Nancy M. Jaffe v. Stephen L. Jaffe ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
NANCY M. JAFFE
MEMORANDUM OPINION * BY
v. Record No. 2348-96-2 JUDGE MARVIN F. COLE
JUNE 17, 1997
STEPHEN L. JAFFE
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Lawrence D. Diehl for appellant.
Stephen L. Jaffe, pro se.
Nancy M. Jaffe (wife) appeals a decision of the Circuit
Court of Hanover County disposing of certain issues of spousal
support and equitable distribution. She contends that the trial
court erred in (1) awarding a lump sum award of $50,000 as
spousal support in lieu of periodic spousal support; (2) failing
to compensate her for services rendered and expenses incurred in
developing and subdividing the marital real estate known as
"Stanley Farms"; (3) failing to complete the personal property
division pursuant to its previous rulings; and (4) denying her
motion to modify and suspend the execution of the court's order
of August 27, 1996, because the trial court failed to properly
assess the tax consequences of the order. Upon reviewing the
record, we find this appeal without merit and affirm, except that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
part awarding a $50,000 lump sum in lieu of periodic spousal
support, which we reverse and remand.
Because the parties are familiar with the facts, we restate
only those facts necessary to explain our holdings on the issues.
I. Lump Sum Award
During the years that this cause has been pending, Stephen
L. Jaffe (husband) has been paying periodic spousal support. In
its latest spousal support order dated May 25, 1995, the trial
court ordered husband to pay wife monthly the sum of $1,500, plus
medical insurance, effective April 1, 1995. In a final letter
opinion concluding all of the issues before it, the trial court
found a change of circumstances and ordered that the monthly
payment of spousal support and medical insurance should cease on
September 1, 1996, and that the husband will be required to pay
to wife in lieu thereof a lump sum payment of $50,000, which was
to be paid out of the husband's distribution from the sale of
"Stanley Farms" lots held in escrow by Commissioner Vaughan. The
trial judge stated that "to continue to require a relationship,
each with the other, is materially destructive." The order did
not grant the right to the wife to petition the court for
additional support in the future.
Code § 20-107.1 provides that "[t]he court, in its
discretion, may decree that maintenance and support of a spouse
be made in periodic payments, or in a lump sum award, or both."
The exercise of the trial court's discretion will not be
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disturbed upon appeal unless it has been exceeded.
With regard to how the court shall
fashion an award of spousal support, the
law's aim is to provide a sum for such period
of time as needed to maintain the spouse in
the manner to which the spouse was accustomed
during the marriage, balanced against the
other spouse's ability to pay. The balance
must be struck and awards made upon the basis
of the circumstances disclosed by the
evidence at the time of the award.
Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990)
(citation omitted).
In Blank, this Court stated that "[g]enerally, when courts
do make lump sum spousal support awards they do so because of
special circumstances or compelling reasons, and appellate courts
uphold such awards where the record clearly reflects the court's
rationale for finding that the award will adequately provide for
contingencies." Id. at 5, 389 S.E.2d at 725. We acknowledged
that under some circumstances a lump sum award may be justified
and advantageous to one or both parties. One who receives the
benefit of a lump sum award does not have to face the possibility
that payments may diminish with changes in the payor's
circumstances. The payor is assured that he can plan for the
future without facing the uncertainty that the support obligation
may be increased. See id. at 5-6, 389 S.E.2d at 725-26. "A lump
sum award based on evidence showing special circumstances or
compelling reasons may be final if fully adequate to meet the
payee spouse's reasonably foreseeable needs." Id. at 6-7, 389
S.E.2d at 726.
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In the present case, neither party favored a lump sum award.
Husband, for reasons set forth in the Plaintiff's Memorandum of
his Position dated July 20, 1996, contended that wife was not
entitled to any spousal support because she was able to work and
had sufficient assets received from equitable distribution of the
marital assets to support herself. Wife, for reasons set forth
in the Defendant's Memorandum of her Position filed on July 29,
1996, contended that her spousal support should remain at $2,000
monthly, plus payment of medical insurance. She did suggest,
pursuant to a request from the trial court, that she would accept
a lump sum award (based upon life expectancy tables of 26.4 years
and $2,000 monthly support payments) of $471,457.
We do not find any special circumstances or compelling
reasons for a lump sum award in this case. When the parties
receive their final distribution for the sale of the "Stanley
Farms" lots, now held in an escrow account by the special
commissioner, both husband and wife will receive a substantial
cash distribution which will more than satisfy any need for cash
at the present time.
Husband recognizes that he and wife are at ages where
disability has become a major concern in their lives. He asserts
that physical barriers and declining age may affect his economic
future and that this must be considered in the court's decision.
