JERRY DIXON v. REBECCA DIXON
Record No. 1108-19-4
COURT OF APPEALS OF VIRGINIA
MARCH 31, 2020
Chief Judge Decker, Judges O‘Brien and AtLee
PUBLISHED; Argued at Richmond,
Charles E. Powers (Adam D. Rellick; Stiles Ewing Powers PC, on briefs), for appellant.
Lawrence D. Diehl (Barnes & Diehl, P.C., on brief), for appellee.
Jerry Dixon (the husband) appeals a final divorce decree. He challenges the spousal support award to Rebecca Dixon (the wife). The wife assigns cross-error and also requests an award of attorney‘s fees and costs on appeal. For the reasons that follow, we affirm in part, reverse in part, and remand to the circuit court. In addition, we deny the wife‘s request for appellate fees and costs.
I. BACKGROUND1
The parties married in 1989. In 2017, the husband moved out of the marital residence and filed for divorce. He alleged desertion and abandonment and, alternatively, living separately for more than one year as
During the hearing, the husband complained of the wife‘s hoarding and spending habits. She accused him of physical abuse. The husband made a motion to strike the wife‘s counter-complaint. The circuit court denied the motion.
After hearing evidence and arguments, the court entered a final decree of divorce. It granted the divorce on the ground that the parties lived apart for more than one year and fashioned an equitable distribution award. In doing so, the court offset the husband‘s monetary award against the spousal support award to the wife. As a result of this offset, the court set a defined duration of sixty-three months for the spousal support award.
II. ANALYSIS
On appeal, the husband advances three assignments of error. The first two incorporate his argument that the circuit court erred in denying his motion to strike the wife‘s counter-complaint. The husband also assigns error to the offset of his monetary award from the equitable distribution against the wife‘s spousal support award. The wife agrees that the circuit court erred with regard to the offset against spousal support. However, she assigns cross-error. The wife argues that the circuit court erred by imposing a defined duration on the award of her spousal support. Further, she asks for attorney‘s fees and costs expended in the appeal.2
A. Motion to Strike
The husband argues that the circuit court erred by failing to grant his motion to strike the wife‘s counter-complaint for divorce.
The wife‘s counter-complaint below sought a divorce on the grounds of desertion and cruelty.3 See generally
A denial of a motion to strike is error only if it “is conclusively apparent that [the non-moving party] has proven no cause of action” or the non-moving party‘s position is plainly without evidence to support it. Parson v. Miller, 296 Va. 509, 524 (2018) (quoting Egan v. Butler, 290 Va. 62, 73 (2015)). In deciding whether to strike a claim, a circuit court must “accept as true all the evidence favorable to the [claimant,] as well as any reasonable inference a [fact finder] might draw therefrom which would sustain the . . . cause of action.” Chaplain v. Chaplain, 54 Va. App. 762, 772 (2009) (quoting Austin v. Shoney‘s, Inc., 254 Va. 134, 138 (1997)). At the motion-to-strike stage, “[t]he trial court is not to judge the weight and credibility of the evidence, and may not reject any inference from the evidence favorable to the [non-moving party] unless it would defy logic and common sense.” Id. at 772-73 (quoting Austin, 254 Va. at 138).
To the extent that the husband‘s argument that the circuit court erred by denying his motion to strike the wife‘s counter-complaint is based in part on the wife‘s failure to sustain her claim, the argument misunderstands the posture of the case at the
The husband contends that his motion to strike should have been granted because the wife‘s testimony about desertion and cruelty was uncorroborated. See
Desertion is the “breach of matrimonial duty—an actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party.” Purce v. Patterson, 275 Va. 190, 195 (2008) (quoting Petachenko v. Petachenko, 232 Va. 296, 298-99 (1986)). The record on this issue is incomplete because the transcript provided on appeal is only partial. We do not know what evidence was presented at the hearing regarding the husband‘s intent when he left the marital residence in 2017. “The burden is upon the appellant to provide [the appellate court] with a record which substantiates the claim of error. In the absence [of a sufficient record], we will not consider the point.” Robinson v. Robinson, 50 Va. App. 189, 197 (2007) (second alteration in original) (quoting Jenkins v. Winchester Dep‘t of Soc. Servs., 12 Va. App. 1178, 1185 (1991) (citation omitted)); see also
Consequently, we affirm the circuit court‘s decision to deny the husband‘s motion to strike the wife‘s counter-complaint.5
B. Offset
Both parties contend that the circuit court erred in offsetting the equitable distribution monetary award to the husband against the award of spousal support to the wife.6
In fashioning the equitable distribution award, the circuit court determined that the husband was entitled to “a credit” for $157,250, half of the parties’ equity in the marital home. The court also awarded the wife $1,500 monthly spousal support. It provided as follows:
[T]he duration of spousal support must be tempered by the aforementioned credit of $157,250 [the husband] received in the equity of the marital home. That credit will serve to shorten the period of spousal support. Had the Court not awarded support but rather made a reservation to [the wife], the statutory presumption would have been that the right would continue
for one half the duration of the 28 year marriage. Though not mandated, the Court takes guidance from that in concluding that a support duration of a similar time period—fourteen years (one half of 28)—would be appropriate. However, after applying the credit to [the husband] of his share of the equity [in] the marital home (or $157,250), the Court calculates that an award of spousal support for approximately 5.25 years (or 63 months) is appropriate.
