John Clifton Stacey v. Deborah S. M. Stacey

• Court: Court of Appeals of Virginia
• Decided: September 7, 1999
• Docket: 0634991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Lemons

JOHN CLIFTON STACEY MEMORANDUM OPINION * v. Record No. 0634-99-1 PER CURIAM SEPTEMBER 7, 1999 DEBORAH S. M. STACEY

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Kenneth N. Whitehurst, Jr., Judge

(Samuel R. Brown, II; Samuel R. Brown, II, P.C., on brief), for appellant.

(Sonya L. Powell; Law Offices of Charles R. Hofheimer, P.C., on brief), for appellee.

John Clifton Stacey (husband) appeals the final decree of

divorce entered by the circuit court, which affirmed the report of

the commissioner in chancery. On appeal, husband contends that

the trial court erred by (1) refusing to grant him a divorce from

Deborah S. M. Stacey (wife) on the ground of her willful

desertion; (2) awarding wife spousal support despite the evidence

of desertion; (3) ordering him to pay all costs and $5,000 in

wife's attorney's fees; (4) failing to award him his attorney's

fees and costs; (5) failing to award him the marital residence;

(6) failing to credit him for post-separation mortgage payments;

(7) finding wife was entitled to a $5,000 credit from the sale of

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. the marital residence; (8) failing to credit him with $11,000 in

contributions to the marital residence; (9) failing to consider

the value of wife's business and its assets; (10) determining the

amount of spousal support; (11) failing to consider the parties'

agreement on equitable distribution and spousal support; and (12)

awarding wife primary physical custody of the parties' son. 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. See Rule 5A:27.

The evidence was heard by the commissioner in chancery.

"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).

Grounds for Divorce

Husband contends that the trial court erred by refusing to

grant him a divorce on the ground that wife willfully deserted

the marriage. The commissioner found that husband failed to

corroborate his allegation that wife deserted the marriage.

While corroboration need only be slight, see Dodge v. Dodge, 2

Va. App. 238, 245, 343 S.E.2d 363, 367 (1986), we find no error

in the commissioner's finding that husband failed to present

sufficient evidence to support his alleged ground. Husband

presented the testimony of a neighbor who noted that, "I no

- 2 - longer see [wife's] car over there. I no longer see her over

there. Been a while." Other credible evidence demonstrated

that the marriage was seriously troubled prior to the date of

separation. The fact that wife admitted leaving the marital

home does not, by itself, establish desertion. We find no error

in the commissioner's finding that husband failed to provide

sufficient corroboration to support his claim that wife

willfully deserted the marriage.

Moreover, a trial court is "not compelled 'to give

precedence to one proven ground of divorce over another.'"

Williams v. Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253

(1992) (citation omitted). "It is well established that 'where

dual or multiple grounds for divorce exist, the trial judge can

use his sound discretion to select the grounds upon which he

will grant the divorce.'" Id. (citation omitted). The evidence

proved that the parties lived separate and apart without

interruption in excess of one year. Therefore, we will not

disturb the decision to award the parties a divorce on the

ground of a one-year separation.

Attorney's Fees and Costs

Husband contends that the trial court erred by ordering him

to pay all costs and $5,000 in wife's attorney's fees. An award

of attorney's fees and costs is a matter submitted to the sound

discretion of the trial court and is reviewable on appeal only for

an abuse of discretion. See Graves v. Graves, 4 Va. App. 326,

- 3 - 333, 357 S.E.2d 554, 558 (1987). The key to a proper award of

counsel fees is reasonableness under all the circumstances. See

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985). While husband argued that wife was at fault in the

breakdown of the marriage, it was apparent from the evidence that

the parties had ongoing marital problems. Husband was the primary

wage earner during the marriage and had substantially greater

financial resources than wife. Based upon the respective

abilities of the parties to pay, we cannot say that the award was

unreasonable or that the trial judge abused his discretion in

making the award.

Sale of the Marital Residence

"Fashioning an equitable 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). "Unless it appears from the record

that the trial judge has not considered or has misapplied one of

the statutory mandates, this Court will not reverse on appeal."

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630

(1989).

Husband contends that the trial court erred by ordering the

sale of the marital residence. He contends that the evidence

supported his assertion that their daughter's best interests

- 4 - would be served by living in the same school district. We find

no error.

Code § 20-107.3(C) authorizes the trial court to order the

division or transfer of jointly owned marital property. The

parties presented appraisal values for the marital residence

that ranged between $77,000 to $91,000, due in part to the

home's need for repairs. The commissioner found that "[t]he

value of this house and any equity therein were not established

by a preponderance of the evidence." It was within the

discretionary authority of the trial court to order the sale of

the residence as a reasonable means to divide the parties'

equity in the property.

Furthermore, husband presented no evidence to support his

claim that it was in their daughter's best interest to remain in

the residence. Evidence indicated that the daughter had not

lived continually in the home since January 1997 and had only

recently entered the local public school. Other evidence

indicated that the daughter was attached to both parents but was

interested in residing with the parent with whom her brother was

not residing. This further suggests that the marital residence

did not have the significance to the daughter which husband

claimed. In light of the evidence presented to the

commissioner, we find no reversible error in the trial court's

decision requiring the sale of the marital residence.

- 5 - Post-Separation Mortgage Payments

Husband sought credit for post-separation mortgage

payments.

