COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Hodges Argued at Richmond, Virginia
LUTHER BRUCE BUCHANAN MEMORANDUM OPINION* BY v. Record No. 2244-02-2 JUDGE WILLIAM H. HODGES SEPTEMBER 30, 2003 BONNIE BUCHANAN
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn, Judge
Michael J. Brickhill (Michael J. Brickhill, P.C., on brief), for appellant.
Carol B. Gravitt (E. Sterling Byrd-Roberts; Gravitt & Gravitt, P.C., on brief), for appellee.
Luther Bruce Buchanan (husband) contends on appeal that the
trial court erred: (1) in awarding Bonnie Buchanan (wife) a
divorce on the basis of constructive desertion; (2) in failing
to explain the factors upon which it based equitable
distribution of the marital property; (3) in refusing to assign
a present value to wife's Virginia Retirement System (VRS)
pension; (4) in assigning husband only 25% of wife's pension and
awarding her a monetary award of $105,000; (5) in finding as
wife's separate property a contribution of $23,000 from her
inheritance used to improve the marital home; (6) in
conditioning the Qualified Domestic Relations Order (QDRO) on a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. specific payment of the monetary award to wife; (7) in ordering
interest to accrue on the amount of the monetary award if not
timely paid; (8) in reserving wife's right to seek spousal
support for a specified period; and (9) in barring husband's
transfer, disposition, conveyance or encumbrance of his solely
titled property until after entry of the final divorce decree.
Pursuant to Rule 5A:21(b), wife contends that the trial
court erred in considering certain debts of husband in the
division of property.
After reviewing the record and considering arguments of the
parties, we affirm the trial court.
PROCEDURAL HISTORY
Husband filed a bill of complaint on March 9, 2001, seeking
a divorce. As grounds, husband alleged cruelty and constructive
desertion on the basis of an alleged assault by wife as well as
repeated incidences of verbal abuse. He sought equitable
distribution of the marital property, spousal support,
possession of the marital home, and attorney's fees and costs.
Wife filed an answer and cross-bill. She denied any
intentional assault on husband other than in her own attempts to
defend herself against his abuse. In her cross-bill, wife
requested a divorce a mensa et thoro pursuant to Code
§ 20-91(6). She sought spousal support, equitable distribution
of the marital property, court costs and attorney's fees.
- 2 - Husband denied wife's allegations and moved to dismiss the
cross-bill.
Following extensive evidentiary hearings, the trial court
found that wife proved cruelty by husband and ordered the
marriage dissolved on that basis. The trial court distributed
the marital property in accordance with Code § 20-107.3 as set
out in the court's opinion letter dated April 18, 2002, and
Attachment A to that letter. The trial court valued the marital
property, including debts and liabilities, at $207,962.01.
The trial court ordered husband to pay wife "a lump sum
monetary award of One Hundred and Five Thousand Dollars
($105,000) which shall accrue interest at the judgment rate
until paid if unpaid beginning June 1, 2002." The trial court
allowed husband to pay the award in three installments, with
$50,000 due by June 1, 2002, $35,000 by September 1, 2002, and
$20,000 by June 1, 2003.
In the final decree, the trial court conditioned entry of
the QDRO1 on husband paying at least $50,000 of the wife's
monetary award. The court awarded wife $27,000 in attorney's
fees and costs incurred in the divorce proceeding and the
fraudulent conveyance action brought against husband. In the
decree, the trial court prohibited husband from "transferring,
disposing, destroying or encumbering the boat until wife's
1 The trial court and parties refer to the QDRO as an "Approved" Domestic Relations Order. See Code § 20-107.3(K)(4).
- 3 - monetary award and award of attorney's fees is satisfied except
as is necessary to pay to wife the monetary award and attorney's
fees directed herein." The trial court reserved wife's right to
seek spousal support. Following entry of the final decree, both
parties filed written objections to the order on multiple
grounds.
STATEMENT OF FACTS
On appeal, we review the evidence in the light most
favorable to the wife, the prevailing party below, and grant all
reasonable inferences fairly deducible therefrom. Anderson v.
Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999);
Gamer v. Gamer 16 Va. App. 335, 340, 429 S.E.2d 618, 622 (1993);
McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346
(1990).
Husband and wife married on September 21, 1973. In 1979,
the parties built a home in Mecklenburg County on land purchased
by husband prior to their marriage. The land is titled solely
in husband's name but the parties agree it is marital property.
Husband operates his own business, and wife works for the
Halifax County Health Department. At the date of filing of the
bill of complaint, wife had twenty-five years of service with
the health department. During the marriage, wife participated
in the operation of husband's business as a general bookkeeper.
Husband and wife have one child, who was emancipated at the time
the action commenced.
- 4 - The parties separated on February 1, 2000, following
husband's arrest for assault and battery of wife on that same
day. Wife testified that husband began choking her during a
heated argument. Husband threatened to kill her and forced a
gun barrel in her mouth, cracking her tooth. Wife described
other incidents of abuse, including one where husband pulled her
from a chair with such force that he dislocated her shoulder.
In the last two years of the marriage, husband's behavior became
increasingly violent toward his wife and son. The record
contains deposition testimony of wife and the son taken on
December 18, 2001, detailing several instances of husband's
abusive behavior.
On December 20, 2001, the trial court received extensive
evidence regarding equitable distribution of the marital assets.
The parties agreed that the marital home "was built during the
course of the marriage with funds that were marital property
[and t]here is no question that it's [a] marital asset." The
parties agreed that the home would be assigned to the husband
but left open wife's claim to separate funds for monies she
contributed for an addition to the home.
Each party introduced separate expert valuations of wife's
VRS pension. The experts applied interest rates to their
calculations derived from different sources and arrived at
distinctly different values.
- 5 - Husband testified that he borrowed $8,000 from Dewey
Edwards and $2,000 from Mr. Ellis of Ellis Septic Tank Company.
The trial court attributed $2,946.05 in marital debt to wife.
In a separate but related fraudulent conveyance action
brought by wife against husband, wife alleged that husband,
after separation, borrowed $80,000 against equity in the marital
home and used that money to repay certain alleged loans. In
that suit, wife challenged a $5,750 payment by husband to his
father and a $12,250 payment by husband to his mother. By order
dated October 12, 2001, the trial court found that the transfers
to husband's parents were fraudulent pursuant to Code § 55-80
and placed the amounts in a constructive trust pending the
outcome of the divorce action.2
On April 18, 2002, the trial court issued an opinion letter
granting wife a divorce. It outlined its findings and the
values assigned to the equitable distribution schedule and
ordered wife's counsel to prepare a rough draft of the final
decree of divorce.
At a May 1, 2002 hearing to determine attorneys' fees,
husband objected to the reservation of spousal support included
in the draft decree and asked the trial court to explain the
factors it used to arrive at its equitable distribution award.
The trial court declined to elaborate on or quantify any of the
2 See Buchanan v. Buchanan, ___ Va. ___, ___ S.E.2d ___ (Sept. 12, 2003) (affirming the trial court).
- 6 - specific factors. The trial court entered the final decree of
divorce on August 6, 2002.
DISCUSSION
1. GROUNDS FOR DIVORCE
Husband contends the trial court erred in granting wife a
divorce on the basis of constructive desertion. He argues the
trial court erred in finding constructive desertion because wife
remained in the marital home.
"On appellate review, a divorce decree is presumed correct
and will not be overturned if supported by substantial,
competent, and credible evidence." Gottlieb v. Gottlieb, 19
Va. App. 77, 83, 448 S.E.2d 666, 670 (1994). Findings by the
trial court are given considerable deference on review, and "we
defer to the factual findings of the court . . . where the court
took evidence ore tenus." Shackelford v. Shackelford, 39
Va. App. 201, 207, 571 S.E.2d 917, 920 (2002).
"Where dual or multiple grounds for divorce exist, the
trial judge can use . . . sound discretion to select the grounds
upon which . . . to grant the divorce." Sargent v. Sargent, 20
Va. App. 694, 707, 460 S.E.2d 596, 602 (1995); Lassen v. Lassen,
8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989).
