McKee v. McKee, Record No. 0739-07-1 (Va. App. 1/29/2008)
| Decision Date | 29 January 2008 |
| Docket Number | Record No. 0739-07-1 |
| Court | Court of Appeals of Virginia |
| Parties | BRIAN McKEE v. BARBARA McKEE |
Debra C. Albiston (Kaufman & Canoles, P.C., on briefs), for appellant.
Kenneth B. Murov for appellee.
Present: Judges Humphreys, Clements and Haley
The trial court awarded Barbara McKee (wife) spousal support of $14,000 per month and child support of $1,680 per month. Brian McKee (husband) maintains the trial court erred in setting spousal support by (1) failing to impute income to wife, (2) setting spousal support at a sum unjustified by wife's expenses and his capacity to pay, and (3) including in the spousal support award expenses covered by the child support award. Both parties seek an award of attorney fees associated with this appeal.
We reverse and remand on the first assignment of error, affirm in part and reverse in part on the second assignment of error, and find husband defaulted on the third. We deny attorney fees associated with this appeal.
The parties married on August 22, 1987, in Pittsburgh, Pennsylvania. The marriage produced three children: Sarah McKee, born in June 1990, Colin McKee, born in September 1992, and Bryce McKee, born in April 1994. The parties separated on April 3, 2004, and wife filed a complaint seeking divorce on July 13, 2004.
The parties entered into a property settlement agreement on November 11, 2005. Wife received the home free of any claim by husband and in exchange promised to refinance the $200,000 mortgage. Wife agreed to "indemnify and hold Husband harmless from any liability therefrom." Also relevant here is that husband had contributed money to an IRA with Smith Barney and a profit sharing plan.
The circuit court held a support hearing on November 28, 2005. In relevant part, the evidence revealed as follows.
Husband has worked as an ophthalmologist for seventeen years. Husband listed his adjusted gross income at $351,652 per year, his net monthly income at $20,034, and his monthly expenses at $13,540. Notably, his expenses included a $5,000 mortgage monthly payment on a million dollar home he purchased after the parties separated.
Wife had no income and listed her monthly expenses at $12,213 and the children's at $2,219. Wife acknowledged she had not actually spent money for many of the expenses she claimed. For example, she listed a furniture expense of $300 per month, but testified she had not purchased any furniture. A car payment of $627 per month was included, but wife testified she did not make any car payments. Wife included the cost of an accountant and a financial advisor, which combined cost $60 per month, but testified she had not hired either one. Wife listed $750 per month for savings, but admitted she did not save that much. Wife reconciled these claimed expenses by maintaining they were consistent with her prior marital lifestyle.
When wife refinanced the $200,000 debt on the marital home, in accordance with the property settlement agreement, she also borrowed an additional $50,000. She planned to use $35,484 of this to fund home repairs and personal savings. Wife's mortgage payment with the extra $50,000 was $1,500 per month.
Wife ceased working in 1991 when she became pregnant with the parties' second child. Wife possesses significant professional qualifications. She has a bachelor's degree in biology and psychology from the University of Pittsburgh, a master's degree in public administration from the University of Kentucky, and an associate's degree in respiratory therapy. Wife last worked as a respiratory therapist. Wife enjoys favorable physical health, participating in twice weekly exercise classes and tennis. Wife acknowledged her physical ability to work at the hearing before the circuit court by her admission that she has applied for positions as a substitute teacher. At the time of the hearing, over two years ago, all of the parties' children were in school, with the youngest, then eleven, in the sixth grade.
