COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
STEVEN EDWARD MITCHELL
MEMORANDUM OPINION *
v. Record No. 2283-97-3 PER CURIAM
APRIL 14, 1998
ELIZABETH JANE THOMPSON MITCHELL
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
(Burton L. Albert, on brief), for appellant.
(Richard Lee Lawrence; Sam Garrison, on
brief), for appellee.
Steven Edward Mitchell (husband) appeals the decision of the
circuit court awarding spousal support to Elizabeth Jane Thompson
Mitchell (wife) and deciding other issues. Husband contends that
the trial court erred by (1) failing to impute income to wife in
connection with its determination of spousal support; (2) making
findings of fact which were not supported by evidence; (3)
including non-marital assets as part of the marital estate; (4)
valuing assets as of a date other than the equitable distribution
hearing without a motion from either party seeking an alternative
valuation date; (5) awarding wife the maximum marital share of
husband's 401(k) pension plan; and (6) considering matters
outside the record. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
Spousal Support
Husband contends that the trial court erred by failing to
impute income to wife before awarding her spousal support.
Husband also challenges the trial court's finding that wife was
depressed due to the break-up of the marriage and his adultery.
A party seeking spousal support is obligated to earn as much
as reasonably possible in order to reduce the amount of support
needed. See Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396
S.E.2d 675, 679 (1990). In keeping with this principle, a court
may, under appropriate circumstances, impute income to a party
who seeks spousal or child support. See id. However, the
decision to impute income is left to the discretion of the trial
court.
The evidence established that, at the time of the hearing,
wife suffered from major depression. Her doctor opined that she
was disabled from working because she had trouble focusing and
concentrating. While wife was trained as a nurse and had earned
$30,000 per year in the past, she had not earned that amount in
several years prior to the parties' separation. Wife's earnings
from selling cosmetics had been minimal.
The trial court found that wife had a demonstrable ability
to earn at least $20,000 per year as a nurse, but that she was
unable presently to work full-time. The trial court set the
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matter for review in six months. The trial court's decision was
based upon credible evidence, i.e., her doctor's opinion, and we
find no abuse of discretion in its refusal to impute income to
wife under these circumstances.
Findings of Fact Not Supported By Evidence
Husband contends that the trial court committed reversible
error in its final decree when it corrected an error made in its
letter opinion. A court speaks only through its written orders.
See Waterfront Marine Construction, Inc. v. North End 49ers, 251
Va. 417, 427 n.2, 468 S.E.2d 894, 900 n.2 (1996); Cunningham v.
Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964).
Pursuant to husband's motion to reconsider, the trial court
lowered the value of the parties' personal property to eliminate
the double inclusion of a $7,000 tractor. Evidence supports the
trial court's adjustment. Husband admits that the value set out
in the final decree was proper and that he incurred no damage.
Therefore, this argument is without merit.
Inclusion of Assets in the Marital Estate
Husband also challenges the court's inclusion in the marital
estate of $21,683 out of a total value of $43,683, which arose
from a stock option exercised by husband in April 1994. Husband
contended that the net proceeds of this transaction amounted to
$22,000, all of which went towards the marital residence, and
that no asset worth $21,683 existed at the date of separation or
of the hearing.
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The trial court's final decree does not include the amount
challenged by husband. Therefore, husband's contention is
without merit.
Alternative Valuation Date
Husband contends that the trial court erred by valuing a
KEMBA Credit Union marital account titled in husband's name as of
the date of separation. The account had no remaining funds as of
the date of the hearing. Neither party filed a motion to value
the account as of a date different from the hearing date. See
Code § 20-107.3(A).
As the party last in control of the KEMBA Credit Union
funds, husband bore the burden to prove by a preponderance of the
evidence that he did not dissipate those funds. See Clements v.
Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990).
Husband testified that he transferred the funds into a checking
account and began to use the funds to pay various expenses,
including the mortgage and spousal support. However, the record
contains no other evidence indicating how these marital funds
were used. Husband did not provide documentary evidence to
support his testimony that he used these funds to pay living
expenses. The trial court noted that it found husband to be
"less than forthcoming in his oral testimony."
When determining the amount of a monetary award, the court
may consider which party benefitted from the dissipation of
marital funds. See Booth v. Booth, 7 Va. App. 22, 27-28, 371
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S.E.2d 569, 572-73 (1988). "[E]quity can only be accomplished if
the party who last had the funds is held accountable for them."
Id. at 28, 371 S.E.2d at 573. The trial court is not required to
quantify what weight it gives to the statutory factors. See id.
Based upon the evidence and the trial court's credibility
determination, we cannot say that the trial court committed
reversible error by including in the value of the marital estate
the value of the KEMBA account as of the date of separation.
Husband admitted spending the funds, and failed to establish by
any credible evidence that the funds were used for a legitimate
purpose.
Share of 401(k)
Husband contends that the trial court erred by awarding wife
the maximum share of his 401(k) pension authorized by Code
§ 20-107.3. Husband admits that the trial court indicated that
it considered the statutory factors, and a review of its letter
opinion demonstrates that it did consider the factors.
Code § 20-107.3(E)(5) authorizes the trial court to consider
"[t]he circumstances and factors which contributed to the
dissolution of the marriage, specifically including any ground
for divorce under the provisions of subdivisions (1) [adultery],
(3) or (6) of § 20-91 . . . ." The trial court found that
husband's post-separation adultery was the cause of the parties'
divorce. The court noted that husband's adultery occurred
"within hours or days of his departure from the marital home"
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with a woman to whom he admitted he had an emotional attachment
even before the parties separated. The court also found that the
separation was disabling for wife, who incurred over $13,000 in
medical expenses as a result of her emotional problems resulting
from the separation. The court was entitled to consider
husband's adultery and its effect on the marital partnership in
reaching its equitable distribution decision. See O'Loughlin v.
O'Loughlin, 20 Va. App. 522, 527-28, 458 S.E.2d 323, 325-26
(1995).
The trial court found that both parties contributed
monetarily and non-monetarily to the marriage. Wife withdrew all
funds held in her 401(k) plan to purchase a new car which husband
retained after separation. Wife also contributed $30,000 towards
the purchase of the marital residence. The parties were married
for over eleven years. We find no error in the trial court's
election to award wife her statutory share of husband's 401(k)
benefits.
We also reject husband's contention that the division of the
marital estate was a gross abuse of discretion. Wife received
approximately sixty-two percent of the marital estate.
Virginia's equitable distribution scheme does not provide "a
statutory presumption of equal distribution." Papuchis v.
Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986). Under
the facts of this case, we cannot say the trial court abused its
discretion in making its equitable distribution award.
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Considering Matters Outside the Record
Finally, husband contends that the trial court erred by
considering disparaging remarks about the trial judge made by
husband's counsel in a letter to wife's counsel. Nothing in the
record before us supports husband's contention that the trial
court referred to this letter. "The trial court's judgment is
presumed to be correct, and 'the burden is on the appellant to
present to us a sufficient record from which we can determine
whether the lower court has erred.'" Twardy v. Twardy, 14 Va.
App. 651, 658, 419 S.E.2d 848, 852 (1992) (en banc) (citation
omitted). Nothing in the record before us supports husband's
contention.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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