Code § 20-91(6) authorizes a trial court to grant a divorce
"where either party has been guilty of cruelty, caused
reasonable apprehension of bodily hurt, or willfully deserted or
abandoned the other." (Emphasis added.) It is within a trial
- 7 - court's discretion to determine whether a finding of cruelty
"entitles a wife to a divorce on the ground of constructive
desertion." Brawand v. Brawand, 1 Va. App. 305, 309, 338 S.E.2d
651, 653 (1986). Desertion as a ground for divorce does not
depend on who actually leaves the marital home. Rather, "[i]t
means desertion of the marital relationship," and it "may be
'constructive,' for cruelty by one party, which results in the
other party's enforced separation." Zinkhan v. Zinkhan, 2
Va. App. 200, 208, 342 S.E.2d 658, 662 (1986).
In the final decree, the trial court found that "cruelty
grounds for divorce exist in favor of the Wife against Husband
pursuant to Virginia Code § 20-91(6)." Substantial, competent
and credible evidence supports such a finding by the trial
court.
2. TRIAL COURT'S REFUSAL TO EXPLAIN DETAILS OF AWARD
Marital assets at the time of the equitable distribution
hearing included the marital residence, wife's pension, a patent
held by husband, two vehicles, a motorcycle, a boat, business
equipment, a time share and personal possessions. The court
heard evidence from both parties as to the value of personal
possessions and entered into evidence numerous exhibits from
appraisers. The marital debts included a home equity line and
liens on both vehicles and on certain business equipment. Other
debts included personal loans to husband.
- 8 - Code § 20-107.3(E) provides that "the amount of any
division or transfer of jointly owned marital property, and the
amount of any monetary award, the apportionment of marital debts
and the method of payment shall be determined by the court after
consideration of the following factors." The statute then lists
ten factors the trial court must consider. "In fashioning an
equitable distribution award, the trial court must consider each
of the statutory factors, but may determine what weight to
assign to each of them." Barker v. Barker, 27 Va. App. 519,
535, 500 S.E.2d 240, 248 (1998).
"'In reviewing an equitable distribution award on appeal,
we recognize that the trial court's job is a difficult one.
Accordingly, we rely heavily on the discretion of the trial
judge in weighing the many considerations and circumstances that
are presented in each case.'" Shackelford, 39 Va. App. at 210,
571 S.E.2d at 921 (quoting Artis v. Artis, 4 Va. App. 132, 137,
354 S.E.2d 812, 815 (1987)). The court is not required to
elaborate upon the exact weight given each piece of evidence and
each factor used to reach its decisions. See Pommerenke v.
Pommerenke, 7 Va. App. 241, 250-51, 372 S.E.2d 630, 635 (1988)
(holding that the analysis in Woolley v. Woolley, 3 Va. App.
337, 345, 349 S.E.2d 422, 426 (1986), as applied to Code
§ 20-107.1 concerning spousal support is equally applicable to
Code § 20-107.3 when addressing the requirement of the trial
court to elaborate on the weight given to each statutory
- 9 - factor). However, "the court's findings must have some
foundation based on the evidence presented." Woolley, 3
Va. App. at 345, 349 S.E.2d at 426.
An appellate court must be able to determine from the
record that the trial court gave substantive consideration to
the evidence as it relates to the provisions of Code § 20-107.3.
See Gottlieb, 19 Va. App. at 95, 488 S.E.2d at 677. Here, the
trial court identified and valued all the marital assets and it
"review[ed] all the pleadings, evidence, exhibits submitted and
arguments of counsel, and . . . weighed [them] pursuant to the
factors contained in § 20-107.3." "[A]lthough the court did not
state with particularity the degree of consideration it accorded
to each of the statutory factors," it indicated it considered
all the factors. Gottlieb, 19 Va. App. at 94, 488 S.E.2d at
676.
Upon review of the evidence, it is clear that the trial
court fashioned a fair and equitable distribution of the marital
assets after properly considering the evidence and the factors
in Code § 20-107.3(E). We find no error in the trial court's
refusal to explain more fully its rationale.
