Afaf Kanazeh Mann v. Michael Kay Mann ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Annunziata
Argued at Alexandria, Virginia
AFAF KANAZEH MANN
MEMORANDUM OPINION * BY
v. Record No. 0333-95-4 JUDGE ROSEMARIE ANNUNZIATA
MAY 21, 1996
MICHAEL KAY MANN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Quinlan H. Hancock, Judge
Philip F. Hudock for appellant.
Lauren E. Shea (Sherman, Meehan & Curtin,
P.C., on brief), for appellee.
In September 1993, Afaf Kanazeh Mann ("wife") filed a Bill
of Complaint seeking a divorce from Michael Kay Mann ("husband")
on grounds of cruelty and desertion. In May 1994, husband filed
a cross-bill seeking a divorce from wife on grounds of
constructive desertion and cruelty. In August 1994, wife filed
an Amended Bill of Complaint charging husband with adultery.
Following hearings in August and September 1994, the commissioner
reported that both husband's post-separation adultery and wife's
cruelty and constructive desertion had been proved. As such, the
commissioner applied the doctrine of recrimination, barring a
fault-based divorce. The commissioner recommended a no-fault
divorce based on one year of separation without cohabitation or
interruption. Following a December 1994 equitable distribution
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
hearing, the trial court adopted the commissioner's findings,
ordered a no-fault divorce, and entered its Final Decree of
Divorce and Qualified Domestic Relations Order.
Wife appeals the court's equitable distribution assigning as
error: (1) the failure to properly consider the factors set forth
in Code §§ 20-107.3 and 20-107.1; (2) application of the court's
finding that wife was responsible for the marriage's dissolution
to its equitable distribution and support award; (3) requiring
wife to pay the mortgage on the marital home after granting her
spousal support; (4) requiring wife to pay 50% of husband's 1993
outstanding federal income tax; (5) requiring wife to pay $10,000
of husband's attorney's fees; (6) requiring wife to pay $500 in
commissioner's fees; and (7) the failure to find husband in
arrears with his support payments. 1 For the following reasons,
we affirm, in part, reverse, in part, and remand, in part, for
further proceedings.
The parties were married January 14, 1984 and separated
September 9, 1993. Husband began working for Martin Marietta in
1966 and continued to work there throughout the proceedings. In
1993, husband reported wages of $123,572.23. In 1994, he earned
approximately $130,000, including a $112,000 salary and an
$18,000 incentive bonus he received the following January.
Husband testified that his gross monthly income was $9,307.
1
The husband filed a cross-appeal, the disposition of which
is addressed in a separate opinion.
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Husband participated in both a defined benefit plan and a defined
contribution plan through his employer.
During the marriage, wife worked in real estate, held jobs
as a retail salesperson and cosmetologist, and was a property
manager earning $1,300 per month. Through the first nine months
of 1993, wife earned approximately $15,000 working in real
estate. Wife testified that she netted only $1,687. Initially,
wife testified that she stopped working in October 1993.
However, she later indicated that she continued to do some work
as a property manager.
Wife testified that she had been unable to work since
October 1993 due to medical problems. Wife's physician estimated
that her condition caused her 50% permanent partial disability.
However, wife's physician testified that her prognosis was good
if she maintained a proper diet and took her medication. Wife's
physician testified that her conditions had existed since 1985 or
1986.
The parties' marital estate included their marital residence
valued at $252,000. At the time of the equitable distribution
hearing, the balance on the mortgage was $87,542 and the equity
was $144,298 after accounting for sales costs.
At the date of the equitable distribution, the parties had
credit card debt of approximately $40,000, much of which was
attributed to wife's post-separation spending. Husband paid the
credit card debt to preserve the good credit rating he needed to
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maintain his security clearance at work. Husband owed the IRS
$9,782.40 in back taxes for 1993, a year in which husband filed a
separate return.
Husband testified that he was the primary provider during
the marriage. Throughout the separation, husband made monthly
mortgage payments of $1,595 on the marital residence. During
that time, he also paid the utilities and $550 per month spousal
support.
Wife's son testified that wife intended to perpetuate the
court proceedings in an attempt to force husband to capitulate to
her demands. In a memorandum of law submitted to the trial
court, husband referred the court to wife's refusal to settle the
parties' dispute contrary to the advice of her counsel.
The court made the following findings with respect to the
testimony: (1) as to the marital home, husband made most of the
contributions to its acquisition and maintenance; (2) as to the
marital debt, wife had no credible explanation for her incurring
substantial post-separation debt; (3) as to spousal support, wife
intended to bankrupt husband or, at least, cause him to lose
money through the litigation; (4) as to spousal support, wife
suffered from her various medical conditions since the mid-1980s
but that the conditions would not prevent her from continuing to
work; and (5) as to attorney's fees, wife was totally responsible
for the dissolution of the marriage.
