Norma Jean Armistead v. William P. Armistead

• Court: Court of Appeals of Virginia
• Decided: February 3, 1998
• Docket: 0614973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Overton Argued at Salem, Virginia

NORMA JEAN ARMISTEAD MEMORANDUM OPINION * BY v. Record No. 0614-97-3 JUDGE SAM W. COLEMAN, III FEBRUARY 3, 1998 WILLIAM P. ARMISTEAD

FROM THE CIRCUIT COURT OF WISE COUNTY Ford C. Quillen, Judge (Anthony E. Collins; Collins & Collins, on brief), for appellant. Appellant submitting on brief.

William J. Sturgill (Sturgill & Sturgill, P.C., on brief), for appellee.

In this divorce case, Norma Jean Armistead (wife) appeals

the trial court's decree granting William P. Armistead (husband)

a divorce on the ground of adultery. She contends that husband

failed to prove by clear and convincing evidence that she

committed adultery. She further argues that the trial court

erred in determining the value of the marital estate, in

distributing the marital assets, and by denying her spousal

support. For the reasons that follow, we affirm. I. BACKGROUND

The couple was married on January 16, 1963. During the

marriage, husband inherited a life estate in certain stock from

his father which included fifty-five shares of Coca-Cola Bottling

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Company of Norton and sixty shares of Coca-Cola Bottling Company

of Vansant. From this inheritance, husband and William Kline,

who also inherited stock from husband's father, formed Lonesome

Pine Coca-Cola Bottling Company. Lonesome Pine purchased the

outstanding shares of the Norton and Vansant bottling companies

with a loan secured by husband's mother. Kline died, and

Lonesome Pine purchased back Kline's shares from the Kline

estate. Husband sold his shares of Lonesome Pine to Coca-Cola

Consolidated for $9,000,000 and received an additional $2,000,000

for a non-compete agreement. 1 The couple invested the proceeds

from the stock sale by purchasing several rental properties,

which husband managed.

On August 4, 1995, the parties separated. Husband filed for

divorce on the ground that wife committed adultery. The trial

court appointed a special commissioner to receive the evidence

and to make factual findings pertaining to the grounds for

divorce, spousal support and maintenance, and equitable

distribution. The parties submitted their evidence to the

special commissioner by de bene esse depositions. Husband presented the testimony of Regina Lambert and Karen

Blevins to prove his allegation that wife committed adultery.

1 The special commissioner found that husband effectively merged his life interest in the Norton and Vansant bottling stocks into the new corporation formed during the marriage and, thus, transmuted the stock into marital property. See Steinback v. Steinback, 11 Va. App. 13, 18-20, 396 S.E.2d 686, 690 (1990). Husband does not contest this finding on appeal.

- 2 - Lambert testified that on several occasions she accompanied wife

to various hotels and reserved rooms in her own name so that wife

could covertly meet Bobby Pittman. On these occasions, Lambert

would leave wife and Pittman in the hotel room and return a few

hours later to take wife home. Lambert also accompanied wife to

meet Pittman at his house in Kentucky. She waited outside for

twenty minutes before wife asked her to come inside Pittman's

house. Wife told Lambert that she was meeting with Pittman to

discuss his amorous relationship with wife's granddaughter

because the granddaughter had told wife that Pittman had raped

her. Lambert further testified that she never observed wife

having sexual intercourse with Pittman and that wife never

discussed having sex with him, but she did see wife and Pittman

holding hands. On one occasion, wife urged Lambert to ask

Pittman "if he loved her." Blevins testified that wife had recounted to her several of

the meetings with Pittman. Blevins testified that wife admitted

having sexual intercourse with Pittman. When asked whether wife

expressly stated that she had sex with Pittman, Blevins claimed

that wife said she "had the best time of her life." According to

Blevins, wife stated that she put "leg locks" on Pittman, that he

"didn't last too long," and that she offered to give him oral

sex. Blevins also testified that she did not observe any sexual

activities between wife and Pittman, but she did see the two

holding hands.

- 3 - After reviewing the evidence and briefs of the parties, the

commissioner recommended that the husband be granted a divorce on

the ground of adultery and that wife should not be awarded

permanent spousal support because of her adultery. The

commissioner considered the appraisals of the marital property

submitted by the parties and found the values submitted by the

husband's expert to represent the value of the property. The

commissioner further recommended that the husband be awarded

sixty percent of the marital property and that the wife be

awarded forty percent. The trial court overruled wife's

exceptions to the commissioner's report and entered a final

decree approving and affirming the commissioner's findings. Wife

appealed.

