Doretha Leola Thomas v. John Samuel Thomas

• Court: Court of Appeals of Virginia
• Decided: October 3, 1995
• Docket: 1147951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

DORETHA LEOLA THOMAS

v. Record No. 1147-95-1 MEMORANDUM OPINION * PER CURIAM JOHN SAMUEL THOMAS OCTOBER 3, 1995

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Von L. Piersall, Jr., Judge

(George Minor, Jr., on brief), for appellant. (Howard M. Miller, on brief), for appellee.

Doretha Leola Thomas (wife) appeals from the circuit court's

finding in a divorce proceeding that the residence titled in her

name was marital property. Wife argues that the residence was

bought with funds given to her by John Samuel Thomas (husband)

and was her separate property. Upon reviewing the record and

briefs of the parties, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the decision of the

trial court. Rule 5A:27.

This matter was heard by a commissioner in chancery, whose

report was affirmed by the trial court. The decision of the

trial court will not be set aside on appeal unless it is plainly

wrong or without evidence to support it. McLaughlin v.

McLaughlin, 2 Va. App. 463, 466-67, 346 S.E.2d 535, 536 (1986).

Husband asserts wife is barred by Rule 5A:18 from raising this

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. issue on appeal because wife's counsel endorsed the final order

"Seen, Objected and Excepted to." However, wife's counsel filed

an exception to the commissioner's finding that the residence was

marital property. The trial court overruled the exception in the

final decree. Therefore, the issue was raised before the trial

court below and preserved for appeal. Code § 8.01-384.

Property purchased after the date of the parties' last

separation is separate property, unless the evidence establishes

that marital assets were used to purchase it. Price v. Price, 4

Va. App. 224, 229, 355 S.E.2d 905, 908 (1987). The wife contends

that husband gave marital funds to her for her exclusive use and,

thus, altered their classification as marital assets.

The evidence proved two months before the parties'

separation husband received funds from a personal injury

settlement. Husband initially deposited most of the funds into

an account in his name. Several days later, the husband

transferred funds into a new savings account in wife's name.

Shortly thereafter, wife transferred those funds to a passbook

savings account and three certificate accounts as a joint tenant

with right of survivorship with her mother.

Wife testified that husband transferred the funds to her

because he had to make support payments to his children from an

earlier marriage. Wife testified that to avoid paying support

the husband gave her the funds, saying "put it all in your name

and you do what you want to do with it." The wife further

2 testified as follows: After the money was deposited in her name, wife used to go to the bank every day to withdraw money to give him because if I didn't, he would curse me out, wanting to jump on me, fight me in the house. If you would look on that statement, all them withdrawals, he used to make me go get them.

The evidence was uncontested that husband had a serious drug

problem. Wife testified that she paid $20,000 to one of

husband's drug creditors, and up to $40,000 total to husband's

creditors. After the parties separated on June 28, 1990, wife purchased

the house for $52,000 with funds from her passbook savings

account. The house was deeded to wife as "femme sole, as her

sole and separate equitable estate." Although the evidence

proved that wife and husband discussed buying a house, the

evidence did not show that husband intended to give wife the

funds with which to buy a separate house. Wife testified that

the parties deposited the funds in the bank because "me and

[husband] had intention of getting a house together, but he just

turned sour and he just say he ain't want nothing."

The evidence, including wife's testimony, supports the

commissioner's findings, affirmed by the trial judge that husband

did not give wife the settlement funds as her separate property.

He gave her the funds to avoid his creditors and to hold and use

subject to his direction. Thus, the evidence supports the

conclusion that the residence, which was purchased after the

3 parties' final separation was purchased with marital assets and,

was marital property subject to the deed of trust. Code

§ 20-107.3(A)(3)(C) and (H).

Accordingly, the decision of the circuit court is summarily

affirmed.