L.C.S. v. S.A.S.

• Citation: 453 S.E.2d 580,19 Va.App. 709
• Decision Date: 21 February 1995
• Docket Number: 0970-93-4 and 2469-93-4,2468-93-4,Nos. 0945-93-4,s. 0945-93-4
• Court: Virginia Court of Appeals
• Parties: L.C.S. v. S.A.S. Record

Page 580

453 S.E.2d 580

19 Va.App. 709

L.C.S. v. S.A.S.

Record Nos. 0945-93-4, 2468-93-4, 0970-93-4 and 2469-93-4.

Court of Appeals of Virginia,

Alexandria.

Feb. 21, 1995.

[19 Va.App. 712] Joseph A. Condo (Beth A. Bittel, Joseph Condo & Associates, P.C., on briefs), for appellant/cross-appellee L.C.S.

Marcia M. Maddox (Law Office of Marcia M. Maddox, on briefs), for appellee/cross-appellant S.A.S.

Robert C. Dunn (Cohen, Dunn & Sinclair, on brief), guardian ad litem.

Present: MOON, C.J., FITZPATRICK, J., and DUFF, Senior Judge.

FITZPATRICK, Judge.

In this domestic case involving cross-appeals, L.C.S. (wife) and S.A.S. (husband) assign twelve grounds of error with respect to the trial court's rulings on child support, spousal support, equitable distribution, access to a child's medical and psychiatric records, appointment of a guardian ad litem, and attorney's fees. For the reasons set forth below, we reverse and remand the child and spousal support issues, and affirm the trial court's judgment on all other issues.

BACKGROUND

The parties married December 30, 1971, and separated in March 1991. There were two children of the marriage, an emancipated daughter and an adopted son, born May 29, 1984. After a period of separation, on March 27, 1992, wife filed for divorce based on separation for more than one year pursuant to Code § 20-91(9)(a). On April 2, 1992, husband filed a cross-bill on the same ground. After six hearings, the trial court entered the final decree of divorce on November 10, 1993, and resolved all questions of equitable distribution, support, and fees.

Husband, an attorney, was the primary income producer for the family. After a brief period of active Army duty, husband began an eight-year government career that included several appointed positions. For the periods 1978 to 1981, 1983 to 1989, and 1990 to 1992, husband worked for three different private law firms in Washington, D.C. At one of the firms, husband earned $500,000 each year, and at another a base salary of $75,000, plus extra compensation for any work beyond 1000 billable hours. In March 1989, husband quit the legal profession to invest in a business venture known as Spectrum but returned to the practice of law in February 1990. Over the course of the marriage, husband contributed more than $3,000,000 to the marital estate. Husband often worked unusually long hours and traveled for business purposes.

Husband became very interested in young boys in his neighborhood and took these boys on camping trips and to ball games. Husband became a guardian to a young boy from the family's church, established a trust fund for him, and developed a relationship with the boy that lasted five to six years. What little free time husband had was devoted to these activities and other community interests rather than his own wife and children. The trial court found that husband's conduct was a negative nonmonetary contribution to the family's well-being: "He said he didn't have much time, but he spent much of the time he had with [the boys] instead of with his children and with his wife."

Wife has a bachelor's degree and worked full-time while husband finished law school. One month before the birth of their daughter in January 1975, she left full-time employment. Wife was the primary caretaker of the parties' children and was responsible for the daily running of the household. She was the parent who coordinated the children's care and school activities and actively participated in their education. Wife worked part-time as a church bookkeeper, managed an apartment building owned by the parties, and worked in a kitchen renovation business. Overall, wife's monetary contribution was about $40,000. Currently, wife works part-time as an office administrator for a real estate firm, with a salary of $20,000.

In March 1991, husband moved out of the marital bedroom. It was the intent of both parties to separate. At that time, a young boy from the family's church was living in the home. In September 1991, the boy alleged that husband had sexually abused him.

At wife's request, husband moved out of the marital residence in January 1992.

In 1992, husband was convicted of three felony sexual offenses with minor boys. At the first trial, husband was convicted and subsequently pled guilty to the other two indictments. The parties' son reported to a policeman and social worker that husband also had engaged in sexual acts with him. Part of husband's felony plea agreement was to have no contact with his son until the child became eighteen years of age. Husband was sentenced to serve ten years in the penitentiary and later lost his license to practice law as result of these convictions.

