Lois A. Apelt v. Egon R. Apelt ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
LOIS A. APELT
MEMORANDUM OPINION *
v. Record No. 0081-97-1 PER CURIAM
SEPTEMBER 9, 1997
EGON R. APELT
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
(Andrew R. Sebok, on brief), for appellant.
(Halbert T. Dail, on brief), for appellee.
Lois Apelt (wife) appeals the decision of the circuit court
granting Egon Apelt (husband) a divorce and deciding other
issues. Wife argues that the trial court erred by (1) awarding
husband a divorce on the grounds of cruelty and desertion,
(2) failing to classify all property titled in both parties'
names or in their joint names as marital property, and (3)
failing to divide the marital estate equally between the parties.
Upon reviewing the record and briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. Rule 5A:27.
The evidence was received by a commissioner in chancery.
The commissioner's report
should be sustained unless the trial court
concludes that the commissioner's findings
are not supported by the evidence. This rule
applies with particular force to a
commissioner's findings of fact based upon
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence taken in his presence, but is not
applicable to pure conclusions of law
contained in the report. . . . [W]here the
chancellor has disapproved the commissioner's
findings, this Court must review the evidence
and ascertain whether, under a correct
application of the law, the evidence supports
the findings of the commissioner or the
conclusions of the trial court. Even where
the commissioner's findings of fact have been
disapproved, an appellate court must give due
regard to the commissioner's ability, not
shared by the chancellor, to see, hear, and
evaluate the witnesses at first hand.
Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984)
(citations omitted).
I.
The commissioner found sufficient evidence to award husband
a divorce on the grounds of cruelty and desertion. "It would
appear to your Commissioner from the course of conduct of [wife]
that her interest in [husband] during the marriage was limited to
her access to his property, money and accounts, and that she made
his life intolerable when [husband] resisted her efforts to spend
his resources." The trial court confirmed the commissioner's
report on the grounds for divorce, and evidence in the record
before us fully substantiates the commissioner's conclusion that
wife was guilty of cruelty and desertion.
II.
Wife contends that the trial court erred when it failed to
find that all property jointly titled was marital property.
While the commissioner found that the marital residence and stock
owned by husband prior to the marriage had been transmuted into
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marital assets, the trial court found no evidence of donative
intent and overruled the commissioner's finding. Our review of
the record demonstrates that the trial court properly applied the
law to the evidence before it.
"[W]hether the property is separate or marital 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 Virginia's equitable distribution statute,
[w]hen separate property is retitled in the
joint names of the parties, the retitled
property shall be deemed transmuted to
marital property. However, to the extent the
property is retraceable by a preponderance of
the evidence and was not a gift, the retitled
property shall retain its original
classification.
Code § 20-107.3(A)(3)(f). The statute further provides that
"[n]o presumption of gift shall arise under this section where
. . . existing property is conveyed or retitled into joint
ownership." Code § 20-107.3(A)(3)(g).
Virginia does not presume a gift simply by
virtue of jointly titling or retitling
property. A party claiming entitlement to
rights and equities in marital property by
virtue of an interspousal gift must prove the
donative intent of the donor spouse and the
nature and extent of the donor's intention.
Lightburn v. Lightburn, 22 Va. App. 612, 616-17, 472 S.E.2d 281,
283 (1996) (citation omitted). See also Theismann v. Theismann,
22 Va. App. 557, 565, 471 S.E.2d 809, 813 (1996). As the party
seeking to prove a gift, wife bore the burden of proving "every
fact and circumstance necessary to constitute a valid gift by
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clear and convincing evidence." Rust v. Phillips, 208 Va. 573,
578, 159 S.E.2d 628, 631 (1968).
The trial court found that wife presented no evidence of
donative intent and that, upon reviewing the evidence, the record
did not prove husband intended to make a gift to wife of the
property. While husband nullified the parties' pre-nuptial
agreement, against the advice of counsel, and with the recitation
that it was done in consideration for the parties' love for each
other, the record reflects that husband sought to obtain peace
from wife's badgering. Wife awakened husband at night;
stockpiled goods in her room; accused husband of poisoning his
previous wife, who died from cancer; and accused husband of
feeding her ground glass. Husband testified that wife's repeated
demands to change his will and revoke the pre-nuptial agreement
were "very nerve wracking" and he eventually made the changes
wife wanted in the unsuccessful hope that it would resolve the
conflicts. Husband lost weight. His son testified husband grew
"haggard and worn."
Based upon our review of the evidence, we cannot say that
the trial court erred in determining that husband's revocation of
the pre-nuptial agreement and titling the marital residence in
both names did not indicate a donative intent on his part and
that wife failed to carry her burden to prove a gift. Therefore,
we find no error in the trial court's classification of these
assets.
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III.
Wife contends that the trial court erred by failing to
equally divide the parties' property. As discussed above, the
court classified the stocks and marital residence as husband's
separate property. Only minor additional assets remained for
distribution. Moreover, Virginia's equitable distribution scheme
does not provide "a statutory presumption of equal distribution."
Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830
(1986).
The parties were married for approximately two years.
Husband had no debts prior to the marriage. Marital debts
totaled over $17,000 as of the date of the commissioner's
hearing. Wife spent $60,000 during the marriage. Husband's son
testified that wife's room was stacked with her purchases,
including furniture, carpets, an entertainment system, a
big-screen television, VCR, compact disc player, tape players,
record players, and boxes of other items. Wife repeatedly
threatened to leave husband with no money. Wife admitted
charging $6,000 on husband's Sears credit card without his
consent.
Based on this evidence, the trial court assigned eighty-five
percent of the marital debt to wife. We cannot say that the
court's equitable distribution decision was plainly wrong or
without evidence to support it. See Srinivasan v. Srinivasan, 10
Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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