Rebecca Ruth Robinson Dowdy v. Otis L. Dowdy ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
REBECCA RUTH ROBINSON DOWDY
MEMORANDUM OPINION *
v. Record No. 0074-98-3 PER CURIAM
AUGUST 25, 1998
OTIS L. DOWDY
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge
(Stephen B. Hebblethwaite, on brief), for
appellant.
(Valeria L. Cook, on brief), for appellee.
Rebecca Ruth Robinson Dowdy appeals the final divorce decree
entered by the circuit court. The decree granted her husband,
Otis L. Dowdy, a divorce on the grounds of the parties' one-year
separation, divided the parties' property, and set permanent
spousal support. The circuit court had earlier referred child
custody and support matters to the juvenile and domestic
relations district court. On appeal, wife raises ten questions
concerning the trial court's decisions on equitable distribution,
spousal support, attorney's fees, and the conduct of the trial.
1
We address each question below. Upon reviewing the record and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Wife listed additional questions for which she failed to
provide any argument. "Statements unsupported by argument,
authority, or citations to the record do not merit appellate
consideration." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Accordingly, we do not address these
issues.
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the judgment of the
trial court. See Rule 5A:27.
Equitable Distribution
Wife contends that the trial court abused its discretion
when making its equitable distribution award by: (1) ordering an
approximately equal division of the marital estate in light of
wife's nonmonetary contributions to the acquisition and
maintenance of the marital estate; (2) ordering wife to refinance
the marital home and pay husband $26,500 for his interest
therein; (3) awarding wife less than fifty percent of the marital
share of husband's Virginia Retirement System (VRS) pension; (4)
failing to classify each item of personal property; (5) awarding
to husband certain personal property; and (6) excluding evidence
regarding the classification of the parties' property.
Wife contends that her extensive nonmonetary contributions
warranted an award of more than half the marital estate. The
evidence demonstrated that husband made the greater monetary
contributions but that wife made greater nonmonetary
contributions. Wife also worked early in the marriage and at
other times throughout the marriage.
"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
-2-
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 trial court indicated that it considered the statutory
factors set out in Code § 20-107.3(E), and we find no indication
that the trial court misapplied those statutory factors. The
parties were married for over twenty-five years. Husband was in
good health. Wife described her health as "fragile" due to both
physical and emotional problems. Both parties testified that
wife contributed extensively to the family's welfare by
maintaining the family home, managing the day-to-day needs of the
family, and handling financial matters. Wife conceded on
cross-examination that husband also made nonmonetary
contributions to the family. Husband made the greater monetary
contributions through his employment as an educator.
The marital home had a value of $127,000, with an
outstanding first mortgage of $61,999. An equity credit line
secured by the home had a balance of $10,767 at the time of
separation. Wife withdrew an additional $29,233 on the credit
line at the time of the separation. The trial judge awarded the
husband $26,500 for his share of the marital home. In addition,
wife received $19,500 for her share of the Sunnyvale property,
valued at $30,000, and subject to a $3,320 credit to wife for her
-3-
separate contribution. Wife was ordered to pay less than half
the outstanding balance on the parties' credit card, which had a
balance of $10,385 at separation.
Wife received the marital home, credit of more than half the
value of the Sunnyvale property, fifty-five percent of her
pension and forty-five percent of husband's pension. We find no
support for wife's contention that she received an inadequate
share of the parties' marital assets. We also find no support
for wife's assertion that the court required her to refinance the
marital home.
Wife further contends that the trial court abused its
discretion by awarding her forty-five percent of the marital
share of husband's VRS pension. Under Code § 20-107.3(G)(1), no
award of a percentage interest in a pension may exceed fifty
percent of the marital share. The trial court awarded husband a
forty-five percent interest in the marital share of wife's
pension. As Virginia law has no presumption favoring equal
division of marital property, see Papuchis v. Papuchis, 2 Va.
App. 130, 132, 341 S.E.2d 829, 830-31 (1986), we cannot say that
the trial court's division of husband's retirement benefits, as
part of the entire equitable distribution award, was an abuse of
discretion.
