Wright v. Wright

• Decision Date: 19 February 2013
• Docket Number: 0958–12–2.,Record Nos. 0947–12–2
• Parties: David Carlton WRIGHT v. Laura McGahey Roberts WRIGHT. Laura McGahey Roberts Wright. v. David Carlton Wright.
• Court: Virginia Court of Appeals

61 Va.App. 432

737 S.E.2d 519

David Carlton WRIGHT

v.Laura McGahey Roberts WRIGHT.

Laura McGahey Roberts Wright.

v.David Carlton Wright.

Record Nos. 0947–12–2, 0958–12–2.

Court of Appeals of Virginia, Richmond.

Feb. 19, 2013.

Edward D. Barnes (Ann Brakke Campfield; Brandy M. Poss; Barnes & Diehl, P.C., Chesterfield, on briefs), for David Carlton Wright.

Ronald R. Tweel (Elizabeth P. Coughter; Michie Hamlett Lowry Rasmussen & Tweel, PLLC, Charlottesville, on briefs), for Laura McGahey Roberts Wright.

Present: HUMPHREYS, BEALES and McCULLOUGH, JJ.

BEALES, Judge.

In these domestic appeals, which have been consolidated by this Court, David Carlton Wright (husband) and Laura McGahey Roberts Wright (wife) appeal the final decree entered by the Circuit Court of the City of Richmond (trial court) on April 26, 2012.

In his appeal (Record No. 0947–12–2), husband argues that the trial court erred in awarding wife a reservation of spousal support rights, in deriving the marital share of the value of husband's law practice at Hunton & Williams LLP, where husband is an equity partner, and in awarding wife a portion of husband's supplemental retirement plan (SRP) that arises from his partnership agreement with Hunton & Williams.¹ In her appeal (Record No. 0958–12–2), wife argues that the trial court erred in declining to select the date of the parties' separation as an alternate valuation date for valuing two marital accounts for equitable distribution purposes, in finding that husband properly expended marital funds following the parties' separation while at the same time preserving his post-separation income, and in finding that wife was entitled only to a defined-duration spousal support award of four years following a marriage of twenty-two years. Moreover, both parties seek an award of appellate attorneys' fees.

For the following reasons, we affirm in part, reverse in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

I. Background²

The parties married in August 1986, had three daughters during the marriage, ³ and separated in July 2008, at which time they resided in the City of Richmond.⁴ Following the parties' divorce trial in December 2010, the trial court issued two letter opinions, dated February 3, 2012 and March 29, 2012. The trial court then entered the April 26, 2012 final decree, from which both parties now appeal.

Husband, an attorney, joined Hunton & Williams in 1991 and became an equity partner there in 1994. Husband is the head of that law firm's Capital Real Estate Finance Group and is compensated at the third-highest compensation level out of the sixteen compensation levels for equity partners. Robert Raymond, C.P.A., who provided expert testimony for wife at the parties' divorce trial, opined that the marital value of husband's law practice at Hunton & Williams was worth approximately $1,492,000. The trial court accepted this value for equitable distribution purposes, finding it was more credible than the value of $502,887 provided by husband's expert, Gregory Lawson, C.P.A.

Husband has three retirement accounts with Hunton & Williams—only one of which, the supplemental retirement plan (SRP), is pertinent to this appeal. The trial court initially found in its February 3, 2012 letter opinion that the SRP was not subject to equitable distribution because “it does not vest until the future, if at all.” Wife filed a written motion for reconsideration concerning this and other issues, and, following a hearing, the trial court found in the March 29, 2012 letter opinion that the SRP contained marital property. In the final decree, the trial court awarded “wife 25 percent [of the SRP] under the deferred distribution method approach when and if the account is payable upon vesting.” The final decree does not distinguish between the value of the marital share of the SRP and the SRP's total value.

