Floyd v. Floyd

• Decision Date: 19 October 1993
• Docket Number: No. 1529-92-2,1529-92-2
• Citation: 17 Va.App. 222,436 S.E.2d 457
• Parties: Fred Samuel Miles FLOYD v. Barbara Ann FLOYD. Record
• Court: Virginia Court of Appeals

Page 457

436 S.E.2d 457

17 Va.App. 222

Fred Samuel Miles FLOYD v. Barbara Ann FLOYD.

Record No. 1529-92-2.

Court of Appeals of Virginia.

Oct. 19, 1993.

Matthew N. Ott, Richmond (Matthew N. Ott, P.C., on brief), for appellant.

No brief or argument, for appellee.

Present: COLEMAN, WILLIS and ELDER, JJ.

ELDER, Judge.

Fred Samuel Miles Floyd appeals from the final decree of divorce entered June 30, 1992, which granted Barbara Ann Floyd a monetary award and spousal and child support. On appeal, he contends that the trial court erred (1) in making the monetary award by considering the five-year period of premarital cohabitation in addition to the factors enumerated in Code § 20-107.3; (2) in determining the amount of both spousal and child support by imputing $45,000 in income to him without specifying the basis for the imputed amount and without first determining the presumptive amount of child support; and (3) in refusing to allocate the federal income tax dependency exemption for the parties' minor child to him, the noncustodial parent, given that he was required to pay approximately eighty-seven percent of the presumptive child support amount. In reviewing appellant's assignments of error, we are guided by the principle that decisions concerning equitable distribution and spousal and child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence. Srinivasan v. Srinivasan, 10 Va.App. 728, 732, 396 S.E.2d 675, 678 (1990) (equitable distribution); Young v. Young, 3 Va.App. 80, 81, 348 S.E.2d 46, 47 (1986) (child support); Dukelow v. Dukelow, 2 Va.App. 21, 27, 341 S.E.2d 208, 211 (1986) (spousal support). For the reasons set forth below, we affirm the ruling of the trial court in part and reverse in part.

Husband and wife began living together in October of 1979, had a child on September 10, 1980, and were married on June 15, 1985. They separated for eight months in 1986, but reconciled and lived together until September, 1989, when wife left again and filed for divorce. During the cohabitation and marriage, husband worked in the flooring business. Wife originally worked for C & P Telephone but stopped working about ten months after she and husband began living together and just before the couple's daughter was born. From that point on, wife performed secretarial work out of the home seven days a week and also tended to the household chores. During the 1986 separation, wife worked for a department store earning about $3.75 an hour and an apartment complex earning about $4.00 an hour. At the hearing on June 30, 1992, wife testified that she earned $520 per month through babysitting. She also testified that she had been unable to secure other employment because she had neither a car nor a driver's license and did not currently have the money to obtain either one.

At a hearing on March 25, 1992, the court determined the following to be the marital property subject to equitable distribution: bank account, $89,348.00; home equity, $26,803.00; cash taken by wife upon separation, $6,000.00; 1931 Ford, $6,000.00; and 1985 Buick, $1,500.00.

On June 30, 1992, the court entered the final decree of divorce. It awarded custody of the child to wife and set husband's child support obligation at $517 per month and spousal support at $400. In so doing, it determined husband's annual income to be $45,000, "[b]ased on the depositions of prior years, the statement in testimony and the statement of money taken out of the business." It also awarded husband $72,280 of the marital estate and wife $57,346. In explaining how it arrived at that figure, the court stated that it considered

all of the statutory factors, including the length of the marriage, and ... the fact they lived together for five years, and in considering what kind of business it was, what [husband] did, the fact that [wife] participated in the business by answering the phone, having some other participation in the carrying on of the business, I thought that putting all those factors together, the husband sharing in business was still a little more than the wife....

The court apportioned the largest asset, the bank account of $89,348, fifty-five percent to husband and forty-five percent to wife, and divided all other property equally. In so doing, the court took into consideration that wife had taken $6,000 when she left and that husband had possession of everything else.

