John R. Maxey v. Willavene H. Maxey ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
JOHN R. MAXEY
MEMORANDUM OPINION * BY
v. Record No. 2692-96-2 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 23, 1997
WILLAVENE H. MAXEY
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
(Theresa Rhinehart, on brief), for appellant.
Appellant submitting on brief.
Robert G. Cabell, Jr. (Robert Cabell &
Associates, on brief), for appellee.
John R. Maxey (husband) appeals the equitable distribution
order of the trial court which confirmed the commissioner in
chancery's finding that Willavene H. Maxey (wife) was entitled to
certain percentage interests in two parcels of real property.
Finding no error, we affirm.
The parties were married in June 1982, each for the second
time. After numerous separations, wife filed for divorce in
September 1990. In August 1991, the trial court referred the
matter to a commissioner in chancery, directing the commissioner
to report on a classification and distribution of the parties'
property. Hearings before the commissioner were held in November
1991, and the commissioner's report was filed February 29, 1996.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The final decree of divorce, entered in October 1996, confirmed
the commissioner's report on the issue of equitable distribution.
This appeal involves the distribution of two parcels of real
estate, the Hanover property and the Buckingham property. When
the parties were married in 1982, husband owned, outright, the
home in which they lived. The record contains no evidence to
establish the value of the home at the time of the marriage. The
evidence established that both parties worked until husband
became totally disabled in 1983 or 1984; wife continued to work
thereafter. Sometime after the marriage, husband put a new
kitchen in the home. The record contains no evidence to
establish the value of the new kitchen. Wife's testimony showed
that she contributed monetarily to the purchase of paint, floor
tile, and wooden ceiling beams used to improve the home. The
record contains no evidence to establish the value of these
improvements.
In 1983, husband purchased approximately fifteen acres of
land, upon which a new home for the parties was built (the
Hanover property). Husband used his "disability money" to make a
down payment of $20,000 on the land; he signed a deed of trust
for the remaining $25,000. The first home was sold and cleared
approximately $130,000. Husband testified that he used the
$130,000 to pay for construction of the new home. The record
contains no evidence to establish the total cost of construction.
In 1987, husband purchased approximately 102 acres of land
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(the Buckingham property), for a purchase price of $55,000.
Husband received credit on the purchase price in the amount of
$15,000 for a camper, an antique car and certain livestock that
he transferred to the seller. The camper was purchased during
the marriage and was titled in the names of both parties. The
record contains no evidence to establish the value of the camper.
Husband testified that wife did not contribute to the purchase
of the camper or payments made on it, but the record contains no
evidence to establish which assets husband used for the purchase
of the camper. The record contains no evidence to establish the
value or source of either the antique car or the livestock
transferred to the seller of the Buckingham property.
The commissioner's hearing was held in November 1991. By
the fall of 1995, the commissioner's report had not been filed,
and the parties requested the commissioner to make a limited
finding with respect to a percentage of ownership of the parcels.
In consideration of the standards set forth in Code § 20-107.3,
the commissioner found that wife's share of the Hanover property
should be 35% and that her share of the Buckingham property
should be 20%. Upon wife's motion to approve the commissioner's
report, the trial court concluded that the record contained
sufficient evidence to support the commissioner's findings.
I.
On appeal, husband alleges error in the classification of
the two parcels of real estate. He concedes that the assets used
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to purchase the parcels were "transmuted" and, thus, that both
parcels became marital property. See Code § 20-107.3(A)(3)(e).
He contends, however, that his contributions were "retraceable"
and should have been classified as his separate property. Id.
Husband's appellate contention on the issue of
classification is belied, and procedurally barred, by the
position he took in requesting the commissioner in chancery to
recommend a percentage distribution of both parcels in their
entirety. The request for a percentage distribution of the
entire value of the parcels was, by its very nature, an
abandonment of a request that the commissioner determine certain
portions of the parcels to be separate property and thus, by
definition, not subject to distribution. The parties themselves,
in other words, considered the entirety of the parcels to be
marital property subject to distribution; classification was not
an issue. Thus, even assuming the classification was in error,
husband acquiesced in it. "`He cannot approbate and
reprobate--invite error and then take advantage of his own
wrong.'" Steinberg v. Steinberg, 21 Va. App. 42, 50, 461 S.E.2d
421, 424 (1995) (quoting Sullivan v. Commonwealth, 157 Va. 867,
878, 161 S.E. 297, 300 (1931)).
