William Stewart v. Alice Despart, f/k/a A. Stewart ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
WILLIAM I. STEWART
MEMORANDUM OPINION * BY
v. Record No. 1570-97-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 31, 1998
ALICE DESPARD, F/K/A
ALICE STEWART
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Raymond B. Benzinger (Mary M. Benzinger;
Benzinger & Benzinger, on brief), for
appellant.
Edward V. O'Connor, Jr. (Byrd, Mische, Bevis,
Bowen, Joseph & O'Connor, on brief), for
appellee.
William I. Stewart (husband) appeals the decision of the
trial court in a hearing on remand from this Court in favor of
Alice Despard (wife). Husband contends that the trial court
erred in its valuation of the marital business, its determination
of the equitable distribution award, and its ruling that no
material change of circumstances justified altering the parties'
child custody arrangement. We affirm the decision of the trial
court.
On December 18, 1992, the Circuit Court of Arlington County
entered a final decree of divorce between the parties. The
decree awarded wife sole custody of the parties' child, Dillon,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
awarded the marital business, a restaurant and bar called
Roratonga Rodeo, to wife, and found that Roratonga Rodeo had no
value. In an unpublished opinion, this Court reversed the
court's finding that Roratonga Rodeo had no value as unsupported
by the evidence, and remanded for further proceedings. Prior to
the hearing on remand, husband filed a series of motions
regarding Dillon, including a petition for change in custody.
The court consolidated all pending issues for a hearing on April
21, 1997.
I.
Valuation
Husband contends that the trial court erred in valuing
Roratonga Rodeo at $40,000. On appeal, we will not disturb a
trial court's valuation of property unless it is plainly wrong or
without evidence to support it. Gamble v. Gamble, 14 Va. App.
558, 563, 421 S.E.2d 635, 638 (1992) (citing Schoenwetter v.
Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)). We
view the evidence in the light most favorable to wife, the party
prevailing below. Id. (citing Schoenwetter, 8 Va. App. at 605,
383 S.E.2d at 30).
Husband first contends that the court erroneously
disregarded the uncontradicted testimony of his valuation expert,
Arthur Jackson-Early, that Roratonga Rodeo was worth between
$60,000 and $66,000. We disagree. The court stated that it had
taken Jackson-Early's testimony into account in valuing the
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business at $40,000, and specifically cited Jackson-Early's
testimony that a bar across the street had sold for $55,000.
Furthermore, the court "has the discretion to accept or reject
any of [an expert] witness' testimony." Street v. Street, 25 Va.
App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc). The court,
therefore, was not required to uncritically accept
Jackson-Early's valuation, but could accept or reject portions of
the testimony as warranted by the evidence as a whole.
Husband next contends that wife's valuation of Roratonga
Rodeo was not in evidence and that, therefore, Jackson-Early's
valuation was uncontradicted. This argument lacks merit. In her
opening statements, without objection, wife gave the court the
appendices from the prior appeal to this Court, which contained
transcripts of the 1992 hearing. The trial judge informed the
parties that he expected to examine the transcripts and that
testimony found in the transcripts need not be repeated. 1 At the
earlier hearing, wife testified, "I would say it is worth about –
with the equipment in there and all, you know, it is about
twenty thousand dollars." The record makes clear that the trial
court considered wife's testimony as contained in the transcripts
of the November 1992 hearing to be in evidence.
Husband argues that the court erred in relying on the sale
1
At oral argument, counsel for husband argued that the court
admitted the transcript on the issue of child custody, but not on
the issue of valuation. This argument is not supported by the
record.
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of husband's nearby Amdo Rodeo bar for $55,000 because no
evidence establishes the similarities between the two bars.
Husband's own witness, Jackson-Early, testified he considered the
sale of Amdo Rodeo for $55,000 in determining the value of
Roratonga Rodeo, but distinguished the value of the two bars on
the basis that husband had opened a third bar in the same area,
called Bardo, and that the new owner of Amdo changed the name and
format of Amdo. In light of this testimony, the trial court did
not abuse its discretion in considering the sale of Amdo Rodeo in
valuing Roratonga Rodeo. The court could properly conclude that
Jackson-Early's distinctions between the bars were unpersuasive.
The court could also properly conclude that the factors
Jackson-Early relied upon to discount the price of Amdo Rodeo
applied equally to Roratonga Rodeo, as all three bars were in
competition and wife had changed the name of Roratonga Rodeo to
Galaxy.
Thus, in valuing Roratonga Rodeo, the trial court had before
it wife's valuation of $20,000, Jackson-Early's valuation of
$60,000-$66,000, and a comparable sale of $55,000. The court was
not required to accept the testimony of an expert over the
testimony of a party. Stratton v. Stratton, 16 Va. App. 878,
883, 433 S.E.2d 920, 923 (1993). Confronted with a range of
values, the court was within its discretion to value the business
within that range. Aster v. Gross, 7 Va. App. 1, 9, 371 S.E.2d
833, 838 (1988).
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II.
Equitable Distribution Award
Husband contends that the court erred in awarding him only
$10,000 of the $40,000 value of Roratonga Rodeo. 2 The court
found that after a review of all the evidence "and a
consideration of all the factors contained in Va. Code
§ 20-107.3(E), that [husband's] marital share of Roratonga Rodeo
should be reduced by $10,000.00 to offset [wife's] efforts at
running the business between March, 1991 and November, 1992
leaving an equitable distribution award to [husband] in the sum
of $10,000.00." It is well established that "the division or
transfer of marital property and the amount of any monetary award
are matters committed to the sound discretion of the trial
court." Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d
809, 812 (1996), aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996)
(en banc) (mem.). Therefore, we will not disturb the court's
award 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).
