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ZASLER v. ZASLER




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the Virginia Court of Appeals.


ZASLER

v.

ZASLER


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Senior Judge Hodges

Argued at Richmond, Virginia

Record No. 0564-02-2

NATHAN D. ZASLER

v.

CAROL P. ZASLER

 

MEMORANDUM OPINION[1]
BY JUDGE JAMES W. BENTON, JR.

SEPTEMBER 9, 2003

FROM THE CIRCUIT COURT OF HENRICO COUNTY

George F. Tidey, Judge

Terrence R. Batzli (Ann Brakke Campfield;

Barnes & Batzli, P.C., on briefs), for

appellant.

Susanne L. Shilling (Shilling & Associates,

on brief), for appellee.

Nathan D. Zasler appeals from a domestic relations final

decree and contests awards to his wife, Carol P. Zasler, of

marital property, spousal support, and fees for her expert
witness

and her attorney. For the reasons that follow, we affirm the

decree.

I. Background

The husband and the wife married in 1993 and separated in

2000. Shortly after their separation, the husband commenced this

divorce action, alleging adultery, cruelty, and constructive

desertion. The wife filed an answer and a cross-bill denying

adultery and alleging the husband assaulted her and threatened
the

mental health of their family. The trial judge determined that

neither party was entitled to a divorce based on fault grounds,

but he ruled that they could argue those issues as having a

bearing on the distribution of the property. On February 12,

2001, the trial judge entered a decree a divorce on the ground

that the parties had lived separate and apart for a period in

excess of one year.

At the conclusion of numerous hearings concerning the

remaining issues, the trial judge entered a final order on

February 7, 2002 that granted custody of the children to the

wife, provided visitation rights to the husband, and ordered the

husband to pay $2,665 per month child support. In addition and

germane to this appeal, the final order valued Concussion Care

Centre of Virginia, Ltd. at $560,000 and granted the wife 40% of

its value, valued Tree of Life Services, Inc. at $190,000 and

granted the wife 40% of its value, valued Tree of Life, LLC at

$450,000 and granted the wife 40% of its value, ordered the

jointly owned farm to be sold and divided the proceeds equally

between the parties, distributed the remaining marital assets

equally, apportioned the parties’ tax liability based on their

respective taxable incomes, apportioned marital debts such that

husband bore responsibility for 60% of the debt, ordered the

husband to pay the wife $466,939.74 for her share of the marital

property based on the above distribution, ordered the husband to

pay $4,000 per month for spousal support, and ordered the

husband to pay $45,000 for the wife’s attorney’s fees and

$10,000 for her expert witnesses’ fees. The husband appeals

various aspects of this final decree.

II. Standard of Review

On appeal, we review the evidence in the light most

favorable to the party prevailing below and grant all reasonable

inferences fairly deducible from that evidence. Rogers v.

Yourshaw, 18 Va. App. 816, 818, 448 S.E.2d 884, 885 (1994).

Moreover, we give great weight to the factual findings of the

trial judge when those findings are "based upon the judge’s

evaluation of the testimony of witnesses heard ore tenus."

Gottlieb v. Gottlieb, 19 Va. App. 77, 83, 448 S.E.2d 666, 670

(1994). We will not overturn a final decree if the judge’s

findings are "supported by substantial, competent, and
credible

evidence." Id.

III. Valuation

Code ? 20-107.3(A) provides that the trial judge, "upon

request of either party, shall determine the . . . value of all

property, real or personal, tangible or intangible, of the

parties." Although a trial judge may not arbitrarily reject

credible evidence of value, Bowers v. Bowers, 4 Va. App. 610,

618, 359 S.E.2d 546, 551 (1987), we have recognized in Zipf v.

Zipf, 8 Va. App. 387, 395, 382 S.E.2d 263, 268 (1989), that a

trial judge may select a value within a range of conflicting

opinions.

