Arthur J. Lehner v. Mary E.H. Saunders Lehner ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ARTHUR J. LEHNER
MEMORANDUM OPINION *
v. Record No. 1445-98-2 PER CURIAM
MAY 18, 1999
MARY ELIZABETH HAILEY SAUNDERS LEHNER
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
(McClanahan Ingles; Martin, Ingles & Ingles,
on brief), for appellant.
No brief for appellee.
Arthur J. Lehner (husband) appeals the equitable
distribution judgment awarding certain property to Mary
Elizabeth Hailey Saunders Lehner (wife). Husband contends that
the trial court erred: (1) by failing to make a finding
regarding marital debt; (2) by awarding wife one-half of the
marital share of husband's individual retirement account (IRA)
when evidence indicated that funds were withdrawn and applied to
pay marital debt; (3) by failing to find that husband paid
marital debt from his separate assets and failing to credit
husband for payment of $47,250 of marital debt; and (4) by
deviating from husband's proposed findings of fact and
conclusions of law by awarding wife one-half of the marital
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
share of husband's IRA and one-half of the marital share of
husband's retirement plan. Upon reviewing the record and
opening brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the judgment of the trial
court. See Rule 5A:27.
"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 burden is upon the appellant to provide us with a
record which substantiates the claim of error." Jenkins v.
Winchester Dep't of Social Servs., 12 Va. App. 1178, 1185, 409
S.E.2d 16, 20 (1991).
The record on review includes depositions, stipulations,
and a Statement of Facts, Testimony and Other Incidents of the
Case. No hearing transcripts are included in the record.
Husband submitted a Memorandum and Proposed Findings of
Fact and Conclusions of Law to the trial court prior to the
entry of the final decree of divorce. Among the proposed
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findings of fact relevant to the issues raised on appeal were
the following:
3. The parties' marital debt payments were
made by [husband] and are identified on
Exhibits 7 and 8.
4. [Husband] made substantial additional
payments from his separately owned assets
toward payment of the parties’ marital debt.
In addition, husband asked the trial court to reach the
following conclusions of law in connection with the equitable
distribution of the parties' assets:
3. Pursuant to VA Code Ann. § 20-107.3 the
Court order:
a. [Wife] convey her interest in the
parties' real estate in Remlik, Virginia to
[husband], subject to his express promise to
assume, pay when due, and hold [wife]
harmless from the mortgage indebtedness
thereon in favor of Southside Bank of
Urbanna.
b. That [husband] be granted as his
separate property his tools, 19" Emerson
T.V., Emerson VCR, Marine Salvage
Consultants business and the 1979 Ford F-350
he presently possesses.
c. That [wife] not be entitled to any
interest in [husband's] pension through the
Philip Morris Retirement Plan.
d. That [wife] be granted as her
separate property the 1986 Chrysler, 1988
Suzuki, 1987 Lincoln and house contents from
Twain Court she presently possesses.
Following the submission of this memorandum, the parties
stipulated that the marital share of husband's NationsBank IRA
was $30,750 on July 1, 1994. They also stipulated that a fifty
percent portion of the marital share of husband's Philip Morris
retirement plan was $338.21 per month, after taxes. In a letter
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opinion issued October 14, 1997, the trial court indicated it
would "grant the Final Decree as originally prepared by
[husband]," but award wife $30,750 as her share of husband's
IRA. Husband filed a Motion to Rehear, challenging the court’s
proposed award, and stating, "WHEREFORE, the [husband] prays
that this Court modify its ruling by awarding [wife] $15,375.00
of the [husband's] profit sharing account."
The trial court entered the final decree on June 1, 1998.
In the final decree, the trial court found that husband's
Exhibit 11 "accurately describes the parties' marital assets
remaining subject to equitable distribution," and adopted
husband's proposed findings of fact and conclusions of law.
However, the trial court awarded wife a share of husband's
Philip Morris retirement plan and one-half of the marital share
of his IRA, as set out in the parties' stipulations. Husband
executed the decree with the objection "Seen and objected to as
the [husband] proved by the evidence presented that the marital
share of the Nationsbank individual retirement plan account was
used to pay marital debt."
Finding Regarding Marital Debt
The parties presented evidence concerning marital assets
and debts. Husband contended that he used separate property to
pay off marital debt incurred as a result of the operation and
failure of a convenience store. Wife contended that, while
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husband spent certain funds on the convenience store after the
parties separated, he was not able to prove his alleged losses.
Evidence established that the parties were joint defendants in
ongoing litigation concerning the failed convenience store.
While husband listed funds from which he withdrew money, he
failed to calculate the value of the outstanding marital debt
for which the trial court denied him credit. He failed to trace
his withdrawals to his alleged losses or to account for amounts
received from insurance or other credits.
[L]itigants have the burden to present
evidence sufficient for the court to
discharge its duty. When the party with the
burden of proof on an issue fails for lack
of proof, he cannot prevail on that
question. "The burden is always on the
parties to present sufficient evidence to
provide the basis on which a proper
determination can be made . . . ."
Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550
(1987) (citation omitted). The trial court was not required to
make a finding as to marital debt if husband failed to prove his
claims. We cannot say that the trial court erred by failing to
make such a finding concerning marital debt.
Award to Wife of IRA
In his Motion to Rehear, husband asked the trial court to
"modify its ruling by awarding [wife] $15,375.00 of the
[husband’s] profit sharing account." The court awarded wife
this amount, "less any taxes, penalties or fees associated with
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any distribution to the [wife]." Having received what he
sought, husband cannot now complain that the trial court erred
in granting his request.
Credit to Husband for Marital Debt
Husband contends that the trial court erred by failing to
ascertain the amount of marital debt. In his proposed findings
of fact, husband identified no amount of marital debt for which
he sought credit. He listed sources of funds from which he made
withdrawals, but failed to trace with specificity his marital
debt claims. The trial court was not required to ascertain an
amount not ascertainable by the evidence. See id.
Adoption of Husband's Proposed Findings of Fact
Husband contends that the trial court, having adopted his
proposed findings of fact and conclusions of law, erred by
entering an order awarding wife a share of his IRA and pension
plan despite his payment of marital debt. For the reasons
previously stated, this contention lacks merit. Moreover,
husband preserved for appeal no objection to wife’s award from
the marital share of his pension. See Rule 5A:18.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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