Jacob E. Baer, Jr. v. Ann Courtney Andrews Baer ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
JACOB E. BAER, JR.
v. Record No. 2278-94-1 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
ANN COURTNEY ANDREWS BAER
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Donald K. Butler (Player B. Michelsen;
Morano, Colan and Butler, on brief), for
appellant.
John F. Rixey (Rixey and Rixey, on brief), for
appellee.
Jacob E. Baer, Jr. (husband) appeals the decision of the
circuit court granting Ann Courtney Andrews Baer (wife) an
equitable distribution award and deciding other issues.
Husband raises the following issues on appeal:
(1) whether the trial court erred in finding
that husband's payment of the $185,000
Samarkand downpayment was a gift to the
marital estate;
(2) whether the trial court erred in
determining that marital equity arose from
the purchase and sale of Samarkand;
(3) whether the trial court erred in
determining the amount still due on a loan by
wife to husband;
(4) whether the trial court erred in
classifying the runabout boat as marital
property;
(5) whether the trial court erred in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
granting wife an equitable distribution
award; and
(6) whether the trial court erred in
awarding attorney's fees to wife, and denying
attorney's fees to husband.
Wife raises some additional issues in her brief:
(1) whether the trial court erred in failing
to award wife a divorce on the grounds of
cruelty and constructive desertion;
(2) whether the trial court erred in its
equitable distribution award;
(3) whether the trial court erred in its
spousal support award; and
(4) whether the trial court erred in
requiring wife to pay attorney fees and
costs.
The commissioner in chancery received evidence on the issues
of equitable distribution, spousal support, and the grounds for
divorce. The trial court conducted an additional inquiry into
the reasonableness of wife's attorney fees.
I. Equitable Distribution Award
Both parties challenge the equitable distribution award.
Husband challenges the commissioner's findings that Samarkand,
which was purchased during the marriage by husband as his
separate property, was marital property. Alternatively, husband
argues that even if Samarkand is marital property, there was no
equity to be divided. Wife contends that the commissioner
undervalued the marital equity and failed to classify additional
assets as marital property.
"Fashioning an equitable distribution award lies within the
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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).
"[T]he chancellor is necessarily vested with
broad discretion in the discharge of the
duties . . . [Code § 20-107.3] imposes upon
him. Unless it appears from the record that
the chancellor 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 chancellor's
equitable distribution award will not be
reversed on appeal."
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted).
We find that the evidence fails to support the trial court's
conclusion that Samarkand was marital property. The deed
conveyed Samarkand to husband as "his sole and separate estate,
free from the debts and controls of marital rights." However,
the classification of Samarkand as separate or marital property
"is determined by the statutory definition and is not determined
by legal title." Garland v. Garland, 12 Va. App. 192, 195, 403
S.E.2d 4, 6 (1991). Under the applicable statute, separate
property includes "all property acquired during the marriage in
exchange for or from the proceeds of sale of separate property,
provided that such property acquired during the marriage is
maintained as separate property." Code
§ 20-107.3(A) (1) (iii) (1990).
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The record demonstrates that the parties came to the
marriage with separate assets and took care to segregate and
maintain separate property throughout their marriage. Consistent
with this arrangement, Samarkand was treated by the parties as
husband's separate property. Husband's separate funds were used
for the down payment and husband was solely liable for the
construction financing. Husband asked for, and received, a loan
from wife to cover his expenses related to the renovation of
Samarkand. Wife admitted that husband had wanted to purchase a
home in Mathews County for years before the parties were married.
She also admitted she made no financial contributions to either
the acquisition or renovation of Samarkand, with the exception of
the $17,000 loan.
Therefore, we reverse the finding of the trial court that
Samarkand was marital property subject to equitable distribution.
Accordingly, as Samarkand was husband's separate property, wife
was not entitled to an award of any of its equity.
Wife argues that "The Barn" and Lotus Corporation were
transmuted into marital property because there was a commingling
of marital assets with husband's separate assets. The trial
court rejected wife's contentions, finding that the evidence
showed no substantial contributions to either the property or the
business. These two assets were husband's separate property
before the marriage. Wife failed to prove that these assets had
lost their identity as husband's separate assets. See Code § 20-
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107.3(A)(1)(i) and (3)(d). Therefore, credible evidence
supported the trial court's determination that these assets
remained husband's separate property.