After stating that it had considered all the factors set
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forth in Code §§ 20-107.1 and 20-107.3, the court ordered: (1)
that unless either party purchased the other's share of the
marital residence within thirty days, the home was to be sold and
husband given a credit for the principal payments he made during
the separation and until the sale of the house if he continued to
pay the mortgage; the remaining proceeds were to be split, 40%
for wife, 60% for husband; (2) that wife receive 40% of the
marital share of husband's retirement plans; (3) that wife pay
50% of the 1993 outstanding federal income tax; (4) that wife pay
a monetary award to husband of $10,126 representing the post-
separation credit card debt she incurred; (5) that wife pay
$10,000 of husband's attorney's fees and 50% of the cost of the
commissioner's hearing; and (6) that husband pay $1,600 per month
spousal support.
On February 1, 1995, the trial court granted husband's
Motion for Financial Relief thereby ordering wife to make
mortgage payments on the marital residence for so long as she
resided there. By order dated February 2, 1995, the court denied
wife's motion seeking, inter alia, to modify the support award in
light of her obligation to pay the mortgage.
I
Wife argues that the trial court failed to make specific
findings in its consideration of the factors set forth in Code
§§ 20-107.1 and 20-107.3(E). In Alphin v. Alphin, 15 Va. App.
395, 424 S.E.2d 572 (1992), this Court concluded with respect to
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§ 20-107.3(E) that the trial court's failure to consider all of
the statutory factors is reversible error and that the trial
court must do more than merely recite that it has considered all
the factors. Id. at 405, 424 S.E.2d at 577-78; see also Via v.
Via, 14 Va. App. 868, 872, 419 S.E.2d 431, 434 (1992) (addressing
Code § 20-107.1). However, the trial court is not required to
precisely or expressly state the consideration it gives each
factor, and, when the court fails to articulate its reasons
sufficiently, this Court examines the record to see if the
evidence supports the award. Alphin, 15 Va. App. at 405, 424
S.E.2d at 578 (quoting Gibson v. Gibson, 5 Va. App. 426, 435, 364
S.E.2d 518, 523 (1988)). Upon review of the court's findings
with respect to both the support award and equitable
distribution, as discussed above, we conclude that the trial
court gave proper consideration to each of the statutory factors.
II
Next, wife argues that the court abused its discretion by
improperly considering wife's fault in making its support award
and equitable distribution. However, the court made clear that
it considered wife's fault only with respect to its award of
attorney's fees. The court never referenced wife's fault
concerning either support or equitable distribution.
III
In determining the appropriate amount of spousal
support, the trial court must consider the needs of the
requesting party and the other spouse's ability to pay.
. . . In fixing the amount of support the trial court
must look to the financial needs of the [receiving
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party], her age, physical condition and ability to
earn, and balance against these circumstances the
financial ability of the [other spouse] to pay,
considering his income and his ability to earn.
Alphin, 15 Va. App. at 401, 424 S.E.2d at 575 (citation omitted).
When based on the statutory factors, a court's support award
will not be reversed absent an abuse of discretion. See id. at
401, 403, 424 S.E.2d at 575. Here, we cannot say that the trial
court abused its discretion in making its initial support award
of $1,600 per month.
A support award may be modified when the party seeking
modification proves "both a material change in circumstances and
that this change warrants a modification of support." Furr v.
Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (citation
omitted); see also Code § 20-109. Husband had been paying the
mortgage on the marital home, approximately $1,600 per month
including both principal and interest, through the parties'
separation until entry of the final decree. The wife's expense
sheet, reflecting no expenditures for mortgage payments, was
admitted as evidence in the case.
In its final decree, the court awarded wife $1,600 per month
spousal support. It also provided for a credit to the husband,
from proceeds obtained upon the sale of the marital residence,
for mortgage payments he made in the intervening time. After the
entry of the decree, the court granted husband's motion for
financial relief, requiring wife to make the monthly mortgage
payments, but summarily denied wife's motion to modify the
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support award without further hearing or argument. Wife contends
that the court erred in so doing. We agree.
The court's subsequent order requiring wife to pay the
mortgage reapportioned the parties' relative financial postures,
relative to needs and ability to pay. Contrary to the court's
finding, the court's order constituted a material change in
circumstances, requiring further inquiry to determine whether
such change warranted a modification of support. The award of
spousal support is therefore remanded for further proceedings
consistent with this opinion. 2
IV
Wife next argues that the court erred by ordering her to pay
one-half of husband's outstanding 1993 tax liability. She
contends that the tax debt is separate property because husband
filed a separate income tax return in 1993.
