Stanley Smith, Jr. v. Elisabeth C. Smith

• Court: Court of Appeals of Virginia
• Decided: January 7, 1997
• Docket: 0131962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton Argued at Richmond, Virginia

STANLEY SMITH, JR. MEMORANDUM OPINION * BY v. Record No. 0131-96-2 JUDGE JAMES W. BENTON, JR. JANUARY 7, 1997 ELISABETH C. SMITH

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge Charles O. Boyles (Gayle, Boyles & Culler, on brief), for appellant.

Murray J. Janus (Deanna D. Cook; Bremner & Janus, on brief), for appellee.

On this appeal from a final decree of divorce, Stanley

Smith, Jr., contends that the trial judge erred by (1) awarding

his wife 55% of the marital estate, (2) denying his request to

satisfy the entire property distribution award by a conveyance of

property, and (3) adopting a date for evaluating certain property

that was not established by the evidence. On cross appeal,

Elisabeth C. Smith contends that the trial judge erred by failing

to award interest on the property distribution award from the

date the order was entered.

I.

The wife filed this divorce action in the circuit court on

October 4, 1984 and alleged in her bill of complaint that the

husband was guilty of cruelty, desertion, and abandonment. The * Pursuant to Code § 17-116.010 this opinion is not designated for publication. husband filed an answer and crossbill seeking a divorce on the

ground that they had lived separate and apart for one year. A

trial judge entered the final decree of divorce eleven years

later.

The evidence in the record before the commissioner in

chancery proved that the parties were married on October 14,

1949, and that they separated in 1983. The commissioner

recommended that the wife be granted a divorce on grounds of

desertion because the husband left the marital residence in

August 1983. On review of the commissioner's report, the trial

judge found that the evidence supported the grounds of desertion

and confirmed that aspect of the commissioner's report. After further hearings, the commissioner found that the law

in effect in 1984 applied, that the parties had accumulated a

marital estate valued at $3,184,607.59, and that the wife was

entitled to a monetary award pursuant to Code § 20-107.3(D).

Addressing the factors under Code § 20-107.3(E) for determining

the award, the commissioner found that the parties' contributions

to the well-being of the family were "relatively equal" and that

both parties contributed to the acquisition and maintenance of

the marital property. The commissioner also found that the wife

was suffering from rheumatoid arthritis, a disabling disease

which prevented her from maintaining full time employment, and

that the husband continued to work full time. Finding that the

husband's misconduct caused the dissolution of the marriage and

- 2 - also had an economic impact on the marital property, the

commissioner decided that the wife was entitled to a credit in

her favor. After extensively addressing all the factors in Code

§ 20-107.3(E), the commissioner recommended that the wife be

awarded 55% of the marital estate, or $1,751,534.17. None of the

other recommendations made by the commissioner are at issue on

this appeal.

Upon review of the commissioner's report and the parties'

exceptions to that report, the trial judge affirmed the report

except for the portion giving the wife a credit to account for

the husband's misconduct in causing the dissolution of the

marriage. The trial judge found that those "circumstances had

little, if any, economic impact on the marital assets of the

parties." Upon making his own analysis of the statutory factors

and the evidence in the record, the trial judge ruled that the

amount of the award recommended by the commissioner was

nevertheless "reasonable and appropriate." After the trial judge issued his ruling, counsel stipulated

that certain properties should not be regarded as part of the

marital estate. Thus, the total value of the marital estate was

reduced to $2,997,607, causing the wife's 55% share to be reduced

to $1,648,683. The trial judge approved the husband's conveyance

of certain properties to the wife in partial satisfaction of the

award and denied the husband's request that the remainder of the

judgment be satisfied by transferring certain other properties to

- 3 - the wife. After the husband conveyed to the wife properties with

a total value of $1,471,229.59, the trial judge found that the

husband still owed the wife $166,454.26 plus a portion of funds

in an escrow account. The judge awarded judgment to the wife for

$166,454.26 plus interest on that sum from the date of the May 4,

1995 order. The final decree was entered in December 1995.

II.

"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 so

doing, the trial judge is required to "tak[e] into consideration

the factors presented in Code § 20-107.3(E)." Marion v. Marion,

11 Va. App. 659, 665, 401 S.E.2d 432, 436 (1991). "This division

or transfer of jointly owned marital property and the amount of

any monetary award, subject to the enumerated statutory factors,

is within the sound discretion of the trial court." Dietz v.

Dietz, 17 Va. App. 203, 216, 436 S.E.2d 463, 471 (1993).

The husband argues that when the trial judge found that the

husband's misconduct did not have an economic impact on the

parties' marital assets, see Aster v. Gross, 7 Va. App. 1, 5-6, 371 S.E.2d 833, 836 (1988), the trial judge necessarily was

required to adjust downward the percentage share of the marital

property awarded to the wife. We disagree that a different

division was a necessary consequence of the finding.

In Aster, this Court answered the inquiry "whether an award

- 4 - of a disproportionate percentage of [marital property] to one

party will, on its face, be error." 7 Va. App. at 7, 371 S.E.2d

at 837. This Court ruled as follows: In Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986) we held that Code § 20-107.3 contains no presumption favoring equal division of marital property. Moreover, in reviewing an equitable distribution award, we rely heavily on the trial judge's discretion in weighing the particular circumstances of each case. Only under exceptional circumstances will we interfere with the exercise of the trial judge's discretion.

