Campbell v. Campbell
| Decision Date | 05 August 2014 |
| Docket Number | Record No. 2060-13-1 |
| Court | Virginia Court of Appeals |
| Parties | BAYARD BRYON CAMPBELL v. LAURA PENDLETON CAMPBELL |
UNPUBLISHED
Present: Judges Kelsey, Beales and Decker
Argued at Chesapeake, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
SuAnne Hardee Bryant (Davis Law Group, P.C., on briefs), for appellant.
John H. Kitzmann (Davidson & Kitzmann, PLC, on brief), for appellee.
The circuit court granted Laura Pendleton Campbell (wife) a divorce from Bayard Bryon Campbell (husband) on the ground of the parties living separately and apart for more than a year. See Code § 20-109(A)(9)(a). Husband appeals several rulings from the circuit court's September 27, 2013 final orders addressing spousal support1 and equitable distribution. For the following reasons, we affirm in part, reverse in part, and remand the matter to the circuit court for further proceedings consistent with this opinion.
On appeal, we view the evidence in the light most favorable to wife, the party prevailing below, Chretien v. Chretien, 53 Va. App. 200, 202, 670 S.E.2d 45, 46 (2008), and we grant to wife "all reasonable inferences fairly deducible therefrom," Anderson v. Anderson, 29 Va. App. 673,678, 514 S.E.2d 369, 372 (1999). The parties married in December 1993, had two children during the marriage, and separated in September 2010 when wife left the marital home with the parties' children.2 Wife filed a complaint for divorce, and, in his answer to wife's complaint, husband also filed a cross-complaint for divorce. The circuit court entered a pendente lite order on February 8, 2011 that, among other rulings, awarded wife $4,318 per month in pendente lite spousal support and prohibited the parties from disposing of, encumbering, or increasing the debt of any marital asset.
The parties' divorce hearing occurred in the circuit court on August 13, 2012 and also on December 7, 2012, when the circuit court heard additional testimony relevant to equitable distribution and spousal support. The evidence below established that husband was a practicing neurosurgeon when the parties married - but he was then left totally and permanently disabled for employment purposes after contracting tropical spastic paraparesis, a rare disease that will ultimately leave husband completely unable to use his legs. Thereafter, husband has received $14,783 monthly from a private disability insurance policy as well as a $2,047 monthly disability benefit from the Social Security Administration. Wife obtained her medical degree and specialized in child psychiatry during the marriage, practicing medicine as a child psychiatrist in South Carolina until her pregnancy with the parties' first child. Wife then returned to work three years before the parties' separation when she started an interior design business - although, as the circuit court found, the income generated by that business was "negligible, if any."3
Confirming most of its rulings from a February 13, 2013 letter opinion, the circuit court found in its September 27, 2013 final equitable distribution order that three life insurance policies purchased from the Guardian Life Insurance Company during the marriage had accrued cash valuesand were marital assets for purposes of equitable distribution. One of those policies (the Guardian *608 policy) that was titled in husband's name, listed the parties' two children as revocable beneficiaries, and had accrued a substantial cash value of $799,513. In its September 27, 2013 final order, the circuit court entered a monetary award directing husband to pay wife $399,756.50 -representing half of the Guardian *608 policy's accrued cash value. Furthermore, the circuit court directed husband to pay an additional $54,642 to wife to satisfy the terms of a prior contempt order - in which the circuit court had found that husband was in contempt of the February 8, 2011 pendente lite order by obtaining loans from the Guardian *608 policy's cash value following the parties' separation.
In addition, the circuit court's September 27, 2013 final spousal support order awarded wife $3,000 in monthly spousal support until husband's private disability insurance policy lapses, which will occur when husband reaches age sixty-five.4 The circuit court entered this final spousal support award - which was $1,318 less per month than the pendente lite spousal support award - nunc pro tunc to February 21, 2013. However, the circuit court declined husband's request for an overpayment credit accounting for five months' difference between husband's pendente lite spousal support obligation and husband's final spousal support obligation. The circuit court also did not impute any income to wife. The circuit court explained in its February 13, 2013 letter opinion that wife's "ability to return to her prior medical career is presently negligible." However, neither the circuit court's letter opinion nor its final spousal support order directly addressed wife's own evidence, from her own vocational expert, Charles DeMark, that wife could earn $40,00 to $60,000 per year as a biology or chemistry teacher, as a pharmaceutical sales person, or as a community college professor.
Moreover, the circuit court awarded wife $10,000 in attorneys' fees and costs. The circuit court did not premise this award on the conduct of either party - but instead "[i]n light of the significant income disparity and resources" of the parties.
Husband raises seven assignments of error (and several sub-parts), which he acknowledges on brief are all reviewed on appeal for abuse of discretion by the circuit court. Under this deferential standard of review, this Court must "show enough deference to a primary decisionmaker's judgment that the [appellate] court does not reverse merely because it would have come to a different result in the first instance." Lawlor v. Commonwealth, 285 Va. 187, 212, 738 S.E.2d 847, 861 (2013) (internal quotation marks and citation omitted); see also, e.g., Robbins v. Robbins, 48 Va. App. 466, 482, 632 S.E.2d 615, 623 (2006) .
"Accordingly, 'when a decision is discretionary . . . . the court has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.'" Lawlor, 285 Va. at 212-13, 738 S.E.2d at 861 (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).
In his first assignment of error, husband challenges the portion of the February 8, 2011 pendente lite order in which the circuit court awarded wife $4,318 in monthly pendente lite spousal support. Husband claims that the circuit court "relied solely on the application of the so-called'Fairfax' or statutory spousal support guidelines" when deciding the appropriate amount of pendente lite spousal support.5 However, the record on appeal does not support husband's claim.
Under the well-established law of Virginia, it is husband's burden to establish that the circuit court committed reversible error. See, e.g., Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (en banc).
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)).
Code § 20-103(A) gives the appropriate circuit court the discretion to enter a pendente lite order, inter alia, "to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse" and "to enable such spouse to carry on the suit" through the entry of the pendente lite spousal support order. While Code § 20-103(A) sets forth no prescribed method or factors for determining (in the circuit court's discretion) what is the appropriate amount of pendente lite spousal support, husband contends that the circuit court erred in this case by "rel[ying] solely" on the formula stated in the "Fairfax guidelines." However, husband has failed to provide this Court with an adequate record on appeal to meet his burden of establishing reversible error by the circuit court.6
The record on appeal does not contain the transcript of the pendente lite hearing in the circuit court, which was held on December 13, 2010. The record also does not contain a statement of facts in lieu of a transcript describing what occurred at the pendente lite hearing. Thus, the record does not reflect the circuit court's actual findings and rulings at the pendente lite hearing. Husband's argument in support of his first assignment of error instead rests on an isolated exchange from the transcript of the August 13, 2012 divorce hearing. There, the circuit court told wife's counsel that it would not use any local guidelines when determining the final spousal support order under Code § 20-107.1. Husband's counsel stated, "And I appreciate that, Your Honor, because at the pendente lite level, the guidelines were what was used." The circuit court responded,
However, without the transcript of the actual pendente lite December 13, 2010 hearing being in the record on appeal, this isolated and rather vague statement by the circuit court at the August 13, 2012 divorce hearing simply cannot be interpreted as any admission by the circuit court that it "relied solely" on the "Fairfax guidelines" at the pendente lite ...
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