COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton Argued at Richmond, Virginia
DOROTHY M. MOSES MEMORANDUM OPINION * BY v. Record No. 1426-97-2 JUDGE NELSON T. OVERTON MARCH 3, 1998 WILLIAM J. MOSES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Randall G. Johnson, Judge Joseph E. Blackburn (White, Blackburn & Conte, P.C., on brief), for appellant.
Deanna D. Cook (Murray J. Janus; Bremner & Janus, on brief), for appellee.
Dorothy M. Moses (wife) appeals a decree granting her a
divorce a vinculo matrimonii from William J. Moses (husband).
She contends the trial court erred by: (1) ruling that an
interest in certain realty was not a gift, (2) ordering her to
reconvey that interest back to husband and (3) ordering
prospective division of the payments on a promissory note found
to be marital property. Husband cross-appeals the trial court's
finding that the promissory note was marital property. Because
the parties' arguments are without merit, we affirm.
Two properties form the basis for this appeal: 4338
Chamberlayne Avenue (hereinafter "Chamberlayne") and 2908
Idlewood Avenue (hereinafter "Idlewood"). The parties agree that
disposition of these properties was governed by their pre-marital * Pursuant to Code § 17-116.010 this opinion is not designated for publication. agreement. The agreement provides inter alia that property held
before the marriage and the proceeds of the sale or exchange of
such property is separate property not subject to equitable
distribution upon divorce. A schedule of these properties was
attached to the agreement. Chamberlayne is listed on the
schedule as husband's separate property. Idlewood is not listed
because it was purchased during the marriage with proceeds of
separate property. The parties disposed of both Chamberlayne and Idlewood
during the marriage. A life estate in Chamberlayne was sold with
a reversionary interest in husband and wife retained. Idlewood
was sold in fee simple in exchange for a promissory note secured
by a Deed of Trust on the property. The note was payable to both
parties jointly.
The trial court originally found that, under the terms of
the agreement, the properties were separate because Chamberlayne
predated the marriage and Idlewood was purchased with funds
predating the marriage. However, because husband asserted in his
Answer and Cross-Bill that wife "fraudulently coerced [husband]
into giving her substantial gifts [and] interests in real
estate," the trial court allowed wife to prove the properties
were gifts and husband to prove they were made under fraud or
coercion.
At the subsequent hearing, wife produced husband's answer to
her interrogatory asking to what gifts he referred in his Answer
- 2 - and Cross-Bill. In his answer, he stated that "one-half interest
in a note from 2908 Idlewood Avenue" was such a gift. Because
husband failed to show the gift was obtained under fraud or
coercion, the trial court found the gift of Idlewood to be a
modification of the agreement. Therefore, the trial court
awarded her fifty percent of the payments on the Idlewood note,
payable from the time of the divorce decree. Wife could not,
however, show that Chamberlayne was a gift so it remained the
separate property of husband. Wife first contends that husband was bound by the statement
in his pleadings that he gave wife "interests in real estate."
She asserts that this statement is inconsistent with his later
claim that Chamberlayne was not a gift. Therefore, under wife's
argument, he would be estopped from taking that position. See
Burch v. Grace Street Building Corp., 168 Va. 329, 340, 191 S.E.
672, 677 (1937). Her definition of the word "inconsistent" is an
interesting one indeed. Husband's statement in his pleading was
that he had made gifts of real estate. Wife interprets this to
mean that all of his real estate was a gift. Yet husband did not
plead that all of his real estate was a gift, only that some of
it was. Therefore, his claim that Chamberlayne and Idlewood are
among the realties which were not gifted is not inconsistent, and
he was properly allowed to rebut wife's evidence on the matter.
Wife next asserts that the trial court erred when it placed
the burden to prove a gift upon her. She notes that the parties
- 3 - waived application of Code § 20-107.3 by the express terms of
their agreement and, therefore, the burden of proving a gift is
not on the donee, but the donor. See Theismann v. Theismann, 22
Va. App. 557, 565 n.1, 471 S.E.2d 809, 813 n.1 (1996), aff'd on
reh'g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). However,
she ignores the language of the rest of the agreement. The
agreement clearly states that "property identified on the
attached schedule is property acquired before by each respective
party prior to the marriage and shall be deemed separate
property." Chamberlayne is so identified. The agreement further
provides that "each party shall remain the exclusive owner of his
or her own separate property free from any claim or demand of the
other in the event of . . . divorce." Therefore, under the
agreement, the property was presumed to be separate unless wife
could show that husband had given it to her as a gift. Husband's
uncontradicted testimony was that he re-titled Chamberlayne as a
form of estate planning in case he should die while the parties
were still married. Because there is sufficient evidence to
support the trial court's conclusion that Chamberlayne remained
the separate property of husband, we affirm that ruling. See
Gamer v. Gamer, 16 Va. App. 335, 345, 429 S.E.2d 618, 625 (1993).
