Janet Gilbert Mezzy v. Mark J. Mezzy

• Court: Court of Appeals of Virginia
• Decided: January 18, 2000
• Docket: 1743991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

JANET GILBERT MEZZY MEMORANDUM OPINION * v. Record No. 1743-99-1 PER CURIAM JANUARY 18, 2000 MARK J. MEZZY

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge

(Carl W. Isbrandtsen; Carl W. Isbrandtsen, P.C., on brief), for appellant.

No brief for appellee.

Janet G. Mezzy (wife) appeals the equitable distribution

decision of the circuit court. Wife contends on appeal that the

trial court plainly erred by (1) awarding Mark J. Mezzy (husband)

fifty percent of wife's Fidelity IRA account #T104862513;

(2) awarding husband fifty percent of wife's Fidelity SEP/IRA

account #T104329904; (3) awarding husband fifty percent of wife's

Fidelity IRA account #T104862513; (4) awarding husband fifty

percent of the Merrill Lynch Children's College fund and in

classifying the fund as marital property; and (5) awarding husband

fifty percent of the marital portion of the equity in the marital

residence. Upon reviewing the record and opening brief, we

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. conclude that this appeal is without merit. Accordingly, we

summarily affirm the decision of the trial court. See Rule 5A:27.

Evidence was heard by the commissioner in chancery, whose

report is presumed to be correct. "The commissioner has the

authority to resolve conflicts in the evidence and to make

factual findings. When the commissioner's findings are based

upon ore tenus evidence, 'due regard [must be given] to the

commissioner's ability . . . to see, hear, and evaluate the

witness at first hand.'" Brown v. Brown, 11 Va. App. 231, 236,

397 S.E.2d 545, 548 (1990) (citing Hill v. Hill, 227 Va. 569,

577, 318 S.E.2d 292, 297 (1984)). "The decree confirming the

commissioner's report is presumed to be correct and will not be

disturbed if it is reasonably supported by substantial,

competent, and credible evidence." Brawand v. Brawand, 1 Va.

App. 305, 308, 338 S.E.2d 651, 652 (1986).

Fidelity IRA #T104862513

The parties agreed that this account was opened by wife

prior to the marriage and that $4,000 of the amount of this IRA

was wife's separate property. The trial court found that the

remaining balance of $17,935.50 was marital property, as it was

contributed by wife during the marriage. While wife argues that

the marital contributions were transmuted into separate property

because they were commingled, Code § 20-107.3(A)(3)(d) provides

that

- 2 - When marital property and separate property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification.

Funds earned and contributed by wife during the marriage were

retraceable as marital property and, therefore, the trial court

did not err in classifying those funds as marital.

While wife correctly notes that there is no presumption of

equal division under Virginia law, neither can we say that the

trial court erred in concluding that it was appropriate to make

an equal division of the parties' marital assets. See Papuchis

v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986).

The trial court treated the marital assets claimed by both

parties in the same way, dividing them equally between the

parties. Wife has failed to demonstrate sufficient grounds to

reverse the trial court's decision to accept the recommendation

of the commissioner.

Fidelity SEP/IRA #T104329904

Wife concedes that this account was marital, as it was

created during the marriage. We find no reversible error in the

trial court's decision to accept the recommendation of the

- 3 - commissioner to equal by divide this marital asset between the

parties.

This account was created during the marriage. For the

reasons previously stated, we cannot say that the trial court's

decision to accept the recommendation of the commissioner that

this account be divided in a manner identical to that used for

other pieces of marital property was reversible error.

Merrill Lynch Children's College Fund

Wife contends that the trial court erred in accepting the

commissioner's report classifying this account as marital

property and awarding husband a fifty percent interest. The

fund was opened during the marriage and titled in wife's name.

Although there was evidence that the parties agreed to use this

fund for the children's education, the intended use of this

money did not affect its classification as marital property. In

contrast, the commissioner found that other property held in the

children's name was not subject to equitable distribution. We

find no error in the trial court's acceptance of the

commissioner's recommendation concerning the classification of

this account or the decision to divide the account equally

between the parties.

Baycliff Drive

Wife contends that the trial court erred by awarding

husband fifty percent of the marital equity in the marital

- 4 - residence. The commissioner found that the residence was part

wife's separate property and part marital property. The

evidence established that wife's parents gave wife $28,000 for

the down payment on the house during the marriage. The

commissioner found that an additional $1,000 contribution

towards the down payment used marital funds. Wife's parents

insisted that wife purchase the house solely in her name. The

contract listed wife as the sole purchaser. Husband made no

separate contributions toward the down payment of the house, and

his name was placed on the deed by mistake. The parties reduced

the outstanding mortgage by $9,773.35 through payments made

during the marriage. Wife made the majority of these payments

from her separate account, although husband made four payments

toward the mortgage from his separate funds.

Based upon the Brandenburg formula, the trial court

computed wife's separate share of the equity in the Baycliff

Drive property and the marital share. See generally Hart v.

Hart, 27 Va. App. 46, 64-66, 497 S.E.2d 496, 504-06 (1998). Wife

received $75,783.85 as her separate share of the equity in the

marital residence. The trial court determined that the marital

portion was $29,158.79, and awarded husband fifty percent of the

marital portion.

We find no reversible error. The house was purchased during

the marriage, largely with wife's separate funds. However, the

mortgage was paid during the marriage using marital funds. We

- 5 - cannot say that the trial court's division of the equity in the

Baycliff Drive residence was erroneous.

Statutory Factors

Wife also argues that the commissioner and the trial court

failed to consider the statutory factors set out in Code

§ 20-107.3(E) when making the equitable distribution decision.

"A trial court, when considering these factors, is not required

to quantify the weight given to each, nor is it required to

weigh each factor equally, though its considerations must be

supported by the evidence." Marion v. Marion, 11 Va. App. 659,

664, 401 S.E.2d 432, 436 (1991).

[U]nless it appears from the record that the trial judge has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the equitable distribution award will not be reversed on appeal.

Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 727 (1990). 1

The commissioner considered the origin of the parties'

property and the source of funds used to maintain the property.

Wife sought a divorce on the grounds of cruelty and desertion,

1 Although wife noted exceptions to the commissioner's report and the supplemental report concerning the classification and distribution of specific items of property, wife's only explicit reference to the consideration of the statutory factors was made, if at all, through an incorporated reference to an earlier memorandum. At no point in her exceptions or objections did wife clearly raise the objection that the commissioner and the trial court failed to consider the statutory factors.

- 6 - but the commissioner granted a divorce solely on the grounds of

the parties living separate and apart in excess of one year.

The commissioner noted that husband was convicted in 1995 for

counterfeiting food stamps and that husband sold marijuana for a

number of years, without wife's knowledge. Nonetheless, the

commissioner found that husband spent time with the parties'

children and was a good father "to the best of his ability."

Wife failed to note with specificity which statutory

factors were not considered by the commissioner or how those

factors would have affected the court's equitable distribution

award.

Although the appellant argues that the trial court did not consider all of the statutory factors, [her] brief fails to identify which factors were not considered and how they would have affected the trial court's determination. Since this argument was not fully developed in the appellant's brief, we need not address this question. Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration. We will not search the record for errors in order to interpret the appellant's contention and correct deficiencies in a brief.

Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239

(1992) (citation omitted). Wife, therefore, has failed to prove

any grounds for reversing the equitable distribution for failure

to properly consider the statutory factors set out in Code

§ 20-107.3(E).

- 7 - Accordingly, the decision of the circuit court is summarily

affirmed.

- 8 -