COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata Argued at Salem, Virginia
JIMMY McCUE DAVIS MEMORANDUM OPINION * BY v. Record No. 1819-97-3 JUDGE ROSEMARIE ANNUNZIATA JUNE 2, 1998 BRENDA JOYCE SHELTON DAVIS
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Jonathan M. Apgar, Judge Stephen B. Hebblethwaite for appellant.
James V. Doss, III, for appellee.
Jimmy McCue Davis (husband) appeals the decree of the
circuit court, challenging the court's finding that Brenda Joyce
Shelton Davis (wife) was not at fault in the dissolution of the
marriage and the court's rulings as to equitable distribution and
spousal support. Wife also challenges the court's rulings on
equitable distribution and spousal support. 1 Because we find
that the trial court abused its discretion in fashioning the
equitable distribution award, we affirm in part and reverse in
part.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1 Husband argues that we should not consider the questions presented by wife because wife did not file a Notice of Appeal. Husband's argument is without merit. "[A]dditional questions separate from those presented by the appellant, and any additional relief sought separate from that requested by the appellant, may be raised by the appellee in [her] brief." D'Auria v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986). The parties were married on June 25, 1966, and separated on
March 7, 1996. Wife worked outside the home during the initial
years of the marriage, but began to experience seizures in 1970,
and stayed at home to take care of the parties' children. Wife
underwent surgery which cured her seizures in 1993. Husband
worked for the same employer from 1970 through the parties'
separation, and accumulated $11,000 in savings bonds purchased
through his employer. In 1995, husband withdrew more than
$21,000 from the parties' joint bank account, and gave $10,000 to
wife. Beginning in late 1995 or early 1996, wife routinely refused
to have sexual intercourse with husband, but the parties,
nonetheless, continued to have sexual intercourse every two or
three weeks until the week prior to the parties' separation. On
March 3, 1996, husband overheard wife having a suggestive phone
conversation with another man. Husband overheard a similar
conversation on March 6. Husband confronted wife about the phone
conversations, and wife told husband that she had arranged to
have a man call the house in an effort to make husband jealous.
After an argument in which the police intervened, the parties
separated permanently.
After a hearing, the trial court granted wife a divorce on
the basis of one year's separation, and refused to find
constructive desertion or adultery as alleged by husband. The
trial court ordered an equal division of the parties' property.
2 The trial court ordered the parties to sell the marital home and
some personal property, and to divide the proceeds. The trial
court assigned a value to the parties' remaining assets,
allocated the personal property and intangible assets to the
parties, and ordered husband to pay wife an amount necessary to
divide the marital property equally. The trial court also
ordered husband to pay wife spousal support in the amount of $175
per week. Under familiar principles, we view the evidence in the light
most favorable to the party prevailing on that issue below.
Gottlieb v. Gottlieb, 19 Va. App. 77, 81, 448 S.E.2d 666, 669
(1994) (citing Westmoreland Coal Co. v. Campbell, 7 Va. App. 217,
222-23, 372 S.E.2d 411, 415 (1988)).
I.
Marital Fault
Husband argues that the trial court erred in refusing to
grant him a divorce on the ground that wife was guilty of
constructive desertion. The trial court declined to award
husband a divorce based on constructive desertion, and granted
wife a divorce based upon the parties' separation. A court's
finding that no constructive desertion has occurred will not be
disturbed on appeal unless it is plainly wrong or without
evidence to support it. Alls v. Alls, 216 Va. 13, 14, 216 S.E.2d
16, 17 (1975) (citing White v. Perkins, 213 Va. 129, 134, 189
S.E.2d 315, 319 (1972)).
3 Husband first contends that wife unjustifiably refused
sexual intercourse, and thus was guilty of constructive
desertion. "[T]he willful withdrawal from sexual intercourse,
when accompanied by willful breach and neglect of other marital
duties, is considered a general withdrawal from the duties of the
marital relationship, and, if without just cause or excuse,
constitutes desertion." Petachenko v. Petachenko, 232 Va. 296,
299 n.*, 350 S.E.2d 600, 602 n.* (1986) (citing Albert v. Albert,
137 Va. 1, 3-4, 119 S.E. 61, 61 (1923)); see also Jamison v. Jamison, 3 Va. App. 644, 648, 352 S.E.2d 719, 722 (1987). "A
mere denial of sexual intercourse, where other marital duties are
performed, does not constitute desertion." Petachenko, 232 Va.
at 299, 350 S.E.2d at 602.
