Alvin Edward Nieder v. Myeong Yae Nieder

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Overton Argued at Alexandria, Virginia

ALVIN EDWARD NIEDER MEMORANDUM OPINION * BY v. Record No. 1248-95-4 JUDGE JAMES W. BENTON, JR. JUNE 18, 1996 MYEONG YAE NIEDER

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. Bruce Bach, Judge John P. Snider (Alvin E. Nieder, pro se, on briefs), for appellant.

James Ray Cottrell (Gannon, Cottrell & Ward, P.C., on brief), for appellee.

Alvin E. Nieder appeals from a final decree of divorce. He

contends that the trial judge failed to equitably distribute the

parties' assets, erred in the awards of spousal and child

support, and awarded excessive attorney's fees to his wife,

Myeong Nieder. Upon reviewing the fourteen issues he presents,

we affirm thirteen of the trial judge's rulings. We reverse one

of the trial judge's rulings and remand for the trial judge to

grant to the husband credit for the fair market rental value of

the family's residence from the date of the divorce to the date

the residence is sold.

The parties married in 1980 in Korea while the husband was

in the military. They have two children: a son, born April 18,

1981, who is institutionalized with a neurological disorder and a * Pursuant to Code § 17-116.010 this opinion is not designated for publication. daughter, born September 23, 1983, who currently lives with her

mother. During the marriage, the husband was verbally and

physically abusive to the wife and children. On January 9, 1994,

the wife obtained an emergency protective order against the

husband. They have been separated since that time. The wife

filed for a divorce in February 1994. On January 25, 1995, a

judge ruled that the husband abused his two children and

prohibited the husband from entering the home without a further

order. Following equitable distribution and support hearings, the

trial judge made various rulings and awards reflected in the

final decree of divorce entered May 10, 1995. The husband

alleges that the trial judge committed fourteen reversible

errors. Much of the husband's appeal is based upon his claim

that his separate assets were incorrectly classified as marital

property.

On appeal, "[w]e are guided by the principle that decisions

concerning equitable distribution rest within the sound

discretion of the trial court and will not be reversed on appeal

unless plainly wrong or unsupported by the evidence." McDavid v.

McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994).

Under Code § 20-107.3(A)(2), "[a]ll property acquired by either

spouse during the marriage is presumed to be marital property in

the absence of satisfactory evidence that it is separate

property." Stroop v. Stroop, 10 Va. App. 611, 614-15, 394 S.E.2d

- 2 - 861, 863 (1990). "Separate property is . . . all property

acquired by either party before the marriage." Code

§ 20-107.3(A)(1). Consistent with these principles, we address

the issues in the order the husband briefed them. 1. Husband's contribution to purchase of current residence.

The evidence proved that prior to the marriage, the husband

had funds in a Merrill Lynch account and an Ent Federal Credit

Union account. During the marriage he opened several other

accounts and transferred funds from one account to another. Some

of the funds transferred among these accounts came from the

husband's sister and the husband's property investments. In 1982, the parties moved to Virginia and bought a house in

Lorton, using money from the Merrill Lynch account to make the

down payment. The parties sold the home in 1988 when the husband

was restationed in Korea and they deposited the proceeds into a

joint stock account. When the parties returned from Korea, some

of those proceeds, as well as money from other accounts, were

then used to purchase the current residence.

In determining the husband's separate contribution to the

current residence, the trial judge found "that $40,800 of [the

husband's investment] retains its separate property character."

Just prior to making this finding the trial judge stated to both

attorneys: "[d]on't let me commit errors here, if I'm clearly

committing an error, stop me . . . I don't mean on how much, but,

if I'm doing something I can't do under [Code § 20-]107.3, I want

- 3 - you to let me know." Husband's counsel did not object to the

trial judge's valuation of the separate property during the

evidentiary hearing. Husband first contested this ruling after

entry of the final decree when he filed a motion to reconsider.

The evidence supporting the husband's claim that he took

funds from a separate account and applied them to the home

purchase was his oral testimony and inferences argued from a very

incomplete financial trail. During the evidentiary hearing, the

husband produced copies of three checks which totaled $43,014.65

and testified that the source of those checks was his separate

property. The trial judge rejected as evidence documents

identified as check stubs that contained handwritten notations by

the husband. The record did not contain a settlement statement

showing $48,000 in payments that the husband asserts were

separate funds. The checks that the husband contends were used to purchase

the house were payable to the husband. No evidence, save the

husband's testimony, established the purpose for which the checks

were drawn and used. The trial judge was not required to accept

his testimony. Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d

866, 869 (1990). On this evidence, we cannot say that the trial

judge was plainly wrong in finding that only $40,800 retained its

separate property character. Keyser v. Keyser, 7 Va. App. 405,

409, 374 S.E.2d 698, 701 (1988). 2. The American Securities Bank account

- 4 - The evidence proved the husband opened an American

Securities Bank account in 1993 and deposited $35,000 from his

Pentagon Federal Credit Union account. A January 1994 statement

revealed that the American Securities account balance was

$6,851.36. The husband testified that he had transferred money

to the Ent Federal Credit Union to pay bills. However, the

evidence does not establish the amount of the transfers. The

record also does not contain any other statements of transactions

involving the American Securities account. Without evidence to establish the source of the account

