Virginia Lawyers Weekly//April 20, 2023
Virginia Lawyers Weekly//April 20, 2023//
Where the circuit court awarded wife $10,000 per month in spousal support, the court’s decision not to impute income to wife is supported by the record.
“At the outset, husband argues that the trial court should have imputed at least $65,000 of annual investment income to wife because his financial planning expert testified that wife could receive a seven percent annual return on her investments and withdraw ‘$65,000 to $91,000 per year’ without reducing the initial balance of her investment portfolio.
“‘The decision to impute income is within the sound discretion of the trial court and its refusal to impute income will not be reversed unless plainly wrong or unsupported by the evidence.’ …
“As the party seeking to have income imputed to wife, husband was ‘required to present evidence sufficient to enable the trial judge reasonably to project what amount [of income] could be anticipated.’ …
“In this case, husband’s financial planning expert qualified the testimony husband relies on in support of his appeal. The expert explained that if wife did not receive an inheritance in the future, she could only realize a five percent annual return on her investment, two percent of which would be ‘income.’
“He further explained that the remaining three percent of wife’s return would be comprised of asset appreciation and require her to liquidate part of her original investment.
“On cross-examination, husband’s expert admitted he did not know wife’s risk tolerance for investing and that her rate of return would be lower if she were risk adverse. Indeed, if wife were ‘very risk adverse,’ the expert conceded that he had “no ability to assume what the rate of return would be. …
In light of the assumptions made by husband’s expert and the trial court’s discretion in weighing his testimony, the trial court was not plainly wrong or without evidence to impute less than $65,000 in annual investment income to wife.
“Husband’s expert witness even conceded that wife’s annual return on investment could be lower than five percent given the assumptions he made about wife’s assets and risk tolerance without having concrete knowledge of either.
“Accordingly, the trial court did not err by awarding spousal support based on its decision to impute $20,000 annual investment income to wife.”
“[H]usband argues that the trial court erred in awarding wife spousal support at all because she failed to prove her claimed monthly expenses.
“In support of his argument, husband points out that the trial court itself found some of the expenses listed in wife’s income and expense statement were ‘inflated, unreasonable, or inaccurate.’
“Given the court’s factual findings and husband’s claim that additional expenses were ‘exposed as being entirely unreliable on cross examination,’ husband argues that the trial court should have ‘totally rejected’ wife’s income and expense statement.
“In essence, husband claims the trial court erred by ‘accept[ing] [wife’s] unreliable evidence.’ It was in the province of the trial court as the trier of fact, however, to determine what weight to afford the evidence wife presented. …
“Husband did not object to wife’s income and expense statement nor her testimony in support of her claimed expenses therein. Moreover, husband conceded that wife was ‘entitled to live at the same standard of living’ as during their marriage, which he estimated as costing $22,796 per month.
“Accordingly, wife’s claimed expenses were supported by evidence and the trial court had discretion to determine what weight, if any, to afford them.”
“Husband asserts that ‘there was nothing stated by the trial [c]ourt to explain why it awarded wife $10,000 in spousal support’ because it merely recited the statutory factors and ‘briefly salute[d] [the] evidence it heard.’ …
“In this case, the trial court’s thirteen-page letter opinion addressed each of the Code § 20-107.1(E) factors for awarding spousal support and explained its factual findings as to the evidence in relation to those factors.
“In doing so, the court considered the parties’ respective incomes, assets, and expenses, as well as their standard of living and the circumstances regarding the dissolution of their marriage.
“Only after ‘[h]aving considered the [statutory] factors, the wife’s needs, the standard of living during the marriage and the husband’s ability to pay,’ did the trial court award wife spousal support.
“Although husband asserts he cannot discern how the trial court calculated the spousal support award, ‘[t]he General Assembly did not intend the statutory decision making factors to devolve into an algorithm and thereby project a pretense of certitude.’ …
“This Court finds that the trial court’s written findings in support of its spousal support award complied with the requirements of Code § 20-107.1(F).
“Moreover, although the trial court acknowledged that the parties had the ability to support themselves, the record reflects that husband earned more than wife, and he even conceded that wife was entitled to maintain the same standard of living as during the marriage. Husband does not dispute his ability to pay spousal support.
“After hearing the evidence and arguments and considering all the statutory factors, the trial court found that ‘[t]he main issue for contemplation [wa]s whether the [w]ife [wa]s entitled to an award of spousal support to afford her the same standard of living she enjoyed during the marriage,’ which it described as an ‘affluent lifestyle.’
“Because the trial court’s written findings demonstrate that it gave due consideration to the factors enumerated in Code § 20-107.1(E), it did not abuse its discretion in awarding wife spousal support in the amount of $10,000 per month.”
Grounds for divorce
“The trial court granted wife a divorce based on the parties living separate and apart for more than one year. Husband asserts the trial court erred by not granting him a divorce based on wife’s alleged desertion. …
“Although husband requested a divorce based on desertion, both parties also requested a divorce on the basis that they had been separated for more than one year.
“Therefore, even if the trial court had concluded that wife deserted the marriage, it could nevertheless have chosen to grant husband a divorce on his requested no-fault grounds.
“As husband even admits in his briefs, a finding of desertion would not require the trial court to grant a divorce on those grounds when the evidence was sufficient to prove the alternate no-fault grounds.”
Carr v. Carr, Record No. 0607-22-2, April 11, 2023. CAV (unpublished opinion) (Huff). From the Circuit Court of Henrico County (Herman). Susan C. Armstrong for appellant. Richard L. Locke for appellee. VLW 023-7-140, 15 pp.