Thomas Aldom Scott v. Mary Virginia Bruce Scott

CourtCourt of Appeals of Virginia
DecidedOctober 13, 2020
Docket0861192
StatusUnpublished

This text of Thomas Aldom Scott v. Mary Virginia Bruce Scott (Thomas Aldom Scott v. Mary Virginia Bruce Scott) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas Aldom Scott v. Mary Virginia Bruce Scott, (Va. Ct. App. 2020).

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Russell and AtLee Argued by videoconference UNPUBLISHED

MARY VIRGINIA BRUCE SCOTT

v. Record No. 0818-19-2

THOMAS ALDOM SCOTT MEMORANDUM OPINION* BY JUDGE WESLEY G. RUSSELL, JR. THOMAS ALDOM SCOTT OCTOBER 13, 2020

v. Record No. 0861-19-2

FROM THE CIRCUIT COURT OF HENRICO COUNTY Gary A. Hicks, Judge1

John Stuart Bruce (Eppa Hunton; Eppa Hunton PC, on briefs), for Mary Virginia Bruce Scott.

Susan A. Kessler for Thomas Aldom Scott.

Mary Virginia Bruce Scott, wife, appeals an order of the trial court directing her to pay

Thomas Aldom Scott, husband, over $49,000 to satisfy one of the equitable distribution terms of the

parties’ final decree of divorce. Both parties appeal the trial court’s denial of their respective

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Prior to his retirement on July 1, 2019, Judge Hicks presided over this matter and entered both the parties’ final decree of divorce on March 8, 2018, and a May 3, 2019 order directing wife to make certain payments to husband to comply with the trial court’s interpretation of her obligations under the final decree. As will be noted below, additional proceedings that occurred after July 1, 2019, in the trial court regarding what constituted the record on appeal were heard and resolved by the Honorable Randall G. Johnson, Jr. requests for attorney’s fees in the trial court, and each requests an award for attorney’s fees incurred

in this Court. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND

Although the underlying facts are largely undisputed, we note that, “[w]hen reviewing a trial

court’s decision on appeal, ‘we view the evidence in the light most favorable to the prevailing party,

granting it the benefit of any reasonable inferences.’” Brandau v. Brandau, 52 Va. App. 632, 635

(2008) (quoting Smith v. Smith, 43 Va. App. 279, 282 (2004)). “That principle requires us to

discard the evidence . . . which conflicts, either directly or inferentially, with the evidence” that

favored husband at trial. Id. (quoting Petry v. Petry, 41 Va. App. 782, 786 (2003)).

The parties were married in 1983 and separated in 2015. In anticipation of their ultimate

divorce, the parties entered into a property settlement agreement, dated September 5, 2017 (PSA).

Among its terms, the PSA contained provisions regarding distribution of the parties’ retirement

accounts, including wife’s American Funds IRA account #9941 (wife’s account).2 By reference to

an attached Exhibit 1, the PSA allocated $544,280 of wife’s account to husband. This allocation

was based on an agreed valuation date of August 28, 2018. The PSA further provided that, “[i]n the

event either party must hereafter enforce the provisions of this [a]greement or any [court] decree . . .

relating to the matters stated herein, that party shall be entitled to recover his or her actual attorney’s

fees and costs.”

When wife’s account was valued and the PSA was executed, wife’s account contained four

separate fund holdings, namely Investment Fund of America, Fundamental Investors Fund, Growth

Fund of America, and New Perspective Fund. The PSA does not name these fund holdings, nor

does it state the number of shares wife held therein. Wife subsequently transferred all her holdings

2 The parties modified portions of their PSA by amendment dated January 22, 2018; the amendments have no bearing on the issues currently before this Court.

-2- in both the Investment Fund of America and the Fundamental Investors Fund into a different fund

(money market account); she maintained her shares in Growth Fund of America and New

Perspective Fund. Wife made the transfer because she was concerned that the funds in wife’s

account could lose value and she then would be unable to satisfy her financial obligations to

husband. As a result of wife’s transfer, wife’s account thereafter contained three funds holdings,

including the newly acquired money market account, which unlike the two holdings it replaced,

typically did not yield significant gains or losses.

Prior to entry of the parties’ final decree of divorce, the trial court was asked to determine

whether husband was “entitled to the gains and losses thereon from the valuation date to the present

from the transfer . . . from [wife’s account].” The trial court conducted an ore tenus hearing on

January 29, 2018, and issued a February 15, 2018 letter opinion resolving the issue. The trial court

ruled that husband was entitled to any gains and losses from his portion of the marital share. Based

on the evidence adduced at the hearing, the trial court reasoned:

Despite entering into a [PSA] on September 5, 2017, [wife] subsequently moved all of [wife’s account], including [husband’s] share, based on her “fear of the market.” [She] acted unilaterally, taking upon herself the responsibility of [husband’s] money; therefore, [husband] should be entitled to any gains made on his portion of his share of these marital funds. [Wife], as the wrongdoer, should not benefit from her inappropriate actions.

....

The evidence . . . showed that [wife] put . . . funds of [wife’s account] into a money market account, which the [c]ourt finds was not her decision to make. The [PSA] awarded [husband] half of the marital share of [wife’s account], including any gains or losses . . . after the parties signed the [PSA] on September 5, 2017. Accordingly, [husband] is entitled to his share of the gains and losses of [wife’s account] as of September 5, 2017 and continuing on until received. [Husband’s] share of the gains and losses are not part of [wife’s] separate portion of [wife’s account], nor is it part of [her] marital share of said account.

-3- The trial court concluded that wife “wrongly moved all the funds from [wife’s account and t]his has

inappropriately given her the gains and losses on [husband’s] money and the use of the same funds

up to and including the present date.”

The parties were divorced by final decree dated March 8, 2018 (final decree). The final

decree affirmed and incorporated the PSA and the trial court’s February 15, 2018 letter opinion.

The final decree specifically reiterated that husband “is entitled to the gains and losses on his share

of [wife’s account] as of September 5, 2017, from the valuation date and continuing until

received . . . .” The final decree directed wife to “forthwith execute and submit the American Funds

IRA Divorce Transfer Request attached hereto as Exhibit A in order to accomplish th[e] transfer to

[husband].”

Exhibit A was a fill-in-the-blank transfer request form prepared by American Funds

(transfer form); while unendorsed, the form’s blanks had been completed. Section 2 of the transfer

form asked, “What percentage, dollar amount or number of shares of this account should be

transferred?” In the space allocated for a percentage, “49.19” was written; no dollar amount or

share number was indicated. Section 2 also established August 28, 2017, as the valuation date and

indicated that earnings and losses from that date were to be included in the transfer. Section 3 of the

transfer form further instructed that the transfer be made “[p]ro-rata across all holdings in [wife’s

account]”; section 3 did not reference any specific holdings by name or date.

Although wife objected to the final decree’s inclusion of the trial court’s rulings as stated in

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