Saundra L. Ash v. Raymond D. Ash ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Kelsey
Argued at Richmond, Virginia
SAUNDRA L. ASH
MEMORANDUM OPINION* BY
v. Record No. 1943-03-2 JUDGE JEAN HARRISON CLEMENTS
MARCH 23, 2004
RAYMOND D. ASH
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John R. Alderman, Judge
C. A. Barranger for appellant.
Jennifer E. Crossland (William H. Parcell, III; Parcell, Webb &
Wallerstein, P.C., on brief), for appellee.
Saundra L. Ash (wife) appeals the ruling of the trial court that the severance package
received by Raymond D. Ash (husband) more than a year after the parties separated was his
separate property. She contends the trial court erred in (1) finding she failed to overcome the
presumption that the severance package was separate property and (2) refusing her request for
attorney’s fees. Finding no error, we affirm the judgment of the trial court.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
The relevant facts in this case are not in dispute. Husband began working for The Great
Atlantic & Pacific Tea Company, Inc. (A&P) on June 1, 1976. The parties married on
September 17, 1982, and separated on April 3, 1997. On July 9, 1998, wife filed for divorce and
requested equitable distribution of the parties’ property. On July 24, 1998, husband responded
with his own request for divorce and equitable distribution.
On January 13, 1999, husband entered into an “Employment Termination and Release
Agreement” with A&P dated December 8, 1998 (termination agreement). According to that
agreement, which was admitted into evidence, husband’s employment with A&P was to be
terminated “on or about January 30, 1999,” due solely to “a business reorganization and
reduction in force in which [A&P’s] Richmond Division [was] being closed on or about” that
date. Under the terms of the termination agreement, A&P would continue to pay husband at his
“current rate for a total of 27 weeks after [his] [t]ermination [d]ate, which includes payment for
all applicable vacation or other paid leave time,” and provide him with certain other designated
benefits through the 27-week severance period. “In exchange for [those] benefits” husband
agreed, inter alia, (1) “not to bring any lawsuit against [A&P] and release and waive the
[c]ompany for all claims or liability arising out of [husband’s] employment and/or separation
from employment with [A&P] as of [his] [t]ermination [d]ate,” (2) to “continue to perform
satisfactorily [his] job duties and responsibilities through [his] [t]ermination [d]ate,” and (3) to
“not make disparaging remarks about the [c]ompany, its products or its policies.”
As provided for in the termination agreement, husband was laid off by A&P, through no
fault of his own, in January 1999. He subsequently received the 27 weeks of severance pay to
which he was entitled under the termination agreement.
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On October 12, 2001, the trial court entered a final decree awarding wife a divorce and
dividing the parties’ marital property. In connection with the distribution of the property, the
trial court denied wife’s motion to compel husband to provide information she requested in
interrogatories regarding husband’s severance package from A&P. The court went on to find
that the severance package was husband’s separate property.
Both parties appealed the trial court’s final decree on various grounds. Wife contended,
inter alia, that the trial court erred in denying her the opportunity to obtain evidence relevant to
the determination whether any portion of husband’s severance package was marital property.
Agreeing with wife that the trial court abused its discretion in denying wife’s motion to compel
discovery concerning husband’s severance package, a unanimous panel of this Court reversed
the court’s equitable distribution award and remanded the case to the trial court for further
proceedings with regard to the severance package. Ash v. Ash, Nos. 3043-01-2 and 3072-01-2
(Va. Ct. App. July 23, 2002).
On remand, the trial court conducted a hearing on March 25, 2003, on wife’s motions to
compel discovery, for division of the severance package, and for an award of her attorney’s fees
and costs “incurred in obtaining a portion of defendant’s severance package.” Finding husband’s
response to wife’s third request for admissions “inadequate,” the court held that the truth of the
January 22, 2003 letter referenced in that request for admissions was deemed to have been
admitted by husband. The court qualified that admission by indicating that the letter should
include the phrase husband’s “years of service and position with the company.”1 As qualified,
the letter, from Sheryl Martin, head of the legal department of A&P, to wife’s counsel, stated as
follows:
1
Neither party challenges either of these ruling by the trial court. Hence, for purposes of
this appeal, we will assume, without deciding, that the statements contained in the letter
referenced in wife’s third request for admissions are true, as qualified.
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Raymond D. Ash was first employed by A&P on June 1,
1976. He worked for the company for 22 years before he received
his severance package in early 1999. His severance package of 27
weeks was based on his [years of service and position with the
company] plus 5 weeks of vacation days. The amount of vacation
that an employee is entitled to is based on years of service.
