Virginia Lawyers Weekly//May 11, 2023
Virginia Lawyers Weekly//May 11, 2023//
Where the trial court awarded wife spousal support and ordered husband to maintain her as a beneficiary of two life insurance policies, there was no error.
“Husband challenges the circuit court’s spousal support award of $3,505 per month to wife. …
“The circuit court found that wife had ‘no income.’ The circuit court further found that although wife’s racing business ‘brought in $42,067.50 in registration fees in 2021,’ her ‘unrefuted testimony’ was that the expenses associated with the race were ‘approximately equal’ to the income received from the registration fees.
“Relying on language from Code § 20-108.2(C), defining gross income and the ‘deduction of reasonable business expenses for persons with income from self-employment,’ husband argues that the circuit court failed to consider wife’s ‘actual gross earnings’ from her racing business.
“Code § 20-108.2, however, governs child support, not spousal support. … The statutory factors for spousal support do not include a definition of gross income; instead, one factor is ‘[t]he obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, or whatever nature.’ …
“[T]he record supports the circuit court’s finding that wife earned no income from the racing business.”
Husband argues that wife “failed to prove that she had ;adequately; pursued employment. Husband relies on the vocational expert’s opinion that based on her skills and work history, wife should have been able to obtain a job … earning between $36,000 and $50,000 per year. …
“The circuit court considered the vocational expert’s testimony, as well as wife’s testimony that she had applied for seventy-one jobs. It rejected the expert’s opinion that the ‘seventy-one applications over a six-month period [was] not very many.”
The trial court was free to accept or reject the expert’s testimony.
“[T]he circuit court found that wife had ‘been making a good-faith effort to find employment compatible with her skills but ha[d] not yet succeeded.’
“Although wife had developed ‘event planning and business management skills through her dog boarding and ultramarathon businesses,’ the circuit court also considered that wife had ‘only a high school diploma and ha[d] no recent work experience.’
“The record supports the circuit court’s finding that wife was making a ‘good-faith effort’ to secure employment, as well as its ruling not to impute income to her.”
The trial court assigned responsibility for a car loan to husband although the parties stipulated that wife would pay the loan.
“[T]he circuit court acknowledged that there was a scrivener’s error in its letter opinion and confirmed the parties’ stipulation. The circuit court also acknowledged that it could not change the parties’ agreement. …
“[T]he circuit court had intended for the spousal support award to include the amount of the car loan. It suggested increasing husband’s support obligation by $500 until the loan was paid in full, and then deducting $500 once the loan was paid.
“Husband, however, took the position that ‘the cleanest way’ to accomplish the circuit court’s intent was to make ‘him be responsible for the car.’ Wife agreed to that procedure.
“Husband now argues, however, that the circuit court did not follow the parties’ stipulation that wife would be responsible for the car loan. … [T]here is no evidence that he was ‘coerced’ into paying the car loan.
“In fact, he suggested that the best approach was to ‘just have him be responsible for the car.’ Having suggested, and certainly acquiesced to, this resolution, husband cannot now challenge the ruling.”
Date of separation
“Husband argues that the circuit court erred when it agreed with wife that the parties’ date of separation was July 27, 2020, and not September 22, 2019.
“He asserts that it is ‘not possible for a couple to “cohabit” if parties have separated, continue thereafter to live in separate houses, [and] never resume living in the same house.’
“Husband emphasizes that wife changed the door locks and the garage code at the former marital residence. Husband contends that wife ‘cannot say that the parties reconciled and bar his return to the home.’
“A court may grant a divorce ‘[o]n the application of either party if and when they have lived separate and apart without any cohabitation and without interruption for one year.’” Wife filed her divorce complaint in September 2020.
“The circuit court found that the parties did not ‘fully and permanently’ separate until husband sent wife the email on July 27, 2020, stating that the marriage was no longer in his best interest and asking to separate their finances.”
The record supports these findings.
“Husband argues that the circuit court erred by requiring him to maintain two life insurance policies and name the wife as a beneficiary of each policy. …
“Husband offered to maintain wife as the beneficiary of his work life insurance policy but sought to cancel the Prudential life insurance policy.
“He asserts that the purpose of the Prudential life insurance policy was to cover the mortgages on homes that the parties no longer owned; the policy was not necessary to protect wife against the loss of spousal support. …
“Code § 20-107.1:1(A) authorizes a trial court ‘to order that a divorcing spouse designate the former spouse as a beneficiary on a life insurance policy if two conditions are met.’ …
“[T]he evidence established that both life insurance policies were purchased during the marriage and wife was the named beneficiary of both policies.
“Consistent with Code § 20-107.1:1(A), the circuit court’s order requires husband to ‘maintain’ his life insurance policy through his employment and name wife as the sole beneficiary.
“In addition, the circuit court’s order requires husband to ‘maintain’ the Prudential life insurance policy and name wife as a fifty percent beneficiary, with the parties’ children ‘sharing’ the other fifty percent.
“Finally, the circuit court’s order requiring husband to maintain the policies ‘for so long as he has a statutory obligation to pay spousal support’ to wife is consistent with Code § 20-107.1:1.”
Aurilo v. Aurilo, Record No. 0642-22-4, May 2, 2023. CAV (unpublished opinion) (Friedman). From the Circuit Court of Stafford County (Willis). Thomas Woehrle for appellant. Beth A. Bittel for appellee. VLW 023-7-159, 19 pp.