Ronald W. Tschippert v. Elizabeth M. Tschippert ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
RONALD W. TSCHIPPERT
v. Record No. 2096-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
ELIZABETH M. TSCHIPPERT JUNE 13, 1995
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Ronald W. Tschippert, pro se.
Carl P. Horton for appellee.
In this domestic appeal, Ronald W. Tschippert (husband)
argues that the trial court erred in: (1) failing to give
husband credit for funds withdrawn by Elizabeth M. Tschippert
(wife) from a joint checking account; (2) classifying 1000 shares
of Tandem Computers stock and a 1985 Oldsmobile as entirely
marital property; (3) using earlier valuation dates than the date
of hearing in determining the value of three assets; (4) failing
to award husband attorney's fees for discovery abuses committed
by wife; and (5) awarding a $25,000 monetary award to wife. We
reverse the trial court on: (1) its treatment of the funds from
the joint checking account, and (2) its valuation of wife's
401(k) investment account. We remand for the trial court to
consider husband's tracing evidence as to the checking account
funds and to reconsider the 401(k) account's value and the
equitable distribution award. We affirm on all other issues.
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
BACKGROUND
The parties were married on July 24, 1982 and separated on
August 1, 1991. Wife filed for divorce on August 21, 1992 based
on separation for more than one year pursuant to Code
§ 20-91(9)(a). The trial court held two hearings, conducted
several conference calls, and examined numerous documents in
determining the equitable distribution of the parties' property.
In a June 22, 1994 letter opinion, the trial judge awarded wife
a divorce, listed the distribution and classification of the
parties' property, and denied both parties' requests for
attorney's fees. The final decree of divorce was entered on
September 26, 1994 and incorporated the letter opinion and its
findings.
CREDIT FOR JOINT CHECKING ACCOUNT FUNDS
Husband argues that the trial court erred in failing to give
him credit for $11,472.87 withdrawn from a joint checking account
by wife after the date of separation and that, even if the trial
court properly found the funds to be marital, the court erred in
failing to find that wife committed waste.
After the parties separated, husband continued to deposit
his paychecks into the parties' Chevy Chase joint checking
account. On September 30, 1993, more than two years after the
date of separation, wife withdrew $11,472.87 from the account.
At the equitable distribution hearing, husband argued that the
trial court was required to trace the funds back to his paycheck
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deposits and that the funds deposited were his separate property.
[T]he Court declared that the $11,472.87 was
not husband's separate funds. Counsel for
husband objected on the grounds that tracing
evidence was accepted by the Court for all
other funds which were moved through that
account. The Court overruled the objection
citing Va. Code § 6.1-125.3 as controlling.
. . . The Court thus concluded that inasmuch
as wife was entitled to half of the funds in
the subject account, the funds that she
withdrew were not includable in the
distribution of assets. 1
Wife did not explain her use of the funds at the hearing.
Code § 6.1-125.3 provides, in pertinent part, that "a joint
account between persons married to each other shall belong to
them equally, . . . unless . . . there is clear and convincing
evidence of a different intent." This Code section is "relevant
only to controversies between [the parties] and their creditors
and other successors." Code § 6.1-125.2. We hold that the trial
court erred in using Code § 6.1-125.3, a banking statute relevant
to controversies between the account holders and their creditors,
to determine the status of the funds in the account for equitable
distribution purposes.
Code § 20-107.3(A)(3)(d), which allows for retracing of
separate contributions to marital property, is the applicable
Code section:
d. When marital property and separate
property are commingled by contributing one
category of property to another, resulting in
the loss of identity of the contributed
property, the classification of the
1
The record in this case was an agreed statement of facts.
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contributed property shall be transmuted to
the category of property receiving the
contribution. However, to the extent the
contributed property is retraceable by a
preponderance of the evidence and was not a
gift, such contributed property shall retain
its original classification.
(Emphasis added). This Court held in Dietz v. Dietz, 17 Va. App.
203, 436 S.E.2d 463 (1993), that a husband's post-separation
wages are his separate property unless proved to be marital. Id.
at 211-12, 436 S.E.2d at 468-69 (involving a husband's post-
separation wages deposited into the husband's separate checking
account and used to buy personal property).
Thus, under Dietz and Code § 20-107.3(A)(3)(d), the funds
deposited by husband became marital property. Because the trial
judge relied on Code § 6.1-125.3, he did not adequately consider
husband's tracing evidence concerning the funds in the joint
checking account.