Although the separate contribution of one party to the acquisition, care, and maintenance of marital property is a factor that the trial court must consider when making its award of equitable distribution, Code § 20-107.3 does not mandate that the trial court award a corresponding dollar-for-dollar credit for such contributions.

von Raab v. von Raab, 26 Va. App. 239, 249-50, 494 S.E.2d 156,

161 (1997). Husband was the primary wage earner during the

marriage. The continued mortgage payments benefited both

parties. Husband presented no evidence demonstrating the amount

by which there was an increase in equity due to his

post-separation payments. Under these circumstances, we find no

abuse of discretion in the commissioner's failure to award

husband credit for any post-separation mortgage payments.

Credits to Wife

Husband also contends that the commissioner erred in

crediting wife with $5,000 as her separate property. The

evidence established that wife received $5,000 from her father,

which she testified she used towards the down payment on the

marital residence. As the commissioner's finding is supported

by the evidence, we find no error.

- 6 - Husband also contends that the commissioner erred by

failing to credit him for $11,000 in separate funds that he

contributed to the marital residence. See Code

§ 20-107.3(A)(3). At the hearing, husband testified concerning

$11,000 in inherited bonds as follows:

A: That is why I am not sure if I used the remainder in '95. It might have been '96 that I used the bulk of that to do the repairs, and I think it probably was, for the bathroom, insulating the attic up in the overhead, --

Q: Okay.

A: --kitchen cabinets. We bought two, three.

Q: All right. So you spent how much, do you think, on the house for repairs, improvements?

A: I would say probably ten.

Wife admitted that husband used inherited funds to make home

repairs and improvements to the bathroom, but disputed the

estimate of $10,000. Neither party introduced receipts to

establish what repairs or improvements were completed.

Expenditures for routine maintenance and upkeep do not add

to the value of marital property. "[A]lthough the customary

care, maintenance, and upkeep of a residential home may preserve

the value of the property, it generally does not add value to

the home or alter its character . . . ." Martin v. Martin, 27

Va. App. 745, 756, 501 S.E.2d 450, 455 (1998). There was no

evidence introduced to establish that the home's value was

- 7 - increased by husband's contributions. The party seeking to

recover separate property commingled with marital property bears

the burden to retrace the property by a preponderance of the

evidence. See, e.g., Code § 20-107.3(A)(3)(d). Based upon the

scarcity of evidence produced by husband to support his claim,

we cannot say that the commissioner erred by failing to credit

husband for a contribution of separate property.

Value of Window-Washing Business

Husband contends that the commissioner erred by failing to

consider the value of wife's window-washing business. The

evidence indicated that the parties formed the business in 1981,

during the marriage. Wife testified that the business was

incorporated in 1993. The commissioner found that the business

had "little value and few assets," and awarded the business to

wife.

We find no reversible error in the commissioner's decision

that the business had little value or his determination to award

the business to wife. While husband pointed to over $4,000 in

assets listed on the business' 1997 income tax return, he failed

to note that over $3,900 of those assets was cash. The evidence

established that wife operated the business on a part-time

basis, working about fifteen hours a week to accommodate the

children's schedule. Despite extensive cross-examination, the

evidence did not demonstrate that wife had substantially more

income than the $550 average monthly income she claimed or that

- 8 - the business had substantially greater assets. Husband failed

to demonstrate error in the commissioner's determination.

Spousal Support

Husband contends that the commissioner erred in awarding

wife $450 in monthly spousal support.

In awarding spousal support, the chancellor must consider the relative needs and abilities of the parties. He is guided by the . . . factors that are set forth in Code § 20-107.1. When the chancellor has given due consideration to these factors, his determination will not be disturbed on appeal except for a clear abuse of discretion.

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829

Husband's argument rests largely on his allegation that wife

was not entitled to support because she deserted the marriage. As

the commissioner rejected a fault-based ground for divorce,

husband's argument is without merit. While husband also contends

that wife had substantial other financial resources, we find no

abuse of discretion. Husband refers to the fact that wife had a

real estate license, but failed to note that wife never worked as

a real estate broker. There was no evidence introduced supporting

husband's claim that wife could earn "far in excess of what she

now earns." We find no merit in husband's argument.

- 9 - Property Settlement Agreement

Husband contends that the commissioner failed to consider the

parties' property agreement when equitably distributing the

parties' property. We find no merit in husband's contention. The

parties stipulated that certain items were wife's separate

property. The commissioner did not ignore these assets. In the

section on child support, the commissioner's report stated:

Husband argues that income from wife's I.R.A. should be imputed to her. This Commissioner declines to do so. If such imputation is made, the same treatment would be given similar investments owned by the husband as well as the $200,000.00 in Government Bonds which he attempted to burn.

In his discussion of spousal support, without quantifying any

income available to husband as a result of the $200,000 in

bonds, the commissioner noted that "husband has considerable

financial resources." Thus, the commissioner's report indicated

that he considered the parties' assets, including the property

designated as wife's separate property pursuant to the parties'

agreement. We find no indication that the commissioner failed

to consider relevant evidence or erred in weighing the statutory

factors.

Custody of Parties' Son

"In determining custody, the court shall give primary

consideration to the best interests of the child." Code

§ 20-124.2(B). The evidence presented to the commissioner

indicated that the child had serious problems, including

- 10 - depression. His former therapist noted that the child was angry

with himself, but also expressed anger at his father. The

therapist noted that the child was doing better while in wife's

custody and that wife had done everything that the therapists

asked her to do. Husband had not been involved in the child's

therapy. The evidence also indicated that the parties agreed

husband should have custody of the parties' daughter and that it

was in her best interests not to reside with her brother. The

commissioner's determination that it was in the best interests of

the children for wife to have custody of the son is supported by

the evidence and will not be disturbed on appeal.

Accordingly, the decision of the circuit court is summarily

affirmed.

- 11 -