COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
IRENE COOPER SILCOX
MEMORANDUM OPINION * BY
v. Record No. 0938-97-2 JUDGE LARRY G. ELDER
MARCH 3, 1998
MORRIS PHILIP SILCOX
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Paul R. Mack (Saunders, Cary & Patterson, on
brief), for appellant.
A. Russell Watson (Hairfield, Morton & Allen,
PLC, on brief), for appellee.
Irene C. Silcox ("wife") appeals the trial court's orders of
equitable distribution, spousal support, and attorney fees in her
divorce from Morris P. Silcox ("husband"). For the following
reasons, we affirm in part, reverse in part, and remand.
I.
EQUITABLE DISTRIBUTION
Wife challenges the trial court's award of equitable
distribution on two grounds. Wife contends that the trial court
erred when it (1) equally divided the marital estate between the
parties and ordered her to make a lump sum payment to husband and
(2) awarded husband one-half of her retirement funds. We
disagree.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Code § 20-107.3, which governs awards of equitable
distribution, "is intended to recognize a marriage as a
partnership and to provide a means to divide equitably the wealth
accumulated during and by that partnership based on the monetary
and non-monetary contributions of each spouse." Williams v.
Williams, 4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987). "Where an
equitable distribution is appropriate, then all of the provisions
of Code § 20-107.3 must be followed." Artis v. Artis, 4 Va. App.
132, 136, 354 S.E.2d 812, 814 (1987). After classifying and
valuing all of the property at issue, the court may (1) order the
division or transfer, or both, of jointly owned marital property,
(2) apportion and order the payment of marital debts, or (3)
grant a monetary award to either party. See Code § 20-107.3(A),
(C), (D). The court must determine the amount of its award of
any of these remedies "upon the factors listed in [Code
§ 20-107.3(E)]." Code § 20-107.3(C), (D). Subject to these
enumerated statutory factors, "this division or transfer of
jointly owned marital property, [the apportionment of marital
debts,] and the amount of any monetary award, is within the sound
discretion of the trial court." Dietz v. Dietz, 17 Va. App. 203,
216, 436 S.E.2d 463, 471 (1993).
Although, when making an equitable distribution decision,
the trial court is not required "to quantify the weight given to
each [factor] . . . [or] to weigh each factor equally," Marion v.
Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436 (1991), "[t]he
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appropriate consideration of the factors [of Code § 20-107.3(E)]
entails more than a mere recitation in the record or decree that
all the statutory factors have been considered or reviewed."
Alphin v. Alphin, 15 Va. App. 395, 405, 424 S.E.2d 572, 578
(1992). Instead, "[the trial court's] considerations must be
supported by the evidence." Id.; see also Trivett v. Trivett, 7
Va. App. 148, 153-54, 371 S.E.2d 560, 563 (1988).
We first hold that the trial court's decisions to divide the
marital property evenly between the parties and to award a lump
sum payment to husband were neither unsupported by the record nor
an abuse of discretion. The record established that the parties
were married for over thirty-five years and that wife was
fifty-six and husband was fifty-four at the time of the
proceedings. Husband is in "pretty good" health, while wife
suffers from severe back pain and is only able to work part-time.
Both parties made substantial monetary contributions to the
well-being of the family and to the acquisition and care of the
marital property. Wife worked until her retirement in March
1994, and husband worked throughout the duration of the marriage.
During the thirty-two-and-a-half years that they both worked,
husband's income was generally more than twenty percent greater
than wife's. Husband and wife testified that they both made
significant non-monetary contributions to the family and marital
property during the first twenty-five years of the marriage and
that husband made no non-monetary contributions during the last
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ten years the parties were married. The primary marital asset
awarded to wife was the marital residence, which had a value of
$85,000 and secured by two mortgages worth a total of $20,637.85.
Although the marital residence, itself, is not particularly
liquid, the record established that wife's equity in the property
was $64,362.15. The record established that the parties'
marriage dissolved as the parties "grew apart" following their
daughter's departure from the marital residence. The trial court
granted wife a divorce based upon husband's desertion of her, and
this conduct constituted a "negative nonmonetary contribution" to
the well-being of the family. However, no evidence established
that husband's misconduct had any adverse effect upon the marital
property. See O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527-28,
458 S.E.2d 323, 325-26 (1995) (citing Aster v. Gross, 7 Va. App.
1, 5-6, 371 S.E.2d 833, 836 (1988)). In light of this evidence,
we cannot say that the trial court's weighing of the statutory
factors or its decisions to evenly divide the marital estate and
award husband a lump sum payment were an abuse of discretion.
Cf. Marion, 11 Va. App. at 663-64, 401 S.E.2d at 435-36.
