Angie Jones Mayhugh v. gene A. Mayhugh

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Cole Argued at Richmond, Virginia

ANGIE JONES MAYHUGH MEMORANDUM OPINION * v. Record No. 1200-96-2 BY JUDGE MARVIN F. COLE MARCH 4, 1997 GENE A. MAYHUGH

FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY Kenneth W. Farrar, Judge Pro Tempore

Philip B. Baker (Joseph A. Sanzone Associates, on brief), for appellant.

John J. O'Keeffe, Jr. (Jennifer E. Stille; O'Keeffe & Spies, on brief), for appellee.

On this appeal from a final decree of divorce, Angie Jones

Mayhugh (wife) contends that the trial court erred by (1)

granting Gene A. Mayhugh (husband) a divorce on the grounds of

post-separation adultery, (2) evaluating the marital residence

without consideration of the passive appreciation of wife's

separate portion, (3) determining that the tanning business was

marital property, (4) failing to apportion to husband a share of

the debts associated with the tanning business, and (5) assessing

all of the debt of the rental property to wife without giving her

benefit of the asset. We affirm the judgment.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.

The parties were married in August, 1984 and separated in

November, 1993. A divorce decree was granted to husband on the

ground of adultery on April 30, 1996.

In 1985, wife received the marital residence as a gift from

her father. An appraisal indicated that the value of the house

at the time wife received it was $19,400. The property was never

jointly titled. However, husband made significant improvements

to the residence by constructing an addition and renovating the

existing portion of the house. The real estate appraisal valued

the house as improved at $53,000 at the time of the evidentiary

hearing. The trial court found that $19,400 of the value of the

marital residence was the separate property of wife, resulting in

a $33,600 marital portion of the marital residence. During the marriage, the parties financed the acquisition of

a rental property and two lots by taking two mortgages on the

marital residence. The trial court awarded the marital residence

to wife and directed her to pay the first and second mortgages on

the residence because she received that property. The trial

court awarded the rental property and two lots to husband.

Wife testified that, in 1983 before she was married, she

started a tanning business, using her own money and loans

acquired from her father. Husband testified that he gave $13,000

to wife in order to start the tanning business. The business

operated from the parties' Appomattox house until 1990.

- 2 - In the summer of 1990, wife started another tanning business

in Lynchburg, borrowing money to fund this business. Testimony

conflicted as to whether husband assisted in the operation of the

tanning salons. The trial court classified the tanning business

as marital property, awarded wife the business, and directed her

to pay debts associated with the business. The trial court

assessed the value of the business by averaging the valuations

given by the parties. II.

Wife first challenges the trial court's ruling granting

husband the divorce based on the ground of wife's adultery. She

argues that the adultery occurred post-separation and was not the

sole cause for the dissolution of the marriage. The fact that the adultery occurred after the parties separated does not lead inexorably to the conclusion that the adultery had nothing to do with the breakdown of the marriage. "The commission of adultery during that period [of separation] by either party to a marriage in trouble is the one act most likely to frustrate and prevent a reconciliation." Moreover, the ground for divorce need not have caused the deterioration of the marriage in order to award a divorce on such basis. The ground may be only the legal requirement which the legislature has recognized must exist before public policy will permit courts to dissolve a failed marriage.

Derby v. Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989)

(citations omitted).

Wife admits that she committed post-separation adultery.

Although she argues that her adultery was not the sole cause for

- 3 - the dissolution of the marriage, "[i]t is well established that

'[w]here dual or multiple grounds for divorce exist, the trial

judge can use his sound discretion to select the grounds upon

which he will grant the divorce.'" Williams v. Williams, 14 Va.

App. 217, 220, 415 S.E.2d 252, 254 (1992) (citation omitted).

Because Code § 20-91 authorizes a divorce on the ground of

adultery, and because the evidence supports the conclusion that

wife committed adultery, the trial court did not err. III.

"The goal of equitable distribution is to adjust the

property interests of the spouses fairly and equitably." Booth

v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). In so

doing, the trial court is required to "tak[e] into consideration

the factors presented in Code § 20-107.3(E)." Marion v. Marion,

11 Va. App. 659, 665, 401 S.E.2d 432, 436 (1991). "This division

or transfer of jointly owned marital property and the 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). "There

is no presumption in Virginia favoring equal division of marital

property . . . ." Williams v. Williams, 4 Va. App. 19, 22, 354

S.E.2d 64, 65 (1987).