Wife claims that because of her age and physical disabilities,
the only jobs she can secure would pay $5-$8 an hour. She will
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receive a substantial distribution when the special commissioner
makes the distribution from the sale of "Stanley Farms" lots. In
addition, she contends that she will need monthly support
payments in the amount of $2,000 to live up to the standard of
living to which she is accustomed. Finding no evidence of
special circumstances or compelling reasons to justify a lump sum
award in lieu of periodic payments, we find that the trial court
erred in awarding the lump sum payment in lieu of periodic
spousal support payments. We vacate the lump sum award of
$50,000 and remand for determination of an appropriate periodic
spousal support payment or the reservation of the right to
request spousal support if no periodic support is awarded.
II. Claim for Services and Expenses Incurred
in Development of "Stanley Farms"
Wife contends that she conceived the plan of development of
"Stanley Farms," obtained releases from lenders, supervised the
work, did the layouts for electric utilities, and obtained
approval of the subdivision from Hanover County and appropriate
state agencies. She asserts that she is entitled to compensation
for her services and expenses in the work she did in the
subdivision of "Stanley Farms." Husband points out that he kept
the cash flowing since January of 1989, that he performed as much
work as wife, yet he received only 45% of the distribution from
the sale of this marital asset.
On April 13, 1994, wife filed a motion in the divorce and
equitable distribution cause asking the court to compel the
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subdivision of "Stanley Farms." She alleged that she, together
with many professionals experienced in subdivision planning,
formulated a plan and funding for subdividing "Stanley Farms,"
that husband refused to sign the necessary documents enabling the
project to go forward, and she moved the court to order the
proposed subdivision.
On April 18, 1994, a hearing was held on the motion to
subdivide, on a motion to award compensation to the wife for her
services and expenses and on other motions not pertinent hereto.
The trial court ordered that the parties immediately execute all
documents necessary for the subdivision of "Stanley Farms"
consistent with the subdivision plan of the wife and Wally
Hughes, a realtor, the engineering and survey proposal prepared
by Paul Jalbert and the realty marketing agreement proposed by
Sandra Worsham and Wally Hughes, Incorporated. The court further
ordered that until the sale of "Stanley Farms," husband continue
to pay all outstanding mortgages, taxes and insurance as
previously ordered by the court. The court further ordered that
each party share equally in the expenses of the sale of each lot
associated with the cost of the subdivision, e.g., the cost of
the roads and surveys. The court took under advisement wife's
motion for compensation for her work on the subdivision.
In her brief, wife admits that no Virginia court has
directly addressed the issue of fees or compensation for
equitable distribution sales efforts, but relies upon Swinford v.
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Swinford, 682 S.W.2d 189 (Mo. Ct. App. 1984), referring to the
appointment of a person to effectuate a sale of property, the
court stating: "Obviously, the appointment would entitle the
person to a reasonable fee to be fixed by the court." Id. at
192. This case is not on point because it does not deal with
joint tenants. In this case, the trial court has compensated
Special Commissioner Vaughan for his services and expenses out of
joint funds. All of the professional persons who worked on the
subdivision have been paid out of joint funds. Wife has been
paid for her expenses out of joint funds. Husband has not been
reimbursed for payment of the mortgages, taxes and insurance out
of joint funds.
Code § 20-107.3(C) gives to a circuit court jurisdiction to
deal with marital assets. The statute provides that the court
may, based upon the factors listed in subsection E, divide or
transfer or order the division or transfer, or both, of jointly
owned marital property, or any part thereof. As a means of
dividing or transferring the jointly owned marital property, the
statute provides that the court may transfer or order the
transfer of real or personal property or any interest therein to
one of the parties, permit either party to purchase the interest
of the other and direct the allocation of the proceeds, provided
the party purchasing the interest of the other agrees to assume
any indebtedness secured by the property, or order its sale by
private sale by the parties, through such agent as the court
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shall direct, or by public sale as the court shall direct without
the necessity for partition. We do not believe that the statute
grants authority to the circuit courts to require the parties to
subdivide real estate in order to sell it. Subdivision of land
requires approval and regulation by both municipal and state
governments. It requires planning, financing, surveying,
building roads and utilities before selling lots, as was done in
this case. The statute does not require the parties to
involuntarily submit to such risks. The statute envisions a sale
or division of the property in its current state. Wife has not
advanced any legal theory that will permit her to recover for
services rendered in planning a subdivision where the actual work
has been performed by third parties who are knowledgeable in such
areas and paid for such work by the special commissioner out of
the proceeds of sale of the real estate.
Wife cannot recover in this divorce case upon any theory of
contract law because there was no contract between the joint
owners of the real estate. The husband did not voluntarily agree
to a subdivision of "Stanley Farms," but was involuntarily
required to participate by virtue of a court order.