A. Concussion Care Centre of Virginia, Ltd.

The husband contends the trial judge erred in determining

the value of Concussion Care Centre of Virginia, Ltd. He argues

that the trial judge should have relied on the valuation of his

expert rather then the wife’s expert. He further argues that

even if it was not an error for the trial judge to rely on the

wife’s expert’s valuation, the trial judge’s adjustments to that

value were error. Lastly, he argues that the trial judge’s

determination of personal goodwill for the husband in valuing

the corporation was inadequate.

The husband, a physician, started Concussion Care in 1994

to provide consulting services, clinical care, and physical

therapy/psychological treatment primarily related to brain

injuries. Although each party produced an expert to establish

the value of Concussion Care, the experts gave extensive

deposition testimonies with "divergent valuations."
The record

contains each expert’s valuation report with documentation.

William R. Dacey, the wife’s expert, testified that his

"approach [was] to determine an estimate of value of [the

husband's] common stock interests, which would provide a fair

and reasonable return on investments to an investor or owner, in

view of the facts available . . . as of the valuation
date."

Dacey’s "opinion is based on, among other things, [his] estimate

of the risks facing [the husband's practices] and the return on

investment that would be required on alternative investments

with similar levels of risk."

After describing various methods of valuation, Dacey

testified that the value of Concussion Care should be determined

by the capitalization of historical income method. Applying

this method of valuation, he opined that the value for

Concussion Care as of December 31, 2000, exclusive of a premium

or discount for control or marketability, was $790,585. Because

the husband’s 2000 income tax return indicates he did not pay

himself a salary from Concussion Care, Dacey adduced the income

by determining the cost to replace the husband "with a

physiatrist who was earning the median compensation in the

eastern geographic region of the United States for a physiatrist

as reported in . . . [a] Physician Compensation Book."

Concluding that the median compensation for a physician who

could replace the husband was $143,736, Dacey "divided that

salary between Concussion Care and Tree of Life Services, Inc.,

[a related entity the husband operated,] in accordance with

their gross revenues." Consequently, from Concussion Care’s

income of $227,143, Dacey subtracted $56,057 as salary for the

husband. Dacey then added $3,255 of personal expenses from the

husband’s corporate credit cards. Dacey testified his valuation

used commercial goodwill but did not take into account personal

goodwill because of the husband’s questionable personal life and

because the husband is not rated by his peers as one of the best

of his speciality in this geographic area.

The husband’s expert, William D. Stephens, used the net

asset value method to determine the value of Concussion Care.

Stephens explained he did not use the income value method

because, even though the husband received money in the form of

shareholder loans, the husband did not pay himself salaries in

1999 and 2000. Stephens further opined that, due to the

consulting component of the business, it would be difficult to

replace the husband with another physician. Therefore, he

decided the value of the company must take into account the

husband’s salary, not a replacing physician’s. In deciding the

value of the husband’s unpaid salary, Stephens relied on an

analysis of the husband’s income potential generated by a

placement agency to support his conclusion that the husband

should have been paid $250,000 for the year 2000. Stephens

concluded that the fair value of the business as of December 31,

2000 was $471,100. After subtracting personal goodwill, which

he deemed to be the husband’s separate property, Stephens

estimated the total marital value in the business to be

$291,129.

The valuation issue in this case involved a classic battle

of experts. In his July 31, 2001 letter opinion, the trial

judge noted the "great disparity" in the valuations
and the

difficulty this disparity caused in making an equitable

distribution. The trial judge explained, however, the method by

which he arrived at the $560,000 valuation. From Dacey’s

valuation of $790,585, the trial judge deducted $130,000 for

personal goodwill. He also added $100,000 to the salary figure

Dacey used. In short, the trial judge accepted Dacey’s

valuation as more persuasive, but made two adjustments to it

based on his view of the evidence.

The record establishes that the trial judge considered the

deposition testimony of the two experts and thoroughly evaluated

those experts’ opinions. "We defer to the trial [judge]‘s

evaluation of the credibility of the witnesses."
Shackelford v.

Shackelford, 39 Va. App. 201, 208, 571 S.E.2d 917, 920 (2002)

(citing Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792,

795 (1997)). He was not required to reject Dacey’s valuation

merely because the husband believed his expert’s "evidence
might

be more accurate, convincing, desirable, or persuasive."

