Alonza B. McKeel, Jr. v. Rosalie Brown McKeel

• Court: Court of Appeals of Virginia
• Decided: April 14, 1998
• Docket: 1999971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker and Bray Argued at Norfolk, Virginia

ALONZA BURROUGHS McKEEL, JR. MEMORANDUM OPINION * BY v. Record No. 1999-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK APRIL 14, 1998 ROSALIE BROWN McKEEL

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge Paul M. Lipkin (Goldblatt, Lipkin & Cohen, on brief), for appellant.

Richard F. Popp (Davis & Brynteson, on brief), for appellee.

Alonza Burroughs McKeel, Jr. (husband) appeals the decision

of the circuit court awarding Rosalie Brown McKeel (wife) $75,000

as an equitable distribution monetary award. Husband contends

that there is no evidence to support the court's award. For the

reasons that follow, we reverse and remand. Background

Husband received an employment severance payment prior to

the parties' separation, and a thrift plan distribution during

the separation. Pursuant to Code § 20-107.3(A), wife filed a

motion in which she sought to value these assets as of the date

of separation. Husband challenged the inclusion of these assets

in the marital estate. These assets had no value as of the date

of the equitable distribution hearing. The trial court ruled * Pursuant to Code § 17-116.010 this opinion is not designated for publication. that these assets would be valued as of the date of separation.

The evidence was then heard by a commissioner in chancery. The

trial court approved the commissioner's report without

modification.

Monetary Award

"[T]he amount of any monetary award, subject to the

enumerated statutory factors, is within the sound discretion of

the trial court." Dietz v. Dietz, 17 Va. App. 203, 216, 436

S.E.2d 463, 471 (1993). The commissioner's report, approved by

the trial court, is entitled to great weight, and the appellate

court's duty "is to determine whether the conclusions of the

commissioner, approved by the trial court, are supported by

credible evidence." Ward v. Harper, 234 Va. 68, 70, 360 S.E.2d

179, 181 (1987). However, formulating an award must go beyond

mere guesswork. See Artis v. Artis, 4 Va. App. 132, 136, 354

S.E.2d 812, 814 (1987). Here, insufficient evidence supports the

commissioner's recommendation to award wife $75,000 as an

equitable distribution monetary award. See Code § 20-107.3(D).

In his report, the commissioner classified and valued the

parties' property. He found that the parties' contributions to

the marital home, both monetary and non-monetary, were equal, and

he recommended an equal division of the equity in the marital

residence. Pursuant to the trial court's order, the marital

estate included the values of $15,952 for the severance payment

and $71,430 for the thrift plan. While husband spent all funds

2 from the thrift plan and severance payment prior to the equitable

distribution hearing, he asserted that he gave wife $41,676 of

the thrift plan money and $1,950 of severance pay or spent it for

her benefit. Wife conceded that she received $36,151 either

directly or in payment of taxes and attorney's fees.

The total value of the marital estate, excluding wife's

share of a sailboat valued at less than $1,000 and the marital

residence, equaled $128,980. The remaining marital assets were

divided between the parties, or awarded to husband with the

notation that wife's marital share "is incorporated in the

Monetary Award." The commissioner recommended an award to wife

of $75,000, based upon "[h]aving observed the demeanor of the

parties as they testified, reviewed the transcript and the

exhibits, and considered the factors set forth in Code Section

20-107.3(D)(E) and (F)." While the commissioner's report determined the value of the

marital assets, neither the report nor the trial court's decision

revealed the evidence relied upon in setting the amount of the

monetary award to wife. Wife acknowledged receiving $36,151 from

the remaining marital estate, which was valued at $128,980. If

wife then received a monetary award of $75,000, her share of the

marital estate, absent the sailboat and marital residence, was

$111,151, or over eighty-six percent of the value of the estate.

On review, we are unable to find sufficient evidence to justify

3 this division of the marital assets. 1

Accordingly, we reverse the decision of the trial court

awarding wife $75,000 as a monetary award, and remand the matter

for further proceedings consistent with this opinion.

Reversed and remanded.

1 In her brief, wife asserts that the trial court erred by failing to require husband to reimburse her for the value of a survivor benefit premium withheld from his retirement pay. However, the court's order required husband to make this reimbursement. Accordingly, wife's contention is without merit.