Husband offered Frances Charles DeMark, Jr. as an expert in the field of rehabilitation counseling. Wife's counsel stipulated as to his expertise. DeMark examined wife's vocational profile to understand the positions she could obtain in the job market and her earning capacity. He used a number of resources, including two publications by the United States Department of Labor, a vocational computer program, an information system produced by Virginia Tech regarding Virginia employment, information produced by the Virginia Employment Commission, local newspapers, and the internet. DeMark also conducted a personal interview with wife. DeMark recognized wife's last job was as a respiratory therapist in 1991. He opined that wife could obtain a position as a respiratory therapist. In response to questioning regarding the availability of these positions, he identified employers with openings in wife's region.1 DeMark testified respiratory therapists usually earn between $40,000-$52,000 per year. He also stated that even if wife's working hours were limited to when her children were at school, she could find part-time employment in that field. DeMark concluded that in his opinion wife's "earning capacity on a very conservative bases [sic] would be in the range of $30,000 to $40,000" for full time employment.
With respect to the imputation of income, the trial court stated as follows:
I don't think the expert has enough documentation to say that those things are readily and easily available and suitable, and I also don't think it's required. This is not a case of imputed income so much as it is some sort of challenge that you are voluntarily underemployed or unemployed, and that law imposes a duty upon you to be employed.
I don't think that's what the law is.
The circuit court also addressed the expenses wife sought as a portion of her claim for spousal support. Concerning the award of spousal support, the circuit court first addressed wife's mortgage payment on the marital home and whether wife could receive spousal support for this expense. The court stated:
I think it's unfair in negotiations to say I want the house; I want the house, and then come into court and say, Judge, I can't afford the house. The answer of the Court may be, well, sell it. But the other spouse does not have to pay for it as well as transfer the asset.
But that's not what's occurring in this case. I think the $1,500, as a matter of fact, even when increased, is probably not unreasonable to house four people. If we take that house out of this, and put you trying to find a four bedroom, or a three bedroom, other accommodations, I'm not so sure that you would still not be paying in that area if it's decent and consistent with the standard that you've been accustomed too.
I would say that on average you could not occupy a house of that square footage and qualify for $1,500. So I'm not so sure that that amount — I'm not sure that you're asking your husband to contribute so that you can pay for that asset. You are asking him to contribute to your home-care expenses which would be incurred by you regardless of any particular asset.
The court further noted that a portion of wife's expenses were "estimates" and that she needed to apply "a sharper pencil" to the family budget.
The court found wife's appropriate monthly expenses to be slightly under $12,000, and to compensate for income taxes on a spousal support award in that amount, granted a final award of $14,000. The court set child support of $1,680 monthly. The divorce decree, entered on May 11, 2006, incorporated the terms of this award. A separate final decree, also incorporating the terms of the award, was entered on March 19, 2007.2
Code § 20-107.1(C) provides that a court "may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof." The law intends to "provide a sum for such period of time as needed to maintain the spouse in the manner to which the spouse was accustomed during the marriage, balanced against the other spouse's ability to pay." Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990). Any award of spousal support "'must be based upon the circumstances in existence at the time of the award.'" Barker v. Barker, 27 Va. App. 519, 528, 500 S.E.2d 240, 244 (1998) (quoting Payne v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987)). Courts may not base spousal support on "an uncertain future circumstance." Jacobs v. Jacobs, 219 Va. 993, 995-96, 254 S.E.2d 56, 58 (1979).
Circuit courts have significant discretion in awarding and determining the amount of spousal support. Brooks v. Brooks, 27 Va. App. 314, 317, 498 S.E.2d 461, 463 (1998). We uphold the circuit court "absent a clear abuse of discretion." Lambert v. Lambert, 10 Va. App. 623, 628, 395 S.E.2d 207, 210 (1990). Where the circuit court has held an ore tenus hearing, the circuit court's decision must be "'plainly wrong or without evidence in the record to support it'" for this Court to reverse. Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)).
Husband argues that a party seeking support has a duty to earn income to offset the amount the payor spouse must provide. Husband maintains he provided uncontradicted expert evidence that jobs exist consistent with wife's skills and compatible with her preferred working hours. Wife contends she is entitled to lead the lifestyle she was accustomed to during the marriage and this involves staying home and working as a homemaker.
In determining the parties'...
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