Accordingly, the court ordered that the husband pay the wife the monthly amount of $1,500 in spousal support for sixty-three months.
Both parties argue that the circuit court did not have the statutory authority to offset the equitable distribution monetary award against spousal support. The husband complains that the practical effect of the offset is that he will not receive the monetary award due to him until the end of the sixty-three-month spousal support period. He suggests that this arrangement impermissibly made part of his equitable distribution award contingent on future circumstances. The wife contends that the circuit court erroneously considered spousal support as a factor in fashioning the equitable distribution award.
On review, a circuit court‘s “equitable distribution award will not be overturned unless the [appellate court] finds ‘an abuse of discretion, misapplication or wrongful application of the equitable distribution statute, or lack of evidence to support the award.‘” Anthony v. Skolnick-Lozano, 63 Va. App. 76, 83 (2014) (quoting Wiencko v. Takayama, 62 Va. App. 217, 229-30 (2013)). However, to the extent that the appeal requires an examination of the proper interpretation and application of
“[J]urisdiction in divorce suits is purely statutory.” Anthony, 63 Va. App. at 90 (quoting Watkins v. Watkins, 220 Va. 1051, 1054 (1980)).
The offset of the husband‘s monetary award against the end of the wife‘s spousal support award was based on the assumption that the wife would otherwise be due spousal support for fourteen years after the divorce decree was entered, the duration that the court noted that it would have imposed absent the “credit.” However, certain events can trigger the end of the duty to pay spousal support. Generally, spousal support terminates when either party dies, the supported party remarries, or the supported party lives with someone in a relationship analogous to marriage for one year or more. See
The question here is whether, in light of the applicable statutory provisions, the circuit court had authority to attach contingencies based on future events to a monetary award issued under
“We look to the plain meaning of the statutory language, and presume that the legislature chose, with care, the words it used when it enacted the relevant statute.” Fox, 61 Va. App. at 196 (quoting Addison v. Jurgelsky, 281 Va. 205, 208 (2011)). The equitable distribution statute provides, in pertinent part, that based on a variety of factors, a court granting a divorce “has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party.”
In contrast, the equitable distribution statute provides for conditional monetary awards in distributing pension, profit-sharing, deferred compensation, or retirement benefits (hereafter referred to collectively as retirement benefits). The statute provides that in addition to a monetary award issued under subsection (D), a “court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property.”
“[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.” Fox, 61 Va. App. at 196. The inclusion of statutory language indicating that monetary awards based on retirement benefits are contingent on the actual distribution of those benefits signals that the omission of language permitting conditional monetary awards under subsection (D) was intentional. Therefore, based on the plain language of the statute, it does not authorize a general equitable distribution monetary award that is contingent on future circumstances. See Reid v. Reid, 7 Va. App. 553, 565 (1989) (“It is axiomatic that whatever the future may hold for either of the parties has no bearing on the issue of the appropriate division of what has been accumulated by their contributions during the marriage.“).
Supporting this interpretation of the plain meaning of
On the “termination of the marriage[,] . . . whatever marital wealth has been accumulated is to be equitably distributed at that time.” Reid, 7 Va. App. at 565. A court shall base the division of marital property, “the amount of any monetary award,” and “the method of payment” on a variety of circumstances.
between the marital parties . . . .“). This approach logically stems from the purpose of equitable distribution to allocate the parties’ rights and interests in marital property, which typically have accrued prior to the time of separation or the evidentiary hearing. See id. An exception to this general rule exists for retirement benefits, which are necessarily “future oriented.” See McGinniss, 49 Va. App. at 185 (quoting Banagan, 17 Va. App. at 324).
Based on the plain language of
C. Spousal Support
The wife argues that the circuit court erred by limiting her award of spousal support to a defined duration.
Virginia‘s statutory scheme requires the circuit court, in determining whether to award spousal support, to consider the “provisions made with regard to the marital property under § 20-107.3” in effecting an equitable distribution of the marital estate.
D. Attorney‘s Fees and Costs
The wife asks for an award of attorney‘s fees and costs incurred on appeal.
Pursuant to
In light of all the factors set out in
III. CONCLUSION
For the reasons provided, we affirm in part, reverse in part, and remand. The husband‘s argument that the circuit court erred by denying his motion to strike the wife‘s counter-complaint fails. However, we hold that the court erred by offsetting the husband‘s equitable distribution monetary award against the wife‘s spousal support award. We
Affirmed in part, reversed in part, and remanded.