Wife also contends that the trial court abused its
discretion by failing to classify each item of personal property
and by failing to award her property which she claimed were gifts
-4-
or inherited. The parties each presented evidence as to the
classification and value of their personal property. The record
demonstrates that wife claimed virtually all property as either
her own separate property or, at a minimum, marital property that
she wanted. Very few items out of over five hundred were
conceded by her to be property to which husband could assert any
claim. "A person who claims ownership to property by gift must
establish by clear and convincing evidence the elements of
donative intent and actual or constructive delivery." Dean v.
Dean, 8 Va. App. 143, 146, 379 S.E.2d 742, 744 (1989) (citing
Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 632 (1968)).
Wife had the burden to prove that the items she claimed as her
separate property were intended to be separate gifts to her, not
to the family. Husband specifically testified, in response to a
question from the court, that a piano, dining room table and
chair, claimed by wife to be gifts, were purchased during the
marriage with marital funds. Husband further testified that he
believed all the items were accumulated during the marriage. The
trial court heard the parties testify and was entitled to
determine their credibility. On appeal, moreover, wife has not
pointed with specificity to any item concerning which the trial
court was demonstrably in error in its classification.
Therefore, as the trial court had evidence, which it found
credible, upon which to base its decision concerning the parties'
personal property, we cannot say on the record before us that it
-5-
abused its discretion in awarding husband the designated items.
Wife also argues that the trial court erred by denying her
the opportunity to rebut the presumption that property acquired
during the marriage was marital. The parties were informed of
the time constraints on the presentation of evidence. Wife was
provided sufficient opportunity to present her case. Moreover,
wife's contention that she was not allowed to introduce her
father's will into evidence is not supported by the record.
In addition, wife contends that the trial court erred by
refusing to admit her exhibit 23, which was a list typed by wife
of gifts given to her by her father, purportedly signed by him
and dated in October 1994. Wife attempted to authenticate the
signature by testifying that she recognized the signature as her
father's and that her father signed the document in her presence.
The record indicates that the court admitted wife's exhibit 23,
subject to husband's objection to its authentication. The
document itself contained hearsay, as it was presented to prove
the truth of its out-of-court statements, i.e., that wife's
father gave wife all the items listed.
"Hearsay evidence is testimony in court, or
written evidence, of a statement made out
of court, the statement being offered as an
assertion to show the truth of matters
asserted therein, and thus resting for its
value upon the credibility of the
out-of-court asserter."
Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781
(1977) (citation omitted). Wife's father was deceased.
-6-
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). The
court stated, "I will consider it for the record after I have had
an opportunity to review it." There is no further reference to
the exhibit in the record, and it is unclear the extent to which
the trial court considered this document. The trial court's
refusal to admit this document, which the record does not
definitively establish, was not error. It was clearly hearsay.
Pendente Lite Spousal Support
Wife contends that the trial court abused its discretion
when it suspended her pendente lite spousal support and
subsequently denied her motion to reinstate the support.
"Whether to grant pendente lite support lies within the sound
discretion of the trial judge." Weizenbaum v. Weizenbaum, 12 Va.
App. 899, 905, 407 S.E.2d 37, 40 (1991). Cf. Frazer v. Frazer,
23 Va. App. 358, 375-76, 477 S.E.2d 290, 298 (1996) (abuse of
discretion to limit pendente lite support to three-month period
when wife had demonstrable need and no rationale appeared in the
record to justify the time limitation).
The record demonstrates that the trial court suspended
wife's pendente lite support after granting her request for a
third continuance. The first continuance was due to an emergency
concerning the parties' child. However, the next two
-7-
continuances were sought by wife for health-related reasons. In
granting the third continuance, the court noted that "there will
be no further continuances granted in this case unless one of the
parties is hospitalized." Based upon the record, we find no
abuse of discretion in the trial court's decision to suspend
wife's pendente lite spousal support upon its granting of her
motion to continue.
Attorney's Fees and Costs
Wife contends that the trial court abused its discretion by
failing to award her 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. See 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. See McGinnis
v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).
