Stephenson v. Musgrave(Va.Ct.App.May 18, 2010)

On July 29, 2009, the trial court entered a final decree of divorce between appellant, Robert Brian Stephenson ("husband"), and appellee, Donna Lynn Musgrave ("wife"). On appeal, husband argues that the trial court erred when it (1) designated certain assets as marital waste, (2) valued husband's office building without considering alleged adverse market conditions, (3) failed to consider husband's health and disability, (4) admitted testimony of a marriage counselor for the purpose of establishing an intent by husband to dissipate the marital assets, (5) awarded wife $ 72,000 in attorneys' fees, and (6) did not reserve husband the right to seek spousal support in the future. Wife argues that we should not consider the substance of husband's first five arguments because husband voluntarily paid the equitable distribution and attorneys' fees, thus barring his right to appeal those issues. Wife further argues that the trial court did not abuse its discretion when it failed to reserve the husband's right to seek spousal support in the future.

Voluntary payment of a judgment deprives the payor of the right of appeal. Here, husband's payment tends even more towards a voluntary payment than the payment made inCitizens Bank and Trust Co. v. Crewe Factory Sales Corp., 254 Va. 355, 355, 492 S.E.2d 826, 826 (1997). While the payor in Citizens Bank paid the full amount of the judgment three days after it was entered, here husband paid the full equitable distribution award and attorneys' fees before the trial court even entered a judgment against him. In fact, husband wrote two checks for the precise amount of each award, with one check paid to his wife and the other paid to her attorney. Husband simply did not bear the risk associated with an involuntary choice. Instead, husband merely avoided the interest that would accrue upon entry of a judgment. The trial court never threatened husband with contempt if he failed to pay the award. In fact, the trial court specifically rejected the notion that it would entertain a contempt citation if the awards were not paid within the prescribed time. Therefore, we hold that husband voluntarily paid the equitable distribution and attorneys' fees awarded to wife, and hence we cannot reach the merits of husband's arguments with respect to those awards.

Where there is no bar to the right of spousal support, it is reversible error for the trial court, upon request of either party, to fail to make a reservation in the decree of the right to receive spousal support in the event of a change of circumstances." The trial court relied on husband's present financial situation and his attempts to hide assets during the divorce proceedings when it failed to reserve husband the right to seek spousal support in the future. However, husband's present financial situation does not speak to his financial situation in the future, nor can the trial court punish husband for his attempts to hide assets during the divorce proceeding by denying him a reservation of the right to seek spousal support in the future. Neither of these circumstances bears any relationship to the grounds of divorce itself, which in this case rests solely on Virginia Divorce Code § 20-91(9). Trial court committed reversible error when it failed to reserve husband the right to seek spousal support in the future.

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content.