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DEANE v. DEANE


DEANE v. DEANE

(unpublished)


JULY 20, 1999

Record No. 2347-98-2

RODNEY EMIL DEANE

v.

REGENIA LYNN DEANE

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Paul M. Peatross, Jr., Judge

Present: Judges Coleman, Elder and Bumgardner

Argued at Salem, Virginia

MEMORANDUM OPINION* BY JUDGE SAM W.
COLEMAN III

William C. Scott IV (Ronald R. Tweel; Michie,
Hamlett, Lowry, Rasmussen & Tweel, on briefs), for appellant.

John K. Taggart, III (Patricia D. McGraw;
Tremblay & Smith, LLP, on brief), for appellee.


Following the entry of a final divorce decree
on May 19, 1997, Rodney Emil Deane (husband) and Regenia Lynn
Deane (wife), filed numerous post-decree motions requesting that
the trial court correct errors on the face of the record, clarify
its rulings, and modify child and spousal support. As a result,
the trial court entered a decree on September 16, 1998, modifying
child and spousal support nunc pro tunc. The
modification created instant support arrearages. That decree also
found that no agreement existed between the parties to divide
certain marital assets and further found that it no longer had
jurisdiction to equitably divide those assets since the divorce
decree had became final for more than twenty-one days.

Husband appeals the September 16, 1998 decree
contending that the trial court lacked jurisdiction to modify
support and, alternatively, that it erred in calculating the
appropriate modification and resulting arrearages. Wife, who also
appeals, contends that the trial court erred by finding that the
parties had not agreed on an equitable division of certain
marital assets. Alternatively, she asserts that the trial court
ordered that all marital assets be equally divided and that
ruling controls the assets in question.

We find that the trial court did not err in
holding that the final divorce decree did not equitably divide
certain marital assets and that the parties did not enter into an
enforceable equitable distribution agreement. As to the child and
spousal support issues, we find that the trial court had
jurisdiction to modify support prospectively from the date the
motion to modify was filed, but did not have authority to modify
support retroactively. Finally, we find that the trial court
erroneously calculated the adjustment to the spousal support
award. Accordingly, we affirm the trial court’s rulings in part,
but reverse the spousal support ruling and remand the case for
the trial court to correct the modification of the spousal
support award.

BACKGROUND

Wife filed a bill of complaint for divorce.
Following ore tenus hearings, the trial court
entered a final divorce decree on May 19, 1997, which neither
party appealed. The final decree awarded wife $698.28 per month
for child support and $924.06 per month for spousal support.
Also, the decree, which equitably distributed some of the
parties’ marital property and debt, did not reserve the right to
distribute the remaining marital property as authorized by Code
? 20-107.3(A). See Christensen v. Christensen,
26 Va. App. 651, 654-55, 496 S.E.2d 132, 133 (1998).

On September 24, 1997, wife filed a
"Motion to Correct Errors" apparent on the face of the
record. The motion asserted that the final decree had failed to
include a provision setting forth the trial court’s spousal
support award and that the trial court failed to include a
provision dividing certain marital property, namely Mercury
Services, Express Car Wash Company, and Express Charlottesville
(hereinafter, the "undivided assets").

After hearing evidence on wife’s "Motion
to Correct Errors," the trial court ruled that the final
decree contained a ministerial error in that it omitted the
court’s prior ruling awarding spousal support. Additionally,
after reviewing the transcripts, the court ruled that the parties
had reached no agreement regarding the undivided marital assets,
and therefore, the court had not erred in the final decree by
omitting a provision enforcing the purported agreement or by
refusing to divide those assets. Thus, the trial court entered a
decree on October 24, 1997, incorporating these rulings. Neither
party appealed that decree.

On December 2, 1997, wife filed a "Motion
for Clarification" in which she alleged that in the October
24, 1997 decree the trial court failed to address the issue of
whether the respondent continues to be obligated under the May
19, 1997, order to divide income with the Complainant as provided
therein
[1] and if the court so finds, whether he is in contempt of
court for failure to either pay her any funds from these assets
for the last year or to provide her any accounting of the same.

