Evans D. Poindexter, Jr. v. Katherine M. Jolliff,et

• Court: Court of Appeals of Virginia
• Decided: January 23, 2001
• Docket: 1974001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bumgardner and Senior Judge Hodges

EVANS DANDRIDGE POINDEXTER, JR. MEMORANDUM OPINION * v. Record No. 1974-00-1 PER CURIAM JANUARY 23, 2001 KATHERINE MOORE JOLLIFF, F/K/A KATHERINE MOORE JOLLIFF POINDEXTER

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge

(Charles L. Bashara; Bashara & Hubbard, on briefs), for appellant.

(Barry Kantor; Grady Aston Palmer III; Christie & Kantor, PC, on brief), for appellee.

Evans Dandridge Poindexter, Jr., appellant, appeals a

decision of the trial court finding that he was not entitled to

reimbursement for payments he made on a second mortgage. On

appeal, appellant argues the trial court erred in holding that the

payments constituted a voluntary inter vivos gift. 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.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND

The parties were divorced in 1994. During the marriage, the

parties jointly owned property located in North Carolina. As part

of the property settlement agreement, appellant transferred his

right, title and interest in the property to Katherine Moore

Jolliff, appellee. Appellee agreed to assume responsibility for

all mortgage payments on the property. In the property settlement

agreement, appellant also agreed to pay appellee one-half of the

value of his Individual Retirement Account (IRA).

Unbeknownst to appellee, in 1990, appellant obtained a second

mortgage on the North Carolina property, prior to the parties'

divorce. Appellant acknowledged that he signed the documents for

the second mortgage knowing that the documents stated he was

"unmarried." Appellee first learned about the second mortgage

after the parties had signed the property settlement agreement.

The record further indicates that once appellee learned of the

existence of the second mortgage, her attorney and appellant's

attorney reached an agreement whereby appellant would be

responsible for paying the loan.

Appellant admitted that he used $19,000 of the proceeds from

the second mortgage to buy into a partnership and that he borrowed

additional funds against the line of credit on at least one other

occasion. Appellant made payments on the second mortgage for a

period of time. However, he stopped making the payments at a

point where he contended he had paid an amount roughly equal to

- 2 - the amount he owed appellee for one-half of the value of his IRA

account. Appellant had not otherwise paid appellee for her share

of the IRA account.

Appellee filed a motion to compel appellant to pay the second

mortgage. She also filed and received a show cause order

requiring appellant to show cause why he had not complied with the

property settlement agreement by failing to pay her one-half of

the value of the IRA account. Appellant filed and received a show

cause order demanding that appellee make the second mortgage

payments, arguing that appellee was responsible for all mortgage

payments pursuant to the property settlement agreement. He also

sought reimbursement for the payments he had already made toward

the second mortgage.

The trial court ruled that appellant made the second mortgage

payments voluntarily, and it denied his motion for reimbursement.

INTER VIVOS GIFT

On appeal, appellant argues the trial court erred in ruling

that his payments on the second mortgage were an inter vivos gift.

However, the trial court's order does not state that it found the

payments constituted an inter vivos gift. Rather, the order

states that appellant, "is not entitled to any reimbursement for

monies paid on the second mortgage (equity line of credit) as

these payments were made voluntarily; and his Motion for

reimbursement is hereby denied." Furthermore, the record does not

indicate that appellant made the argument to the trial court that

- 3 - it erred in ruling that the prior payments constituted an inter

vivos gift.

The record on appeal includes an order entered on July 21,

2000, specifying the trial court's findings and rulings.

Appellant endorsed the order "SEEN AND OBJECTED TO." The record

also contains several versions of a written statement of facts

that were not signed by the trial judge. The trial judge signed

appellee's "Objections to the Written Statement of Facts." See

Rule 5A:8(d). Neither the order nor the written statement of

facts contains a statement of appellant's specific objections.

"The Court of Appeals will not consider an argument on

appeal which was not presented to the trial court." Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);

Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of

this question on appeal. Moreover, the record does not reflect

any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18.

DURESS

Pursuant to the property settlement agreement, appellee was

responsible for all mortgage payments on the North Carolina

property. In his show cause order and in his brief on appeal,

appellant contended that he made payments on the second mortgage

in order to protect his credit rating when appellee refused to

repay the second mortgage. In his brief, appellant characterizes

this as payment made under duress.

- 4 - Common-law "duress" includes "'any wrongful acts that compel

a person, such as a grantor of a deed, to manifest apparent assent

to a transaction without volition or cause such fear as to

preclude him from exercising free will and judgment in entering

into a transaction.'" Norfolk Div. of Soc. Servs. v. Unknown

Father, 2 Va. App. 420, 435, 345 S.E.2d 533, 541 (1986) (citation

omitted).

The evidence showed that, prior to the parties' divorce,

appellant obtained the second mortgage without the knowledge of

appellee. Appellant also used the monies obtained from the second

mortgage as his own source of funds, without the knowledge of

appellee. Therefore, the record does not support appellant's

contention that he acted under duress when he made payments on

this loan, the proceeds of which were used entirely for his own

personal benefit. Accordingly, the trial court did not err in

ruling that appellant continue to pay the second mortgage payments

and in ruling that appellant not be reimbursed for past payments

he made on the loan.

UNJUST ENRICHMENT

In his show cause order and in his brief on appeal, appellant

further alleged that his payments toward the second mortgage

resulted in the unjust enrichment of appellee. Unjust

enrichment is defined as, "[t]he retention of a benefit

conferred by another, without offering compensation, in

circumstances where compensation is reasonably expected."

- 5 - Black's Law Dictionary 1536 (7th ed. 1999). Appellee received

no benefit from appellant's conduct of secretly obtaining a

second mortgage against their jointly owned property, using the

proceeds from that loan for his own personal benefit, and then

making payments on that loan. Therefore, appellant's argument

is without merit.

Accordingly, the decision of the circuit court is summarily

affirmed.

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