COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia
DEBORAH A. WILLIAMS MEMORANDUM OPINION * BY v. Record No. 2443-97-1 JUDGE JOSEPH E. BAKER JUNE 30, 1998 WILEY D. WILLIAMS
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH John K. Moore, Judge Carl W. Isbrandtsen (Carl W. Isbrandtsen, P.C., on briefs), for appellant.
Moody E. Stallings, Jr. (Kevin E. Martingayle; Stallings & Richardson, P.C., on brief), for appellee.
In this appeal from a decree of divorce entered by the
Circuit Court of the City of Virginia Beach (trial court),
Deborah A. Williams (wife) contends the trial court
(1) erroneously classified common stock of B. R. Williams & Son,
Inc. (the company), registered in the name of Wiley D. Williams
(husband), as separate property, or, in the alternative,
(2) erroneously classified as separate property real estate known
as Lot 72, Section 6, Corova (Lot 72), and (3) erroneously valued
husband's interest in real property known as Mandan Road.
Finding no error, we affirm the judgment of the trial court.
As the parties are familiar with the record, we state only
those facts necessary to an understanding of this opinion. In
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. doing so, we separately discuss the applicable facts relating to
the issues raised and view the evidence in the light most
favorable to the prevailing party below. The evidence was heard
by a commissioner in chancery, to whom the matter was referred by
the trial court.
Pursuant to Code § 20-107.3, the trial court is authorized
to make monetary awards. See Day v. Day, 8 Va. App. 346, 349,
381 S.E.2d 364, 366 (1989). The trial court's findings are
presumed correct on appeal and are given "great weight" by this
Court. See Rowe v. Rowe, 24 Va. App. 123, 140, 480 S.E.2d 760,
768 (1997) (quoting Panlock v. Gallop, 207 Va. 989, 994, 154
S.E.2d 153, 157 (1967)). The party who asserts the trial court
erred in making such findings "is required to overcome the
presumption by record proof." Broom v. Broom, 15 Va. App. 497,
504, 425 S.E.2d 90, 94 (1992). Therefore, in reviewing the
record and wife's claims, we must accord great deference to the
trial court's findings, and its judgment will not be disturbed
unless plainly wrong or without evidence to support it. See,
e.g., Keyser v. Keyser, 7 Va. App. 405, 409, 374 S.E.2d 698, 701
(1988) (citing Code § 8.01-680).
Stock of B. R. Williams & Son, Inc.
Husband and his parents formed the company in 1972, prior to
husband's marriage to wife. Husband, his father, and his mother
each received one-third of the outstanding shares of the
company's stock. Upon his father's death in 1982, husband
- 2 - inherited his father's one-third share in the company.
Subsequently, husband's mother loaned the company a total of
$85,000, which has never been repaid.
In 1986, husband and wife borrowed and advanced $4,500 to
the company, which, with $16,500 of the company's money, was used
to purchase two real estate lots in Currituck, North Carolina,
identified as Lot 72, Section 6 (Lot 72), and Lot 6, Section 4
(Lot 6). Husband's original intent was to title each lot in the
company's name; however, "during closing," at which wife was not
present, husband directed Lot 6 be titled jointly to him and wife
and Lot 72 be titled in the company's name only. Wife testified
she was unaware Lot 72 had not also been titled jointly in the
parties' names. The commissioner accepted husband's testimony that Lot 72
was intended to be corporate property and recommended it be
declared separate property owned solely by the company and valued
at $41,282. Wife claimed Lot 72, titled to the company, was an
asset she contributed to the company which transmuted husband's
stock to marital property. However, the trial court rejected
that claim, and we cannot say its decision was clearly wrong.
In addition, the commissioner reported the evidence
disclosed that the company stock had no fair market value other
than the value of the lot, and the record confirms that the
company had no assets other than Lot 72. The trial court
accepted the commissioner's appraisal. Because no evidence
- 3 - supports a contrary view and the debt to husband's mother was
twice the amount of the sole corporate asset, we cannot say the
trial court's decision was clearly wrong or without evidence to
support it.
The North Carolina Property
The commissioner reported Lot 6 was marital property, and
the trial court agreed. The parties do not contest that
decision. The commissioner noted, and in fact the record shows,
there was considerable dispute over whether the parties intended
Lot 72 to be owned by the corporation or by the parties jointly.
While the evidence is conflicting, the trial court accepted
husband's evidence when it declared Lot 72 and the company stock
owned by husband to be separate properties. The commissioner
noted the property was titled in the corporate name and accepted
the testimony presented by husband that only corporate assets
were used to purchase Lot 72 and that it was always the parties'
intent to title it in that manner. He implicitly rejected wife's
assertion that the corporate monies paid for the lots were salary to husband rather than funds for purchase of an asset (Lot 72)
for the company. He also rejected wife's claims of resulting
trust, fraud, and transmutation.
