John Sanford Boisseau v. Lee Wood Boisseau ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Clements
Argued at Richmond, Virginia
JOHN SANFORD BOISSEAU
MEMORANDUM OPINION * BY
v. Record No. 2673-07-2 JUDGE ROBERT P. FRANK
OCTOBER 21, 2008
LEE WOOD BOISSEAU
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
W. Reilly Marchant (Marchant, Honey & Baldwin, LLP, on briefs),
for appellant.
Richard L. Locke (Shannon S. Otto; Locke Partin & Deboer, on
brief), for appellee.
John Sanford Boisseau, appellant (husband), appeals from a final decree of divorce from
Lee Wood Boisseau (wife). Husband assigns error to the trial court’s ruling that funds borrowed
from the Boisseau Family Trust was husband’s separate debt. He contends that since those funds
were used for marital expenses, the debt should properly be classified as marital debt and
therefore subject to allocation under Code § 20-107.3(E). For the reasons stated, we agree with
husband and reverse the trial court’s decision.
BACKGROUND
Husband and wife were married on July 6, 1982. They separated in October 2004. In the
summer of 2004, before the parties’ final separation, husband borrowed $90,000 from the
Boisseau Family Trust. He used part of the money to pay off an outstanding balance of $47,000
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
for an equity line loan on the marital home. Husband also wrote a number of checks to pay other
expenses. Wife testified at trial that these checks were all for marital expenses.
ANALYSIS
Pursuant to Code § 20-107.3(A), a court dissolving a marriage, “upon request of either
party, shall determine the legal title as between the parties, and the ownership and value of all
property” and shall classify that property as separate property, marital property, or part separate
and part marital property. “The court shall also have the authority to apportion and order the
payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of
the marriage, based upon the factors listed in subsection E.” Code § 20-107.3(C).
The trial court’s classification of property as marital or separate is a factual finding.
Therefore, that classification will be reversed on appeal only if it is “‘plainly wrong or without
evidence to support it.’” Ranney v. Ranney, 45 Va. App. 17, 32, 608 S.E.2d 485, 492 (2005)
(quoting McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994)).
Marital property is all property titled in the names of both parties and all other property
acquired by each party during the marriage which is not separate property, i.e., property received
during the marriage by bequest, devise, descent, survivorship or gift from someone other than the
spouse. See Code § 20-107.3(A)(2). “All property . . . acquired by either spouse during the
marriage, and before the last separation of the parties . . . is presumed to be marital property in
the absence of satisfactory evidence that it is separate property.” Id. This presumption applies to
the parties’ assets as well as their debts. See Stumbo v. Stumbo, 20 Va. App. 685, 692-93, 460
S.E.2d 591, 595 (1995) (referring to “marital property” as defined in Code § 20-107.3 as
including both assets and debts).
The purpose and nature of the debt, and for and by whom any
funds were used, should be considered in deciding whether and
how to credit or allot debt. . . . Where the debt was secured by
marital assets or was a lien on marital property, the purpose,
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nature, and character of the debt and who benefited from it
were factors to be considered by the chancellor in distributing
the property or in fashioning the monetary award.
Gamer v. Gamer, 16 Va. App. 335, 341, 429 S.E.2d 618, 623 (1993) (citing Trivett v. Trivett, 7
Va. App. 148, 151, 371 S.E.2d 560, 562 (1988)).
In this case, husband contends that the $90,000 loan from the Boisseau Family Trust was
used to pay off the $47,123.89 balance of an equity line mortgage and other marital debts, thus
benefiting wife. Wife agrees that the standard to determine whether the debt is separate or
marital is whether the debt benefited both parties. Wife maintains that the $90,000 was not used
for marital debts. However, wife’s trial testimony is inconsistent with her argument on appeal.
After reviewing the list of checks that represented the distribution of the $90,000 loan, wife
acknowledged that they were marital expenses. Wife testified at least twice during her testimony
that the loan was used to pay off marital expenses. She also agreed those expenditures were not
squandered. On cross-examination, the following testimony was given:
Q: Now, let’s talk for a minute about the $90,000 that Mr.
Boisseau borrowed from his Boisseau family trust in the summer
of 2004. That money you understand was used to pay off an
existing credit line on the house with that, $47,000; correct?
A: Yes, that was one of the exhibits.
Q: Correct. And then there were other checks written off the
credit line to total up to $90,000, correct?
A: I didn’t see all those, but –
Q: Well, you remember at your deposition, do you not when I
asked you about –
A: Yes.
Q: -- all those checks?
A: Yes.
Q. Yeah. And I showed you a list of checks that Sanford said
were the reason – were what he expended on the 90,000?
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A: True. But he also was making income at that time.
Q: Okay. But I went over those checks with you. And do you
remember telling me –
A: Right. They were marital expenses.
Q: They were marital expenses?
A: That’s correct.
During the same cross-examination, wife was asked, “you saw the checks that [husband] wrote,
and they were all for marital expenses?” Wife responded, “[Y]es.” Later in her testimony, wife
recalled her deposition testimony, in which she was asked about checks husband had written.
When asked about these checks, wife stated, both in her deposition and at trial that those checks
were written for marital expenses.
In its letter opinion dated March 27, 2007, the trial court explained why it found the
$90,000 debt was husband’s separate property. The trial court concluded “that $90,000
borrowed from the Boisseau Family Trust was a unilateral act by [husband]. As such, it is his
separate debt and not a marital debt. The loan was incurred shortly before the parties’ separation
without the consent and knowledge of [wife].”
