William Gale Anderson v. Betty Ann Anderson

• Court: Court of Appeals of Virginia
• Decided: March 12, 1996
• Docket: 2531943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick Argued at Richmond, Virginia

WILLIAM GALE ANDERSON

v. Record No. 2531-94-3 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON BETTY ANN ANDERSON MARCH 12, 1996

FROM THE CIRCUIT COURT OF SMYTH COUNTY Charles B. Flannagan, II, Judge Robert I. Asbury (Robert I. Asbury, P.C., on brief), for appellant.

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

The equitable distribution award of $5,000 is affirmed.

Code § 20-107.3 in pertinent part provides: In the case of the increase of value of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or personal efforts of either party have contributed to such increases, . . . .

For purposes of this subsection, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.

First we determine if the wife met her burden of proving

that contributions of marital property or personal efforts were

made. The wife testified that she did all the work, and paid

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. for, the following improvements: new carpeting in the living

room and the hallways, new linoleum in the dining room and the

kitchen, re-papering in the kitchen and a bathroom and painting

in the living room, dining room, kitchen and bathroom. Mr.

Anderson conceded that she paid for new carpeting but stated that

he paid for installation. In either event improvements were made

from one or the other's marital effort or marital income. Mr.

Anderson admitted that he put in a furnace and a satellite dish,

paid for with marital funds. Additionally, Mr. Anderson paid the

mortgage, insurance and taxes from his marital income. Payments

of $250 per month from November 13, 1986, until March 1992, are

more than $16,125 for the time the parties were married. Thus,

the evidence is uncontradicted that well in excess of $16,125 in

marital funds plus the wife's marital efforts went into the home

that is the husband's separate property. Even without the

evidence of an increase in the marital property, we have evidence

of a substantial reduction of the husband's separate indebtedness

(the mortgage) and increase in the husband's separate equity

using marital funds. Next, we consider whether the wife met her burden of proving

that the property increased in value. On cross-examination Mrs.

Anderson was asked: "In your opinion did the repairs and

improvements contribute to the increase in the value of the

property?" Her answer was "In my opinion, yes." Also on cross-

examination, the wife testified that the property had increased

by $19,500.

- 2 - On direct examination Mrs. Anderson had testified that the

assessed value of the property at the time of the marriage was

$34,200 and at the time of separation was $53,700. This

testimony was not objected to. However, when she sought to enter

the tax tickets from which she obtained her information, there

was an objection that the tax tickets were hearsay. These

documents would have only been hearsay if offered to prove the

opinion of the tax assessor as to the value of the property.

Smith v. Woodlawn Construction Co., 235 Va. 324, 331-32, 368

S.E.2d 699, 703-04 (1988).

The assessed value of the property is not opinion, but a

fact which may be proven with official documents. Code

§ 58.1-3280 requires that the property shall be assessed at "fair

market value." Although assessed value may not equate to fair

market value, assessed value is a factor one might consider in

arriving at a property's fair market value. The trial court did

not err in admitting the tax tickets as evidence of the home's

increase in assessed value.

Furthermore, the husband conceded in his letter of May 31,

1994 to the trial court that the property increased in value. He

stated therein: "The increase in value of this separate property

[the Sugar Grove property] during the marriage is separate

property."

The totality of the evidence was such that the trial court

could have inferred that the husband's separate property had

increased in value between the time of the marriage and the time - 3 - of the separation due to use of marital funds and marital effort.

Certainly the trial court could have concluded that the husband

used marital funds to decrease his separate debt while increasing

his equity in the real estate. Because the evidence showed that

marital funds in excess of $16,000 and marital effort were put

into the husband's separate property and the husband thereby

reduced his separate debt which increased his equity, we hold

that the trial judge did not abuse his discretion in making the

$5,000 award, which was less than one-third of the marital funds

alone put into the husband's separate property during the

marriage. The judgment appealed from is affirmed.

Affirmed.

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