Broom v. Broom

• Court: Virginia Court of Appeals
• Writing for the Court: JOSEPH E. BAKER
• Citation: Broom v. Broom, 15 Va.App. 497, 425 S.E.2d 90 (Va. App. 1992)
• Decision Date: 22 December 1992
• Docket Number: No. 1551-90-4,1551-90-4
• Parties: Karl C. BROOM v. Donna I. BROOM. Record

Page 90

425 S.E.2d 90

15 Va.App. 497

Karl C. BROOM v. Donna I. BROOM.

Record No. 1551-90-4.

Court of Appeals of Virginia.

Dec. 22, 1992.

David L. Duff (Duff, McLaughlin & Heacock, P.C., on brief), for appellee.

Present: BAKER, BENTON and MOON, JJ.

JOSEPH E. BAKER, Judge.

This is an appeal from a decree of divorce entered by the Circuit Court of Fairfax County (trial court). Karl C. Broom (husband) alleges (1) that in making the monetary award the trial court erroneously failed to consider separate funds husband contributed to the marriage, and (2) the trial court erred in directing husband to pay Donna I. Broom (wife) one-half of the sum contained in an Individual Retirement Account (IRA) and $37,400 for attorney's fees and costs she incurred in the prosecution and defense of the divorce proceedings.

Wife filed a cross-appeal asserting (1) that the trial court erred when it failed to give her credit for separate funds she contributed to the acquisition of the marital residence, and (2) further erred when it reduced the initial award of spousal and child support.

The trial court's analysis of the evidence considered and its finding of facts relevant to the issues presented by this appeal are as follows:

The parties hereto were married on July 22, 1972 and separated on February 13, 1988. There are four children of the marriage; Ian Edward Broom, born October 13, 1967 and Kevin Joel Broom, born May 19, 1970, children of the Husband by a former marriage who were adopted by the Wife, both of whom are now emancipated, and Patrick Iselin Broom, born March 3, 1976, now 14 years of age and Christopher Cooke Broom, born December 8, 1973, now 16 years of age, born of the marriage. The younger children are in the custody of the Wife. Christopher suffers from cystic fibrosis and requires special therapy therefor.

Husband is 47 years of age, the Wife is 41, both of the parties are college graduates, and both are in good physical and mental health, although the Wife testified she had surgery in 1986, a complete hysterectomy in 1989 and is chronically tired.

The Husband has been employed by the CIA since September 12, 1970 and now earns an average annual gross salary of $60,480.00. The Husband also served approximately two years in the military prior to becoming employed by the CIA. The Wife was also employed by the CIA at the time of the marriage but terminated that employment to care for the children of the parties and the marital home. The wife did, however, carry on a catering service out of the marital home for a time to earn additional monies to be applied to the welfare of the family. At the time of hearing the wife was employed by the Marriott Corp. as a banquet manager at an approximate gross annual salary of $17,644.00.

The parties have reached agreed stipulations, set forth in the Complainant Wife's exhibits nos. 1 and 2, that provide, inter alia, as follows:

a. The marital residence, jointly owned, has a current fair market value of $1,000,000.00 and is not encumbered by any Deeds of Trust.

b. A sale of the marital residence to a third party would necessitate commissions and other costs of sale totalling eight percent (8%), or $80,000.00.

c. The wife has marital furniture, furnishings and other household goods in her possession at the marital residence with a value $16,250.00 greater than possessed by the husband at his residence.

d. The husband agrees to continue to maintain the existing levels of major medical and catastrophic health insurance coverage for the benefit of Patrick and Christopher, for so long as allowable under the terms of the policy.

e. The husband agrees to pay, each year, all deductibles and co-insurance amounts under the aforesaid major medical and catastrophic health insurance, up to the qualifying total for catastrophic "cap" coverage, not to exceed $2,000.00 in any given year.

f. Funds were used from the children's custodial accounts toward construction of the marital residence; therefore, the four (4) children have an interest in the value of the marital residence in the amount of $46,920.00.

