Jerry Wayne Carper v. Debra Roach Carper

• Court: Court of Appeals of Virginia
• Decided: September 4, 2001
• Docket: 0467013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Overton

JERRY WAYNE CARPER MEMORANDUM OPINION * v. Record No. 0467-01-3 PER CURIAM SEPTEMBER 4, 2001 DEBRA ROACH CARPER

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY John J. McGrath, Jr., Judge

(Jerry W. Carper, pro se, on briefs).

(H. David O'Donnell, on brief), for appellee.

Jerry W. Carper (husband) appeals the decision of the circuit

court awarding him a no fault divorce from Debra R. Carper (wife).

On appeal, husband contends the trial court erred in (1)

determining the true value of the marital residence, (2) dividing

the marital property, (3) determining the value and ownership of

the parties' personal property, and (4) awarding spousal support

to wife. Husband asks that the trial court's judgment be reversed

and the case remanded to determine the proper division of the

parties' property. Upon reviewing the record and briefs of the

parties, we conclude that this appeal is without merit.1

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellee has filed a motion to dismiss. We deny that motion. Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.

On appeal, we view the evidence and all reasonable

inferences in the light most favorable to appellee as the party

prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).

Procedural Background

The parties were married in August 1982. In December 1999,

husband filed a bill of complaint seeking a divorce from wife. In

January 2001, the trial court heard evidence on the issues of

grounds of divorce, equitable distribution, permanent spousal

support, and attorney's fees. On January 23, 2001, the court

granted husband a divorce a vinulo matrimonii from wife pursuant

to Code § 20-91(9). The court further found that the value of the

marital residence was $95,000, divided the marital estate, and

awarded wife spousal support of $350 per month.

Analysis

I.

Both parties presented evidence as to the value of the

marital residence. Husband's appraisal valued the property at

$116,000 and wife's at $93,700. The trial court determined that

the property was worth $95,000.

"Where experts offer conflicting testimony, it is within

the discretion of the trial court to select either opinion."

Rowe v. Rowe, 24 Va. App. 123, 140, 480 S.E.2d 760, 768 (1997).

- 2 - The trial court's determination that the marital residence was

worth $95,000 was supported by the evidence presented. "We will

not disturb the trial court's finding of the value of an asset

unless the finding is plainly wrong or unsupported by the

evidence." Shooltz v. Shooltz, 27 Va. App. 264, 275, 498 S.E.2d

437, 442 (1998).

II.

The trial court noted that it considered all the statutory

factors as set forth in Code § 20-107.3(E). The court listed the

assets belonging to the parties and determined the value of the

marital estate. The court awarded husband $45,500 in marital

equity and awarded wife $59,000.

The fact that husband received less than wife from the

marital estate did not amount to an abuse of discretion. The

commissioner listed the factors warranting a minimum lump sum

payment to wife. "The term 'equitable distribution' does not

mean 'equal distribution.'" Marion v. Marion, 11 Va. App. 659,

663, 401 S.E.2d 432, 435 (1991). We cannot say the trial court

abused its discretion.

III.

Pursuant to Code § 20-107.3(A), upon decreeing a divorce, a

court may

determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate

- 3 - property, which is marital property, and which is part separate and part marital property . . . . The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue.

The parties stipulated to the value of the personalty listed on

the appraisal conducted by an independent appraiser. Wife

testified that husband purchased several expensive musical

instruments and pieces of equipment during the marriage.

Husband removed these items prior to the appraisal. The trial

court found that the parties' personal property was distributed

equitably and ordered that each party retain as his or her

marital share of the personal property those items already in

that party's possession. "[D]ecisions concerning equitable

distribution rest within the sound discretion of the trial court

and will not be reversed on appeal unless plainly wrong or

unsupported by the evidence." McDavid v. McDavid, 19 Va. App.

406, 407-08, 451 S.E.2d 713, 715 (1994). Although the value of

wife's share was greater than that of husband's, the trial court

did not abuse its discretion in its division of the marital

personalty.

IV.

"Whether and how much spousal support will be awarded is a

matter of discretion for the trial court." Barker v. Barker, 27

Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). "In fixing the

amount of the spousal support award, . . . the court's ruling

- 4 - will not be disturbed on appeal unless there has been a clear

abuse of discretion. We will reverse the trial court only when

its decision is plainly wrong or without evidence to support

it." Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635,

644 (1992) (citations omitted).

Husband works full time as a carpenter, earning $2,000 per

month. Wife, a receptionist at a nursing home, earns $1,200 per

month. Wife testified that husband discouraged her from working

during their marriage. She also explained that she has a

medical disability which prevents her from performing certain

types of work. Wife explained that she struggled to make ends

meet. The record demonstrates wife's need of support and

husband's ability to pay.

"In setting the amount of support, the court must consider

the factors listed in Code § 20-107.1, including the financial

condition of the parties, the distribution of the marital

estate, the tax consequences, and other factors related to the

equities between the parties." Taylor v. Taylor, 27 Va. App.

209, 216-17, 497 S.E.2d 916, 919 (1998). The trial court

considered the relevant factors listed in Code § 20-107.1, and

we find no abuse of discretion in its award of spousal support

to wife.

Accordingly, we summarily affirm the decision of the trial

court. See Rule 5A:27.

Affirmed.

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