Wife asserted in her motion to clarify
"[t]hat in computing child and spousal support, the Court
added $3,658.00 of unearned income to Complainant’s salary
from those [undivided] assets, however, Complainant has never
receive[d] any income" from those assets after entry of the
final decree. In other words, the court had based its support
award upon the fact that at the time of the award wife was
receiving one-half of the income from the undivided marital
assets, which husband stopped paying her after entry of the final
divorce decree. Wife requested that the trial court either order
husband to pay one-half the accrued income from the undivided
assets or to modify the support award nunc pro tunc
to reflect that she had not received the income but husband had
retained it.

On May 26, 1998, the trial court ruled on the
"Motion for Clarification" in a letter opinion which
stated that as to "equitable distribution of the property of
the parties, the Court finds the parties never did agree to a
division of [the undivided assets]" and "[t]here has
been no division of those assets by the Court." As to
spousal support, the court noted that it had calculated the
wife’s support award based upon the fact that the parties were
equally dividing the income from the undivided assets and the
assumption that the equal division would continue.

On July 16, 1998, the trial court conducted a
hearing concerning the undivided marital assets and whether to
adjust the child and spousal support awards in light of the fact
the wife did not receive the asset income and that the husband
had received this additional income.

Based upon the parties’ revised income
statements, the trial court ruled that both parties agreed that
the wife had not received a substantial portion of the asset
income upon which both support awards had been based. The court
found that this constituted a material change in circumstances
justifying modification of the support obligations as authorized
by Code ?? 20-108 and 20-109(A). Based on the revised
income statements, the trial court recalculated the parties’
incomes and ordered an increase in child support effective nunc
pro tunc to November 1, 1996, which was the
effective date of the original support award. The modification
resulted in the husband owing wife child support arrearage.

As to spousal support, the trial court had
determined in its May 6, 1997 letter opinion that wife’s
after-tax child and spousal support need totaled $1,432. Because
at the time of the July 16, 1998 hearing wife was earning $298.33
per month less than the trial court had contemplated in it prior
award, the trial court added $298.33 to the previous combined
awards of $1,432 resulting in a new combined income need of
$1,730.33. The court then subtracted the newly calculated child
support figure ($728.98) from the newly calculated combined need
resulting in a net spousal support need of $1,001.35. Then,
adjusting for income taxes at the rate previously considered, the
trial court adjusted the spousal support award nunc pro
tunc from $1,001.35 to $1,253.69. The court modified the
award effective to November 1, 1996, the effective date of
the original support award. As a result of the modification,
husband owed wife a total child and spousal support arrearage of
$7,662.19.
[2]

As to the undivided assets, which the court had
previously found not to be affected by an agreement between the
parties, the court ruled that the properties were owned solely by
husband. The court further held that it had no authority to
divide these assets or to make a monetary award pursuant to Code
? 20-107.3(C) or (K). Both parties objected to the court’s
rulings and decree. Husband claims that the trial court’s rulings
and decree as to child and spousal support were barred by Rule
1:1 and that the court erred in calculating the support
modification. Wife claims that the trial court erred by refusing
to honor the parties’ agreement to equally divide the undivided
assets or to equally divide those assets in accordance with its
ruling.

ANALYSIS

Jurisdiction to Modify
Support

A trial court has continuing jurisdiction to
modify child and spousal support upon finding that a material
change in circumstances warrants modification. See Code ?
20-108; ? 20-109; Furr v. Furr, 13 Va. App. 479,
481, 413 S.E.2d 72, 73 (1992); Watkinson v. Henley, 13 Va.
App. 151, 156, 409 S.E.2d 470, 472-73 (1991).

Husband contends that because neither party
moved for modification, the issue was not properly before the
court. We disagree and find that the trial court had authority
and jurisdiction to modify child and spousal support in its
September 16, 1998 decree.

In regard to child support, Code ? 20-108
specifically states that the court may modify a support award on
its own motion. Notwithstanding that provision, we find that
wife’s "Motion for Clarification" placed the issues of
child and spousal support modification before the court. In that
motion, wife requested that the trial court order husband to pay
wife one-half the income from the undivided assets "or in
the alternative to recompute child support and spousal support nunc
pro tunc to May 19, 1997, to accurately reflect
that the only income she receives is from her salary." We
find this motion, filed December 2, 1997, constitutes a motion to
modify child and spousal support on behalf of wife.
[3]

Authority to Modify
Retroactively

Although the trial court had jurisdiction to
modify spousal support, the trial court erred by ordering the
modification effective retroactively to November 1, 1996. A trial
court only has authority to modify child and spousal support
prospectively from the date of filing of the petition for
modification. See Code ? 20-108 ("No [child] support order may be retroactively modified."); Code
? 20-109 (granting the trial court authority, upon petition
of either party, to modify spousal support "that may thereafter
accrue
" (emphasis added)); Reid v. Reid, 245 Va.
409, 414, 429 S.E.2d 208, 211 (1993). The "Motion for
Clarification" was filed December 2, 1997; the trial court
could only modify the support awards effective as of that date.

