Keith Iverson Harrop, II v. Lesley Ann Butterfield Harrop ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Ortiz and Causey
UNPUBLISHED
Argued at Lexington, Virginia
KEITH IVERSON HARROP, II
MEMORANDUM OPINION* BY
v. Record No. 0158-22-3 JUDGE DORIS HENDERSON CAUSEY
MARCH 7, 2023
LESLEY ANN BUTTERFIELD HARROP
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
James R. Swanson, Judge
Melanie Hubbard (Malinowski Hubbard, PLLC, on briefs), for
appellant.
Monica Taylor Monday (Brooke Rosen, Guardian ad litem for the
minor children; Gentry Locke; Woods Rogers PLC, on brief), for
appellee.
Lesley Ann Butterfield Harrop (“wife”) and Keith Iverson Harrop, II (“husband”), were
divorced by order of the trial court, which also provided for equitable distribution of the parties’
marital estate and awarded to wife sole legal and physical custody of their four children. On
appeal, husband challenges the trial court’s distribution of the marital residence and marital debt.
He also seeks review of the trial court’s custody ruling. For the following reasons, we affirm the
trial court’s judgment.
BACKGROUND
The parties were married on July 30, 2005, and separated around March 11, 2017, after
more than ten years of marriage. Wife filed for divorce soon after. Over the course of several
hearings, the parties presented evidence on equitable distribution, spousal support, child custody,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
child support, and attorney fees. They subsequently submitted written closing arguments. In
December 2020, the trial court issued its letter opinion.
The court awarded husband the marital residence (“Overhill Trail home”), which husband
and wife jointly owned. Husband requested that a portion of the reduction in mortgage principal
since the parties’ separation be credited to him. The court denied this request. Husband had paid
the mortgage at the Overhill Trail home between March 2017 through October 2018 and
December 2019 through June 2020, but from November 2018 through November 2019, the
Church of Latter-Day Saints (“church”) paid the mortgage. The court found that “[s]ince the
gifted funds from the church were used to make the mortgage payments on the residence that
was jointly owned by the parties,” the gift was for both parties and not husband individually.
The trial court also ruled that husband and wife would each “pay and be solely
responsible for the marital debt in his or her individual name.” The trial court found that wife
had marital debts in her name totaling $43,253 and husband had marital debts in his name
totaling $493,027. The court found that it had “no authority to . . . order the division of marital
debt that is not jointly owed.”
Finally, the trial court awarded sole custody of the parties’ four children to wife. The
court found that based on the evidence, the parties’ arguments, the statutory factors, and the
guardian ad litem’s report, it was in the best interests of the children for wife to have sole
custody, with visitation to husband. At the beginning of the trial, wife had not explicitly
requested sole custody, but she filed a supplemental notice and a motion including a request for
sole legal and physical custody during the trial.
Husband filed a motion to reconsider the trial court’s rulings. Husband and wife were
divorced by final decree entered by the court in April 2021, but the decree stated that the decree
was not a final order as the court was retaining jurisdiction to consider husband’s motion to
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reconsider. The trial court held a hearing on husband’s motion to reconsider and issued a letter
opinion in November 2021, which decreased husband’s support obligations but did not modify
the court’s previous rulings on the church’s gift payments, marital debt, or child custody. The
court then entered an order memorializing its letter opinion and finding that the order was final
for purposes of appeal because “there [were] no further issues for adjudication by the court or
any ongoing suspension of the court’s jurisdiction.” Husband timely appeals the court’s
equitable distribution and custody rulings.
ANALYSIS
I. Equitable Distribution of the Marital Residence
Husband first contends that the trial court erred by classifying the church’s payments of
the mortgage on the Overhill Trail home as a marital contribution to the property rather than
husband’s separate contribution. He argues that these payments were gifts from the church
intended for his benefit alone, so the court, in its equitable distribution determination, should
have credited him for the reduction in the mortgage principal. However, we hold that the trial
court did not err because the evidence supports its conclusion that the payments were marital
property.
