Francis C. Bloxton, Jr. v. Wendy H. Bloxton ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
FRANCIS C. BLOXTON, JR.
MEMORANDUM OPINION * BY
v. Record No. 1041-98-2 JUDGE SAM W. COLEMAN III
MAY 4, 1999
WENDY H. BLOXTON
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
John N. Clifford (Shirley L. Hennessy;
Clifford & Duke, P.C., on briefs), for
appellant.
Robert C. Elliott, II (Rebecca E. Duffie; The
Elliott Law Firm, on brief), for appellee.
In this equitable distribution appeal, Francis C. Bloxton
(husband) contends the trial court erred (1) by dividing the
marital assets equally between the parties, (2) by requiring
husband to pay a portion of the credit card debt incurred by Wendy
H. Bloxton (wife), (3) by crediting wife $2,000 for an air
conditioning unit installed in the husband’s separately owned home
with marital funds, and (4) in calculating the marital portion of
the husband’s pension. We find that the trial court did not abuse
its discretion by dividing the marital property equally between
the parties, by ordering the husband to pay a portion of the
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
wife’s credit card debt, or by awarding the wife a $1,000 credit 1
for her share of a marital asset traced from husband’s separately
owned property. However, we hold that the trial court erred in
calculating the marital share of husband’s pension plan and we
reverse that ruling.
BACKGROUND
The Bloxtons were married for six years. They had no
children born of the marriage. At the time of divorce, husband
was fifty-one years old and wife was forty years old. At various
periods during the marriage, wife’s three teenage children from a
prior marriage lived with the Bloxtons.
From 1988 to 1990, wife contributed from $100 to $700 a month
from her earnings into the marital account. Over the course of
the six-year marriage, husband earned $231,678, all of which he
deposited in the parties’ joint account. During the same period,
wife earned $76,272, $11,014 of which she deposited in the joint
account. After obtaining a job at a retail store in 1992 and
until 1994, wife paid half the house payment, half the electric
bill, and half the telephone bill. She also paid fully for her
personal long distance telephone calls. Additionally, she
purchased family groceries and incidentals including cleaning
supplies. She estimated that bill payments and payments into the
1
Although husband contends the trial court erred by awarding
wife $2,000, in fact the trial court merely classified $2,000 as
marital and awarded wife $1,000.
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marital account represented about seventy-five percent of her
approximately $20,000 annual salary. Near the end of the
marriage, the husband closed the joint account over a controversy
surrounding a check that wife wrote to a grocery store for
thirteen dollars. After husband closed the account, wife paid her
share of the monthly expenses in cash.
During the marriage, the parties reduced the mortgage
principal for husband’s separately owned marital residence by
$15,449. The Bloxtons spent $2,000 of marital funds to install in
the residence a central air conditioning system. The parties also
expended marital funds on new windows and floor joists.
Husband retired at age fifty after 25.245 years of service
with the Army and Air Force Exchange Service. Husband had 3.863
additional years of military service and 1.103 years of
accumulated sick leave that were credited toward his retirement,
resulting in a total of 30.211 creditable years. Husband had
earned sick leave at the rate of four hours for every two weeks.
He testified that during the marriage, he had missed only one or
two hours of work.
Based on evidence concerning the character and nature of the
debts, the trial court classified four of wife’s credit card debts
and two of husband’s debts as marital.
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ANALYSIS
I.
Husband contends that the trial court abused its discretion
by ordering that the marital property be divided equally.
The division of marital property is committed to the sound
discretion of the trial court. See Amburn v. Amburn, 13 Va.
App. 661, 666, 414 S.E.2d 847, 850 (1992). On review, a divorce
decree based solely on depositions is not as conclusive as a
decree based on ore tenus evidence; however, such a decree is
nevertheless presumed correct and will not be reversed if
supported by substantial evidence. See Capps v. Capps, 216 Va.
382, 384, 219 S.E.2d 898, 899 (1975). Code § 20-107.3(E)
specifies the factors that a trial court must consider in
deciding how to equitably distribute marital property. However,
the trial court has broad discretion in the consideration it
gives each statutory factor. “A trial court, when considering
these factors, is not required to quantify the weight given to
each, nor is it required to weigh each factor equally, though
its considerations must be supported by the evidence.” Marion
v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436 (1991).
The trial court considered the evidence in light of the
factors specified in Code § 20-107.3(E). On husband’s motion,
the trial judge reconsidered the evidence in light of those
factors. Although the judge did not articulate the process he
followed in considering the statutory factors, such an
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articulation is not required, and the evidence was sufficient to
support the trial judge’s decision to equally divide the marital
property.
The evidence shows that the husband’s monetary
contributions to the acquisition of marital property exceeded
the wife’s monetary contributions. However, we do not “sanction
a disproportionate division of the assets in favor of one party
simply because that party has been primarily responsible for the
development of the marital assets.” Zipf v. Zipf, 8 Va. App.
387, 393 n.2, 382 S.E.2d 263, 266 n.2 (1989). Among the factors
to be considered are the parties’ non-monetary contributions to
the well-being of the family. See Bentz v. Bentz, 2 Va. App.
486, 489, 345 S.E.2d 773, 774-75 (1986).
The evidence of wife’s non-monetary contributions to the
well-being of the family, including housework, yard work, and
activities incidental to those chores, was substantial.
