John A. Raiello v. Kathleen L. Raiello ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
JOHN A. RAIELLO
MEMORANDUM OPINION * BY
v. Record No. 2444-00-4 JUDGE G. STEVEN AGEE
JULY 17, 2001
KATHLEEN L. RAIELLO
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
J. Howe Brown, Jr., Judge Designate
Donald S. Caruthers, Jr. (Donald S.
Caruthers, Jr., P.C., on briefs), for
appellant.
Carl P. Horton for appellee.
John A. Raiello (husband) appeals the September 8, 2000
decision of the Loudoun County Circuit Court 1 on the issues of
equitable distribution and spousal support upon the termination
of his marriage to Kathleen L. Raiello (wife). Husband contends
on appeal that the trial court exhibited gender and personal
bias in its decision. Further, husband contends the trial
court's rulings on spousal support and equitable distribution
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The Court notes that there is a clerical error in the
decree appealed from in that the caption of the decree indicates
that it was from the Circuit Court of Fairfax County, while the
record clearly shows that it was from the Circuit Court of
Loudoun County.
were an abuse of discretion, plainly wrong and without evidence
to support them.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited. For the reasons that follow, we affirm in
part and reverse in part.
I. Judicial Bias
Husband's first contention on appeal is that the trial
court exhibited gender and personal bias against husband.
Husband's proffered evidence of the prejudice exhibited towards
him are quotations from the record on the deceased child's
ashes, "the tape incident" and wife's contribution to the
marriage, and what husband believes to be an unfair award in
wife's favor. We disagree. As we discuss later, the trial
court did not commit reversible error in its calculations of the
spousal support award and the equitable distribution of marital
property. The trial court properly exercised its role in
calculating these items.
The record shows no evidence of judicial bias. We find no
merit in this assignment of error in the performance of the
court's calculations. To the contrary, the judge commented at
length from the bench at the reconsideration hearing as to the
basis for his ruling and adherence to the statutory
requirements.
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II. Spousal Support
Husband was ordered to pay wife $1,000 per month in spousal
support. Husband contends that the trial court erred in
(1) awarding spousal support to wife and (2) calculating the
amount of that support. Husband avers that the award was based
solely on a finding by the trial court that he was at fault for
the dissolution of the marriage and needed to be punished for
his actions. He also contends that while his fault in the
dissolution of the marriage was considered in the determination
of whether support should be awarded wife, her fault was not
duly considered. We disagree with these contentions.
A. Allegation of Ignored Factor in Determining Need
for a Spousal Support Award
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the
trial court and will not be disturbed on appeal unless it is
clear that some injustice has been done." Dukelow v. Dukelow, 2
Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). Husband concedes
that his actions contributing to the dissolution of the marriage
were properly considered in the determination of whether or not
an award of spousal support should be made. He alleges, though,
that the trial court failed to properly consider wife's
"desertion."
The trial court, however, did not find that any alleged
desertion by wife contributed to the break-up of the marriage.
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In light of the evidence and its determination, the trial court
gave the evidence the weight it felt appropriate and we cannot
say as a matter of law that the trial court was plainly wrong.
B. Allegations of Error in Considering Factors
as to Amount of Spousal Support
Husband's principal objection to the support award is its
duration. He contends that a temporary award may have been
justified but an award of support to wife for so long as she
remains unmarried is error based on the facts of this case. He
avers that the only reason for the perpetual award was to punish
him for fault in the dissolution of the marriage, a factor that
should not be considered by the trial court in its calculations
of the amount of a support award.
"In regard to the amount of the spousal support award, we
will reverse an award on that basis only for an abuse of
discretion or the judge's failure to consider all the factors
set forth in Code § 20-107.1." Barnes v. Barnes, 16 Va. App.
98, 103, 428 S.E.2d 294, 298 (1993) (citation omitted). The
award of spousal support "'will not be disturbed except for a
clear abuse of discretion.'" Dodge v. Dodge, 2 Va. App. 238,
246, 343 S.E.2d 363, 367 (1986) (citation omitted). The trial
court was careful to note it had considered all the statutory
factors. We find no evidence in the record of such abuse or
failure, and affirm the award.
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1. Abuse of Discretion
Husband alleges that the trial court abused its discretion
in calculating spousal support because it based the calculations
on husband's fault in the dissolution of the marriage. Husband
contends his allegation is evidenced by the perpetual support
award, which he finds inappropriate. We find no support for
husband's allegation.
The trial court provided its reasons for awarding spousal
support, including factors contributing to the dissolution of
the marriage, as permitted by Code § 20.1-107.1(E). The trial
court then moved to a determination of the nature, amount and
duration of the award. We do not find evidence to support the
allegation that fault, not a factor enumerated in Code
§ 20.1-107.1(E) to be considered in this calculation, was part
of the trial court's calculation. Therefore, we find no support
for the allegation by husband that the award was made to punish
him for his actions contributing to the divorce. It is in the
trial court's discretion to award support for a defined or
undefined duration. See § Code 20.1-107.1(C).