Wife argues that the trial court erred by not considering

the passive appreciation of her separate portion of the marital

residence when placing a value on the marital residence. The

- 4 - trial court accepted wife's appraisal that the value of the

marital residence was $53,000. The trial court also found that

wife's separate interest in the marital residence was $19,400,

the value of the property when she received it as a gift from her

father in 1985. However, wife argues that the appraisal also

indicates that the present value of her separate interest is

$28,922, which represents an annual appreciation of 4% over ten

years. Wife, while acknowledging that husband made improvements

on the property, contends that the increase in value of her

separate interest in the property is attributable only to passive

appreciation and that her separate interest should have been

$28,922, resulting in a readjusted value of the marital interest

of $24,078, rather than $33,600. Code § 20-107.3(A)(3)(a) provides: In the case of the increase in value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such increases, provided that any such personal efforts must be significant and result in substantial appreciation of the separate property.

The definition of "personal effort" includes labor, effort,

and physical skill applied directly to the separate property.

Id.

Husband presented evidence that he is a contractor and that

he constructed an addition onto the marital residence that more

than doubled the square footage of the residence. Husband also

- 5 - testified that he substantially renovated the existing portion of

the residence, including installing replacement windows, a new

roof and a porch. The appraisal applied a value of 41% to the

original portion of the house and a value of 59% to the addition.

The record contains considerable evidence that the value of

the house increased through husband's personal efforts to the

marital residence. The trial court's award is not to be

disturbed on appeal unless plainly wrong or without evidence to

support it. Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d

104, 107 (1989). We find that there was sufficient evidence to

support the findings of the trial court concerning the

classification and valuation of the marital residence.

Wife further argues that the trial court erred when it

ordered that she was responsible for the two mortgages on the

marital residence because these mortgages were used to acquire

rental property and two lots, all of which were awarded to

husband. Thus, wife argues that the value of the marital

residence should have been reduced by the amount of the

indebtedness on the property.

Code § 20-107.3(C) provides that the court shall have the

authority to apportion and order the payment of debts of the

parties. In addition, this section states that the apportionment

of marital debts shall be determined by the court after

consideration of the factors listed in Code § 20-107.3(E). The

trial court specifically stated in its opinion letter that it

- 6 - considered all of the factors set forth in Code § 20-107.3(E) in

making the property distribution. Although the trial court found

that the parties' monetary and non-monetary contributions to the

marriage and to the acquisition and care of the marital property

were equal, the trial judge considered that the wife caused the

marriage to dissolve when she left to live with another man. See

O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527, 458 S.E.2d 323,

325 (1995). In addition, the trial court specifically stated

that it considered all of the factors set forth in Code § 20-107.3(E) with respect to the marital debt.

When dividing the equity in the marital residence, the trial

court considered the nature and character of the debts on the

martial residence. Although the trial court awarded wife a total

value of $67,733 in marital property and awarded husband a total

value of $39,250 in marital property, resulting in a difference

of $28,483, the wife was directed to pay the two deeds of trust

on the marital residence, which totaled $32,000 and other debt.

In view of the finding of fault in the dissolution of the

marriage, we cannot say that the trial court abused its

discretion in directing that wife pay the two deeds of trust and

other debt resulting in a greater award to the husband. "In

reviewing an equitable distribution award on appeal, we recognize

that the trial court's job is a difficult one. Accordingly, we

rely heavily on the discretion of the trial judge in weighing the

many considerations and circumstances that are presented in each

- 7 - case." Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815

(1987), appeal after remand on other grounds, 10 Va. App. 356,

392 S.E.2d 504 (1990).

- 8 - IV.

Wife contends that the trial court erred in finding that the

tanning business was marital property. The evidence of husband's

contribution to the tanning business was in conflict. Wife

claims that she started the business herself, with her own money,

and with funds borrowed by her. She contends that husband was

paid for his labor at the Lynchburg salon just like any other

employee, and she disputes his contribution to the operation of

the business. Husband claims that the parties started the business

together and that it was jointly financed by them. He claims

that he contributed to the operation of the business and that

income from the business sustained the marriage.

