COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
MICHAEL E. PRESTON
MEMORANDUM OPINION** BY
v. Record Nos. 0071-97-4 and JUDGE CHARLES H. DUFF
0175-97-4 JANUARY 20, 1998
MARY ELIZABETH PRESTON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Judy A. Dugger for appellant.
Beth A. Bittel (Law Offices of Beth A.
Bittel, on brief), for appellee.
Michael E. Preston (husband) appeals the decision of the
trial court finding that Mary Elizabeth Preston (wife) did not
desert the marriage. Husband also contends that the trial court
erred in finding that the parties separated sometime in May 1995
rather than on October 28, 1994; erred in awarding spousal
support to wife; erred in the allocation of costs and fees
arising from the commissioner's hearing and trial; and erred in
failing to award sanctions against wife's attorney. By way of
cross-error, wife contends that the trial court erred by refusing
to impute income to husband for the calculation of child and
spousal support and abused its discretion by failing to award her
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
sufficient attorney's fees. We find husband's contentions to be
without merit and award additional attorney's fees to wife for
expenses incurred on this appeal. We find no error in the trial
court's refusal to impute income to husband at the time of trial.
Background
The parties were married in 1972 and had four children. The
trial court found that husband made the majority of the monetary
contributions while wife made the majority of the nonmonetary
contributions during the marriage. The evidence on the ground of
divorce was heard by a commissioner in chancery. Based upon the
commissioner's recommendation, the trial court denied husband's
alleged grounds of desertion by wife and granted wife a divorce
on the basis of a one-year separation. Evidence on the issues of
equitable distribution, spousal and child support were heard by
the trial court.
Desertion
The trial court did not err in confirming the commissioner's
finding that husband failed to prove that wife deserted the
marriage when she moved from the marital bedroom in October 1994.
While the report of a commissioner in
chancery does not carry the weight of a
jury's verdict, it should be sustained unless
the trial court concludes that the
commissioner's findings are not supported by
the evidence. This rule applies with
particular force to a commissioner's findings
of fact based upon evidence taken in his
presence . . . .
Jamison v. Jamison, 3 Va. App. 644, 645-46, 352 S.E.2d 719, 720
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(1987) (citations omitted).
Wife testified that she wanted husband to seek counseling,
and moved from the marital bedroom in October 1994 when he
returned from a trip to his parents because "I felt like I had to
show him how serious I felt about him seeking some kind of help."
She testified that she had not formed the intent to end the
marriage at that point.
Desertion requires the break off of marital cohabitation
with the intent to desert. See Petachenko v. Petachenko, 232 Va.
296, 298-99, 350 S.E.2d 600, 602 (1986). Merely ceasing sexual
relations does not constitute desertion. See id. at 299, 350
S.E.2d at 602. Instead, when sexual relations are willfully
withdrawn without just cause or excuse, desertion requires "the
breach of other significant marital duties." Jamison, 3 Va. App.
at 648, 352 S.E.2d at 722.
In Jamison, the wife moved out of the marital bedroom and
lived in a different room for a number of years. She withdrew
from sexual relations and no longer washed, cleaned or prepared
food for the husband. The husband assumed the cleaning duties
for himself and the children. The family ate together no more
than six times a year. The trial court found the wife had not
deserted the husband because the couple had continued to live
together and have "minimal family contacts." Id. at 645, 352
S.E.2d at 720.
On appeal, we reversed, holding that it was not necessary to
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find that the spouse neglected all marital duties, but instead
neglected "significant marital duties, which results in the
practical destruction of homelife in every sense." Id. at 648,
352 S.E.2d at 722.
In this instance, there was no evidence of a total breakdown
of the family's homelife between October 28, 1994 and May 1995.
Wife testified that she continued to care for the home and
family, including husband. The couple's son corroborated wife's
testimony that she continued to do husband's laundry, cleaning
and cooking on a daily basis. The son testified further that his
father and mother ate with the children regularly. Therefore,
after moving out of the marital bedroom, his mother continued to
perform significant marital duties.
The son testified that the household changed noticeably in
the spring of 1995, after husband presented wife with a proposed
settlement agreement. This change continued through the summer
of 1995 and through the 1995 Thanksgiving and Christmas holidays
when the son returned from college. There was a marked
difference in his father's participation in the holidays that
year compared to the year before.
While husband argued that the son's testimony concerning
events after May 1995 was not credible because the son did not
live in the house full time after leaving for college, husband
admitted that the son did not leave for college until August
1995. Thus, the son had the time and opportunity to observe any
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noticeable change in the parties' interaction after husband
presented the proposed agreement.
Husband contended that the commissioner failed to adequately
consider the daughter's testimony. In light of the daughter's
age at the time of the events and her lack of specific and clear
testimony, the commissioner did not err in giving minimal weight
to the daughter's testimony. We find no merit in husband's
contention that the commissioner improperly limited his
cross-examination of the son concerning his absence from the home
after May 1995, as the only limitation imposed by the
commissioner barred husband's attorney from asking the son
whether he had been pressured or coached concerning his hearing
testimony.
Therefore, we affirm the trial court's finding that wife did
not desert the marriage in October 1994.
Separation Date
Credible evidence established that the parties separated
sometime during May 1995 when husband presented wife with a
proposed settlement agreement. Neither party presented evidence
establishing with greater specificity when during May the final
separation occurred, and the commissioner was not required to
make a finding in the absence of evidence sufficient to support
it. See Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546,
550 (1987).