Relying solely on Martin’s statement in the January 22, 2003 letter, wife argued that
husband’s severance package was partly marital property because “it was based on work during
the years when the parties were married.” The trial court found the severance package was
husband’s “separate property which resulted [from] A&P going out of business post separation,
and that [wife] failed to meet her burden to overcome the presumption that it is separate
property.”
Wife presented no argument or evidence at the hearing concerning the issue of attorney’s
fees and costs, and the trial court made no findings or rulings with regard to that issue.
The trial court memorialized its rulings in a final order entered, without objection by
wife, on June 26, 2003. This appeal followed.
II. THE SEVERANCE PACKAGE
Wife argues on appeal that Martin’s statement in the January 22, 2003 letter proves that a
significant portion of husband’s 27 weeks of severance pay was marital property because the pay
was “based on” husband’s employment with A&P while the parties were married, prior to their
separation. She reasons as follows:
The severance package was awarded on the basis of one year for
each [of husband’s 22] full year[s] of service and one week for
each [of the 5 weeks] of vacation pay earned during the marriage
[for a total of 27 weeks]. The parties lived together [while
married] 14 and one half years while [husband] worked for A&P.
He was entitled to two weeks of vacation pay when the parties
married and five weeks when they separated.
Thus, wife argues, her evidence shows that 17 1/2 weeks’ worth of husband’s severance pay was
marital property because it was based on work performed and vacation earned while the parties
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were living together during the marriage. Consequently, wife contends, the trial court erred in
finding she failed to meet her burden to overcome the presumption that the severance package
was husband’s separate property. We disagree.
“In making an equitable distribution, the court must classify the property, assign a value,
and then distribute the property to the parties, taking into consideration the factors listed in Code
§ 20-107.3(E).” Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 809, 812, aff’d en
banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). “Fashioning an equitable distribution award lies
within the sound discretion of the trial judge . . . .” Srinivasan v. Srinivasan, 10 Va. App. 728,
732, 396 S.E.2d 675, 678 (1990).
Unless it appears from the record that the [court] has
abused [its] discretion, that [it] has not considered or has
misapplied one of the statutory mandates, or that the evidence fails
to support the findings of fact underlying [its] resolution of the
conflict in the equities, the [court’s] equitable distribution award
will not be reversed on appeal.
Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).
“Property acquired after the last separation is presumed to be separate unless the party
claiming otherwise proves that the property ‘was acquired while some vestige of the marital
partnership continued or was acquired with marital assets.’” Luczkovich v. Luczkovich, 26
Va. App. 702, 708, 496 S.E.2d 157, 160 (1998) (quoting Dietz v. Dietz, 17 Va. App. 203,
211-12, 436 S.E.2d 463, 469 (1993)). Thus, the party seeking equitable distribution of property
acquired by the other spouse after the parties have separated must overcome a presumption that
the property is not marital. Id. at 710-11, 496 S.E.2d at 162; Dietz, 17 Va. App. at 211-12, 436
S.E.2d at 469. “[I]f the party with the burden of proving that the property is marital fails in his
or her burden, then necessarily, the property acquired after the marital partnership ended is
separate property.” Dietz, 17 Va. App. at 212, 436 S.E.2d at 469.
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In classifying a severance package acquired by a spouse after the parties have separated,
“the touchstone . . . is whether the severance package was intended to compensate the employee
for efforts made during the marriage or to replace post-separation earnings.” Luczkovich, 26
Va. App. at 708-09, 496 S.E.2d at 160. “The nature of post-separation severance pay as
replacement for post-separation wages supports a classification of separate property.” Id. at 709,
496 S.E.2d at 160. Hence, to overcome the presumption that a severance package received from
an employer after the parties’ last separation is separate property, the nonreceiving spouse must
prove that the severance package was intended to compensate the receiving spouse for services
rendered to the employer during the marriage. Id. at 710-11, 496 S.E.2d at 162.
Here, it is undisputed that husband received the subject severance package after the
parties separated. Thus, wife, seeking classification of some of the severance package as marital
property, bore the burden to overcome the presumption that the severance package was entirely
husband’s separate property. To do so, she had to prove the severance package was intended to
compensate husband for work he did for A&P during the marriage before the parties separated.
Upon our review of the record, we conclude the evidence supports the trial court’s finding that
wife failed to meet that burden.
The only evidence wife presented in support of her claim that husband’s severance
package was partly marital property was Martin’s January 22, 2003 letter indicating that
husband’s 27-week severance package was “based,” in part at least, on husband’s 22 years of
service with A&P, “plus 5 weeks of vacation days.” In relying on that letter, wife fails to
discriminate between the purpose of the severance pay and the basis of the severance amount.
