Stuart Lee Harris v. Judy Ballance Harris ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
STUART LEE HARRIS
MEMORANDUM OPINION *
v. Record No. 0162-03-2 PER CURIAM
JULY 1, 2003
JUDY BALANCE HARRIS
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(J. W. Harman, Jr.; Harman & Harman, P.C., on
briefs), for appellant.
(Thomas W. Blue, on brief), for appellee.
Stuart Lee Harris (husband) appeals the circuit court's final
decree awarding Judy Balance Harris (wife) a divorce. On appeal,
husband contends the trial court erred in finding (1) he failed to
trace the funds used to purchase the marital residence and (2) the
evidence demonstrated wife's personal efforts and funds created a
separate interest in the parties' residence. 1 Upon reviewing the
record and briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
We deny wife's "Motion to Terminate Appeal and Return Case
to Circuit Court."
On appeal, we view the evidence and all reasonable
inferences deducible therefrom in the light most favorable to
appellee, as the party prevailing below. See McGuire v.
McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990).
Background
The parties married on June 11, 1989 and separated on
October 16, 2001.
At the time of their separation, the parties resided in a
jointly-titled condominium at 1513 Regency Woods Road, which
they purchased on April 28, 1999. The parties applied the
proceeds of the sale of their previous home to purchase the
condominium. That residence, at 7104 River Road, was also
jointly titled and had been purchased by the couple on
November 1, 1989. From the time they were married until they
purchased the River Road property, the couple resided at 4504
West End Drive in Richmond. Husband had owned that residence
since 1965 and had used it as rental property. However, prior
to its sale on October 31, 1989, the property had been retitled
to the couple as tenants by the entireties. The couple applied
the proceeds from the sale of the West End Drive property
towards the purchase of the River Road property. They also
applied funds from a jointly-obtained purchase money loan.
Wife used $15,000 of her own funds to renovate the West End
Drive house extensively before its sale. Additionally, she
performed numerous refurbishing jobs, including painting,
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wallpapering, and cleaning the residence. She worked similarly
on the River Road property. She contributed financially to the
maintenance of each of the parties' marital abodes.
Analysis
Marital property includes "all property titled in the names
of both parties" and property acquired by either spouse during
the marriage "in the absence of satisfactory evidence that it is
separate property." Code § 20-107.3(A)(2). Separate property
is:
(i) all property, real and personal,
acquired by either party before the
marriage; (ii) all property acquired during
the marriage by bequest, devise, descent,
survivorship or gift from a source other
than the other party; (iii) 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; and (iv) that part of
any property classified as separate pursuant
to subdivision A 3.
Code § 20-107.3(A)(1). Subdivision (A)(3) includes provisions
allowing the court to find separate property exists, even when
marital and separate property are "commingled" in some manner,
"to the extent the contributed property is retraceable by a
preponderance of the evidence and was not a gift." See, e.g.,
Code § 20-107.3(A)(3)(d), (e) and (f).
The Regency Woods Road condominium, purchased during the
marriage, was jointly titled and, therefore, was presumed to be
marital property. Therefore, the burden was on husband to prove
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that the property could be traced to his separate funds. See
Rexrode v. Rexrode, 1 Va. App. 385, 392, 339 S.E.2d 544, 548
(1986). To classify all or a portion of such property as
separate and not marital, "the circumstances of each case" must
allow the court to trace the spouse's contribution back to
separate property. von Raab v. von Raab, 26 Va. App. 239, 248,
494 S.E.2d 156, 160 (1997).
The trial court found husband failed to present sufficient
evidence to trace the purchase of the home to his separate
funds. We will not overturn that factual finding unless plainly
wrong or without evidence to support it. See Gilman v. Gilman,
32 Va. App. 104, 115, 526 S.E.2d 763, 768 (2000).
The record demonstrates only that husband purchased the
West End Drive property in 1965 and that when the couple sold
the by-then jointly-titled residence in 1989, they received
$58,335.58 in proceeds. They used those funds and others to
purchase the River Road property. However, by the time the
couple sold the West End Drive property, wife had contributed
$15,000 of her separate property towards its renovation and had
expended her own labor on repairing and refurbishing the
residence. Thus, she contributed significantly to the
property's increase in value.
The West End Drive property was transmuted into marital
property when it was retitled. We cannot say as a matter of law
that husband proved by a preponderance of the evidence that he
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retained separate interest that was traceable through the River
Road property to the jointly-owned Regency Woods Road
condominium. Thus, the record supports the trial court's
conclusion that the condominium was marital property. 2
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
2
Because we find the trial court did not err in determining
the residence was marital property, we need not address wife's
contention that the trial court erred by failing to find husband
gave as a gift an interest in the West End Drive property when
the property was jointly retitled.
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