Smith v. Smith
| Decision Date | 16 February 2021 |
| Docket Number | Record No. 0756-20-1 |
| Court | Virginia Court of Appeals |
| Parties | GLENN STUART SMITH v. ERICA LYNN SMITH |
UNPUBLISHED
Present: Chief Judge Decker, Judges Beales and Huff
Argued by videoconference
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Samuel R. Brown II, for appellant.
Graham K. Bryant (Byrne Legal Group, on brief), for appellee.
Glenn Stuart Smith ("husband") appeals from a judgment of the Circuit Court of the City of Chesapeake granting Erica Lynn Smith ("wife") a divorce and resolving matters related to the dissolution of the marriage. Appellant husband argues on appeal that the trial court "erred in barring Husband from filing his late Answer and Counterclaim" in response to wife's complaint for divorce and "erred in barring Husband from introducing evidence in support of his counterclaim." He further argues that the trial court abused its discretion in its equitable distribution of the marital estate and in ordering husband to pay $10,000 of wife's attorney's fees.
On appeal, we view the evidence in the light most favorable to wife, as we must because she was the prevailing party in the trial court, and we grant to wife "'all reasonable inferences fairly deducible' from the evidence." Mayer v. Corso-Mayer, 62 Va. App. 713, 717 (2014) (quoting Anderson v. Anderson, 29 Va. App. 673, 678 (1999)). The parties in this matter were married on December 5, 2006, in Virginia Beach. They have three children. One of the children is wife's biological daughter and was adopted by husband after the parties were married. She reached the age of majority prior to the trial court's final decree of divorce and was therefore not subject to the terms of the divorce decree. However, the other two children are currently still minors.
In October of 2016, husband sexually assaulted the oldest of the three children (hereinafter referred to as "daughter"),1 who was fifteen years old at the time. Daughter told her mother about the incident on October 31, 2016, leading wife to confront husband. Although husband initially denied that he committed the offense, he moved out of the marital home on the same day. Husband ultimately pled guilty to four charges of sexual battery related to his sexual abuse of daughter. The parties have lived separate and apart since husband moved out of the marital home on October 31, 2016.
Wife filed a complaint for divorce on December 14, 2016, seeking a divorce based on cruelty due to husband's sexual abuse of daughter. Husband subsequently filed a motion in the trial court seeking leave to file a late response to wife's complaint. The trial court granted husband's motion in a brief order that stated:
This order was signed by the trial judge and entered by the court on March 1, 2017 (the "continuance order").
Husband was then incarcerated for the sexual battery convictions from April 2017 to January 2018. During the time husband was incarcerated, wife served as the sole caretaker of the three children while working full-time as a realtor to provide the family's sole source of income. The divorce proceedings between husband and wife remained dormant during this time, with neither party filing any motions or further pleadings in the trial court. On February 13, 2019 - more than two years after wife filed her complaint and more than a full year after husband was released from jail - husband attempted to file an answer and counterclaim in response to wife's complaint. Wife objected to the answer and counterclaim and asked the trial court to bar husband's responsive pleadings. The trial court found in favor of wife, entering an order which stated:
The trial court entered this order on July 19, 2019. Husband filed a motion for reconsideration asking the court, in part, to reconsider its July 19, 2019 order barring husband's answer and counterclaim. The trial court denied husband's motion.
The case then proceeded to be heard on wife's complaint without husband's answer and counterclaim. Consequently, the trial court declined to allow husband to present evidence in support of his counterclaim. The trial court did, however, permit husband to defend himself against wife's allegation of cruelty as a ground for divorce and to present evidence on equitable distribution.
In the proceedings before the trial court, wife testified that the parties purchased their first home, located in Virginia Beach, in 2005, which they still owned as a rental property (the "rental home") at the time of the divorce. Husband's parents contributed $10,000 to the down payment on this home. Wife testified, "His parents gifted us the down payment," and she said that she was unaware that husband's parents expected to be reimbursed for this $10,000 contribution. Husband testified to the contrary and explained, "They originally loaned us $10,000 to purchase the house," and he said that "the agreement was when we sold the home, we owed them the [$]10,000 back." Husband's mother likewise testified, Husband and wife both testified that the parties later purchased a home in Chesapeake (the "marital home"), which became their primary residence in 2015, and began leasing the rental home in Virginia Beach to tenants on a yearly basis.
The trial court also heard testimony regarding a substantial tax deficiency due to unpaid income taxes on wife's earnings as a realtor in 2015, which gave rise to a $73,000 debt to the Internal Revenue Service (IRS). Wife testified that she had satisfied around $50,000 of the $73,000 tax debt since the parties' separation. Although the tax liability was a marital debt, wife agreed to assume the unpaid balance of the debt as her own separate debt.
On June 16, 2020, the trial court entered its final decree of divorce. The court granted wife's request for a divorce based on cruelty, finding that husband's sexual abuse of daughter clearly amounted to marital cruelty. In its letter opinion, the trial court explained that "[t]he trauma associated with child sexual abuse undoubtedly causes extreme mental anguish to a parent, and remaining in such a marriage would cause any spouse reasonable apprehension of severe injury to her mental health." On the issue of equitable distribution, the two main assets to be distributed were the rental home and the marital home. The court assigned a value of $245,000 to the rental home and found that it was encumbered with a mortgage of $195,000, leaving $50,000 in equity to be divided. The court awarded wife 90% of the equity in the rental home and awarded husband the remaining 10% of the equity, amounting to $5,000. The court further found that the marital home was worth $435,000 and encumbered by a $291,000 mortgage, leaving $144,000 in equity to be divided. The court awarded wife 95% of the equity in the marital home and awarded husband the remaining 5% of the equity, equal to $7,200.
The trial court explained its equitable distribution rulings in its letter opinion, which set forth the court's findings of fact on each of the statutory equitable distribution factors under Code § 20-107.3(E). The court found that wife was the primary caretaker as well as the primary source of income for the family and that wife's monetary and nonmonetary contributions to the family were "consistently positive." According to the trial court, husband provided "supplemental income" from his work in the construction business and "played a secondary role" in the upbringing of the children. However, the trial court also found that husband's "abuse of his daughter made an extraordinarily negative nonmonetary contribution to the family." In addition, the court found that husband's cruelty toward wife, stemming from his abuse of daughter, caused the dissolution of the marriage.
As for the parties' debts, the trial court found that the $73,000 tax liability (which wife had agreed to assume and toward which she had paid more than $50,000 since the parties' separation) and the $10,000 contribution from husband's parents comprised the only two marital debts in evidence. In so finding, the court accepted the testimony from husband and his mother that the $10,000 contribution to the down payment on the rental home was a loan rather than a gift, and therefore treated the $10,000 contribution as a marital debt. The court concluded that, "in light of Wife's assumption of the tax debt," husband would be solely responsible for the $10,000 debt to his parents.
Finally, the trial court ordered husband to pay $10,000 of wife's attorney's fees. The court found that wife had incurred more than $40,000 in attorney's fees in the divorce proceedings and that husband had "an extremely high degree of fault in bringing about the dissolution of the marriage." Therefore, the trial court determined that husband should be responsible for a portion of wife's attorney's fees. However, because of husband's "limited ability to pay," the court ordered husband to reimburse only $10,000 of the $40,000-plus in attorney's fees that wife had actually incurred. Husband timely filed an appeal with this Court.
In husband's first two assignments of error, he contends that the trial court "erred in barring Husband from filing his late Answer and...
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