RANDOLPH A. BEALES, Judge.
The circuit court granted Laura Pendleton Campbell (wife) a divorce from Bayard Bryon Campbell (husband) on the ground of the parties living separately and apart for more than a year.
On appeal, we view the evidence in the light most favorable to wife, the party prevailing below,
The parties' divorce hearing occurred in the circuit court on August 13, 2012 and also on December 7, 2012, when the circuit court heard additional testimony relevant to equitable distribution and spousal support. The evidence below established that husband was a practicing neurosurgeon when the parties married — but he was then left totally and permanently disabled for employment purposes after contracting tropical spastic paraparesis, a rare disease that will ultimately leave husband completely unable to use his legs. Thereafter, husband has received $14,783 monthly from a private disability insurance policy as well as a $2,047 monthly disability benefit from the Social Security Administration. Wife obtained her medical degree and specialized in child psychiatry during the marriage, practicing medicine as a child psychiatrist in South Carolina until her pregnancy with the parties' first child. Wife then returned to work three years before the parties' separation when she started an interior design business — although, as the circuit court found, the income generated by that business was "negligible, if any."
Confirming most of its rulings from a February 13, 2013 letter opinion, the circuit court found in its September 27, 2013 final equitable distribution order that three life insurance policies purchased from the Guardian Life Insurance Company during the marriage had accrued cash values and were marital assets for purposes of equitable distribution. One of those policies (the Guardian *608 policy) that was titled in husband's name, listed the parties' two children as revocable beneficiaries, and had accrued a substantial cash value of $799,513. In its September 27, 2013 final order, the circuit court entered a monetary award directing husband to pay wife $399,756.50 — representing half of the Guardian *608 policy's accrued cash value. Furthermore, the circuit court directed husband to pay an additional $54,642 to wife to satisfy the terms of a prior contempt order — in which the circuit court had found that husband was in contempt of the February 8, 2011 pendente lite order by obtaining loans from the Guardian *608 policy's cash value following the parties' separation.
In addition, the circuit court's September 27, 2013 final spousal support order awarded wife $3,000 in monthly spousal support until husband's private disability insurance policy lapses, which will occur when husband reaches age sixty-five.
Moreover, the circuit court awarded wife $10,000 in attorneys' fees and costs. The circuit court did not premise this award on the conduct of either party — but instead "[i]n light of the significant income disparity and resources" of the parties.
Husband raises seven assignments of error (and several sub-parts), which he acknowledges on brief are all reviewed on appeal for abuse of discretion by the circuit court. Under this deferential standard of review, this Court must "show enough deference to a primary decisionmaker's judgment that the [appellate] court does not reverse merely because it would have come to a different result in the first instance."
"Accordingly, `when a decision is discretionary. . . . the court has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.'"
In his first assignment of error, husband challenges the portion of the February 8, 2011 pendente lite order in which the circuit court awarded wife $4,318 in monthly pendente lite spousal support. Husband claims that the circuit court "relied solely on the application of the so-called `Fairfax' or statutory spousal support guidelines" when deciding the appropriate amount of pendente lite spousal support.
Under the well-established law of Virginia, it is husband's burden to establish that the circuit court committed reversible error.
Code § 20-103(A) gives the appropriate circuit court the discretion to enter a pendente lite order, inter alia, "to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse" and "to enable such spouse to carry on the suit" through the entry of the pendente lite spousal support order. While Code § 20-103(A) sets forth no prescribed method or factors for determining (in the circuit court's discretion) what is the appropriate amount of pendente lite spousal support, husband contends that the circuit court erred in this case by "rel[ying] solely" on the formula stated in the "Fairfax guidelines." However, husband has failed to provide this Court with an adequate record on appeal to meet his burden of establishing reversible error by the circuit court.
