COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
C. WILLIAM STIPE, III
MEMORANDUM OPINION *
v. Record No. 0898-97-4 PER CURIAM
FEBRUARY 24, 1998
JEAN McCLUNG STIPE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
(James G. Gore, Jr.; Andrew S. Regenbaum; The
Gore Law Firm, on briefs), for appellant.
(Susan Massie Hicks; Melinda G. Williams;
Hicks & Havrilak, on brief), for appellee.
C. William Stipe, III, (husband) appeals the decision of the
circuit court awarding $1,283 in monthly spousal support to Jean
McClung Stipe (wife). Husband contends that the trial court
erred by failing to (1) impute income to wife for earnings on her
equitable distribution award of an interest in husband's 401(k)
retirement plan; (2) impute income to wife for earnings on the
equitable distribution cash award of $28,721; (3) consider wife's
free mortgage from her parents; (4) consider equitable
distribution funds previously received and spent by wife; (5)
consider evidence that wife's expenses were inflated; and (6)
consider the tax consequences. Wife presents as an additional
question whether the court erred by denying her motion for
sanctions and for post-trial attorney's fees. Upon reviewing the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the
court and will not be disturbed on appeal unless it is clear that
some injustice has been done." Dukelow v. Dukelow, 2 Va. App.
21, 27, 341 S.E.2d 208, 211 (1986).
In awarding spousal support, the
chancellor must consider the relative needs
and abilities of the parties. He is guided
by the nine 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).
The trial judge's oral comments and his written order of May
28, 1997 demonstrate that he considered the statutory factors
when making the spousal support award. Therefore, we will
reverse the spousal support award only if there is evidence that
the trial judge abused his discretion.
Imputation of Income
Under appropriate circumstances, a trial court may impute
income to a party who seeks spousal support. See Srinivasan v.
Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990).
The court "must look to current circumstances and what the
circumstances will be 'within the immediate or reasonably
2
foreseeable future,' not to what may happen in the future." Id.
at 735, 396 S.E.2d at 679 (citation omitted). Where imputation
of income is proper, the evidence must enable the trier of fact
to reasonably project the amount to be imputed. See Hur v.
Virginia Department of Social Services, 13 Va. App. 54, 61, 409
S.E.2d 454, 459 (1991).
Husband contends that the trial court erred by failing to
impute income to wife on the basis of interest she could earn on
her share of the retirement funds split between the parties under
the equitable distribution of their marital assets. This
contention is without merit. As noted by the trial court, "a
retirement pension is suppose[d] to grow, and the way it grows is
by reinvesting earnings." Here, neither party was retired, and
wife was not currently receiving, or about to receive, any
payments from this pension. Cf. McGuire v. McGuire, 10 Va. App.
248, 251, 391 S.E.2d 344, 347 (1990) (error not to include in
wife's income the payment she received each month from husband's
defined benefit pension). Moreover, husband presented only
generalities and possibilities, not evidence, to support the
amount of income he sought to impute to wife as earnings. We
find no abuse of discretion in the trial court's decision not to
impute unproven amounts of earnings on retirement funds which are
not currently being withdrawn.
Husband also contends that the trial court erred by failing
to impute income for earnings on the $28,721 cash award. Wife
3
testified that she used the cash award to pay attorney's fees and
as a down-payment on her residence. Because this award was no
longer available for investment, we find no error in the trial
court's refusal to impute income from hypothetical earnings to
wife.
Mortgage
Husband contends that wife's mortgage arrangement was merely
an advance on her inheritance. The trial court believed the
testimony of wife and her mother that the arrangement was a
legitimate transaction resulting in an actual debt. That
testimony demonstrated that wife's parents purchased the home for
her when there was a delay in the distribution of the proceeds
from the sale of the parties' marital residence. The parents
charged wife $1,000 a month in rent initially, then $1,200 a
month as a mortgage payment, based upon the monthly cost to them
of their bank loan. While the parents subsequently paid off the
bank loan in cash, wife's monthly payment remained $1,200. Wife
and her parents acknowledged that the mortgage was interest-free,
but wife executed a promissory note in the amount of the
outstanding mortgage, payable to her parents and their heirs,
which included other children besides wife. Because the evidence
supports the court's determination that the mortgage arrangement
was legitimate, we will not disturb that determination.
Previously Distributed Funds
While husband raised as a separate question wife's use of
4
previously distributed marital funds, he failed to address this
contention in his brief. "Statements unsupported by argument,
authority, or citations to the record do not merit appellate
consideration." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Accordingly, we will not address this
issue.
Wife's Monthly Expenses
Husband contends that he established at the post-trial
hearing that wife's expenses were inflated. However, the trial
court found that there had not been a material change in wife's
financial circumstances. Credible evidence supports the trial
court's determination. Therefore, we find no error.
Tax Consequences
Husband contends that the trial judge failed to consider the
tax consequences when setting spousal support, as required under
Code § 20-107.1(9). As support, husband quotes a remark by the
trial judge that he did not consider the tax consequences to the
parties. In full context, however, the trial judge stated:
I've also considered other factors. I've not
considered the tax consequences to the
parties. I've considered that they are going
to have to deal with their own tax
consequences. So, again, I've considered all
these factors.
This remark demonstrates that the trial judge considered the
statutory factor, but gave little weight to the tax consequences
faced by the parties in this instance. The trial judge need not
recite specific findings from the evidence relative to each
5
factor or assign the weight accorded to it. See Woolley v.
Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
6
Failure to Award Fees
Wife raises a single issue on appeal. She contends that the
trial court erred by failing to grant her motion for sanctions
against husband or to award her attorney's fees for costs
incurred in connection with husband's post-trial motions. 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 the post-trial motions
filed by both parties were appropriate and not frivolous.
Husband was required previously to pay a portion of wife's
attorney's fees. We cannot say that the trial judge's decision
not to impose sanctions or award attorney's fees was unreasonable
or that the trial judge abused his discretion in not making an
additional award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
7