Income calculation must include effects of ED award
The Court of Appeals agrees with a husband who says the trial court's income calculation for child and spousal support needed to account for income from accounts that were transferred from him to the wife, and reverses, in Henderson v. Henderson, 5/15/2018, Record No. 1364-17-2. (A separate opinion issued the same day, with a different case number, addressed wife's appeal of various rulings.)
Valuation: Secured Debt
The Court also reverses a valuation that did not subtract the amount of debt secured by the asset. An account had a lien against it for an equity line of credit in the husband's name. The trial court valued the account at its full value, not counting the lien, and divided it equally, then left the debt entirely to the husband. That sounds wrong, but what makes it absolutely wrong under the ED Statute?
Code § 20-107.3 requires a court effecting an equitable distribution to proceed in an orderly fashion: Specifically, it must (1) “classify the property,” (2) “assign a value” to the property, and (3) “distribute the property to the parties, taking into consideration the factors listed in Code § 20-107.3(E).” Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 809, 812, adopted upon reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). Code § 20-107.3(E) requires the circuit court, when distributing the marital property during the final phase of the process, to consider the “debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities.” Code § 20-107.3(E)(7). “However, to the extent that a valid indebtedness which is secured creates an encumbrance on the legal title” of marital property, we have held that this “indebtedness must be considered” by the circuit court at an earlier stage in the process, when “determining the value of the marital property.” Trivett v. Trivett, 7 Va. App. 148, 151, 371 S.E.2d 560, 562 (1988)
However, "On remand, the court should once again apply the subsection (E) factors to determine the distribution of the account." So the trial court might do something on remand that arrives at the same result.
Tracing
Husband had two accounts created during the marriage, which he and bank employees testified were funded solely from a pre-marriage account that contained 100% pre-marriage funds. But there were three years during the marriage, about 15 years ago, for which no statements from that old were available. Thus he failed to meet his burden of proof that the new account, created during the marriage, was separate property. The trial court had the discretion not to believe husband's testimony that no marital funds had been added to the old account, so its classification of the accounts as marital is upheld.
But the husband was able to show that what was already in the account at the time of marriage was sufficient to account for what was put into the new accounts. That doesn't matter: "The mere fact that the husband was able to prove that he had pre-1999 earnings and bonuses in an amount sufficient to fund account #0410, the amount he claims to have traced, was insufficient to meet his burden of proof."
Disability Retirement
Husband was a retired professional athlete and was receiving disability pension payments under a retirement plan. But there was no evidence that the payments were analogous to a "pain and suffering" personal injury award: they replaced wages and regular retirement benefits, and so they were marital. The timing of husband's employment should have made them hybrid, so it is possible, though not spelled out, that the trial court found the disability portion of already-received payments to be entirely marital because they were considered "wage replacement", not "deferred compensation."