Wife next contends that the trial court did not have
authority to order wife to deed her purported interest back to
husband. We are faced with the rather novel problem presented
where property has been determined to be separate, but it is
- 4 - currently titled in the names of both parties. Where law creates
a question, however, equity often answers it.
Code § 20-107.3(C) states that "the court shall have no
authority to order the division or transfer of separate
property." Therefore, the order of the trial court directing
wife to transfer her reversionary interest back to husband flows
not from the statute. However, courts can order property
transferred in equity "where [property] has been fairly and
properly acquired, but it is contrary to the principles of equity
that it should be retained, at least for the acquirer's own
benefit." See Woolley v. Woolley, 3 Va. App. 337, 342, 349
S.E.2d 442, 425 (1986) (citing Leonard v. Counts, 221 Va. 58,
589, 272 S.E.2d 190, 195 (1980)). The issue before us now is
just such a case. The parties, through their agreement, did not
intend for wife to retain legal title to the property. Yet the
court could not have transferred the property directly through
its own order. Therefore, when the trial court ordered wife to
"sign whatever documents are necessary to convey any reversionary
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton Argued at Richmond, Virginia
DOROTHY M. MOSES MEMORANDUM OPINION * BY v. Record No. 1426-97-2 JUDGE NELSON T. OVERTON MARCH 3, 1998 WILLIAM J. MOSES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Randall G. Johnson, Judge Joseph E. Blackburn (White, Blackburn & Conte, P.C., on brief), for appellant.
Deanna D. Cook (Murray J. Janus; Bremner & Janus, on brief), for appellee.
Dorothy M. Moses (wife) appeals a decree granting her a
divorce a vinculo matrimonii from William J. Moses (husband).
She contends the trial court erred by: (1) ruling that an
interest in certain realty was not a gift, (2) ordering her to
reconvey that interest back to husband and (3) ordering
prospective division of the payments on a promissory note found
to be marital property. Husband cross-appeals the trial court's
finding that the promissory note was marital property. Because
the parties' arguments are without merit, we affirm.
Two properties form the basis for this appeal: 4338
Chamberlayne Avenue (hereinafter "Chamberlayne") and 2908
Idlewood Avenue (hereinafter "Idlewood"). The parties agree that
disposition of these properties was governed by their pre-marital * Pursuant to Code § 17-116.010 this opinion is not designated for publication. agreement. The agreement provides inter alia that property held
before the marriage and the proceeds of the sale or exchange of
such property is separate property not subject to equitable
distribution upon divorce. A schedule of these properties was
attached to the agreement. Chamberlayne is listed on the
schedule as husband's separate property. Idlewood is not listed
because it was purchased during the marriage with proceeds of
separate property. The parties disposed of both Chamberlayne and Idlewood
during the marriage. A life estate in Chamberlayne was sold with
a reversionary interest in husband and wife retained. Idlewood
was sold in fee simple in exchange for a promissory note secured
by a Deed of Trust on the property. The note was payable to both
parties jointly.
The trial court originally found that, under the terms of
the agreement, the properties were separate because Chamberlayne
predated the marriage and Idlewood was purchased with funds
predating the marriage. However, because husband asserted in his
Answer and Cross-Bill that wife "fraudulently coerced [husband]
into giving her substantial gifts [and] interests in real
estate," the trial court allowed wife to prove the properties
were gifts and husband to prove they were made under fraud or
coercion.
At the subsequent hearing, wife produced husband's answer to
her interrogatory asking to what gifts he referred in his Answer
- 2 - and Cross-Bill. In his answer, he stated that "one-half interest
in a note from 2908 Idlewood Avenue" was such a gift. Because
husband failed to show the gift was obtained under fraud or
coercion, the trial court found the gift of Idlewood to be a
modification of the agreement. Therefore, the trial court
awarded her fifty percent of the payments on the Idlewood note,
payable from the time of the divorce decree. Wife could not,
however, show that Chamberlayne was a gift so it remained the
separate property of husband. Wife first contends that husband was bound by the statement
in his pleadings that he gave wife "interests in real estate."
