Reid v. Reid

• Decision Date: 27 August 1991
• Docket Number: No. 1484-89-2,1484-89-2
• Citation: 12 Va.App. 1218,409 S.E.2d 155
• Parties: Robert A. REID v. Judith N. REID. Record
• Court: Virginia Court of Appeals

Page 155

409 S.E.2d 155

12 Va.App. 1218

Robert A. REID v. Judith N. REID.

Record No. 1484-89-2.

Court of Appeals of Virginia.

Aug. 27, 1991.

Rehearing En Banc Granted Oct. 17, 1991.

Ronald R. Tweel (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., Charlottesville, on briefs), for appellant.

John K. Taggart, III (Smith, Taggart, Gibson & Albro, Charlottesville, on brief), for appellee.

Present: KOONTZ, C.J., and BARROW and BENTON, JJ.

KOONTZ, Chief Judge.

The parties to this appeal first appeared before this Court in Reid v. Reid, 7 Va.App. 553, 375 S.E.2d 533 (1989). In that case, we held the chancellor erred in denying Dr. Reid a divorce on the ground of Mrs. Reid's desertion and in granting her spousal support. We further held the chancellor erred in the application of Code § 20-107.3 in fashioning a monetary award in favor of Mrs. Reid and remanded for further consideration of that issue. Finally, we vacated the award of attorney fees and costs and remanded for further consideration of such award in light of the altered circumstances and equities resulting from our decision on the other issues.

Upon remand, Mrs. Reid filed a motion requesting the chancellor to order the distribution of the proceeds from the sale of certain marital property pursuant to a prior decree or to specify the amounts to be paid to each party from these proceeds. Dr. Reid objected to this motion on the ground that any distribution of the marital property would be premature and inappropriate until the chancellor resolved the equitable distribution issue remanded by this Court and ruled on a motion for recoupment of spousal support he intended to file. Thereafter, Dr. Reid filed a "Motion for Recoupment" in which he requested that the chancellor grant him a judgment against Mrs. Reid in the amount of $25,200 for equitable recoupment of improperly paid spousal support made to Mrs. Reid pursuant to the chancellor's original decree that was overturned by this Court on appeal.

Hearings were held on August 4 and 17, 1989 concerning these motions and the issues on remand. A final decree was entered on August 24, 1989. Mrs. Reid was granted a monetary award of $35,000 with interest at eight percent per annum from August 4, 1989 until paid. Dr. Reid was ordered to pay $18,138.44 for Mrs. Reid's attorney's fees and $1,850 in costs. Finally, the prior award of spousal support was vacated and Dr. Reid's request for recoupment of the previously paid spousal support was dismissed. Dr. Reid's appeal followed.

On appeal, Dr. Reid raises the following issues: (1) whether the chancellor abused his discretion in granting the $35,000 monetary award to Mrs. Reid; (2) whether the chancellor abused his discretion in ordering Dr. Reid to pay $18,138.44 of Mrs. Reid's attorney's fees; and (3) whether the chancellor erred in denying Dr. Reid's motion for "equitable" recoupment of spousal support payments made to Mrs. Reid before the original spousal support award was vacated on appeal. On the record before us we will not disturb the chancellor's decision to grant Mrs. Reid the monetary award and attorney's fees. We also hold that it was not error to deny the motion for recoupment.

During the pendency of the present appeal, Mrs. Reid filed a motion to dismiss, asserting that the transcripts of the proceedings held before the chancellor on August 4 and 17, 1989, were not timely filed in accordance with Rule 5A:8. Her motion contained a request that, to the extent these transcripts are necessary to determine the merits of the issues raised in Dr. Reid's appeal, the appeal be dismissed. The record reflects that these transcripts were not filed within sixty days of the August 24, 1989 final decree as required by Rule 5A:8 and no extension for this filing requirement has been granted. Accordingly, we may not consider these transcripts on appeal. This, however, does not require a dismissal of the appeal if the record is sufficient otherwise to determine the merits of the issues raised by Dr. Reid on appeal without these transcripts. See Goodpasture v. Goodpasture, 7 Va.App. 55, 58, 371 S.E.2d 845, 846-47 (1988); Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 402 (1986).

