Frederick M. Saxton v. Sherri J. Saxton ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
FREDERICK M. SAXTON
MEMORANDUM OPINION *
v. Record No. 3179-01-1 PER CURIAM
APRIL 30, 2002
SHERRI J. SAXTON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
(Michael S. Weisberg; Weisberg & Zaleski,
P.C., on brief), for appellant.
(J. Roger Griffin, Jr.; George A. Christie;
Christie & Kantor, P.C., on brief), for
appellee.
By decree dated October 23, 2001, the trial court awarded
Sherri J. Saxton (wife) a divorce a vinculo matrimonii on the
ground of adultery committed by Frederick M. Saxton (husband). On
appeal, husband contends the trial court erred in: (1) awarding
the marital residence to wife; (2) holding husband solely
responsible for paying the second mortgage; (3) allotting wife
fifty percent of the "Mainstay" investments and requiring payment
within twelve months; (4) failing to apportion to husband any
tangible personal property in the residence; and (5) requiring
husband to pay attorney's fees and costs. Upon reviewing the
record and the parties' briefs, we conclude that this appeal is
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
without merit. Accordingly, we summarily affirm the decision of
the trial court. Rule 5A:27.
BACKGROUND
On appeal, "we view the evidence and all reasonable
inferences in the light most favorable to the prevailing party
below . . . ." Lutes v. Alexander, 14 Va. App. 1075, 1077, 421
S.E.2d 857, 859 (1992). So viewed, the evidence proved that the
parties were married in 1980. Two children were born of that
marriage, one of whom is still a minor. The parties separated on
December 21, 1998, when husband left the marital residence. On
January 21, 1999, wife filed a bill of complaint seeking a divorce
on the ground of, inter alia, adultery.
On July 25, 2000, a commissioner in chancery conducted an ore
tenus hearing. He filed his report on June 12, 2001. In it, he
found by clear and convincing evidence that husband committed
adultery with Jeanne Evans, one of his employees, and
recommended wife be granted a divorce on that basis. The
commissioner further recommended that the marital residence be
deeded to wife, that wife be solely responsible for payment of
the first mortgage, that husband be solely responsible for
payment of the second mortgage, that wife not receive spousal
support, and that the Mainstay accounts, which husband
unilaterally redeemed, be equally divided and that husband pay
wife her share within twelve months. The commissioner also
- 2 -
recommended that husband pay wife nearly half of her attorney's
fees and costs.
On June 19, 2001, husband filed written exceptions to the
commissioner's recommendations regarding the marital residence,
the second mortgage, the Mainstay investments and repayment
schedule, and attorney's fees and costs. On June 21, 2001,
husband filed the following additional exception:
The Defendant objects and excepts to the
Commissioner's failure to address the
equitable distribution of tangible marital
property in the marital residence in the
context of the other recommendations by the
Commissioner relative to the division of the
marital property.
Wife excepted to the failure to recommend spousal support.
She also contended the recommended amount for attorney's fees
and costs was inadequate.
By letter opinion dated August 17, 2001, the trial court
overruled all exceptions other than husband's exception relating
to the distribution of the personalty in the residence. The
trial court sustained that exception and directed the
commissioner to "file a supplemental report on this issue"
without hearing further evidence. On August 29, 2001, the
commissioner filed a supplemental report. On October 23, 2001,
the trial court entered a final order nunc pro tunc September
28, 2001, confirming and adopting the commissioner's
recommendations.
- 3 -
ANALYSIS
Husband combined his arguments relating to the first three
issues, namely, awarding the marital residence to wife, holding
husband solely responsible for the second mortgage and awarding
wife fifty percent of the Mainstay investment accounts. Husband
characterized those decisions as punitive.
Code § 20-107.3(C) authorizes the court to order the
transfer of jointly owned marital property based upon a
consideration of the factors listed in subsection (E) of that
statute. "Fashioning an equitable distribution award lies
within the sound discretion of the trial judge and that award
will not be set aside 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). "Unless it appears from
the record that the trial judge has not considered or has
misapplied one of the statutory mandates, this Court will not
reverse on appeal." Ellington v. Ellington, 8 Va. App. 48, 56,
378 S.E.2d 626, 630 (1989).
The House
In overruling husband's exception to the recommendation
that wife be awarded the marital residence, the trial court
noted, inter alia, "the twenty-year marriage," wife's "role as
homemaker and primary caretaker of the children, her other
substantial non-monetary contributions to the marriage," the
effect husband's "pre-separation adultery had on the marriage"
- 4 -
and the fact that wife and children have occupied the house
since separation.
The marital residence had a value of $120,000, with a balance
of $60,000 remaining on the mortgage. In its decree, the trial
court explained that it "considered each of the elements in
Section 20-107.3(E)" prior to awarding the marital residence to
wife, who was to "be solely responsible for payment of the first
mortgage and all other household related expenses."
Second Mortgage Liability
Code § 20-107.3(C) provides, in part, that "[t]he court
shall also have the authority to apportion and order the payment
of the debts of the parties, or either of them, that are
incurred prior to the dissolution of the marriage, based upon
the factors listed in subsection E." "The purpose and nature of
the debt, and for and by whom any funds were used, should be
considered in deciding whether and how to credit or allot debt."
Gamer v. Gamer, 16 Va. App. 335, 341, 429 S.E.2d 618, 623
(1993).
Husband admitted in his testimony before the commissioner
that he did not ask wife if he could sign her name to the 1997
second mortgage. The commissioner found that husband was not a
credible witness and that he obtained the proceeds from the second
mortgage without the knowledge or implied consent of wife. In
upholding the recommendation and overruling husband's exception,
the trial court relied, in part, on husband's "inability to
- 5 -
account for his use of the proceeds from the second deed of
trust." The trial court also relied upon evidence suggesting that
husband appropriated those funds for non-marital purposes
constituting waste.