3. REFUSAL TO ASSIGN PRESENT VALUE TO WIFE'S PENSION; AND 4. DIVISION OF PENSION IN LIGHT OF MONETARY AWARD
Husband further alleges the trial court erred by failing to
assign a present value to wife's pension and awarding husband
- 10 - 25% of that pension. Husband also claims the award of $105,000
to wife constituted reversible error.
"'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.'" Torian v. Torian, 38 Va. App. 167, 181, 562
S.E.2d 355, 362 (2002) (quoting Srinivasan v. Srinivasan, 10
Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).
In addition, "Virginia law does not establish a presumption
of equal distribution of marital assets," and a trial court has
discretion to make an equal or disparate division as long as it
considered the factors in Code § 20-107.3(E). Matthews v.
Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998); see
also Torian, 38 Va. App. at 181, 562 S.E.2d at 362 (division of
marital share of husband's VRS pension, as with any other asset,
rested within the sound discretion of the chancellor, subject to
the limitations of Code § 20-107.3(G) and upon consideration of
the Code § 20-107.3(E) factors).
As noted above, the trial court heard extensive evidence
ore tenus on January 30, 2002 and received numerous exhibits on
the issue of equitable distribution. The trial court rejected
the valuation methods presented by each party's expert and
declined to assign the pension a present value. After
considering the factors in Code § 20-107.3(E), the trial court
- 11 - fashioned an equitable distribution award, part of which
included an award to wife of 75% of her pension.
Husband contends the award of $105,000 and 75% of the
unvalued pension resulted in wife receiving an inequitable share
of the marital estate.
Code § 20-107.3(A) requires the trial court to determine
"the ownership and value of all property . . . of the parties"
and to "consider which of such property is separate property and
which is marital property." Artis, 4 Va. App. at 137, 354
S.E.2d at 814. Once the property is identified and valued, the
court is authorized to make a monetary award based on all the
factors enumerated in Code § 20-107.3(E). However, in 1988,
amendments to the Code eliminated the need to conduct a costly
present value inquiry for pension and retirement accounts held
by either spouse. Under the present scheme, the court is
permitted to grant a separate pension award in addition to the
general monetary award required by Code § 20-107.3(A). See Code
§ 20-107.3(G)(1) (authorizing the court to "direct payment of a
percentage of the marital share of any pension . . . whether
vested or non-vested, which constitutes marital property and
whether payable in a lump sum or over a period of time").
When a trial court orders deferred distribution of the
marital share of a pension, determining a present value is not
required. See Torian, 38 Va. App. at 177, 562 S.E.2d at 360-61
(under deferred distribution, present value of the pension is
- 12 - irrelevant). "An award may be a percentage of the marital share
of the pension, in which case payment is to be made only as
retirement benefits are paid." Gamer, 16 Va. App. at 343, 429
S.E.2d at 624.
This Court recognized that where the evidence makes "a
precise determination of a pension's [present] value practically
impossible, an award of pension benefits [via the deferred
distribution approach] as those benefits are received by the
payor spouse . . . may prove the only equitable method of
considering the pension benefits in making an award." Johnson
v. Johnson, 25 Va. App. 368, 375, 488 S.E.2d 659, 662 (1997).
Moreover, where, as here, a trial court is "not satisfied
with the evidence that was presented with regard to the value of
[the VRS pension]," it is not required to assign it a present
value. Cf. Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d
665, 668 (1997) (a trial court has discretion to accept or
reject expert testimony); Lassen v. Lassen, 8 Va. App. 502, 507,
383 S.E.2d 471, 474 (1989) (although expert testimony is
preferred for valuing marital property, the fact finder is not
required to accept as conclusive the expert's opinion).
The trial court's decision to divide the marital estate
equally and award the wife a greater portion of her pension is
supported by the record. Accordingly, the trial court did not
abuse its discretion in refusing to assign a present value to
the pension or in awarding husband a 25% share.
- 13 - 5. WIFE'S SEPARATE CONTRIBUTION
Husband challenges the trial court's award of $23,000 to
wife as her separate property. He contends: (A) the tracing
provision of Code § 20-107.3(A)(3) does not apply to separately
titled property; and (B) the trial court erred in applying the
provisions of Code § 20-107.3(A)(3) because wife contributed the
money as a gift.