Viewing the evidence in the light most favorable to husband
as the prevailing party below, we cannot say the trial court
erred in making that decision.
Mandan Road
- 4 - Wife contends the trial court made an erroneous monetary
award in favor of husband when it approved the commissioner's
proposed division of the equity in the Mandan Road property. The
commissioner's report, approved by the trial court, contained the
following analysis: Mandan Road, Virginia Beach, Virginia. The marital home is legally titled in the [wife]. It has a fair market value of $89,000.00 and secures a debt of approximately $53,000.00, leaving an equity of $36,000.00. It is marital property. Considering sale expenses, the equity would be reduced by at least $7,000.00, for an equity of $29,000.00, or Defendant's share of $14,500.00.
Wife does not dispute the classification of the property as
marital, although it was titled in her name only. Rather, she
contends husband's share had no value.
In this appeal, the burden is upon wife to show by the
record that the trial court's finding constituted reversible
error. We hold wife failed to show by this record that the trial
court erroneously valued husband's marital interest in Mandan
Road.
The parties do not dispute that, when they resided together
in the Mandan Road house, the property was titled in wife's name
only.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia
DEBORAH A. WILLIAMS MEMORANDUM OPINION * BY v. Record No. 2443-97-1 JUDGE JOSEPH E. BAKER JUNE 30, 1998 WILEY D. WILLIAMS
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH John K. Moore, Judge Carl W. Isbrandtsen (Carl W. Isbrandtsen, P.C., on briefs), for appellant.
Moody E. Stallings, Jr. (Kevin E. Martingayle; Stallings & Richardson, P.C., on brief), for appellee.
In this appeal from a decree of divorce entered by the
Circuit Court of the City of Virginia Beach (trial court),
Deborah A. Williams (wife) contends the trial court
(1) erroneously classified common stock of B. R. Williams & Son,
Inc. (the company), registered in the name of Wiley D. Williams
(husband), as separate property, or, in the alternative,
(2) erroneously classified as separate property real estate known
as Lot 72, Section 6, Corova (Lot 72), and (3) erroneously valued
husband's interest in real property known as Mandan Road.
Finding no error, we affirm the judgment of the trial court.
As the parties are familiar with the record, we state only
those facts necessary to an understanding of this opinion. In
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. doing so, we separately discuss the applicable facts relating to
the issues raised and view the evidence in the light most
favorable to the prevailing party below. The evidence was heard
by a commissioner in chancery, to whom the matter was referred by
the trial court.
Pursuant to Code § 20-107.3, the trial court is authorized
to make monetary awards. See Day v. Day, 8 Va. App. 346, 349,
381 S.E.2d 364, 366 (1989). The trial court's findings are
presumed correct on appeal and are given "great weight" by this
Court. See Rowe v. Rowe, 24 Va. App. 123, 140, 480 S.E.2d 760,
768 (1997) (quoting Panlock v. Gallop, 207 Va. 989, 994, 154
S.E.2d 153, 157 (1967)). The party who asserts the trial court
erred in making such findings "is required to overcome the
presumption by record proof." Broom v. Broom, 15 Va. App. 497,
504, 425 S.E.2d 90, 94 (1992). Therefore, in reviewing the
record and wife's claims, we must accord great deference to the
trial court's findings, and its judgment will not be disturbed
unless plainly wrong or without evidence to support it. See,
e.g., Keyser v. Keyser, 7 Va. App. 405, 409, 374 S.E.2d 698, 701
(1988) (citing Code § 8.01-680).
Stock of B. R. Williams & Son, Inc.
Husband and his parents formed the company in 1972, prior to
husband's marriage to wife. Husband, his father, and his mother
each received one-third of the outstanding shares of the
company's stock. Upon his father's death in 1982, husband
- 2 - inherited his father's one-third share in the company.
Subsequently, husband's mother loaned the company a total of
$85,000, which has never been repaid.
In 1986, husband and wife borrowed and advanced $4,500 to
the company, which, with $16,500 of the company's money, was used
to purchase two real estate lots in Currituck, North Carolina,
identified as Lot 72, Section 6 (Lot 72), and Lot 6, Section 4
(Lot 6). Husband's original intent was to title each lot in the
company's name; however, "during closing," at which wife was not
present, husband directed Lot 6 be titled jointly to him and wife
and Lot 72 be titled in the company's name only. Wife testified
she was unaware Lot 72 had not also been titled jointly in the
parties' names. The commissioner accepted husband's testimony that Lot 72
was intended to be corporate property and recommended it be
declared separate property owned solely by the company and valued
at $41,282. Wife claimed Lot 72, titled to the company, was an
asset she contributed to the company which transmuted husband's
stock to marital property. However, the trial court rejected
that claim, and we cannot say its decision was clearly wrong.
