Barker v. Barker

• Citation: 500 S.E.2d 240,27 Va. App. 519
• Decision Date: 16 June 1998
• Docket Number: Record No. 0812-97-2.
• Parties: Richard L. BARKER v. Nancy J. BARKER.
• Court: Court of Appeals of Virginia

500 S.E.2d 240

27 Va. App. 519

Richard L. BARKER v. Nancy J. BARKER.

Record No. 0812-97-2.

Court of Appeals of Virginia, Richmond.

June 16, 1998.

Andrea R. Stiles (Williams, Mullen, Christian & Dobbins, on briefs), Richmond, for appellant.

Lawrence D. Diehl, Hopewell, for appellee.

Present: BENTON, WILLIS and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

Richard L. Barker (husband) appeals the order of the trial court granting him a divorce from Nancy J. Barker (wife) on the basis that the trial court erred in determining the spousal support and equitable distribution awards. Specifically, husband argues that the court overestimated his earning capacity for purposes of spousal support, improperly applied the tracing doctrine, and failed to properly consider the statutory factors in determining equitable distribution. We affirm in part and reverse in part.¹

Husband and wife were married on December 10, 1978. Wife's three children from a previous marriage lived with the parties for a number of years. At the time of the marriage, husband owed his former spouse over $50,000 in spousal support, payable over a period of ten years. Although wife did not work outside the home for the majority of the marriage, both parties contributed funds to buy their first marital home. During the marriage, husband was employed as an upper management business executive.

Husband admits that he committed adultery during the period 1986-1989. After husband told wife of the affair in 1989, the two reconciled and joined an adultery self-help group. In 1990 or 1991, wife discovered evidence that husband had resumed his affair. After her discovery, wife moved out of the marital bedroom, although she remained in the marital home. Husband lost his job in May 1991, although he continued to receive income from his position until May 1992. On January 30, 1993, husband moved out of the marital home, and wife filed for divorce.

The trial court referred the case to a commissioner, who held hearings and filed a report. After the parties filed exceptions to the commissioner's report, the trial court issued a letter opinion sustaining husband's exception as to the commissioner's recommendation for spousal support and related issues and overruling most of husband's exceptions. After holding an evidentiary hearing, the court awarded wife less spousal support than recommended by the commissioner.

I. Spousal Support

After taking evidence as to the past and present circumstances of the parties, the commissioner to whom the case had been referred noted that, "[w]hile husband is currently unemployed, the commissioner feels that he has the ability to be employed at an income which would warrant an award of spousal support to wife of $2,000.00 per month." The trial court elected not to follow the commissioner's recommendation, and held additional hearings on the issue of spousal support.

In its letter opinion of July 17, 1996, the trial court noted that husband, age 62, had been temporarily employed at a rate of $75,-000 per year from August 1995 to October 1995, but that husband had virtually no income for 1994, and was currently unemployed. The court also noted that husband had attended real estate school, had obtained a Virginia real estate license, had taken the necessary steps to obtain a New Jersey real estate license, and "hoped" to earn $2,000 per month. The court explained that wife, in her fifties, earned $300 per week designing jewelry, had been diagnosed with carpal tunnel syndrome, and could earn a maximum of $25,000 per year as a secretary. The court concluded, "[l]ooking first at the considerable resources the parties have resulting from equitable distribution and the pertinent factors under § 20-107.1 according to the evidence, the court will require that husband pay to the wife ... the sum of $600.00 per month." The trial court did not find that either party was voluntarily under-employed or unemployed, and did not impute income to husband or wife. Husband argues that the trial court erred in ordering him to pay spousal support to wife because he has no income, actual or imputed.

Whether and how much spousal support will be awarded is a matter of discretion for the trial court. Jennings v. Jennings, 12 Va.App. 1187, 1196, 409 S.E.2d 8, 14 (1991) (citing McGuire v. McGuire, 10 Va.App. 248, 251, 391 S.E.2d 344, 347 (1990)). Code § 20-107.1 requires a court "to consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery," in determining whether to make an award of spousal support. If the court determines that an award should be made, the court is required to consider all the factors outlined in Code § 20-107.1. See Rowe v. Rowe, 24 Va. App. 123, 139, 480 S.E.2d 760, 767 (1997) (citing Woolley v. Woolley, 3 Va.App. 337, 344, 349 S.E.2d 422, 426 (1986)). Among the other statutory factors, the trial court must evaluate the earning capacity of both parties. See Stumbo v. Stumbo, 20 Va.App. 685, 691, 460 S.E.2d 591, 594 (1995) (citing Goetz v. Goetz, 7 Va.App. 50, 51, 371 S.E.2d 567, 567 (1988)) (requiring the trial court to consider earning capacity); Srinivasan v. Srinivasan, 10 Va.App. 728, 734, 396 S.E.2d 675, 679 (1990) (citing McGuire, 10 Va.App. at 251, 391 S.E.2d at 347) (emphasizing that the court must consider the earning capacity of both the payor and payee spouse).