It is an established principle of property law that
"[c]otenants may, of course, render,
themselves jointly liable to third persons by
contracting jointly in respect to the common
property. But one tenant in common cannot
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bind his cotenant personally nor by any
unauthorized agreement or act in respect to
the common property. There is no
relationship existing between cotenants, as
between partners, which will render the acts
of one cotenant respecting the common
property binding on the others. No action of
one or more of several tenants in common can
impair the rights of the other cotenants."
Overby v. White, 245 Va. 446, 448, 429 S.E.2d 17, 18-19 (1993)
(citation omitted).
If we considered the sale in this case equivalent to a
partition suit for the sale of real estate, wife still could not
recover for her services. The Supreme Court, in Shotwell v.
Shotwell, 202 Va. 613, 119 S.E.2d 251 (1961), stated:
It is true that as a general rule a joint
tenant who at his own expense places
permanent improvements upon common property
is entitled in a partition suit to
compensation for the improvements. This is
so, whether his cotenant agreed thereto or
not. Compensation of this kind is allowable
not as a matter of legal right but purely as
a desire of a court of equity to do justice
and to prevent one tenant from becoming
enriched at the expense of another. However,
in the absence of consent on the part of the
cotenant the amount of compensation is
limited to the amount by which the value of
the common property has been enhanced.
Id. at 618, 119 S.E.2d at 255.
Wife does not come under this rule because she did not prove
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the actual construction of any improvement and, although
subdividing the land may have seemed a premium price for it, she
presented no evidence that her services produced any enhancement
in value to the common property. We find that the trial judge
was not plainly wrong in denying her claim for compensation in
planning the subdivision of "Stanley Farms."
III. Personal Property Division
Wife contends that the trial court failed to complete the
personal property division pursuant to previous rulings of the
court.
The commissioner in chancery, whose recommendation was
approved by the trial court, made no monetary award to either
party, but decided this case under Code § 20-107.3(C) that
provides for the division or transfer, or both, of jointly owned
marital property. Regarding a division of the personal property,
the commissioner reported that wife should retain ownership of
her motor vehicle and husband should retain the vehicle he had in
his possession. He further reported that they should each retain
ownership and possession of the personal property that they had
in their possession at the time. He distributed to husband
complete ownership and possession of the personal property
located at his professional office. He provided that the horses,
the tack, the motorboat, gear and trailer, sporting equipment,
the fully equipped workshop and other building supplies should be
sold with the farm.
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The trial court decided that the divisions to date were
sufficient to finalize the award. Wife in her brief asserts that
the trial court's statement was made with no evidence to support
such a conclusion; such a conclusion without a full accounting,
without a valuation of the remaining items to be distributed, was
not supported by the record. She contends that we should remand
this issue to the trial court for purposes of finalizing the
personal property division according to the original final
decree.
"On appeal, the judgment of the trial court is presumed
correct. The burden is on the party who alleges reversible error
to show by the record that reversal is the remedy to which he is
entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404
S.E.2d 384, 387 (1991) (citations omitted). Litigants have the
burden to present evidence sufficient for the court to discharge
its duty. "'[T]he burden is always on the parties to present
sufficient evidence to provide the basis on which a proper
determination can be made . . . .'" Bowers v. Bowers, 4 Va. App.
610, 617, 359 S.E.2d 546, 550 (1987) (citation omitted).
"'Parties should not be allowed to benefit on review for their
failure to introduce evidence at trial. . . . At some point we
must "ring the curtain down."'" Id. (citations omitted). We
find no error in the trial court's ruling.
IV. Tax Consequences
Wife contends that the trial court erred in denying her
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Motion to Modify and Suspend its August 27, 1996 order because it
failed to properly assess the tax consequences of such order.
The trial court explained, when it denied the motion, that all
ten items set forth in Code § 20-107.3(E) were examined by the
commissioner and by the trial court on many occasions,
particularly during the period of time when the distribution of
assets, sale of lots, the purchase of lots by wife and the
purchase of all of the property by wife were under discussion.
The court stated that the tax consequences were taken into
consideration in examining the change of circumstances and
setting the lump sum award in lieu of alimony.
The trial court is directed by the statute to consider tax
consequences in making an award of equitable distribution. The
record in this case reflects that the trial court on many
occasions has considered tax consequences. We find that it
neither abused its discretion nor misapplied the statutory
factors in its adjudication of the award. Therefore, it did not
err in refusing to modify or suspend execution of its August 27,
1996 order.
For the foregoing reasons, the decision of the trial court
is affirmed in part and reversed in part. The provision for a
$50,000 lump sum award in lieu of periodic spousal support is
vacated and is remanded to the trial court to determine
appropriate periodic spousal support.
Affirmed in part,
reversed in part,
and remanded.
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