Bowers, 4 Va. App. at 618, 359 S.E.2d at 551. In addition, the

trial judge was not prohibited from making adjustments to the

expert’s valuation in order to select a value within a range of

conflicting opinions. See Zipf, 8 Va. App. at 395, 382 S.E.2d

at 268. In view of the evidence before the trial judge, we

cannot say the adjustments the trial judge made were arbitrary.

Therefore, we hold that the trial judge’s findings are supported

by credible evidence and that the judge did not err by making

adjustments to a valuation he found more persuasive.

B. Tree of Life, LLC

For similar reasons, we reject the husband’s contention

that the trial judge erred in valuing the Tree of Life, LLC,

which the husband started in 1997. Tree of Life, LLC owns real

estate and a building and has no employees. Its property is

leased to Tree of Life Services, Inc. which is a related entity

that provides transitional rehabilitation services as well as

long-term living assistance services to people with brain

injury.

Dacey applied the asset value method to determine the value

of Tree of Life, LLC, and he opined that its value was $558,669.

Because the husband’s father owns 1% of this entity, Dacey

valued the marital portion at $553,082. Dacey explained he

"based the value upon an adjustment to the book value for
the

building and improvements and the land, and [he] relied upon an

appraisal by . . . an independent third party, showing the value

of the land and the buildings to be $1,200,000."

Stephens likewise used the asset value method to determine

the value of Tree of Life, LLC. Relying on a different

appraisal, Stephens determined that the value was $859,663.

Subtracting $834,290 for liabilities, which included unpaid

salary to the husband and money the husband received as

shareholder loans, Stephens concluded that the fair value of

husband’s 99% interest in Tree of Life, LLC was $25,119.

The trial judge found Dacey’s valuation method more

persuasive but reduced the value to $450,000 because of evidence

concerning a "change in acreage in the land." We defer
to the

trial judge’s evaluation of the two expert valuations. See

Shackelford, 39 Va. App. at 208, 571 S.E.2d at 920. The

evidence does not support a conclusion that the trial judge

erred by accepting Dacey’s opinion or in adjusting Dacey’s

valuation.

IV. Dissipation of Marital Assets

The husband contends the trial judge erred in failing to

find that the wife had dissipated marital assets and that she

wrongfully sold the husband’s separate property. The trial

judge made no specific rulings on the issues. The evidence,

however, does not prove the occurrence of dissipation or that

the wife sold husband’s separate property.

We have held that "[d]issipation occurs ‘where one spouse

uses marital property for his own benefit and for a purpose

unrelated to the marriage at a time when the marriage is

undergoing an irreconcilable breakdown.’" Clements v.
Clements,

10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990). As we noted

in Clements, "a majority of courts have held that the use
of

funds for living expenses while the parties are separated does

not constitute dissipation." Id. at 587, 397 S.E.2d at 261.

Evidence proved that between the date of separation and the

first support hearing in May 2000, the wife sold a number of

items to support herself and the children because she was not

receiving support from the husband. The wife sold her

"engagement ring and quite a bit of jewelry," her
wedding ring,

a Japanese block art, five horses, and a horse trailer. The

wife borrowed $55,000 from her insurance policy and allowed

timbering on her farm land in exchange for $3,500. The wife

produced a ledger to show that most proceeds from the sales were

spent on ordinary household expenses.

Although the husband testified about expenses he paid, the

record contains no contrary evidence to disprove that the wife

used these funds for support. Viewed in the light most

favorable to the wife, who prevailed at trial, the evidence

tended to prove the funds were used for living expenses and does

not prove the wife sold marital property for her "own
benefit

and for a purpose unrelated to the marriage." Clements, 10

Va. App. at 586, 397 S.E.2d at 261.

The final order does not specifically address whether the

wife sold husband’s separate property; however, the final order

distributed the marital property as if the allegation of selling

separate property was found untrue. Although evidence proved

the "Japanese woodblock prints" were purchased prior
to the

couple’s date of marriage, viewed in the light most favorable to

the wife, no evidence proved the property belonged solely to the

husband. The person who sold the prints testified that both

husband and wife were present when the item was purchased.