II. STANDARD OF REVIEW

"Where the evidence is heard by a commissioner and not ore

tenus by the trial court, the decree is not given the same weight

as a jury verdict, . . . but if the decree is supported by

substantial, competent and credible evidence in depositions, it

will not be overturned." McLaughlin v. McLaughlin, 2 Va. App.

463, 466-67, 346 S.E.2d 535, 536 (1986) (citations omitted). See

Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828

(1986) (divorce decree based solely on depositions held "not as

conclusive on appellate review as one based upon evidence heard

ore tenus, but such a decree is presumed correct and will not be

overturned if supported by substantial, competent, and credible

- 4 - evidence").

III. ADULTERY

To prove adultery, the evidence of another spouse's

extramarital sexual intercourse must be "clear and convincing."

Derby v. Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989).

"While a court's judgment cannot be based upon speculation,

conjecture, surmise, or suspicion, adultery does not have to be

proven beyond all doubt." Gamer v. Gamer, 16 Va. App. 335, 339,

429 S.E.2d 618, 622 (1993) (citing Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 (1983)). Rather, the evidence must "'produce

in the mind of the trier of facts a firm belief or conviction as

to the allegations [of adultery] sought to be established.'"

Cutlip v. Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989)

(quoting Seeman v. Seeman, 233 Va. App. 290, 293 n.1, 355 S.E.2d

884, 886 n.1 (1987)).

Clear and convincing evidence in the record supports the

trial court's finding that the wife committed adultery. Husband

produced substantial, competent and credible evidence of wife's

extramarital affair with Pittman. Blevins testified that wife

admitted having sexual intercourse with Pittman. Furthermore,

the evidence proved that wife covertly met with Pittman in hotel

rooms on various occasions. In these instances, the wife's

friends would reserve a hotel room in the friend's name, leave

wife and Pittman in the hotel room, and return several hours

later to pick up wife. Further, Blevins testified that wife held

- 5 - hands with Pittman and described to Blevins the "leg locks" she

placed on Pittman and how Pittman "didn't last too long" during

their encounters.

The commissioner was free to disbelieve wife's explanation

to Lambert that she met with Pittman to discuss his relationship

with wife's granddaughter. Based on the foregoing evidence, we

cannot say that the trial court erred in finding that wife

committed adultery.

IV. VALUATION OF MARITAL PROPERTY

We hold that the trial court's valuation of the marital

assets was not erroneous. The trial court must value the

parties' marital property before making an equitable

distribution. See Code § 20-107.3. The parties bear the burden

of providing the trial court with sufficient evidence from which

it can value their property. Bosserman v. Bosserman, 9 Va. App.

1, 5, 384 S.E.2d 104, 107 (1989).

In this case, the parties presented conflicting expert

appraisals of the property. The commissioner found the value of

the property to be "consistent with the appraisal of [husband's

expert]." Wife contends the commissioner arbitrarily disregarded

the credible evidence of wife's expert and argues that the trial

court's acceptance of the commissioner's valuation was error.

Wife's contention is without merit. The commissioner had

discretion to resolve the conflicting evidence of the expert

appraisers and to make factual findings. See Reid v. Reid, 7 Va.

- 6 - App. 553, 563, 375 S.E.2d 533, 539 (1989) (commissioner may find

one of several conflicting expert appraisals more credible so

long as credible evidence supports selected appraisal); see also

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)

("The commissioner has the authority to resolve conflicts in the

evidence and to make factual findings."). Moreover, the

commissioner stated in his report that he found the testimony of

the husband's expert to be "convincing and worthy of a great deal

of weight." In this respect, the commissioner's report indicates

that he weighed the evidence of both experts and found the

valuation of the husband's expert more plausible. Accordingly,

the trial court did not err in accepting the commissioner's

valuation of the marital property. V. EQUITABLE PROPERTY DISTRIBUTION

We hold that the trial court did not err in assigning only

forty percent of the marital estate to wife under equitable

distribution. "The goal of equitable distribution is to adjust

the property interests of the spouses fairly and equitably." Booth v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988).

In making an equitable distribution, once the court classifies

and determines the value of marital property, it must distribute

the property to the parties, taking into consideration all of the

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

395, 403, 424 S.E.2d 572, 576 (1992). The court is not required

to qualify each factor, or weigh them equally, but its

- 7 - consideration of each factor must be supported by the evidence.

Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 434

(1991). Further, in fashioning an award, the trial court has

broad discretion to weigh the particular circumstances of each

case, Gamble v. Gamble, 14 Va. App. 558, 573, 421 S.E.2d 635, 644

(1992), and its decision will not be set aside unless it is

plainly wrong or unsupported by the evidence. Srinivasan v.

Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). Here, the commissioner considered all of the factors in Code

§ 20-107.3(E). He found that husband's business interests and

acumen supplied the "vast majority of the monetary contribution

to the well-being of the family" and accounted for the

acquisition of the couple's marital property. He noted that wife

cared for the couple's child and house in the early years of the

marriage, but was frequently absent from the home towards the end

of the marriage. Further, he found that wife's adultery

contributed to the dissolution of the marriage, but did not cause

any economic depreciation in the marital property. From these

facts, the commissioner recommended assigning sixty percent of

the value of the marital property to husband and forty percent to

wife.

Wife contends the evidence fails to support the

commissioner's finding that husband contributed the substantial

portion of the marital property. We disagree. The record

reveals that most, if not all, of the marital property was

- 8 - acquired by husband's use of his inheritance to establish

Lonesome Pine and purchase the rental properties. The

commissioner's finding is supported by substantial and credible

evidence and, thus, the trial court's affirmance of this finding

is not error.

Further, citing Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833

(1988), wife contends the commissioner and trial court improperly

considered wife's marital fault in making an equitable

distribution. Aster held that "[c]ircumstances that lead to the

dissolution of the marriage but have no effect upon marital

property, its value, or otherwise are not relevant in determining

a monetary award, need not be considered." 7 Va. App. at 5-6,

371 S.E.2d at 836. In this vein, Aster sought to eliminate

arbitrary monetary awards that punished a spouse for his or her

marital fault without showing such fault had an economic impact

on the marriage. See O'Loughlin v. O'Loughlin, 20 Va. App. 522,

528, 458 S.E.2d 323, 326 (1995).

Wife's reliance on Aster is misplaced. Although the

commissioner did find that wife's adultery had "not caused any

economic depreciation in the marital property value," the

commissioner's report does not reflect that he considered wife's

adultery in recommending an equitable distribution. Moreover,

the trial court did not mention wife's adultery in finding the

commissioner's sixty/forty distribution fair and equitable, but

rather relied "especially [upon] the monetary contributions by

- 9 - the husband . . . ." Accordingly, the trial court's equitable

distribution did not violate Aster. 2

VI. DENIAL OF SPOUSAL SUPPORT

We hold that the trial court's denial of spousal support was

not erroneous. Code § 20-107.1 provides that "no permanent

maintenance and support shall be awarded from a spouse if there

exists in such spouse's favor a ground of divorce [for

adultery]." The court may, in its discretion, make such an award

if it determines from "clear and convincing evidence that a

denial of support and maintenance would constitute a manifest

injustice, based upon respective degrees of fault during the

marriage and the relative economic circumstances of the parties."

Code § 20-107.1. Wife asserts that the trial court's denial of

2 At any rate, we elaborated on Aster in O'Loughlin and stated that:

our ruling in Aster did not establish that the negative impact of marital fault . . . could not be considered in light of other factors, such as the couple's nonmonetary contributions, under Code § 20-107.3(E). Just as marital fault could be shown to have an economic impact on a marriage, i.e., waste or dissipation of assets, it can also be shown to have detracted from the marriage in other ways.

20 Va. App. at 528, 458 S.E.2d at 326. Thus, "the negative impact of fault on non-economic aspects of the marriage [may] also be considered in determining a monetary award." Theismann v. Theismann, 22 Va. App. 557, 569, 471 S.E.2d 809, 815 (1996) (emphasis added). In this respect, the trial court, if it had so chosen, could have considered the effect of wife's adultery on the nonmonetary contributions by the parties to the well-being of the family.

- 10 - spousal support constituted a manifest injustice because she had

not performed any gainful employment for thirty years, is in poor

health, and had become accustomed to having maids and

housekeepers.

Decisions regarding spousal support rest within the sound

discretion of the trial court and will not be reversed on appeal

unless plainly wrong or unsupported by the evidence. Konefal v.

Konefal, 18 Va. App. 612, 614, 446 S.E.2d 153, 154 (1994). The

commissioner recommended denying wife spousal support after

considering wife's adulterous conduct and the relative economic

circumstances of the parties. We cannot say that the trial court

abused its discretion in accepting this recommendation and

finding that wife failed to show by clear and convincing evidence

that its denial of spousal support constituted a manifest

injustice. Finding no error, we affirm the trail court's decree.

Affirmed.

- 11 -