Kaufman v. Kaufman, 1510-86-1
| Decision Date | 20 December 1988 |
| Docket Number | No. 1510-86-1,1510-86-1 |
| Citation | 375 S.E.2d 374,7 Va.App. 488 |
| Court | Virginia Court of Appeals |
| Parties | Steven Howard KAUFMAN v. Deborah Scott Barney KAUFMAN. Record |
Jerrold G. Weinberg (Debra C. Albiston, Weinberg & Stein, Norfolk, on brief), for appellant.
Henry M. Schwan, Norfolk, for appellee.
Present: BAKER, BARROW and HODGES, JJ.
Steven Howard Kaufman (husband) appeals from a decree of the Circuit Court of the City of Norfolk (trial court) granting Deborah Scott Barney Kaufman (wife) a divorce a vinculo matrimonii, spousal support, child support, a monetary award pursuant to Code § 20-107.3, a share of husband's retirement plans, attorney's fees and costs. Husband alleges that the trial court erred in: (1) fixing the amounts of monthly spousal and child support prior to determining the monetary award; (2) failing to consider wife's earning capacity; (3) awarding $34,000 lump sum spousal support; (4) awarding an excessive portion of the value of the non-pension marital property; (5) valuing the pension as of the date of the commissioner's hearing; and (6) awarding an excessive amount of attorney's fees and costs to wife.
Wife cross-appealed asserting that the trial court erred in holding that the value of husband's interest in Pulmonary Consultants of Tidewater, Inc. was controlled by a buy/sell agreement, thereby causing the monetary award to be inadequate.
The parties married May 20, 1973 and have one child born in 1981. On November 29, 1982, husband left the parties' marital home in Norfolk. The parties did not cohabit after that date. Wife filed a bill of complaint on November 25, 1983 seeking a divorce and asking that she be awarded custody of their child, spousal and child support, equitable distribution of the marital property, attorney's fees and costs. A decree was entered February 8, 1984 referring the matter to a commissioner in chancery.
At the time of the marriage, husband, who had recently graduated from medical school, was employed as a resident at Chapel Hill Memorial Hospital in North Carolina. He worked there for five years during which time wife worked as an assistant manager of a clothing store. At the end of the five years the parties moved to Ohio where husband joined a practice specializing in pulmonary medicine. While there, wife was not employed. In 1980, the parties relocated to Norfolk where husband became employed by a professional corporation. Husband's salary is approximately $120,000 per year. After moving to Norfolk wife did not work outside the home.
The final decree of divorce, entered November 28, 1986, nunc pro tunc September 8, 1986, awarded wife a divorce on the ground of husband's desertion, custody of the parties' child, $900 monthly child support, $3,000 monthly spousal support, $34,000 lump sum spousal support, an equitable distribution monetary award of $30,264, $14,780 in pension benefits when received, $9,471.94 in attorney's fees and $1,250 in costs.
The parties' home and its furnishings were jointly owned. The equity in the home and furnishings was valued at $30,000 and $5,315, respectively. The trial court found that some of the jewelry solely owned by wife was marital property valued at $4,010. The trial court also found husband to be the sole owner of other property that it classified as non-pension marital property valued at $29,254.
In addition, using the date of the hearing before the commissioner as the valuation date, the trial court determined that husband's Individual Retirement Account, Profit Sharing Plan and Money Purchase Plan were worth $2,000, $20,060, and $7,500, respectively. Husband contends that the pension fund valuations should have been made as of the date of filing the bill of complaint.
After the parties separated, husband by purchase contract acquired a one-third interest in Pulmonary Consultants of Tidewater, Inc. (Pulmonary). The commissioner reported that in his opinion the value of husband's interest in Pulmonary was $187,500. The trial court examined the purchase contract and held that its terms were controlling in determining husband's interest in Pulmonary. It further held that interest had a negative value of $8,051. In making its monetary award the trial court deducted this negative value from the total it determined to be the basis for the monetary award.
In the final decree the trial court ordered husband to pay to wife a monetary equitable distribution award of $30,264. In addition, the court ruled that wife was entitled to one-half of the values of husband's Individual Retirement Account, Profit Sharing Plan and Money Purchase Plan, to be paid at the rate of fifty percent of the benefits when received by husband or to be paid in a lump sum discounted to present value.
Prior to the final decree, the trial court forwarded a letter opinion dated June 17, 1986 to both counsel that, in part, advised the parties of the amount of the lump sum and monthly spousal support and child support it would require husband to pay to wife. The opinion also listed the property, but not its value, owned by the parties to be considered in making an equitable distribution award and advised of its intent to award amounts equal to one-half of their value. It instructed counsel to calculate the values of the property it classified as marital property and present them to the court for entry in the final decree. The final decree reflected the values assigned and included wife's solely owned jewelry, the parties' equity in the home and furnishings, and the other marital property.
As noted on June 17, 1986, the trial judge advised counsel that he had reviewed the commissioner's recommendations as to spousal and child support along with wife's list of projected expenses and that he had found them to be reasonable "for a person in her socio-economic stage." Exceptions to the support recommendations made by the commissioner were overruled and the trial court held that in addition to monthly child support of $900, husband would be required to pay wife $3,000 monthly spousal support plus a lump sum spousal support award of $34,000. In the June 17 letter, the trial court further determined that wife was entitled to receive one-half of the then undetermined values of various marital property. At the time the trial court made the monthly and lump sum spousal support award and child support award it was not known and could not be anticipated what income, if any, would be available to wife from the monetary award she was to receive.
We do not exclude the possibility that a trial court may have reason to enter a spousal support award prior to the entry of its equitable distribution award; however, no such reason is apparent in this record. Here, it was reversible error for the trial court to make its final award requiring husband to pay a lump sum or periodic spousal support award to wife for herself and their child, without considering the income which may result from the monetary award, if any, to which wife would be entitled. See Code §§ 20-107.1(8); 20-107.2(2)(g); 20-107.3(F). On remand we direct that the support issues be reconsidered in light of the need for such award and ability to pay after the monetary awards have been determined. See Collier v. Collier, 2 Va.App. 125, 129, 341 S.E.2d 827, 829 (1986).
The judgment of the trial court concerning the extent to which the wife's earning capacity should affect spousal and child support awards will not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it. Code § 8.01-680. This was a marriage of nine years brought to an end through no fault of wife when the child of the parties was only a few months old. In addition, the record discloses she suffered adverse mental and physical problems which the court may have considered to have been caused by the marital difficulties. We have examined the evidence contained in this record and find that it is sufficient to support the judgment of wife's present inability to engage in compensable work, especially in view of the need for her to care for the infant child.
In its June 17, 1986 letter to counsel the trial court advised that "the complainant (wife) is entitled to have the Court consider one-half of the value of various properties owned by the parties, either separately or jointly." He directed counsel to agree and advise the court as to the respective values of the several properties so that the monetary award could be made. In relevant part, the final decree provided:
And the Court having maturely considered all of the evidence and all factors
and provisions as required by Section 20"107.3, Virginia Code, and the Court
finding that the marital property and value (as of August 9, 1984) thereof is
as follows:
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