"The weight to be given evidence and the resolution of

conflicts in the evidence are for the fact finder. . . . The

trial court's factual findings must be accorded great deference."

Gamer v. Gamer, 16 Va. App. 335, 345, 429 S.E.2d 618, 625

(1993). The trial court was entitled to believe husband's

evidence regarding his participation in and his contribution to

the tanning business. Id. Because credible evidence supports

the trial court's finding that the tanning business was marital

property, we will not disturb the trial court's ruling. See

Brown v. Brown, 5 Va. App. 238, 245, 361 S.E.2d 364, 368 (1987).

V.

Wife contends that the trial court erred in determining a

- 9 - value for the tanning business and erred in not considering the

debt against the property. Wife presented evidence that the

tanning salon had a value of $7,000 to $8,000. Husband testified

that the value of the business was $21,525. The trial court

averaged the figures presented by the parties and valued the

business at $14,762. After classifying the tanning business as

marital property, the trial judge awarded the entire business to

wife, and required that she pay the debts associated with the

business. Initially, wife challenges the trial court's acceptance of

husband's testimony concerning the value of the business,

asserting that husband has no expertise in valuing a business.

However, as stated above, the weight to be given the evidence and

resolution of conflicts in the evidence are questions for the

trial court. Gamer, 16 Va. App. at 345, 429 S.E.2d at 625. The

trial court was not obligated to select the specific value

offered by either party, regardless of their relative

qualifications as experts. See Zipf v. Zipf, 8 Va. App. 387,

395, 382 S.E.2d 263, 268 (1989). We cannot say that the trial

court was plainly wrong in choosing a figure within the range

supported by the evidence, and we find that there was sufficient

evidence in the record to support the trial court's valuation.

Wife next argues that the trial court erred in not reducing

the value of the tanning business by the amount of debt on the

business. The trial court first classified the business as

- 10 - marital property, then awarded the entire value of this property

to wife. The trial court indicated that it considered the

factors set forth in Code § 20-107.3(E) when assigning marital

debt. Code § 20-107.3(E)(7) provides that the debts of each spouse shall be considered as a factor when determining how to distribute jointly owned marital property or to fashion a monetary award. The purpose and nature of the debt, and for and by whom any funds were used, should be considered in deciding whether and how to credit or allot debt.

Gamer, 16 Va. App. at 341, 429 S.E.2d at 623.

The purpose of the debt associated with the tanning business

was to start and operate the tanning business, a business wife

was awarded in the equitable distribution award. The nature of

the debt associated with the tanning business was wife's personal

loans and personal credit card debts. Evidence showed that

$5,600 in loans for the business involved loans from wife's

father which were ten and six years old and toward which no

payments had ever been made.

Moreover, as stated above, when the entire equitable

distribution award is reviewed, husband received $39,250 in

marital property. Deducting the total debts assigned to wife,

wife received marital property with a total value of $24,730.

While the husband received a higher percentage of the marital

estate, "this alone does not indicate an improper division

between the parties. Virginia's statutory scheme of equitable

distribution does not have a presumption favoring an equal

- 11 - distribution of assets." Alphin v. Alphin, 15 Va. App. 395, 404,

424 S.E.2d 572, 576 (1992). Credible evidence was presented

concerning both parties' contributions to the tanning business.

The record also contains credible evidence that the trial court

properly considered the statutory factors in awarding the

property and the marital debt, including the factor that wife's

conduct was primarily the cause of the dissolution of the

marriage. See Code § 20-107.3(E)(5). Accordingly, wife's

challenge to the trial court's ruling is without merit. VI.

Wife asserts that, when the trial court awarded the rental

property and lots to husband, the trial court did not allow wife

credit for payments she made on the mortgages for these

properties and for the payments she made for the homeowner's

insurance for the rental property from the date of separation.

However, in its opinion letter, the trial court stated that wife

was not entitled to any credit for the homeowner's insurance

because she paid this expense voluntarily, and she did not

request that the husband pay any of this expense. Moreover, the

trial court indicated that wife received the benefit of the

parties' time share property since the parties' separation.

Further, as discussed in Section III above, we find no abuse of

discretion in the trial court's directive that wife pay the first

and second mortgages on the marital residence.

For the above stated reasons, the trial court's decision is

- 12 - affirmed.

Affirmed.

- 13 -