Michael R. Pliuskaitis v. Teresa M. Pliuskaitis ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Haley
UNPUBLISHED
MICHAEL R. PLIUSKAITIS
MEMORANDUM OPINION*
v. Record No. 0423-13-4 PER CURIAM
OCTOBER 8, 2013
TERESA M. PLIUSKAITIS
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Arthur B. Vieregg, Judge Pro Tempore
(Edward V. O’Connor, Jr., on brief), for appellant.
(David L. Duff; The Duff Law Firm, on brief), for appellee.
Michael R. Pliuskaitis (husband) appeals a final decree of divorce. Husband argues that the
trial court erred (1) by determining that husband “converted joint funds totaling $48,149.29 from the
home equity line of credit and $3,000 from the joint savings account to personal use and not for a
proper purpose”; (2) by including “the cost of the children’s health care when there was no evidence
of any such cost presented and there was no evidence that it was reasonably available to either
party”; (3) by imputing income to husband for the purpose of calculating child support; (4) by
denying husband’s request for an award based on Teresa M. Pliuskaitis’ (wife) use of marital funds
to pay her children’s college expenses; and (5) in its valuation of SNOWbird Aquatics, Inc.
(“SNOW”). Upon reviewing the record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
In 1998, husband and wife decided to form a swim club in Loudoun County. On August
6, 1998, wife, with financial assistance from her father, incorporated SNOW. Wife was the sole
shareholder and director, and husband was the president. Wife managed SNOW’s business and
financial matters, while husband was responsible for swimming lessons, coaching, swim meet
scheduling, and leasing swim lanes.
Husband and wife married on September 11, 1999. Two children were born of the
marriage.1
During the marriage, SNOW grew in the number of swimmers and coaches. It operated
swim programs at two sites. Beginning in 2007, wife failed to pay SNOW’s federal and state
employee withholding taxes. Wife did not inform husband of the tax liability until October 31,
2010.
In December 2010, husband learned that unbeknownst to him, wife paid $56,194.80
toward her children’s college expenses. Although wife’s former husband was responsible for
these expenses, wife paid them from marital funds.
After learning of the tax liability and wife’s withdrawal of marital funds for the college
expenses, husband withdrew $48,149.29 from the parties’ home equity line of credit and $6,000
from the joint savings account and deposited the funds into his separate checking account.
In August 2011, husband went to assist his mother, who lived in Canada and was
suffering from Alzheimer’s. He did not return until November 5 or 6, 2011. On November 7,
2011, SNOW placed husband on a leave of absence. On December 9, 2011, SNOW terminated
husband.
1
Wife also had children from a previous marriage.
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In early November 2011, wife filed a complaint for divorce, to which husband filed an
answer and counterclaim. Wife later filed an amended complaint, to which husband responded.
On December 4 and 5, 2012, the parties presented their evidence and argument to the trial
court. On January 14, 2013, the trial court issued a letter opinion. It granted wife a divorce
based on the parties living separate and apart for more than one year. Furthermore, the trial court
made an equitable distribution award, denied spousal support to husband, calculated child
support, and denied each party’s request for attorney’s fees. The trial court entered a final order
on February 2, 2013. On February 6, 2013, husband filed a motion for reconsideration, which
was denied by the trial court on February 20, 2013. On February 22, 2013, husband filed a
second motion for reconsideration. On February 27, 2013, the trial court denied the second
motion for reconsideration because husband had no authority to file a second motion for
reconsideration. The trial court found that the second motion for reconsideration was “especially
inappropriate when filed without leave of court after a final order has been entered denying the
first motion for reconsideration.” This appeal followed.
ANALYSIS
Assignment of error 1
Husband argues that the trial court erred in determining that he “converted joint funds
totaling $48,149.29 from the home equity line of credit and $3,000 from the joint savings
account to personal use and not for a proper purpose.”
On appeal, “decisions concerning equitable distribution rest within the sound discretion
of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the
evidence.” McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing
Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).