V. Valuation Date

The husband contends the trial judge used an improper date

to value the properties. He argues the trial judge erred by not

accepting December 31, 1999, a date that is close to the

separation date, as an alternative valuation date.

In pertinent part, Code ? 20-107.3(A) provides as follows:

The court shall determine the value of any

such property as of the date of the

evidentiary hearing on the evaluation issue.

Upon motion of either party made no less

then twenty-one days before the evidentiary

hearing the court may, for good cause shown,

in order to attain the ends of justice,

order that a different valuation date be

used.

(Emphasis added).

December 31, 2000, the date the trial judge accepted as the

valuation date, was closer to the evidentiary hearing dates,

which were June 22, 2001, July 30, 2001, and November 5, 2001.

Because the record fails to establish as a matter of law a good

cause to order a different valuation date, we hold the trial

judge properly followed the statute and did not err in choosing

a date that is closer to the date of the hearing.

Although "[o]ne recognized justification for altering the

evaluation date is a showing of dissipation of marital
assets,"

Smith v. Smith, 18 Va. App. 427, 430, 444 S.E.2d 269, 272

(1994), we have already noted that the evidence failed to prove

the wife dissipated marital assets. Hence, the trial judge did

not err in selecting a date closer to the evidentiary hearings

as the appropriate time to determine value of the businesses.

See Kaufman v. Kaufman, 7 Va. App. 488, 499, 375 S.E.2d 374, 380

(1988).

VI. Inclusion of Shareholder Loans as Marital Debt

During the marriage, both husband and wife attempted to

"maximize cash flow" by taking shareholder loans from
their

corporations in lieu of drawing salary. The husband contends

the trial judge erred in failing to consider certain shareholder

loans as marital debt when he included them as assets in

valuating the corporations. He argues the trial judge should

have "either included [the loans] as both corporate assets
and

corresponding personal debts or excluded [the loans] as both

corporate assets and personal debts."

At a hearing, the husband’s attorney argued the wife should

be responsible for repaying 40% of the shareholder loans because

those loans were included in the valuations of the corporations,

of which she received a 40% interest. The wife’s attorney

argued that by awarding the wife only 40% of the value of the

companies, the trial judge did take into account the shareholder

loans. After hearing the arguments, the judge ruled: "the

equitable distribution of the property is made extremely

difficult because of the divergent valuations and the lack of

cooperation by anyone in narrowing the issues. As a result I

made my decision based on what I thought the property interest

of each party was." In addition, the trial judge ruled:
"I

accept the [wife]‘s solution with regard to the debt."

The judge clearly stated he based his decision on what he

found to be the property interest of each party. By
"accepting

the [wife]‘s solution with regard to the debt," we conclude
the

trial judge awarded the wife only 40% rather than a larger share

of the companies as a means of considering her share of the

debt. We find no error.

VII. Spousal Support

A. Adultery

"One who alleges adultery has the burden of proving it by

clear and convincing evidence." Seemann v. Seemann, 233 Va.

290, 293, 355 S.E.2d 884, 886 (1987) (citation omitted).

Although this evidence need not be unequivocal, it must be such

that "’will produce in the mind of the trier of facts a
firm

belief or conviction as to the allegations sought to be

established.’" Id. at 293 n.1, 355 S.E.2d at 886 n.1
(citation

omitted). Thus, the Supreme Court has held that "[s]trongly

suspicious circumstances are inadequate" and that
"[c]are and

circumspection should accompany consideration of the
evidence."

Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975)

(citation omitted). "While a court’s judgment cannot be
based

upon speculation, conjecture, surmise, or suspicion, adultery

does not have to be proven beyond all doubt." Coe v. Coe,
225

Va. 616, 622, 303 S.E.2d 923, 927 (1983). The husband contends

the wife should not be awarded spousal support because the

evidence was sufficient to prove she committed adultery.

