Sizov v. Sizov

KONSTANTIN SIZOV v. NATALIA V. SIZOV

Record No. 1704-19-4

COURT OF APPEALS OF VIRGINIA

DECEMBER 8, 2020

UNPUBLISHED

Present: Judges Beales, O'Brien and Malveaux

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE RANDOLPH A. BEALES

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Nolan B. Dawkins, Judge

Dusty Sparrow Reed (Konstantin Sizov, pro se, on briefs), for appellant.

Natalia V. Sizov, pro se.

In this case, Konstantin Sizov ("father") appeals an order of the Circuit Court of the City of Alexandria granting Natalia V. Sizov ("mother") a divorce and resolving matters related to the dissolution of the marriage. Father presents seventeen assignments of error for our consideration. He contends that the trial court erred in granting a divorce based on adultery, in awarding sole legal custody of the parties' minor son to mother, in awarding shared physical custody between the parties, in ordering father to pay child support and spousal support to mother, in distributing the property of the marriage, and in awarding attorney's fees to mother.Mother raises two cross-assignments of error, challenging the amount of the trial court's award of attorney's fees and the trial court's distribution of the marital property.¹

I. BACKGROUND

A. Divorce Decree and Child Custody

On appeal, we view the evidence in the light most favorable to mother, as the party that prevailed in the trial court, and we grant to mother all reasonable inferences fairly deducible therefrom. Mayer v. Corso-Mayer, 62 Va. App. 713, 717 (2014). So viewed, the parties had three children during the marriage. One of the children, A.S., ² is currently a teenager and an unemancipated minor.

During the marriage, father developed an intimate relationship with a woman named Gargi Varma. On June 28, 2017, during an evening dinner conversation between mother, father, and A.S., father revealed the adulterous nature of his relationship with Gargi to mother. At that time, mother realized that A.S. - who was only twelve years old at the time and yet expressed no surprise at his father's revelation - was already aware of his father's adulterous relationship.

Mother filed her complaint for divorce on July 17, 2017. Father counterclaimed for divorce and asserted that mother condoned the adultery about which she complained. Mother adamantly denied that she ever condoned the adulterous relationship. The trial court found that the parties separated on November 20, 2017. They entered into a pendente lite agreement on thesame day that provided for joint legal custody and shared physical custody of A.S., and also provided that the parties would share equally the costs of childcare. The court retained Dr. William Zuckerman to conduct an evaluation of the Sizov family and to present the court with custody recommendations regarding A.S. In relevant part, Dr. Zuckerman recommended that the parties share joint legal custody of A.S and recommended a shared physical custody arrangement "that gives [A.S.] slightly more time with his father than his mother."

Following a six-day bench trial, the trial court announced the ruling of the court from the bench on April 19, 2019. The court found that there was clear and convincing evidence that father had an adulterous relationship and granted mother's request for a divorce based on adultery. The court further found "that the defense that [mother] condoned the relationship is unfounded and not supported by the evidence at trial." On the issue of custody, the court decided to award sole legal custody to mother, because the court did "not believe that the parents can cooperate sufficiently to resolve legal issues which may arise relating to [A.S.]." The court awarded the parties shared physical custody of the child - with slightly more time with the child to mother.

B. Child Support and Spousal Support

After making its custody determination, the court initially ordered father to pay monthly child support of $500. The court was "persuaded that the difference in the parties' incomes supports a finding that Wife is entitled to child support in the amount of $500 per month" as of the date of entry of the pendente lite award. The court also ordered payment of retroactive child support in the amount of $100 per month - in addition to the $500 monthly child support award - in order to satisfy $10,500 in child support arrears that father had accrued since the entry of the pendente lite award. Next, the court awarded spousal support to mother in the amount of $600 per month for five years from the date of the final order.

C. Equitable Distribution

Father's primary source of income is Drive Square, Inc. ("Drive Square"), a business he co-founded during the marriage. Father is the majority owner, holding 720 of the company's 1000 outstanding shares. Two minority shareholders own the remaining 280 shares.

