Evans D. Poindexter, Jr. v. Katherine M. Jolliff,et ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
EVANS DANDRIDGE POINDEXTER, JR.
MEMORANDUM OPINION *
v. Record No. 1974-00-1 PER CURIAM
JANUARY 23, 2001
KATHERINE MOORE JOLLIFF, F/K/A
KATHERINE MOORE JOLLIFF POINDEXTER
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
(Charles L. Bashara; Bashara & Hubbard, on
briefs), for appellant.
(Barry Kantor; Grady Aston Palmer III;
Christie & Kantor, PC, on brief), for
appellee.
Evans Dandridge Poindexter, Jr., appellant, appeals a
decision of the trial court finding that he was not entitled to
reimbursement for payments he made on a second mortgage. On
appeal, appellant argues the trial court erred in holding that the
payments constituted a voluntary inter vivos gift. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
The parties were divorced in 1994. During the marriage, the
parties jointly owned property located in North Carolina. As part
of the property settlement agreement, appellant transferred his
right, title and interest in the property to Katherine Moore
Jolliff, appellee. Appellee agreed to assume responsibility for
all mortgage payments on the property. In the property settlement
agreement, appellant also agreed to pay appellee one-half of the
value of his Individual Retirement Account (IRA).
Unbeknownst to appellee, in 1990, appellant obtained a second
mortgage on the North Carolina property, prior to the parties'
divorce. Appellant acknowledged that he signed the documents for
the second mortgage knowing that the documents stated he was
"unmarried." Appellee first learned about the second mortgage
after the parties had signed the property settlement agreement.
The record further indicates that once appellee learned of the
existence of the second mortgage, her attorney and appellant's
attorney reached an agreement whereby appellant would be
responsible for paying the loan.
Appellant admitted that he used $19,000 of the proceeds from
the second mortgage to buy into a partnership and that he borrowed
additional funds against the line of credit on at least one other
occasion. Appellant made payments on the second mortgage for a
period of time. However, he stopped making the payments at a
point where he contended he had paid an amount roughly equal to
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the amount he owed appellee for one-half of the value of his IRA
account. Appellant had not otherwise paid appellee for her share
of the IRA account.
Appellee filed a motion to compel appellant to pay the second
mortgage. She also filed and received a show cause order
requiring appellant to show cause why he had not complied with the
property settlement agreement by failing to pay her one-half of
the value of the IRA account. Appellant filed and received a show
cause order demanding that appellee make the second mortgage
payments, arguing that appellee was responsible for all mortgage
payments pursuant to the property settlement agreement. He also
sought reimbursement for the payments he had already made toward
the second mortgage.
The trial court ruled that appellant made the second mortgage
payments voluntarily, and it denied his motion for reimbursement.
INTER VIVOS GIFT
On appeal, appellant argues the trial court erred in ruling
that his payments on the second mortgage were an inter vivos gift.
However, the trial court's order does not state that it found the
payments constituted an inter vivos gift. Rather, the order
states that appellant, "is not entitled to any reimbursement for
monies paid on the second mortgage (equity line of credit) as
these payments were made voluntarily; and his Motion for
reimbursement is hereby denied." Furthermore, the record does not
indicate that appellant made the argument to the trial court that
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it erred in ruling that the prior payments constituted an inter
vivos gift.
The record on appeal includes an order entered on July 21,
2000, specifying the trial court's findings and rulings.
Appellant endorsed the order "SEEN AND OBJECTED TO." The record
also contains several versions of a written statement of facts
that were not signed by the trial judge. The trial judge signed
appellee's "Objections to the Written Statement of Facts." See
Rule 5A:8(d). Neither the order nor the written statement of
facts contains a statement of appellant's specific objections.
"The Court of Appeals will not consider an argument on
appeal which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);
Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of
this question on appeal. Moreover, the record does not reflect
any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
DURESS
Pursuant to the property settlement agreement, appellee was
responsible for all mortgage payments on the North Carolina
property. In his show cause order and in his brief on appeal,
appellant contended that he made payments on the second mortgage
in order to protect his credit rating when appellee refused to
repay the second mortgage. In his brief, appellant characterizes
this as payment made under duress.
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Common-law "duress" includes "'any wrongful acts that compel
a person, such as a grantor of a deed, to manifest apparent assent
to a transaction without volition or cause such fear as to
preclude him from exercising free will and judgment in entering
into a transaction.'" Norfolk Div. of Soc. Servs. v. Unknown
Father, 2 Va. App. 420, 435, 345 S.E.2d 533, 541 (1986) (citation
omitted).
The evidence showed that, prior to the parties' divorce,
appellant obtained the second mortgage without the knowledge of
appellee. Appellant also used the monies obtained from the second
mortgage as his own source of funds, without the knowledge of
appellee. Therefore, the record does not support appellant's
contention that he acted under duress when he made payments on
this loan, the proceeds of which were used entirely for his own
personal benefit. Accordingly, the trial court did not err in
ruling that appellant continue to pay the second mortgage payments
and in ruling that appellant not be reimbursed for past payments
he made on the loan.
UNJUST ENRICHMENT
In his show cause order and in his brief on appeal, appellant
further alleged that his payments toward the second mortgage
resulted in the unjust enrichment of appellee. Unjust
enrichment is defined as, "[t]he retention of a benefit
conferred by another, without offering compensation, in
circumstances where compensation is reasonably expected."
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Black's Law Dictionary 1536 (7th ed. 1999). Appellee received
no benefit from appellant's conduct of secretly obtaining a
second mortgage against their jointly owned property, using the
proceeds from that loan for his own personal benefit, and then
making payments on that loan. Therefore, appellant's argument
is without merit.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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