“We begin our analysis by recognizing the well-established principle that all trial court
rulings come to an appellate court with a presumption of correctness.” Wynnycky v. Kozel, 71
Va. App. 177, 192 (2019) (quoting Stiles v. Stiles, 48 Va. App. 449, 453 (2006)). “In
challenging [a] court’s decision on appeal, the party seeking reversal bears the burden to
demonstrate error on the part of the trial court.” Sobol v. Sobol, 74 Va. App. 252, 272-73 (2022)
(quoting Barker v. Barker, 27 Va. App. 519, 535 (1998)). On appeal from an equitable
distribution award, we review the evidence in the light most favorable to the party prevailing
below. See, e.g., Anderson v. Anderson, 29 Va. App. 673, 678 (1999). We will not overturn an
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equitable distribution judgment unless we find “an abuse of discretion, misapplication or
wrongful application of the equitable distribution statute, or lack of evidence to support the
award.” Dixon v. Dixon, 71 Va. App. 709, 717-18 (2020) (quoting Anthony v. Skolnick-Lozano,
63 Va. App. 76, 83 (2014)). “[T]o the extent that the appeal requires an examination of the
proper interpretation and application of Code § 20-107.3, it involves issues of law, which the
Court reviews de novo on appeal.” Id. at 718.
“Because the trial court’s classification of property is a finding of fact, that classification
will not be reversed on appeal unless it is plainly wrong or without evidence to support it.”
Ranney v. Ranney, 45 Va. App. 17, 31-32 (2005). “In making an equitable distribution of
property under [Code § 20-107.3], the [trial] court first must classify the property as separate,
marital, or part separate and part marital.” Lightburn v. Lightburn, 22 Va. App. 612, 616 (1996).
Under the equitable distribution statute, “separate property” includes, in relevant part, “all
property acquired during the marriage by . . . gift from a source other than the other party.”
Code § 20-107.3(A)(1)(ii).1 On the other hand, “marital property” includes “all property titled in
the names of both parties,” and “all other property acquired by each party during the marriage
which is not separate property.” Code § 20-107.3(A)(2)(i), (iii).
1
We recognize that because the property at issue was acquired after the date of the
parties’ last separation, husband would have been entitled to a presumption that the property was
separate property. See Luczkovich v. Luczkovich, 26 Va. App. 702, 708 (1998) (“Property
acquired after the last separation is presumed to be separate unless the party claiming otherwise
proves that the property ‘was acquired while some vestige of the marital partnership continued or
was acquired with marital assets.’” (quoting Dietz v. Dietz, 17 Va. App. 203, 211-12 (1993))).
However, because husband did not make this argument to the trial court or to this Court on
appeal, we treat it as waived. Coward v. Wellmont Health Sys., 295 Va. 351, 367 (2018) (“[I]t is
not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments
for him or her, and where a party fails to develop an argument in support of his or her contention
or merely constructs a skeletal argument, the issue is waived.” (quoting Bartley v.
Commonwealth, 67 Va. App. 740, 746 (2017) (applying Rule 5A:20(e)))).
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We cannot say the trial court abused its discretion in its factual finding that the mortgage
payments from the church constituted marital property. It is true that “gifts from others to a
party represent separate property” under Code § 20-107.3(A)(1)(ii). Sfreddo v. Sfreddo, 59
Va. App. 471, 480 (2012). But a gift to one of the spouses will be treated as separate property
only “if there is credible evidence presented to show that the property was intended by the donor
to be the separate property of one of the spouses.” Stainback v. Stainback, 11 Va. App. 13,
17-18 (1990). “[Donative i]ntent is a question to be determined by the fact finder.” Cirrito v.
Cirrito, 44 Va. App. 287, 305 (2004).
The trial court did not err in concluding that husband did not present sufficient credible
evidence to show that the church intended the gift for him alone. Neither party disputes that they
jointly owned the Overhill Trail home as marital property. The checks from the church were
made payable to the jointly owned home’s mortgage holder, SunTrust Bank, rather than husband
individually. Husband presented no testimony from the church that the church intended to give
the gift to him alone. Contra Stainback, 11 Va. App. at 17-18 (donor’s intent to gift stock
separately to husband established by donor’s testimony); Foster v. Foster, No. 1141-21-2, slip
op. at 15 (Va. Ct. App. June 21, 2022) (donor’s intent to gift stock separately to husband
established by donor’s financial advisers’ testimony and emails specifically mentioning “gifting
shares to [husband]”).
Husband’s emphasis that the payments from the church resulted from his initiative—
without wife’s involvement or knowledge—is not dispositive because he failed to establish how
his actions revealed the church’s donative intent. Evidence of how husband acquired the gift,
without more, does not prove as a matter of law that the church had a donative intent for his
individual benefit. Instead, the trial court could have found such evidence merely cumulative to
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already established evidence: the church intended to contribute to the mortgage of the parties’
jointly held property.2
The court, in its role as factfinder, was entitled to evaluate the credibility of husband’s
self-serving testimony. See Harvey v. Flockhart, 65 Va. App. 131, 146 (2015) (“The credibility
of the witnesses and the weight accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is presented.” (quoting Sandoval v.