Likewise, we hold that the trial court's decision to equally
divide wife's retirement funds was supported by the evidence and
was not an abuse of discretion. Under Code § 20-107.3, a trial
court fashioning an award of equitable distribution is permitted,
but is not required, to order divisions of marital property that
vary on an asset-by-asset basis. See Artis v. Artis, 10 Va. App.
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356, 362, 392 S.E.2d 504, 507 (1990). As with any division of
marital property, the trial court's decision with regard to a
specific asset is accorded deference on appeal if it is based
upon all of the procedures and criteria set forth in Code
§ 20-107.3 and is supported by the evidence. See id. The record
established that wife's retirement funds were acquired during the
marriage through her employment with Bell Atlantic. The parties
agreed that wife would contribute as much to her employer's
retirement plan as the plan would allow. Following her "buy out"
from Bell Atlantic in March 1994, wife reinvested these
retirement funds in two mutual funds. The parties stipulated
that the two funds were currently worth a total of $178,537.10.
The record also established that husband had a pension plan
through his employer that was worth $562.41 per month once he
retired. The trial court ordered an equal division of those
funds as they became payable. The trial court expressly stated
that its equitable distribution award was based upon its review
of the factors listed in Code § 20-107.3(E). In light of the
evidence in the record, we cannot say that the trial court's
consideration of the statutory factors, including husband's
fault, or its decision to equally divide the retirement funds was
an abuse of discretion.
II.
SPOUSAL SUPPORT
Wife contends that the trial court abused its discretion
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when it awarded her $500 per month in spousal support. She
argues that the trial court's award is insufficient to maintain
her in the manner to which she was accustomed during the parties'
marriage and that the trial court erroneously assessed each
party's needs and abilities in the wake of its equitable
distribution award. We agree.
When spouses are divorced, "'the law imposes upon the
[supporting spouse] the duty, within the limits of [his or her]
financial ability, to maintain [his or her] former [spouse]
according to the station in life to which [he or she] was
accustomed during the marriage.'" Via v. Via, 14 Va. App. 868,
870, 419 S.E.2d 431, 433 (1992) (quoting Klotz v. Klotz, 203 Va.
677, 680, 127 S.E.2d 104, 106 (1962)). "In fixing the amount of
the spousal support award, a review of all of the factors
contained in Code § 20-107.1 is mandatory, and the amount awarded
must be fair and just under all of the circumstances." Gamble v.
Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 (1992). The
trial court "must consider each spouse's current circumstances,"
including his and her earning capacity, obligations, needs,
financial resources, property interests, education, training,
age, physical and mental condition, and award of equitable
distribution. See Stubblebine v. Stubblebine, 22 Va. App. 703,
710-11, 473 S.E.2d 72, 75 (1996) (en banc); Code § 20-107.1. The
court must also consider the duration of the marriage, the
standard of living established during the marriage, and each
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party's contributions to the well-being of the family. See Code
§ 20-107.1. "[W]hen the record discloses that the [trial] court
has considered all of the statutory factors, its ruling will not
be disturbed on appeal absent a clear abuse of discretion."
Lambert v. Lambert, 10 Va. App. 623, 628, 395 S.E.2d 207, 210
(1990).
In this case, the trial court found that wife was in need of
support and that husband had the ability to provide support.
Although the trial court stated that it considered all of the
statutory factors set forth in Code § 20-107.1, it did not
explain how it weighed these factors to determine its award.
Specifically, it did not explain why it awarded wife $500 per
month rather than the $1,000 per month she requested. Although a
trial court is not required to "quantify or elaborate exactly
what weight or consideration it has given to each of the
statutory factors," Woolley v. Woolley, 3 Va. App. 337, 345, 349
S.E.2d 422, 426 (1986), consideration of the statutory factors
"entails more than a recitation in the record or decree that all
factors have been considered." Gibson v. Gibson, 5 Va. App. 426,
435, 364 S.E.2d 518, 523 (1988). "When the court does not
quantify or elaborate on what weight or consideration it has
given each factor, we must examine the record to determine if the
award is supported by evidence relevant to those factors." Id.
We hold that the trial court abused its discretion when it
awarded wife only half of the $1,000 she requested in monthly
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spousal support. The evidence regarding the parties'
circumstances following the trial court's award of equitable
distribution does not support the trial court's apparent weighing
of the statutory factors of Code § 20-107.1.