The record on appeal does not contain the transcript of the pendente lite hearing in the circuit court, which was held on December 13, 2010. The record also does not contain a statement of facts in lieu of a transcript describing what occurred at the pendente lite hearing. Thus, the record does not reflect the circuit court's actual findings and rulings at the pendente lite hearing. Husband's argument in support of his first assignment of error instead rests on an isolated exchange from the transcript of the August 13, 2012 divorce hearing. There, the circuit court told wife's counsel that it would not use any local guidelines when determining the final spousal support order under Code § 20-107.1. Husband's counsel stated, "And I appreciate that, Your Honor, because at the pendente lite level, the guidelines were what was used." The circuit court responded, "I understand. I've already addressed that."
However, without the transcript of the actual pendente lite December 13, 2010 hearing being in the record on appeal, this isolated and rather vague statement by the circuit court at the August 13, 2012 divorce hearing simply cannot be interpreted as any admission by the circuit court that it "relied solely" on the "Fairfax guidelines" at the pendente lite hearing a year and a half earlier. Accordingly, husband's argument here fails.
Husband raises several arguments pertaining to life insurance policies that were purchased from the Guardian Life Insurance Company during the parties' marriage. Two of these policies are titled in husband's name, and one policy is titled in wife's name. Of particular significance to this appeal is the Guardian *608 policy, which is titled in husband's name and lists the parties' two children as revocable beneficiaries. The Guardian *608 policy carried an approximately $2.9 million death benefit at the time of the divorce trial. It had also accrued a significant cash value, which the circuit court found was $799,513 as of the date of the divorce trial.
In his second and fourth assignments of error, husband challenges the circuit court's treatment of the parties' Guardian life insurance policies. Based on his argument that the Guardian *608 policy is not a marital asset, husband contends in Assignment of Error 2 that he could not be held in contempt of the February 8, 2011 pendente lite order for obtaining loans from the Guardian *608 policy's cash value. Furthermore, husband also asserts in Assignment of Error 4 that the Guardian *608 policy's cash value was not properly the subject of a monetary award in the circuit court's equitable distribution order because he again claims that the policy is not a marital asset.
Under settled principles, a circuit court's "classification of property is a finding of fact," and "that classification will not be reversed on appeal unless it is plainly wrong or without evidence to support it."
The fact that the Guardian *608 policy is titled solely in husband's name (and not in wife's name) does not alter or affect our analysis. Code § 20-107.3(A) specifically addresses the equitable distribution of property, and nowhere does that statute provide that title to an asset is a dispositive factor when, as here, the asset is acquired during the marriage. "[E]quitable distribution deviates from traditional views of property ownership in that `whether the property is separate or marital is determined by the statutory definition and is not determined by legal title.'"
Furthermore, this Court's decision in
Husband makes a related argument in his fifth assignment of error, in which he challenges the circuit court's decision to enter a monetary award to wife in the amount of $399,756.50 — representing one-half of the Guardian *608 policy's accrued cash value of $799,513.
"`In reviewing an equitable distribution award on appeal, we have recognized that the trial court's job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case.'"
As an initial matter, however, the record does not support the very premise of this fifth assignment of error — i.e., that the circuit court's monetary award to wife could be satisfied only if husband terminated or surrendered the Guardian *608 policy. Husband understandably wishes to retain the Guardian *608 policy — given that the parties' two children are the listed revocable beneficiaries of the policy, which carries a $2.9 million death benefit. However, husband's counsel admitted at oral argument before this Court that the available cash value of the Guardian *608 policy — even after accounting for the loans already obtained from that cash value — is still so large that husband could actually satisfy the monetary award by obtaining further loans from the Guardian *608 policy's cash value. Thus, while the monetary award certainly could be satisfied by surrendering the Guardian *608 policy, surrendering it is not absolutely necessary in order to satisfy the monetary award. According to the record, husband could retain ownership of the Guardian *608 policy and continue to borrow from its cash value, as husband's counsel acknowledged during oral argument.
Furthermore, the circuit court had the authority to grant the $399,756.50 monetary award to wife.
Code § 20-107.3(D) expressly permits a monetary award of this type. It states, in pertinent part:
Code § 20-107.3(D). Thus, the circuit court in its discretion could divide the cash value of the Guardian *608 policy (a marital asset), even though husband is listed as the sole owner of that asset.