Commonwealth, 20 Va. App. 133, 138 (1995))).
It was within the trial court’s discretion to conclude that husband’s independent
engagement with the church did not overcome the evidence supporting that its payments were
marital property. Because we cannot say the trial court was plainly wrong to find that the church
donations were marital property, we affirm on this issue.3
2
Nor is wife’s failure at trial to claim an interest in the gifted funds sufficient evidence of
the church’s intent to gift separate property. As discussed above about husband’s actions, wife’s
actions here do not speak to the church’s donative intent.
3
This assignment of error also presented an issue of statutory construction that we need
not reach. Code § 20-107.3(A)(3)(d) provides, “[w]hen 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 contributed property shall be
transmuted to the category of property receiving the contribution.” But “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.” Id. (emphasis added). Husband
argues that “gift” in this clause “refers to whether the separate contribution by a spouse was a
gift to the other spouse or the marital estate; it does not refer to the source of the separate
contribution.” However, the trial court did not rely on this provision. Because it correctly found
that the mortgage payments were a gift to both parties, they were never husband’s separate
property and thus never “commingled.” Therefore, the trial court’s ruling regarding these
payments did not rely on the “and was not a gift” language in the statute, and there is no statutory
interpretation by the trial court for this Court to review on appeal. For the same reasons, we also
need not reach whether husband satisfied, by a preponderance of the evidence, Code
§ 20-107.3(A)(3)(d)’s requirement that he retrace any separate property from commingled
property. See Commonwealth v. White, 293 Va. 411, 419 (2017) (“[T]he doctrine of judicial
restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” (quoting
Commonwealth v. Swann, 290 Va. 194, 196 (2015))).
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II. Equitable Distribution of the Marital Debt
Husband next argues that the trial court erred and abused its discretion in its decisions on
the parties’ marital debts. First, husband argues that the trial court erred when it found it had no
authority under Code § 20-107.3(C) to order the division of marital debt not jointly owned or in
the parties’ joint names, and thus ruled each party was solely responsible for the debts in his or
her own name. Second, husband contends that the trial court’s decision to hold husband solely
responsible for most of the marital debts was both not supported by the evidence and inequitable.
Because the court correctly interpreted and applied Code § 20-107.3(C) and ruled within its
discretion based on evidence in the record, we hold that there was no error.
A. Interpretation of Code § 20-107.3(C)
The trial court ruled:
By the terms of Va. Code § 20-107.3(C), the Court has no
authority to . . . order the division of marital debt that is not jointly
owed. Accordingly, after consideration of the evidence and the
factors enumerated in Va. Code § 20-107.3(E), each party shall
pay and be solely responsible for the marital debt in his or her
individual name.
Code § 20-107.3(C) provides in relevant part that “the court shall have no authority to
order the division or transfer of . . . marital debt, which is not jointly owned or owed.” See also
Linton v. Linton, 63 Va. App. 495, 500 (2014) (“Code § 20-107.3(C) specifically prohibits the
court from dividing or transferring property which is not jointly owned.”). Code § 20-107.3(C)
further provides that the “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 [equitable distribution] factors listed in subsection E.” Taking the
provisions together, Code § 20-107.3(C) precludes courts from dividing or transferring marital
debts in one individual spouse’s name, but still gives courts the option to account for those debts
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by ordering one spouse to pay debts in the other spouse’s name, after analyzing the equitable
distribution factors listed later in subsection E.
Here, the trial court correctly found that husband was responsible for the debt in his
name. The trial court found—and the parties did not dispute—that the marital debts at issue
(mostly student loans) were not jointly owed. The trial court correctly recognized that it lacked
authority to divide those debts under Code § 20-107.3(C). Instead, the court could account for
the debts in the course of equitably distributing the property under Code § 20-107.3(E), and it did
just that, as discussed in the section below. We cannot say that the trial court erred in concluding
that it lacked the authority to divide debt solely in husband’s name under Code § 20-107.3(C).
B. Evidence and Equitable Considerations Supporting Trial Court’s
Distribution of Individual Debt Under Code § 20-107.3(E)
We next address whether the court erred in applying Code § 20-107.3(E) to equitably
distribute the property. The court found husband solely responsible for all marital debts in his
own name, totaling $493,027, and wife responsible for all marital debts in her own name,
totaling $43,253. Husband contends that the trial court’s equitable distribution determination is
not supported by the evidence on the record. He argues that the evidence shows that he “is not
financially able to bear full responsibility” for the debts. He also claims that it is inequitable for
him to pay these debts while wife has benefitted from his increased earnings from debts incurred
for his completion of medical school and residency, and improvements made to a house the
parties jointly owned.