I. The Monetary Award Issue

The final decree reflects that, by agreement, neither party on remand presented further evidence concerning the issue of the equitable distribution award and the chancellor "reviewed the prior proceedings, including the transcripts, the Commissioner's Report, and the opinion of the Court of Appeals, and [had] carefully considered each and every mandatory factor set forth in Code § 20-107.3(E)" before granting Mrs. Reid a monetary award of $35,000. ¹ On brief, Dr. Reid asserts that the chancellor adopted the factual conclusions set forth in the commissioner's report and, with the exception of those overturned by this Court in the prior appeal, relied upon those facts in fashioning the monetary award to Mrs. Reid. This assertion is based upon a reference to the transcript of the August 4, 1989 hearing, which is not a part of the record. It is clear that upon remand the evidence from the prior proceedings was adopted for the present proceedings. We find no fault with this procedure. For purposes of our review what is critical, however, is whether the chancellor gave substantive consideration to this evidence as it relates to the provisions of Code § 20-107.3. See generally Keyser v. Keyser, 7 Va.App. 405, 374 S.E.2d 698 (1988). In short, while the essential facts remained unchanged, the chancellor upon remand was required to re-apply the provisions of Code § 20-107.3 in light of our prior finding that Mrs. Reid was guilty of desertion. See Code § 20-107.3(E)(5).

Throughout his brief, Dr. Reid refers to the transcripts to support his assertions that the chancellor abused his discretion in fashioning the monetary award. At one place in his brief, he asserts that the chancellor quantified and elaborated on the statutory factors. We have no doubt this was done. However, because these transcripts were not made a part of the record on appeal, we are unable to determine the merits of Dr. Reid's assertions, and we decline to speculate. "The judgment of the trial court is presumed correct and he who asserts the contrary is required to overcome the presumption by record proof...." Kaufman v. Kaufman, 7 Va.App. 488, 499, 375 S.E.2d 374, 380 (1988) (emphasis added). Accordingly, we will not disturb the chancellor's monetary award to Mrs. Reid.

II. The Attorney Fee Issue

Dr. Reid next asserts that the chancellor upon remand abused his discretion in awarding attorney fees to Mrs. Reid. Essentially, he argues that upon remand the circumstances and equities favor him and that there is no justification for this award. The final decree reflects that the chancellor "reviewed all of the equities in this case and ... reviewed updated statements for attorney's fees and costs." On brief, Dr. Reid recites various attorney fees he has paid and will have to pay in these proceedings. These fees and costs and those referenced in the final decree are not matters within the record before us. Moreover, we do not find in the record facts which establish an abuse of discretion by the chancellor in making this award. "An award of attorney fees is a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion." Graves v. Graves, 4 Va.App. 326, 333, 357 S.E.2d 554, 558 (1987). Accordingly, we will not disturb the chancellor's award of attorney fees.

III. The Recoupment Issue

We turn now to Dr. Reid's assertion that the chancellor erred in denying his motion for "equitable" recoupment of previously paid spousal support. Initially, we note that while the chancellor's reasons for denying this motion appear to be contained within the transcripts which are not a part of the record before us, we are able to address this issue without those transcripts. We do not need to refer to these transcripts to determine the purely legal issue of whether spousal support payments made pursuant to a divorce decree which is subsequently reversed on appeal are recoverable by the payor spouse.

In the procedural context of this case, Dr. Reid's motion for equitable recoupment is a novel one for the courts of this Commonwealth. He concedes there are no Virginia appellate decisions "directly on point," and we have found none. The essence of his position is that he should be permitted to recover from Mrs. Reid a sum equal to the amount of spousal support he paid to her pursuant to a divorce decree which was subsequently overturned by this Court on appeal. Based on the notion of equitable recoupment, he asserts that he is entitled to recover that sum either by a judgment against Mrs. Reid or to have the amount of spousal support paid considered by the chancellor as a factor under Code § 20-107.3(E) in determining the amount of the monetary award. ² We will address these assertions in turn.

A brief recital of the parties' contrasting positions brings the issue to be resolved into focus. Dr. Reid's position consists essentially of the following assertions. First, he points out that in the prior appeal concerning these parties' divorce suit we directed the chancellor to vacate the prior divorce decree insofar as it awarded spousal support to Mrs. Reid. ³ He stresses that we vacated the spousal support rather than reversed it. Consequently, he asserts that if he is not allowed to recoup, or be reimbursed, the amount of the spousal support he has paid, this Court's decision vacating the support award "has not, in fact, been followed." This is so, his argument continues, because without recoupment or reimbursement this Court's order vacating the spousal support award would only be applied "in a prospective sense," rather than having the effect of voiding the award at its inception. Thus, the distinction Dr. Reid draws between a spousal support award...