Rule 5A:18 requires that objections to a trial court's
action or ruling be made with specificity in order to preserve
an issue for appeal. Campbell v. Commonwealth, 12 Va. App. 476,
480, 405 S.E.2d 1, 2 (1991) (en banc). A trial court must be
alerted to the precise "issue" to which a party objects. Neal
v. Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525
(1992). "'It is the duty of a party . . . when he objects to
evidence to state the grounds of his objections, so that the
trial judge may understand the precise question . . . he is
called upon to decide.'" Simmons v. Commonwealth, 6 Va. App.
445, 450, 371 S.E.2d 7, 10 (1988) (citation omitted).
Husband listed nine arguments in the "Subject Index" of his
brief, however, he only listed eight questions presented in the
section referencing where he preserved each issue.
In the "Argument" section, husband claimed the "trial court
erred in finding that the wife's contribution of $23,000 from
her inheritance to construct an addition to the marital abode
was her separate property." Rule 5A:20(c) requires a party's
- 14 - opening brief to contain a "statement of the questions presented
with a clear and exact reference to the page(s) of the
transcript, written statement, record, or appendix where each
question was preserved in the trial court." By omitting a
reference to where he preserved the issue, husband failed to
comply with Rule 5A:20.
Prior to entry of the final decree, husband submitted
sixteen typewritten objections. In objection Number 2, he
alleged, generally, that the trial "[c]ourt erred in finding
that [wife] made a separate contribution to the marital
residence in the amount of $23,000." Husband's general
objection did not alert the trial court to the specific
arguments he presents in his brief, viz., that the tracing
provisions do not apply to separately titled property and that
wife contributed the money as a gift, thereby precluding
tracing.
Because husband did not present to the trial court the
arguments he now makes on appeal, Rule 5A:18 bars our
consideration of these questions for the first time on appeal.
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Husband's general objection Number 2 preserved for appeal,
however, the question of whether there was sufficient evidence
to support the trial court's finding that the $23,000 was wife's
separate property.
- 15 - Code § 20-107.3(A)(3)(d) provides that
when marital property and separate property are commingled by contributing one category of property to another, resulting in the loss 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.
The evidence supports the finding of the trial court that funds
contributed by wife to the addition to the marital home came
from money inherited from her mother's estate. Under Code
§ 20-107.3(A)(1)(ii), "separate property is all property
acquired during the marriage by bequest, devise, descent,
survivorship or gift from a source other than the other party."
Wife presented evidence of an inheritance received upon her
mother's death and both documentary and testimonial evidence of
her separate contribution of some of the inherited funds to the
addition to the marital home. The trial court's finding is
supported by a preponderance of the evidence. Therefore, the
trial court did not err in awarding wife $23,000 as her separate
property.
6. CONDITIONING ENTRY OF THE QDRO ON PAYMENT OF MONETARY AWARD
Husband argues that the trial court committed reversible
error by conditioning entry of the QDRO until he has paid wife a
portion of the monetary award. He relies on Morris v. Morris, 3
- 16 - Va. App. 303, 349 S.E.2d 661 (1986), where this Court held that
the trial court had no authority to condition the wife's
monetary award on her conveying her interest in the jointly
owned home to the husband.
Wife counters that Code § 20-107.3(G) authorizes the trial
court to consider factors in subsection (E) when awarding a
percentage of the marital share of any pension considered
marital property. She contends Code § 20-107.3(E)(10), which
allows the trial court to consider other factors deemed
"necessary or appropriate . . . to arrive at a fair and
equitable monetary award," permits conditioning entry of the
award on husband paying part of the monetary award.
The Morris Court held that the trial judge "had the
authority to make a monetary award as well as authority to
partition the jointly owned property, but he had no authority to
condition one on the other." Morris, 3 Va. App. at 310, 349
S.E.2d at 665. There, the trial court ordered the wife "to
convey her interest in [the] jointly owned marital home and
office building to the husband upon his payment of the $70,000
monetary award." Id. at 310, 349 S.E.2d at 664. We held that
the trial court could not order the transfer as part of the
monetary award because the value of the marital property needed
to be considered as part of the marital award before any
partition occurred. Because the value of the monetary award
- 17 - depended on the amount realized after partition, we reversed.