As stated in Section I, this Court will not reverse an equitable distribution award
“[u]nless it appears from the record that the [trial court] has abused [its] discretion,” that the trial
court “has not considered or has misapplied one of the statutory mandates,” or “that the evidence
fails to support the findings of fact underlying [the] resolution of the conflict.” Smoot v. Smoot,
233 Va. 435, 443 (1987). “An abuse of discretion occurs only when ‘reasonable jurists’ could
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not disagree as to the proper decision. . . . Th[e] bell-shaped curve of reasonability governing
our appellate review rests on the venerable belief that the judge closest to the contest is the judge
best able to discern where the equities lie.” Hamad v. Hamad, 61 Va. App. 593, 607 (2013)
(quoting Brandau v. Brandau, 52 Va. App. 632, 641 (2008)).
A trial court must consider several statutory factors in equitably distributing property at
divorce. See Code § 20-107.3(E). “What weight, if any, to assign to this or that factor in the
overall decision lies within the trial court’s sound discretion.” Hamad, 61 Va. App. at 606
(quoting Robbins v. Robbins, 48 Va. App. 466, 481 (2006)).
Factors under Code § 20-107.3(E) include the “contributions, monetary and
nonmonetary, of each party to the well-being of the family”; “circumstances and factors which
contributed to the dissolution of the marriage”; and the “debts and liabilities of each spouse.”
Code § 20-107.3(E)(1), (5), (7).
Viewing the facts in the light most favorable to wife, the prevailing party below, the trial
court appropriately exercised its broad discretion to determine an equitable distribution award.
The court found that “there appears little question that the cumulative effect of the extra-marital
conduct of [husband] was devastating and that as a result, the conduct of [husband] constituted a
significant negative nonmonetary contribution to the parties’ marriage and family.” Under the
plain language of the equitable distribution statute and binding precedent construing it, the court
was free to consider husband’s actions that contributed to the dissolution of the marriage. Code
§ 20-107.3(E)(1), (5); Cousins v. Cousins, 5 Va. App. 156, 158 (1987) (holding that in an
equitable distribution matter, “[c]ircumstances and factors which may have contributed to the
dissolution of a marriage, regardless of whether they constituted grounds for divorce, may be
considered in weighing the equities between parties”). The court’s factfinding, supported
throughout the record, also describes wife’s positive contributions to the family, including
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raising the parties’ children and spending substantial time educating herself on how best to care
and advocate for the child with autism. See Code § 20-107.3(E)(1).
Additionally, in considering the “debts and liabilities of each spouse,” the court
accounted for holding husband responsible for most of the marital debts by awarding wife less of
the marital property than she had sought.
Because the court’s apportionment of the marital debt is within its broad discretion and
supported by evidence, we find no error and will not disturb the trial court’s equitable
distribution determination.
III. Custody of the Parties’ Children
Finally, husband challenges the trial court’s award of sole legal custody of the parties’ four
children to wife. “We review a court’s decision regarding child custody for an abuse of discretion.”
Armstrong v. Armstrong, 71 Va. App. 97, 102 (2019). “Under this standard, the Court views the
evidence in the light most favorable to the prevailing party and does not ‘retry the facts or substitute
[its] view of the facts for [that] of the trial court.’” Id. (alterations in original) (quoting Congdon v.
Congdon, 40 Va. App. 255, 266 (2003)). “If ‘evidence in the record supports the trial court’s ruling
and the trial court has not abused its discretion, its ruling must be affirmed on appeal.’” Id. (quoting
Brown v. Brown, 30 Va. App. 532, 538 (1999)).
Husband first argues that the trial court erred in granting wife sole custody because it
granted her “relief that she did not request in her complaint for divorce or at trial.” We disagree.
This Court has held that a court may award relief it deems appropriate, even if that form of
relief was not specifically requested by that party. In D’Ambrosio v. D’Ambrosio, 45 Va. App. 323,
336 (2005), we held that the circuit court properly gave one parent sole authority to choose the
child’s pediatrician, noting that “[a]lthough [one party] did not request the sole right to select [the
child’s] pediatrician in her pleadings, she nonetheless prayed that the court grant any other relief it
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deemed just.” This Court found that “the trial court did not err in fashioning ‘an appropriate remedy
that comport[s] with the best interest of the children, even [though it was not] specifically requested
by the mother or father.’” Id. at 338 (alterations in original) (quoting Cloutier v. Queen, 35
Va. App. 413, 424 (2001)).
