Nancy M. Jaffe v. Stephen L. Jaffe

• Court: Court of Appeals of Virginia
• Decided: June 17, 1997
• Docket: 2348962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole Argued at Richmond, Virginia

NANCY M. JAFFE MEMORANDUM OPINION * BY v. Record No. 2348-96-2 JUDGE MARVIN F. COLE JUNE 17, 1997 STEPHEN L. JAFFE

FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H. C. Taylor, Judge Lawrence D. Diehl for appellant.

Stephen L. Jaffe, pro se.

Nancy M. Jaffe (wife) appeals a decision of the Circuit

Court of Hanover County disposing of certain issues of spousal

support and equitable distribution. She contends that the trial

court erred in (1) awarding a lump sum award of $50,000 as

spousal support in lieu of periodic spousal support; (2) failing

to compensate her for services rendered and expenses incurred in

developing and subdividing the marital real estate known as

"Stanley Farms"; (3) failing to complete the personal property

division pursuant to its previous rulings; and (4) denying her

motion to modify and suspend the execution of the court's order

of August 27, 1996, because the trial court failed to properly

assess the tax consequences of the order. Upon reviewing the

record, we find this appeal without merit and affirm, except that

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. part awarding a $50,000 lump sum in lieu of periodic spousal

support, which we reverse and remand.

Because the parties are familiar with the facts, we restate

only those facts necessary to explain our holdings on the issues.

I. Lump Sum Award

During the years that this cause has been pending, Stephen

L. Jaffe (husband) has been paying periodic spousal support. In

its latest spousal support order dated May 25, 1995, the trial

court ordered husband to pay wife monthly the sum of $1,500, plus

medical insurance, effective April 1, 1995. In a final letter

opinion concluding all of the issues before it, the trial court

found a change of circumstances and ordered that the monthly

payment of spousal support and medical insurance should cease on

September 1, 1996, and that the husband will be required to pay

to wife in lieu thereof a lump sum payment of $50,000, which was

to be paid out of the husband's distribution from the sale of

"Stanley Farms" lots held in escrow by Commissioner Vaughan. The

trial judge stated that "to continue to require a relationship,

each with the other, is materially destructive." The order did

not grant the right to the wife to petition the court for

additional support in the future. Code § 20-107.1 provides that "[t]he court, in its

discretion, may decree that maintenance and support of a spouse

be made in periodic payments, or in a lump sum award, or both."

The exercise of the trial court's discretion will not be

2 disturbed upon appeal unless it has been exceeded. With regard to how the court shall fashion an award of spousal support, the law's aim is to provide a sum for such period of time as needed to maintain the spouse in the manner to which the spouse was accustomed during the marriage, balanced against the other spouse's ability to pay. The balance must be struck and awards made upon the basis of the circumstances disclosed by the evidence at the time of the award.

Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990)

(citation omitted). In Blank, this Court stated that "[g]enerally, when courts

do make lump sum spousal support awards they do so because of

special circumstances or compelling reasons, and appellate courts

uphold such awards where the record clearly reflects the court's

rationale for finding that the award will adequately provide for

contingencies." Id. at 5, 389 S.E.2d at 725. We acknowledged

that under some circumstances a lump sum award may be justified

and advantageous to one or both parties. One who receives the

benefit of a lump sum award does not have to face the possibility

that payments may diminish with changes in the payor's

circumstances. The payor is assured that he can plan for the

future without facing the uncertainty that the support obligation

may be increased. See id. at 5-6, 389 S.E.2d at 725-26. "A lump

sum award based on evidence showing special circumstances or

compelling reasons may be final if fully adequate to meet the

payee spouse's reasonably foreseeable needs." Id. at 6-7, 389

S.E.2d at 726.

3 In the present case, neither party favored a lump sum award.

Husband, for reasons set forth in the Plaintiff's Memorandum of

his Position dated July 20, 1996, contended that wife was not

entitled to any spousal support because she was able to work and

had sufficient assets received from equitable distribution of the

marital assets to support herself. Wife, for reasons set forth

in the Defendant's Memorandum of her Position filed on July 29,

1996, contended that her spousal support should remain at $2,000

monthly, plus payment of medical insurance. She did suggest,

pursuant to a request from the trial court, that she would accept

a lump sum award (based upon life expectancy tables of 26.4 years

and $2,000 monthly support payments) of $471,457. We do not find any special circumstances or compelling

reasons for a lump sum award in this case. When the parties

receive their final distribution for the sale of the "Stanley

Farms" lots, now held in an escrow account by the special

commissioner, both husband and wife will receive a substantial

cash distribution which will more than satisfy any need for cash

at the present time.

Husband recognizes that he and wife are at ages where

disability has become a major concern in their lives. He asserts

that physical barriers and declining age may affect his economic

future and that this must be considered in the court's decision.