In response to husband’s subsequent motion to reconsider, the court’s decision
concerning the $90,000 debt, the trial court issued a second letter opinion, dated August 15,
2007, concluding:
While Dorothy Lee Boisseau (hereinafter “Lee”) acknowledged
that the debt was ultimately used for marital expenses, she also
testified that at the time Sanford borrowed the $90,000.00 from the
Boisseau Family Trust, he did so without Lee’s knowledge,
signature or consent. Lee further testified that when the parties
closed on the marital home, Sanford tried to convince the closing
firm that the $90,000.00 was a loan constituting a lien against the
property that should be satisfied from the proceeds of the marital
home. In addition, Lee testified that at the time he borrowed the
$90,000.00, Sanford was refusing to help Lee with finances for
basic necessities. Lee stated that she was being forced to sell her
separate assets to buy food for the family, while Sanford spent
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nearly half of the $90,000.00 to pay off a $47,000.00 equity line
that he had previously taken out to purchase automobiles for the
children. Having considered both parties’ testimony, as well as the
statutory factors set forth in Section 20-107.3(E) of the Code of
Virginia, the Court found that the $90,000.00 is Sanford’s separate
debt, thus he is solely responsible for that debt.
While acknowledging wife’s concession, the trial court failed to consider whether the
proceeds of the $90,000 loan benefited the parties. A loan unknown to a spouse could still be
used to benefit both parties by paying marital debts, as it was here. While husband’s failure to
support wife might be considered in the equitable distribution award, such a fact is not relevant
to the classification of the debt. See Stumbo, 20 Va. App. at 692-93, 460 S.E.2d at 595 (holding
that a trial court must determine the purpose of the expenses when allocating the debt as separate
or marital). An award based on this determination must have a proper foundation in the record.
Id. The trial court applied the wrong analysis in classifying the $90,000 loan.
Once the aggrieved spouse shows that marital funds were either withdrawn or used after
an irreconcilable breakdown, the party charged with dissipation bears the burden of proving that
he spent the money for a proper purpose. Clements v. Clements, 10 Va. App. 580, 586, 397
S.E.2d 257, 261 (1990). However, in this case, wife affirmatively testified that husband used the
$90,000 loan for marital expenses.
A party can concede the facts but cannot concede the law. Cofield v. Nuckles, 239 Va.
186, 194, 387 S.E.2d 493, 498 (1990) (citing Stancil v. United States, 200 F. Supp. 36, 43 (E.D.
Va. 1961)); see also Tuggle v. Commonwealth, 230 Va. 99, 111 n.5, 334 S.E.2d 838, 846 n.5
(1985). Here, wife, after reviewing the list of expenditures, conceded more than once in her
testimony that husband used the $90,000 from the Boisseau Family Trust for marital expenses.
This is a factual concession, and wife may not now ask this Court to believe that she was not
telling the truth. See Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922)
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(“[Appellant’s] statements of fact and the necessary inferences therefrom are binding upon
him.”).
Wife cannot rely upon other evidence in conflict with her own testimony to strengthen
her case. See Durham v. National Pool Equipment Company, 205 Va. 441, 448, 138 S.E.2d 55,
60 (1964). Cf. Ravenwood Towers v. Woodyard, 244 Va. 51, 55-56, 419 S.E.2d 627, 629-30
(1992) (holding that because the plaintiff testified merely as to her opinion, she was therefore not
bound by her trial testimony). “The Massie doctrine does not apply to a litigant’s statement of
opinion.” Beeton v. Beeton, 263 Va. 329, 337, 559 S.E.2d 663, 667 (2002). In this case,
however, wife did not offer her opinion or impression as to husband’s expenditures.
Wife now asserts that she is not an attorney and would not know what constitutes a
marital expense. However, in the context of the questioning, wife’s use of the term “marital
expense” is not a legal concept. One need only apply common sense to determine whether or not
money was used for marital expenses. Upon reviewing the list of expenditures and knowing the
marital finances, wife clearly understood whether those expenditures benefited the marriage or
only benefited husband. Wife gave a factual concession at trial, and on appeal, she is bound by
that concession. 1
We conclude that the trial court erred in not evaluating the nature and character of the
$90,000 debt, as well as who benefited from this loan. The trial court also failed to consider the
presumption that debt incurred during the marriage is marital debt. Combined with wife’s
concession, the trial court incorrectly classified the loan as husband’s separate debt.
The $90,000 that husband borrowed from the Boisseau Family Trust was used to repay
marital expenses. The loan benefited both husband and wife. We hold that this is martial debt.
1
Indeed, the trial court factually found that wife had acknowledged that the debt in
question was ultimately used for marital expenses.
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Finally, wife requests that this Court award costs and attorney’s fees expended on appeal.
Upon consideration of the entire record in this case, we hold that husband’s arguments are not
frivolous. 2 Therefore, wife is not entitled to attorney’s fees expended in this appeal. O’Loughlin
v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Accordingly, we deny wife’s
request for an award of attorney’s fees incurred in this appeal.
CONCLUSION
For the foregoing reasons, we agree with husband that the trial court erred in classifying
the $90,000 loan from the Boisseau Family Trust as husband’s separate debt. We remand the
case to the trial court in order to determine the distribution of the entire marital estate, in
accordance with the factors enumerated in Code § 20-107.3(E).
Reversed and remanded.
2
Since this matter did not arise from the juvenile and domestic relations district court,
Code § 16.1-278.19 does not govern the award of attorney’s fees. See Lynchburg Division of
Social Services v. Cook, __ Va. __, __, __ S.E.2d __, __ (Sept. 12, 2008).
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