balance and evidence to prove that other transactions did not

result in changes in the American Securities account, husband has

not adequately proved his claim that the account retained its

separate character. The evidence proved that moneys were moved

in and out of all the accounts frequently. Therefore, the trial

judge did not err in classifying the remaining funds in the

account as marital property. 3. The Ent Federal Credit Union Savings account

The husband contends that his Ent Federal Credit Union

Savings account, opened in 1978, retained its characteristic as

separate property. The evidence failed, however, to establish

the account's balance prior to the marriage. The evidence

indicates that the husband deposited funds into this account in

October 1993 from the Pentagon Federal Credit Union account. He

contends that the funds were separate property. However, the

- 5 - account statements include numerous withdrawals from and deposits

to the accounts that were never explained at trial. The husband

admitted that during the marriage there were "a whole series of

money transfers [between different accounts depending upon]

whichever savings account paid the highest interest rate."

Although the husband's counsel argued that various other

separate properties were transferred into this account, the

evidence did not prove any of these transactions. Based upon the

evidence that a "whole series of money transfers" occurred, we

cannot say that the evidence proved that the property was

separate. See Code § 20-107.3(A)(2). Thus, the trial judge did

not abuse his discretion by classifying the account as marital

property and considering its value in making a monetary award. 4. The Marital Share of the Military Pension

Pursuant to Code § 20-107.3(G)(1), the trial judge awarded

the wife fifty percent of the marital share of the husband's

military pension. The husband contends that 55.8 percent of the

total pension represents the marital share and that the trial

judge erred in finding the marital share to be 56.2 percent.

The small difference between the two figures arises because

of an uncertainty as to when the husband began earning his

military pension. The record reveals that the trial judge and

counsel considered this problem and after discussion arrived at

the 56.2 percent figure. We find no evidence that this ruling

was plainly wrong and, thus, will not disturb it. McDavid, 19

- 6 - Va. App. at 407-08, 451 S.E.2d at 715. 5. Crediting the husband for mortgage payments

After the separation, both parties refused to pay the

mortgage for several months. The original pendente lite order

did not direct the husband or the wife to pay the mortgage. In

May of 1994, the trial judge held a hearing to modify the

pendente lite order and ordered the wife to pay the mortgage.

However, in the final decree of divorce, the husband and wife

were each ordered to pay fifty percent of the mortgage. From the time of the divorce, both parties have owned the

residence as tenants in common. Code § 20-111. The wife has

enjoyed exclusive possession of the house since the divorce and

only paid half of the mortgage. We have held in similar

circumstances that the husband should receive "the fair market

rental value of [his] interest in the property." Gaynor v. Hird,

15 Va. App. 379, 382, 424 S.E.2d 240, 243 (1992). Accordingly,

we remand this issue to the trial judge to grant to the husband a

similar credit from the date of divorce until the property's date

of sale. See id. 6. Classifying the Pentagon Federal Credit Union

At trial husband's counsel conceded "that $25,000 [in the

Pentagon account] was marital" property. The husband now

contends that he was entitled to all of those funds because he

paid for marital expenses, including the mortgage and attorney's

fees, out of this account. At the time of his ruling, the trial

- 7 - judge was aware of these payments. He did not abuse his

discretion by dividing the account equally between the parties. 7. Classification of the Individual Retirement Account

The husband claims that his IRA in Olde Discount Corporation

contained only his separate property. However, he opened the

account after the marriage. The evidence did not trace the funds

in this account and did not prove by a preponderance of the

evidence that the account was not a marital asset. Code § 20-107.3(A). In his brief, the husband cites to a chart as

"coherent [and] concise [proof] of each IRA contribution" but

that exhibit was never introduced into evidence. Furthermore,

the evidence did not prove the origin of the funds. The husband

had the burden of proving at trial that the IRA was separate

property. Code § 20-107.3(A). He did not do so.

The husband also complains that the trial judge valued the

account at the time of the hearing instead of the separation

date. Under Code § 20-107.3(A), "[t]he court shall determine the

value of any [assets] as of the date of the evidentiary hearing."