The evidence supports the refusal of the trial court to find
constructive desertion based on the withdrawal of sexual
intercourse. Husband testified, "we had sex the week before we
split." He also testified, "every two or three weeks we'd have
sex." As nothing in the record suggests that husband had sex
with wife without her consent, this testimony establishes that
wife did not refuse to have sexual intercourse with husband.
Husband also contends that wife was guilty of constructive
desertion because she attempted to convince husband that she was
having an affair. A party may be guilty of cruelty amounting to
constructive desertion if he or she inflicts "mental anguish,
repeated and unrelenting neglect and humiliation . . . upon an
4 unoffending spouse." Hoback v. Hoback, 208 Va. 432, 436, 158
S.E.2d 113, 116 (1967) (citing Hoffecker v. Hoffecker, 200 Va.
119, 125-26, 104 S.E.2d 771, 776 (1958)). "The misconduct of an
offending spouse which will justify the other in leaving must be
so serious that it makes the relationship intolerable or
unendurable." McLaughlin v. McLaughlin, 2 Va. App. 463, 467, 346
S.E.2d 535, 537 (1986) (citing Hoback, 208 Va. at 436, 158 S.E.2d
at 116). Wife admitted that she arranged for suggestive phone
conversations with a man in an attempt to make husband jealous.
The trial court found that the relationship was not intolerable,
noting that husband did everything he could to save the marriage,
and had sexual intercourse with wife within the week before the
separation. The evidence supports the trial court's finding that
wife's conduct did not rise to the level of constructive
desertion.
II.
Valuation
Husband contends that the trial court erred in valuing the
parties' 1995 Ford F350 pickup truck at a value of $20,000. "The
trial court's valuation cannot be based on 'mere guesswork.'" Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107
(1989) (quoting Taylor v. Taylor, 5 Va. App. 436, 443, 364 S.E.2d
244, 248 (1988)). We will not disturb a trial court's finding of
the value of an asset, however, unless the finding is plainly
5 wrong or unsupported by the evidence. See Traylor v. Traylor, 19
Va. App. 761, 763-64, 454 S.E.2d 744, 746 (1995).
At the time of trial, husband owned a 1995 four-wheel drive
F350 truck with a V-8 engine and an eight-foot bed. Husband paid
$20,922 for the truck two years before the trial. After
purchasing the truck, husband improved the truck by adding a
truck hitch, new rear bumper, and a bed liner. Based on NADA
Blue Book values, wife argued that the truck was worth $22,125.
Husband introduced evidence that the truck had a value of
$13,125. The court assigned the truck a value of $20,000. The NADA
Blue Book page introduced by wife showed a base value of $16,700
for a standard cab F350 pickup truck with an eight-foot bed. The
Blue Book showed an additional $2,200 in value for four-wheel
drive, but did not list values for the additional improvements
husband made to the truck. According to the Blue Book,
therefore, the truck was worth $18,900 plus the value of the bed
liner, rear bumper, and truck hitch. We find that the trial
court's $20,000 valuation of the truck, which is between the
values argued by the parties, is supported by the evidence. See
Zipf v. Zipf, 8 Va. App. 387, 395, 382 S.E.2d 263, 268 (1989).
III.
Equitable Distribution
Husband contends that the trial court erred in fashioning an
equitable distribution award. "Fashioning an equitable
6 distribution 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).
At trial, wife introduced an appraisal of the parties'
personal property. Wife also introduced an exhibit entitled
"Personal Property Taken after Separation," listing marital
property she alleged was in the possession of husband, including
$11,000 in savings bonds, four withdrawals of funds in the
amounts of $10,000, $2,900, $3,031, and $5,506, and $20,649.