Wife claims that because of her age and physical disabilities,

the only jobs she can secure would pay $5-$8 an hour. She will

4 receive a substantial distribution when the special commissioner

makes the distribution from the sale of "Stanley Farms" lots. In

addition, she contends that she will need monthly support

payments in the amount of $2,000 to live up to the standard of

living to which she is accustomed. Finding no evidence of

special circumstances or compelling reasons to justify a lump sum

award in lieu of periodic payments, we find that the trial court

erred in awarding the lump sum payment in lieu of periodic

spousal support payments. We vacate the lump sum award of

$50,000 and remand for determination of an appropriate periodic

spousal support payment or the reservation of the right to

request spousal support if no periodic support is awarded. II. Claim for Services and Expenses Incurred in Development of "Stanley Farms"

Wife contends that she conceived the plan of development of

"Stanley Farms," obtained releases from lenders, supervised the

work, did the layouts for electric utilities, and obtained

approval of the subdivision from Hanover County and appropriate

state agencies. She asserts that she is entitled to compensation

for her services and expenses in the work she did in the

subdivision of "Stanley Farms." Husband points out that he kept

the cash flowing since January of 1989, that he performed as much

work as wife, yet he received only 45% of the distribution from

the sale of this marital asset.

On April 13, 1994, wife filed a motion in the divorce and

equitable distribution cause asking the court to compel the

5 subdivision of "Stanley Farms." She alleged that she, together

with many professionals experienced in subdivision planning,

formulated a plan and funding for subdividing "Stanley Farms,"

that husband refused to sign the necessary documents enabling the

project to go forward, and she moved the court to order the

proposed subdivision.

On April 18, 1994, a hearing was held on the motion to

subdivide, on a motion to award compensation to the wife for her

services and expenses and on other motions not pertinent hereto.

The trial court ordered that the parties immediately execute all

documents necessary for the subdivision of "Stanley Farms"

consistent with the subdivision plan of the wife and Wally

Hughes, a realtor, the engineering and survey proposal prepared

by Paul Jalbert and the realty marketing agreement proposed by

Sandra Worsham and Wally Hughes, Incorporated. The court further

ordered that until the sale of "Stanley Farms," husband continue

to pay all outstanding mortgages, taxes and insurance as

previously ordered by the court. The court further ordered that

each party share equally in the expenses of the sale of each lot

associated with the cost of the subdivision, e.g., the cost of

the roads and surveys. The court took under advisement wife's

motion for compensation for her work on the subdivision. In her brief, wife admits that no Virginia court has

directly addressed the issue of fees or compensation for

equitable distribution sales efforts, but relies upon Swinford v.

6 Swinford, 682 S.W.2d 189 (Mo. Ct. App. 1984), referring to the

appointment of a person to effectuate a sale of property, the

court stating: "Obviously, the appointment would entitle the

person to a reasonable fee to be fixed by the court." Id. at

192. This case is not on point because it does not deal with

joint tenants. In this case, the trial court has compensated

Special Commissioner Vaughan for his services and expenses out of

joint funds. All of the professional persons who worked on the

subdivision have been paid out of joint funds. Wife has been

paid for her expenses out of joint funds. Husband has not been

reimbursed for payment of the mortgages, taxes and insurance out

of joint funds. Code § 20-107.3(C) gives to a circuit court jurisdiction to

deal with marital assets. The statute provides that the court

may, based upon the factors listed in subsection E, divide or

transfer or order the division or transfer, or both, of jointly

owned marital property, or any part thereof. As a means of

dividing or transferring the jointly owned marital property, the

statute provides that the court may transfer or order the

transfer of real or personal property or any interest therein to

one of the parties, permit either party to purchase the interest

of the other and direct the allocation of the proceeds, provided

the party purchasing the interest of the other agrees to assume

any indebtedness secured by the property, or order its sale by

private sale by the parties, through such agent as the court

7 shall direct, or by public sale as the court shall direct without

the necessity for partition. We do not believe that the statute

grants authority to the circuit courts to require the parties to

subdivide real estate in order to sell it. Subdivision of land

requires approval and regulation by both municipal and state

governments. It requires planning, financing, surveying,

building roads and utilities before selling lots, as was done in

this case. The statute does not require the parties to

involuntarily submit to such risks. The statute envisions a sale

or division of the property in its current state. Wife has not

advanced any legal theory that will permit her to recover for

services rendered in planning a subdivision where the actual work

has been performed by third parties who are knowledgeable in such

areas and paid for such work by the special commissioner out of

the proceeds of sale of the real estate. Wife cannot recover in this divorce case upon any theory of

contract law because there was no contract between the joint

owners of the real estate. The husband did not voluntarily agree

to a subdivision of "Stanley Farms," but was involuntarily

required to participate by virtue of a court order.