Id. at 310, 349 S.E.2d at 665.
Assuming Morris remains valid in light of numerous
statutory changes since that decision, those facts are
distinguishable from the facts of this case. The amount of the
monetary award in Morris depended on the partition of the
jointly owned property. The value of the marital property
needed to be considered as part of the marital award and before
any partition occurred. Such is not the case here. The trial
court did not condition the monetary award on conveying an
interest in jointly owned real property in a way that would
affect value. Rather, it merely conditioned the entry of the
QDRO on the payment of the award.
Moreover, Morris involved the conveyance of real property
which has an effect on the property holder's title, whereas
here, the trial court divided a pension by giving husband a
future interest in that property. But that assignment did not
concern title in the property; it was an assignment of rights.
In assigning a future interest in wife's pension to
husband, the trial court recognized the need to protect wife
from the possibility that husband may obtain 25% of her pension
without paying her at least a minimal portion of her marital
share. Code § 20-107.3(G) authorizes the trial court to divide
and distribute a pension after consideration of the factors in
subsection 20-107.3(E). Given the factual circumstances of this
- 18 - case, including husband's prior attempts to defeat wife's effort
to receive her share of the marital assets, we find the court
acted within its equitable powers and in its sound discretion in
arriving at an equitable award. Accordingly, the trial court
did not abuse its discretion in conditioning entry of the QDRO.
7. INTEREST AWARD
The trial court "has the power to grant a monetary award,
payable either in a lump sum or over a period of time in fixed
amounts, to either party." Code § 20-107.3(D). "The provisions
of § 8.01-382, relating to interest on judgment, shall apply
unless the court orders otherwise." Id. Code § 8.01-382
provides that a "judgment or decree of the court may provide for
interest on any principal sum awarded and fix the period at
which the interest shall commence."
The trial court ordered interest to run on the monetary
award beginning thirty days after entry of the final divorce
decree. The monetary award of $105,000 "shall accrue interest
at the judgment rate until paid if unpaid beginning June 1,
2002," the due date of the first installment payment. A trial
court has discretion to award interest and determine when it
should begin to accrue.
Husband argues that the trial court cannot order interest
to accrue on amounts that have not yet "come due." However,
this argument misconstrues the nature of the trial court's
judgment. The trial court ordered a lump sum payment of
- 19 - $105,000 due thirty days from May 1, 2002. However, it provided
husband with an option to pay in installments. Interest would
begin to accrue on June 1, 2002, until fully paid.
The statute allows the trial judge to fix the period at
which the interest will commence. Accordingly, we find no error
in the trial court's decision to include interest.
8. RESERVATION OF SPOUSAL SUPPORT IN FAVOR OF WIFE
Husband appeals the trial court's reservation of spousal
support in favor of wife. He contends the trial court cannot
reserve the right to seek future spousal support after wife
indicated at trial she would not seek spousal support.
According to husband, wife waived her right to seek spousal
support in the future by explicitly forfeiting spousal support
in her statements to the court and in the parties' stipulation
that periodic spousal support would not be an issue. He argues
that a waiver of current spousal support contains an implicit
waiver of future spousal support.
"[W]here there is no bar to the right of spousal support 'it is reversible error for the trial court, upon request of either party, to fail to make a reservation in the decree of the right to receive spousal support in the event of a change of circumstances,' even though, at the time of the decree, neither party needed support."
Vissicchio v. Vissicchio, 27 Va. App. 240, 254, 498 S.E.2d 425,
432 (1998) (quoting Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d
723, 724 (1990) (quoting Bacon v. Bacon, 3 Va. App. 484, 491,
- 20 - 351 S.E.2d 37, 41 (1986))). Wife initially indicated during a
pretrial conference that spousal support was not an issue.
However, during a May 1, 2002 hearing at which the terms of the
forthcoming decree were discussed, wife asked to reserve spousal
support. Husband contended wife waived spousal support in a
"pre-trial conference," and once forfeited, she could not then
reserve it.
