COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
GERALD JAMES MIATECH, JR.
MEMORANDUM OPINION *
v. Record No. 1121-97-4 PER CURIAM
NOVEMBER 10, 1997
MARY JEAN MIATECH
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
(Judy Dugger, on briefs), for appellant.
(Carolyn Smith Motes; Anne Goodwin; Goodwin &
Nelson, on brief), for appellee.
Gerald James Miatech, Jr., (husband) appeals the decision of
the circuit court awarding spousal support to Mary Jean Miatech
(wife), distributing the parties' marital assets, and awarding
wife attorney's fees. Husband contends that the trial court
erred by (1) imposing on husband the capital gains tax liability
from the sale of the marital residence; (2) requiring husband to
attempt to persuade the Internal Revenue Service to hold wife
harmless for any portion of that tax liability; (3) refusing to
credit husband for payments made to wife after the separation;
(4) finding that husband's $10,000 payment to retire outstanding
debt on a 1993 Honda automobile was a gift to wife; (5) imputing
income to husband when calculating spousal support; and
(6) awarding wife attorney's fees. Upon reviewing the record and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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.
EQUITABLE DISTRIBUTION
As the party seeking reversal, husband bears the burden to
demonstrate error by record proof. "[D]ecisions concerning
equitable distribution rest within the sound discretion of the
trial court and will not be reversed on appeal unless plainly
wrong or unsupported by the evidence." McDavid v. McDavid, 19
Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994).
CAPITAL GAINS TAX LIABILITY
The parties sold their former marital residence in 1993.
Husband purchased a new residence in 1994 for an amount greater
than the selling price of the former marital residence. Wife did
not purchase a home within two years of the sale. At the time of
the hearing, it was unclear whether wife would be required to pay
federal tax, and the associated interest and penalties, on a
portion of the capital gains realized from the sale of the
marital residence.
Husband contends that wife had access to the funds at all
times and was able to purchase a new home within the required
two-year period. However, throughout the marriage and even after
the parties' separation, wife relied upon husband to prepare the
parties' tax returns. On their 1993 joint federal income tax
return prepared by husband after their separation, it indicated
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that they would purchase a replacement residence within the
two-year period. Wife testified that husband told her his
separate purchase of a new home in 1994 resolved any capital
gains liability.
Code § 20-107.3(E)(9) authorizes the trial court to consider
the tax consequences to each party when determining the "amount
of any division or transfer of jointly owned marital property,
and the amount of any monetary award, the apportionment of
marital debts, and the method of payment . . . ." The trial
court found that husband received the full benefit of the
rollover of the capital gains realized upon the sale of the
former marital residence. Wife acted in reliance upon her
understanding that husband's purchase of his new home satisfied
the resulting capital gains tax liability. The distribution of
the parties' assets would be significantly skewed if wife now
faced substantial interest and penalties on her portion of the
capital gains realized through that sale. Therefore, we find no
error in the trial court's ruling that husband cooperate with
wife to resolve any federal tax consequences to her due to
husband's actions following the sale of the marital residence and
resulting capital gains and, if necessary, reimburse wife for any
capital gains tax and liability imposed upon her.
PAYMENTS AFTER SEPARATION
Husband contends that the trial court erred when it refused
to credit him with all the payments he made to wife after the
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parties' separation. In support of his contention, husband
asserts that wife fraudulently induced him to make these payments
pursuant to an agreement which the parties drafted but never
signed. The trial court found, and the evidence documents, that
the parties agreed that certain specific payments to wife by
husband were an advance against the distribution of marital
assets. Husband's April 16, 1996 letter to wife refers to two
advances in the amount of $4,000 and $2,000. Wife did not
contest that husband made these advances. Nothing indicates that
the monthly payments husband paid to wife were similarly agreed
to be advances against an ultimate distribution of marital
assets. Husband's allegation that wife fraudulently induced him
to make payments is unsupported by the evidence.
Husband agreed to pay wife $600 a month until the divorce
decree was entered. Husband voluntarily increased the monthly
payments to $800 when wife's rent increased. However, while the
support payments were made pursuant to an agreement between the
parties, rather than pursuant to a court's pendente lite order of
support, husband's obligation to support wife was not merely a
gratuitous act. Husband had been the sole provider for most of
the marriage and remained the primary wage earner at the time of
separation. Wife was entitled to continued support, not as a
gift from husband, but as his obligation. See Code
§ 20-103(A)(i). Therefore, we find no error in the trial court's
denial of credit to husband for the payments of support made to
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wife during the parties' separation.
PAYMENT OF AUTOMOBILE DEBT
Husband also contends that the trial court erred when it
refused to credit his payment of $10,000 towards the purchase of
a 1993 Honda for wife as an advance against the distribution of
the parties' marital assets. We find no error. While husband
asserts that he relied upon the unsigned settlement agreement in
making the payment, the trial court noted that husband made the
payment several months after he knew that the agreement was not
going to be signed. In his April 1996 letter, husband wrote that
"I intend to pay off the loan on the 1993 Honda tomorrow and am
therefore deducting your remaining portion of the joint costs,
namely Four Thousand Dollars ($4,000.00)." Husband kept the two
vehicles owned by the parties at the time of separation. The
trial court found that the payment for the car was in the nature
of support to wife, and that husband was not entitled to credit.
That finding is supported by the evidence.
SPOUSAL SUPPORT AND IMPUTATION OF INCOME
Husband contends that the trial court erred when it awarded
spousal support to wife and when it imputed income to him when
calculating the support amount. We disagree.
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.
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Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986). It is apparent from the trial judge's opinion letter
that he considered the statutory factors before awarding wife
monthly spousal support in the amount of $400. The judge noted
that husband had several undergraduate degrees and a
post-graduate degree and was seeking an additional master's
degree. Wife graduated from high school. Husband was the
primary wage earner throughout the marriage, and earned $80,000
in 1995 and $65,000 in 1996. Wife was a full-time homemaker and
military wife until late in the marriage. Wife earned $29,000 in
1996. Both parties were forty-nine years old and in good health
at the time of the hearing, although husband received a 10%
disability reduction in his retirement pay for an undisclosed
reason.
"Spouses entitled to support 'have the right to be
maintained in the manner to which they were accustomed during the
marriage, but their needs must be balanced against the other
spouse's financial ability to pay.'" Stubblebine v. Stubblebine,
22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) (en banc).
Husband admitted that he earned $20,000 and was "underemployed,"
but testified that he felt no need to earn more money and only
sought intellectual, not monetary, satisfaction. He wanted to
return to graduate school to obtain an additional master's
degree. The trial court noted that, at age forty-nine, husband
could not retire while wife was in need of support. Wife
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demonstrated a need for continued support and husband had the
earning capacity to provide support. See id. at 710-11, 473
S.E.2d at 75-76.
The evidence supports the trial court's decision to impute
income to husband of $40,000 and to award wife monthly spousal
support of $400. Therefore, we find no error.
ATTORNEY'S FEES
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 evidence supports the trial court's finding that husband
had greater income and earning capacity than wife. Based on the
number of issues involved and the respective abilities of the
parties to pay, we cannot say that the award of $6,000 in
attorney's fees was unreasonable or that the trial judge abused
his discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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