Opinion
Record No. 0441-93-2
April 26, 1994
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY W. PARK LEMMOND, JR., JUDGE
Homer C. Eliades (Eliades and Eliades, on brief), for appellant.
Linda L. Johnson for appellee.
Present: Judges Benton, Koontz and Elder
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Following entry of a decree granting George A. Burton, Jr., a divorce a vinculo matrimonii from his wife, Jane S. Burton, the trial judge entered a decree resolving issues of support, custody, property, and attorney's fees. The wife appeals from the decree resolving those issues and contends that the trial judge erred in (1) failing to follow the statutory child support guidelines, (2) considering negotiations between the parties concerning child support, (3) fixing child support payments to begin after entry of the final decree, (4) determining the method of equitable distribution of the property, and (5) failing to order the husband to pay the wife's attorney's fees. For the reasons that follow, we affirm in part and reverse in part.
I.
The wife first contends that the trial judge erroneously departed from the statutory guidelines in determining child support. The record established that the parties had two children, both of whom were minors. However, the wife sought support only for the younger child, who was sixteen. The parties agreed that their gross income figures for 1989 would be used for calculating an appropriate child support award under the guidelines. In 1989, the husband's gross income was $61,400 per year, and the wife's was $5,000 per year.
The trial judge found that, based on the parties' 1989 incomes, the total child support obligation would be approximately $715 per month. The trial judge further found as follows:
This would be a figure . . . based upon 1989 income, which based on other evidence in the case, would reflect substantially less income for the wife than she is apparently now making. The evidence also indicated that the father is providing college education [for the older son]. Due to the age of the evidence involved and the other factors, the Court orders child support payments in the amount of $500 per month [payable by the husband] commencing on the fifth day of the first month after the entry of the decree incorporating this opinion.
The husband testified that he paid approximately $550 for college tuition and books.
In computing child support, the trial judge must first determine the presumptive amount as specified by Code § 20-108.2. Farley v. Liskey, 12 Va. App. 1, 4, 401 S.E.2d 897, 899 (1991). The trial judge may depart from the guideline amount only if an award of that amount would be unjust and inappropriate, and the trial judge must make written findings explaining the departure. Hiner v. Hadeed, 15 Va. App. 575, 579, 425 S.E.2d 811, 813-14 (1993).
Based on the parties' 1989 incomes, the trial judge properly determined the presumptive amount of child support according to Code § 20-108.2. Except for the statement that the wife is making "substantially more" than $5,000 per year, the trial judge did not make any findings concerning the wife's current earnings. More significantly, the trial judge gave no indication why an ultimate award of $500 per month was appropriate.See Richardson v. Richardson, 12 Va. App. 18, 22, 401 S.E.2d 894, 896 (1991) (holding that departure must be "amenable to appellate review"). We, therefore, reverse the decision, remand for specific findings regarding the parties' gross incomes, and for specific findings as to why a departure, if any, from the presumptive amount might be appropriate. Because we remand the case for reconsideration and further findings regarding child support, we need not address the question concerning the previous child support agreements.
II.
In determining whether the trial judge's decision to commence child support payments as of January 5, 1993, was error, we must determine whether the decision was an abuse of discretion.See Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). The evidence proved that when the child moved from the husband's home to the wife's home, the husband voluntarily paid support for the child. Forty-five days passed between the date the trial judge issued his letter opinion and the date the husband was to begin payment of the larger amount of child support. Absent any showing that failure to commence child support sooner would work to the detriment of the child, we cannot say the short lapse of time following entry of the decree and the time payment was to begin constituted an abuse of discretion.
III.
The wife contends the trial judge improperly found that the bank accounts that she held jointly with her sons were marital property. We disagree.
There is a presumption that all property acquired during the marriage, in the absence of satisfactory evidence that it is separate property, is marital property. See Code § 20-107.3.See also Rexrode v. Rexrode, 1 Va. App. 385, 392, 339 S.E.2d 544, 548 (1986). The statute's clear mandate is that property be termed separate only if one of the four statutory conditions are met. The record is devoid of any evidence that the funds in the joint bank accounts are related to pre-marital funds, separate gifts, inheritances or bequests.
While legal title to property has implications regarding the trial judge's authority to divide property, see Code § 20-107.3(B), legal title does not determine whether property is marital or separate. See Brinkley v. Brinkley, 5 Va. App. 132, 136, 361 S.E.2d 139, 140 (1987) (parties may have rights and interests in marital property "no matter how titled"). The trial judge heard evidence that the bank accounts were opened in order to provide for the children's education and later used as an account for the deposit of funds for the children's support. The accounts were maintained in the names of the wife and the children. The evidence permits the inference that the parties opened the accounts during their marriage. Moreover, the record established that the pre-separation amounts in the two accounts were marital property. We find no error in the trial judge's classification of the accounts as marital property.
The evidence further supports the trial judge's order that the wife repay the money she withdrew from the equity line of credit. The evidence supports the finding that the parties had an agreement and that any withdrawal by the wife would have violated the spirit of that agreement. We find no error in the trial judge's order.
We also affirm the trial judge's ruling that the parties share the deficiency judgment stemming from the repossession of the parties' automobile. The parties stipulated that the car was marital property. The evidence also proved that the parties unsuccessfully attempted to transfer title to the car to the wife. Both parties failed to maintain the loan payments. The trial judge did not abuse his discretion in finding that both parties were responsible for the car's repossession and in requiring that the parties share equally the obligation to satisfy the deficiency judgment against them.
IV.
An award of attorney's fees rests within the sound discretion of the trial judge. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). Relying in part upon Via v. Via, 14 Va. App. 868, 419 S.E.2d 431 (1992), the wife argues that she is entitled to attorney's fees because of disparity in their incomes. In Via, the Court held that where the parties have "disparate abilities to access the judicial system," and one party unreasonably increased the other's costs of accessing justice, a failure to award attorney's fees amounted to an abuse of discretion. Id. at 872, 419 S.E.2d at 434. Although the husband earns significantly more money than the wife, we cannot say on the record before us that he unreasonably increased the wife's costs of accessing justice. Counsel for both parties noticed several hearings, counsel for both parties failed to prepare an appropriate order as per the trial judge's request, and the trial judge admonished the wife's counsel for failing to cooperate fully with husband's discovery requests. Therefore, the trial judge did not abuse his discretion in refusing to award attorney's fees to the wife.
For the foregoing reasons, the decision of the trial judge is affirmed in part, reversed in part and remanded.
Affirmed in part, reversed in part, and remanded.