Calculating the Modifications

Additionally, we find that the trial court
erred in calculating the correct modification of spousal support.
A spouse’s entitlement to a spousal support award and the
amount of that award are committed to the sound discretion of the
judge. See Stubblebine v. Stubblebine, 22 Va. App.
703, 707, 473 S.E.2d 72, 74 (1996). The only changes of
circumstances were that wife’s income had decreased by
$298.33 and husband’s income had increased by $298.33.

First, using the statutory child support
guidelines and the parents’ modified income figures, the trial
court modified husband’s child support obligation from $694.28 to
$728.98 per month. Next, to calculate the modified spousal
support award, the trial court determined that it would award
wife the same after-tax child and spousal support that it had
previously awarded, which was $1,432.
[4] Because
wife was in fact receiving $298.33 less income than the trial
court had contemplated when it determined her combined after-tax
support need, the trial court added $298.33 to the combined need
figure resulting in a new combined need of $1,730.33 ($298.33 +
$1,432.00 = $1,730.33). The court subtracted the newly calculated
child support ($728.98) from the newly calculated combined need
resulting in a figure of $1,001.35 ($1,730.33 – $728.98 =
$1,001.35). Then, adjusting for income taxes at the 20.13% rate,
the trial court adjusted the spousal support from $1,001.35 to
$1,253.69.

We find that the trial court intended to modify
the support awards in a manner that would provide wife the same
net monthly income that the trial judge had contemplated in the
May 6, 1997 award. However, based on our review of the
calculation, it appears that the modification resulted in a net
combined support award greater than the net award contemplated in
the previous decree — the error resulting from the fact that the
trial court compensated for wife’s $298.33 decrease in taxable
income by awarding her a $298.33 increase in after-tax income.

According to our calculation, wife’s
monthly income as contemplated by the May 6, 1997 opinion letter
would have been as follows: her taxable income exclusive of
support was $2,957.50; her spousal support was $924; thus, her
taxable income was $3,881.50 ($2,957.50 + $924.00 = $3,881.50).
Applying the 20.13% tax, her net after-tax monthly income and
support was $3,100.15. The trial court awarded child support at
$694.28. Thus, wife’s total after-tax monthly income and support
was $3,794.15.

Under the September 16, 1998 modified award,
the trial court determined that wife’s income exclusive of
support was $2,659.17. The trial court awarded spousal support of
$1,253.69. Thus, wife’s monthly taxable income was $3,912.86
($2,659.17 + $1,253.69 = $3,912.86). Applying the 20.13% tax
rate, her after-tax income, exclusive of child support, would be
$3,125.20. The trial court awarded child support of $728.98.
Therefore, her total after-tax monthly income, as modified, would
be $3,854.18. Accordingly, the September 16, 1998 decree awarded
wife $60.03 more net income per month than the trial court had
contemplated in its May 6, 1997 award
($3,854.18 - $3,794.15 = $60.06).
[5]

The Undivided Assets

Finally, we hold that the trial court did not
err in its September 16, 1998 decree by refusing (1) to divide
the undivided marital assets, (2) to order a monetary award for
wife’s interest in the undivided marital assets, or (3) to
order husband to pay her one-half the income from the undivided
assets. On May 19, 1997, the trial court entered a final decree
that addressed all matters of equitable distribution. In that
decree the trial court did not divide the undivided assets, did
not incorporate or recognize any agreement between the parties
which divided those assets, did not award a division of the
income from those assets, did not order a monetary award to wife
for her share of the value in the undivided assets, and did not
retain jurisdiction over matters of equitable distribution.
Neither party appealed the decree and it became final twenty-one
days after its entry. See Rule 1:1.

Accordingly, on December 2, 1997, when wife
requested that the trial court revisit the division of income
from the undivided assets, the trial court had no jurisdiction to
do so. Therefore, the trial court did not err by refusing to
revisit the issues in the September 16, 1998 decree which the
parties presently appeal.

