Brandau v. Brandau

• Decision Date: 16 September 2008
• Docket Number: Record No. 2723-07-3.
• Citation: Brandau v. Brandau, 52 Va. App. 632, 666 S.E.2d 532 (Va. App. 2008)
• Parties: Scott R. BRANDAU v. Carol J. BRANDAU.
• Court: Virginia Court of Appeals

666 S.E.2d 532

52 Va. App. 632

Scott R. BRANDAU v. Carol J. BRANDAU.

Record No. 2723-07-3.

Court of Appeals of Virginia, Salem.

September 16, 2008.

Robert M.D. Turk, Bland, Judge Frank W. Rogers, III (Mundy, Rogers & Associates, LLP, on brief), for appellant.

John S. Huntington for appellee.

Present: KELSEY, HALEY and PETTY, JJ.

KELSEY, Judge.

Scott R. Brandau appeals a final divorce decree arguing that the trial court erroneously calculated a spousal support award to his former wife. The calculation was flawed, husband contends, because it failed to impute income to wife and rested on an inflated estimate of his income. Finding neither assertion persuasive, we affirm.

I.

When reviewing a trial court's decision on appeal, "we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Smith v. Smith, 43 Va.App. 279, 282, 597 S.E.2d 250, 252 (2004) (quoting Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003) (citations omitted)). "That principle requires us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Petry v. Petry, 41 Va.App. 782, 786, 589 S.E.2d 458, 460 (2003) (citation omitted).

After 22 years of marriage, husband left his wife. Their son, the younger of two children, was in his senior year of high school. An older child was in college.

Husband is a self-employed optometrist with substantial earnings. Wife has not worked outside the home during the marriage, with the sole exception of a brief, part-time effort at assisting husband at his office. Wife has only a high school degree. She is not computer literate and has no specific vocational training. Wife suffers from dilated cardiomyopathy as well as other associated heart conditions (left ventricular dysfunction, chronic diastolic dysfunction, and ventricular tachycardia). Over the years, wife has had four pacemaker-defibrillators implanted in her chest designed to intervene during potentially lethal disruptions of her heart rate. She often becomes highly fatigued and has unexpectedly passed out from her heart condition. Added to these problems, wife suffers from hypothyroidism.

At trial, wife testified that she and husband agreed that she would be a stay-at-home mother to their two children. It was a "family decision," she said, for her "to fulfill the role of homemaker and mother." "I was going to be at home with our children," she testified, pursuant to their joint decision. She thought it particularly important to be home with her younger son prior to sending him off to college. "That is my full-time job," she explained.

Husband relied at trial on a vocational expert who opined that wife's present physical and vocational capacities suggest she could get a light or sedentary job earning about $14,500 a year with an average hourly wage between $6.00 to $8.00. An expert for wife agreed that, in principle, she was employable "but at risk" and could be reasonably expected to find only low-wage, low-stress positions (around the $13,000-a-year range) given her medical condition, lack of vocational training or higher education, inability to use computer technologies, and long absence from the job market.

On the question whether to impute income to wife for spousal support purposes, the trial court ruled it would not do so "at this time." In addition to noting wife's health issues, the court took into account "the understanding that Dr. Brandau would work and be the breadwinner while Mrs. Brandau would stay at home and take care of the family needs."

Another issue debated at trial was the proper computation of husband's income from his subchapter S corporation. An accountant for wife examined the corporation's financial records and concluded that husband made about $190,000 a year. Husband's accounting expert testified the better figure was $140,000 a year.

One of the differences between the two figures involved an adjustment for an item called "Wages Paid to Children." Husband gave monetary gifts to his children. Instead of giving the money outright, however, he listed his two children as "employees" of the corporation and their gifts as "salary." By doing so, these salaries served as ostensible business expenses on the corporation's financial statements and income tax returns. At trial, husband's accounting expert conceded that such practices "appear to be inappropriate" and should be ignored for purposes of calculating husband's true income. After considering all the evidence, the trial court accepted the $190,000 income calculation offered by wife's accounting expert and based husband's spousal support obligation upon that finding.

