trial court conducted a hearing
concerning the undivided marital assets and whether to adjust
the child and spousal support awards in light of the fact the
wife did not receive the asset income and that the husband had
received this additional income.
Based upon the parties' revised income statements, the
trial court ruled that both parties agreed that the wife had not
received a substantial portion of the asset income upon which
both support awards had been based. The court found that this
constituted a material change in circumstances justifying
modification of the support obligations as authorized by Code
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§§ 20-108 and 20-109(A). Based on the revised income
statements, the trial court recalculated the parties’ incomes
and ordered an increase in child support effective nunc pro tunc
to November 1, 1996, which was the effective date of the
original support award. The modification resulted in the
husband owing wife child support arrearage.
As to spousal support, the trial court had determined in
its May 6, 1997 letter opinion that wife’s after-tax child and
spousal support need totaled $1,432. Because at the time of the
July 16, 1998 hearing wife was earning $298.33 per month less
than the trial court had contemplated in it prior award, the
trial court added $298.33 to the previous combined awards of
$1,432 resulting in a new combined income need of $1,730.33.
The court then subtracted the newly calculated child support
figure ($728.98) from the newly calculated combined need
resulting in a net spousal support need of $1,001.35. Then,
adjusting for income taxes at the rate previously considered,
the trial court adjusted the spousal support award nunc pro tunc
from $1,001.35 to $1,253.69. The court modified the award
effective to November 1, 1996, the effective date of the
original support award. As a result of the modification,
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husband owed wife a total child and spousal support arrearage of
$7,662.19. 2
As to the undivided assets, which the court had previously
found not to be affected by an agreement between the parties,
the court ruled that the properties were owned solely by
husband. The court further held that it had no authority to
divide these assets or to make a monetary award pursuant to Code
§ 20-107.3(C) or (K). Both parties objected to the court's
rulings and decree. Husband claims that the trial court's
rulings and decree as to child and spousal support were barred
by Rule 1:1 and that the court erred in calculating the support
modification. Wife claims that the trial court erred by
refusing to honor the parties' agreement to equally divide the
undivided assets or to equally divide those assets in accordance
with its ruling.
2
Ordinarily, to calculate child support a court must include
spousal support in the gross income of the receiving spouse and
deduct spousal support from the gross income of the paying
spouse. See Frazer v. Frazer, 23 Va. App. 358, 381, 477 S.E.2d
290, 301 (1996). Accordingly, a trial court should first
calculate spousal support and then child support. Here,
however, husband explicitly waived his right to have the trial
court consider spousal support in calculating child support.
The court began by establishing wife's after-tax total income
need and thereafter subtracted from that figure child support to
arrive at her spousal support need. Unconventional though this
method was, the husband expressly consented to it.
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ANALYSIS
Jurisdiction to Modify Support
A trial court has continuing jurisdiction to modify child
and spousal support upon finding that a material change in
circumstances warrants modification. See Code § 20-108;
§ 20-109; Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73
(1992); Watkinson v. Henley, 13 Va. App. 151, 156, 409 S.E.2d
470, 472-73 (1991).
Husband contends that because neither party moved for
modification, the issue was not properly before the court. We
disagree and find that the trial court had authority and
jurisdiction to modify child and spousal support in its
September 16, 1998 decree.
In regard to child support, Code § 20-108 specifically
states that the court may modify a support award on its own
motion. Notwithstanding that provision, we find that wife's
"Motion for Clarification" placed the issues of child and
spousal support modification before the court. In that motion,
wife requested that the trial court order husband to pay wife
one-half the income from the undivided assets "or in the
alternative to recompute child support and spousal support nunc
pro tunc to May 19, 1997, to accurately reflect that the only
income she receives is from her salary." We find this motion,
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filed December 2, 1997, constitutes a motion to modify child and
spousal support on behalf of wife. 3
Authority to Modify Retroactively
Although the trial court had jurisdiction to modify spousal
support, the trial court erred by ordering the modification
effective retroactively to November 1, 1996. A trial court only
has authority to modify child and spousal support prospectively
from the date of filing of the petition for modification. See
Code § 20-108 ("No [child] support order may be retroactively
modified."); Code § 20-109 (granting the trial court authority,
upon petition of either party, to modify spousal support "that
may thereafter accrue" (emphasis added)); Reid v. Reid, 245 Va.
409, 414, 429 S.E.2d 208, 211 (1993). The "Motion for
Clarification" was filed December 2, 1997; the trial court could
only modify the support awards effective as of that date.
Calculating the Modifications
Additionally, we find that the trial court erred in
calculating the correct modification of spousal support. A
3
We reject wife’s assertion that the trial court had
authority to "correct" the decreed support awards pursuant to
Code § 8.01-428(B). The original support awards were not errors
apparent on the face of the record that could be corrected
without further litigation. See Cutshaw v. Cutshaw, 220 Va.
638, 641, 261 S.E.2d 52, 53 (1979) (stating that the trial court
has the authority to correct the record "when the record clearly
supports such correction"). The trial court based the original
support awards on the evidence of the parties’ income. The
trial court based the modification on new evidence of income.
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spouse’s entitlement to a spousal support award and the amount
of that award are committed to the sound discretion of the
judge. See Stubblebine v. Stubblebine, 22 Va. App. 703, 707,
473 S.E.2d 72, 74 (1996). The only changes of circumstances
were that wife’s income had decreased by $298.33 and husband’s
income had increased by $298.33.
