Everett v. Kathryn Jean Tawes Kathryn Jean Tawes, Record No. 1838-17-1
| Decision Date | 10 July 2018 |
| Docket Number | Record No. 1838-17-1,Record No. 1839-17-1 |
| Court | Virginia Court of Appeals |
| Parties | JAMES DAVID EVERETT, II v. KATHRYN JEAN TAWES KATHRYN JEAN TAWES v. JAMES DAVID EVERETT, II |
UNPUBLISHED
Present: Judges O'Brien, Russell and Retired Judge Bumgardner*
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY
1
Robert L. Harris, Jr. (Barnes & Diehl, P.C., on briefs), for James David Everett, II.
Player B. Michelsen (Batzli Stiles Butler PC, on briefs), for Kathryn Jean Tawes.
Kathryn Jean Tawes filed for divorce from James David Everett, II in April 2016. The circuit court entered an order for pendente lite support on December 12, 2016, of $7,831 a month, retroactive to May 1, 2016. Husband did not pay as ordered, and wife sought a rule to show cause against which husband moved for retroactive modification of the pendente liteaward. The trial court subsequently ruled that the accrued arrearages of the pendente lite award could not be retroactively modified. It awarded wife permanent support of $4,800 per month in the final decree but did not award attorney fees to either party.
Husband appeals the refusal to modify retroactively the accrued pendente lite arrearages. In her appeal, wife asserts the court erred in determining the husband's income and in determining permanent spousal support. Both parties request attorney fees and costs. We affirm the circuit court and deny both requests for attorney fees and costs.
The parties married in 1989 and separated in 2015. They had three adult children and jointly owned a bed-and-breakfast inn. Husband owned interests in limited liability companies that operated four restaurants in Williamsburg. He received a guaranteed monthly salary of $10,000 ($120,000 per year) from one of the restaurants, plus an additional $530 every two weeks ($13,780 per year) to pay taxes on his guaranteed salary. The businesses paid approximately $52,000 per year for husband's premiums for life insurance and family health insurance and his health savings account. In addition, husband received periodic distributions from the restaurants to offset his tax liability arising from the restaurants' reported taxable income. No distributions were made if it would deplete the operating and capital needs of that restaurant. The income reported on husband's tax returns reflected taxable income from the restaurants, but it did not reflect his cash flow or the actual disposable funds available to him.
At the pendente lite hearing in October 2016, the court based the amount of support due from husband on his average gross annual income for the previous three years, which was $395,064, or $32,922 per month, and wife's declared monthly need of $11,720. The court ordered husband to pay wife $7,831 each month. The court also ordered husband to continue paying the mortgage and all utilities for the marital residence where wife lived, as well as paying her car loan and insurance. These expenses totaled $5,888.16. At the time of the show causehearing on March 28, 2017, husband's arrearage under the pendente lite order was $66,437.68. At a later hearing in July 2017 to determine permanent spousal support and equitable distribution, wife told the court that she was not pursuing any additional accrued arrearage. In the final decree, the court set the arrearage under the pendente lite order at $66,437.68.
Husband testified at the show cause hearing that he could not afford to pay wife the additional cash amount of pendente lite support ordered because he only had left about $4,600 per month after he paid wife's housing and car expenses. He said that he had received a $150,000 distribution from one of the restaurants in 2016 to cover his tax liability, but that he did not expect to get any further distributions because the restaurants required the cash to operate. The court found that husband was not in contempt for failing to pay support. It took under advisement husband's request that the amount be modified retroactively. The court later concluded that established case law did not permit retroactive modification.
Husband argues in his case that because a pendente lite order is intended to preserve the parties' status until a final decree of divorce is entered, the order is a temporary judgment that can be modified. He also asserts that while Code § 20-107.1(H)(6) states that an unpaid support obligation creates a judgment, there is no similar language in the pendente lite statute, Code § 20-103, and thus the legislature intended that pendente lite support be treated differently.
The law is settled that support payments vest as they accrue and may not be modified retroactively. See Cofer v. Cofer, 205 Va. 834, 839, 140 S.E.2d 663, 666 (1965); Smith v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818 (1987). In Reid v. Reid, 245 Va. 409, 415, 429 S.E.2d 208, 211 (1993), the Court held that even though the wife was not entitled to spousal support because she had deserted her husband, there was no statutory provision or implied authority to allow him restitution for support that he already had paid her. Similarly, in MacDougall v. Levick, 66 Va. App. 50, 84-88, 782 S.E.2d 282, 199-201 (2016), rev'd on othergrounds, 294 Va. 283, 805 S.E.2d 775 (2017), and Kleinfield v. Verucki, 7 Va. App. 183, 190, 372 S.E.2d 407, 411 (1988), this Court held that even though those marriages were found to be void, restitution could not be awarded for paid pendente lite support. Only if the payee spouse remarries and fails to notify the payor spouse is restitution of support authorized for amounts paid after the remarriage. See Code § 20-110. The trial court did not err in denying husband's request to modify the pendente lite order retroactively.
In her appeal, wife argues the trial court erred in only awarding permanent spousal support of $4,800 per month when she requested $8,000 to $10,000 per month. Wife maintains the court incorrectly determined husband's annual income, improperly considered her monetary award of marital assets,2 and failed to consider the tax consequences to each party.
Wife further asserts that because she was the blameless party in the divorce, she was entitled to a support award that allowed her to maintain the "upper middle class lifestyle" that she had enjoyed before husband deserted her. See, e.g., Miller v. Cox, 44 Va. App. 674, 684, 607 S.E.2d 126, 131 (2005). However, the amount needed by the spouse must be "balanced against the other spouse's ability to pay." Id. Further, there was evidence before the court that during the marriage the parties had not had a large amount of disposable income. Wife said in an interrogatory that they had "struggled forever." Her mother testified that she had given them cash because "they just didn't have all that much." The court noted that the parties lived "beyond their means," as they "attempted" to have a standard of living that they could not afford. Wife contends, however, that husband could access more money from the restaurants' earnings ifhe chose to do so and that the court erred in finding that husband lacked sufficient cash flow to make a larger support payment.
On appeal of an order awarding spousal support, the circuit court's "findings of fact are accorded great deference[,] and its judgment will not be set aside unless plainly wrong or without evidence to support it." See Stroud v. Stroud, 54 Va. App. 231, 236, 677 S.E.2d 629, 631 (2009). The record here shows that in setting the permanent amount of spousal support, the court considered the factors set forth in Code § 20-107.1(E). The court determined that husband's annual income was "roughly $250,000." Husband's guaranteed annual income of $120,000, plus additional salary payments of $13,780 per year, plus an average annual distribution from the restaurants of $150,000, minus the $37,500 per year that husband owed to wife on the monetary...
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