g. The parties each agree to be responsible for one-half ( 1/2) of the orthodontia costs for Christopher and Patrick.

h. The husband admits that he is guilty of legal desertion, as provided in Section 20-91(6) of the 1950 Code of Virginia, as amended, and as alleged in Count I of the Bill of Complaint.

i. With respect to Section 20-107.3(E)(5) of the 1950 Code of Virginia, as amended, both parties agree that, during the course of this marriage, the conduct and actions of each of them joined to contribute to the eventual dissolution of the marriage; however, the husband acknowledges that his conduct and actions were the primary cause of the breakup of the marriage.

The Husband's pension, up to the time of separation of the parties, was earned over a period of service of 19.40 years. The parties were married during 15.56 years of his 19.40 years of service and the marital share of the husband's pension based on the proportion of years married is 15.56/19.40 or 80.2% up to the time of separation. The expert witness for the Wife found the present value of the marital share of the husband's pension to be $99,215 and the expert witness for the husband, using a slightly different discount rate and a retirement age two years later for the Husband, found the value to be $73,631.

The Wife's father, retired Admiral Donald Iselin, testified that he and his wife had contributed $90,000 in cash payments plus $56,000 in value of his own labor and $8,000 in value of his wife's labor toward the construction of the jointly owned marital home of the parties; a total of $154,000.00 in value. He further testified that $45,000 of the cash amount was forgiven by him. Although Admiral Iselin testified that his unforgiven contributions were a gift to his daughter only, the evidence supports the conclusion that these contributions were intended to be a gift to both of the parties hereto and the Court so finds.

The first home the parties lived in was acquired by the Husband in 1971 and deeded to the parties jointly in 1972 by the Husband following the marriage of the parties. No evidence was introduced concerning the value or equity in that home at the time it was deeded jointly to the parties and the Court cannot therefore make any determination thereof. The evidence did show, however, that the proceeds of the sale of that house, some $84,000.00, was contributed to the acquisition of the present marital home. The Court finds that all of the $84,000.00 was marital property. The evidence is in conflict as to the amount each of the parties contributed from their separate funds toward acquisition of the marital home. The Court finds that the Wife contributed a total of $138,075.00 of her separate funds directly to the acquisition of the marital home. The Court further finds that the Husband contributed $9,000.00 directly from his separate funds and that the balance of cash contributions from the parties are contributions from marital funds. The Court finds that both parties contributed personal labor to the building of the marital home, the Wife contributing more than the Husband because of the time constraints of his career employment and participation in the children's sports activities.

The Husband, in addition to contributing his earnings from his employment to the well being of the family introduced evidence that he contributed monies from unearned sources, gifts and inheritances, excluding any contribution toward acquisition of the marital home, in the approximate amount of $319,000.00 during the course of the marriage. The Husband was also active in the sports activities of the children and helped, to the extent he was able, in the care of the marital home. The Wife, in addition to her earnings which she contributed to the well being of the family, was the principal caretaker of the marital home and the children.

The Husband introduced evidence that, since the separation of the parties, he has paid joint household bills in the approximate amount of $12,828.00 and had debts, as of the hearing, in excess of $105,000.00. Although the Husband argues that the $105,000.00 is "family related debts", the Court notes that over 99% of the $105,000.00 appear to have been incurred after the separation of the parties and only $4,792.00, payable to or for the parties' sons, appears to be family related. The Court finds that the balance is the individual debt of the Husband. The Wife introduced evidence that, since the separation of the parties, she has paid some $15,000.00 in real estate taxes and $2,200.00 in insurance on the marital home together with some $1,700.00 in other funds toward maintenance of the marital home; a total of some $18,900.00. The Wife also introduced evidence that she is indebted to her father in the amount of $29,400.00 plus interest borrowed since the separation of the parties for living expenses.

The Wife has incurred attorney's fees and costs, up to the time of the hearing, of approximately $37,385.00 and the Husband has incurred attorney's fees and costs of approximately $38,000.00.

The...