First, using the statutory child support guidelines and the
parents' modified income figures, the trial court modified
husband's child support obligation from $694.28 to $728.98 per
month. Next, to calculate the modified spousal support award,
the trial court determined that it would award wife the same
after-tax child and spousal support that it had previously
awarded, which was $1,432. 4 Because wife was in fact receiving
$298.33 less income than the trial court had contemplated when
it determined her combined after-tax support need, the trial
court added $298.33 to the combined need figure resulting in a
new combined need of $1,730.33 ($298.33 + $1,432.00 =
$1,730.33). The court subtracted the newly calculated child
4
The trial court had previously ordered $694.28 of child
support and $924 of spousal support, which resulted in the total
support figure of $1,432 (after applying a 20.13% tax to spousal
support). In the May 6, 1997 letter opinion, the trial court
refers to a tax rate that wife agreed to in an April 18, 1997
letter that is not in the record. Although the court did not
articulate that rate, it appears to have applied a 20.13% tax.
In the September 16, 1998 decree, the trial court again
calculated the tax at the same 20.13% rate. We, therefore,
accept that rate in our review and calculations.
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support ($728.98) from the newly calculated combined need
resulting in a figure of $1,001.35 ($1,730.33 - $728.98 =
$1,001.35). Then, adjusting for income taxes at the 20.13%
rate, the trial court adjusted the spousal support from
$1,001.35 to $1,253.69.
We find that the trial court intended to modify the support
awards in a manner that would provide wife the same net monthly
income that the trial judge had contemplated in the May 6, 1997
award. However, based on our review of the calculation, it
appears that the modification resulted in a net combined support
award greater than the net award contemplated in the previous
decree -- the error resulting from the fact that the trial court
compensated for wife's $298.33 decrease in taxable income by
awarding her a $298.33 increase in after-tax income.
According to our calculation, wife’s monthly income as
contemplated by the May 6, 1997 opinion letter would have been
as follows: her taxable income exclusive of support was
$2,957.50; her spousal support was $924; thus, her taxable
income was $3,881.50 ($2,957.50 + $924.00 = $3,881.50).
Applying the 20.13% tax, her net after-tax monthly income and
support was $3,100.15. The trial court awarded child support at
$694.28. Thus, wife's total after-tax monthly income and
support was $3,794.15.
Under the September 16, 1998 modified award, the trial
court determined that wife’s income exclusive of support was
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$2,659.17. The trial court awarded spousal support of
$1,253.69. Thus, wife’s monthly taxable income was $3,912.86
($2,659.17 + $1,253.69 = $3,912.86). Applying the 20.13% tax
rate, her after-tax income, exclusive of child support, would be
$3,125.20. The trial court awarded child support of $728.98.
Therefore, her total after-tax monthly income, as modified,
would be $3,854.18. Accordingly, the September 16, 1998 decree
awarded wife $60.03 more net income per month than the trial
court had contemplated in its May 6, 1997 award
($3,854.18 - $3,794.15 = $60.06). 5
The Undivided Assets
Finally, we hold that the trial court did not err in its
September 16, 1998 decree by refusing (1) to divide the
5
In order to modify wife’s spousal support so that she would
receive the monthly income contemplated under the May 6, 1997
award, the trial judge should have awarded wife $1,178.53 in
spousal support. That figure is calculated as follows: the
target after-tax monthly income was $3,794.15. The court
awarded the modified child support in the amount of $728.98.
Thus, wife needed an additional $3,065.17 of after-tax dollars
in order to receive $3,794.15 ($3,794.15 - $728.98 = $3,065.17).
Wife's modified income exclusive of all support and adjusted for
tax was $2,123.88 ($2,659.17 – [.2013 x $2,659.17] = $2,123.88).
Thus, in order to attain the contemplated total net monthly
income, wife required a spousal support award that would
increase her net income by $941.29 ($3,065.17 – $2,123.88 =
$941.29). Adjusted for taxes, a spousal support award of
$1,178.53 yields the requisite after-tax amount of $941.29
($1,178.53 – [.2013 x $1,178.53] = $941.29). Thus, in order to
adjust for the wife's $298.33 monthly decrease in taxable
income, the trial court would have needed to modify the spousal
support award from $924 to $1,178.53 instead of $1,253.69.
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undivided marital assets, (2) to order a monetary award for
wife’s interest in the undivided marital assets, or (3) to order
husband to pay her one-half the income from the undivided
assets. On May 19, 1997, the trial court entered a final decree
that addressed all matters of equitable distribution. In that
decree the trial court did not divide the undivided assets, did
not incorporate or recognize any agreement between the parties
which divided those assets, did not award a division of the
income from those assets, did not order a monetary award to wife
for her share of the value in the undivided assets, and did not
retain jurisdiction over matters of equitable distribution.
Neither party appealed the decree and it became final twenty-one
days after its entry. See Rule 1:1.
Accordingly, on December 2, 1997, when wife requested that
the trial court revisit the division of income from the
undivided assets, the trial court had no jurisdiction to do so.
Therefore, the trial court did not err by refusing to revisit
the issues in the September 16, 1998 decree which the parties
presently appeal.
CONCLUSION
In summary, we hold that the trial court had authority to
modify the child and spousal support awards prospectively and
retroactively until December 2, 1997. Therefore, on remand the
arrearage resulting from the modification shall be determined as
of that date. Additionally, we find that the trial court erred
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by compensating for a $298.33 reduction in taxable income by
creating a $298.33 increase in after-tax income. Thus, on
remand the trial court shall modify its spousal support award in
accordance with the conclusions of this opinion. We hold that
the trial court did not err in refusing to equitably distribute
the undivided assets in the September 16, 1998 decree. Finally,
we find both parties had reasonable grounds for this appeal and,
therefore, we deny their respective requests for awards of
attorneys' fees. See Gayler v. Gayler, 20 Va. App. 83, 87, 455
S.E.2d 278, 280 (1995). Accordingly, we affirm in part but
reverse and remand the spousal support award for entry of a
decree consistent with this opinion.
Affirmed, in part,
reversed and remanded,
in part.
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