Toby S. Blevins v. Kate Reid Blevins

• Court: Court of Appeals of Virginia
• Decided: May 7, 2002
• Docket: 2297013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Agee Argued at Salem, Virginia

TOBY S. BLEVINS MEMORANDUM OPINION * BY v. Record No. 2297-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK MAY 7, 2002 KATE REID BLEVINS

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY Charles H. Smith, Jr., Judge Designate

R. Wayne Austin (Scyphers & Austin, P.C., on brief), for appellant.

Nancyjean Bradford (Bradford & Smith, P.C., on brief), for appellee.

Toby S. Blevins (husband) appeals an August 18, 2001 final

decree of divorce as it relates to the division of the marital

property. Husband contends that the trial court erred in (1)

finding a part of the value of his mother's home to be marital

property where the property was given to husband and wife by

husband's mother without consideration and remained under her

control; (2) finding that an $85,000 certificate of deposit was

not marital property; (3) awarding Kate Reid Blevins (wife) a

greater proportion of the marital property when she had been at

fault in the dissolution of the marriage and where the parties

had made equal contributions to the marriage; (4) failing to

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. give husband credit for his post-separation payments on a

jointly owned condominium and marital residence; and (5) failing

to state its reasons for awarding wife a greater proportion of

the marital estate. Finding no error, we affirm.

I. BACKGROUND

"On appellate review, a divorce decree is presumed correct

and will not be overturned if supported by substantial,

competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va.

App. 77, 83, 448 S.E.2d 666, 670 (1994).

"On review, we consider the evidence in the light most

favorable to the party prevailing in the trial court."

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,

31 (1989).

"'Where, as here, the court hears the evidence ore tenus,

its finding is entitled to great weight and will not be

disturbed on appeal unless plainly wrong or without evidence to

support it.'" Street v. Street, 25 Va. App. 380, 387, 488

S.E.2d 665, 668 (1997) (quoting Martin v. Pittsylvania

Department of Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13,

16 (1986)).

Husband and wife were married on November 10, 1972 and

separated on April 11, 1998. One child, who is now emancipated,

was born of the marriage. Wife filed for divorce on May 11,

1998, seeking a divorce a mensa et thoro on the grounds of

cruelty and/or constructive desertion. Husband filed his answer

- 2 - and cross-bill on May 27, 1998 requesting a divorce based on

desertion. The trial court granted husband a divorce based on

wife's desertion.

The trial court made the following pertinent factual

findings. Both parties are in their early fifties and have no

significant health problems. Husband is a self-employed

insurance broker, and wife has worked as a lab technician for

thirty years. Both parties made substantial monetary and

non-monetary contributions to the well-being of the family and

to the acquisition and maintenance of the marital property.

Neither spousal nor child support is at issue. After the

separation, husband remained in the marital home.

By letter opinion and final decree of divorce, the trial

court divided the parties' assets, required wife to pay

husband's attorney's fees and costs and to pay him a $25,000

monetary award.

II. HUSBAND'S MOTHER'S HOME

Husband first contends that the trial court erred in

classifying the parties' one-half interest in husband's mother's

home as marital property and subject to equitable allocation.

He argues that even though the property was transferred by deed

to both husband and wife, no consideration was given, his mother

still retained control of the property, and the transfer was

done only as a "matter of convenience." Thus, the trial court

was required to find that the donor intended this interest to be

- 3 - husband's separate property. We disagree and affirm the trial

court.

"Marital property is (i) all property titled in the names

of both parties, whether as joint tenants, tenants by the

entirety or otherwise, except as provided by subdivision

A 3, . . . (iii) all other property acquired by each party

during the marriage which is not separate property as defined

above. . . ." Code § 20-107.3(A)(2).

"All property acquired by either spouse during the marriage

and before the last separation of the parties is presumed to be

marital property." Gilman v. Gilman, 32 Va. App. 104, 116, 526

S.E.2d 763, 769 (2000). "The party claiming that property

should be classified as separate has the burden to produce

satisfactory evidence to rebut this presumption." Stroop v.

Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990).

"Separate property is . . . (ii) all property acquired

during the marriage by bequest, devise, descent, survivorship or

gift from a source other than the other party." Code

§ 20-107.3(A)(1).