2. Consideration of Code § 20.1-107.1(E) Factors
Husband's last contention as to error in the spousal
support award is that the trial court failed to consider all the
factors required in Code § 20.1-107.1(E). This assertion is
contradicted by the record.
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The trial court's cognizance and application of the
statutory factors is evidenced by the judge's statement that "I
listened to and considered the statutory factors . . . . The
fact that I don't mention one or another of them doesn't mean I
haven't considered it. I think--it just seems too rote to go
through the statute and say this one, this one, but I have
considered those things." The trial court then addresses
several of the factors, including husband's earnings, wife's
time away from the workplace to raise the children, and the
property awarded to wife which she could use to garner more
income. Provided the record indicates the trial court's
consideration of the statutory factors, as is the case here, the
trial court need not disclose the totality of its considerations
nor address each factor point by point in its opinion. 2
2
In this appeal, husband points to the trial court's
failure to comply with Code § 20-107.1(F), which requires that
an order granting a request for spousal support be accompanied
by written findings and conclusions of the court. It appears
that this allegation of error was not made to the trial court.
Husband's brief contends that it was preserved in the trial
court with his motion and argument for reconsideration, yet upon
our reading of the motion we do not find this allegation of
error. Inasmuch as it appears that the argument made before
this Court was never made in the trial court, we decline to
consider the issue for the first time on appeal. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18); Zipf v. Zipf, 8 Va. App. 387, 392, 382
S.E.2d 263, 265 (1989). Accordingly, Rule 5A:18 bars our
consideration of this question on appeal.
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Finding that the trial court considered all the statutory
factors and that there is no evidence of an abuse of discretion,
we affirm the spousal support award.
III. Equitable Distribution of the Marital Property
Husband also alleges the trial court erred in determining
the equitable distribution of the marital property. In
reviewing an equitable distribution award we defer to the trial
court's discretion in weighing the particular circumstances of
each case. Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833,
837 (1988) (citation omitted). Only under exceptional
circumstances will we interfere with the exercise of the trial
court's discretion. Id. (citation omitted). The trial court's
determination will be reversed only upon a showing in the record
that the court has abused its discretion by misapplying the
statutory factors in Code § 20-107.3(E). Anderson v. Anderson,
29 Va. App. 673, 693, 514 S.E.2d 369, 379 (1999). In the case
at bar we hold the trial court did not abuse its discretion and
did not fail to apply the requisite factors in making the
equitable distribution determination as to the marital property.
A. Allegation that the Code § 20-107.3
Factors were not Considered
Husband contends the trial court erroneously (1) failed to
consider all the requisite factors in its determination of the
property division; (2) considered fault factors notwithstanding
the absence of evidence those had any affect upon the marital
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property or its value; and (3) weighted the fault factor of
subsection (E)(5) of Code § 20-107.3 over the other requisite
factors to be considered and undervalued husband's economic
contributions to the marriage and marital property.
1. All Factors Properly Considered
It is husband's contention that the trial court failed to
consider any factor, except fault, in its determination of the
equitable distribution award. The record reflects otherwise.
First, prior to announcing the equitable distribution award, the
judge said, "I listened to and considered the statutory factors
. . . . The fact that I don't mention one or another of them
doesn't mean I haven't considered it . . . . I have considered
these things . . . in the equitable distribution." Upon the
motion for reconsideration, the judge stated, "I looked at the
factors in 107.3 . . . . I didn't just give lip service to it,
I looked at it."
Husband is correct when he asserts the trial court
considered fault in its determination of the property division.
The trial court acknowledges the consideration:
"Factor five in . . . 107.3 is the cause of
the dissolution of the marriage. I spent
some of the time that I spent talking about
how he viewed the marriage and how I viewed
his view of the marriage, the
non-partnership aspect, dealing with that
particular factor."
Yet, contrary to husband's assertion that the consideration is
error, the consideration is permissible when the fault, here the
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controlling and abusive behavior, has an affect upon the marital
property and its value. Aster, 7 Va. App. at 6, 371 S.E.2d at
836. It is also permissible to consider the fault factors
if the evidence of misconduct is relevant
under any other factor than [Code
§ 20-107.3(E)](5), it may in the judge's
discretion be considered when making an
equitable award. The trial court may
"consider the negative impact . . . on the
well-being of the family . . . ."
O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527-28, 458 S.E.2d
323, 326 (1995) (citation omitted). Here, evidence indicated
that husband's controlling behavior led to the dissolution of
the marriage and also affected the parties' finances: he
transferred money from joint accounts to his sole account, he
controlled wife's purchasing, he prohibited her from using the
parties' computer, and he controlled what she took from the home
and locked her out so that she could not take or inspect other
pieces of personal property. We, therefore, cannot say it was
error to consider husband's fault in the equitable distribution
determination.