In Assignment of Error 2(B), husband challenges an aspect of the circuit court's August 7, 2012 order finding husband in contempt of the February 8, 2011 pendente lite order's prohibition against disposing of, encumbering, or increasing the debt of any marital asset.
The record on appeal establishes that the parties obtained several loans from the Guardian *608 policy's cash value during the marriage. Those loans are not directly at issue in this case. According to the last policy statement prior to the parties' separation, the loan balance taken from the Guardian *608 policy's cash value was $140,196.13 when the parties separated in September 2010.
After the separation of the parties, husband then obtained loans from the Guardian *608 policy's accrued cash value on the following dates and for the following amounts:
On May 22, 2012, the circuit court held a show cause hearing to determine whether to find husband in contempt of the February 8, 2011 pendente lite order for obtaining loans from the Guardian *608 policy's accrued cash value. The transcript of the show cause hearing is not part of the record on appeal, but it is clear from the record that the circuit court issued a bench ruling finding husband in contempt of the pendente lite order. Husband filed a written motion for reconsideration, and the circuit court entered a written contempt order on August 7, 2012 finding husband "to be in contempt of this Court for his willful failure to obey the Pendente Lite Order" because husband, "on multiple occasions, borrowed money from cash values and dividends earned upon" the Guardian *608 policy, which was "purchased during the marriage and considered to be marital property and subject to equitable distribution" by the circuit court.
The circuit court also ruled in its August 7, 2012 contempt order that, "as a sanction therefore, [husband] is herewith ORDERED to return all funds borrowed by him since the August 17, 2010, insurance company statement such that the outstanding loan balance on [the Guardian *608 policy] shall be returned to the sum of $140,196.13" — i.e., the loan balance prior to the parties' separation. (Emphasis added). In other words, the circuit court ordered husband to return all of the post-separation loans that husband borrowed from the Guardian *608 policy's cash value — including the $15,000 loan made on or about October 29, 2010, which occurred several months before the February 8, 2011 pendente lite order was even entered. The decision to include that $15,000 loan in the contempt sanction is reversible error.
"In order to hold a litigant in contempt for violation of a court order, the litigant must have knowledge of the terms of the order."
In this case, at the time that husband took the $15,000 loan from the Guardian *608 policy's cash value on or about October 29, 2010, husband lacked any knowledge of the circuit court's February 8, 2011 pendente lite order — given that the pendente lite order itself had not even been entered. A party cannot possibly have knowledge of an order that does not yet exist. Therefore, the circuit court erred as a matter of law in its August 7, 2012 contempt order when it punished as contemptuous husband's $15,000 loan that was taken months before the entry of the February 8, 2011 pendente lite order.
In an argument that corresponds to his claim in Assignment of Error 2(B), husband contends in Assignment of Error 4 that the circuit court "erred when it ordered, as part of the overall equitable distribution order, [husband] to pay [wife] the sum of $54,642, representing half the amount ordered by the [circuit court] to be restored to the loan balance" of the Guardian *608 policy. Husband contends that this additional award to wife was entered solely to enforce the August 7, 2012 contempt order. In our analysis of Assignment of Error 2(B), we have held supra that the August 7, 2012 contempt order was erroneous to the extent that it sanctioned husband for obtaining a $15,000 loan from the Guardian *608 policy's cash value before the February 8, 2011 pendente lite order was entered. Consistent with that holding, we also conclude that the $54,642 award to wife is erroneous to the extent that it includes the value of the same $15,000 that husband obtained on or about October 29, 2010.
In an equitable distribution proceeding, the "`function of the [circuit court] is to arrive at a fair and equitable monetary award based on the equities and the rights and interests of each party in the marital property.'"
Indeed, the circuit court first mentioned this additional award to wife in its February 13, 2013 letter opinion after it had finished dividing the marital property, when it stated:
(Emphasis added). Significantly, the circuit court in its letter opinion did not ground this additional $54,642 award to wife on any finding that husband had wasted or improperly dissipated marital assets.