She asserts that this statement is inconsistent with his later
claim that Chamberlayne was not a gift. Therefore, under wife's
argument, he would be estopped from taking that position. See
Burch v. Grace Street Building Corp., 168 Va. 329, 340, 191 S.E.
672, 677 (1937). Her definition of the word "inconsistent" is an
interesting one indeed. Husband's statement in his pleading was
that he had made gifts of real estate. Wife interprets this to
mean that all of his real estate was a gift. Yet husband did not
plead that all of his real estate was a gift, only that some of
it was. Therefore, his claim that Chamberlayne and Idlewood are
among the realties which were not gifted is not inconsistent, and
he was properly allowed to rebut wife's evidence on the matter.
Wife next asserts that the trial court erred when it placed
the burden to prove a gift upon her. She notes that the parties
- 3 - waived application of Code § 20-107.3 by the express terms of
their agreement and, therefore, the burden of proving a gift is
not on the donee, but the donor. See Theismann v. Theismann, 22
Va. App. 557, 565 n.1, 471 S.E.2d 809, 813 n.1 (1996), aff'd on
reh'g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). However,
she ignores the language of the rest of the agreement. The
agreement clearly states that "property identified on the
attached schedule is property acquired before by each respective
party prior to the marriage and shall be deemed separate
property." Chamberlayne is so identified. The agreement further
provides that "each party shall remain the exclusive owner of his
or her own separate property free from any claim or demand of the
other in the event of . . . divorce." Therefore, under the
agreement, the property was presumed to be separate unless wife
could show that husband had given it to her as a gift. Husband's
uncontradicted testimony was that he re-titled Chamberlayne as a
form of estate planning in case he should die while the parties
were still married. Because there is sufficient evidence to
support the trial court's conclusion that Chamberlayne remained
the separate property of husband, we affirm that ruling. See
Gamer v. Gamer, 16 Va. App. 335, 345, 429 S.E.2d 618, 625 (1993).
Wife next contends that the trial court did not have
authority to order wife to deed her purported interest back to
husband. We are faced with the rather novel problem presented
where property has been determined to be separate, but it is
- 4 - currently titled in the names of both parties. Where law creates
a question, however, equity often answers it.
Code § 20-107.3(C) states that "the court shall have no
authority to order the division or transfer of separate
property." Therefore, the order of the trial court directing
wife to transfer her reversionary interest back to husband flows
not from the statute. However, courts can order property
transferred in equity "where [property] has been fairly and
properly acquired, but it is contrary to the principles of equity
that it should be retained, at least for the acquirer's own
benefit." See Woolley v. Woolley, 3 Va. App. 337, 342, 349
S.E.2d 442, 425 (1986) (citing Leonard v. Counts, 221 Va. 58,
589, 272 S.E.2d 190, 195 (1980)). The issue before us now is
just such a case. The parties, through their agreement, did not
intend for wife to retain legal title to the property. Yet the
court could not have transferred the property directly through
its own order. Therefore, when the trial court ordered wife to
"sign whatever documents are necessary to convey any reversionary
interest she may have of record" it did not do so under Code
§ 20-107.3, but through its equity power. If in the future wife
fails to comply with the court's order, it may impose a
constructive trust, order a commissioner in chancery to sign the
deed or take whatever steps may be necessary in equity to secure
husband's interest in Chamberlayne. See Gifford v. Dennis, 230
Va. 193, 335 S.E.2d 371 (1985).
- 5 - Wife's final contention is that the trial court erred by
ordering husband to begin paying wife her share of the Idlewood
promissory note payments only from the date of the divorce decree
forward. "Fashioning an . . . award lies within the sound
discretion of the trial judge and that award will not be set
aside unless it is plainly wrong or without evidence to support
it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d
675, 678 (1990). The trial court found the payments preceding
entry of the order had gone to expenses of the former marital
estate. It, therefore, chose to discount them and make payments
prospective only. Because we cannot say that the trial court
abused its discretion, we affirm its decision. Husband's only contention on appeal is that the trial court
erred when it found Idlewood to have been a gift. The trial
court noted in its opinion that husband admitted in his answer to
interrogatories that he had given Idlewood to wife as a gift. It
similarly found that husband had failed to prove that the gift
was procured by fraud or coercion due to the fact that husband
did not present any evidence whatsoever on that issue. It,
therefore, found the gift valid and ordered husband to pay wife
her share of the proceeds of the note. Because the court did not
abuse its discretion, we affirm. Id.
For the forgoing reasons, the decision of the trial court is
affirmed. Affirmed.
- 6 -