Additionally, the wife made significant monetary contributions
of marital assets. Accordingly, we hold that the trial judge,
having considered and applied the factors of Code § 20-107.3(E)
to the evidence, did not abuse his discretion by ordering an
equal division of the marital assets.
II.
Husband contends that the trial court erred by ordering
husband to pay a portion of wife’s credit card debt. Code
§ 20-107.3(C) authorizes the court to apportion and order
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payment of the debts of the parties that are incurred prior to
the dissolution of the marriage. In apportioning debt, Code
§ 20-107.3(C) requires that the court also consider the factors
listed in Code § 20-107.3(E). The trial judge stated that he
apportioned the debt after having considered the factors listed
in Code § 20-107.3(E). Wife testified as to the nature and
general character of the various debts. She excluded from the
debt balances purchases she made after the dissolution of the
marriage. Of the six debts about which she testified, the trial
court determined that wife incurred four of these debts to cover
marital expenses. She testified that some of the debt
represented the cost of living expenses incurred as a result of
marital turmoil, but before the date of last separation. Given
the evidence in the record, we cannot say that the trial court
abused its discretion by ordering husband to pay half of the
four credit card debts.
III.
Husband asserts that the trial court erred by crediting
wife $2,000 for central air conditioning installed with marital
funds in the marital residence that husband owned separately.
In fact, the trial court awarded wife a $1,000 credit after
finding that wife traced $2,000 of marital funds that had been
commingled with the husband’s separate property.
The trial court relied upon Code § 20-107.3(A)(3)(d) to
classify the $2,000 as marital.
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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
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.
Code § 20-107.3(A)(3)(d).
The wife had the burden to trace the $2,000 contributed to
or commingled with the separate real estate in the form of an
identifiable asset, in this case the central air conditioning
unit. See Rahbaran v. Rahbaran, 26 Va. App. 195, 207-08, 494
S.E.2d 135, 141 (1997). However, in order to trace the $2,000
as marital property contributed to and commingled with the
separate real estate, Code § 20-107.3(A)(3)(d) does not require
that the marital portion be segregated from the whole. See id.
Tracing involves the two-step process of (1) identifying a
specific portion of hybrid property as either marital or
separate, and (2) directly tracing that identifiable portion to
either a separate or marital asset. Id. The wife proved by a
preponderance of the evidence that the air conditioning unit was
an identifiable and measurable portion of the marital residence
and that $2,000 of marital funds was traceable to that portion
of the hybrid property. See id. Accordingly, the trial court
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did not err by awarding the wife $1,000 as her share of that
marital asset.
IV.
Finally, husband contends that the trial court erred in
calculating the marital portion of his pension plan. To
determine the marital portion of the pension, the trial court
employed the coverture fraction endorsed in Primm v. Primm, 12
Va. App. 1036, 1038, 407 S.E.2d 45, 46 (1991). The marital
share consists of a fraction in which the numerator represents
the creditable years of employment husband accrued during the
marriage and the denominator represents the total number of
creditable years at the time of retirement. See id. The trial
court correctly included in the denominator the 1.103 years of
sick leave accrued during the course of husband’s employment and
credited toward his retirement. 2 In its opinion letter, the
trial court stated its intention to add to the numerator of the
fraction the amount of sick leave that husband acquired during
the marriage. Although the trial court correctly articulated
the method for calculating the numerator, the trial court used
2
On appeal, husband contends that the sick leave did not
increase his retirement benefits but rather that the sick leave
merely allowed him to retire earlier. However, husband makes no
reference to the record to support this contention. In fact,
husband testified that his retirement was calculated based on
30.211 years of service, a figure which includes 1.103 years of
sick leave. Thus, like the trial court, we treat the accrued
sick leave as service creditable to husband’s retirement
benefits.
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an inflated figure for the sick leave acquired during the
marriage. In calculating the numerator -- that is, the number
of creditable years accrued during the six years of marriage --
the trial court added 1.03 years of sick leave. Where 1.103
years represented the total acquired sick leave credit for
25.245 years of service, husband acquired only a fraction of
that amount during the marriage. Husband testified that he
acquired four hours of leave every two weeks of service. He
further testified that he missed only one or two hours of
service during the entire marriage. Thus, husband would have
accumulated 104 hours of service per year, or 624 hours during
the entire six-year marriage. This figure represents .3 years
of service. Accordingly, the trial court erred in using 7.03
instead of 6.3 as the numerator of the coverture fraction.
Therefore, upon remand, the wife’s marital share, based upon the
Primm coverture fraction adopted by the trial court, shall be
calculated as follows: 6.3/30.211 X 50% = 10.4% X amount of
retired pay.
In summary, we find the trial court did not abuse its
discretion by dividing the Bloxtons’ marital property equally,
by ordering husband to pay for a portion of wife’s credit card
debt, or by crediting wife $1,000 for the marital funds traced
to the central air conditioning. Finally, although the trial
court employed a proper mechanism for determining the marital
portion of husband’s retirement account, the trial court erred
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in calculating the creditable years of service accumulated
during the marriage.
We find that the husband had reasonable grounds for appeal.
Therefore, wife’s request for an award of attorney’s fees and
costs of this appeal is denied. See Gayler v. Gayler, 20 Va.
App. 83, 87, 455 S.E.2d 278, 280 (1995); Rule 5A:30.
Accordingly, the trial court’s final decree is affirmed in
part, vacated in part, and remanded for the trial court to amend
the decree in conformity with this opinion.
Affirmed in part,
vacated in part,
and remanded.
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