Wife also submitted to the court a list of personal property
which she wanted in the equitable distribution. Husband
introduced a list of personal property that he was interested in
purchasing for one-half of its appraised value. In the Final Decree, the trial court wrote, "After careful
consideration of Section 20-107.3 of the Code of Virginia, as
amended[,] and all those factors listed thereunder, it is ORDERED
that the martial [sic] property be divided equally considering
the length of their marriage and the monetary and non-monetary
contributions contributed by the respective parties to the
marriage and the well being of the property." To accomplish this
equal division of the property, the court assigned to husband a
tractor, a truck, and a van worth a total of $48,765. The court
assigned to husband three savings accounts worth $7,320, U.S.
savings bonds worth $11,000, two withdrawals of $2,900 and $3,031
7 made in May 1995 (for a total of $5,931 of May withdrawals), and
a withdrawal of $5,506 made in March 1995. The court assigned to
wife a car worth $6,000, a withdrawal of $10,000 made by husband
in May 1995, and personal property that she requested worth
$4,949. The trial court found wife's allegations "concerning the
value of 'missing' personal property without merit."
This allocation of assets gave husband a value of $78,552,
wife a value of $20,949, and the unallocated personal property a
value of $8,413. The court ordered the unallocated personal
property, as well as the marital home, to be sold and the
proceeds divided between the parties. The court ordered husband
to pay wife $25,801.50 from the proceeds of the sale of the
marital home, which represents one-half of the difference between
husband's $78,522 in assets and wife's $20,949 in assets,
adjusted by $3,000 for outstanding marital debt. A.
Personal Property
Husband argues that the trial court erred in awarding wife
the items of personal property she requested, but not awarding
him the items he requested. We hold that the trial court did not
abuse its discretion in awarding the items of personal property.
At trial, husband offered to buy certain items of personal
property at one-half the appraised price. The trial court
awarded husband six items of personal property, including the
parties' tractor, plus two unrequested items, worth a total of
8 $20,765. Husband cites no authority for his claim that he was
entitled to the property he requested, rather than one-half of
the value of the property, and we have found none. "Th[e]
division or transfer of jointly owned marital property and the
amount of any monetary award, subject to the enumerated statutory
factors, is within the sound discretion of the trial court."
Dietz v. Dietz, 17 Va. App. 203, 216, 436 S.E.2d 463, 471 (1993)
(citing Amburn v. Amburn, 13 Va. App. 661, 666, 414 S.E.2d 847,
850 (1992)). Under the facts of this case, we will not disturb
the trial court's exercise of its discretion. Wife argues that the trial court erred in refusing to award
her one-half of the value of the personal property that she
alleged husband had taken. Wife testified that she made a list
of items she believed were missing from the parties' storage
building, and assessed the value of the items at their purchase
price.
"It is well established that the trier of fact ascertains a
witness' credibility, determines the weight to be given to their
testimony, and has the discretion to accept or reject any of the
witness' testimony." Street v. Street, 25 Va. App. 380, 387, 488
S.E.2d 665, 668 (1997) (en banc) (citing Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986)).
Wife alleged that husband had taken an enormous amount of
hardware, including 100 pounds of washers, 200 screwdrivers, 30
torque wrenches, and 20 crow bars. Wife acknowledged that in
9 formulating her list of missing items, she considered all the
hardware that the parties had accumulated over the course of
thirty years. Wife testified that valuing the hardware at the
purchase prices was appropriate because "they were in good shape
because he took care of his tools," but contradicted this
testimony by stating that husband "would leave his tools laying
out in the floor."
Husband testified that he had hauled some trash away from
the parties' barn to the dump, but denied taking hardware or
equipment out of the barn. Husband introduced evidence that a
number of the items on wife's list of missing property were
actually listed as part of the appraised property. Husband also
disputed that the parties had ever owned many of the items shown
on wife's list. As wife's counsel conceded at oral argument, the
trial court was entitled to accept the testimony of husband, and
reject the testimony of wife. Street, 25 Va. App. at 387, 488
S.E.2d at 668 (citing Bridgeman, 3 Va. App. at 528, 351 S.E.2d at
601). Considering the lack of support for wife's allegations of
missing hardware and husband's denial of removing any hardware,
we find that the evidence supports the trial court's finding that
wife's allegations of missing property are false.
B.
Allocation of Funds Withdrawals
Husband argues that the court erred in assigning him the
March 1995 withdrawal of $5,506, the May 1995 withdrawals of
10 $5,931, and the $11,000 in savings bonds, in the absence of a
finding of waste. Each of the monetary transfers at issue took
place at least nine months before the separation of the parties.
