Carol Young Blanding v. Donald Sly Blanding ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
CAROL YOUNG BLANDING
MEMORANDUM OPINION * BY
v. Record No. 1103-98-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 16, 1999
DONALD SLY BLANDING
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge
William H. Cleaveland (Rider, Thomas,
Cleaveland, Ferris & Eakin, P.C., on brief),
for appellant.
Sam Garrison for appellee.
The wife appeals the trial court’s decision to give the
husband a portion of a brokerage account that she claims was her
separate property. The husband appeals the decision not to
allocate to him a larger portion. Concluding that there is
sufficient evidence in the record to support the decision of the
trial court, we affirm.
The trial court found that the disputed brokerage account
was marital property. It distributed 69% of the account to the
wife and 31% to the husband, which were different proportions
than it distributed other marital assets. When explaining its
decision to treat the account as marital property and divide it
as it did, the trial court said, "I think that the bulk of that
[account] is separate property, however, I cannot ignore that he
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
had an inheritance, too, and that is the balance that I have
reached after listening to all of this."
The parties were married in 1978 and separated in 1996.
When the parties started having marital problems, the wife opened
a new brokerage account at A.G. Edwards & Sons, Inc. The husband
never knew about the account, which she held in her name jointly
with her brother. The brother’s interest was nominal only. The
statements from that account show an opening deposit of $20,000
on February 16, 1994. Subsequent deposits of $5,000 each were
made July 1994, January 1995, and September 1995. At the time of
separation, the account had a balance of approximately $41,000.
During the marriage, the wife’s father made periodic cash
gifts by check. The parties disagreed strongly whether the gifts
were to the wife alone or to them jointly. The husband testified
that on many occasions his wife said, "Hey, my father has sent us
more money." She presented a list of checks received from her
father and provided copies of many of these checks. Neither the
list nor the copies included all the checks received from her
father. He made all checks payable to the wife alone except for
one in 1986 made payable to both. The wife endorsed the checks
and deposited them in a joint marital account until she opened
the A.G. Edwards account. After opening that account, the wife
deposited all checks received from her father to the account.
The husband received an inheritance during the marriage.
The wife testified that they deposited the money, approximately
$15,000, in a joint Merrill Lynch Ready Assets account and spent
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it before opening the A.G. Edwards account. Throughout the
marriage, the wife managed the family’s finances.
For this appeal, we need not decide whether the gifts were
to the wife alone. Assuming that they were gifts to her alone,
she failed to show that the account, which she claims as separate
property, was established with funds received from her father.
The gifts from her father were the only source she had of
separate property. However, the funds used to establish the
account did not necessarily come from those gifts.
We review the evidence and all reasonable inferences in the
light most favorable to the prevailing party below, the husband
in this instance. See Alphin v. Alphin, 15 Va. App. 395, 399,
424 S.E.2d 572, 574 (1992). When the wife opened the account,
she transferred $20,000 by making two separate deposits of $5,000
and $15,000. The initial deposits do not correlate with the
receipt of gifts when comparing the receipt of cash gifts with
the brokerage statement. The wife received only one check for
$5,000 around the time she opened the account. That sum alone
could be considered separate property. Though she had received
more than $20,000 worth of gifts by the time she opened the
account, all earlier funds had been deposited in joint marital
accounts and would have become marital property. See Code
§ 20-107.3(3)(d). She received $15,000 in the eighteen months
after she established the brokerage account, but the only source
for the major part of the initial deposit was funds that were
marital property. Checks received before the brokerage account
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was opened show the checks were deposited in a checking account
according to her own notations on the checks.
Property acquired during a marriage is presumed to be
marital property. See Code § 20-107.3. The party claiming a
gift as separate property has the burden of producing credible
evidence of the donor’s intent to rebut the marital property
presumption. See Stainback v. Stainback, 11 Va. App. 13, 17-18,
396 S.E.2d 686, 689 (1990). The evidence the wife presented does
not establish as a matter of law that she established the account
using separate property alone. The gifts from her father could
have been the source, but it is more likely that the initial
deposit consisted of marital funds.
The wife claims that she has linked the gifts from her
father to the brokerage account by showing that all marital funds
were expended and no funds remained that could have been the
source except her father’s gifts. Her proof is not so exact; it
is subject to interpretation and evaluation. The trial court had
to interpret and evaluate the testimony and the supporting
documents. Much of the wife’s evidence consisted of her
explanations and recollections of the financial transactions
during the marriage. However, she did not support her testimony
with the kind of precise data that financial transactions
routinely generate. The trial judge must determine the weight
and value of her evidence, see Booth v. Booth, 7 Va. App. 22, 28,
371 S.E.2d 509, 573 (1988), and on appeal we will not reverse
that determination unless plainly wrong or without evidence to
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support it. See Matthews v. Matthews, 26 Va. App. 638, 644, 496
S.E.2d 126, 128 (1998) (citations omitted). The evidence was in
conflict, there is evidence to support the trial court’s finding,
and we cannot change it on appeal. See Willis v. Magette, 254
Va. 198, 491 S.E.2d 735 (1997). The wife failed to prove that
the account consisted of funds that were her separate property
alone.
Both parties complain that the trial court allocated them
too small a portion of the A.G. Edwards account. The standard of
review of the trial court's equitable distribution is well
established. "Unless it appears from the record that the trial
judge has abused his discretion, that he has not considered or
has misapplied one of the statutory mandates, or that the
evidence fails to support the findings of fact underlying his
resolution of the conflict in the equities, the equitable
distribution award will not be reversed on appeal." Blank v.
Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 727 (1990). We find no
abuse of discretion in the trial court's method of dividing the
account. Accordingly, we affirm.
Affirmed.
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