Pursuant to Code § 20-91(A)(6), the trial court awarded wife a final divorce decree based on evidence that husband "willfully deserted" the marriage. The court found the "circumstances and factors which contributed to the dissolution of the marriage," Code § 20-107.1(E), warranted a support award to wife. The court calculated that award by reviewing the evidence in light of the statutory factors listed in Code § 20-107.1(E). The final decree included the caveat that, at some later date, the "support award may be modified upon either party's showing of a material change in circumstances."

II.

A. IMPUTATION OF INCOME

Husband argues that the trial court erred as a matter of law in failing to impute income to wife given the "uncontested" evidence of her earning capacity of at least $13,000. Underlying husband's argument is the presupposition that, absent exceptional circumstances, every stay-at-home spouse seeking spousal support must start work outside the home immediately upon the entry of the divorce decree if he or she has any provable income earning capacity. We find no basis for such an inflexible principle in our statutes or caselaw.

In Virginia, when "a claim for support is made by a party who has been held blameless for the marital breach, the law imposes upon the other party a duty, within the limits of his or her financial ability, to maintain the blameless party according to the station in life to which that party was accustomed during the marriage." Gamble v. Gamble, 14 Va.App. 558, 573-74, 421 S.E.2d 635, 644 (1992); see also Lapidus v. Lapidus, 226 Va. 575, 581, 311 S.E.2d 786, 789 (1984); Butler v. Butler, 217 Va. 195, 197, 227 S.E.2d 688, 690 (1976); Stubblebine v. Stubblebine, 22 Va.App. 703, 710, 473 S.E.2d 72, 75 (1996) (en banc); Furr v. Furr, 13 Va.App. 479, 483-84, 413 S.E.2d 72, 75 (1992). This principle recognizes that, assuming Code § 20-107.1(B) does not otherwise bar spousal support,¹ "determining whether to award support and maintenance for a spouse" still requires judicial consideration of the "circumstances and factors which contributed to the dissolution of the marriage ...." Code § 20-107.1(E).

In determining "the nature, amount and duration of an award," the court must consider twelve specific statutory factors as well as any other concern "necessary to consider the equities between the parties." Id. Whether to impute income to a spouse seeking support is simply one component of calculating the "amount" of support under the statutory factors listed in Code § 20-107.1(E). Three of the statutory factors deal directly with this concept:

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability; [and]

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market[.]

Code § 20-107.1(E). While directly relevant to the question of imputation, these specific factors do not render the more general factors inconsequential. Whether to impute income also depends, in part, on a conscientious consideration of all factors, including the "standard of living established during the marriage," the "duration of the marriage," and the positive and negative "contributions, monetary and nonmonetary, of each party to the well-being of the family." Code § 20-107.1(E)(2), (E)(3) & (E)(6).

Husband argues that, notwithstanding the discretionary factors, our caselaw has tightly synthesized these principles into a statutory preset requiring imputation of income to a spouse seeking support if he or she has provable earning capacity at the time of the divorce. He cites Srinivasan v. Srinivasan, 10 Va.App. 728, 734, 396 S.E.2d 675, 679 (1990), for the proposition that a spouse has a presumptive duty to go to work following a divorce if he or she had provable earning capacity. This assertion comes from dictum in Srinivasan that "one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need." Id. (citing Baytop v. Baytop, 199 Va. 388, 395, 100 S.E.2d 14, 19 (1957) (imputing income where wife for "many years" had "earned a salary that is ample to maintain her in the station in life to which she has been accustomed")).²

Our holding in Srinivasan, however, directly refutes husband's view. In Srinivasan, the trial court imputed income to a wife based upon her Ph.D. and her prior working experience as a college professor. We reversed the trial court because it failed to take into account that the unemployed wife, "at the time of divorce, was leading the life style she was accustomed to during the marriage" and was thereafter "entitled to a reasonable time to secure employment." Id. at 735, 396 S.E.2d at 679 (emphasis added)....