Moreover, husband failed to demonstrate any harm resulting
5
from the alleged error in failing to identify a specific date for
the separation. Husband challenged the classification of certain
property based upon his assertion that the parties separated in
October 1994, but he made no similar argument concerning the lack
of a specific date in May.
Spousal Support
Husband argues that the trial court erred in awarding
spousal support to wife. As noted above, we find no error in the
court's determination that wife did not desert the marriage.
Even so, Code § 20-107.1 does not preclude an award of spousal
support in instances of desertion. If the trial court has
considered the parties' needs and abilities and the statutory
factors set out in Code § 20-107.1, its decision to award spousal
support will not be disturbed absent an abuse of discretion. See
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
"The judgment of the trial court concerning the extent to
which the wife's earning capacity should affect spousal and child
support awards will not be set aside unless it appears from the
evidence that such judgment is plainly wrong or without evidence
to support it." Kaufman v. Kaufman, 7 Va. App. 488, 494, 375
S.E.2d 374, 377 (1988). The trial court did not err in refusing
to impute income to wife. Wife was employed, and husband did not
demonstrate that wife was underemployed. While husband argued
that wife could earn more as a teacher, he failed to present
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evidence that there were teaching positions for which wife was
currently qualified.
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Equitable Distribution
As the trial court did not err in determining that the
parties' final separation occurred in May 1995, it did not err in
classifying $10,000 of the $23,000 NationsBank account acquired
between October 28, 1994 and May 1995 as marital property.
Husband acknowledged that the $6,000 NationsBank account was
marital property, and he may not now challenge the court's
classification of that account as marital property.
The trial court did not err in classifying the Dodge Colt
acquired by husband in May 1995 as marital property. Husband
failed to prove when he purchased the car or when he presented
wife with the proposed settlement agreement. In addition,
credible evidence supported the court's determination of the
car's value. While husband testified that the car was damaged in
an accident, the trial court was not required to accept his
testimony that he "might get half" of its NADA book value.
In his Exhibit 3, husband asserted that wife owed him
approximately $7,000 for mortgage, telephone, gas, electric,
water and cable expenses incurred during 1996 while both parties
resided in the marital residence. The trial court ruled that
each party was to assume one-half these debts. While husband
objected to the final decree on the basis of "the rulings on the
overdue house bills and other debts," it is not clear that
husband raised a claim that wife reimburse any portion of the
$32,000 in payments. Assuming arguendo that the issue was
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properly preserved, husband has not demonstrated reversible
error. He was the sole wage-earner until March 1995, and earned
at least twice what wife earned after that point. Requiring
husband to continue to support the family as he had done
throughout the marriage was not an abuse of discretion.
Finally, husband failed to demonstrate error in the trial
court's valuation and distribution of the parties' personal
property. The trial court was not required to accept husband's
unsubstantiated assertions of the value of the items of personal
property. Whereas wife submitted supporting documentation for
items claimed to be her separate property, husband testified in
general terms and did not establish that the items claimed by him
as family heirlooms were gifts only to him.
Allocation of Costs and Fees
The record indicated that wife sought to avoid the contested
hearing before the commissioner, but that husband refused to go
forward on no-fault grounds. The commissioner's affidavit
indicated that husband's attorney used well over half the total
hearing time. Wife ultimately was awarded a divorce on no-fault
grounds. In addition, husband was the primary wage-earner
throughout the marriage and had the greater income at the time of
trial. Therefore, husband did not demonstrate error in the
court's decision to allocate to him the greater portion of the
expenses incurred in the commissioner's hearing or order him to
pay $5,000 in wife's attorney's fees.
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Sanctions on Wife's Attorney
Whether to impose sanctions under Code § 8.01-271.1 is a
matter left to the discretion of the trial court. See Oxenham v.
Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991). The record
indicates that wife's attorney did not pursue the issue of the
Putnam account at the December 20, 1996 hearing when the
possibility of a discrepancy in her understanding of that account
was brought to her attention. Husband did not demonstrate an
abuse of discretion in the denial of sanctions.
Imputation of Income to Husband
The trial court considered the statutory factors prior to
determining whether to impute income to husband in connection
with the award of spousal support to wife. While husband was
earning substantially less than he had at other times during the
marriage, he also presented evidence that his lower earnings were
the result of the downturn in the defense industry. Because the
court's decision was supported by evidence, its failure to impute
additional income to husband as of the time of trial was not
clearly erroneous. See Alphin v. Alphin, 15 Va. App. 395, 402,
424 S.E.2d 572, 576 (1992).
Award of Attorney's Fees to Wife
Wife was awarded $5,000 of her attorney's fees, which
totalled more than $38,000. The record indicates that both
parties vigorously litigated this matter. While husband had the
greater income, he also was ordered to pay costs associated with
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the commissioner's hearing, as well as child and spousal support.
In light of all the issues and the parties' respective abilities
to pay, the award was not unreasonable or a clear abuse of
discretion.
Wife also seeks an award of appellate attorney's fees. See
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98 (1996).
Husband's appeal was without merit, and we find that wife is
entitled to an award of appellate attorney's fees. Therefore, we
remand this matter to the trial court for the limited purpose of
determining and awarding the amount of attorney's fees incurred
by wife in this appeal. See id. at 694-95, 479 S.E.2d at 100.
Accordingly, the decision of the circuit court is affirmed, and
the case is remanded for the determination of wife's appellate
attorney's fees.
Affirmed and remanded.
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