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Jacobson-Kaplan v. Kaplan12/6/2005
In this divorce proceeding, Pamela Jacobson-Kaplan, wife, asserts that the trial court erred in the following: 1) imputing income to her in the amount of $2,300 per month; 2) calculating Dr. Adam Kaplan's (husband's) income; 3) awarding her $1,500 in spousal support for only two years duration, with a reserve duration of almost nine years; 4) computing child support; 5) allocating some marital accounts and $110,000 in marital funds partially expended by husband post-separation; 6) distributing accounts in the children's names as part of the equitable distribution; 7) failing to address or award her a share of husband's Army Reserve retirement; 8) entering a final divorce decree while reserving the issue of child custody; 9) failing to award her attorney's fees; and 10) ordering the marital residence to be sold. We affirm in part and reverse in part.
I.
The parties were married in 1983 in Cincinnati, Ohio. At the time of marriage, husband was an undergraduate student and wife was a graduate student. During the marriage, husband attended a graduate program and medical school, completed his internship and residency, and pursued a fellowship in transplant surgery. Wife worked to support the family while husband completed his education. The parties have three children aged 18, 15, and 12.
Wife, aside from periods of maternity leave, worked constantly from the time of the parties' marriage until 1997, when the family moved to Mississippi. Her various positions included being a clinical secretary, billing manager, and other similar positions, for which she earned between $11,000 and $17,000 a year. At one point she declined a position as departmental head of the billing office with a hospital because of an impending move. After moving to Mississippi, she did some work, albeit unpaid, helping husband to recover $110,000 in uncollected surgical billings.
She also worked to help set up husband's solo practice. After the parties moved to Virginia Beach in 2000, wife was a technical editor working out of the home earning $1,000 each month for parts of 2001 and 2002. Aside from these four hours a month, she has not worked since moving to Virginia.
The parties separated on August 27, 2001, when husband moved out of the marital residence. Wife filed her original bill of complaint commencing this action on September 4, 2002. The case was referred to a commissioner in chancery who received evidence and filed his report in the circuit court.
During the commissioner's hearing, husband presented the expert testimony of Mr. Francis Charles DeMark, Jr., a certified rehabilitation counselor. Mr. DeMark testified as to the ability of wife to find work in the Tidewater area. He opined that she could serve as an office manager or accounting and billing manager with a salary in the range of $28,000-30,000, with the ability to move up in salary to perhaps "$40,000 given a year or two." Mr. DeMark also presented other possible positions as an administrative assistant or technical writer in the $25,000-28,000 range. He provided numerous concrete examples of jobs available in the region paying comparable salaries with qualifications matching wife's skills.
Wife presented no evidence of her present ability to obtain employment other than her own opinion that she could make $14,000 a year before taxes. She gave no concrete examples of available positions paying such a salary or even in what field such work would be. She also opined that both her children and her psychological problems would make it difficult to work outside the home, again without providing any evidence to back up her assessment. After considering all the evidence, the trial court
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