Also at that hearing, husband requested that he be given the right to claim the child as a dependent on his income tax returns in light of the fact that he was paying 87.8% of the child support. The court stated at one point, "[b]ased on the figures that I have imputed and then computed, it would appear he's paying the greater portion, and I would think that he ought to be entitled to the deduction." However, after being informed by the parties that the law entitles the custodial parent to take the deduction, the trial court "decline[d] the invitation" to reallocate it but said, "it may be one of those matters that needs to be revisited."

I.

Appellant contends that the trial court erred in making the equitable distribution award because it expressly considered the five-year period during which the parties cohabited prior to their marriage. We hold that a trial court may properly consider the parties' premarital contributions, both monetary and nonmonetary, insofar as those contributions affected the value of the marital property but that cohabitation alone--absent a showing of its impact on marital property values--is not an appropriate consideration.

Code § 20-107.3(A) gives the court the authority, "[u]pon decreeing the dissolution of a marriage," to value and apportion marital property and marital debts. The distribution contemplated by the General Assembly is predicated on the philosophy that marriage represents an economic partnership requiring that, upon dissolution, each partner should receive a fair proportion of the property accumulated during the marital partnership, including property which, although titled in one party's name, has appreciated in value due to the efforts of the nonowner spouse. Roane v. Roane, 12 Va.App. 989, 994, 407 S.E.2d 698, 701 (1991). Clearly, the statute does not apply if the couple never married. See Code § 20-107.3(A); Kleinfield v. Veruki, 7 Va.App. 183, 190, 372 S.E.2d 407, 411 (1988) (holding that court has no jurisdiction to fashion equitable distribution if marriage was void ab initio based on bigamy, even if parties acted in good faith). But the statute does not specifically address whether the court may consider premarital contributions, with or without cohabitation, if the couple do ultimately marry. ¹

We hold that Code § 20-107.3 does not prevent the trial court from considering premarital contributions to the acquisition or maintenance of property later deemed marital property in fashioning an equitable distribution. In fact, subsections (E)(2) and (6) clearly require ² consideration of "[t]he contributions ... of each party in the acquisition and care and maintenance of such marital property" and "[h]ow and when specific items of such marital property were acquired." Subsection (10) allows consideration of "[s]uch other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award." Therefore, to disregard the parties' contributions to the acquisition and maintenance of the property and how and when they acquired rights and equities in the property--whether pre- or post-marital--is to disregard the mandate of the statute. Nothing in Code § 20-107.3 limits consideration of the various subsection (E) factors to the time frame of the marriage.

In addition, neither party should be either rewarded or penalized simply because they cohabited prior to marriage; only those actions which affected the value of the property should be considered. See Aster v. Gross, 7 Va.App. 1, 5-6, 371 S.E.2d 833, 836 (1988) (holding that "fault" in bringing about dissolution of marriage is not relevant to equitable distribution unless it had an economic impact on the value of the marital estate); see also Marion v. Marion, 11 Va.App. 659, 664, 401 S.E.2d 432, 436 (1991) (recognizing that trial court may, in fashioning equitable distribution, consider squandering of marital funds during an adulterous relationship). Here, if the premarital efforts of appellant--the title-holding spouse--are to be considered, equity dictates that those of appellee also be considered so that the title-holding spouse does not receive a windfall. ³ In considering the nature of the parties' contributions during the period of cohabitation, the court may properly determine that certain types of contributions are not entitled to the same weight or consideration as would those same contributions had they been made during the marriage. Such matters clearly remain within the trial court's discretion. However, considering the period of premarital cohabitation without first determining that it had an effect on the value of marital assets would be inappropriate.

For the aforementioned reasons, we hold that the above-quoted language from subsections (E)(2), (6) and (10)--especially when viewed in light of the equitable goals of the statute--clearly provides the trial court with the authority to consider premarital contributions to the acquisition or maintenance of property that later becomes marital property. However, we also hold that providing either spouse a credit based solely on the period of cohabitation is inappropriate. Because we cannot determine from the record whether the trial judge conducted the appropriate inquiry, we remand this case for additional findings of fact consistent with this opinion.

II.

Appellant also contends that the trial court erred in calculating both child and spousal support.

A.

He argues that the trial...