Dixon v. Dixon

• Decision Date: 31 March 2020
• Docket Number: Record No. 1108-19-4
• Citation: 840 S.E.2d 1,71 Va.App. 709
• Parties: Jerry DIXON v. Rebecca DIXON
• Court: Virginia Court of Appeals

71 Va.App. 709

840 S.E.2d 1

Jerry DIXON

v.Rebecca DIXON

Record No. 1108-19-4

Court of Appeals of Virginia, Richmond.

MARCH 31, 2020

Charles E. Powers, Richmond (Adam D. Rellick; Stiles Ewing Powers PC, on briefs), for appellant.

Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), Richmond, for appellee.

Present: Chief Judge Decker, Judges O’Brien and AtLee

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Jerry Dixon (the husband) appeals a final divorce decree. He challenges the spousal support award to Rebecca Dixon (the wife). The wife assigns cross-error and also requests an award of attorney’s fees and costs on appeal. For the reasons that follow, we affirm in part, reverse in part, and remand to the circuit court. In addition, we deny the wife’s request for appellate fees and costs.

I. BACKGROUND¹

The parties married in 1989. In 2017, the husband moved out of the marital residence and filed for divorce. He alleged desertion and abandonment and, alternatively, living separately for more than one year as grounds for the divorce. The wife filed a counter-complaint for divorce on the grounds of desertion and cruelty.

During the hearing, the husband complained of the wife’s hoarding and spending habits. She accused him of physical abuse. The husband made a motion to strike the wife’s counter-complaint. The circuit court denied the motion.

After hearing evidence and arguments, the court entered a final decree of divorce. It granted the divorce on the ground that the parties lived apart for more than one year and fashioned an equitable distribution award. In doing so, the court offset the husband’s monetary award against the spousal support award to the wife. As a result of this offset, the court set a defined duration of sixty-three months for the spousal support award.

II. ANALYSIS

On appeal, the husband advances three assignments of error. The first two incorporate his argument that the circuit court erred in denying his motion to strike the wife’s counter-complaint. The husband also assigns error to the offset of his monetary award from the equitable distribution against the wife’s spousal support award. The wife agrees that the circuit court erred with regard to the offset against spousal support. However, she assigns cross-error. The wife argues that the circuit court erred by imposing a defined duration on the award of her spousal support. Further, she asks for attorney’s fees and costs expended in the appeal.²

A. Motion to Strike

The husband argues that the circuit court erred by failing to grant his motion to strike the wife’s counter-complaint for divorce.

The wife’s counter-complaint below sought a divorce on the grounds of desertion and cruelty.³ See generally Code § 20-91(A)(6) (providing that a divorce may be based on desertion or cruelty). She alleged that in 2017, the husband abruptly moved out of the marital residence, announced his intention to end the marriage, stopped all financial support, and withdrew all the marital funds from their joint bank accounts. The wife also accused the husband of mentally and physically abusing her. The circuit court denied the husband’s motion to strike the counter-complaint.

A denial of a motion to strike is error only if it "is conclusively apparent that [the non-moving party] has proven no cause of action" or the non-moving party’s position is plainly without evidence to support it. Parson v. Miller, 296 Va. 509, 524, 822 S.E.2d 169 (2018) (quoting Egan v. Butler, 290 Va. 62, 73, 772 S.E.2d 765 (2015) ). In deciding whether to strike a claim, a circuit court must "accept as true all the evidence favorable to the [claimant,] as well as any reasonable inference a [fact finder] might draw therefrom which would sustain the ... cause of action." Chaplain v. Chaplain, 54 Va. App. 762, 772, 682 S.E.2d 108 (2009) (quoting Austin v. Shoney’s, Inc., 254 Va. 134, 138, 486 S.E.2d 285 (1997) ). At the motion-to-strike stage, "[t]he trial court is not to judge the weight and credibility of the evidence, and may not reject any inference from the evidence favorable to the [non-moving party] unless it would defy logic and common sense." Id. at 772-73, 682 S.E.2d 108 (quoting Austin, 254 Va. at 138, 486 S.E.2d 285 ).

To the extent that the husband’s argument that the circuit court erred by denying his motion to strike the wife’s counter-complaint is based in part on the wife’s failure to sustain her claim, the argument misunderstands the posture of the case at the motion-to-strike stage. At that stage, the question for the circuit court was whether, viewing all the evidence in the light most favorable to the wife , the record contained evidence sufficient to possibly sustain her claim. See Chaplain, 54 Va. App. at 772-73, 682 S.E.2d 108. As the circuit court correctly noted, ruling on the motion to strike was a different phase of the proceeding than considering the sufficiency of the evidence.

