Budnick v. Budnick

• Court: Virginia Court of Appeals
• Writing for the Court: WALTER S. FELTON, JR.
• Citation: Budnick v. Budnick, 42 Va. App. 823, 595 S.E.2d 50 (Va. App. 2004)
• Decision Date: 20 April 2004
• Docket Number: Record No. 1689-03-4.
• Parties: Damien BUDNICK v. Cynthia H. BUDNICK.

595 S.E.2d 50

42 Va. App. 823

Damien BUDNICK v. Cynthia H. BUDNICK.

Record No. 1689-03-4.

Court of Appeals of Virginia, Alexandria.

April 20, 2004.

Robert L. Vaughn, Jr. (Glennon, Lubeley, Vaughn & Walker, L.L.P., on brief), for appellant.

Mary Ellen Craig, (Craig & Hirsch, P.C., on brief), Reston, for appellee. Present: ANNUNZIATA, FELTON and McCLANAHAN, JJ.

WALTER S. FELTON, JR., Judge.

Damien Budnick (husband) appeals from the final divorce decree granting Cynthia H. Budnick (wife) a divorce on the grounds of his felony conviction and subsequent incarceration. On appeal, husband contends that the trial court erred (1) in adopting the commissioner's conclusion that husband's criminal activity was the primary factor in the dissolution of the marriage; (2) in its equitable distribution of the marital property; (3) in its finding that husband committed substantial waste of the parties' marital assets to pay the court-ordered restitution and other costs resulting from his criminal convictions, and its awarding a lump sum payment of $20,018 to wife; (4) in its failure to impute income to wife in setting child support; (5) in its reservation of a right to future spousal support for wife; (6) in its award of child support retroactive to March 2002; and (7) in its award of attorney's fees to wife. We affirm the judgment of the trial court.

BACKGROUND

"`Under familiar principles we view [the] evidence and all reasonable inferences in the light most favorable to the prevailing party below. Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" Pommerenke v. Pommerenke, 7 Va.App. 241, 244, 372 S.E.2d 630, 631 (1988) (quoting Martin v. Pittsylvania County Dep't of Soc. Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986)).

So viewed, the record establishes that Damien and Cynthia Budnick were married in September 1983. Two children were born of the marriage, both of whom were under eighteen years old at the time of the divorce. In 1994, while the parties were living in Florida, federal authorities charged husband with felony obstruction of justice for his role in a fraud and bribery scandal involving his former employment with American Honda Motors, Inc. He pleaded guilty and was sentenced to five months home detention and ordered to pay $20,000 in fines and $75,000 in restitution. In 1997, while husband was on probation from his prior conviction, federal authorities began an investigation of husband's boat loan business. When wife discovered that husband was the subject of this second criminal investigation, she separated from him, relocating with the parties' children to Virginia. A few months later husband followed wife to Virginia. The parties subsequently reconciled. Wife testified that following the reconciliation husband remained secretive, and thereafter became verbally and physically abusive.

In July 2001, husband was charged in the United States District Court in Florida with bank fraud and structuring transactions to evade bank reporting requirements. On learning of husband's charges in Florida, wife again separated from husband, though the parties continued to reside in the same house. In November 2001, wife initiated divorce proceedings on the grounds of husband's cruelty and constructive desertion. Husband remained in the residence in Fairfax County until March 2002, when he pleaded guilty to the Florida charges and was sentenced to a term of twenty-one months incarceration. As a result of his convictions, he was ordered to pay restitution in the amount of $395,007.85 to the Bank of America. Wife later amended her bill of complaint to seek divorce on the grounds of husband's felony conviction and his incarceration for a period greater than one year.

The trial court referred the proceedings to a commissioner in chancery who heard evidence ore tenus. The commissioner reported that husband "was twice convicted of participating in fraudulent schemes which caused his family irreparable harm. On both occasions when [wife] was confronted with the fact that her husband was being prosecuted or investigated for criminal activity, the results were devastating." He concluded that the parties' marriage was "primarily destroyed by the criminal activities of [husband]." The commissioner recommended that wife be awarded a divorce on the ground of husband's 2002 convictions and his subsequent incarceration for a period of more than a year. Husband filed objections to the commissioner's findings.