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The trial court concluded that the parties agreed to divorce in September 2010, and as a
result, husband retained an attorney. Subsequently, husband learned that wife had not paid the
payroll withholding taxes for SNOW and she paid $56,194.80 for her son’s college expenses on
behalf of her ex-husband. On December 7, 2010, husband withdrew $48,149.29 from the home
equity line of credit and $6,000 from the joint savings account. He deposited the funds into his
Middleburg Bank account.
Wife filed a motion for an alternative valuation date. The trial court held that husband
had the burden of proving that the use of the marital funds was for a proper purpose, and
concluded that husband did not present any “persuasive” evidence at trial. Therefore, the trial
court granted wife’s motion for an alternative distribution date. The trial court awarded wife
$24,075, plus interest, for her share of the funds from the home equity line of credit, and $3,000,
plus interest, for her share of the funds from the savings account.
On appeal, husband contends he offered evidence to prove that he used the funds for a
proper purpose. At trial, wife submitted an exhibit, which summarized the deposits and
withdrawals from husband’s Middleburg Bank account. Husband referred to this exhibit to
explain his use of the funds. He testified that he used some of the money for the parties’
contributions to a business entity, Loudoun Swim & Triathlon (LST), owned by the parties and
another individual. He also testified that he used some of the funds for home improvement
projects and closing costs for a house that the parties jointly owned. He further explained he
used some of the funds for SNOW operations and for coaching expenses or costs. While
husband testified about how the funds were used, he presented no documentation for these
expenditures.
“Once the aggrieved spouse shows that marital funds were either withdrawn or used after
the breakdown, the burden rests with the party charged with dissipation to prove that the money
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was spent for a proper purpose.” Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 257,
261 (1990) (citations omitted). “If the party is unable to offer sufficient proof, the court must
value the property at a date other than the date of the evidentiary hearing so as to achieve an
equitable result.” Id. at 587, 397 S.E.2d at 261.
The trial court held that husband did not use the funds for a proper purpose. The trial
court dismissed husband’s argument that some of the funds were used for LST. The trial court
held that husband’s “unauthorized investment of marital funds in the LST venture does not
constitute a proper purpose any more than his unauthorized use of such marital funds to gamble
at a casino to increase the family bank account would constitute a proper purpose.” By finding
those funds were not used for a proper purpose, the trial court implicitly found husband’s
explanation not credible.
Based on the record, the trial court did not err in holding that husband failed to show that
he used the monies from the home equity line of credit and joint savings account for a proper
purpose.
Assignment of error 2
Husband argues that the trial court improperly included the cost of the children’s health
care into the child support calculations when there was no evidence of any such cost and there
was no evidence that health insurance was reasonably available to either party.
In its letter opinion dated January 14, 2013, the trial court determined the presumptive
child support guidelines. It also stated the following:
In addition, the income and expense statements introduced
into evidence do not reflect that either party has obtained health
care policies covering the children. In accordance with Va. Code
§ 20-108.1.C [sic], [wife] is ordered to provide health care
coverage for the parties’ children within 21 days. The amount of
such insurance premiums shall be deemed a change of
circumstances for which [husband’s] child support obligation may
be increased in order that he pay a proportionate share of such
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health care consistent with the child support guidelines of Va.
Code § 20-108.2.
The final decree indicates that wife obtained health insurance for the children, and
husband’s child support obligation included “an additional $209.89 representing his
proportionate share (42%) of [wife’s] monthly cost for providing health insurance coverage for
the parties’ children ($499.75).”
On appeal, husband argues that the trial court should not have included the cost of the
children’s health insurance into the child support calculations without first receiving evidence of
that cost. However, when the trial court issued its letter opinion, it did not include the cost of the
children’s health insurance into the child support calculation. It calculated the amount of child
support, and then ordered wife to provide health insurance for the children.
