Ronald G. Reese v. Davidina T. Reese

• Court: Court of Appeals of Virginia
• Decided: July 31, 2001
• Docket: 2564002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bumgardner Argued at Richmond, Virginia

RONALD G. REESE MEMORANDUM OPINION * BY v. Record No. 2564-00-2 JUDGE RUDOLPH BUMGARDNER, III JULY 31, 2001 DAVIDINA T. REESE

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge

Susanne L. Shilling (Shilling & Associates, on briefs), for appellant.

Edward D. Barnes (Ann Brakke Campfield; Barnes & Batzli, P.C., on brief), for appellee.

Ronald G. Reese and Davidina T. Reese appeal a final decree

of divorce entered October 10, 2000. The husband states his

main issue as several varied questions presented, but as he

states in his brief, the "heart" of each complaint is the single

contention that the trial court erred by delaying its final

decision. He also contends the court erred in offsetting

support arrearages against his distribution of the marital

estate, in not updating the value of the wife's profit sharing

plan, in awarding certain personal property to the wife, and in

assessing attorney's fees against him. The wife contends the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. trial court erred in not ruling the husband committed waste by

dissipating the equity in a residential property. For the

following reasons, we affirm.

The parties married November 15, 1985, and had two

children. They separated January 2, 1998, and the wife filed

for divorce on January 23, 1998. The parties agreed to a

consent order pendente lite by which the husband paid unitary

support of $350 per week and maintained health insurance for the

wife and children. The consent order enjoined the sale, pledge,

or dissipation of any marital asset. As early as June 1998,

compliance became a problem and the source of constant and

persistent litigation.

The husband contracted with the wife to buy the marital

home, but he had no collateral for a home loan. The wife

insisted the husband have a loan commitment before she would

vacate the residence. From October to December 1998, the

parties litigated issues arising from the husband's efforts to

complete the purchase. Eventually, the wife learned the husband

had improperly pledged marital assets to obtain financing, and

she filed a motion to void the sale. In subsequent pleadings,

the wife alleged the husband pledged the marital home for a

loan, reactivated a line of credit on the home, withdrew funds

from a joint banking account, and failed to maintain health

insurance or stay current in support payments. By order dated

January 19, 1999, the trial court addressed the issues of the

- 2 - sale of the marital residence and ordered the husband to comply

with discovery requests.

In March 1999, the parties jointly moved to proceed with

equitable distribution by memoranda in lieu of an oral

presentation. Pursuant to a consent scheduling order, the

parties filed all depositions, exhibits, and memoranda April 30,

1999. However, the husband's non-compliance with the consent

order continued to generate litigation. Just before a contempt

hearing April 30, 1999, the husband deposited a check in the

wife's account to eliminate accrued arrearages, but the check

was dishonored shortly after the hearing. At a subsequent

hearing July 21, 1999, the trial court found the husband in

contempt but gave him time to purge his contempt. The day

before the review hearing, new counsel, the husband's third,

appeared and asked for a continuance. The husband moved for

additional continuances in September and December.

Throughout that fall and winter the parties litigated

payment of arrearages. On October 27, 1999, the trial court

sentenced the husband to 60 days for contempt suspended on the

condition that he pay $700 per month. From that point, the

husband only paid the minimum necessary to stay out of jail,

which was half the amount due.

By May 2000, the wife asserted arrearages for support of

$18,056.13 and for health insurance of $6,332.75. In an effort

to resolve the matter, the trial court set a firm date to hear

- 3 - all remaining issues. The judge distinctly and explicitly

advised the parties and counsel that the date was the final date

for hearing the case. He directed the parties to complete or

update any depositions they wished the trial court to consider

and to prepare and present any other evidence on July 31, 2000.

The trial court held the hearing as scheduled and issued a

letter opinion August 3, 2000.

The husband contends the trial court "perpetrated a grave

injustice" by "failing to render an opinion or even to

understand the status of the case" between January 1999 and

August 2000. He maintains failure to render a decision allowed

the arrearages to escalate to the point the husband received

nothing through equitable distribution. The extensive record

does not reflect dereliction by the trial court. The trial

court did not neglect this file, and the parties were constantly

before the trial court.