While the January 22, 2003 letter describes how A&P calculated the extent of husband’s
severance package based on the duration of his employment with the company, it does not show
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that the severance package was intended by A&P to compensate husband for his efforts while the
parties were living together during the marriage. Indeed, it sheds no light on that subject.
In contrast, the termination agreement entered into by husband after the parties separated
expressly indicates that A&P awarded husband the severance package in exchange for his
agreement to satisfactorily complete the remaining period of his employment with A&P and not
to sue or disparage A&P in the future. That the calculation of the severance amount paid by
A&P was related to husband’s past service does not alter the stated purpose of the severance
package to compensate husband for efforts he made after the parties separated.
In addition, wife’s reliance on Martin’s January 22, 2003 letter to show that part of the
severance package was based on vacation earned while the parties were living together is also
misplaced. That letter indicates only that the 27 weeks of the severance package included “5
weeks of vacation days” that husband had earned. It does not indicate when husband earned
those 5 weeks of vacation. In arguing that 3 of those 5 weeks of vacation were earned while the
parties were living together, wife not only relies on evidence that is not in the record, she ignores
the reasonable possibility that husband earned all 5 weeks of vacation following the separation.
The termination agreement indicates that husband would receive as part of his severance package
“all applicable vacation or other paid leave time.” It is not unreasonable to believe that one who
has worked for the same company for 22 years could earn 5 weeks of vacation between April
1997, when the parties separated, and approximately July 1999, when husband’s severance
package ended. In any case, the evidence fails to show when the vacation was earned.
We hold, therefore, that the trial court could properly conclude from the evidence before
it that wife failed to meet her burden to overcome the presumption that the severance package
was entirely husband’s separate property. Consequently, the trial court did not abuse its
discretion in classifying the severance package as husband’s separate property.
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III. ATTORNEY’S FEES
Wife also contends the trial court erred in failing to award her attorney’s fees and costs.
Thus, wife requests that we remand this case to the trial court for an award of her attorney’s fees
and costs expended in connection with overcoming husband’s “continued . . . obstructionist
course of conduct concerning discovery” and in pursuing her granted motion for discovery. We
hold that wife did not preserve this issue for appeal.
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless the objection was stated together with the grounds therefor.”
Rule 5A:18 serves an important function during the
conduct of a trial. It places the parties on notice that they must
give the trial court the first opportunity to rule on disputed . . .
questions. The purpose of this rule is to allow correction of an
error if possible during the trial, thereby avoiding the necessity of
mistrials and reversals. To hold otherwise, would invite parties to
remain silent at trial, possibly resulting in the trial court
committing needless error.
Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). Thus, the parties
have an affirmative duty under Rule 5A:18 to first present disputed questions to the trial court
and obtain rulings from the court on those questions before raising them on appeal. An
appellant’s failure to do so precludes our consideration of the matter. See Schwartz v.
Commonwealth, 41 Va. App. 61, 71, 581 S.E.2d 891, 896 (2003) (holding that consideration of
appellant’s contention on appeal “is barred by Rule 5A:18 because it was not raised in the circuit
court, and because the circuit court never ruled upon his motion . . . , providing us no ruling to
review on appeal”).
In this case, wife argues she sufficiently notified the trial court of her request for
attorney’s fees and costs by including such a request in her motion. The trial court chose not to
consider her request, she argues, because it “ruled that [wife] had failed to meet her burden to
prove that [husband’s] severance package was marital property.”
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It is clear from the record, however, that the trial court did not address the issue of
attorney’s fees and costs associated with the relevant discovery matter solely because wife never
asked the court to rule on that issue. She presented no argument or evidence at the March 25,
2003 hearing concerning the issue of attorney’s fees and costs. Indeed, wife made no mention at
that hearing of her request for such fees and costs. Additionally, she failed to note her exception
to entry of the final order on that ground. Thus, wife never gave the court the opportunity to
consider and rule upon her request for attorney’s fees and costs. Simply including a request for
fees and costs in her motion, without mentioning that request at the hearing or seeking a ruling
thereon from the trial court, was not sufficient to bring it to the trial court’s attention in this case
and preserve the matter for appeal. See id. at 70-71, 581 S.E.2d at 896 (noting that appellant’s
inclusion of disputed contention in his motion did not satisfy Rule 5A:18, where “the record
[did] not reflect consideration or disposition of [the] motion by the circuit court”). Therefore, we
will not address this issue on appeal.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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