Alonza B. McKeel, Jr. v. Rosalie Brown McKeel ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
ALONZA BURROUGHS McKEEL, JR.
MEMORANDUM OPINION * BY
v. Record No. 1999-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 14, 1998
ROSALIE BROWN McKEEL
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
Paul M. Lipkin (Goldblatt, Lipkin & Cohen, on
brief), for appellant.
Richard F. Popp (Davis & Brynteson, on brief), for
appellee.
Alonza Burroughs McKeel, Jr. (husband) appeals the decision
of the circuit court awarding Rosalie Brown McKeel (wife) $75,000
as an equitable distribution monetary award. Husband contends
that there is no evidence to support the court's award. For the
reasons that follow, we reverse and remand.
Background
Husband received an employment severance payment prior to
the parties' separation, and a thrift plan distribution during
the separation. Pursuant to Code § 20-107.3(A), wife filed a
motion in which she sought to value these assets as of the date
of separation. Husband challenged the inclusion of these assets
in the marital estate. These assets had no value as of the date
of the equitable distribution hearing. The trial court ruled
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that these assets would be valued as of the date of separation.
The evidence was then heard by a commissioner in chancery. The
trial court approved the commissioner's report without
modification.
Monetary Award
"[T]he amount of any monetary award, subject to the
enumerated statutory factors, is within the sound discretion of
the trial court." Dietz v. Dietz, 17 Va. App. 203, 216, 436
S.E.2d 463, 471 (1993). The commissioner's report, approved by
the trial court, is entitled to great weight, and the appellate
court's duty "is to determine whether the conclusions of the
commissioner, approved by the trial court, are supported by
credible evidence." Ward v. Harper, 234 Va. 68, 70, 360 S.E.2d
179, 181 (1987). However, formulating an award must go beyond
mere guesswork. See Artis v. Artis, 4 Va. App. 132, 136, 354
S.E.2d 812, 814 (1987). Here, insufficient evidence supports the
commissioner's recommendation to award wife $75,000 as an
equitable distribution monetary award. See Code § 20-107.3(D).
In his report, the commissioner classified and valued the
parties' property. He found that the parties' contributions to
the marital home, both monetary and non-monetary, were equal, and
he recommended an equal division of the equity in the marital
residence. Pursuant to the trial court's order, the marital
estate included the values of $15,952 for the severance payment
and $71,430 for the thrift plan. While husband spent all funds
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from the thrift plan and severance payment prior to the equitable
distribution hearing, he asserted that he gave wife $41,676 of
the thrift plan money and $1,950 of severance pay or spent it for
her benefit. Wife conceded that she received $36,151 either
directly or in payment of taxes and attorney's fees.
The total value of the marital estate, excluding wife's
share of a sailboat valued at less than $1,000 and the marital
residence, equaled $128,980. The remaining marital assets were
divided between the parties, or awarded to husband with the
notation that wife's marital share "is incorporated in the
Monetary Award." The commissioner recommended an award to wife
of $75,000, based upon "[h]aving observed the demeanor of the
parties as they testified, reviewed the transcript and the
exhibits, and considered the factors set forth in Code Section
20-107.3(D)(E) and (F)."
While the commissioner's report determined the value of the
marital assets, neither the report nor the trial court's decision
revealed the evidence relied upon in setting the amount of the
monetary award to wife. Wife acknowledged receiving $36,151 from
the remaining marital estate, which was valued at $128,980. If
wife then received a monetary award of $75,000, her share of the
marital estate, absent the sailboat and marital residence, was
$111,151, or over eighty-six percent of the value of the estate.
On review, we are unable to find sufficient evidence to justify
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this division of the marital assets. 1
Accordingly, we reverse the decision of the trial court
awarding wife $75,000 as a monetary award, and remand the matter
for further proceedings consistent with this opinion.
Reversed and remanded.
1
In her brief, wife asserts that the trial court erred by
failing to require husband to reimburse her for the value of a
survivor benefit premium withheld from his retirement pay.
However, the court's order required husband to make this
reimbursement. Accordingly, wife's contention is without merit.
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