Code § 20-107.1, like its predecessor Code § 20-107, authorizes courts "to consider not only earnings but also `earning capacity.'" Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979). "Although `earning capacity' necessarily includes actual earnings, it is a broader concept that allows the trial court to consider more than actual earnings." Frazer v. Frazer, 23 Va.App. 358, 378, 477 S.E.2d 290, 300 (1996). The spousal support award, however, "must be based upon the circumstances in existence at the time of the award." Payne v. Payne, 5 Va.App. 359, 363, 363 S.E.2d 428, 430 (1987). The relevant time period includes the immediate past, Stubblebine v. Stubblebine, 22 Va. App. 703, 709, 473 S.E.2d 72, 75 (1996) (en banc), as well as the "`immediate or reasonably foreseeable future.'" Srinivasan, 10 Va.App. at 735, 396 S.E.2d at 679 (quoting Young v. Young, 3 Va.App. 80, 81-82, 348 S.E.2d 46, 47 (1986)). A spousal support award may not be "premised upon the occurrence of an uncertain future circumstance." Jacobs, 219 Va. at 995-96, 254 S.E.2d at 58.

We view the evidence in the light most favorable to wife, the prevailing party below. Cook v. Cook, 18 Va.App. 726, 731, 446 S.E.2d 894, 896 (1994) (citing Steinberg v. Steinberg, 11 Va.App. 323, 325, 398 S.E.2d 507, 508 (1990)). So viewed, the evidence supports the court's assessment of each of the parties' earning capacity. The court heard testimony that since the separation, wife had worked at a number of low-paying jobs. Wife's most recent job prior to the separation had been in 1986, and she had attempted but failed to bring her typing and accounting skills up to date. Wife had been diagnosed with carpal tunnel syndrome in 1980, and had four bones in her hands surgically fused together. At the time of the hearing, wife was performing piecework jewelry design, for which she was paid up to $300 per week.

The court also heard evidence that husband received his real estate license in January 1995, joined Coldwell Banker real estate company, and earned $8,497 in 1995 before taking a ninety-day position with One Call Medical. Husband worked for One Call Medical until February 12, 1996, where he earned approximately $6,000 per month. At the time of the hearing, husband had passed the New Jersey real estate examination, rejoined Coldwell Banker, and had been in training for three weeks. As a real estate agent, husband hoped to earn $2,000 per month selling real estate. This evidence supports the findings of the court, and the court did not abuse its discretion in fashioning a spousal support award of $600 per month based on this evidence.

Husband also alleges that the trial court required him to use his portion of the equitable distribution award to pay spousal support. Code § 20-107.1(8) requires the trial court to consider "[t]he provisions made with regard to the marital property under § 20-107.3" in fashioning spousal support. As husband argues, however, it is improper for a trial court to treat assets divided in equitable distribution as income. Ray v. Ray, 4 Va.App. 509, 514, 358 S.E.2d 754, 757 (1987); see, e.g., Dotson v. Dotson, 24 Va. App. 40, 44, 480 S.E.2d 131, 132-33 (1997) (describing the "`distinct difference ... between a spousal support award and a monetary award'" (quoting Brown v. Brown, 5 Va.App. 238, 246, 361 S.E.2d 364, 368 (1987))). "[A] decree which singles out this factor [regarding distribution of the marital property] to the exclusion of others, and which essentially treats the ... spouse's marital assets as income, cannot withstand scrutiny on appeal." Zipf v. Zipf, 8 Va.App. 387, 399, 382 S.E.2d 263, 270 (1989).

The trial court did not abuse its discretion in fashioning the spousal support award. It is important to note that the trial court's decision turns on husband's earning capacity rather than imputed income or principal or income from the distribution. The trial court's letter opinion of July 17, 1996, reveals that the trial court gave primary consideration to the age and earning capacity of the parties. The court reviewed the current earnings and earning prospects of the parties, and considered the testimony of husband, wife, and the vocational expert. The court also considered the expenses claimed by each party. Finally, the court stated that it had considered "the pertinent factors under § 20-107.1." We find that the trial court properly considered the age, expenses, distribution of assets, and earning capacity of the parties, as well as other statutory factors, in fashioning the spousal support award, and thus...