444 S.E.2d 269 (Va.App. 1994), 1220-93-2, Smith v. Smith

Docket Nº:1220-93-2.
Citation:444 S.E.2d 269, 18 Va.App. 427
Opinion Judge:[10] Elder
Party Name:Veronica G. SMITH v. R. Gordon SMITH.
Attorney:[7] Lawrence D. Diehl, for appellant.
Case Date:May 24, 1994
Court:Court of Appeals of Virginia
 
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Page 269

444 S.E.2d 269 (Va.App. 1994)

18 Va.App. 427

Veronica G. SMITH

v.

R. Gordon SMITH.

No. 1220-93-2.

Court of Appeals of Virginia.

May 24, 1994.

Page 270

[Copyrighted Material Omitted]

Page 271

[18 Va.App. 428] Lawrence D. Diehl, Hopewell, for appellant.

James C. Roberts, Richmond (Mays & Valentine, on brief), for appellee.

Present: MOON, C.J., and COLEMAN and ELDER, JJ.

ELDER, Judge.

Veronica G. Smith, wife, appeals from the trial court's equitable distribution and child support awards in her divorce from R. Gordon Smith, husband. On appeal, wife contends [18 Va.App. 429] the trial court erred in fashioning the equitable distribution in ruling that she failed to prove her husband dissipated marital assets in support of his extramarital relationship, and in modifying the final decree to allow husband to satisfy the equitable distribution award in periodic payments rather than through one lump sum payment, as initially ordered. She also contends the trial court erred in its calculation of the child support award in failing to include husband's capital gains income in its determination of the presumptive amount of child support, and in failing to require husband's payment of the cost of their son's private education expenses in addition to the amount of presumptive child support. Husband contends that the assignments of error concerning the child support award are barred by Rule 5A:18. For the reasons that follow, we affirm the equitable distribution and child support awards.

The parties married in 1969, separated in 1990, and filed for divorce in 1991. During the divorce proceedings, husband admitted to a fifteen-year extramarital affair with a woman, whom he saw at least once a year in a variety of locations, sometimes on business trips for which he was partially reimbursed. As to his income, husband testified that, during 1991, he conducted six different transactions in which he sold marital stocks, realizing approximately $165,000 in capital gains. The record contains no evidence that husband had any capital gains income after September 30, 1991. Husband testified that he used $40,000 of the gains realized to make a down payment on a condominium he purchased in 1991, which he stipulated was a marital asset for purposes of calculating the equitable distribution award. The remainder of the money was used to pay various marital debts.

The evidence also showed that the parties' son has a learning disability. Prior to the commissioner's hearing, husband had been paying directly to the school $788 per month for private school tuition and tutoring for his son. Based on the parties' incomes, the court ordered husband to pay wife the presumptive amount of monthly child support--$2,095. Although husband had voiced a desire to continue paying his son's educational expenses, the court stated that wife had to

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pay the child's educational expenses in the amount of $788 per month out of the $2,095 child support award.

The trial court ordered husband to satisfy the equitable distribution award of $325,000 by making one lump sum payment to [18 Va.App. 430] wife within ninety days of the entry of the award. Ultimately, however, the trial court granted husband's request to modify the decree to permit husband to pay the award and interest in four annual installments.

I.

A.

Wife contends that the trial court erred in fashioning the equitable distribution award by refusing to consider husband's dissipation of marital assets, which she alleges occurred as a result of and during the course of his fifteen-year extramarital affair. Ordinarily, when making an equitable distribution award under Code § 20-107.3(A), a court determines the value of marital property "as of the date of the evidentiary hearing on the evaluation issue." The Code also provides that, up until twenty-one days before the hearing, either party may move the court to use a different valuation date "for good cause shown, in order to attain the ends of justice." Id.

One recognized justification for altering the evaluation date is a showing of dissipation of marital assets.

Dissipation occurs "where one spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown." Once the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with dissipation to prove that the money was spent for a...

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