Judith Ann Snyder v. Ronald Lee Snyder ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
JUDITH ANN SNYDER
v. Record No. 2147-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
RONALD LEE SNYDER JUNE 20, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
Stephen M. Farmer (Farmer & Stevens, on briefs), for
appellant.
Tracy C. Hudson (Smith, Hudson, Hammond & Alston, P.C., on
brief), for appellee.
In this domestic appeal, Judith Ann Snyder (wife) argues
that the trial court erred in: (1) awarding her only thirty
percent of the marital share of Ronald Lee Snyder's (husband)
pension; (2) accepting husband's value of the parties' New York
summer property instead of her expert's value; (3) finding that
wife failed to establish by clear and convincing evidence that
husband committed adultery; (4) classifying two bank accounts for
the benefit of the parties' children as marital; (5) failing to
award wife a divorce based on grounds of adultery and/or
desertion; (6) ordering wife to pay the second mortgage on the
parties' Virginia property when husband withdrew $8,000 from the
home equity line of credit; and (7) awarding husband his
attorney's fees for the proceedings before a commissioner in
chancery on adultery and desertion as grounds for divorce. We
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
affirm on all issues except the $8,000 withdrawal and attorney's
fees.
BACKGROUND
The parties were married on April 3, 1971 and had two
children. They separated on July 16, 1992. Husband filed for
divorce on October 7, 1992 on constructive desertion grounds and
later, on July 23, 1993, amended his complaint to allege grounds
of separation for more than one year pursuant to Code
§ 20-91(9)(a). On October 23, 1992, wife filed a cross-complaint
for divorce on grounds of adultery and desertion.
On November 18, 1992, the matter was referred to a
commissioner in chancery to establish the grounds of divorce. In
a June 7, 1994 report, the commissioner found that wife had
adequately proved her grounds of adultery and desertion by
husband, and alternatively, that husband was entitled to a
divorce on grounds of separation for more than one year. Husband
excepted to the commissioner's report, arguing that wife failed
to prove adultery by clear and convincing evidence. In a July 6,
1994 order, the trial court sustained the exceptions and rejected
the commissioner's finding of adultery.
On August 30 and September 1, 1994, the trial court held
hearings on the issues of equitable distribution, custody,
support, and attorney's fees. In the September 30, 1994 final
decree, the court awarded husband a divorce based on separation
for more than one year. Wife received the Virginia marital home,
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with a net equity of $76,200; a monetary award of $18,000; thirty
percent of the marital share of husband's state government
pension; two bank accounts opened for the benefit of the parties'
children; and spousal and child support. The court awarded
husband the parties' New York summer property; seventy percent of
his government pension; and $3,690 in attorney's fees.
DIVISION OF PENSION
We hold that the trial court did not abuse its discretion in
awarding wife thirty percent of the marital share of husband's
state government pension. 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, 830-31 (1986). "Moreover, in reviewing an equitable
distribution award, we rely heavily on the trial judge's
discretion in weighing the particular circumstances of each
case." Aster v. Gross, 7 Va. App. 1, 7-8, 371 S.E.2d 833, 837
(1988) (upholding a sixty-five/thirty-five percent pension
division). In light of husband's substantial monetary
contributions to the marriage, the seventy/thirty percent
division in this case is not an abuse of discretion.
VALUATION OF NEW YORK PROPERTY
Wife next argues that the trial court erred in refusing to
accept her expert's valuation of the New York property.
At the equitable distribution hearing, husband testified
that: (1) the home on the New York property was unfinished; (2)
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it would cost $17,000 to complete the home; and (3) the property
was worth $58,000. Wife called a real estate expert, who
testified that the property was worth $82,000. During cross-
examination of wife's expert, husband established that the expert
made errors in his report and was not as familiar with the New
York property or comparable properties as he had testified on
direct examination. The trial court accepted husband's value of
the property.
It is the chancellor's "province alone, as the finder of
fact, to assess the credibility of the witnesses and the
probative value to be given their testimony." Richardson v.
Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991).
Although expert testimony may be the preferable method for
valuing marital property, "the finder of fact is not required to
accept as conclusive the opinion of an expert." Lassen v.
Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471, 474 (1989). We find
no abuse of discretion in this case. Husband's cross-examination
of wife's expert established the expert's unfamiliarity with the
subject property, and the trial judge was entitled to accept
husband's valuation.
ADULTERY
Wife also contends that the trial court erred in rejecting
the commissioner's finding of adultery.
During hearings before the commissioner, both husband and
his alleged paramour denied wife's allegations of adultery. The
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evidence established that: (1) husband and the woman, a nurse,
met at a hospital when his father became terminally ill; (2) he
and the woman became friends; (3) he subleased part of her house;
(4) he hired the woman for a job position at his school; (5) he
called the woman several times to talk about his father's death;
and (6) wife's investigator saw one brief kiss between husband
and the woman.
"Although a commissioner's report is not entitled to the
weight given to a jury's verdict, the report's findings should be
sustained by a trial court unless the court concludes that they
are not supported by the evidence." Seemann v. Seemann, 233 Va.
290, 293, 355 S.E.2d 884, 886 (1987). "One who alleges adultery
has the burden of proving it by clear and convincing evidence."
