Karen I Perry v. Dwayne N Perry

• Court: Court of Appeals of Virginia
• Decided: November 19, 2002
• Docket: 0672024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Agee Argued at Alexandria, Virginia

KAREN I. PERRY MEMORANDUM OPINION * BY v. Record No. 0672-02-4 JUDGE G. STEVEN AGEE NOVEMBER 19, 2002 DWAYNE N. PERRY

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Jeffrey W. Parker, Judge

Julia S. Savage (Lawrence D. Diehl; Walker, Jones, Lawrence, Duggan & Savage, on briefs), for appellant.

Paul A. Morrison (Howard, Morrison & Howard, on brief), for appellee.

The circuit court granted a divorce based on the parties

living separate and apart for one year and provided for the

equitable distribution of their real and personal property. The

parties appeal different parts of the equitable distribution

award. Karen Perry ("wife") contends: the trial court erred (1)

in awarding her only one percent (1%) of the value of a marital

asset, (2) in its valuation of the Perry Racing business, and (3)

in not awarding wife attorneys' fees. Dwayne Perry ("husband")

appeals by claiming the trial court erred in valuing (1) the First

Virginia NOW accounts, (2) the backhoe, and (3) husband's Ford

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. truck. For the reasons set forth below, we affirm the rulings of

the trial court. 1

I. EQUITABLE DISTRIBUTION

If the court "'hears the evidence ore tenus, its finding is

entitled to great weight and will not be disturbed on appeal

unless plainly wrong or without evidence to support it.'"

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,

631 (1988) (quoting Martin v. Pittsylvania County Dep't of

Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). On

appeal we must "view [the] evidence and all reasonable

inferences in the light most favorable to the prevailing party

below." Id. Furthermore, "[f]ashioning 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).

A. The Bearcastle Lot

The evidence at trial showed that during the marriage

husband wished to purchase a lot in the Bearcastle subdivision.

By her own testimony, wife did not think they could afford it

and did not want her husband to buy it. When husband's parents

1 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, only those facts necessary to a disposition of this appeal are recited.

- 2 - offered to pay for the lot, wife again said she did not want it

but requested that, if they provided the purchase funds, that

the property be titled in both their names "in case something

happened to him." Husband's parents indicated to wife that the

purchase money was going to be part of his inheritance.

Thereafter husband's parents gave him a check to cover the

purchase price of the Bearcastle lot which apparently went into

husband's bank account. Husband then paid for the lot from his

account.

The trial court's first letter opinion of September 28,

2001, appears to trace husband's monetary contribution for the

lot under Code § 20-107.3(A)(3)(d). Although no specific

finding classifying the lot as marital property was made, the

trial court awarded husband substantially all of the value of

the lot based on the tracing of funds and found a marital share

of $2,000 which was divided equally. 2

The trial court's second letter opinion of January 4, 2002,

finds the Bearcastle property to be marital property based upon

its joint ownership, a conclusion with which the parties

evidently agree. In any event, we read the second letter

opinion to abandon the tracing analysis, but citing specific

2 The parties do not dispute the valuation for the Bearcastle lot of $125,000.

- 3 - reasons to support awarding husband and wife the same monetary

values as in the first opinion letter.

In making an equitable distribution, the court must

classify the property, assign a value, and then distribute the

property to the parties, taking into consideration the factors

listed in Code § 20-107.3(E). Alphin v. Alphin, 15 Va. App.

395, 403, 424 S.E.2d 572, 576 (1992). "While the division or

transfer of marital property and the amount of any monetary

award are matters committed to the sound discretion of the trial

court, 'any division or award must be based on the parties'

equities, rights and interests in the property.'" Theismann v.

Theismann, 22 Va. App. 557, 564-65, 471 S.E.2d 809, 812 (1996)

(quoting Alphin, 15 Va. App. at 403, 424 S.E.2d at 577).

Wife argues that since all the marital property, except the

Bearcastle lot, was divided equally, the lot should be similarly

divided. She further contends that a 99% distribution to

husband of this one marital asset is error as a matter of law.

We disagree.

"Each party does have an equal legal interest, but the

application of the statutory factors [in Code § 20-107.3(E)] may

justify an unequal distribution." Lightburn v. Lightburn, 22

Va. App. 612, 618, 472 S.E.2d 281, 284 (1996). While the

Bearcastle lot is marital property, a 50-50 split is not

presumed at law.

