Srinivasan v. Srinivasan

• Decision Date: 28 August 1990
• Docket Number: No. 0342-89-4,0342-89-4
• Citation: 10 Va.App. 728,396 S.E.2d 675
• Parties: Doris M. SRINIVASAN v. Chitoor V. SRINIVASAN. Record
• Court: Virginia Court of Appeals

Page 675

396 S.E.2d 675

10 Va.App. 728

Doris M. SRINIVASAN v. Chitoor V. SRINIVASAN.

Record No. 0342-89-4.

Court of Appeals of Virginia.

Aug. 28, 1990.

Alan B. Plevy (Sandground, Smolen, Barondess, West & Plevy, Vienna, on brief), for appellant.

J. Patrick McConnell (Odin, Feldman & Pittleman, Herndon, on brief), for appellee.

Present: KEENAN, MOON and WILLIS, JJ.

MOON, Judge.

Doris M. Srinivasan and Chitoor V. Srinivasan both seek reversal of a final divorce decree denying each a monetary equitable distribution award. Doris M. Srinivasan also appeals the failure of the trial court to award her spousal support, attorney's fees and costs. We hold that the trial court did not abuse its discretion in not making a monetary award in favor of Mrs. Srinivasan, and did not err in refusing to award Mrs. Srinivasan's attorney's fees and costs. However, we hold that the trial judge erred in imputing $33,000 income to her as of the date of the divorce and refusing to make a spousal support award. Because the case is to be remanded for other reasons, the trial court may determine if the final order as entered was in accordance with the court's intention insofar as the equitable distribution of property to Mr. Srinivasan is concerned.

Mr. and Mrs. Srinivasan, both fifty-five years old, separated in 1986 after twenty-five years of marriage. At the time of the separation, both their two children had reached their majority--ages twenty-three and nineteen. Mrs. Srinivasan was in good physical and mental condition, but Mr. Srinivasan had recently suffered two minor strokes.

The couple met and married while both were graduate students. Mr. Srinivasan received his Ph.D. two years after the marriage. Beginning in 1963 the family lived in New Jersey, where Mr. Srinivasan was a tenured professor at Rutgers University. Mrs. Srinivasan received her Ph.D. after six years of marriage and in 1974 obtained a full-time teaching position in Fairfax, Virginia, at George Mason University. When she got her teaching position the family moved from New Jersey to Fairfax. Mr. Srinivasan commuted weekly to his full-time job at Rutgers, a distance of 220 miles each way. To save money, he lived in his office from 1978 until 1981, when his employer would not allow him to continue living there. Then he rented a room. At the time of the hearing, Mr. Srinivasan also had in the Washington area a part-time position that he held for seven years in addition to his full-time employment.

Mrs. Srinivasan did not obtain tenure at George Mason University and lost her full-time teaching position. Afterwards, between 1981 and 1986, the family discussed moving their primary residence back to New Jersey. Both parties had part-time jobs in the District of Columbia area, and Mrs. Srinivasan refused to move and commute from New Jersey. In 1983, Mrs. Srinivasan, without telling her husband, began segregating funds by placing money in a bank account in her name and the name of a third party.

Mrs. Srinivasan considers herself to be a student and a teacher. During the marriage, from June through August, 1987, she pursued a fellowship in Pakistan. On another occasion, she studied in Europe for a summer on a fellowship, which still cost the family eight or nine thousand dollars. On yet another occasion she received a grant to visit museums throughout the United States, and that project cost the family an additional three thousand dollars. She also spent a year in India on a fellowship, accompanied by the husband and children. The husband accompanied his wife and cared for the children during the wife's European, United States museum, and Indian experiences.

Although the divorce was awarded to her on the ground of her husband's adultery in 1987, the trial court found that Mrs. Srinivasan bore the major responsibility for the breakdown of the marriage. Further, the trial court found that Mr. Srinivasan made "enormous sacrifices" for his wife that diminished his own career opportunities.

To effect an equitable distribution of their marital property, the trial judge ordered the parties to transfer title to marital property in their joint names to one another's sole name. The husband received a Princeton, New Jersey home having an equity of $220,000, which when sold is subject to a tax liability of $91,783. He also received an IRA account of $2200, his pension valued at $202,940, a $10,496 interest in a Somerset, New Jersey, house, and separate furnishings of $9,500. His pension at the time of separation had a value of $159,143. Separate property had been paid into the pension between the time of separation and the time of hearing.

The wife received a home in Fairfax having an equity of $167,800, household furnishings of $34,920, an IRA account of $6,500, and a savings and loan account of $6,000. She had a Merrill Lynch money market account in the sum of $216,186. The source of approximately $190,000 in the Merrill Lynch account was a gift from the wife's mother approximately one year prior to the separation. Approximately $27,000 of marital funds had been placed into the same account by the wife and thus the total account was transmuted into marital property under the holding of Smoot v. Smoot, 233 Va. 435, 357 S.E.2d 728 (1987). The wife also had separate property--stocks and funds--having a value of approximately $13,000. Both husband and wife received automobiles of approximately equal value.

The trial judge opined in his letter preceding the decree that Mr. Srinivasan was receiving $33,000 more of the marital property than the wife. The decree, however, fails to take into account the tax liability on the New Jersey property, which means that Mr. Srinivasan received about $91,783 less than the judge stated in his written opinion that he intended Mr. Srinivasan receive.

Mrs. Srinivasan maintains that the court, rather than making an equitable distribution of the property, essentially divided the marital property between the parties by leaving each with an equal sum. By her calculations, the husband received $435,636 in marital property and she received $437,406. One of her major complaints is that the court failed to give due consideration to the source of funds in her Merrill Lynch money market account. She argues that, had the court given due consideration, she would have received an award from the husband of over $100,000, in recognition of the fact that the money in that account came principally from her mother, and although technically transmuted into marital property, the husband should not have benefited therefrom.

It is true that the source of funds is a factor that the court should consider in making an equitable distribution award. Code § 20-107.3(E)(6). The source of funds is a particularly significant factor where funds have been transmuted because of the application of the Smoot rule. See Lambert v. Lambert, 6 Va.App. 94, 103-04, 367 S.E.2d 184, 189-90 (1988).

Mrs. Srinivasan's second complaint is that the court gave her no part of her husband's pension, which he would receive in about seven years. The pension is marital property and as such must be considered in making an award. Sawyer v. Sawyer, 1 Va.App. 75, 79, 335 S.E.2d 277, 280 (1985).

Fashioning an equitable distribution award lies within the sound discretion of the trial judge and that award will not be set aside unless it is plainly wrong or without evidence to support it. The trial judge is not required to make an equitable distribution award unless equity requires it. See Rexrode v. Rexrode, 1 Va.App. 385, 339 S.E.2d 544 (1986).

Because of the unique circumstances of this case, we find no abuse of discretion in shaping this division of the marital property. The husband worked under a hardship throughout the marriage,...