The record established that, after the trial court's award
of equitable distribution, wife had a net monthly income of
$1,064 from two sources: $500 from her part-time job and $564
from her share of the mutual funds. 1 Her monthly expenses,
excluding the challenged expense relating to her completed dental
and dermatology payments, totaled $2,211. Husband's net monthly
income following the award of equitable distribution, which
2
included his share of the mutual funds and excluded his
1
In its decree, the trial court ordered that husband receive
fifty percent of wife's retirement funds "as paid to [wife],"
unless it was possible for husband to receive a lump sum
representing his fifty-percent share of their value. At oral
argument, counsel for both parties indicated that husband
received such a lump sum and that wife continues to draw $1,128
per month from her share of the funds. However, the record does
not indicate that these funds were dispensed in this manner. It
is axiomatic that, as an appellate court, we are required to
decide this case upon the facts contained in the record. Thus,
because the record does not indicate that a lump sum payment of
husband's share of the retirement funds was "possible," we must
assume that husband receives his share of these funds as they are
paid to wife. The record indicates that, until wife reaches the
age of fifty-nine-and-a-half, the amount of the retirement funds
payable to her without penalties or interest is $1,128 per month.
After wife reaches the age of fifty-nine-and-a-half, the entire
principal of the two funds will be payable without incurring
additional penalties or interest expenses. Thus, contrary to the
assertions of the parties' counsel, the record indicates that,
following the trial court's award of equitable distribution,
husband and wife were splitting the monthly payment of $1,128.
2
See supra note 1.
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deduction for the loan from Virginia Boxer Credit Union, was
$3,448.84. 3 His monthly expenses, after adjusting for the trial
court's allocation of the two mortgages and the credit union loan
to wife, were $2,130.25. 4 Although husband's expenses included
the cost of playing golf and purchasing cigars, the record
indicates that these avocations were part of the standard of
living he enjoyed during the marriage. In addition, the nature
of the trial court's award of equitable distribution to husband,
which included a monetary award of $14,364 and monthly income of
$564 from the mutual funds, provided him with significantly more
cash than wife's award.
The record also established that husband's current gross
annual income from his job as an ink dispatcher is $54,471.72 and
that he is in good health. Wife is limited to part-time work due
to her back problems, and her gross annual income as a part-time
receptionist is $8,316. Moreover, during most of their
thirty-five-year marriage, the parties enjoyed a moderate
lifestyle. Although the parties occasionally used debt to
finance their acquisitions, husband testified that "everybody had
3
$2,235.34 (husband's estimate of his "average monthly net
income") + $564 (husband's monthly payment from the mutual funds)
+ $649.50 (the deduction previously taken by husband for the
payment of the loan from Virginia Boxer Credit Union that was
allocated to wife) = $3,448.84.
4
$3,283.25 (husband's estimate of his "average monthly
expenses") - $703 (mortgage payments previously claimed as an
expense by husband that were allocated to wife) - $450 (the
average of the six monthly payments made by husband on the "Va.
Boxer" loan that was allocated to wife) = $2,130.25.
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not only what they needed but just about what they wanted."
Husband also testified that he made no non-monetary contributions
to the well-being of the family during the last few years of the
marriage.
In light of this evidence regarding the statutory factors,
particularly the significant gap between wife's
post-equitable-distribution monthly deficit of $1,147 and
husband's post-equitable-distribution monthly surplus of over
$1,300 and the stark contrast between their respective physical
conditions and earning capacities, we conclude that the trial
court's balancing of wife's needs against husband's ability to
pay is not supported by the evidence in the record. Cf. Via, 14
Va. App. at 871-72, 419 S.E.2d at 433-34; Woolley, 3 Va. App. at
345-47, 349 S.E.2d at 426-27. As such, its award of spousal
support was an abuse of discretion.
III.
ATTORNEY FEES
Wife next contends that the amount of the trial court's
award of attorney fees -- $2,500 of her total bill of "almost
$16,000.00" -- was an abuse of discretion. We disagree.
"An award of attorney fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987). The key to a proper award of
attorney fees is "reasonableness under all of the circumstances."
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McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). When determining the proper amount of attorney fees, the
trial court is required to consider "the circumstances of the
parties," Barnes v. Barnes, 16 Va. App. 98, 106, 428 S.E.2d 294,
300 (1993), and "the equities of the entire case." Davis v.
Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989).
We hold that the trial court's award of attorney fees for
the proceedings leading up to its final decree is supported by
the evidence in the record and was not an abuse of discretion.
Based on the circumstances and equities of this case, including
each party's needs, abilities, resources, and legal maneuvers, we
cannot say that the trial court's award of $2,500 of wife's
attorney fees was an unreasonably low amount.
For the foregoing reasons, we affirm the trial court's
awards of equitable distribution and attorney fees, reverse the
trial court's award of spousal support, and remand for further
proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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