CONCLUSION

In summary, we hold that the trial court had
authority to modify the child and spousal support awards
prospectively and retroactively until December 2, 1997.
Therefore, on remand the arrearage resulting from the
modification shall be determined as of that date. Additionally,
we find that the trial court erred by compensating for a $298.33
reduction in taxable income by creating a $298.33 increase in
after-tax income. Thus, on remand the trial court shall modify
its spousal support award in accordance with the conclusions of
this opinion. We hold that the trial court did not err in
refusing to equitably distribute the undivided assets in the
September 16, 1998 decree. Finally, we find both parties had
reasonable grounds for this appeal and, therefore, we deny their
respective requests for awards of attorneys’ fees. See Gayler
v. Gayler
, 20 Va. App. 83, 87, 455 S.E.2d 278, 280 (1995).
Accordingly, we affirm in part but reverse and remand the spousal
support award for entry of a decree consistent with this opinion.

Affirmed, in part, reversed and remanded, in
part.

 

*Pursuant to Code ? 17.1-413, recodifying
Code ? 17-116.010, this opinion is not designated for
publication.

FOOTNOTES:

[1] The May 19, 1997
decree incorporated the trial judge’s May 6, 1997 letter
opinion in which the court made a finding as to the parties’
respective incomes for the purpose of calculating support. In the
opinion letter, the trial court allocated half the income to each
spouse from each of the "undivided assets."

[2] Ordinarily, to
calculate child support a court must include spousal support in
the gross income of the receiving spouse and deduct spousal
support from the gross income of the paying spouse. See Frazer
v. Frazer
, 23 Va. App. 358, 381, 477 S.E.2d 290, 301 (1996).
Accordingly, a trial court should first calculate spousal support
and then child support. Here, however, husband explicitly waived
his right to have the trial court consider spousal support in
calculating child support. The court began by establishing wife’s
after-tax total income need and thereafter subtracted from that
figure child support to arrive at her spousal support need.
Unconventional though this method was, the husband expressly
consented to it.

[3] We reject
wife’s assertion that the trial court had authority to
"correct" the decreed support awards pursuant to Code
? 8.01-428(B). The original support awards were not errors
apparent on the face of the record that could be corrected
without further litigation. See Cutshaw v. Cutshaw,
220 Va. 638, 641, 261 S.E.2d 52, 53 (1979) (stating that the
trial court has the authority to correct the record "when
the record clearly supports such correction"). The trial
court based the original support awards on the evidence of the
parties’ income. The trial court based the modification on
new evidence of income.

[4] The trial court
had previously ordered $694.28 of child support and $924 of
spousal support, which resulted in the total support figure of
$1,432 (after applying a 20.13% tax to spousal support). In the
May 6, 1997 letter opinion, the trial court refers to a tax rate
that wife agreed to in an April 18, 1997 letter that is not in
the record. Although the court did not articulate that rate, it
appears to have applied a 20.13% tax. In the September 16, 1998
decree, the trial court again calculated the tax at the same
20.13% rate. We, therefore, accept that rate in our review and
calculations.

[5] In order to
modify wife’s spousal support so that she would receive the
monthly income contemplated under the May 6, 1997 award, the
trial judge should have awarded wife $1,178.53 in spousal
support. That figure is calculated as follows: the target
after-tax monthly income was $3,794.15. The court awarded the
modified child support in the amount of $728.98. Thus, wife
needed an additional $3,065.17 of after-tax dollars in order to
receive $3,794.15 ($3,794.15 – $728.98 = $3,065.17). Wife’s
modified income exclusive of all support and adjusted for tax was
$2,123.88 ($2,659.17 – [.2013 x $2,659.17] = $2,123.88).
Thus, in order to attain the contemplated total net monthly
income, wife required a spousal support award that would increase
her net income by $941.29 ($3,065.17 – $2,123.88 = $941.29).
Adjusted for taxes, a spousal support award of $1,178.53 yields
the requisite after-tax amount of $941.29 ($1,178.53 –
[.2013 x $1,178.53] = $941.29). Thus, in order to adjust for the
wife’s $298.33 monthly decrease in taxable income, the trial
court would have needed to modify the spousal support award from
$924 to $1,178.53 instead of $1,253.69.

 

 

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