The commissioner did not believe husband's argument that he
received only $11,500 in loans from wife and that he repaid this
loan throughout the fall of 1990. While husband asserted that he
expected wife to pay him $5,500 for the anniversary trip the
parties gave to wife's parents, the testimony established that
husband rejected the parents' offers of payment. Moreover,
husband's credibility was hurt by his post-negotiation addition
of "loan repayment" on checks sent to wife as voluntary support
payments. The commissioner found wife's version to be more
credible, and we agree that credible evidence supports the
conclusion that husband owed wife $11,000 on her loans totaling
$17,000.
Credible evidence also supports the trial court's finding
that a runabout boat worth $1,500 was marital property. The boat
was purchased during the marriage. In the absence of other
evidence, the commissioner found that the presumption that the
boat was marital property controlled. Therefore, we affirm the
trial court's finding as to the runabout boat.
In summary, we reverse the portion of the equitable
distribution award to wife which was based upon twenty-five
percent of the equity in Samarkand. We affirm the trial court's
award of $11,000 for the loan repayment to wife and $750 as
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wife's share of the value of the runabout boat.
II. Spousal Support
Both parties challenge the amount of spousal support awarded
by the court. "The determination whether a spouse is entitled to
support, and if so how much, is a matter within the discretion of
the court and will not be disturbed on appeal unless it is clear
that some injustice has been done." Dukelow v. Dukelow, 2 Va.
App. 21, 27, 341 S.E.2d 208, 211 (1986) (citations omitted).
Wife was employed prior to the marriage, and expressed an
interest in continuing employment as an accountant. However, as
the commissioner noted, the lifestyle the parties enjoyed
throughout their marriage was not compatible with regular
employment and wife's lack of employment was in accordance with
husband's wishes.
Nonetheless, wife left the five-year marriage with the same
financial resources with which she entered the marriage. As
noted by the commissioner, wife's dependency upon the parties'
high standard of living during the marriage was modified by the
short duration of the parties' marriage. See Code § 20-107.1(3)
and (4). The court's denial of wife's request for $6,000 a month
in spousal support, including $12,000 for annual travel and
clothing expenses, cannot be said to be unjust. Wife has the
training and experience to support herself.
Wife also argues that the trial court's award amounted to a
set amount of support for a fixed period of time, contrary to the
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requirement that support be based on circumstances in existence
at the time of the awarded. It is clear that the trial court
awarded wife a lump sum amount, payable over time. "The court,
in its discretion, may decree that maintenance and support of a
spouse be made in periodic payments, or in a lump sum award, or
both." Code § 20-107.1. Therefore, wife's argument is without
merit.
We cannot say the court abused its discretion in awarding
wife $10,000 as a lump sum spousal support, payable at the rate
of $1,500 per month, plus interest.
III. Grounds for Divorce
The commissioner found, and the trial court confirmed, that
there was insufficient evidence to support wife's allegations of
cruelty and constructive desertion as the grounds for divorce.
While there was evidence of some physical violence, wife admitted
that she did not form the intent to end the marriage until
husband walked out of marital counseling. The parties testified
that they continued to "date" and be intimate for several months
after wife moved out of the marital home. Therefore, there was
insufficient evidence to find that any incidents of physical
confrontation were the basis for the divorce.
Moreover, even where dual grounds for divorce exist, the
trial judge "can use his sound discretion to select the
appropriate grounds upon which he will grant the divorce."
Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d 658, 663
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(1986). The trial judge is not "compelled 'to give precedence to
one proven ground of divorce over another.'" Williams v.
Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992)
(citation omitted). The evidence established that the parties
had lived separate and apart for more than one year. Therefore,
the trial court's decision was supported by substantial, credible
and competent evidence. We cannot say the trial court abused its
discretion in granting a divorce on that ground.
IV. Attorney's Fees and Costs
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The trial court disallowed $8,850 in wife's attorney's fees
after receiving evidence that counsel pursued certain arguments
which were not reasonable after a July 1990 statutory change.
The court retained the commissioner's recommendation that husband
pay eighty percent of wife's fees. The parties were ordered to
split costs evenly. Based on the number of issues involved and
the respective abilities of the parties to pay, we cannot say
that the award was unreasonable or that the trial judge abused
his discretion in making the award.
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The trial court's award of equitable distribution of
Samarkand is reversed and all other issues raised on appeal are
affirmed. Accordingly, this cause is remanded for the entry of a
decree consistent herewith.
Reversed in part;
affirmed in part.
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