Husband contends that Code § 20-107.3(A)(1) is applicable

to the classification of his mother's gift of a one-half

interest in her home to the parties. The evidence is undisputed

that the property was deeded to both husband and wife and was

given during the marriage and, thus, is presumed to be marital

- 4 - property. It was husband's burden to provide the trial court

with "satisfactory evidence" to show a donative intent that

excluded wife. See Stroop, 10 Va. App. at 615, 394 S.E.2d at

863. He failed to do so.

The May 6, 1985 deed of transfer from husband's mother to

husband and wife contains no language of limitation, reserves no

rights of any kind to the grantor and does not recite any

reference as a deed of gift or of donative intent. 1 In the

1 The language of the deed is, in pertinent part, as follows:

THIS DEED, . . . by and between ESTHER EVELYN BLEVINS BLEVINS [sic], widow, party of the first part, and CHARLES M. BLEVINS, JR. and wife, JO ANN BLEVINS, and TOBY S. BLEVINS and wife, WILEY K. BLEVINS, parties of the second part; WITNESSETH: That for and in consideration of the sum of TEN ($10.00) DOLLARS, cash in hand paid, and other good and valuable considerations, the receipt of all of which is hereby acknowledged, the party of the first part has bargained and sold and does hereby grant, transfer and convey unto the parties of the second part, all that certain lot or parcel of land, together with all improvements thereon and appurtenances thereunto belonging, situate in the Green Hills Subdivision . . . . TO HAVE AND TO HOLD the above described property together with all rights and appurtenances thereunto belongs, unto the parties of the second part, their heirs and assigns, in fee simple forever. This conveyance is made with covenants of general warranty and free from encumbrances except for real estate taxes for 1985 which are to be prorated and assumed by the parties of the second part. This conveyance is made subject to any and all covenants, easements or restrictions as

- 5 - absence of any limitation or ambiguity, the intention of the

donor may be established by the actual language of the deed. No

evidence was presented by the donor of a contrary intent.

Husband argues that when the trial court found that the

property was deeded by his mother to the parties "for

convenience," this established that she did not intend to give

both her sons and daughters-in-law an equal interest therein.

Husband relies on Stainback v. Stainback, 11 Va. App. 13, 396

S.E.2d 686 (1990), and Kelln v. Kelln, 30 Va. App. 113, 515

S.E.2d 789 (1999), for this proposition. However, these cases

are factually inapposite to the instant case. In Stainback, the

evidence established that the donor testified that his intent

was to make the stock a gift to husband alone and to effecuate

this intent, the stock was listed in husband's sole name. While

title was not controlling, it was a proper consideration. Kelln

concerned an inter vivos trust which husband and wife

established during the marriage and did not concern proving the

donative intent of a third party.

Credible evidence supports the trial court's finding that

husband failed to carry his burden to show that the jointly

titled property was intended by the donor to be husband's

separate property. Thus, there was no error in the trial

contained in former deeds to said property and, specifically, of record in Deed Book 215, Page 290. . . .

- 6 - court's classification of this property as marital, nor in his

later determination that the total value of this asset should be

awarded to husband.

III. CERTIFICATE OF DEPOSIT

Husband next contends the trial court erred in finding an

$85,000 certificate of deposit titled in both parties' names at

the time of the separation to be wife's separate property. We

disagree.

The certificate of deposit was purchased by wife's parents

before the parties' marriage, and its intended use was as an

educational account for her benefit. Over the ensuing years,

the certificate of deposit remained in the name of wife's

parents and later, changed to that of wife and her father. When

wife's father's health began to fail, he gave her a power of

attorney to manage his affairs and, at that time, she re-titled

the certificate of deposit jointly with husband. Wife testified

that she did not intend to make a gift to husband, removed

husband's name from the certificate of deposit after their

separation and placed the accrued interest into a personal

account. The trial court found that wife did not intend to give

husband a gift when she re-titled the certificate of deposit and

the entire corpus of $85,000 was retraceable and remained her

separate property.

Code § 20-107.3(A)(3)(f) provides: "[w]hen separate

property is re-titled in the joint names of the parties, the

- 7 - re-titled property shall be deemed transmuted to marital

property. However, to the extent the property is retraceable by

a preponderance of the evidence and was not a gift, the

re-titled property shall retain its original classification."

Code § 20-107.3(A)(3)(g) provides in pertinent part: "[n]o

presumption of gift shall arise under this section where

. . . (iii) existing property is conveyed or re-titled into

joint ownership."

The three elements of a gift are: (1) intention on the

part of the donor to make a gift; (2) delivery or transfer of

the gift; and (3) acceptance of the gift by the donee.