The deposition testimony established that the wife had an

adulterous relationship in 1996 before she and the husband moved

to Virginia. The husband agreed to condone the wife’s adultery

based on several conditions, including the wife’s promise to be

faithful. The wife admitted that since her adultery in 1996,

she engaged in kissing incidents with a deputy sheriff and on

some days paged him twenty times per day. Although the wife

denied a romantic interest in the deputy sheriff and described

their relationship as "very good friends," she
admitted that she

and the deputy sheriff had multiple "heavy duty make-out

sessions" in which they "fondled and made out."
The evidence

further proved the wife urged the deputy sheriff to leave the

state "before you can be deposed." In that same
letter, she

implored, "[i]f you ever cared for me at all, especially
when

you were in bed with me and promising to love me forever no

matter what."

The deputy sheriff confirmed those events and added that

the wife hired him at her farm and gave him gifts from time to

time. He testified, however, that he and the wife engaged in

sexual intercourse prior to the date she separated from the

husband and that the wife had informed him of her previous

adulterous affair.

The trial judge ruled that there was "not . . . sufficient

evidence of an adulterous affair which would revive the adultery

committed by [the wife] in 1995-96 and later condoned by [the

husband]." He also ruled that "[w]hat ever occurred at
the farm

[with the deputy sheriff] did not lead to the breakup of the

marriage." Notwithstanding the weighty burden of proof to

establish adultery, the trial judge’s holding is contrary to the

deposition evidence. The evidence proved the relationship

between the wife and the deputy sheriff was more than
"strongly

suspicious" and is capable of leading the most
"guarded"

reasonable person to the conclusion of adultery. Haskins v.

Haskins, 188 Va. 525, 531, 50 S.E.2d 437, 439 (1948).

B. Manifest Injustice and Imputation of Income

Although we agree with the husband that the trial judge

erred in finding the evidence insufficient to prove adultery,

the trial judge made an alternative finding that it would be

"manifestly unjust" to deny the wife spousal support.
He ruled

that the wife’s conduct did not lead to the breakup of the

marriage and that "there is great disparity between the
incomes

of the parties which would make it grossly inequitable and

manifestly unjust."

Code ? 20-107.1(B) provides that "no permanent maintenance

and support shall be awarded from a spouse if there exists in

such spouse’s favor a ground of divorce under the provisions of

subdivision (1) of ? 20-91," which includes adultery. But
the

statute’s bar is subject to the following exception:

However, the court may make such an award

notwithstanding the existence of such ground

if the court determines from clear and

convincing evidence, that a denial of

support and maintenance would constitute a

manifest injustice, based upon the

respective degrees of fault during the

marriage and the relative economic

circumstances of the parties.

Code ? 20-10.1(B). Thus, when a trial judge finds manifest

injustice and awards support based on "respective degrees
of

fault during the marriage and the relative economic

circumstances of the parties," we will uphold the award if
the

record supports the finding by clear and convincing evidence.

Congdon v. Congdon, 40 Va. App. 255, 266, 578 S.E.2d 833, 838

(2003).

On the "respective degrees of fault" factor, evidence

proved that both parties contributed to the breakup. The trial

judge’s belief that both parties were at fault is evident in the

judge’s refusal to grant either party a divorce based on fault

grounds. Even though the trial judge did not enumerate the

various aspects of fault attributed to the parties, the record

is replete with evidence of these events. The wife committed

adultery; the husband used cocaine on numerous occasions during

the marriage and induced the wife to join him. The husband also

was arrested for assaulting the wife with a knife during events

that led to their separation. It is obvious from the record

that the judge considered the respective degrees of fault when

he ruled that "[w]hat ever occurred at the farm [between
the

wife and the deputy sheriff] did not lead to the breakup of the

marriage."

Evidence likewise proved the trial judge weighed the

relative economic circumstances of the parties when awarding

spousal support. The trial judge determined the wife’s maximum

salary to be $48,000. The trial judge also considered the

husband’s economic circumstances and determined his annual

income to be $300,000. Although the husband argues his annual

income is lower then that figure, his income history reveals

that he earned $258,963 in 1996, $300,177 in 1997, and $325,000

in 1998 and, thus, supports the trial judge’s determination.