The trial judge properly determined the value of the IRA at the

time of the evidentiary hearing and did not abuse his discretion

in classifying or valuing the IRA. 8. Classifying the Olde account

In his brief, the husband argues that his Olde account

should be classified as separate. At trial he introduced

numerous account statements and other financial data regarding

- 8 - this account that he opened during the marriage. In his brief he

states that he received all of the money from his sister.

However, the record does not establish that he traced the money

in the account and proved that the account did not constitute

marital property. The testimony of the husband and his sister

was confusing and not well supported by documents. Thus, we hold

that the trial judge was not plainly wrong in classifying the

account as marital. 9. Calculating the Marital Equity in the Vehicles

The husband claims that the trial judge inequitably divided

the couple's two vehicles by finding that "[a]s far as the two

cars, you keep what you have and you're responsible for the

debt." The fact that the amount of equity in the two cars was

unequal does not establish that the trial judge was plainly

wrong. We find no abuse of discretion. 10. Classifying the funds invested in the first residence

The husband and wife partially financed the current

residence with the proceeds from the sale of their first home.

The husband contends that he invested $10,925 from his separate

Merrill Lynch account into the first home and is entitled to

credit for that investment. The husband attempted to trace his

investment with only his oral testimony and did not support his

claim by providing proof of the source of those funds. Based

upon the husband's testimony, the trial judge did not err in

classifying all the proceeds from the first home as marital. See

- 9 - Klein, 11 Va. App. at 161, 396 S.E.2d at 869. 11. Credit for the assets the husband owned prior to the marriage

Prior to determining how the assets should be divided, the

trial judge acknowledged that "[the husband] definitely had

considerable property at the beginning of the marriage." The

husband argues that the trial judge did not, however, consider

his separate assets brought into the marriage. This aspect of

the case is a general appeal of the trial judge's decision and is

not directed at any particular asset. The trial judge noted that "[i]t's hard to me to imagine on

a relatively small estate a more complicated situation than this

one. I've never seen more transfers and money going around."

The record supports the trial judge's finding that the husband

constantly shifted funds in and out of his various bank and

brokerage accounts. In an appeal from an equitable distribution

decree, "we rely heavily on the discretion of the trial judge in

weighing the many considerations and circumstances that are

presented in each case." Artis v. Artis, 4 Va. App. 132, 137,

354 S.E.2d 812, 815 (1987). Due to the confusion over where

different funds were shifted and the husband's failure to

adequately trace these assets, we hold that the trial judge did

not err in refusing to award the husband greater credit for his

claim of separate assets. 12. Spousal support

Determining the amount of spousal support rests "within the

- 10 - sound discretion of the trial [judge] and will not be reversed on

appeal unless plainly wrong or unsupported by the evidence."

Floyd v. Floyd, 17 Va. App. 222, 224, 436 S.E.2d 457, 458 (1993).

The trial judge must consider the factors in Code § 20-107.1,

but is not required to recite specific findings from the evidence

relative to each factor or assign the weight accorded to it.

Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426

(1986). The record establishes that the husband retired from the

Army in 1991 and is now fully employed. The wife is a registered

nurse. During the marriage, the husband paid the household bills

and mortgage and the wife paid for things such as family

clothing, the children's lessons and entertainment and food. The

trial judge heard extensive evidence regarding the equitable

distribution of the parties' property and the financial

circumstances of the parties. The award of $600 in monthly

spousal support was based upon competent evidence presented at

trial. See Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d

518, 523 (1988). The evidence at trial touched upon all of the

factors enumerated in Code § 20-107.3(E). When such substantial

evidence exists, we will not reverse the trial judge's decision.

Id. 13. Child support

Both parties presented evidence and argued over the actual

cost of child care and the proper amount of child support. The

- 11 - trial judge found the wife's $333 monthly payment for child care

a legitimate cost. The trial judge also lowered by $200 the

total amount of child support calculated under the support

guidelines because of the son's institutionalization. Based on

the evidence in the record, the trial judge committed no error in

ordering the husband to pay $856 per month in child support. 14. Attorney's fees

"The allotment of costs and attorney's fees is a matter

within the sound discretion of the trial court." D'Auria v.

D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986). Based

upon the evidence at the extensive hearings, we find no support

for the husband's contention that the trial award of $12,000 in

attorney's fees was excessive and plainly wrong.

For these reasons, we reverse and remand this case with

direction to the trial judge to award the husband credit for his

portion of the fair rental value of the residence accruing after

the entry of the divorce decree. All other rulings by the trial

judge are affirmed. Affirmed in part, reversed in part and remanded.

- 12 -