Theismann v. Theismann, 22 Va. App. 557, 566, 471 S.E.2d 809,

813 (1996) (citing 9A Michie's Jurisprudence, Gifts § 8 (1991)),

aff'd on reh'g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996).

Husband relies on the analysis in Theismann as the

rationale for proving that wife intended to gift husband with an

interest in the certificate of deposit. Husband argues that

Theismann stands for the principle that even where a party

denies that a gift was intended, if other evidence indicates a

gift was made, the property will be classified as marital

property. However, while the evidence in Theismann established

a gift, the evidence in the instant case does not compel the

fact finder to reach the same conclusion. In Theismann, husband

acknowledged that he knew he had made wife an owner of his

accounts and wanted her to share equally in the home. Husband

- 8 - memorialized his donative intent in cards to wife, stating that

the farm in question was "our home" and that the money was hers

to spend. Wife testified that husband bragged he had made her a

"millionaire." We held that the trial court was not plainly

wrong in concluding that husband intended to make a gift of the

property to his wife.

The trial court, in analyzing the applicability of

Code § 20-107.3(A)(3)(f) to the facts of the instant case, found

that the entire corpus of the certificate of deposit was

retraceable to the original certificate of deposit acquired by

wife's parents and was not intended by the donor to be a gift to

husband. The original certificate of deposit was purchased by

wife's parents before the parties were married and was intended

to be used solely for her benefit. Wife testified she did not

intend to make a gift to husband when she re-titled the

certificate of deposit and expected the funds to be used for the

benefit of her father who resided in a nursing home. See

Code § 20-107.3(A)(3)(f) (no presumption of gift). Wife

continued to renew the certificate of deposit after the

separation, removed husband's name, and placed the accrued

interest in a personal savings account. Credible evidence

supports the trial court's finding that wife did not intend to

make a gift to husband and that the total amount of the

certificate of deposit was properly re-traced and classified as

her separate property.

- 9 - IV. EQUITABLE DISTRIBUTION

"[U]nless it appears from the record that the trial judge has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the equitable distribution award will not be reversed on appeal."

Arbuckle v. Arbuckle, 27 Va. App. 615, 619, 500 S.E.2d 286, 288

(1998) (quoting Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d

723, 727 (1990)).

The goal of equitable distribution is to adjust the property interests of the spouses fairly and equitably. In making an equitable distribution, the court must classify the property, assign a value, and then distribute the property to the parties, taking into consideration the factors listed in Code § 20-107.3(E). While the division or transfer of marital property and the amount of any monetary award are matters committed to the sound discretion of the trial court, any division or award must be based on the parties' equities, rights and interests in the property.

Theismann, 22 Va. App. at 564-65, 471 S.E.2d at 812 (internal

citations omitted).

The factors to be considered under Code § 20-107.3(E) are,

inter alia: the contributions, monetary and non-monetary, of

each party in the acquisition and care and maintenance of such

marital property of the parties, the duration of the marriage,

how and when specific items of such marital property were

- 10 - acquired, and the liquid or non-liquid character of all marital

property.

When an award is determined in such a manner without objection, on appeal, because of the difficulty of determining if and how the trial court considered the Code § 20-107.3(E) factors as to each separate item of property, we will look to the overall reasonableness of the award to determine whether there was an abuse of discretion. We do not examine the division of individual items of property.

Blank, 10 Va. App. at 9, 389 S.E.2d at 727.

There is no presumption, therefore, of an equal percentage

division of assets. After consideration of all of the factors,

one party may be entitled to a greater share of the marital

estate than the other. See Gamble v. Gamble, 14 Va. App. 558,

421 S.E.2d 635 (1992).

Husband argues that the overall division of the assets is

inequitable because wife received "two-thirds of the marital

property" when their contributions to the marriage were found to

be "pretty much equal." Husband's position is without merit as

it is based on a faulty factual predicate. Husband created a

table which he argues represents the division of assets set out

by the trial court. Husband listed, inter alia, three items of

real property, eleven items of personal property, seven items of

intangible assets, and the trial court's $25,000 monetary award

- 11 - to him. Husband's calculations reflected a property division of

$191,100 to him and from $309,797 to $385,553 to wife.

Husband's chart mischaracterizes the trial court's holding

in several areas. Initially, he states the trial court awarded

$41,500 of the value of his mother's home to wife. However, the

record reflects that the trial court held that "the parties'

undivided one-half interest [in husband's mother's home] is

awarded to Mr. Blevins as his sole, separate property. Mrs.

Blevins will be required to convey her interest therein to him."

