Asgari v. Asgari, Record No. 2533-99-4

• Decision Date: 05 September 2000
• Docket Number: Record No. 2560-99-4.,Record No. 2533-99-4
• Citation: 533 S.E.2d 643,33 Va. App. 393
• Parties: Abbas ASGARI v. Giso ASGARI. Giso Asgari v. Abbas Asgari.
• Court: Virginia Court of Appeals

533 S.E.2d 643

33 Va. App. 393

Abbas ASGARI v. Giso ASGARI.

Giso Asgari v. Abbas Asgari.

Record Nos. 2533-99-4, 2560-99-4.

Court of Appeals of Virginia, Alexandria.

September 5, 2000.

David L. Duff, Fairfax, for Abbas Asgari.

Joyce M. Henry-Schargorodski (Gaughan & Schargorodski, on briefs), Fairfax, for Giso Asgari.

Present: FITZPATRICK, C.J., and BRAY and ANNUNZIATA, JJ.

BRAY, Judge,

Abbas Asgari (husband) and Giso Asgari (wife) were divorced by decree of the trial court entered October 1, 1999. In adjudicating the cause, the court classified the former marital home of the parties and husband's "disability retirement" as marital property, apportioned certain marital debt, awarded husband retroactive child support from wife, and denied his claim to spousal support. On appeal, husband complains the court erroneously (1) "fail[ed] to recognize [his] separate property component in . " the marital home"; (2) awarded wife a percentage of his "disability pay"; (3) failed to allocate responsibility for a marital debt incurred by him; and (4) denied spousal support. Wife challenges retroactivity of the child support award. Finding no error, we affirm the decree. The parties were married August 26, 1984, and separated on July 20, 1997. Prior to the separation, husband filed a bill of complaint with the trial court, seeking, inter alia, divorce, temporary and permanent custody of the child born to the marriage, child and spousal support from wife, and a determination of the respective property interests pursuant to Code § 20-107.3. Wife's responsive pleadings sought similar relief. The court thereafter conducted several protracted hearings, resulting in a voluminous record that embraced an array of issues, much of which is irrelevant to our determination of this appeal.

At the time of marriage, both husband and wife were gainfully employed and financially independent. Wife had earned a B.A. degree and husband a B.S. in civil engineering and masters degrees in Social Planning and City Planning. Wife then resided in a local apartment complex and husband occupied a home in Arlington, acquired by him before the marriage. At the inception of the marriage, the couple relocated to an apartment in Crystal City, and husband rented his former residence to others. Within a short time, however, they returned to husband's Arlington residence and together undertook extensive repairs and renovations.¹

Intending to purchase a marital home with wife, husband sold his Arlington residence in 1986, depositing $66,000 from the net proceeds into the parties' joint checking account. On March 24, 1987, husband and wife contracted to purchase a new home, which required a $5,000 "down payment" and an additional $41,709.55 at closing, on July 24, 1987, all of which was drawn from the joint account. The evidence does not disclose deposits or withdrawals or continuing balances with respect to such account for the period preceding settlement on the new residence. However, "paychecks," expenditures, "everything," attributable to both parties were routinely deposited into and withdrawn from the joint account both before and after receipt of the proceeds from the sale of husband's residence into the account.

During these years of marriage, the parties successfully pursued respective employment opportunities, each contributing both economically and otherwise to the marital partnership. On April 17, 1989, a son, Armun Jonathan Asgari, was born to the union, and the couple shared the attendant responsibilities, while maintaining employment, until husband was seriously injured in an automobile accident on January 5, 1993.

Following the accident, which occurred while husband was acting in the course of employment as an engineer with the Virginia Department of Transportation (VDOT), husband claimed permanent total disability and pursued both workers' compensation benefits and disability retirement from VDOT and an independent tort claim for "pain and suffering, medical expenses and lost wages." Husband was "immediately" awarded biweekly workers' compensation benefits of $941.14, a sum equaling 66.66% of his VDOT salary, for 500 weeks, in addition to the payment of all accident-related medical expenses. Later, on April 11, 1994, the Virginia Retirement System (VRS) approved husband's "application for disability retirement," resulting in an initial "Basic Benefit" of $2,084 per month, subject to a temporary offset for the workers' compensation award. The tort claim, settled for $300,000, provided $136,000 net to husband, after satisfaction of attendant obligations, fees and expenses, including a workers' compensation lien of $68,095.72.

