Trivett v. Trivett

371 S.E.2d 560, 7 Va. App. 148, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97
CourtCourt of Appeals of Virginia
DecidedSeptember 6, 1988
DocketRecord No. 0286-87-3
StatusPublished
Cited by41 cases

This text of 371 S.E.2d 560 (Trivett v. Trivett) 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
Trivett v. Trivett, 371 S.E.2d 560, 7 Va. App. 148, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97 (Va. Ct. App. 1988).

Opinions

Opinion

KOONTZ, C.J.

This case involves an appeal from an award of equitable distribution. The issue raised on appeal is whether the trial court erred in the amount of the monetary award granted to the wife.

[150]*150The essential facts are not in dispute. Harold and Constance Trivett were married on March 30, 1973. They separated on May 13, 1985. By deed dated December 23, 1980, and properly recorded in the clerk’s office of the Circuit Court of Buchanan County, Harold’s maternal grandparents conveyed to Harold their one-half undivided interest in a commercial building in Grundy, Virginia. Harold’s parents owned the remaining one-half undivided interest in this property. A family owned retail clothing store was operated in this building.

Harold testified that, in consideration for this conveyance, he executed and delivered a promissory note dated December 23, 1980, in the sum of $64,000 bearing six percent interest payable to his grandparents. This note was unsecured. Harold’s grandfather testified that he twice credited the note for $5,000, although no such payments were actually made. He testified that at least on one occasion he had “torn up” one $5,000 check given to him by Harold.

After Constance filed for a divorce, Harold executed a deed of trust on the property in question, securing the payment of the original promissory note at the request of his grandfather. This deed of trust was properly recorded in the appropriate clerk’s office on June 14, 1985. Harold’s grandfather testified that this was done on the advice of his accountant “for tax purposes.”

By decree entered on February 4, 1987, Constance was granted a final divorce on the ground of continuous and uninterrupted separation for a period in excess of one year. The parties have mutually accepted the trial court’s rulings concerning their various real and personal property except for the aforementioned commercial property.1

An expert witness testified that the value of Harold’s one-half interest was $42,500. Harold testified that its value was $50,000. The trial court found that Harold’s interest was marital property and granted Constance a monetary award of $25,000. For purposes of this decision we will assume that the trial court found the value of Harold’s interest was $50,000.

[151]*151On appeal, Harold contends that the trial court failed to consider the indebtedness on this property and thus erred in its valuation of this property for purposes of granting a monetary award to Constance. Specifically, he relies upon our decision in Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134 (1986). In Hodges, we held: “Where the marital property is encumbered with indebtedness which equals or exceeds its value, then for purposes of a monetary award [pursuant to Code § 20-107.3] it is essentially of no value. Without value, there is no basis for a monetary award.” Id. at 515, 347 S.E.2d at 138. In reply, Constance correctly points out that we qualified our holding in Hodges. Where one party encumbers the marital property with indebtedness in anticipation of divorce and to deliberately frustrate the provisions of Code § 20-107.3 the trial court would not, and we think should not, be precluded from granting an award, notwithstanding the indebtedness secured by the encumbrance on the marital property. Id. at 515 n.2, 347 S.E.2d at 138 n.2.

Based on the contentions of the parties in this case, we take this opportunity to expand on and clarify our decision in Hodges. We note at the outset that Hodges concerned valuation of marital property, not classification of marital property.2 Once the property of the parties is properly classified as marital, the determination to grant a monetary award and the amount of the award is controlled by the equities and rights and interests of the parties in the marital property and not by legal title. However, to the extent that a valid indebtedness which is secured creates an encumbrance on the legal title, that indebtedness must be considered by the trial court in determining the value of the marital property for purposes of determining the amount of the monetary award. In most cases, indebtedness is incurred and encumbrances are created on property which is subsequently classified as marital property during the routine financial dealings of the parties during the marriage and not in anticipation of divorce. Thus in Hodges, where there was no allegation that the encumbrances on the property that was classified as marital property were created in anticipation of divorce or to deliberately reduce the resulting value of the marital property, we held that upon a determination that such [152]*152property is encumbered with indebtedness which equals or exceeds its value, then for purposes of a monetary award it is essentially of no value. In short, without value in the marital property, the marriage partnership simply has accummulated no wealth to be distributed between the partners of the marriage.

Our qualification in Hodges was intended to address those cases in which, based on the evidence, the trial court determined that an encumbrance on the property classified as marital property was created in anticipation of divorce and deliberately to reduce or eliminate the value of such property for the purpose of reducing or eliminating a monetary award to a spouse and thus to frustrate the provisions of Code § 20-107.3. Upon such a determination, the trial court is permitted to include the unemcumbered value of the marital property within the pool of the marital wealth from which it determines the amount of the award. This determination must be based on evidence which establishes a deliberate attempt to defeat a monetary award and not merely the fact that a previously unsecured creditor is granted a security interest in the marital property.

In order to clarify our decision in Hodges, we stressed in that case a valid indebtedness was secured by a valid encumbrance on the property which was classified as marital property. No allegations that the indebtedness or the encumbrance which secured it were fraudulent, shams or an attempt to frustrate a monetary award were involved. Thus, a secured debt, unlike an unsecured debt, because it is an encumbrance on the property which is classified as marital property reduces the value of such property for purposes of determining the amount of a monetary award. However, nothing in Hodges was intended to imply that a valid unsecured debt was not to be considered by the trial court; Code § 20-107.3 mandates to the contrary. An unsecured debt is not an encumbrance on the property classified as marital property and therefore it simply does not affect the value of such property. Likewise, in qualifying Hodges, we intended to address only those cases in which the indebtedness is valid but that indebtedness is subsequently secured by creating an encumbrance on the property classified as marital property deliberately to reduce or eliminate a monetary award. Thus, the controlling factor is not that an encumbrance exists on the property classified as marital property but, rather, that the encumbrance was created deliberately to re[153]*153duce the value of the marital property and consequently the amount of the monetary award and thus to frustrate the provisions of Code § 20-107.3.

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Cite This Page — Counsel Stack

Bluebook (online)
371 S.E.2d 560, 7 Va. App. 148, 5 Va. Law Rep. 192, 1988 Va. App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trivett-v-trivett-vactapp-1988.