Over the course of husband's employment, he purchased a number
of U.S. Savings Bonds with a total value of $11,000. Husband
told wife that he might use the bonds to finance the purchase of
his truck, which husband bought in April 1995. Husband used the
$11,000 to pay for the parties' truck. Husband withdrew $5,506 from the parties' joint account in
March 1995. Husband did not know exactly what he purchased with
the money, but he stated that he used it for the marital home.
Husband withdrew $2,900 from the parties' joint account on May
16, 1995, which he spent on building materials for the parties'
house, garage, and barn. Husband withdrew $3,031 from the
parties' joint account on May 31, 1995, and placed the $3,031
into an account in his name, which he had at the time of the
separation. Wife did not know of the existence or details of any
of these withdrawals.
We find that the trial court's allocation of the $3,031 to
husband is supported by the evidence. Husband acknowledged that
he had withdrawn the money from a marital account, and had the
money at the time of separation.
Husband argues that the trial court employed a "waste"
analysis to apportion the value of the savings bonds and the
$2,900 and $5,506 withdrawals to husband. There is no evidence
11 that these funds existed at the time of separation. "Normally,
only property owned by the parties at the time of the last
separation is classified as marital property." Booth v. Booth, 7
Va. App. 22, 28, 371 S.E.2d 569, 573 (1988) (citing, inter alia,
Code § 20-107.3(A)(2)(ii)). If one party has dissipated assets
in anticipation of divorce, however, a trial court may hold "the
party who last had the funds . . . accountable for them." Id.
Although the trial court did not explicitly find waste, we find
that the trial court implicitly used this reasoning in
apportioning the non-existent $11,000, $5,506, and $2,900 amounts
to husband. "'[W]aste' may generally be characterized as the dissipation
of marital funds in anticipation of divorce or separation for a
purpose unrelated to the marriage and in derogation of the
marital relationship at a time when the marriage is in jeopardy."
Id. at 27, 371 S.E.2d at 572 (citing In re Marriage of Smith,
448 N.E.2d 545 (Ill. App. Ct. 1983)). We hold that the trial
court abused its discretion in allocating the $11,000, $5,506,
and $2,900 amounts to husband because the legal requirements of
waste were not satisfied. There is no evidence that husband
dissipated these assets in anticipation of divorce or separation.
More importantly, there is no evidence that the funds were spent
for a purpose unrelated to the marriage.
The only evidence on the use of the funds was that they were
spent on the marital home or truck. The only evidence on the
12 issue shows that husband spent a total of $8,406 in withdrawals
for improvements to the marital home, a marital purpose. Because
the $8,406 was spent on improvements to the marital home, the
money was distributed equally in the trial court's equal division
of the proceeds of the sale of the house. Similarly, the only
evidence on the issue shows that husband used the $11,000 derived
from the savings bonds to buy marital property, i.e., the truck.
This money was accounted for in the equitable distribution of
the truck to husband. By allocating funds previously spent on
marital assets in the equitable distribution award, the trial
court effectively allocated these funds twice: once as
withdrawals and savings bonds, and once as the marital home and
truck. Wife argues that the trial court erred in assigning her the
$10,000 withdrawal made by husband in April 1995. We find that
the trial court's allocation of $10,000 to wife is supported by
the evidence. The evidence shows that husband withdrew $10,000
from the parties' joint account and gave the money to wife,
although she denied receiving it. Husband testified without
objection that wife had testified in prior proceedings that she
still possessed the $10,000 husband gave her. Finally, wife
acknowledged that she had $10,000 in a savings account at the
time of separation.
On the grounds stated above, we remand the issue of
equitable distribution to the trial court to redetermine the
13 equitable distribution of the property of the parties which was
in existence at the time of the separation.
IV.
Spousal Support
Because we remand for redetermination of the equitable
distribution award, we must also remand for redetermination of
spousal support. See, e.g., Rowe v. Rowe, 24 Va. App. 123, 139,
480 S.E.2d 760, 767 (1997). Because the spousal support issues
raised by the parties are unlikely to arise on remand, we decline
to address those issues. Affirmed in part, reversed in part.