Wife argued that she was now requesting a reservation of
spousal support in case husband declared bankruptcy so as to
thwart her ability to obtain her equitable distribution award.
Husband argued, "I think she [wife] has forfeited the right in
this case, even though generally people should probably get that
reservation if they simply ask for it, that's the problem in
this case. And the statute does say may." The trial court
ruled, "Well, at this point, I'm going to reserve a right for
five years" with regard to spousal support.
We distinguish Brown v. Brown, 5 Va. App. 238, 361 S.E.2d
364 (1987), upon which husband relies. In Brown, the "decree of
divorce specifically left open the issue of spousal support,"
however, "[a]t the beginning of [a] subsequent proceeding," Mrs.
Brown's attorney advised the trial court that wife "was not
seeking spousal support." Id. at 245, 361 S.E.2d at 368
(emphasis added). Here, the final decree was not final when
wife requested the reservation.
- 21 - Moreover, in Brown, the trial court made a specific finding
of waiver, which finding was affirmed upon appellate review.
Id. at 247, 361 S.E.2d at 369. Here, the trial court found no
waiver. Based on the circumstances before the trial court and
applying a deferential standard of review, we find the trial
court did not err in reserving wife's right to spousal support
for a period of five years.
Husband also alleges the trial court erred in failing to
make written findings or conclusions as required by Code
§ 20-107.1(F) to justify reserving spousal support. Our review
of the record does not show that husband made this argument to
the trial court. Rule 5A:18 provides that "[n]o ruling of the
trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds
therefor at the time of the ruling . . . ." Accordingly, we are
precluded from addressing it on appeal.
9. CONDITIONING DISPOSAL OF HUSBAND'S PROPERTY
Husband contests the trial court's authority to prohibit
him from encumbering or disposing of his boat, which is marital
property and not jointly titled, for any purpose other than to
satisfy the monetary award to wife. Husband relies on Code
§ 20-107.3(C), which prohibits the trial court from ordering the
division or transfer of separate property or marital property
which is not jointly owned. Husband contends that if a trial
court lacks any authority over such property's division or
- 22 - transfer, then a fortiori, the court could not prohibit the
owner from selling it.
Husband posits that wife should take her place with other
creditors vying for his solely-titled assets and not receive a
preferred claim on his property. She would then have to pursue
available enforcement remedies to collect her award.
Wife contends the trial court has the authority to restrict
the circumstances under which the husband can sell his boat.
She argues Code § 20-107.3(K) grants the trial court "continuing
authority . . . to make any additional orders necessary to
effectuate and enforce any order entered pursuant to [Code
§ 20-107.3]."
Courts in Virginia "operate under the long held principle
that a court of chancery need not fully exercise its power at
one time but may adapt its relief to the circumstances of a
particular case." Morris, 3 Va. App. at 306, 349 S.E.2d at 663.
The facts of this case reveal an attempt by husband to avoid
wife's claims to marital assets.3
Because the boat is marital property, solely titled to
husband, the trial court has no authority to order its division
or transfer. Code § 20-107.3(C). However, subsection (C) does
not prohibit the trial court from placing restrictions on what
3 See footnote 2, supra, and accompanying text.
- 23 - husband does with any proceeds from a sale occurring before the
judgment to wife is satisfied.
The trial court credited the boat to husband in the
equitable distribution schedule and it did not order the boat
divided or transferred. By placing the condition on the boat,
the trial court acted properly in order to protect wife's
marital share of the boat. The trial court's prohibition merely
preserves the asset in the husband so that if he chooses to sell
the boat, the asset is available to satisfy the judgment award
owed to wife. Accordingly, the trial court did not err.
BY WIFE'S ASSIGNMENT OF CROSS-ERROR: ERROR IN CONSIDERING HUSBAND'S DEBTS
Wife claims the trial court erred in considering three
debts attributed to husband. She contends consideration of a
$5,750 debt allegedly owed to husband's father is barred by the
doctrine of res judicata due to the trial court's earlier
decision to void fraudulent transfers to husband's father and
mother. Alternatively, she argues there was insufficient
evidence of the existence of certain debts for the trial court
to consider them in the equitable distribution.4
4 While we find evidence satisfying the contemporaneous objection requirement of Rule 5A:18 to allow this Court to address wife's argument on appeal, we also note that wife failed to properly draft her additional question presented in her brief. Rule 5A:21(b) requires that any additional questions the appellee wishes to present be done "with a clear and exact reference to the page(s) of the transcript, written statement, record or appendix where each additional question was preserved
- 24 - In addition, wife contends there was insufficient evidence
to prove the $5,750 debt to father, an $8,800 debt owed to Dewey
Edwards, and a $2,450 debt owed to Ellis Septic Tank Co.