Thus, the $41,500 husband states wife received from this

property is, in fact, zero. Additionally, husband failed to

subtract from wife's assets the equitable distribution award of

$25,000 payable to him. This error, along with husband's

mischaracterization of the division of the funds from his

mother's house, accounts for $66,500 of the alleged disparity.

Husband also disputes the trial court's award of wife's

retirement account "as her sole, separate property." Husband's

expert placed a present value of the marital share of this

pension to be $196,249 at age fifty-five and $120,493 at age

sixty-five. The trial court considered this retirement amount

in conjunction with husband's retirement assets and awarded

"husband his retirement account . . . and the cash value of his

- 12 - whole life policy as his sole, separate property" along with the

$25,000 monetary award.

[Code § 20-107.3] does not require that a spouse be awarded a percentage of all marital properties. Instead, the trial court must make a fair and equitable monetary award after consideration of the statutory factors. Consideration of the factors as applied to various assets can justify different equities in each of those assets.

Theismann, 22 Va. App. at 570, 471 S.E.2d at 815.

Husband's next contention that the trial court failed to

consider wife's fault in the dissolution of the marriage in its

award is without merit. As we stated in Aster v. Gross, 7 Va.

App. 1, 371 S.E.2d 833 (1988),

circumstances that lead to the dissolution of the marriage but have no effect upon marital property, its value, or otherwise are not relevant in determining a monetary award, need not be considered. A trial court may only consider those circumstances leading to the dissolution of the marriage, that are relevant to determining a monetary award in order to avoid an unreasonable result.

Id. at 5-6, 371 S.E.2d at 836. No evidence in the record

establishes that wife's desertion had an economic impact on the

marital estate, and appellant cites no specific evidence in

support of this argument. Equitable does not necessarily mean

equal, and we cannot say the trial court abused its discretion

in fashioning its equitable distribution plan.

- 13 - V. HUSBAND'S POST-SEPARATION PAYMENTS

Husband next contends that the trial court failed to

consider or credit post-separation maintenance payments he made

on a vacation condominium and on the marital residence. 2

The record reflects that the trial court both considered

and addressed husband's post-separation payments on the vacation

condominium and the marital residence. It found that "Mr.

Blevins had paid the taxes and insurance and taken care of

routine maintenance" on the marital home. It also found that

husband had resided in the home since the separation and that

the residence had a "fair rental value of $400 per month."

The vacation condominium, which had an indebtedness of

$11,500 secured by the marital home, was found by the trial

court to "probably [have] been extinguished by this time

period." Husband made all the payments on the condominium

indebtedness, including maintenance, taxes and insurance. Prior

to the parties' separation, wife managed this rental property

and the parties received between $5,500 and $6,300 per year in

rental income. Since the separation, the condo was used on

occasion by husband and had not been rented.

2 We note that husband does not raise the issue of whether his post-separation mortgage payments created a separate property interest. Rather, he requested only that the trial court divide "the value of the residence . . . on an equal basis."

- 14 - The marital home was awarded to wife as her separate

property, and the vacation condo was awarded to husband.

"Although the separate contribution of one party to the

acquisition, care, and maintenance of martial property is a

factor that the trial court must consider when making its award

of equitable distribution, Code § 20-107.3 does not mandate that

the trial court award a corresponding dollar-for-dollar credit

for such contributions." von Raab v. von Raab, 26 Va. App. 239,

249-50, 494 S.E.2d 156, 161 (1997).

We hold that the trial court did not abuse its discretion

because it considered husband's post-separation payments on

these properties in conjunction with his exclusive use and the

rental value of each. These benefits, which accrued to him,

were properly considered by the trial court. See Ellington v.

Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989).

VI. FAILURE OF TRIAL COURT TO STATE REASONS FOR AWARD

Lastly, husband contends that the trial court erred in

failing to state its reasons for "awarding wife two-thirds of

the property." As noted in Section IV, husband's calculations

as to the amount awarded are erroneous. Additionally, the trial

court properly classified, valued and distributed each item of

property submitted.

The requirement that the trial court consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of these factors. This

- 15 - does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors. It does mean, however, that the court's findings must have some foundation based on the evidence presented. Therefore, we hold that in a determination involving spousal support, if the court's findings do not have evidentiary support in the record, then the court has abused its discretion.

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

(1986).

The trial court's findings have evidentiary support in the

record and, accordingly, we cannot say the trial court abused

its discretion in making the equitable distribution award.

Affirmed.

- 16 -