Wharam v. Austin
| Decision Date | 05 December 2017 |
| Docket Number | Record No. 2044-16-2 |
| Court | Virginia Court of Appeals |
| Parties | STACEY A. WHARAM, F/K/A STACEY AUSTIN v. RICHARD E. AUSTIN |
UNPUBLISHED
Present: Judges Beales, Russell and Malveaux
Argued at Charlottesville, Virginia
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Tonya N. Gibbs (TNG Legal, PLC, on briefs), for appellant.
Lawrence D. Diehl (Ann Brakke Campfield; Barnes & Diehl, P.C., on brief), for appellee.
Stacey Wharam (formerly "Stacey Austin") ("wife") appeals the circuit court's November 18, 2016 order awarding Richard Austin ("husband") child support in the amount of $1,289 per month and finding wife in contempt for failure to comply with a previous order of the circuit court. The court ordered wife to pay husband $647,832.81 in restitution, in accordance with a monthly payment plan, to purge herself of the contempt order. Wife assigns ten assignments of error to the circuit court's order and requests appellate attorney's fees. Husband also asks for attorney's fees related to this appeal.
We review the evidence in the light most favorable to husband, as we must as he is the party prevailing below, and for the same reason, grant him all "reasonable inferences fairly deducible therefrom." Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).
So viewed, the evidence in the record establishes that, prior to their marriage on April 25, 1997, husband and wife executed a prenuptial agreement. During the marriage, husband was employed by REA Development, which, through its holding companies, operated two Arby's Roast Beef franchises. Wife was employed as the bookkeeper for husband's business. During the marriage, husband and wife had three children. The parties separated on June 22, 2013.
Thereafter, the parties engaged in contentious proceedings regarding property distribution, child custody, and child support. After the divorce proceedings began, and while wife was in sole possession of the former marital residence, wife removed numerous items of tangible personal property from the home. She sold many of these items at auction through Pete Elliot's Auction Services on April 5, 2014 and April 12, 2014. On June 26, 2014, after wife's actions were discovered, the trial court ordered wife to return those items within 45 days. For any items wife sold, the court ordered wife to provide a receipt indicating the item and the sale price.
On August 12, 2014, husband made a motion for a rule to show cause. In support of his motion, he stated that wife had not facilitated the return of this personal property or provided any receipts. On August 18, 2014, the trial court found wife in civil contempt for failure to comply with the June 26, 2014 order. The order again provided that wife could purge her contempt by returning the items not sold by September 1, 2014 and by providing receipts for the items sold.
On October 27 and 28, 2014, a trial was held on the divorce, distribution of property, child custody, and child support. Following the hearing, in a December 3, 2014 order, the court granted the parties a divorce.
On December 31, 2014, the court issued a second ruling on matters addressed at the October 2014 trial (the "December 2014 order"). This order granted wife primary physicalcustody of the children. However, as wife had relocated to Northern Virginia, the court required the children to remain in the care of their maternal grandmother during school days to permit them to continue attending school in Albemarle County.
With respect to distribution of property, the court awarded the martial home to husband as his separate property, given the terms of the prenuptial agreement. The court also made several findings regarding fraudulent actions taken by wife. Namely, the court found wife had: (1) forged a Deed of Gift purporting to transfer the marital home from husband to the parties as tenants by the entireties; (2) forged a power of attorney and used it to secure a mortgage on the marital home for $63,543.50 and to obtain a Deed of Trust on her separate property for $902,224.28 with husband's businesses as guarantors and the parties as co-borrowers; (3) forged powers of attorney to purchase and title a property in the parties' joint names without husband's authorization; and (4) fraudulently obtained a line of credit without husband's knowledge or approval, in the amount of $649,874.90 with husband's businesses' property as collateral and husband's businesses as guarantors. The court ordered that wife was responsible for the debts secured by these forgeries.1
The December 2014 order also addressed the tangible personal property that is a central issue in this appeal. The court ordered wife to return husband's gold bullion, silver and gold coins, guns and ammunition, and all personal property removed by wife and auctioned by Pete Elliot's Auction Services. The court ruled that each of these items, as well as all items in the marital home, were husband's separate property. With respect to the tangible property wife already sold or could not return, the court's order stated that "a determination of said property'svalue is hereby reserved and shall be addressed upon a future motion of either party." The court also awarded husband $6,000 in attorney's fees.
On June 16, 2016, the parties again appeared before the court to address husband's motion for child support2 and to address husband's renewed motion to show cause concerning wife's failure to comply with the December 2014 order.3 At the start of the hearing, counsel for wife informed the court that she was not retained to represented wife on husband's show cause motion - just child custody, visitation, and support. However, as the hearing proceeded, counsel for wife participated in the hearing on the show cause matters. Also, at the beginning of the hearing, the trial court and counsel discussed the possibility that the court's ruling on the show cause may be affected by wife's bankruptcy proceedings. After this discussion, the court stated that it may hear the evidence, but not enter a final order until the parties had an opportunity to submit briefs on the bankruptcy issue.
During the hearing, when asked about his employment, husband testified that he was forced to sell his Arby's franchises because, as a result of wife's fraudulent actions, he was unable to reinvest in them. He testified, Husband further testified that the bank He claimed that he continues to be in litigation with the bank on the remaining amount due.
Husband testified that he was not actively seeking employment. He testified that he received $15,000-$16,000 per year in interest income from his checking account where he kept approximately $500,000, which he obtained from the sale of his businesses. He also testified that he would continue receiving similar interest income on that account as long as his account balance did not drop below $500,000.
As part of husband's show cause petition to the circuit court, husband testified that wife violated the December 2014 order by failing to pay him the $22,832.81 for mortgage payments, failing to return the gold bullion and silver coins, and failing to return his firearms. Husband also testified that wife never returned the other pieces of personal property addressed by the December 2014 order. Over wife's objection, the court admitted husband's exhibit, a personal inventory (husband's "Personal Inventory List"), which listed his valuations for pieces of personal property that he claimed wife removed.4 In admitting the exhibit, the court noted that it had previously admitted the exhibit at the October 2014 trial. The court also admitted an exhibit that was identified as an identical list, except that a painting that wife claimed was a forgery was removed from the list.5 Husband testified that the values he attributed to each of the items werethe best estimates that he could give at the time he prepared the list. Husband also testified to having seen a few pieces of his personal property for sale in antique stores, and he provided the court with the listing price given by the antique stores for these items.
During wife's testimony, wife informed the court that she was employed and making $75,000 a year. She testified that she disagreed with values placed on the tangible personal property, claiming that they were "highly exaggerated"; however, she did not provide any contrary evidence of the property's value other than Pete Elliot's Auction List. On cross-examination, wife testified that she had remarried and that her husband was employed and grossed approximately $190,000 per year.
The trial court issued a ruling from the bench awarding husband child support and finding wife in contempt of the December 2014 order. With respect to the child support, the court declined to impute income for husband. It awarded him $1,289 per month of child support, the amount prescribed by the guidelines. The court ordered the child support to be retroactive to April 2016, and for the months of April, May, June, and July 2016, the court reduced the award to $1,129 per month. As a result of the child support award being made retroactive, the court ordered wife to pay $3,387 in arrearages. As for the personal property, the court ordered wife to pay husband $619,000 in restitution to purge herself of the contempt order. In setting this amount, the court stated, "So while the amount that Mr. Austin has submitted to the Court...
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