Thus, when read in context, the circuit court's additional $54,642 award to wife in the February 13, 2013 letter opinion was not based on the equities of the case — but instead was entered to enforce the earlier contempt sanction against husband for violating the February 8, 2011 pendente lite order. The plain language of the September 27, 2013 final equitable distribution order reflects the same rationale by the circuit court for the additional $54,642 award to wife. The final equitable distribution order simply states, "In addition, Husband shall pay to Wife the sum of $54,642, representing half of the amount orally entered by Judge Eason to be restored to the loan balance of [the Guardian *608] policy."
Consistent with the plain language of the February 13, 2013 letter opinion and the September 27, 2013 final order, we must conclude that the circuit court entered the additional $54,642 award to wife solely to enforce the prior contempt sanction against husband for violating the February 8, 2011 pendente lite order. However, for the reasons explained supra, the circuit court abused its discretion when it sanctioned husband for obtaining a $15,000 loan from the Guardian *608 policy's cash value in October 2010 — when no pendente lite order had yet been entered. Accordingly, we must reverse the additional $54,642 award to wife — to the extent that it holds husband responsible and punishes him for obtaining the $15,000 loan from the Guardian *608 policy's cash value (as well as interest and other fees corresponding to that particular loan).
In his third assignment of error, husband argues that the circuit court abused its discretion by presuming an equal division of the marital assets for purposes of equitable distribution.
However, in
As we have often said, "Virginia law does not establish a presumption of equal distribution of marital assets."
Here, the circuit court found in its February 13, 2013 letter opinion that an equal division of the marital assets was appropriate "[i]n light of the circumstances in this case" — while also noting correctly that it had "specifically considered the statutory factors" in Code § 20-107.3(E). The circuit court's decision here "reflects a reasonable and equitable judgment, fully consistent with the legal principles governing this case."
In his seventh assignment of error, husband challenges the circuit court's decision to award wife $3,000 per month in spousal support until husband's private disability insurance policy expires when husband reaches age-sixty five. "The determination whether a spouse is entitled to support, and if so how much, is a matter within the discretion of the [circuit] court,"
1. Fault Ground
In Assignment of Error 7(A), husband argues that the circuit court erred in awarding wife spousal support because, according to husband, wife was at fault for the dissolution of the marriage because "Wife deserted the Husband."
In Assignment of Error 7(B), husband challenges the circuit court's decision not to impute any income to wife for purposes of determining spousal support. Husband argues that the circuit court erred in finding that wife realistically could not return to the field of child psychiatry in the foreseeable future. Husband also argues that the circuit court erroneously disregarded wife's own evidence that wife could earn $40,000 to $60,000 per year as a high school teacher, a pharmaceutical sales representative, or a community college professor.
Wife's vocational expert, Charles DeMark, testified that it would be very difficult for wife — despite the level of her training and experience as a practicing child psychiatrist prior to the birth of the parties' children — to obtain a Virginia license in child psychiatry
However, we hold that the circuit court erred in declining to impute any income to wife because that decision was not supported by the record. According to the Supreme Court, one of the ways an abuse of discretion occurs is "when a relevant factor that should have been given significant weight is not considered" at all.
In fact, DeMark, wife's own expert witness, testified:
(Emphasis added).
Furthermore, wife admitted during cross-examination that DeMark had opined in his vocational report that wife had an earning capacity of between $40,000 to $60,000 per year. Therefore, wife presented evidence during her own case-in-chief that she could obtain employment in several different fields and that she could earn between $40,000 to $60,000 per year. Given the uncontroverted record on this issue, the circuit court's finding that it was "speculative at best" that wife could "acquire employment providing an income superior" than the negligible revenue produced by wife's interior design business was plainly wrong. That finding lacked any evidentiary support.
Our analysis here does not conflict with this Court's important decision in
By contrast, wife here holds a M.D., with a specialty in child psychiatry, and she has practiced as a child psychiatrist — including in the early part of their marriage. Whereas husband's declining health renders him now unable to work at all, wife is in good health — and her prior education and experience in the field of child psychiatry provide wife with many employment options other than returning to child psychiatry, as DeMark noted at trial.