We also find no support for the allegation that the fault
consideration was weighted heavier than the other factors. The
trial court specifically recognizes husband's contribution of
87% of the parties' income, wife's income contribution, wife's
substantial non-monetary contributions to the family, the
duration of the marriage, and the parties' ages. Further, even
if the fault factor was weighted heavier, we have held the trial
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court did not abuse its discretion as it considered all the
requisite factors and thus we must defer to the trial court's
discretion in weighing the particular circumstances of each
case. Aster, 7 Va. App. at 8, 371 S.E. 2d at 837.
2. No Abuse of Discretion in Proportional Division
Husband's unsupported allegations are based on the fact
that he did not receive a greater share of the marital property.
It is husband's belief that since he provided at least 87% of
the parties' income during much of the marriage he should be
awarded the lion's share of the marital property. This is an
incorrect assumption on husband's behalf.
It is within the discretion of the trial court to make an
equal division of assets, see Bentz v. Bentz, 2 Va. App. 486,
490, 345 S.E.2d 773, 775 (1986), or to make a substantially
disparate division of assets, see Aster, 7 Va. App. at 8, 371
S.E.2d at 837, as the factors outlined in Code § 20-107.3(E)
require. See Alphin v. Alphin, 15 Va. App. 395, 403, 424 S.E.2d
572, 576 (1992). In determining an equitable distribution
award, the trial court must make "delicate and difficult
judgments," Bentz, 2 Va. App. at 489, 345 S.E.2d at 774, and
"weigh[] the many considerations and circumstances that are
presented in each case." Klein v. Klein, 11 Va. App. 155, 161,
396 S.E.2d 866, 870 (1990). It is precisely "because rights and
interests in marital property are difficult to determine and
evaluate and competing equities are difficult to reconcile,"
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that "the chancellor is necessarily vested with broad discretion
in the discharge of the duties the statute imposes." Smoot v.
Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).
In this case, the trial court was required to balance
husband's greater monetary contributions during the marriage
against wife's greater non-monetary contributions throughout the
marriage. Absent any showing of error, which we do not find, we
defer to the trial court's discretion in this balancing test.
Aster, 7 Va. App. at 8, 371 S.E. 2d at 837.
As we find no abuse of discretion and no failure to
consider the requisite factors in Code § 20-107.3(E), the
equitable distribution award of the marital property is
affirmed.
B. Allegation of Disproportionate Treatment
of Marital Funds
As another allegation of error, husband challenges the
trial court's division of the couple's retirement plans. The
trial court awarded wife 100% of the funds in her Fidelity IRA
and 50% of the marital property funds in husband's 401(k).
Husband, however, fails to point out why this division
constitutes error; he cites no statutory provision or case law
to suggest why the trial court would be required to similarly
divide each retirement account. Due to the failure to explain
his allegation and to cite applicable law, we will not further
address this issue and we affirm the trial court's action.
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IV. Calculation of Separate Property
In a final contention regarding the trial court's equitable
distribution award, husband challenges the court's failure to
recognize and credit his post-separation mortgage payments,
shown to have been paid with his post-separation earnings. The
trial court heard testimony and viewed exhibits showing that
husband made these payments out of his separate funds, yet the
trial court still ordered the remaining proceeds from sale of
the home to be equally divided. 3 The trial court remarked,
"I don't think he's entitled to a
consideration of the mortgage. If it's
separate property, let it be separate
property. But he's been there and locked
her out for that period of time, and so
that's the amount he should pay in rent."
The mortgage payments shown to have been paid by husband
from his post-separation earnings should have received
recognition as separate property (the equity increase in the
home) and credited in the trial court's calculation. See
generally Von Raab v. Von Raab, 26 Va. App. 239, 494 S.E.2d 156(1996). It is clear that the trial court was unsure of this
point and instead determined that if its classification was
wrong then any payments nonetheless should not be in the
3
The trial court did award husband $24,383.41 as his
separate property from the proceeds of the house sale, with only
the surplus being divided equally as marital property. The
post-separation payments by husband of apparently $3,490.09 are
separate and apart from the $24,383.41 amount. According to our
holding on this issue the marital surplus of the house sale
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husband's favor and should be considered rent to the wife. This
determination was made sua sponte, without an agreement between
the parties concerning rent, any evidence as to the propriety or
amount of rent and apparently without being weighed by the trial
court with the other factors in dividing the marital property.
The trial court abused its discretion. Accordingly, we reverse
the equitable distribution award with direction to the trial
court to consider, based on the evidence in the record, what
credit may be due the husband for the equity increase in the
home attributable to the post-separation mortgage payments.
Affirmed in part,
reversed in part
and remanded.
should be further adjusted to give husband credit for the
additional separate property payments.
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