The trial court did not exceed its authority by ordering wife to provide health insurance
coverage for the children, as such authority is expressly provided by Code § 20-108.1(C), which
states:
In any proceeding under this title, Title 16.1, or Title 63.2 on the
issue of determining child support, the court shall have the
authority to order either party or both parties to provide health care
coverage or cash medical support, as defined in § 63.2-1900, or
both, for dependent children if reasonable under all the
circumstances and health care coverage for a spouse or former
spouse.
Once wife obtained health insurance for the children, the cost was included in the final
decree. Code § 20-108.2(E) states:
Any costs for health care coverage as defined in § 63.2-1900 and
dental care coverage, when actually being paid by a parent or that
parent’s spouse, to the extent such costs are directly allocable to
the child or children, and which are the extra costs of covering the
child or children beyond whatever coverage the parent or that
parent’s spouse providing the coverage would otherwise have,
shall be added to the basic child support obligation.
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The trial court did not err in including the cost of the children’s health insurance into
husband’s child support obligation, as it was directly provided for by Code § 20-108.2(E).
Assignment of error 3
Husband argues that the trial court erred by improperly imputing income to him for child
support purposes. The evidence proved that husband earned $77,000 to $148,400 from 2006
until 2010 at SNOW. After he was terminated from SNOW, husband worked as a part-time
trainer, earning $2,150 per month, or $28,500 per year. In addition, with money borrowed from
his parents, husband purchased a franchise, Aqua-Tots, with plans to open a children’s
swimming lessons business.
Based on the evidence, the trial court held that husband was voluntarily underemployed
and imputed income to him of $60,000 per year. The trial court noted that husband “voluntarily
opted to form a future business that may not commence operations until the fall of 2013” and
meanwhile, husband “failed diligently to seek full time employment that would afford him
income consistent with his earning capability.”
In setting or modifying spousal support or child support, a court
may impute income to a party voluntarily unemployed or
underemployed. See Calvert v. Calvert, 18 Va. App. 781, 784, 447
S.E.2d 875, 876 (1994); Stubblebine v. Stubblebine, 22 Va. App.
703, 710, 473 S.E.2d 72, 75 (1996) (en banc). Whether a person is
voluntarily unemployed or underemployed is a factual
determination. In evaluating a request to impute income, the trial
court must “consider the [parties’] earning capacity, financial
resources, education and training, ability to secure such education
and training, and other factors relevant to the equities of the
parents and the children.” Niemiec v. Commonwealth, 27
Va. App. 446, 451, 499 S.E.2d 576, 579 (1998).
Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 783-84 (1999).
Husband contends the trial court based the imputed income amount on a job offer that he
received from Ottawa, Canada. At trial, husband testified that the only job offer he received was
as a swim coach for the University of Ottawa swim team and for a private club. On appeal,
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husband asserts that he did not take the job because he did not want to be so far away from his
children.2 In support of his argument, he relies on Broadhead v. Broadhead, 51 Va. App. 170,
655 S.E.2d 748 (2008), where this Court reversed the trial court and remanded the issue of
whether father was voluntarily underemployed. The Court held that
the trial court failed to consider the other factors relevant to an
analysis of whether father is voluntarily underemployed in his
current position, particularly whether father’s efforts to find a
position were reasonable and whether other positions in the
Richmond area were available to father, utilizing his education and
experience, at a pay level comparable to his former positions . . . .
Id. at 184-85, 655 S.E.2d at 754-55.
Contrary to husband’s argument, the trial court specifically stated the “fact that that offer
[the job offer from Ottawa, Canada] and his imputed income are the same is coincidental.” The
trial court held that the imputed income amount was based on the evidence presented, including
husband’s “excellent credentials and experience as a swim coach; that he had played a significant
role in the formation of the SNOW program; and that he received compensation at SNOW well
in excess of $60,000/year.” The trial court further explained that it based its decision that
husband was underemployed on “his failure to present significant . . . effort to find a more
remunerative position than that of a part-time trainer; and that he sought fit to travel to Las
Vegas to meet his paramour and presumably to gamble.” The trial court also was concerned that
“instead of any significant evidence of seeking a more remunerative position, he [husband]
testified that he had devoted attention to pursuing a youth swimming center that would open next
year.” The trial court fully explained its rationale in imputing income to husband.
