Richard C. Rudisill v. Marie H. Rudisill

• Court: Court of Appeals of Virginia
• Decided: May 2, 1995
• Docket: 1636942
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Elder Argued at Richmond, Virginia

RICHARD C. RUDISILL

v. Record No. 1636-94-2 MEMORANDUM OPINION * BY JUDGE SAM W. COLEMAN III MARIE H. RUDISILL MAY 2, 1995

FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY Samuel T. Powell, III, Judge Everette A. Felts for appellant.

Alexandra D. Bowen (Bowen and Bowen, on brief), for appellee.

In this appeal, we uphold the final decree of divorce and

monetary award entered by the Circuit Court of Charles City

County. The appellant contends that the trial court erred by

finding that the wife did not desert the husband, by granting the

wife spousal support, by finding that the home, certificate of

deposit No. 76, and the round table were marital property, and by

finding the value of the boat to be $12,000. For the following

reasons, we affirm the decisions of the trial court.

Richard and Marie Rudisill were married in 1979. During the

marriage, the husband, Richard, executed a deed to himself and

his wife as tenants by the entirety to the home that he owned

before they were married. The parties separated in 1990, and the

wife filed a bill of complaint for divorce. The husband filed a

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. cross bill. The matter was referred to a commissioner in

chancery. Hearings were held, a report was filed, and exceptions

were noted. The circuit court entered a final decree and

monetary award.

On appeal, we view the evidence in the light most favorable

to the prevailing party below, granting to her all reasonable

inferences therefrom. McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990). A decree which approves a

commissioner's report will be affirmed unless plainly wrong. Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 296 (1984).

We first consider whether the trial court erred by finding

that the wife did not desert the husband. Desertion occurs when

one spouse breaks off marital cohabitation with the intent to

remain apart permanently without the consent and against the will

of the other spouse. Barnes v. Barnes, 16 Va. App. 98, 101, 428

S.E.2d 294, 297 (1993). Code § 20-99(2) requires the complaining

party to prove and corroborate his or her grounds for a fault

divorce based on desertion. Hurt v. Hurt, 16 Va. App. 792, 800,

433 S.E.2d 493, 499 (1993). Desertion must be proven by a

preponderance of the evidence. Bacon v. Bacon, 3 Va. App. 484,

490, 351 S.E.2d 37, 40-41 (1986).

The commissioner found "that neither party proved a fault

grounds for divorce" and that there was not "sufficient

corroborated testimony to grant the husband a fault divorce on

the grounds of cruelty and desertion." The trial court accepted

-2- the commissioner's findings. A trial court may accept or reject

a commissioner's findings as its judgment may require. Hodges v.

Hodges, 2 Va. App. 508, 513, 347 S.E.2d 134, 137 (1986). Unless

the trial court's acceptance or rejection of the commissioner's

report is plainly wrong, we will affirm the decision. See Seeman

v. Seeman, 223 Va. 290, 293, 355 S.E.2d 884, 886 (1987). We

cannot say that the trial court's acceptance of the

commissioner's findings was plainly wrong. Id. The husband contends that the trial court erred by granting

spousal support to the wife. "In determining spousal support, a

trial court has broad discretion and 'the appellate court will

not interfere with such discretion, unless it is clear that some

injustice has been done.'" Morris v. Morris, 3 Va. App. 303,

309, 349 S.E.2d 661, 664 (1986) (quoting Oliver v. Oliver, 202

Va. 268, 272, 117 S.E.2d 59, 62 (1960)). In determining whether

an award of spousal support is to be granted, the trial court

must consider the factors listed in Code § 20-107.1. Carpenter v. Carpenter, 19 Va. App. 147, 153, 449 S.E.2d 502, 505 (1994).

The court, however, is not required to quantify or elaborate what

weight or consideration it has given to each factor, as long as

the court's findings have support in the evidence presented.

Wooley v. Wooley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426

(1986). The commissioner conducted a detailed examination of the

husband's and wife's expenses and needs. Credible evidence

supported the trial court's findings. We will not interfere with

-3- the trial court's discretion in this matter.

While the parties were married, the husband, by deed,

transferred the marital home, held solely in his name before the

marriage, to himself and his wife as tenants by the entirety.

The trial court approved the commissioner's finding that the

"property was transmuted to marital property by gift from husband

to wife." We uphold that finding. The deed of conveyance to the

husband and wife as tenants by the entirety during the marriage

transmuted the property to marital property. When the husband

transferred the property, the property became marital property.

See Westerbrook v. Westerbrook, 5 Va. App. 446, 453-54, 364

S.E.2d 523, 527-28 (1988). Having determined that the property

was marital and that the husband made a gift of an interest in

the property to wife, the trial court did not err in its

equitable distribution award.

The husband also contends that the trial court erred when it

adopted the commissioner's finding that certificate of deposit

No. 76 was marital property. Code § 20-107(3)(A)(2)(iii) defines

marital property as "property acquired by each party during

marriage." All property acquired by either spouse during the

marriage is presumed to be marital property. Hurt, 16 Va. App.

at 799, 433 S.E.2d at 497. The parties were married in 1979. On

his 1979 income tax return, the husband did not list certificate

of deposit No. 76 as property. A 1982 bank statement showed that

the husband then owned certificate of deposit No. 76. The

-4- husband did not challenge the evidence. Thus, the evidence was

sufficient to support the commissioner's finding, as adopted by

the trial court, that certificate of deposit No. 76 was marital

property, since it was acquired during the marriage.

The husband contends that the court erred in classifying a

table to be marital property. The husband, however, did not

brief or address the issue. "We will not search the record for

errors in order to interpret the [husband's] contention and

correct deficiencies in the brief." Gottlieb v. Gottlieb, 19 Va.

App. 77, 86, 448 S.E.2d 666, 672 (1994) (quoting Buchanan v.

Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)). Nor

will we consider arguments not made in the appellate briefs. See

Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 372

(1994). See also Jenkins v. Commonwealth, 244 Va. 445, 460-61,

423 S.E.2d 360, 370 (1992), cert. denied, 113 S. Ct. 1862 (1993).

As a final contention, the husband states that the court

erred when it determined the value of a boat. This Court will

not disturb a trial court's valuation unless insufficient

evidence exists to support the valuation. Frye v. Spote, 4 Va.

App. 530, 537, 359 S.E.2d 315, 319-20 (1987). "While 'expert

testimony is the most expedient, and, in fact, the preferable

method for [valuing marital property] . . . the finder of fact is

not required to accept as conclusive the opinion of an expert.'"

Stratton v. Stratton, 16 Va. App. 878, 883, 433 S.E.2d 920, 923

(1993) (quoting Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d

-5- 471, 474 (1989)). We find that sufficient evidence exists in the

record to support the trial court's valuation.

We, therefore, affirm the trial court's decisions.

Affirmed.

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