In the alternative, even assuming husband had established
that his contributions could be traced, he failed to prove the
extent to which, if any, those contributions were separate
property. See Brett R. Turner, Equitable Distribution of
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Property § 5.23 (2d ed. 1994) (explaining that tracing requires
the owner to prove a series of exchanges extending back to an
original separate asset). Here, the evidence does not establish
the value of the first home at the time of the marriage.
Subsequent to the marriage, the home was improved by the addition
of a new kitchen, a paint job, tile work and the addition of
wooden ceiling beams. The evidence does not establish the value
of any of the improvements or the extent to which marital assets
were used for their acquisition. Thus, we cannot determine the
extent to which the first home was separate property.
Furthermore, the evidence does not establish the nature or source
of husband's "disability money." Accordingly, we cannot
determine the extent to which, if any, the "disability money" was
separate property. See Brinkley v. Brinkley, 5 Va. App. 132,
140-41, 361 S.E.2d 139, 143 (1987); Turner, supra at § 6.16.
Finally, the evidence does not establish the extent to
which, if any, the contributions of personal property toward the
purchase of the Buckingham property were themselves separate
property. The camper was purchased during the marriage and was
titled in both parties' names, and the evidence did not establish
a source of funds for the purchase. Even assuming husband paid
the entire amount, the evidence fails to establish whether or not
the funds he used were separate property. In any event, the
evidence does not show what amount of the $15,000 credit the
camper represented, if any, and the evidence fails to establish
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the value or source of the antique car or livestock also
contributed.
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II.
The standard of review of the trial court's equitable
distribution is well established.
[U]nless it appears from the record that the
trial judge 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 equitable
distribution award will not be reversed on
appeal.
Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 729 (1990). We
review the evidence and all reasonable inferences in the light
most favorable to the prevailing party below, wife in this
instance. See Alphin v. Alphin, 15 Va. App. 395, 399, 424 S.E.2d
572, 574 (1992). We find no abuse of discretion in the trial
court's decision to confirm the equitable distribution
recommendation of the commissioner in chancery in the present
case.
The percentage distribution figures at issue here represent
a balancing of all the factors of Code § 20-107.3(E), not simply
the monetary contributions to the acquisition of the property as
husband would suggest. Under the statute, consideration must
also be given to the parties' non-monetary contributions both to
the well-being of the family and to the acquisition, care and
maintenance of the marital property. Here, neither party
suggests that their marriage was anything but "stormy."
Nonetheless, the record contains evidence to show that wife
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contributed to the well-being of the family both monetarily, by
putting her work money to household use, and non-monetarily, by
cooking, shopping, cleaning, gardening and the like.
Furthermore, while there is no dispute that wife made little or
no contribution to the acquisition of the marital property, the
record contains evidence to establish that wife contributed to
the care and maintenance of the marital property. Moreover,
although riddled with problems, including numerous periods of
separation, fourteen years separated the date of marriage from
the date of divorce. The evidence also showed that, when the
decree was entered, both parties were in their late sixties and
both were disabled to some extent. And, while neither party
disputes that the marriage was "doomed from the start," both
accept equal responsibility for the circumstances and factors
which contributed to the dissolution of the marriage. In
addition, the record establishes that both parcels of real estate
were acquired during the course of the marriage and both are
non-liquid assets. Finally, contrary to husband's contention
that he would bear the entire burden of outstanding debt and tax
liability on the parcels, the percentage distribution, by
definition, ensures that wife will bear a proportion of those
liabilities.
Both the commissioner and the trial court stated that they
had considered the relevant factors, and the record supports the
decision. We accordingly find no abuse of discretion, and affirm
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the decision of the trial court.
Affirmed.
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