2
The trial court noted that husband testified that the job offer was “withdrawn because
his prospective employer learned he [husband] had earlier sued a swim club employer before he
came to the United States.”
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Husband further argues that wife did not present any evidence of any availability of jobs
for husband. However, as the trial court noted, husband did not make any efforts to find
employment that more closely matched his earning capacity. Instead, he worked twenty hours
per week as a part-time trainer.
Based on the evidence presented, the trial court did not err in imputing income of
$60,000 per year to husband.
Assignment of error 4
Husband argues that the trial court erred by denying his request for an award based on
wife’s use of marital funds to pay her son’s college expenses. Prior to September 2010, wife
paid her ex-husband’s share of $56,194.80 toward her son’s college expenses. Husband argues
that this payment should have been considered for equitable distribution purposes.
Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he standard of review
and the argument (including principles of law and authorities) relating to each assignment of
error.”
Husband did not comply with Rule 5A:20(e) because his opening brief does not contain
any principles of law, or citation to legal authorities, or the record to fully develop his arguments.
Husband has the burden of showing that reversible error was committed. See Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of
error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
We find that husband’s failure to comply with Rule 5A:20(e) is significant, so we will not
consider the fourth assignment of error. See Fadness v. Fadness, 52 Va. App. 833, 851, 667
S.E.2d 857, 866 (2008) (“If the parties believed that the circuit court erred, it was their duty to
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present that error to us with legal authority to support their contention.”); Parks v. Parks, 52
Va. App. 663, 664, 666 S.E.2d 547, 548 (2008).
Assignment of error 5
Husband argues that the trial court abused its discretion in valuing SNOW at $0. “As
‘[t]he value of property is an issue of fact, not of law,’ Howell v. Howell, 31 Va. App. 332, 340,
523 S.E.2d 514, 518 (2000), we are bound by this finding on appeal, unless it is plainly wrong or
without evidence to support it, Smith v. Board of Supervisors, 201 Va. 87, 91, 109 S.E.2d 501,
505 (1959).” Patel v. Patel, 61 Va. App. 714, 722, 740 S.E.2d 35, 39 (2013).
Husband contends that SNOW increased in value during the marriage because of the
parties’ significant efforts. See Code § 20-107.3(A)(3). He asserts that he should not be
penalized because wife did not pay the payroll taxes.
Each party presented expert witnesses to testify about the value of SNOW. Wife’s expert
valued SNOW at $0, whereas husband’s expert valued SNOW at $392,000. The trial court noted
that the difference between the values was that husband’s expert decided to “ignore the
cumulative IRS debt of $609,392.”
A court may “choose among conflicting assessments of value as long as its
finding is supported by the evidence.” McDavid, 19 Va. App. at 413, 451 S.E.2d at 718.
The trial court listed several reasons for why it accepted wife’s expert as opposed to
husband’s expert. The trial court held that wife’s expert’s “experience and credentials are
impressive,” while husband’s expert’s experience and credentials are “significantly less
impressive.” The trial court further noted that husband’s expert “merely attempted to criticize
[wife’s expert’s] valuation opinions.” Husband’s expert did not attempt to value SNOW, and the
trial court found “her opinion is questionable for that reasons [sic] alone.” The trial court also
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questioned the assumptions made by husband’s expert and her failure to consider SNOW’s
current situation, including the IRS debt.
Based on the evidence, the trial court did not abuse its discretion in valuing SNOW at $0
because it found wife’s expert to be more credible than husband’s expert.
Attorney’s fees and costs
Wife asks this Court to award her attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Having reviewed
and considered the entire record in this case, we deny wife’s request for appellate attorney’s fees
and costs.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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