Morris v. Morris

349 S.E.2d 661, 3 Va. App. 303
CourtCourt of Appeals of Virginia
DecidedOctober 21, 1986
Docket0606-85; 0637-85
StatusPublished
Cited by80 cases

This text of 349 S.E.2d 661 (Morris v. Morris) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Morris, 349 S.E.2d 661, 3 Va. App. 303 (Va. Ct. App. 1986).

Opinions

Opinion

BARROW, J.

Both Marjorie Martin Morris (wife) and Harry Arthur Morris, Jr. (husband) appeal this divorce case. Wife complains that the marital property was not properly determined and that the court improperly ordered the transfer of jointly owned property to husband. Husband claims the court erred in awarding spousal support to wife and, in the alternative, in awarding an excessive amount of spousal support. The trial court was correct in all of its rulings except the order requiring the transfer of jointly owned property to the husband. For this reason, we reverse the judgment and remand the case for further proceedings.

Four properties were the subject of controversy in determining a monetary award. These were the marital residence, husband’s office building, husband’s law practice and a fifteen acre parcel of land. The trial court placed a value on each item except the law practice, the value of which was never proved, and determined that the properties, with the exception of the law practice, were marital property. The trial court awarded wife a $70,000 monetary award conditioned upon wife conveying the marital home and [306]*306office building to husband and also awarded her spousal support in the amount of $850 a month.

Before addressing the issues raised by the parties on appeal we must dispose of a procedural concern which they did not raise. The trial court reserved in its decree of divorce certain collateral issues which it disposed of in a subsequent decree. On April 3, 1984, the decree of divorce was entered granting the husband a divorce on the ground of a one-year separation. This decree also made the monetary award described previously but reserved decision on attorney’s fees, spousal support and custody for a later determination. On April 18, 1984, within twenty-one days after the decree of divorce, the court on the wife’s motion vacated its decision “as to property rights, equitable distribution and partition” and reserved “its jurisdiction and authority” to dispose of these matters along with spousal and child support, child custody, visitation rights and attorney’s fees. On April 15, 1985, the trial court entered an order disposing of those issues it had reserved for a later determination. The monetary award in the second decree was identical to that provided for in the first decree.

This court has previously held that a trial court has the power to reserve in a decree of divorce the authority to make a monetary award under Code § 20-107.3. Parra v. Parra, 1 Va. App. 118, 127, 336 S.E.2d 157, 162 (1985). This holding is consistent with 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. Brinn v. Brinn, 147 Va. 277, 285, 137 S.E. 503, 505 (1927). The trial court’s decision was also consistent with its authority to reserve consideration of support questions beyond the time of the final decree. Thomasson v. Thomasson, 225 Va. 394, 397 n.1, 302 S.E.2d 63, 65 n.1 (1983). Therefore, we find no error in the trial court’s exercise of this authority.

Although the wife filed a notice of appeal to the monetary award provision contained in the first decree, the husband did not. Since no timely notice of appeal was filed with respect to the decree of divorce itself we do not consider any issue concerning the correctness of the decree of divorce and only consider evidence of the grounds for divorce to the extent that it relates to the award of spousal support.

[307]*307I. MARITAL PROPERTY

Wife complains that the trial court erred in determining that the fifteen acre parcel of land titled in her name was marital property. The property was purchased by the wife after the marriage. She paid for it by selling stock and by obtaining a loan which was repaid from child support monies she received for two dependent children from a previous marriage.

In her appeal, wife claims the stock, the proceeds of which were used to buy the fifteen acre parcel, belonged to her prior to the marriage. Code § 20-107.3(A)(l)(iii) provides that “all property acquired during the marriage in exchange for or from the proceeds of sale of separate property” is separate property so long as it is maintained as separate property. Thus, the wife contends that the fifteen acre parcel purchased from the proceeds of the sale of the stock is separate property.

However, there was no evidence that the stock was acquired prior to the marriage or by gift or inheritance. The trial court found that she purchased the fifteen acre parcel for “$7,500 by selling $3,000 worth of stock and obtaining a bank loan” and that “[w]hile she testified that she brought $35,000 including some stocks into the marriage, no evidence was presented tracing those funds or stocks to this purchase.” Based on the presumption that all property acquired by either spouse during the marriage is marital property, Code § 20-107.3(A)(2), and “other evidence” supporting this conclusion, the trial court concluded that the fifteen acre parcel was marital property. This conclusion is not plainly wrong and is supported by the evidence; therefore, we will not disturb it. See Alls v. Alls, 216 Va. 13, 14, 216 S.E.2d 16, 17 (1975).

The trial court refused to reopen the proceedings at the wife’s request to hear additional evidence concerning the source of funds used to purchase the fifteen acre parcel. Since the request came six weeks after the evidentiary hearing consisting of two full days of testimony during which each party had ample opportunity to present evidence, it was within the court’s discretion to refuse to take further evidence on this subject. See Mundy v. Commonwealth, 161 Va. 1049, 1064, 171 S.E. 691, 696 (1933); Wilkie v. Richmond Traction Co., 105 Va. 290, 296, 54 S.E. 43, 45 (1906).

[308]*308The wife also contends that the husband’s law practice should have been considered as marital property in determining the monetary award. The trial court concluded that “there was insufficient evidence ... to take it into consideration.” The only evidence she presented on this issue was elicited from the husband on cross-examination. He testified that the value of the equipment and books he owned was less than the $13,500 he owed and that his anticipated gross income in 1983 was $73,000. We agree with the trial court that this is insufficient evidence from which the value of a business can be determined for the purposes of making a monetary award. Since “[w]ithout value, there is no basis for monetary award,” Hodges v. Hodges, 2 Va. App. 508, 515, 347 S.E.2d 134, 138 (1986), we do not reach the issue of whether the value of a professional practice is marital property to be used in determining a monetary award.

II. SUPPORT

Husband and wife had a stormy relationship during the last few years of their marriage. They were involved in several altercations, and they verbally abused one another.

Husband is a lawyer who has a successful practice as a sole practitioner.

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Bluebook (online)
349 S.E.2d 661, 3 Va. App. 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-morris-vactapp-1986.