Res Judicata
In a fraudulent conveyance action, consideration and intent
are at issue and must be proved. Code § 55-80. "Every gift,
conveyance, assignment or transfer of . . . any estate, real or
personal . . . with the intent to delay, hinder or defraud
creditors, purchasers or other persons of or from what they are
or may be lawfully entitled to shall . . . be void." Id. This
section shall not affect the title of a purchaser for valuable
consideration, unless it appear that he had notice of the
fraudulent intent of his immediate grantor or of the fraud
rendering void the title of such grantor. In an equitable
distribution proceeding, the court is required to consider all
evidence of the parties' debts and assets. Identifying a debt
in a divorce proceeding merely requires proof of the existence
of that debt. See Code § 20-107.3(C) and (E) (the apportionment
of marital debts shall be determined by considering, among other
things, the basis for such debts and liabilities).
We find wife's res judicata argument without merit. "Res
judicata precludes the re-litigation of a claim or issue once a
in the trial court." Wife failed to reference where in the record she preserved the issue.
- 25 - final determination on the merits has been reached by a court
having proper jurisdiction over the matter." Gottlieb, 19
Va. App. at 81, 448 S.E.2d at 669. A person seeking to assert
res judicata must establish "(1) identity of the remedies
sought; (2) identity of the cause of action; (3) identity of the
parties; and (4) identity of the quality of the persons for or
against whom the claim is made." Id.
In the fraudulent conveyance action, wife sought to
overturn certain transfers by husband made to defraud wife,
whereas in the divorce action, the trial court considered the
basis of the debts in an attempt to make an equitable
distribution of the marital estate. We agree with the trial
court that there "is not identity of the relief sought" between
the two actions. Both the remedies and the cause of action are
different. The divorce action did not re-litigate the validity
of the debt, but merely sought to ascertain the debt's
existence. Accordingly, the trial court did not err.
Wife also argues the trial court erred in including
husband's debts in its calculation because they were not proved
by the evidence and are corrupted by badges of fraud. Wife
alleges that husband offered no documentary evidence for the
debts. The trial court heard testimony from husband that
Edwards loaned him $8,000 in 1998 and that he repaid the loan
plus interest on February 13, 2001. Husband offered a check for
$8,800 endorsed by Edwards as proof of the loan. Regarding the
- 26 - loan from Ellis and Ellis Septic Tank, husband testified that he
borrowed the money "to pay bills" and that the money "was
between him and I." Husband introduced a promissory note for
$2,000, plus interest, signed by husband and dated July 1998,
and indicating payment made on February 21, 2001 in the amount
of $2,450. In addition, H.B. Buchanan testified that he loaned
his son $5,750 in 1999 to help him pay his bills.
After listening to the testimony and reviewing the
evidence, the trial court gave the husband credit for all three
loan amounts in the equitable distribution award. The trial
court, sitting as fact finder, believed husband's evidence.
"[T]he findings of the trial court based upon the judge's
evaluation of the testimony of witnesses heard ore tenus are
entitled to great weight." Gottlieb, 19 Va. App. at 83, 448
S.E.2d at 670. "We treat the factual determinations of a
chancellor based on ore tenus evidence in the same manner as
factual determinations made by a jury; we reverse them only if
they are plainly wrong or without evidence to support them."
Richardson v. Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151
(1991) (citations omitted). The record contained sufficient
evidence to support the trial court's finding of the existence
of these debts. Accordingly, the trial court did not err in
considering husband's debts.
- 27 - CONCLUSION
For the reasons set forth above, we affirm the decision of
the trial court.
Affirmed.
- 28 -