B. Jacquelyne Morrell v. Charles Morrell ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
B. JACQUELYNE MORRELL
MEMORANDUM OPINION *
v. Record No. 2881-96-1 PER CURIAM
JUNE 24, 1997
CHARLES MORRELL
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
(Kenneth B. Murov; Jones, Blechman, Woltz &
Kelly, on briefs), for appellant.
(Paul M. Lipkin; Goldblatt, Lipkin & Cohen,
on brief), for appellee.
B. Jacquelyne Morrell (wife) appeals the equitable
distribution decision of the circuit court. Wife contends that
the trial court erred by (1) equally dividing the parties'
marital assets; (2) failing to properly consider the
circumstances which contributed to the dissolution of the
marriage, see Code § 20-107.3(E)(5); (3) excluding evidence of
debts wife incurred to pay marital debt and maintain marital
assets; and (4) awarding attorney's fees to Charles Morrell
(husband). 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 § 17-116.010 this opinion is not
designated for publication.
Equitable Distribution
"In reviewing an equitable distribution award on appeal, we
recognize that the trial court's job is a difficult one.
Accordingly, we rely heavily on the discretion of the trial judge
in weighing the many considerations and circumstances that are
presented in each case." Artis v. Artis, 4 Va. App. 132, 137,
354 S.E.2d 812, 815 (1987).
"Unless it appears from the record that the
[trial judge] has abused his discretion, that
he has not considered or has misapplied one
of the statutory mandates, or that the
evidence fails to support the findings of
fact underlying his resolution of the
conflict in the equities, the . . . equitable
distribution award will not be reversed on
appeal."
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted).
Wife contends that the trial court erred in equally
distributing the parties' marital assets. There is no
presumption in Virginia favoring equal division of marital
property. See Papuchis v. Papuchis, 2 Va. App. 130, 132, 341
S.E.2d 829, 830-31 (1986). Both parties worked throughout the
marriage and devoted time to manage their various real estate and
commercial undertakings. While husband acknowledged wife's
monetary and nonmonetary contributions to the family and the
acquisition of marital assets, wife "refuse[d] to acknowledge in
great part [husband's] contribution" to either the family's
well-being or to the acquisition, care, and maintenance of
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marital property.
"The court is the judge of the credibility of the witnesses,
and its findings are of great weight on appeal." Klein v. Klein,
11 Va. App. 155, 161, 396 S.E.2d 866, 869 (1990). The trial
court found husband's testimony more credible. Based in part on
that testimony, the court found that the parties made equal
monetary contributions to the family and that husband made the
greater nonmonetary contributions. The trial court found that
the evidence "amply supports the Husband's request for an equal
division." The record does not demonstrate that the court erred
in giving each party fifty percent of the marital assets.
Code § 20-107.3(E)(5)
In considering the "amount of any division or transfer of
jointly owned marital property," the court is expressly
authorized to consider the "circumstances and factors which
contributed to the dissolution of the marriage." Code
§ 20-107.3(E)(5). While noting that the parties received a
"no-fault" divorce, the court found that wife "was an angry
person" who contributed negatively to the marriage and who
conducted herself "hostilely toward [husband], her employees, and
patrons of their business" and who was "frequently . . . in
conflicts" with husband, her family, employees, and customers.
The trial court ruled that wife's temper was a factor in the
demise of the parties' marriage and was a relevant factor to be
considered in the equitable distribution.
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Husband's testimony, as well as the testimony of at least
one employee, supported the court's finding. The weight to be
afforded this factor was left to the court's discretion, and we
find no abuse of that discretion.
Marital Debt
Wife contends the trial court erred by excluding her
evidence concerning debts she incurred in maintaining and caring
for the property. However, the trial court allowed wife an
opportunity to establish that the debts were related to the
marital assets. The court found that wife's records were
insufficient to link the expenses with any marital assets. The
record does not support wife's claim that she was denied an
opportunity to prove she incurred debts for the maintenance of
marital assets. Wife was given an opportunity but was unable to
substantiate her claims.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper
award of counsel fees is reasonableness under all the
circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 162 (1985). The court awarded husband $2,000 in
fees, ruling that wife "has contributed significantly to the
protracted litigation in her recalcitrant conduct and attitude."
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The record reflects the fact that wife's inability to
substantiate her claimed debts required an hour recess and the
subsequent rescheduling of the remainder of the hearing. We
cannot say that the award was unreasonable or that the trial
court abused its discretion in making the award.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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