William Stewart v. Alice Despart, f/k/a A. Stewart

• Court: Court of Appeals of Virginia
• Decided: March 31, 1998
• Docket: 1570974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Annunziata Argued at Alexandria, Virginia

WILLIAM I. STEWART MEMORANDUM OPINION * BY v. Record No. 1570-97-4 JUDGE ROSEMARIE ANNUNZIATA MARCH 31, 1998 ALICE DESPARD, F/K/A ALICE STEWART

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William T. Newman, Jr., Judge Raymond B. Benzinger (Mary M. Benzinger; Benzinger & Benzinger, on brief), for appellant.

Edward V. O'Connor, Jr. (Byrd, Mische, Bevis, Bowen, Joseph & O'Connor, on brief), for appellee.

William I. Stewart (husband) appeals the decision of the

trial court in a hearing on remand from this Court in favor of

Alice Despard (wife). Husband contends that the trial court

erred in its valuation of the marital business, its determination

of the equitable distribution award, and its ruling that no

material change of circumstances justified altering the parties'

child custody arrangement. We affirm the decision of the trial

court.

On December 18, 1992, the Circuit Court of Arlington County

entered a final decree of divorce between the parties. The

decree awarded wife sole custody of the parties' child, Dillon,

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. awarded the marital business, a restaurant and bar called

Roratonga Rodeo, to wife, and found that Roratonga Rodeo had no

value. In an unpublished opinion, this Court reversed the

court's finding that Roratonga Rodeo had no value as unsupported

by the evidence, and remanded for further proceedings. Prior to

the hearing on remand, husband filed a series of motions

regarding Dillon, including a petition for change in custody.

The court consolidated all pending issues for a hearing on April

21, 1997. I.

Valuation

Husband contends that the trial court erred in valuing

Roratonga Rodeo at $40,000. On appeal, we will not disturb a

trial court's valuation of property unless it is plainly wrong or

without evidence to support it. Gamble v. Gamble, 14 Va. App.

558, 563, 421 S.E.2d 635, 638 (1992) (citing Schoenwetter v.

Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)). We

view the evidence in the light most favorable to wife, the party

prevailing below. Id. (citing Schoenwetter, 8 Va. App. at 605,

383 S.E.2d at 30).

Husband first contends that the court erroneously

disregarded the uncontradicted testimony of his valuation expert,

Arthur Jackson-Early, that Roratonga Rodeo was worth between

$60,000 and $66,000. We disagree. The court stated that it had

taken Jackson-Early's testimony into account in valuing the

2 business at $40,000, and specifically cited Jackson-Early's

testimony that a bar across the street had sold for $55,000.

Furthermore, the court "has the discretion to accept or reject

any of [an expert] witness' testimony." Street v. Street, 25 Va.

App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc). The court,

therefore, was not required to uncritically accept

Jackson-Early's valuation, but could accept or reject portions of

the testimony as warranted by the evidence as a whole. Husband next contends that wife's valuation of Roratonga

Rodeo was not in evidence and that, therefore, Jackson-Early's

valuation was uncontradicted. This argument lacks merit. In her

opening statements, without objection, wife gave the court the

appendices from the prior appeal to this Court, which contained

transcripts of the 1992 hearing. The trial judge informed the

parties that he expected to examine the transcripts and that

testimony found in the transcripts need not be repeated. 1 At the

earlier hearing, wife testified, "I would say it is worth about –

with the equipment in there and all, you know, it is about

twenty thousand dollars." The record makes clear that the trial

court considered wife's testimony as contained in the transcripts

of the November 1992 hearing to be in evidence.

Husband argues that the court erred in relying on the sale

1 At oral argument, counsel for husband argued that the court admitted the transcript on the issue of child custody, but not on the issue of valuation. This argument is not supported by the record.

3 of husband's nearby Amdo Rodeo bar for $55,000 because no

evidence establishes the similarities between the two bars.

Husband's own witness, Jackson-Early, testified he considered the

sale of Amdo Rodeo for $55,000 in determining the value of

Roratonga Rodeo, but distinguished the value of the two bars on

the basis that husband had opened a third bar in the same area,

called Bardo, and that the new owner of Amdo changed the name and

format of Amdo. In light of this testimony, the trial court did

not abuse its discretion in considering the sale of Amdo Rodeo in

valuing Roratonga Rodeo. The court could properly conclude that

Jackson-Early's distinctions between the bars were unpersuasive.

The court could also properly conclude that the factors

Jackson-Early relied upon to discount the price of Amdo Rodeo

applied equally to Roratonga Rodeo, as all three bars were in

competition and wife had changed the name of Roratonga Rodeo to

Galaxy. Thus, in valuing Roratonga Rodeo, the trial court had before

it wife's valuation of $20,000, Jackson-Early's valuation of

$60,000-$66,000, and a comparable sale of $55,000. The court was

not required to accept the testimony of an expert over the

testimony of a party. Stratton v. Stratton, 16 Va. App. 878,

883, 433 S.E.2d 920, 923 (1993). Confronted with a range of

values, the court was within its discretion to value the business

within that range. Aster v. Gross, 7 Va. App. 1, 9, 371 S.E.2d

833, 838 (1988).