VRS documentation relating to husband's disability claim specifically referenced the "Retirement Benefit" as "Line of Duty Disability Retirement," based upon weighted "Service: 17 years 10 months" and a computation "us[ing] salaries earned in the 60 months . . . prior to ... retirement date," "Effective: 7/1/94" at an age of "43 years 3 months."² Husband was further advised of his entitlement "to receive a refund of accumulated contributions and interest in the [VRS]," $14,085. The effects of the accident brought immediate and lasting changes to the household. Husband, no longer employed, assumed a significantly greater responsibility for child rearing, while wife, then age thirty-three and in good health, maintained employment as a jewelry consultant with Neiman Marcus. Understandably, wife's responsibilities "got a lot more" as she alone assumed numerous tasks about the household, including "grocery shopping," "laundry," transportation needs and financial management, in addition to caring for husband. Despite husband's continuing disability benefits and wife's average annual income of approximately $76,462.89, the family incurred substantial credit card and consumer debt, which totaled approximately $70,000 at the time of the hearing, exclusive of a $25,000 balance on a personal loan to husband from another.

Husband testified that he remained totally disabled at the time of the hearing, a circumstance corroborated by successive annual reviews by VRS and the testimony of his treating physician, Dr. Howard Hite. Husband insisted he "can't work" as a result of intermittent severe pain and related physical limitations, including an inability to sit, stand or lift within normal limits, and the need for a multitude of prescription medications. However, wife's evidence established that husband often engaged in physical activities, including basketball, hunting, swimming, tennis and extended travel, both overseas and domestic. She recalled husband admitted that he had "no pain," no need for medication, and was "faking" disability to retain benefits. Much of wife's testimony was corroborated by independent witnesses and other evidence.

At the hearing below, each party presented extensive economic evidence reflecting their respective needs and resources. Husband's monthly disability and workers' compensation benefits then aggregated $2,256, while his regular expenses for a like period totaled approximately $7,000, including a $2,038 mortgage payment on the marital home and an assortment of increased costs attributable to the child, then in his care. Similarly, wife reported a $4,421 monthly income shortfall, despite net earnings of $5,193. Noteworthy expenses reportedly incurred each month by wife included $1,800 for "Furniture/Furnishings," $1,257 "Legal Expenses," and $1,154 on "Charge Account Debt" of $88,346.

Immediately upon the conclusion of the evidentiary hearings, the trial court decided the substantial issues, save the determination of child support, orally announcing seriatim the rulings, with no objections then noted by either party.³ Subsequent motions, apparently later argued before the trial court, focused on the retroactivity of the child support award. The final decree, entered several months following the last evidentiary hearing, determined a host of questions, including the limited issues pertinent to the instant appeal.

RETROACTIVE CHILD SUPPORT

The trial court awarded husband $664 per month child support from wife, "retroactive to October 1, 1997 . . . the date [he] filed [a] pendente lite petition for child support," reciting simply that the child "lives with the father," without otherwise addressing custody. Wife, thereafter, objected to the retroactivity of the award by motion filed with the court, contending, in pertinent part, that husband withdrew his claim for child support prior to the evidentiary hearings. No transcripts of hearings relative to wife's motion are a part of the record before this Court. Later, above her endorsement to the final decree, wife again excepted to "the court's ruling of retroactive child support and the retroactive date the court chose." On appeal, she argues that the retroactivity ruling was error, "where procedurally the motion for child support had been withdrawn,"⁴ adding, for the first time, "and where [husband's] financial resources were vastly different in 1997 and 1998 than at the date of In support of her contention that husband withdrew his prayer for retroactive child support, wife asserts that continuances or "removals" of two hearings scheduled on husband's motion for pendente lite relief constituted an abandonment of the claim. Wife further complains, citing no authority, that husband's failure to pursue a hearing resulted in an inequitable "creat[ion] of an arrearage beyond [her] control," "not the intended use for retroactive [child] support." Her arguments are belied by the record and contrary to statute.

Code § 20-108.1(B) provides that "Wiability for [child] support shall be determined retroactively ... from the date that the proceeding was commenced by the filing of an action with the court." Here, husband commenced an action for child support at the inception of the instant cause, praying for such relief in the bill of complaint....