Fadness v. Fadness

• Decision Date: 04 November 2008
• Docket Number: Record No. 0231-08-4.
• Citation: 52 Va. App. 833,667 S.E.2d 857
• Parties: Jeffrey M. FADNESS v. Lynette T. FADNESS.
• Court: Virginia Court of Appeals

667 S.E.2d 857

52 Va. App. 833

Jeffrey M. FADNESS v. Lynette T. FADNESS.

Record No. 0231-08-4.

Court of Appeals of Virginia, Alexandria.

November 4, 2008.

Elaine M. Vadas (Ruth O. Katz; Grenadier, Anderson, Starace & Duffett, P.C., on briefs), Reston, for appellant.

David J. McClure, Leesburg, (McClure & Bruggemann, P.C., on brief), for appellee.

Present: HUMPHREYS, HALEY and BEALES, JJ.

HUMPHREYS, Judge.

Jeffrey M. Fadness ("husband"), appeals several issues relating to his divorce from Lynette T. Fadness ("wife"). Husband argues that the Circuit Court of Fairfax County (circuit court) committed reversible error by (1) failing to grant him a divorce on the grounds of cruelty or desertion, (2) awarding each party an improper percentage of the marital property, (3) holding that wife sufficiently requested spousal support in her complaint, and by holding that wife provided evidence sufficient to support the court's award of spousal support, (4) refusing to award him attorney's fees, and (5) improperly calculating and distributing the proceeds of the sale of the couple's Maryland home.

Wife cross-appeals, arguing that the circuit court committed reversible error by (1) misallocating the couple's tax liability and denying wife the opportunity to pursue innocent spouse protection, (2) awarding an inadequate amount of spousal support and delaying spousal support payments, (3) miscalculating the value of the couple's business, (4) awarding wife less than 50% of the marital assets, (5) failing to award attorney's fees to wife, and (6) refusing to allow additional time for discovery following wife's decision to change counsel.

I. BACKGROUND

The parties to this appeal have submitted a 19-volume joint appendix containing more than 6,000 pages. Therefore, for the sake of both brevity and clarity, we will discuss the facts pertinent to resolving the various issues in this case as they are relevant to the analysis of the respective issues on appeal. However, there are a few facts and procedural points to note initially by way of background.

Husband and wife were married on June 20, 1980. Their marriage produced three children, all of whom were emancipated by the time of this case. On February 28, 2006, the circuit court entered an order entitled "Final Decree of Divorce." However, the order did not resolve all of the issues surrounding the divorce. Husband appealed the February 2006 order, believing it to be a final order. A three-judge panel of this Court dismissed the appeal, holding that the order was not final because several issues still remained unresolved, including the distribution of the couple's personal property. See Fadness v. Fadness, No. 0766-06-4, 2007 WL 2471060 (Va.Ct.App. Sept.4, 2007).

On remand, the circuit court addressed the remaining issues and resolved them in an order dated December 28, 2007. Husband and wife now appeal from the judgment embodied in that order.

II. ANALYSIS

A. Grounds for Divorce

The circuit court granted wife a divorce on the grounds of living separate and apart for more than one year. Husband argues that the court abused its discretion by refusing to grant him a divorce on the grounds of cruelty or desertion. Husband claims that he presented sufficient evidence to corroborate the granting of a divorce on those grounds. However, even if he did, he does not argue that the trial court had insufficient evidence to support a finding that the parties had lived separate and apart for over a year.¹ Therefore, even assuming that the record supports husband's argument, the trial court would simply have had two equally legitimate grounds for granting this divorce.

"`Where dual or multiple grounds for divorce exist, the trial judge can use his sound discretion to select the grounds upon which he will grant the divorce.'" Konefal v. Konefal, 18 Va.App. 612, 613-14, 446 S.E.2d 153, 154 (1994) (quoting Williams v. Williams, 14 Va.App. 217, 220, 415 S.E.2d 252, 254 (1992)). Circuit courts are "not compelled `to give precedence to one proven ground of divorce over another.'" Williams, 14 Va.App. at 219, 415 S.E.2d at 253 (quoting Robertson v. Robertson, 215 Va. 425, 426, 211 S.E.2d 41, 43 (1975)). Thus, because multiple grounds existed, the circuit court was free to choose between those grounds in granting the divorce, and did not abuse its discretion by granting the divorce on the grounds of living separate and apart for more than one year where, as here, that ground was supported by the evidence.