Id. "'While a court's judgment cannot be based upon speculation,
conjecture, surmise, or suspicion, adultery does not have to be
proven beyond a reasonable doubt.'" Gamer v. Gamer, 16 Va. App.
335, 339, 429 S.E.2d 618, 622 (1993) (quoting Coe v. Coe, 225 Va.
616, 622, 303 S.E.2d 923, 927 (1983)).
In this case, the trial court found that wife's evidence did
not establish adultery by clear and convincing evidence even
though the judge recognized husband's "close personal
relationship." Both husband and the woman denied having a sexual
relationship, and wife's investigator only saw one brief kiss.
We hold that the trial judge correctly determined that the
commissioner's finding of adultery was not established by clear
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and convincing evidence.
CLASSIFICATION OF PROPERTY
Wife further argues that the trial court erred in
classifying two bank accounts opened for the benefit of the
parties' children as marital property.
During the marriage, the parties opened two jointly-titled
savings accounts at Signet Bank for the benefit of their
children. After the parties separated, wife removed the funds
and deposited them in a separate account. Husband's evidence
established the value of the accounts at the date of separation
as $3,856 and $2,726. The trial court determined that the
accounts were marital property and awarded them to wife.
The accounts were established during the marriage and were
jointly titled to the parties at the time of the separation, and
as such, the property was marital. "Code § 20-107.3 does not
authorize the court to make an equitable distribution of marital
property to a non-party." Woolley v. Woolley, 3 Va. App. 337,
341, 349 S.E.2d 422, 425 (1986). We hold that the trial court
did not err in finding the bank accounts to be marital. Although
the court must consider the rights and equities of the parties in
determining how to equitably divide marital property, including
how they may have acquired or held the property, the court had no
authority to award the bank accounts to the children.
GROUNDS OF DIVORCE
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Wife asserts that the trial court erred in failing to award
her a divorce based on either desertion or adultery.
"Where dual or multiple grounds for divorce exist, the trial
judge can use his sound discretion to select the grounds upon
which he will grant the divorce." Lassen v. Lassen, 8 Va. App.
502, 505, 383 S.E.2d 471, 473 (1989). Wife failed to establish
adultery by clear and convincing evidence, and the trial judge
was not required to grant wife a divorce on grounds of desertion.
LINE OF CREDIT ON VIRGINIA PROPERTY
Wife argues that the trial court erred in requiring her to
pay the entire second mortgage (home equity line of credit) on
the parties' marital home because husband created debt by
withdrawing $8,000 from the line of credit. We agree.
On October 30, 1992, a mutual restraining order was entered
that prohibited the parties from making withdrawals from marital
assets while the divorce proceeding was pending. The order also
required husband to redeposit $35,000 that he had earlier
withdrawn from the parties' home equity line of credit on the
marital residence in Virginia. On March 23, 1993, husband
withdrew an additional $8,000 against that line of credit, and an
order entered August 27, 1993 held husband in contempt for that
withdrawal. In the final decree, the trial court made no
findings regarding the $8,000 withdrawal.
"Although we do not require a trial judge to quantify or
detail his or her reasoning, where the court fails to make
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findings or to state any basis for reaching its conclusion . . .,
the reviewing court is hindered in its task." Via v. Via, 14 Va.
App. 868, 872, 419 S.E.2d 431, 434 (1992). Because wife was
awarded the marital home with the requirement that she pay all
liens, she was required to repay $8,000 in debt that husband
established after the separation and for which he received $8,000
in assets. We cannot tell from this record whether the trial
court considered this amount in arriving at its equitable
distribution award.
ATTORNEY'S FEES
Lastly, wife contends that the trial court erred in awarding
husband $3,690 in attorney's fees.
The trial court found that husband's close relationship with
his alleged paramour had an impact on the marriage and family:
[H]usband did leave the home and entered into
a close personal relationship with someone
other than his wife. And that action clearly
has contributed to the dissolution of this
marriage and also has had an economic impact
on this family. . . . [T]he evidence
presented does not rise to a finding of
adultery . . . .
The judge awarded husband $3,690 for attorney's fees incurred in
defending against wife's allegations of adultery. The evidence
at trial established that wife's income was $1,100 per month and
husband's income was $5,800 per month.
"An award of attorney fees is discretionary with the court
after considering the circumstances and equities of the entire
case and is reviewable only for an abuse of discretion." Gamer
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v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993). "The
key to a proper award of counsel fees is reasonableness under all
of the circumstances revealed by the record." Ellington v.
Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631 (1989).
By awarding husband all attorney's fees for the proceedings
before the commissioner, the judge was essentially punishing wife
for pursuing the adultery grounds. However, the commissioner
found that wife had adequately proved husband's adultery and the
allegations were not frivolous. Additionally, the trial court
specifically found that husband's close relationship led to the
dissolution of the marriage and had an economic impact on the
family. Under these circumstances, where a husband's monthly
income is significantly higher than his wife's and the wife's
pursuit of adultery grounds is not frivolous, it is an abuse of
discretion to award the husband attorney's fees for defending
against adultery charges.
Thus, the decision of the trial court is affirmed as to all
issues except the $8,000 withdrawal and attorney's fees.
Accordingly, we reverse and remand for clarification of the trial
court's treatment of husband's withdrawal from the line of
credit.
Affirmed in part,
reversed in part,
and remanded.
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