- 4 - All of the provisions of Code § 20-107.3 must be followed in making an equitable distribution decision. . . . We must be able to determine from the record that the trial court has given substantive consideration to the evidence as it relates to the provisions of this Code section. Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). . . . "This does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors. It does mean, however, that the court's findings must have some foundation based on the evidence presented." . . . [I]f the court's findings are not supported by the evidence in the record, the court has abused its discretion, and the court's determination must be reversed.

Trivett v. Trivett, 7 Va. App. 148, 153-54, 371 S.E.2d 560, 563

(1988) (quoting Wagner v. Wagner, 4 Va. App. 397, 410, 358

S.E.2d 407, 414 (1987)) (internal citations omitted).

We find from the record that the trial court considered all

the statutory factors set forth in Code § 20-107.3(E). Further,

the trial court gave specific reasons for its division of the

Bearcastle lot's value. The record shows husband found the

property and secured the money for it, at no cost to the marital

estate. Wife, by her own admission, did not want the property

(notwithstanding the donation of the purchase price), and only

asked that the property be jointly titled in case husband

wrecked his speedboat.

"The statute allows the trial court to take into account

'such other factors as the court deems necessary or appropriate

- 5 - to consider in order to arrive at a fair and equitable monetary

award.'" Mir v. Mir, ___ Va. App. ___, ___, ___ S.E.2d ___, ___

(Oct. 29, 2002); Code § 20-107.3(E)(10). In doing so, the trial

court may make a significantly disproportionate award. For

example, in Mir, the primary marital asset was subject to a 95%

to 5% division of value.

The trial court could divide the Bearcastle lot based on

Code § 20-107.3(E)(2), (6) or (10) by disproportionate award to

husband. Accordingly, we find no error in the trial court's

decision, which is affirmed.

B. Perry Racing

The trial court's division of the Perry Racing asset was

its best effort with the limited evidence available. The hull

and rigging (and perhaps the pump and motor) were sold for

$5,400. Wife offered no evidence as to contemporary fair market

value. Her argument, using an item by item cost basis, ignores

the fact the rigging and other equipment were incorporated into

the boat and husband's uncontroverted evidence of market

conditions and market value.

There is evidence in the record to support the $10,000

valuation which lies between the $5,400 sale price and the cost

basis. Husband also testified, without contradiction, as to

defects in the boat and his marketing efforts to justify a sale

at less than cost. With no contemporary evidence of fair market

- 6 - value, other than the sale price, the trial court did not abuse

its discretion in the valuation or division. The trial court's

determination is affirmed.

C. Valuation of the NOW Accounts

Apparently these accounts were in husband's name alone.

Husband therefore had the unique ability to tender evidence of

date of separation or date of hearing bank statements to show a

value different from that shown by wife's evidence. Husband

failed to do so. The trial court made its determination on the

only evidence available. That decision was not an abuse of

discretion and is affirmed.

D. The Backhoe

Husband contended at trial that he sold the backhoe to his

father for an undetermined amount. He did not tell his wife

about the sale nor could he produce a bill of sale or any other

evidence to prove a sale. The trial court was free to reject

husband's evidence, consider the backhoe as marital property and

proceed to value that asset.

The trial court had some evidence as to value (namely the

purchase price) and did the best it could with the evidence

available. Husband cannot complain that he chose not to produce

valuation evidence where, again, husband had a unique ability to

do so. The trial court's valuation of the backhoe was not an

abuse of discretion and is affirmed.

- 7 - E. 1999 Ford F-250

Husband contends that wife's valuation of his Ford truck is

inaccurate because incorrect data concerning the truck's mileage

and transmission were utilized for Kelley Blue Book value.

Husband's contentions in this regard are not apparent from the

record. It cannot be said the trial court erred as a matter of

law in fixing the value based on the evidence presented, which

it was in the best position to evaluate as the trier of fact.

As there was no abuse of discretion, the trial court's valuation

of husband's truck is affirmed.

II. ATTORNEYS' FEES

"An award of attorney fees is discretionary with the court

after considering the circumstances and equities of the entire

case and is reviewable only for an abuse of discretion." Gamer

v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993).

"The key to a proper award of counsel fees is reasonableness

under all of the circumstances revealed by the record."

Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631

(1989).

The trial court did not abuse its discretion in determining

not to award attorneys' fees.

For the reasons set forth above, the decision and decree of

the trial court are affirmed.

Affirmed.

- 8 -