Aster, 7 Va. App. at 7-8, 371 S.E.2d at 837.

When the trial judge in this case ruled that the evidence

did not support the commissioner's ruling that the husband's

misconduct had an economic impact on the marital property, the

trial judge then considered "all the factors of [Code]

§ 20-107.3" and the evidence in the record. Notwithstanding the

commissioner's report, the trial judge was required to

independently weigh the evidence. When a cause is referred to a commissioner in chancery the [trial judge] does not delegate his judicial function to him. The commissioner is appointed for the purpose of assisting the [trial judge] and not for the purpose of supplanting or replacing him. It is the duty of the [trial judge] to weigh the evidence according to correct principles of law and arrive at his own conclusions. Thus, in this case, it is our duty to evaluate the evidence and determine whether or not it supports the findings of the commissioner or the conclusions of the [trial judge].

Higgins v. Higgins, 205 Va. 324, 328-29, 136 S.E.2d 793, 796

- 5 - (1964).

Although the coincidence that the trial judge and the

commissioner reached the same percentage result in dividing the

property might appear surprising, we cannot conclude from this

record that the trial judge's analysis was erroneous. The record

contains evidence of the wife's age and ill health that, when

considered with the other evidence, could support the division

favoring the wife. Thus, upon a full review of the record, we

cannot say that the weight of the evidence is contrary to the

trial judge's ruling or that the trial judge abused his

discretion in weighing the evidence. See Aster, 7 Va. App. at

7-8, 371 S.E.2d at 837.

III.

"The party against whom a monetary award is made may satisfy

the award, in whole or in part, by conveyance of property,

subject to the approval of the court." Code § 20-107.3(D).

"[T]his provision serves to prevent unilateral action by the

party seeking to make payment by the transfer of property." Payne v. Payne, 5 Va. App. 359, 366, 363 S.E.2d 428, 432 (1987).

The evidence proved that the majority of the marital

property consisted of real estate. Much of the real estate was

rental property, located in various places, and diverse in value.

The trial judge allowed the husband to satisfy approximately

ninety percent of the award by transferring property to the wife.

In view of the diverse properties and the husband's knowledge of

- 6 - the intrinsic values of the properties, we cannot say that the

trial judge abused his discretion in requiring the husband to

satisfy a small percentage of the award by making a cash payment.

Accordingly, we hold that no evidence proved the trial judge

abused his judicial discretion by not allowing the husband to

satisfy the entire award by a transfer of property. See id. at

366-67, 363 S.E.2d at 432.

IV. The husband contends that the trial judge adopted an

evaluation date that was unsupported by the evidence. He argues

that this occurred when the trial judge adjusted the marital

estate to account for the sale of a property whose value had been

set by stipulation of the parties. We find no error.

The record established that when the parties presented

evidence before the commissioner they stipulated that the value

of a specific rental property was $20,000. Before the equitable

distribution award had been satisfied, the parties agreed to sell

that property for $50,082.90 in cash and a second deed of trust

note in the amount of $10,000, which was later paid in full.

Following the sale, the trial judge adjusted the marital estate

by deducting the stipulated $20,000 value of the property from

the marital estate and recalculated the amount of the wife's 55%

interest in the estate. The trial judge also ordered the

proceeds of sale to be divided 55% to the wife and 45% to the

husband.

- 7 - The trial judge's disposition was a rational way to give

effect to the decreed percentage division of the property.

Contrary to the husband's argument, that adjustment did not

violate any valuation principle recognized in Wagner v. Wagner,

15 Va. App. 120, 421 S.E.2d 218 (1992).

- 8 - V.

The wife contends on her cross appeal that the trial judge

erred in failing to award interest on the property distribution

award from the date of entry of the award. We disagree.

The trial judge's decree required the husband to satisfy the

property distribution award "within 180 days from March 17, 1994"

and refused the wife's request to award interest on the award.

We agree with the wife's argument that Brown v. Brown, 5 Va. App.

238, 361 S.E.2d 364 (1987), established that the trial judge was

not authorized to make such an award payable within 180 days. See id. at 245-47, 361 S.E.2d at 368-69. However, Brown also

explicitly states that Code § 20-107.3(D) authorizes the trial

judge "to fix a date upon which the award was due and payable."

Id. at 247, 361 S.E.2d at 369. Likewise, Code § 8.01-382 states

that "[e]xcept as otherwise provided in [Code] § 8.3-122, in any

. . . suit in equity, the . . . decree of the court, may . . .

fix the period at which the interest shall commence."

Here, the trial judge explicitly ruled, in response to the

wife's motion, that interest would not be awarded on the portion

of the property distribution award to be satisfied by the

transfer of property as approved by the judge. The trial judge

did award the wife interest on the cash payment of $166,454.26

from May 4, 1995. In view of the trial judge's decision to award

the wife 55% of the marital property, most of which was satisfied

by a transfer of real estate, we find no error in the trial

- 9 - judge's decision to deny interest on that portion of the award

satisfied by a transfer of property.

For these reasons, the decree is affirmed.

Affirmed.

- 10 -