"’Where the record contains credible evidence in support of

the finding made by that court, we may not retry the facts or

substitute our view of the facts for those of the trial
court.’"

Calvin v. Calvin, 31 Va. App. 181, 183, 522 S.E.2d 376, 377

(1999) (citation omitted). The record supports the trial

judge’s findings of clear and convincing evidence. We hold,

therefore, that the trial judge did not err in finding, by clear

and convincing evidence, that denying spousal support would

constitute a manifest injustice based upon the respective

degrees of fault attributable to the parties as well as their

disparate financial circumstances.

The trial judge ordered the husband to pay the wife $4,000

per month as spousal support. "’Whether and how much
spousal

support will be awarded is a matter of discretion for the trial

court.’" Northcutt v. Northcutt, 39 Va. App. 192, 196, 571

S.E.2d 912, 914 (2002) (quoting Barker v. Barker, 27 Va. App.

519, 527, 500 S.E.2d 240, 244 (1998)). The evidence proved the

wife accepted employment as a nurse at an annual salary of

$48,000. In view of the evidence concerning the operation of

the various corporate entities the parties operated and the

economic risk to which the wife may have been exposed if she

operated her own business, the trial judge did not err in

refusing to impute income to the wife. The record supports the

view that in "look[ing] to current circumstances and what
the

circumstance will be ‘within the immediate or reasonably

foreseeable future,’ not to what may happen in the future,"

Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675

(1990), the wife was earning at her maximum capability.

"’In fixing the amount of the spousal support award, . . .

the court’s ruling will not be disturbed on appeal unless there

has been a clear abuse of discretion. We will reverse the trial

court only when its decision is plainly wrong or without

evidence to support it.’" Moreno, 24 Va. App. at 194-95,
480

S.E.2d at 794 (quoting Gamble v. Gamble, 14 Va. App. 558, 574,

421 S.E.2d 635, 644 (1992)). We hold that the trial judge did

not abuse his broad discretion in determining support based upon

the parties’ income and the evidence in the record.

VIII. Tax Liability

"Under Code ? 20-107.3(C), the trial court had the

‘authority to apportion and order the payment of the debts of

the parties.’" Alphin v. Alphin, 15 Va. App. 395,
403, 424

S.E.2d 572, 577 (1992) (citation omitted). "Absent an abuse
of

discretion, ‘the trial judge’s determination will not be

reversed on appeal.’" Howell v. Howell, 31 Va. App.
332, 350,

523 S.E.2d 514, 523 (2000) (citation omitted).

Among the enumerated factors that a trial judge may

consider when apportioning marital debt are: contributions of

each party, monetary and nonmonetary, to the well-being of the

family; contributions of each party, monetary and nonmonetary,

in the acquisition and care and maintenance of such marital

property; the circumstances and factors that contributed to the

dissolution of the marriage; how and when specific items of such

marital property were acquired; and such other factors as the

court deems necessary or appropriate to consider in order to

arrive at a fair and equitable monetary award. Code

? 20-107.3(E). Many of these factors are applicable to this

case.

To prevent an inequity, the trial judge considered the

relevant factors of Code ? 20-107.3(E) and apportioned the tax

liability in direct proportion to the parties’ taxable income

for the years involved. The ruling was both logical and within

the sound discretion of the trial judge.

IX. Attorney’s and Expert’s Fees

The husband contends the trial judge erred in granting

wife’s request for attorney’s fees and expert’s fees. As we

have consistently held, however, "[a]n award of attorney’s
fees

is a matter submitted to the trial court’s sound discretion and

is reviewable on appeal only for an abuse of discretion. The

key to a proper award of counsel fees is reasonableness under

all the circumstances." Brooks v. Brooks, 27 Va. App. 314,
319,

498 S.E.2d 461, 463-64 (1998) (citations omitted). The record

does not establish that the judge abused his discretion.

Therefore, we affirm his order granting attorney’s and expert’s

fees to the wife.

X.

For these reasons, we affirm the judgment.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.

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