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McGinnis v. McGinnis

Court of Appeals of Virginia

December 11, 2018



          Alexandra D. Bowen (Bowen Ten Cardani, PC, on brief), for appellant.

          Sarah 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 Richmond, Virginia



         Christopher 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 divorce."

         I. Background[1]

         On 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 "Digital Ink."

         The 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.

         On 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 distribution."

         Most of 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.

         On 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.[2] 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.

         The 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 ...

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