It is an established principle of property law that

"[c]otenants may, of course, render,

themselves jointly liable to third persons by

contracting jointly in respect to the common

property. But one tenant in common cannot

8 bind his cotenant personally nor by any

unauthorized agreement or act in respect to

the common property. There is no

relationship existing between cotenants, as

between partners, which will render the acts

of one cotenant respecting the common

property binding on the others. No action of

one or more of several tenants in common can

impair the rights of the other cotenants."

Overby v. White, 245 Va. 446, 448, 429 S.E.2d 17, 18-19 (1993)

(citation omitted).

If we considered the sale in this case equivalent to a

partition suit for the sale of real estate, wife still could not

recover for her services. The Supreme Court, in Shotwell v.

Shotwell, 202 Va. 613, 119 S.E.2d 251 (1961), stated: It is true that as a general rule a joint tenant who at his own expense places permanent improvements upon common property is entitled in a partition suit to compensation for the improvements. This is so, whether his cotenant agreed thereto or not. Compensation of this kind is allowable not as a matter of legal right but purely as a desire of a court of equity to do justice and to prevent one tenant from becoming enriched at the expense of another. However, in the absence of consent on the part of the cotenant the amount of compensation is limited to the amount by which the value of the common property has been enhanced.

Id. at 618, 119 S.E.2d at 255.

Wife does not come under this rule because she did not prove

9 the actual construction of any improvement and, although

subdividing the land may have seemed a premium price for it, she

presented no evidence that her services produced any enhancement

in value to the common property. We find that the trial judge

was not plainly wrong in denying her claim for compensation in

planning the subdivision of "Stanley Farms."

III. Personal Property Division

Wife contends that the trial court failed to complete the

personal property division pursuant to previous rulings of the

court. The commissioner in chancery, whose recommendation was

approved by the trial court, made no monetary award to either

party, but decided this case under Code § 20-107.3(C) that

provides for the division or transfer, or both, of jointly owned

marital property. Regarding a division of the personal property,

the commissioner reported that wife should retain ownership of

her motor vehicle and husband should retain the vehicle he had in

his possession. He further reported that they should each retain

ownership and possession of the personal property that they had

in their possession at the time. He distributed to husband

complete ownership and possession of the personal property

located at his professional office. He provided that the horses,

the tack, the motorboat, gear and trailer, sporting equipment,

the fully equipped workshop and other building supplies should be

sold with the farm.

10 The trial court decided that the divisions to date were

sufficient to finalize the award. Wife in her brief asserts that

the trial court's statement was made with no evidence to support

such a conclusion; such a conclusion without a full accounting,

without a valuation of the remaining items to be distributed, was

not supported by the record. She contends that we should remand

this issue to the trial court for purposes of finalizing the

personal property division according to the original final

decree. "On appeal, the judgment of the trial court is presumed

correct. The burden is on the party who alleges reversible error

to show by the record that reversal is the remedy to which he is

entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404

S.E.2d 384, 387 (1991) (citations omitted). Litigants have the

burden to present evidence sufficient for the court to discharge

its duty. "'[T]he burden is always on the parties to present

sufficient evidence to provide the basis on which a proper

determination can be made . . . .'" Bowers v. Bowers, 4 Va. App.

610, 617, 359 S.E.2d 546, 550 (1987) (citation omitted).

"'Parties should not be allowed to benefit on review for their

failure to introduce evidence at trial. . . . At some point we

must "ring the curtain down."'" Id. (citations omitted). We

find no error in the trial court's ruling.

IV. Tax Consequences Wife contends that the trial court erred in denying her

11 Motion to Modify and Suspend its August 27, 1996 order because it

failed to properly assess the tax consequences of such order.

The trial court explained, when it denied the motion, that all

ten items set forth in Code § 20-107.3(E) were examined by the

commissioner and by the trial court on many occasions,

particularly during the period of time when the distribution of

assets, sale of lots, the purchase of lots by wife and the

purchase of all of the property by wife were under discussion.

The court stated that the tax consequences were taken into

consideration in examining the change of circumstances and

setting the lump sum award in lieu of alimony. The trial court is directed by the statute to consider tax

consequences in making an award of equitable distribution. The

record in this case reflects that the trial court on many

occasions has considered tax consequences. We find that it

neither abused its discretion nor misapplied the statutory

factors in its adjudication of the award. Therefore, it did not

err in refusing to modify or suspend execution of its August 27,

1996 order.

For the foregoing reasons, the decision of the trial court

is affirmed in part and reversed in part. The provision for a

$50,000 lump sum award in lieu of periodic spousal support is

vacated and is remanded to the trial court to determine

appropriate periodic spousal support. Affirmed in part, reversed in part, and remanded.