Here, husband put the question of custody before the court in his counterclaim for divorce
when he asked the court to “adjudicate issues of child custody, visitation and support of the parties’
minor children.” Thus, the court had authority to award sole custody to either wife or husband, if it
found doing so was in the children’s best interests. Code § 20-124.2(B).
Husband then argues that, even if the court was permitted to award custody to wife as relief,
the trial court erred because its custody decision was not supported by the evidence on the record.
We disagree.
Code § 20-124.3 requires that “[a] trial court . . . consider all the statutory factors in
determining the best interests of a child for custody and visitation.” Armstrong, 71 Va. App. at 104
(internal quotations and citation omitted). But the trial court is not “required to quantify or elaborate
exactly what weight or consideration it has given to each of the statutory factors.” Id. (quoting
Sargent v. Sargent, 20 Va. App. 694, 702 (1995)).
Here, the court considered all of the statutory factors, and the evidence in the record
supports the trial court’s award of sole legal custody to wife. In its letter opinion, the court stated
that “after considering the evidence, the report of the Guardian ad litem and the factors
enumerated in Va. Code § 20-124.3, it is in the best interests of the children of the parties that
Ms. Harrop have sole custody of the four minor children.” The court’s letter opinion specifically
emphasizes the following four factors from Code § 20-124.3:
(1) The age and physical and mental condition of the child, giving
due consideration to the child’s changing developmental needs;
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(3) The relationship existing between each parent and each child,
giving due consideration to the positive involvement with the
child’s life, the ability to accurately assess and meet the
emotional, intellectual, and physical needs of the child;
(4) The needs of the child, giving due consideration to other
important relationships of the child, including but not limited to
siblings, peers, and extended family members; [and]
(5) The role that each parent has played and will play in the future,
in the upbringing and care of the child[.]
The guardian ad litem’s report recommended that it was in the children’s best interests for
wife to have sole custody. The report explained that husband was “resistant to engage in a dialogue
with [wife] about child-related decisions” and lacked “willingness to collaborate with her over the
past three years” on childcare decisions. The report listed detailed examples of when “even if an
agreement is reached in the moment, [husband] takes steps afterwards to frustrate the process and
recharacterize the outcome.” The guardian ad litem recognized that husband was attending most
school meetings for the child with autism and was “engaged in the discussion” when she observed a
meeting, but that “[w]hen confronted with the issues of external/out-of-school therapies for autism
or assistance for developmental challenges, [husband] appears to be mostly resistant and
uninvolved.” The report also included examples of husband’s “quick-to-anger temperament” and
other concerning behavior by husband around the children. The guardian ad litem contrasted
husband’s behavior with evidence of wife’s fitness as parent, including her devotion to educating
herself about autism and advocating for the educational needs of the child with autism even while
working full-time and caring for four children with varying degrees of special needs. The trial court
also heard extensive testimony about each party’s involvement and relationship with the children.
The trial court credited the guardian ad litem report as “particularly insightful [and]
thorough” and found that “for the most part, the assessments and conclusions set out [in the report]
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coincide closely with those of th[e] Court.”4 The guardian ad litem report and trial testimony
include evidence relevant to each of the four Code § 20-124.3 factors the court cited as the basis for
its custody decision. And the trial court explained its decision in writing with detailed factfinding
based on that evidence. The trial court was well within its discretion to find that the children’s best
interests were served by wife having sole custody.
IV. Appellate Attorney Fees
Each party requests appellate attorney fees. “The decision of whether to award attorney’s
fees and costs incurred on appeal is discretionary.” Friedman v. Smith, 68 Va. App. 529, 545
(2018). “Since this litigation ‘addressed appropriate and substantial issues,’ and ‘neither party
generated unnecessary delay or expense in pursuit of its interests,’” we deny both parties’ requests
for an award of attorney fees and costs incurred on appeal. Porter v. Porter, 69 Va. App. 167, 176
(2018) (quoting Estate of Hackler v. Hackler, 44 Va. App. 51, 75 (2004)); see also Rule 5A:30(b).
Additionally, in making such a determination, the Court considers all the equities of the case.
Rule 5A:30(b)(3).
CONCLUSION
For the reasons above, we affirm.
Affirmed.
4
We find no merit to husband’s argument on brief that a guardian ad litem report is
entitled to no more weight than a closing argument. See Wiencko v. Takayama, 62 Va. App. 217,
233 (2013) (finding that the abuse of discretion standard “affords the trial court appropriate
flexibility in determining to what extent it should rely on the recommendation of the guardian ad
litem”); Bottoms v. Bottoms, 249 Va. 410, 420 (1995) (reversing trial court’s custody
determination for failing to consider guardian ad litem report).
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