The evidence before the court establishes that wife had been
2
Husband also argues that wife did not present sufficient
evidence of tracing to warrant treating a portion of this asset,
valued at $40,000, as wife's separate property. See, e.g., von
Raab v. von Raab, 26 Va. App. 239, 248-49, 494 S.E.2d 156, 160-61
(1997). The court's decision makes clear, however, that its
decision to award husband $10,000 of the $40,000 value of
Roratonga Rodeo was based on equitable distribution principles,
rather than classification principles. Evidence of tracing was
therefore not needed.
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solely responsible for Roratonga Rodeo from the time of the
parties' separation. Although wife employed two managers to
supervise Roratonga Rodeo at night, she was solely responsible
for the financial, tax, and licensing aspects of the business.
During the period of time wife was responsible for the club,
husband opened a competing restaurant/bar across the street, and
began preparations to open a third restaurant/bar on the same
street. As a result of these competing businesses, the gross
sales of the Roratonga Rodeo dropped from roughly $20,000 per
month to roughly $10,500 per month. This evidence supports the
court's decision to award wife 75% of the value of Roratonga
Rodeo, and the court did not abuse its discretion in determining
the equitable distribution award.
III.
Change of Custody
Finally, husband contends that the court erred in refusing
to alter the child custody arrangement from wife's sole custody
to joint custody. The court found that no material change of
circumstances had taken place which would justify modification of
custody. Our standard of review regarding a modification of
custody is well established:
On appeal, we review the evidence in the
light most favorable to the prevailing party
below. Peple v. Peple, 5 Va. App. 414, 422,
364 S.E.2d 232, 237 (1988). "The trial
court's decision, when based upon an ore
tenus hearing, is entitled to great weight
and will not be disturbed unless plainly
wrong or without evidence to support it."
Venable v. Venable, 2 Va. App. 178, 186, 342
6
S.E.2d 646, 651 (1986).
Hughes v. Gentry, 18 Va. App. 318, 321-22, 443 S.E.2d 448, 451
(1994).
In Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921
(1983), the Supreme Court of Virginia established the standard
for modification of child custody on the basis of changed
circumstances: "first, has there been a change in circumstances
since the most recent custody award; second, would a change in
custody be in the best interests of the children." In order to
allow a change of custody, a change in circumstances must be
material, i.e., "an actual change." Kaplan v. Kaplan, 21 Va.
App. 542, 548, 466 S.E.2d 111, 114 (1996); see Featherstone v.
Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979). The party
seeking a change in custody bears the burden of proof. Hughes,
18 Va. App. at 322, 443 S.E.2d at 451.
Husband argues that Dillon's poor performance in school and
wife's failure to facilitate Dillon's extracurricular activities
constitute changed circumstances. Dillon's report card for the
first semester of the 1996-97 school year shows that he received
the highest grade in forty out of fifty areas of development, and
received the second-highest grade on the remainder. The report
card also shows that over the course of the semester, Dillon was
absent three days and tardy four days. On one occasion, wife
failed to take Dillon to the second day of a swim meet. We find
that the court was within its discretion to find that this
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evidence did not establish a material change of circumstances.
Husband argues that he has more time than wife to care for
Dillon and that his superior availability, as well as an
"informal" visitation arrangement between the parties,
constitutes changed circumstances. Husband testified that he had
become "redundant" at work and only worked five hours per day.
Wife, however, only worked two nights a week. Wife maintained
the court-ordered visitation schedule, with the exception of one
occasion, on which she withheld husband's visitation in
retaliation for husband retaining Dillon for an extra night
without authorization. In addition to finding that husband's
claims of superior availability had been previously adjudicated,
the court found that they did not amount to a material change in
circumstances. We find that this ruling is supported by evidence
in the record, and we will not disturb the trial court's finding.
Husband also contends that wife's admission of marijuana use
constitutes a material change in circumstances. Wife admitted
that she had used marijuana "probably twice a year" and that her
husband smokes marijuana occasionally. She stated, "My marijuana
use does not impact Dillon at all." Contrary to husband's
argument, wife did not admit that she or her husband has ever
used marijuana while Dillon was present or in the house; indeed,
she did not admit that she or her husband used it in their home.
The court expressed its concern over wife's marijuana use, and
ordered wife to present herself for substance abuse assessment,
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and to successfully complete any treatment ordered. Given the
evidence in the record, we cannot find that the court abused its
discretion in finding that no material change of circumstances
had occurred, and fashioning a remedy it found appropriate under
the evidence presented. The court ordered wife to receive
substance abuse treatment, and to refrain from using any illegal
substances.
Finally, husband argues that the court erred in not finding
that the best interests of the child required joint custody. 3
Before addressing the best interests of the child, a court must
find a material change in circumstances. Bostick v.
Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323 (1996)
(citing cases). If a court does not find a material change of
circumstances, consideration of the "best interests" prong of the
Keel test is barred by principles of res judicata. Hiner v.
Hadeed, 15 Va. App. 575, 580, 425 S.E.2d 811, 814 (1993).
Accordingly, the trial court properly refused to reach the issue
of the best interests of the child, given that it did not find a
material change in circumstances.
For the above reasons, we affirm the decision of the trial
court.
Affirmed.
3
Husband also argues that the court should have altered the
visitation schedule. Husband did not present this argument to
the trial court, and is thus barred from asserting it on appeal.
Rule 5A:18.
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