Based on the number of issues involved, each party's cooperation
in moving the matter forward, and the respective abilities of the
parties to pay, we cannot say that the trial court abused its
discretion in ordering the parties to bear their individual
attorneys' fees and costs.
Spousal Support
Wife further contends that the trial court abused its
discretion when it awarded her only $375 per month in spousal
support. "[T]he decision to award spousal support rests within
-8-
the sound discretion of the trial court. However, such
discretion is not absolute and is subject to review for abuse."
Via v. Via, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992).
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the nine factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on
appeal except for a clear abuse of
discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
Wife contends that husband's greater income, her current
inability to hold gainful employment, the length of the marriage,
the standard of living established during the marriage, and the
expenses for which wife was obligated under the equitable
distribution award demonstrate that the trial court abused its
discretion in awarding her only $375 in monthly spousal support.
Husband's gross monthly income was $4,571. Husband's expenses
include costs for the parties' children, including $400 per month
in fees for the school placement of the younger child, and
college-related costs for the older child.
Wife claimed monthly expenses of $3,360 and only $65 in
monthly interest income. On cross-examination, wife testified
that some of her listed costs were attributable to real estate
work, although she was not currently working. Wife had separate
earnings through 1994, although the annual amount varied from
-9-
$1,223 in 1986 to more than $23,000 as recently as 1993. In
addition, wife testified that she had over $77,000 in separate
funds in 1995. She admitted that she had inherited her father's
home, but she was unwilling to rent it. Wife claimed a number of
items of personalty on the basis that she purchased them after
the separation.
Wife received the marital home, subject to its outstanding
mortgages. A portion of the debt encumbering the marital home
was wife's debt of $29,233, which she withdrew on the equity
credit line after the separation. While wife was ordered to pay
husband $26,500 for his interest in the marital home, husband was
ordered to pay wife $19,500 for her interest in the Sunnyvale
property. Thus, the net payment by wife was substantially less
than $26,500. Wife was also ordered to pay $4,000 in credit card
debt and ordered to pay her own attorney's fees and costs.
The record demonstrates that the trial court considered all
the statutory factors, including the evidence of wife's current
inability to work. The trial court heard the parties testify,
and its determination of the parties' credibility is inherent in
its weighing of the evidence. We cannot say, based upon the
record, that the trial court's decision was an abuse of
discretion.
Referral to Commissioner in Chancery
Wife argues that the trial court abused its discretion when
it refused to hear evidence of her fault-based grounds of divorce
-10-
ore tenus. This argument is without merit. The trial court
ruled that, if wife wished to present evidence to support the
fault grounds of divorce alleged in her cross-bill,
all matters regarding the fault grounds of
divorce shall be referred to a Commissioner
in Chancery to take evidence and report his
findings and recommendations to the Court
and the cost for the Commissioner shall
initially be paid by [wife] in advance
subject to reallocation by the Court.
We find no abuse of discretion in the trial court's ruling.
Wife was neither precluded from presenting her evidence nor
ordered to pay the full final costs associated with the
commissioner's hearing. "We find it entirely compatible with the
practice and statutory law of the Commonwealth for a court to
refer questions regarding the circumstances and factors which
contributed to the dissolution of the marriage to a commissioner
in chancery." Klein v. Klein, 11 Va. App. 155, 159, 396 S.E.2d
866, 869 (1990).
The use of commissioners in chancery
has been of long standing in Virginia.
Code § 8.01-607 authorizes each circuit
court to "appoint such commissioners in
chancery as may be deemed necessary for the
convenient dispatch of the business of the
court." The question of when it is proper,
or may be useful, to resort to the aid of a
commissioner is one which addresses itself
to the sound discretion of the court.
Id. The trial court did not abuse its discretion in requiring
that the party asserting fault grounds pay the initial expenses
attributable to pursuing those allegations. Wife was not denied
the chance to present evidence supporting her allegations of
-11-
fault, and her contention otherwise is not supported by the
record.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
-12-