Income tax debts incurred during the marriage are generally
treated as marital debt. Brett R. Turner, Equitable Distribution
of Property § 6.29, at 457 (2d ed. 1994); see also Downey v.
Kamka, 428 S.E.2d 769, 771-72 (W. Va. 1993); cf. Turner, supra,
at 460 (property taxes on nonmarital property constitute
nonmarital debt). Filing separate returns does not change the
character of the debt. Downey, 428 S.E.2d at 772. Rather,
2
Our decision in Michael Kay Mann v. Afaf Kanazeh Mann, in a
separate published opinion, reverses the trial court's equitable
distribution award of certain pension benefits. The wife's
spousal support award must be reconsidered in light of that
decision as well. See Va. Code § 20-107.1(8).
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whether a debt is classified as marital or separate depends on
who benefitted from the debt. Turner, supra, at 455-56; see also
Gamer v. Gamer, 16 Va. App. 335, 341-42, 429 S.E.2d 618, 623
(1993). If both parties benefitted from the debt, it should be
considered marital, regardless of the fact that only one of the
parties may have incurred it. Id.
Here, the tax liability was based on husband's income, which
was marital property, benefitting both parties. Accordingly, we
find that the tax on that income is marital debt. Likewise, we
find the interest and penalty obligations were properly
considered marital debt. The interest and penalty reflect the
benefit to the marital estate accruing from the untimely payment
of the tax liability. We find the fact that husband filed a
separate return insufficient evidence that the debt should have
been classified as separate. In the absence of any evidence to
show that the debt should be attributed solely to husband, we
find the trial court did not abuse its discretion in ordering
wife to pay one-half the liability. See Gamer v. Gamer, 16 Va.
App. 335, 341-42, 429 S.E.2d 618, 623 (1993).
V
Wife next argues that the court erred, requiring her to pay
$10,000 of husband's attorney's fees. The court's award of
attorney's fees must be reasonable "under all the circumstances
revealed by the record." Alphin, 15 Va. App. at 406, 424 S.E.2d
at 578 (quoting Poliquin v. Poliquin, 12 Va. App. 676, 682, 406
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S.E.2d 401, 405 (1991)). The award is reviewable only for an
abuse of discretion. Id. (quoting Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987)). In light of the length
and complexity of this litigation and wife's apparent attempt to
prolong it, we cannot say that the trial court abused its
discretion awarding husband attorney's fees. Moreover, while the
fault of a spouse does not preclude a court from awarding
attorney's fees in favor of that spouse, see Davis v. Davis, 8
Va. App. 12, 17, 377 S.E.2d 640, 643 (1989), we find no principle
which precludes a court from considering fault in making an award
of fees against that spouse.
Wife argues that the court was prejudiced by husband's
submission of the deposition excerpt showing wife's refusal to
settle. The general rule is that evidence of compromise and
settlement is inadmissible. E.g., Agelasto v. Atkinson Real
Estate, 229 Va. 59, 64, 327 S.E.2d 84, 86 (1985). However, a
trial judge, acting as the trier of fact, generally may inquire
into settlement negotiations. Hurt v. Newcomb, 242 Va. 36, 40,
405 S.E.2d 843, 844 (1991). Such a practice helps encourage an
early end to litigation and is permissible so long as the parties
receive a fair and impartial trial. Id. Here, nothing suggests
that the parties received anything but a fair and impartial
trial; accordingly, wife's claim lacks merit. 3
3
Wife also argues that the testimony of her son concerning
her intent to bankrupt husband was improper because it was
non-responsive, speculative, and included hearsay. The court
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VI
The court ordered wife to pay fifty percent of the combined
costs for the commissioner's hearing. Fifty percent of the
combined costs equals $1,079. Wife argues the court failed to
consider $300 she had previously paid the commissioner and,
therefore, improperly computed the amount she owed. We find no
merit in the wife's argument. The court ordered wife to pay a
total of $1,079, it did not order her to pay $1,079
notwithstanding any payments she had already made.
VII
Finally, wife argues that husband is in arrears for payments
due under the sealed pendente lite order. Wife raised this issue
in a motion to modify and suspend the final order, bringing
evidence of her claim to the court's attention. However, the
court summarily denied the motion without a hearing. As such,
there are no findings of fact on this issue on which we can base
our review. Accordingly, this issue must be remanded for further
determination.
Affirmed in part,
reversed and remanded in part.
(..continued)
instructed wife's son not to give hearsay testimony. The son
answered the pending question and wife neither objected to the
answer nor asked that it be stricken. Consideration of wife's
assertion that the answer violated the court's instruction is,
therefore, procedurally barred. Rule 5A:18.
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