The husband contends that his motion to strike should have been granted because the wife’s testimony about desertion and cruelty was uncorroborated. See Code § 20-99(1) (providing that a court cannot grant a divorce based on "the uncorroborated testimony" of one or both of the parties). He suggests that the circuit court "specifically found that [the w]ife did not corroborate her testimony." However, in denying the motion to strike, the judge found that the wife’s claim of desertion had been corroborated. Further, in the letter opinion, the court found that the husband in fact left the marital residence in 2017 but that his departure was justified. As for the wife’s claim for a divorce on the ground of cruelty, the court assumed without deciding the veracity of her accusations.⁴

Desertion is the "breach of matrimonial duty—an actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party." Purce v. Patterson, 275 Va. 190, 195, 654 S.E.2d 885 (2008) (quoting Petachenko v. Petachenko, 232 Va. 296, 298-99, 350 S.E.2d 600 (1986) ). The record on this issue is incomplete because the transcript provided on appeal is only partial. We do not know what evidence was presented at the hearing regarding the husband’s intent when he left the marital residence in 2017. "The burden is upon the appellant to provide [the appellate court] with a record which substantiates the claim of error. In the absence [of a sufficient record], we will not consider the point." Robinson v. Robinson, 50 Va. App. 189, 197, 648 S.E.2d 314 (2007) (second alteration in original) (quoting Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16 (1991) (citation omitted)); see also Rule 5A:8(b)(4)(ii). Without a complete transcript, this Court is unable to fully review the parties’ evidence and arguments below on the issue of desertion. Therefore, a transcript is indispensable to resolving the husband’s first two assignments of error.

Consequently, we affirm the circuit court’s decision to deny the husband’s motion to strike the wife’s counter-complaint.⁵

B. Offset

Both parties contend that the circuit court erred in offsetting the equitable distribution monetary award to the husband against the award of spousal support to the wife.⁶

In fashioning the equitable distribution award, the circuit court determined that the husband was entitled to "a credit" for $157,250, half of the parties’ equity in the marital home. The court also awarded the wife $1,500 monthly spousal support. It provided as follows:

[T]he duration of spousal support must be tempered by the aforementioned credit of $157,250 [the husband] received in the equity of the marital home. That credit will serve to shorten the period of spousal support. Had the Court not awarded support but rather made a reservation to [the wife], the statutory presumption would have been that the right would continue for one half the duration of the 28 year marriage. Though not mandated, the Court takes guidance from that in concluding that a support duration of a similar time period—fourteen years (one half of 28)—would be appropriate. However, after applying the credit to [the husband] of his share of the equity [in] the marital home (or $157,250), the Court calculates that an award of spousal support for approximately 5.25 years (or 63 months) is appropriate.

Accordingly, the court ordered that the husband pay the wife the monthly amount of $1,500 in spousal support for sixty-three months.

Both parties argue that the circuit court did not have the statutory authority to offset the equitable distribution monetary award against spousal support. The husband complains that the practical effect of the offset is that he will not receive the monetary award due to him until the end of the sixty-three-month spousal support period. He suggests that this arrangement impermissibly made part of his equitable distribution award contingent on future circumstances. The wife contends that the circuit court erroneously considered spousal support as a factor in fashioning the equitable distribution award.

On review, a circuit court’s "equitable distribution award will not be overturned unless the [appellate court] finds ‘an abuse of discretion, misapplication or wrongful application of the equitable distribution statute, or lack of evidence to support the award.’ " Anthony v. Skolnick-Lozano, 63 Va. App. 76, 83, 754 S.E.2d 549 (2014) (quoting Wiencko v. Takayama, 62 Va. App. 217, 229-30, 745 S.E.2d 168 (2013) ). However, to the extent that the appeal requires an examination of the proper interpretation and application of Code § 20-107.3, it involves issues of law, which the Court reviews de novo on appeal. See David v. David, 287 Va. 231, 237, 754 S.E.2d 285 (2014).

"[J]urisdiction in divorce suits is purely statutory." Anthony, 63 Va. App. at 90, 754 S.E.2d 549 (quoting Watkins v. Watkins, 220 Va. 1051, 1054, 265 S.E.2d 750 (1980) ). Code § 20-107.3 authorizes a circuit court entering a divorce decree to also determine equitable...