B. Equitable Distribution

Husband next appeals the circuit court's distribution of the couple's marital property. He claims that the circuit court should have awarded him a greater percentage of the marital property because he believes that wife's conduct was the sole cause of the dissolution of the marriage. He argues that the circuit court failed to sufficiently consider the circumstances surrounding the dissolution of the marriage in determining equitable distribution.

"In reviewing an equitable distribution award on appeal, we have recognized that the trial court's job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case." Klein v. Klein, 11 Va.App. 155, 161, 396 S.E.2d 866, 870 (1990).

"Unless it appears from the record that the [circuit court] has abused [its] discretion, that [it] has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying [its] resolution of the conflict in the equities, the [circuit court's] equitable distribution award will not be reversed on appeal."

Keyser v. Keyser, 7 Va.App. 405, 410, 374 S.E.2d 698, 701 (1988) (quoting Brown v. Brown, 5 Va.App. 238, 244-45, 361 S.E.2d 364, 368 (1987)).

In determining the equitable distribution of marital property, "[t]he function of the [circuit court] is to arrive at a fair and equitable monetary award based on the equities and the rights and interests of each party in the marital property." Mitchell v. Mitchell, 4 Va.App. 113, 118, 355 S.E.2d 18, 21 (1987). In doing so, the circuit court is required to consider the factors set forth in Code § 20-107.3(E).

The requirement that the trial court consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of these factors. This does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors. It does mean, however, that the court's findings must have some foundation based on the evidence presented.

Woolley v. Woolley, 3 Va.App. 337, 345, 349 S.E.2d 422, 426 (1986).

Here, the circuit court awarded husband a slightly larger portion of the marital property. Specifically, the court awarded husband between 52 and 55 of each item of marital property. Despite receiving the larger portion of the property, husband argues that the court did not award him as much as he deserved. Husband contends that the court erred in the weight that it gave each of the Code § 20-107.3 factors and specifically claims that the court failed to give sufficient weight to his argument that wife was the sole cause of the dissolution of the marriage. However, husband points to no error, either factual or legal, in the circuit court's application of the statutory factors. He merely argues that the court should have weighed the factors differently, and awarded him an even larger portion of the equitable distribution.

As stated above, a circuit court has broad discretion in determining equitable distribution. It is not up to us, sitting as an appellate court, to reweigh evidence against the statutory factors. The General Assembly has given circuit courts the discretion to determine the equitable distribution of marital assets in connection with a divorce. Its discretion is limited only in that the circuit court must consider all of the factors in Code § 20-107.3(E). Thus, requesting this Court to simply substitute our judgment of the evidence for that of the trial court is an inappropriate and singularly ineffective appellate argument. If the circuit court considers all the factors and bases its findings on credible evidence, we will not disturb its decision on appeal.

Here, the circuit court stated that it considered all of the factors prior to announcing its ruling. It specifically identified several of the factors that it considered most relevant and explained its findings related to those factors. Husband does not dispute those findings as unsupported by the evidence and, thus, we must affirm the decision of the circuit court in that regard.

C. Spousal Support

Husband makes two arguments on appeal in regard to spousal support. First, he claims that the circuit court erred in holding that wife's complaint sufficiently requested spousal support. Second, he argues that, if spousal support was properly pled, the evidence was insufficient to justify an award of spousal support.

Wife also appeals the issue of spousal support. She claims that the circuit court erred by awarding her too little in support, and by declining to make the award retroactive to the date of the filing of her complaint. We address each party's argument in turn.

1. Sufficiency of Wife's Complaint

"Fundamental rules of pleading provide that no court can base its judgment or decree upon a right which has not been pleaded and claimed." Boyd v. Boyd, 2 Va. App. 16, 18, 340 S.E.2d 578, 580 (1986). "Pleadings are as essential as proof, the one being unavailing without the other. A decree can not be entered in the absence of pleadings upon which to found the same, and if so entered it is void." Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935). In divorce cases, "the absence of a specific request for an adjudication of spousal support [precludes courts] from...