The husband cannot complain the arrearages grew when they

grew because he adamantly refused to pay despite numerous

efforts to force compliance. Until modified or terminated, a

party must comply with the support obligations in accordance

with the terms of the court's decree. Richardson v. Moore, 217

Va. 422, 424, 229 S.E.2d 864, 866 (1976); Newton v. Newton, 202

Va. 515, 519, 118 S.E.2d 656, 659 (1961). The husband's remedy

was to petition for a modification of support. Newton, 202 Va.

at 519, 118 S.E.2d at 659.

- 4 - The record shows that the husband delayed resolution of the

main issues in this divorce by changing jobs, not paying

support, not being forthcoming about his financial condition,

changing attorneys, requesting continuances, and by filing

numerous motions himself. During it all, he never justified his

failure to provide support nor justified a reduction. We find

no error in the trial court's assessing an arrearage for the

husband's noncompliance. In addition, we find no error in the

trial court's offsetting the arrearages against the husband's

share of the marital estate. The husband permitted the

arrearages to accrue. He resisted all efforts to get him to

comply, and nothing suggests he would pay the sum now without

court action. Having permitted the arrearages to grow, the

husband cannot complain that the court enforces the wife's right

to receive the sum he owes.

The husband contends the trial court erred in failing to

permit him to update the value of the wife's 401K pension plan.

The trial court made abundantly clear that July 31, 2000 was the

final date for presenting evidence. The husband did not offer

to update the value of the 401K plan until one month after the

final hearing. The court must be able to set a date for

bringing finality to equitable distribution cases. "Parties

should not be allowed to benefit on review for their failure to

introduce evidence [in a timely manner] . . . . At some point

we must 'ring the curtain down.'" Bowers v. Bowers, 4 Va. App.

- 5 - 610, 617-18, 359 S.E.2d 546, 550 (1987) (citation omitted). The

husband was given an adequate opportunity to present the

evidence and failed to do so. The trial court did not err in

refusing to allow the husband to reopen the proceedings to

update the value of the wife's 401K plan.

The husband contends the trial court erred in classifying

as marital property items that were his separate property.

While the trial court cannot arbitrarily reject evidence

regarding classification of property, the husband has the burden

to rebut the wife's evidence that the property was marital. Id.

at 618, 359 S.E.2d at 550. The husband failed to produce

evidence to do so, and the evidence presented supported the

trial court's findings. We find no error in the classification

of the personal property.

We find no error in the trial court's assessing attorney's

fees against the husband. The trial court has broad discretion

to award attorney's fees. The husband repeatedly refused to

satisfy his support obligation, was less than forthright in

divulging information about his ability to purchase the marital

residence, and caused delays by twice changing counsel. The

wife was "forced to employ attorneys to establish and enforce

her rights which were resisted by her former husband throughout

this extensive litigation. Her legal expense is attributable to

his recalcitrance." Alig v. Alig, 220 Va. 80, 86, 255 S.E.2d

494, 498 (1979).

- 6 - The wife contends the trial court erred in not finding the

husband dissipated the equity in a residence that the husband

had built as a speculative investment. The husband lived in it

for several months during the litigation but did not make

mortgage payments after August 1998. The lender foreclosed, and

the sale resulted in a deficiency. The wife contends the house

had an equity of $54,000, which was the difference between the

value of the house and the amount of the mortgage at

foreclosure.

To establish the value of the house before foreclosure, the

wife points to the husband's testimony. At one point in

cross-examination, the husband indicated the house had a fair

market value of $221,000. However, at other times he assigned

other values. The estimate of $221,000 came from the value

assigned on a bank loan application. The record does not

reflect any expert testimony of the value or of any stipulation

of the value.

While an owner's opinion of value is admissible, it is not

conclusive proof, and the trial judge still must assign weight

to it. "'The Owner of an article, whether he is generally

familiar with such values or not, ought certainly to be allowed

to estimate its worth; the weight of his testimony (which often

would be trifling) may be left to the jury, and courts have

usually made no objections to this policy.'" Haynes v. Glenn,

197 Va. 746, 751, 91 S.E.2d 433, 436 (1956) (quoting 3 Wigmore

- 7 - on Evidence § 716, 48 (3d ed. 1940)). We cannot say the trial

court erred in not accepting the evidence presented as

sufficient to prove the wife's allegation of dissipation or

waste. "When the party with the burden of proof on an issue

fails for lack of proof, he cannot prevail on that question."

Bowers, 4 Va. App. at 617, 359 S.E.2d at 548 (retirement plan).

For the reasons stated, we affirm the trial court.

Affirmed.

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