The parties disputed the value of Drive Square for equitable distribution purposes. The court heard from dueling experts who testified to two different valuations. Mother offered Thomas Nye, a forensic accountant for the Department of Defense, as a business valuation expert. Before allowing him to testify, the trial court probed Nye's qualifications. Nye indicated that he had received training in business valuation, but admitted that he had not obtained certain professional designations in business valuation and had never previously testified as an expert as to business valuation in any court. Following this testimony, father's counsel moved to disqualify Nye as an expert. When asked if he had ever performed a business valuation, Nye replied, "I've done portions of it as a group for the larger businesses, this is a very small business," and explained that Drive Square would be "the third, maybe fourth [business] I've valuated." The trial judge allowed Nye to testify as an expert witness.

Nye then testified that Drive Square is worth $754,000 in total. He testified that he reached a valuation of $754,000 based on a "reconciliation of an income and market approach." Father then offered Joseph Estabrook, who testified that, using an asset-based approach, father's 72% share of the business is worth $135,000. The court underscored the substantial difference between the valuations reached by the two expert witnesses and found itself unable to fully adopt the value assigned by either expert. Accordingly, the trial court assigned a value of $400,000 to Drive Square and awarded mother 35% of father's 72% interest in the business.

Following the oral ruling of the court, it conducted a hearing on the entry of the final order on August 14, 2019. At that hearing, father's counsel requested that mother accept atransfer of stock ownership equating to her share of the marital share of Drive Square. Mother's counsel declined and explained that the court gave the parties the option to pursue a stock transfer, but that mother did not elect to do so, and that she instead requested a monetary award of her portion of the marital share. The court found in favor of mother and awarded her $100,800, equal to 35% of father's 72% stake in the company.

The court also heard testimony regarding a Citibank credit card and approximately $20,000 of debt accrued on it. The court initially allocated the Citibank credit card debt as a joint marital debt, but mother's counsel argued that this debt should have been classified as father's personal, separate debt. Mother argued that she had no access to the Citibank account, that father failed to produce a bank statement indicating how much, if any, of the debt went toward a roof repair on the marital home, and that father used the Citibank card as a credit card for his business, Drive Square. When asked if she ever had a credit card from Citibank or ever used the account in question, mother answered "No" to both questions. Consequently, the trial court decided to "adjust this finding and find that [the Citibank debt] is not a marital debt and it will be [father]'s sole debt."

D. Attorney's Fees

Finally, the trial court awarded mother $20,000 in attorney's fees and declined father's request for attorney's fees. The trial court entered its final order on August 23, 2019. Mother filed a motion to reconsider the award of attorney's fees to her as being too low an amount. Father filed a cross-motion opposing mother's request and asking the court to reconsider its denial of father's request for attorney's fees. The court denied all motions and cross-motions for reconsideration. This appeal followed.

II. ANALYSIS

A. DIVORCE DECREE

The trial court granted mother's request for a divorce on the ground of adultery. In his first assignment of error, father contends that the trial court "erred by granting a divorce to the Plaintiff on the grounds of adultery where such claim was neither plead with the requisite specificity required by Rule 1:4(d), nor corroborated by the Plaintiff, and Plaintiff condoned the extramarital relationship."

1. Sufficiency of the Complaint

As an initial matter, we cannot consider father's argument that mother failed to plead her complaint with the requisite specificity because father never filed a demurrer in the trial court. Instead, his answer to mother's complaint simply stated, "Plaintiff has not properly pled a claim for adultery as she has not indicated a place or location or time. Her claim of adultery is legally insufficient and fails to state a cause of action, and therefore is demurrable."

Rule 3:18(e) of the Supreme Court of Virginia states, "Answers, counterclaims, cross-claims, pleas, demurrers, affirmative defenses and motions may all be included in the same filing if they are separately identified in both the caption and the body of the filing." (Emphasis added). Father failed to comply with the rules of court if he attempted to file a demurrer within his answer as this filing with the trial court never even states in the caption that it includes a demurrer. Because father did not file a demurrer to mother's complaint...