Based on the undisputed evidence, including the opinion of wife's own expert, that wife could earn $40,000 to $60,000 per year in several different fields and based on wife's own decision to return to work three years before the parties' separation, we conclude that the circuit court abused its discretion when it declined to impute any income at all to wife for purposes of determining spousal support to her. Accordingly, we remand the matter to the circuit court for additional factfinding by the circuit court on that issue consistent with this opinion.
In Assignment of Error 7(C), husband argues that the circuit court "erred, when upon entry of the Spousal Support order nunc pro tunc to February 21, 2013, it failed to credit the husband with the overage created by his payment of the pendente lite amount of spousal support between the months of February and June 2013 (totaling $6,590.00)."
The circuit court's final order setting spousal support awarded wife $3,000 per month in spousal support. At the time of the final order's entry, husband was still obligated to pay a greater amount of temporary spousal support — $4,318 per month — under the terms of the pendente lite order.
Accordingly, although husband is not entitled to a reimbursement for his overpayment of $1,318 per month due to the retroactive effect of the nunc pro tunc order, we agree with his argument that he is entitled to a future spousal support credit totaling $6,590 for five months of such overpayments.
In his sixth assignment of error, husband challenges the circuit court's decision to award wife $10,000 in attorney's fees and costs. Under settled law, "after considering the circumstances of the parties and the equities of the entire case, a trial court may exercise its discretion and issue an award of attorney's fees and costs that is reasonable under all of the circumstances revealed by the record."
Here, the circuit court awarded $10,000 in attorney's fees and costs to wife specifically "[i]n light of the significant income disparity and resources" of the parties. However, we have concluded that the circuit court's decision not to impute any income to wife under the particular circumstances of this case was reversible error. Accordingly, we must also reverse the circuit court's award of attorney's fees and costs to wife — because the parties' respective incomes and available resources
On brief, wife asks this Court to "award Wife her attorney's fees and costs incurred in defending these matters on appeal or alternatively remand the issue of attorney's fees to the [circuit] court for determination."
We affirm most of the circuit court's rulings that husband has challenged in this appeal — in which husband has raised seven assignments of error and several sub-assignments of error. However, we reverse the circuit court's decision to sanction husband for obtaining a $15,000 loan from the Guardian *608 policy's cash value. That $15,000 loan was obtained on or about October 29, 2010 — well before the entry of the February 8, 2011 pendente lite order — and, therefore, could not serve as the basis for a finding that husband was in contempt of the pendente lite order. The circuit court's $54,642 award to wife — which the circuit court entered to enforce the contempt sanction — is reversed to the extent that it included the amount of that $15,000 loan (and any interest and other charges related to that loan).
In addition, we reverse the circuit court's decision not to impute any income at all to wife because wife's own evidence (through the opinion of her expert) established that she could earn at least $40,000 to $60,000 per year — and given the fact that wife actually returned to work three years before the parties separated. We also reverse the circuit court's decision not to award husband a $6,590 credit toward future spousal support payments, in light of the $6,590 overage caused by the nunc pro tunc entry of the final spousal support order. Furthermore, we reverse the circuit court's award to wife of $10,000 in attorney's fees and costs, which the circuit court specifically based on the "significant income disparity and resources" of the parties. On remand, when the circuit court considers the amount of income to impute to wife, the circuit court will also have an opportunity to reevaluate whether an award to wife of attorney's fees and costs would be appropriate under all of the evidence and circumstances before the court.
We disagree with husband's assertion in Assignment of Error 2(C) that the circuit court erroneously found that husband "increased debt secured by a marital asset." First, it is not clear from the record whether the circuit court's contempt finding was based on husband increasing the amount of marital debt or simply disposing of marital assets by reducing the available cash value of the Guardian *608 policy. Second, we disagree with husband's argument that the Guardian *608 policy could be anything other than marital property under the circumstances of this case. See Taylor, 5 Va. App. at 444, 364 S.E.2d at 249 (where one of the parties' life insurance policies was classified as a marital asset and where that policy's cash value was among the marital assets that could satisfy the monetary award entered by the trial court in equitable distribution).