Wife holds an undergraduate degree in economics from Duke University, magna cum laude, and a Master's degree in Business Administration (M.B.A.) from the University of Virginia, but she did not obtain regular employment outside the home after the parties' children were born. She was a homemaker, was the children's caretaker, and helped coordinate entertainment for husband's business interests. Husband's vocational expert, Peder Melberg, opined that wife, despite her long absence from the workforce, was employable in several fields and could foreseeably earn $85,000 annually if she were to become an established financial services representative. In addition to disputing this assessment, wife testified that she had no intention of seeking employment, explaining instead that she engages in volunteer work every day.

Wife requested $30,000 in monthly spousal support for an undefined duration. The trial court in its February 3, 2012 letter opinion awarded wife $10,000 in monthly spousal support for a defined, four-year period—noting that this award gave wife “a reasonable time to establish employment by acquiring and updating skills for entry into the job market.” The trial court did not revisit this ruling in the March 29, 2012 letter opinion, although it did grant wife a reservation of future spousal support rights—which was relief that wife had requested in her written motion for reconsideration and at the hearing that followed. Wife requested the presumptive length for such a reservation under Code § 20–107.1(D)—i.e., one-half the length of time between the date of the marriage and the date of the separation. However, neither the March 29, 2012 letter opinion nor the April 26, 2012 final decree indicates the length of the reservation awarded to wife.

At the divorce trial, wife contended that the trial court should use the date of separation—not the date of the evidentiary hearing in the trial court—as the date for valuing two accounts (the Ameritrade account and the Bank of America account) that were titled in husband's name but that wife claimed were marital property. Wife alleged that husband had unfairly diminished the value of these accounts following the parties' separation—thereby rendering the date of their separation a more equitable date for valuing the marital share of those accounts. Although the trial court found that the Ameritrade and Bank of America accounts were marital property, the trial court found no good cause for valuing these accounts as of the date of the parties' separation. The trial court recognized in its March 29, 2012 letter opinion that wife's argument dealt with marital “equity, not waste,” but the trial court found that husband's use of the Ameritrade and Bank of America funds was proper under the circumstances.

II. Analysis

A. Husband's Appeal (Record No. 0947–12–2)

1. Issues Relating to the Reservation of Spousal Support Rights

In his first two assignments of error, husband challenges the trial court's decision to reserve wife's right to receive spousal support in the future. Thus, to address these assignments of error on appeal, we must consider the spousal support statute, Code § 20–107.1, which states in pertinent part:

C. The [trial] court, in its discretion, 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.

D. In addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a party to receive support in the future.⁵ In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification.

(Footnote added).

a. Decision to Award Wife the Reservation

In his first assignment of error, husband argues that wife abandoned any claim to a reservation of spousal support rights under Code § 20–107.1(D) because she did not specifically request a reservation of spousal support rights in her divorce complaint, in any of her notices or other pleadings filed with the trial court prior to the divorce trial, or during the parties' divorce trial. Instead, wife first requested a reservation of spousal support rights in her motion to reconsider the trial court's February 3, 2012 letter opinion. Following a hearing on the motion to reconsider, the trial court then awarded wife this reservation in its subsequent March 29, 2012 letter opinion.

Husband recognizes that “[d]ecisions concerning [spousal] support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.” Calvert v. Calvert, 18 Va.App. 781, 784, 447 S.E.2d 875, 876 (1994). Husband argues that the trial court's decision to award wife a reservation of spousal support rights here was plainly wrong. Husband claims that the trial court should have ruled that wife's request simply came too late in the proceedings. However, husband's argument is foreclosed by this Court's opinion in Vissicchio v. Vissicchio, 27 Va.App. 240, 498 S.E.2d 425 (1998).

In Vissicchio, one of the parties (Mrs. Vissicchio) requested permanent spousal support in her pleadings and continued to request spousal support at trial. When Mrs. Vissicchio's counsel submitted the draft decreeto the trial court, the draft decree included a reservation of future spousal support rights for her. The trial court then deleted this specific provision from the final decree, without explaining why it had denied a reservation of spousal support rights for Mrs. Vissicchio. Id. at 254, 498 S.E.2d at 432. On appeal, this Court held that the trial court in Vissicchio committed reversible error. This Court explained that Mrs. Vissicchio's request for a reservation of spousal support rights was implicit in her...