4 II.

Equitable Distribution Award

Husband contends that the court erred in awarding him only

$10,000 of the $40,000 value of Roratonga Rodeo. 2 The court

found that after a review of all the evidence "and a

consideration of all the factors contained in Va. Code

§ 20-107.3(E), that [husband's] marital share of Roratonga Rodeo

should be reduced by $10,000.00 to offset [wife's] efforts at

running the business between March, 1991 and November, 1992

leaving an equitable distribution award to [husband] in the sum

of $10,000.00." It is well established that "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." Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d

809, 812 (1996), aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996)

(en banc) (mem.). Therefore, we will not disturb the court's

award unless it is plainly wrong or without evidence to support

it. Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d

675, 678 (1990).

The evidence before the court establishes that wife had been 2 Husband also argues that wife did not present sufficient evidence of tracing to warrant treating a portion of this asset, valued at $40,000, as wife's separate property. See, e.g., von Raab v. von Raab, 26 Va. App. 239, 248-49, 494 S.E.2d 156, 160-61 (1997). The court's decision makes clear, however, that its decision to award husband $10,000 of the $40,000 value of Roratonga Rodeo was based on equitable distribution principles, rather than classification principles. Evidence of tracing was therefore not needed.

5 solely responsible for Roratonga Rodeo from the time of the

parties' separation. Although wife employed two managers to

supervise Roratonga Rodeo at night, she was solely responsible

for the financial, tax, and licensing aspects of the business.

During the period of time wife was responsible for the club,

husband opened a competing restaurant/bar across the street, and

began preparations to open a third restaurant/bar on the same

street. As a result of these competing businesses, the gross

sales of the Roratonga Rodeo dropped from roughly $20,000 per

month to roughly $10,500 per month. This evidence supports the

court's decision to award wife 75% of the value of Roratonga

Rodeo, and the court did not abuse its discretion in determining

the equitable distribution award. III.

Change of Custody

Finally, husband contends that the court erred in refusing

to alter the child custody arrangement from wife's sole custody

to joint custody. The court found that no material change of

circumstances had taken place which would justify modification of

custody. Our standard of review regarding a modification of

custody is well established: On appeal, we review the evidence in the light most favorable to the prevailing party below. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). "The trial court's decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it." Venable v. Venable, 2 Va. App. 178, 186, 342

6 S.E.2d 646, 651 (1986).

Hughes v. Gentry, 18 Va. App. 318, 321-22, 443 S.E.2d 448, 451

(1994).

In Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921

(1983), the Supreme Court of Virginia established the standard

for modification of child custody on the basis of changed

circumstances: "first, has there been a change in circumstances

since the most recent custody award; second, would a change in

custody be in the best interests of the children." In order to

allow a change of custody, a change in circumstances must be

material, i.e., "an actual change." Kaplan v. Kaplan, 21 Va.

App. 542, 548, 466 S.E.2d 111, 114 (1996); see Featherstone v.

Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979). The party

seeking a change in custody bears the burden of proof. Hughes,

18 Va. App. at 322, 443 S.E.2d at 451.

Husband argues that Dillon's poor performance in school and

wife's failure to facilitate Dillon's extracurricular activities

constitute changed circumstances. Dillon's report card for the

first semester of the 1996-97 school year shows that he received

the highest grade in forty out of fifty areas of development, and

received the second-highest grade on the remainder. The report

card also shows that over the course of the semester, Dillon was

absent three days and tardy four days. On one occasion, wife

failed to take Dillon to the second day of a swim meet. We find

that the court was within its discretion to find that this

7 evidence did not establish a material change of circumstances.

Husband argues that he has more time than wife to care for

Dillon and that his superior availability, as well as an

"informal" visitation arrangement between the parties,

constitutes changed circumstances. Husband testified that he had

become "redundant" at work and only worked five hours per day.

Wife, however, only worked two nights a week. Wife maintained

the court-ordered visitation schedule, with the exception of one

occasion, on which she withheld husband's visitation in

retaliation for husband retaining Dillon for an extra night

without authorization. In addition to finding that husband's

claims of superior availability had been previously adjudicated,

the court found that they did not amount to a material change in

circumstances. We find that this ruling is supported by evidence

in the record, and we will not disturb the trial court's finding. Husband also contends that wife's admission of marijuana use

constitutes a material change in circumstances. Wife admitted

that she had used marijuana "probably twice a year" and that her

husband smokes marijuana occasionally. She stated, "My marijuana

use does not impact Dillon at all." Contrary to husband's

argument, wife did not admit that she or her husband has ever

used marijuana while Dillon was present or in the house; indeed,

she did not admit that she or her husband used it in their home.

The court expressed its concern over wife's marijuana use, and

ordered wife to present herself for substance abuse assessment,

8 and to successfully complete any treatment ordered. Given the

evidence in the record, we cannot find that the court abused its

discretion in finding that no material change of circumstances

had occurred, and fashioning a remedy it found appropriate under

the evidence presented. The court ordered wife to receive

substance abuse treatment, and to refrain from using any illegal

substances.

Finally, husband argues that the court erred in not finding

that the best interests of the child required joint custody. 3

Before addressing the best interests of the child, a court must

find a material change in circumstances. Bostick v.

Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323 (1996)

(citing cases). If a court does not find a material change of

circumstances, consideration of the "best interests" prong of the

Keel test is barred by principles of res judicata. Hiner v.

Hadeed, 15 Va. App. 575, 580, 425 S.E.2d 811, 814 (1993).

Accordingly, the trial court properly refused to reach the issue

of the best interests of the child, given that it did not find a

material change in circumstances.

For the above reasons, we affirm the decision of the trial

court. Affirmed.

3 Husband also argues that the court should have altered the visitation schedule. Husband did not present this argument to the trial court, and is thus barred from asserting it on appeal. Rule 5A:18.