Oscar Marion Barber v. Laura Burnside Barber

• Court: Court of Appeals of Virginia
• Decided: November 28, 1995
• Docket: 1017952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

OSCAR MARION BARBER

v. Record No. 1017-95-2 MEMORANDUM OPINION * PER CURIAM LAURA BURNSIDE BARBER NOVEMBER 28, 1995

FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY John M. Folkes, Judge (Jeffrey M. Steingold, on brief), for appellant.

(Henry A. Conner, Jr., on brief), for appellee.

Oscar Marion Barber appeals the decision of the circuit

court finding fraud on the part of Laura Burnside Barber. The

commissioner found, and the circuit court confirmed, that Laura

had fraudulently induced Oscar to convey to her his interest in

property owned jointly. On appeal, Oscar raises the following

issues: (1) whether the trial court erred in refusing to order

Laura to pay rent to him for the time she occupied the property

following the fraudulent conveyance; and (2) whether the trial

court erred in refusing to award Oscar attorney's fees and costs.

Upon reviewing the record and briefs of the parties, we conclude

that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. Rule 5A:27.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Recovery of Rent

Oscar sought to recover rent from Laura as part of the

equitable distribution of the parties' marital estate. "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." Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815

(1987). Upon entry of the divorce decree, property formerly held

by the spouses as joint tenants or tenants by the entirety is

converted into a tenancy in common. Code § 20-111. We have

ruled that, under some circumstances, a party who retains

exclusive possession of property formerly jointly held may be

liable to the other tenant for rent. See, e.g., Gaynor v. Hird,

15 Va. App. 379, 382, 424 S.E.2d 240, 242 (1992); see also Code

§ 8.01-31. However, those cases are distinguishable from the

situation in this case.

The trial court found Laura had defrauded Oscar out of his

share of the property formerly owned by the parties as joint

tenants. As Oscar acknowledged, Laura did not receive rent

during Oscar's absence, although Laura was sharing the house with

another man. There was no corpus of collected rents upon which

to impose a constructive trust or for which Laura had a fiduciary

duty to account. Moreover, regardless of the fraud perpetrated

by Laura, Oscar would not have been residing in the home for a

2 period of time prior to the parties' divorce due to his

incarceration.

The fraud perpetrated by Laura was remedied by the recision

of the deed to Laura as femme sole and the subsequent equitable

distribution of the property. We cannot say the trial court

abused its discretion in denying Oscar's request for the value of

rental income during the time he was incarcerated.

Attorney's Fees and Costs Awards of attorney's fees or costs are matters submitted to

the sound discretion of the trial court and reviewable on appeal

only for an abuse of discretion. Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award

of counsel fees is reasonableness under all the circumstances.

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162

(1985). The trial court held Laura "solely responsible and

liable for all liens, notes, debts and other obligations

including clouds of title which she caused to be incurred" upon

the parties' property. Based upon this holding, the evidence

presented and the number of issues involved, we cannot say that

the trial judge abused his discretion in not also ordering Laura

to pay Oscar's costs or attorney's fees.

Accordingly, the decision of the circuit court is summarily

affirmed.