The parties stipulated that the marital estate for equitable distribution purposes was $1,027,758.40. After considering the factors required in Code § 20-107.3(E), the trial judge found that husband's substantial monetary contributions were balanced by the significant nonmonetary contributions made by wife. Additionally, the trial court determined that husband's activities outside the home with the young boys had a significant negative effect on the marriage. He then divided the marital estate equally.

As further relief, the trial court granted wife $23,942.48 in attorney's fees but denied wife's requests for child support, spousal support, and compensation for marital assets spent on husband's criminal defense. The trial judge also struck an earlier provision from the final divorce decree that gave husband access to his son's academic and medical records. To protect the child's interests on the access to records issue, the court appointed a guardian ad litem for him.

SPOUSAL SUPPORT

The trial judge considered the potential income from husband's half of the marital estate and determined that the amount was insufficient to serve as the basis for a support award. The trial judge denied wife's request for spousal support, based upon husband's incarceration and his inability to earn current income. However, he did give wife a reservation of spousal support.

The record clearly established wife's need for support, but in considering husband's ability to pay, the trial judge focused only on husband's lack of income while incarcerated and did not fully consider husband's financial resources.

"[T]he decision to award spousal support rests within the sound discretion of the trial court. However, such discretion is not absolute and is subject to review for abuse." Via v. Via, 14 Va.App. 868, 870, 419 S.E.2d 431, 433 (1992).

In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties. He is guided by the nine factors that are set forth in Code § 20-107.1. When the chancellor has given due consideration to these factors, his determination will not be disturbed on appeal except for a clear abuse of discretion.

Collier v. Collier, 2 Va.App. 125, 129, 341 S.E.2d 827, 829 (1986).

Code § 20-107.1 governs spousal support and maintenance payments and expressly authorizes periodic or lump sum support. Once the requesting party establishes a need for and potential entitlement to spousal support, "then the court must weigh the relative needs and abilities of the parties in accordance with the statutory factors enumerated in Code § 20-107.1." Dukelow v. Dukelow, 2 Va.App. 21, 26, 341 S.E.2d 208, 210 (1986). Those factors include not only current income but also the financial resources of the parties. Code § 20-107.1(1). See Floyd v. Floyd, 17 Va.App. 222, 231, 436 S.E.2d 457, 462 (1993); Ray v. Ray, 4 Va.App. 509, 513, 358 S.E.2d 754, 756 (1987).

The primary basis for calculating a support obligation is a spouse's current income or any additional income within the spouse's earning capacity. To this should be added monies derived from income-producing assets or those assets that can be altered to produce income. Additionally, in an appropriate case, other financial resources that may currently fail to produce income may also be considered.

It is the legal and moral duty of a husband to support his wife and family consistent with his financial ability....

"In respect to alimony, the general rule is that the income of the husband, however The ability of the husband to pay is determined not necessarily by the amount of his actual earnings, but also by his ability to earn, and what, under all the circumstances [including his possessions ], will be a fair and just allotment.

derived or derivable, is the fund from which the allowance is made." ...

Taylor v. Taylor, 203 Va. 1, 3, 121 S.E.2d 753, 755 (1961) (emphasis added). See also Brauer v. Brauer, 215 Va. 62, 65, 205 S.E.2d 665, 667 (1974) (holding that financial resources include "any property from which [the husband] derives or could possibly derive some income").

Applying these rules to the facts in this case, we hold that the trial court erred in failing to consider the possibility of requiring husband to better use his $500,000 worth of financial resources to produce the income necessary to meet his support obligations. The trial judge considered only that husband's assets, if "invested conservatively," would produce $15,000 per year without examining any other alternatives. He then failed to factor even that limited amount into either a spousal or child support calculation.

We find under the facts of this case that the trial judge abused his discretion in failing to consider husband's financial resources, including the best use of his assets, in calculating his spousal support obligation.

CHILD SUPPORT

The trial judge refused to impute income to husband under Code § 20-108.1(B)(3) because he determined that husband's incarceration was not the equivalent of husband being "voluntarily unemployed."

The acts that have led to his inability to earn are voluntary acts on his part. But the fact that he is in prison and unable to earn is not voluntary on his part; he fought it tooth and nail.......