Division of Mainstay Accounts
The evidence demonstrated that husband redeemed six
Mainstay investment accounts valued at $38,533.09. The
commissioner ruled that the accounts were marital property.
After hearing evidence and considering the "timing of
[husband's] use of the assets and his [extramarital] affair,"
the commissioner found that husband's use of those funds
amounted to "a waste of marital assets" in that there was
"simply no proof that he used these funds to in any way assist
[wife]." As a result, the commissioner recommended that wife
was entitled to fifty percent of the value of the redeemed
accounts and that husband pay her within twelve months of the
entry of the final decree.
In overruling husband's objection to the commissioner's
recommendation, the trial court remarked on the commissioner's
observation that husband's testimony lacked credibility and
agreed with the commissioner's findings after "[h]aving read the
transcript." "[T]he trier of fact ascertains a witness'
credibility, determines the weight to be given to their
testimony, and has the discretion to accept or reject any of the
- 6 -
witness' testimony." Anderson v. Anderson, 29 Va. App. 673,
686, 514 S.E.2d 369, 376 (1999).
The trial court's decision regarding the above-referenced
subjects was an exercise of sound discretion. There is no
presumption favoring an equal division of marital property. See
Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 831
(1986). We recognize that "the trial court's job [in reviewing
an equitable distribution award] is a difficult one, and we rely
heavily on the discretion of the trial judge in weighing the
many considerations and circumstances that are presented in each
case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866,
870 (1990).
The trial court stated that it considered all of the factors
contained in Code § 20-107.3(E) and indicated its approval of an
award equaling "about an 80/20 division." Moreover, in overruling
objections to the commissioner's report, the trial court did not
find "the overall distribution of the marital property to be
punitive." The award was supported by the evidence and was not
plainly wrong. Accordingly, the trial court did not abuse its
discretion or commit reversible error.
Tangible Personal Property
In ruling on husband's exception to the commissioner's
report regarding personalty in the marital residence, the trial
court explained:
- 7 -
Only four items of tangible personalty were
mentioned during the hearing: a couch in
need of re-upholstering and a table in need
of refinishing, a "depression" glass
collection of unknown extent or value, and
some sunroom furniture that was purchased
four or five years ago for $3500. [Husband's
attorney] is correct that the Commissioner
made no specific recommendation about this
property. Perhaps the Commissioner intended
it go to [wife] with the residence. Perhaps
he applied the maxim de minimis non curat
lex. Perhaps he made no recommendation
because he did not believe this to be an
issue in the suit.
(Citations to transcript pages omitted).
Because the commissioner failed to apportion these items,
the trial court sustained husband's objection and directed the
commissioner to file a supplemental report. In it, the
commissioner stated:
Your Commissioner in his consideration
of this case, considered this particular
matter to be a non-issue since there was no
evidence presented by either side as to the
current value, if any, of these items which
were purchased a number of years ago.
Your Commissioner sees no reason to
have these items removed from the marital
residence and so recommends.
As a result, the trial court ordered in the final decree
that wife retain all furnishings in the marital home.
In considering valuation of the marital
estate, we have held that Code § 20-107.3
"'mandates' that trial courts determine the
ownership and value of all real and personal
property of the parties." Nevertheless,
"consistent with established Virginia
jurisprudence, the litigants have the burden
to present evidence sufficient for the court
to discharge its duty."
- 8 -
Johnson v. Johnson, 25 Va. App. 368, 373, 488 S.E.2d 659, 662
(1997) (quoting Bowers v. Bowers, 4 Va. App. 610, 617, 359
S.E.2d 546, 550 (1987)).
Husband presented no evidence at the ore tenus hearing as
to how many and what items of marital personal property were in
the house and their present value. Therefore, the commissioner
and trial court were unable to classify, valuate, consider and
distribute that property. Accordingly, the trial court did not
abuse its discretion in ordering the unnamed, unvalued
personalty to remain in the marital residence.
Attorney's Fees and Costs
Any award of attorney's fees and costs to a party rests
with the sound discretion of the trial court and will only be
disturbed where there has been an abuse of discretion. See
Rowand v. Rowand, 215 Va. 344, 346-47, 210 S.E.2d 149, 151
(1974).
Wife is a teacher, and husband owns a restaurant. Although
the record indicated that the parties earn substantially similar
annual incomes, the commissioner believed husband's "probable
income is greater than that" reported to the IRS. In
recommending the award, the commissioner relied heavily on the
fact that husband was at fault for the dissolution of the
marriage. In ruling on the parties' exceptions, the trial court
noted "[t]here was evidence that would have supported a finding
that [husband uses his business as a] private bank and that his
- 9 -
income is much higher than he claims." The trial court found
there was sufficient evidence of income and expenses to support
the commissioner's recommendation that husband pay a portion of
wife's fees and costs. Based upon our examination of the
record, we find no abuse of discretion in the trial court's
decision to order husband to pay nearly one-half of wife's
attorney's fees and costs.
Spousal Support
Wife contends the trial court erred in failing to award her
spousal support.
"A spousal support award is subject to the trial court's
discretion and will not be disturbed on appeal unless plainly
wrong or without evidence to support it." Howell v. Howell, 31
Va. App. 332, 351, 523 S.E.2d 514, 524 (2000).
After "consider[ing] all of the factors enunciated in
§ 20-107.1," the commissioner recommended that although wife is
"entitled to spousal support, none should be paid" in view of
the parties' apparently similar salaries and his other
recommendations. Because the commissioner found that the
parties' incomes were substantially similar, the trial court
denied spousal support to wife, but reserved her right to later
seek it. That decision was supported by credible evidence and
was not plainly wrong.
- 10 -
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
- 11 -