In December 2002, following receipt of the commissioner's report, the trial court heard evidence ore tenus regarding child custody, equitable distribution, spousal support and child support. On April 7, 2003, it granted a divorce a vinculo to wife on the grounds of husband's felony convictions and incarceration. It adopted the commissioner's findings regarding the circumstances and factors leading to the dissolution of the marriage, including the impact of husband's criminal activities and convictions, as well as his abusive conduct toward wife. It concluded that after "[Waving considered all the factors of Code § 20-107.3 and the value of the marital property, that based on all the evidence in this case, including husband's negative monetary contributions to the marriage, a 90 percent/10 percent split of the marital assets is required."

In addition to awarding the substantial share of the marital property to wife, the trial court granted a monetary award of $20,018 to her, based on husband's waste of marital assets to pay court-ordered restitution and costs resulting from his criminal convictions. It awarded custody of the children to wife; a lump sum spousal support award of $6,000; reservation for future spousal support for 20 years; and retroactive child support. Finally, the trial court awarded her attorney's fees incurred during the divorce proceedings.

ANALYSIS

I. FAILURE TO CITE AUTHORITY

Husband presents twenty questions on appeal. In questions 8, 10, 12, 13, 17, 18, and 20, husband fails to cite any supporting principles of law or authority. "Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration." Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297 (2003) (citation omitted); see Rule 5A:20 (requiring appellants to brief the "principles of law, the argument, and the authorities relating to each question presented").

Having presented no citations or authority in his brief in support of these questions, husband has waived these questions on appeal and we need not address them. See Rule 5A:20(e).

II. COMMISSIONER'S REPORT

In questions 1 and 2, husband contends that the trial court erred in affirming the report of the commissioner, finding that husband's criminal actions and convictions had a devastating impact on the marriage.

"Although the report of a commissioner in chancery does not carry the weight of a jury's verdict," when the commissioner's findings of fact are based upon ore tenus evidence, we "give due regard to the commissioner's ability, not shared by the chancellor, to see, hear, and evaluate the witnesses at first hand." Gilman v. Gilman, 32 Va.App. 104, 115, 526 S.E.2d 763, 768 (2000) (quoting Jarvis v. Tonkin, 238 Va. 115, 121-22, 380 S.E.2d 900, 904 (1989)). "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). On appeal, we will not reverse findings of fact "unless plainly wrong." Gilman, 32 Va.App. at 115, 526 S.E.2d at 768-69 (citing Barker v. Barker, 27 Va.App. 519, 531, 500 S.E.2d 240, 245-46 (1998)).

The commissioner found that husband refused to accept responsibility for the consequences of his criminal activities, and particularly noted their impact on the well-being of the marriage. He also found that these activities created such turmoil in wife's life that she became physically ill, lost weight, and required treatment for stress and depression. The record reflects that, following husband's first conviction in 1995, wife suffered from stress and emotional trauma resulting from the widespread publicity surrounding the scandal. She also testified that husband became more uncommunicative and abusive. The commissioner found that husband's reluctance to accept responsibility for his unlawful behavior continued to undermine the marriage and wife's trust in him.

We conclude that the commissioner's findings are supported by evidence in the record, and hold that the trial court did not abuse its discretion in accepting, without modification, the findings contained in the commissioner's report. See Brown v. Brown, 11 Va.App. 231, 236, 397 S.E.2d 545, 548 (1990).

III. EQUITABLE DISTRIBUTION

In questions 3, 4, 5, and 6, husband contends that the trial court erred in its equitable distribution of the marital property. He argues that the trial court erred in concluding that his criminal conduct and subsequent convictions constituted negative nonmonetary contributions to the marriage; that the trial court improperly adopted the commissioner's finding that his conduct was the primary cause of the dissolution of the parties' marriage; that it impermissibly used fault as a factor in distributing the marital estate; and that it erred in granting most of the marital estate to wife, and ordering him to pay a monetary award of $20,018 to wife on the basis of his waste of marital assets.

A. Husband's Negative Nonmonetary Contributions

Husband contends that the trial court erred in finding that his criminal activities and his resulting convictions constituted negative nonmonetary contributions to the marriage. It is well established that the trial court must consider each of the factors of Co...