THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler,
Alexandra D. Bowen (Bowen Ten Cardani, PC, on brief), for
J. Conner (Rick A. Friedman, II; Mary Ashby Brown; Jillian M.
Smaniotto; Friedman Law Firm, P.C., on brief), for appellee.
Present: Judges Beales, O'Brien and Malveaux Argued at
RANDOLPH A. BEALES, JUDGE
David McGinnis ("husband") appeals the final decree
of divorce of the Circuit Court of Chesterfield County
awarding Nadine Anne McGinnis ("wife") a lump sum
award of $150, 000 in "equitable restitution." On
appeal, husband contends that the circuit court erred in
making this monetary award because of "the absence of
any legal authority for such an award incidental to a
appeal, we are required to view the facts in the light most
favorable to wife because she was the prevailing party before
the trial court on this issue. See Wright v. Wright,
61 Va.App. 432, 451, 737 S.E.2d 519, 528 (2013). So viewed,
the evidence shows that husband and wife were married on
April 20, 1996. Two children were born to the marriage - one
in 2010 and one in 2012. Wife, a graduate of Virginia
Commonwealth University with a fine arts degree, worked as a
graphic designer until 2010 when the parties' oldest
child was about three months old. Husband was the sole
shareholder of a profitable printing business named
parties separated in June 2013, and wife filed for divorce on
July 15, 2013, alleging that husband had committed adultery.
After the filing, the parties litigated issues relating to
the divorce, child custody, child support, and spousal
support at various hearings for the next several years.
September 27, 2017, the parties appeared before the Circuit
Court of Chesterfield County with the intention of resolving
and finalizing all the outstanding matters relating to the
divorce. At the time of the hearing, both husband and wife
had filed for bankruptcy. Husband's printing business,
Digital Ink, had suffered a financial downturn, and the
assets of that business had been acquired by a business named
"BMST," where husband stated that he was working as
an employee. The marital residence had been foreclosed upon
(and later purchased by one of BMST's investors and his
wife). As a result of these and other changed circumstances,
the trial judge stated at the beginning of the hearing,
"I don't have any proposed schemes of equitable
distribution and I'm assuming [that is] because
there's nothing but debt to distribute." Wife's
counsel then informed the circuit court that, as a result of
the lack of marital assets and the parties' bankruptcies,
wife was "not asking the Court to hold onto equitable
distribution or reserve it." Wife's counsel stated
that wife was, in fact, "waiving equitable
the September 27, 2017 hearing consisted of counsel's
arguments on the amount of spousal support that the circuit
court should award to wife. Both attorneys relied on the
depositions of the parties and other witnesses taken in
August and September 2017 to support their contentions.
Wife's counsel requested both a periodic and lump-sum
award of spousal support. She argued that, since the
separation, husband had spent an "exorbitant amount of
money on jewelry" and expenses for other women.
Wife's counsel also argued that husband was essentially
an owner of BMST and that he had access and permission to use
company money and assets as his own. Husband's counsel
argued that the transaction between Digital Ink and BMST was
legitimate, and defended husband's use of company funds.
Husband's counsel also claimed that wife was voluntarily
unemployed and therefore that income should be imputed to
her. Upon completion of the arguments at trial, the judge
informed the parties that he would rule after he had the
opportunity to review the transcript from the proceeding and
the parties' respective written submissions.
December 13, 2017, the parties returned to the circuit court,
and the judge announced that he would read to the parties the
letter opinion that he had prepared after the September 27,
2017 hearing. On the issue of spousal support, the judge
recited each factor listed in Code § 20-107.1(E). After
stating each factor, he listed the facts that he found
relevant to each factor. On the last factor, however, in Code
§ 20-107.1(E), factor 13, he stated, "There was no
evidence presented as to Factor 13." After considering
and discussing each of these factors, the circuit court
awarded wife $4, 000 per month in spousal support.
judge then told the parties:
Now, in addition, in addition, the Court awards Ms. McGinnis
a lump sum award of rehabilitative alimony of $150, 000.00.
In conjunction with the factors specified in the Code of
Virginia, Section 20-107.1, the Court ...