In addition, the commissioner reported the evidence
disclosed that the company stock had no fair market value other
than the value of the lot, and the record confirms that the
company had no assets other than Lot 72. The trial court
accepted the commissioner's appraisal. Because no evidence
- 3 - supports a contrary view and the debt to husband's mother was
twice the amount of the sole corporate asset, we cannot say the
trial court's decision was clearly wrong or without evidence to
support it.
The North Carolina Property
The commissioner reported Lot 6 was marital property, and
the trial court agreed. The parties do not contest that
decision. The commissioner noted, and in fact the record shows,
there was considerable dispute over whether the parties intended
Lot 72 to be owned by the corporation or by the parties jointly.
While the evidence is conflicting, the trial court accepted
husband's evidence when it declared Lot 72 and the company stock
owned by husband to be separate properties. The commissioner
noted the property was titled in the corporate name and accepted
the testimony presented by husband that only corporate assets
were used to purchase Lot 72 and that it was always the parties'
intent to title it in that manner. He implicitly rejected wife's
assertion that the corporate monies paid for the lots were salary to husband rather than funds for purchase of an asset (Lot 72)
for the company. He also rejected wife's claims of resulting
trust, fraud, and transmutation.
Viewing the evidence in the light most favorable to husband
as the prevailing party below, we cannot say the trial court
erred in making that decision.
Mandan Road
- 4 - Wife contends the trial court made an erroneous monetary
award in favor of husband when it approved the commissioner's
proposed division of the equity in the Mandan Road property. The
commissioner's report, approved by the trial court, contained the
following analysis: Mandan Road, Virginia Beach, Virginia. The marital home is legally titled in the [wife]. It has a fair market value of $89,000.00 and secures a debt of approximately $53,000.00, leaving an equity of $36,000.00. It is marital property. Considering sale expenses, the equity would be reduced by at least $7,000.00, for an equity of $29,000.00, or Defendant's share of $14,500.00.
Wife does not dispute the classification of the property as
marital, although it was titled in her name only. Rather, she
contends husband's share had no value.
In this appeal, the burden is upon wife to show by the
record that the trial court's finding constituted reversible
error. We hold wife failed to show by this record that the trial
court erroneously valued husband's marital interest in Mandan
Road.
The parties do not dispute that, when they resided together
in the Mandan Road house, the property was titled in wife's name
only. Originally, the property secured two loans made to the
parties jointly. A first mortgage favored Life Savings Bank.
The balance owed was $23,351.12. The second lien secured a loan
made to the parties by Seaboard Savings Bank with a $28,754.29
balance owed. Seaboard demanded payment of the balance due it,
- 5 - causing the parties to refinance the debts. For reasons
disputed, the new lender would not accept husband as a borrower,
and wife became sole owner of the property and solely responsible
for the amount borrowed. An exhibit discloses this loan was in
the amount of $55,000; $23,351.12 of the loan paid Life Savings
and $28,754.29 of the loan paid Seaboard. Wife concedes the loan
from Life Savings was for the mutual benefit of the parties.
However, she asserts the $28,754.29 paid to Seaboard was for
monies borrowed solely for the benefit of the company. Wife's
exception to the commissioner's valuation was as follows: The Commissioner failed to account for $28,000.00 in debt of B.R. Williams & Son, Inc. (a corporation solely owned by the defendant and his mother). The plaintiff will have to pay back this debt by repayment of the Note secured by the property, although the benefit of same accrued to the corporation.
Wife was equally liable with husband on the Seaboard loan.
The evidence concerning use of the Seaboard loan proceeds is
tenuous, at best. Viewed in the light most favorable to husband,
wife did not know for what purpose the Seaboard loan monies were
used, and husband testified some of the money was "for use in my
business," some was "to pay house payments" when the parties were
living in LagoMar, and at least $1,000 went toward the purchase
of the Corova lots. Wife excepted to the commissioner's
recommendation, but the trial court overruled her exception.
Because wife failed to file a transcript of the proceedings held
in the trial court on those exceptions, we cannot determine
- 6 - whether the trial court erroneously valued the parties'
respective interests in Mandan Road. 1 Wife has not met her
burden of proving the trial court committed reversible error when
it approved the commissioner's recommended division of the equity
in Mandan Road. Therefore, we cannot say the trial court erred
in holding wife solely responsible for the balance from the
Seaboard loan.
For the reasons stated, the judgment of the trial court is
affirmed. Affirmed.
1 Code § 20-107.3 mandates that the court determine the ownership and value of all real and personal property of the parties. The determination must go beyond mere guesswork. See, e.g., Artis v. Artis, 4 Va. App. 132, 136, 354 S.E.2d 812, 814 (1987); Hodges v. Hodges, 2 Va. App. 508, 516, 347 S.E.2d 134, 139 (1986).
- 7 -