CLASSIFICATION OF PROPERTY
Husband next argues that the trial court erred in
classifying 1000 shares of Tandem Computers stock and his 1985
Oldsmobile as entirely marital property.
Husband bought the 1000 shares of Tandem stock on July 26,
1993, almost two years after the date of separation. In
purchasing the stock, he used $9,950.04 from a joint checking
account into which his post-separation wages had been deposited.
Husband argues that the trial court should have accepted his
tracing documentation and found that the stock was his separate
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property.
The 1985 Oldsmobile was purchased during the marriage, but
husband argues that it was part marital and part separate
property because he used a combination of marital funds and his
separate property in the form of a cash down payment and trade-in
allowance to buy the car. Thus, the trial court should have
traced his separate contributions pursuant to Code
§ 20-107.3(A)(3)(d).
"In reviewing an equitable distribution award on appeal, we
recognize that the trial court's job is a difficult one.
Accordingly, we rely heavily on the discretion of the trial judge
in weighing the many considerations and circumstances that are
presented in each case." Artis v. Artis, 4 Va. App. 132, 137,
354 S.E.2d 812, 815 (1987). As stated above, Code
§ 20-107.3(A)(3)(d) provides that separate property contributed
to marital property shall retain its separate character only "to
the extent the contributed property is retraceable by a
preponderance of the evidence." In this case, the trial judge
gave ample consideration to husband's tracing documentation
concerning both the Tandem stock and the Oldsmobile and did not
find it persuasive. Thus, the trial court did not abuse its
discretion in classifying the stock and automobile as marital.
VALUATION OF PROPERTY
Husband also argues that the trial court erred in failing to
use the date of hearing as the valuation date for three pieces of
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property.
The items of property at issue are: (1) wife's 401(k)
Merrill Lynch investment plan, which the court valued at $45,784
as of June 30, 1991; (2) wife's Monumental Life insurance policy,
which the court valued at $17,394 as of May 20, 1993; and (3)
wife's Scudder Trust IRA, which the court valued at $13,686 as of
June 30, 1993.
Code § 20-107.3(A) provides as follows:
The court shall determine the value of any
such property as of the date of the
evidentiary hearing on the evaluation issue.
Upon motion of either party made no less
than twenty-one days before the evidentiary
hearing the court may, for good cause shown,
in order to attain the ends of justice, order
that a different valuation date be used.
"The trial judge in evaluating marital property should select a
valuation 'that will provide the court with the most current and
accurate information available which avoids inequitable
results.'" Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788,
790-91 (1991) (quoting Mitchell v. Mitchell, 4 Va. App. 113, 118,
355 S.E.2d 18, 21 (1987)). "The burden [is] on the parties to
provide the trial court with sufficient evidence as to the most
appropriate valuation date . . . ." Gottlieb v. Gottlieb, 19 Va.
App. 77, 87, 448 S.E.2d 666, 672 (1994).
In this case, the trial court used the only valuations
presented by husband and wife in evaluating the Monumental Life
policy and the Scudder Trust IRA. The trial judge gave the
parties the opportunity to revise their property distribution
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schedules after the initial equitable distribution hearing, and
the parties did not present any more current evidence regarding
the value of these two items. Thus, the judge did not abuse his
discretion in using the values presented and in declining to
accept husband's extrapolations of later values.
However, husband offered two more recent values of wife's
401(k) investment account--$47,717.89 on September 30, 1991 and
$70,685.49 on September 30, 1993. By failing to use the most
current information available, the trial judge erred in his
valuation of the 401(k) account.
ATTORNEY'S FEES
Lastly, husband argues that the trial court abused its
discretion in failing to award him attorney's fees.
Husband argues that he is entitled to $5,397.50 for
attorney's fees attributable to wife's lack of response to
discovery requests. It is well settled that "[a]n award of
attorney fees is discretionary with the court after considering
the circumstances and equities of the entire case and is
reviewable only for an abuse of discretion." Gamer v. Gamer, 16
Va. App. 335, 346, 429 S.E.2d 618, 626 (1993). The record in
this case shows no abuse of discretion. The judge made no
finding that wife had abused the discovery process and never
sanctioned wife for any abuse.
The decision of the trial court is affirmed as to all issues
except the classification of the funds from the joint checking
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account and the valuation of wife's 401(k) account. Accordingly,
we remand for reconsideration of husband's tracing evidence
concerning the funds in the checking account and for revaluation
of the 401(k) account. On remand, the trial judge should also
reconsider the monetary award in light of his decisions regarding
the checking account funds and the 401(k) account.
Affirmed in part,
reversed in part,
and remanded.
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