Larry J Neuhs v. Denise D Neuhs ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
LARRY J. NEUHS
MEMORANDUM OPINION * BY
v. Record No. 0187-02-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 8, 2002
DENISE D. NEUHS
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Thomas C. Spencer (Thomas C. Spencer, P.C.,
on brief), for appellant.
M. Teresa Harris for appellee.
Larry J. Neuhs appeals a final divorce decree arguing
essentially the evidence does not support the trial court's
equitable distribution award. He assigns as error the failure
to credit him with post-separation payments made on marital debt
and pre-martial contributions to the acquisition of marital
property. He also contends the trial court erred in classifying
certain property, in increasing spousal support, and in failing
to rule on whether the trial court failed to review the
evidence. Finding the trial court did not err, we affirm.
We view the evidence and the reasonable inferences in the
light most favorable to the wife, the prevailing party below.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Joynes v. Payne, 36 Va. App. 401, 411-12, 551 S.E.2d 10, 15
(2001). The parties married in 1979 and had two children. They
separated in July 1993, but the wife did not move out of the
marital residence until June 1997. She filed for divorce on
April 24, 1997.
The trial court referred issues of equitable distribution
and spousal support to a commissioner in chancery. The
commissioner held two hearings, December 8, 1999 and April 14,
2000, considered the depositions and answers to interrogatories,
and issued three separate reports.
For purposes of equitable distribution, the commissioner
accepted July 7, 1993 as the parties' separation date. The
commissioner awarded the husband credit for post-separation
payments of principal on marital debt related to the purchase of
the marital residence and Franklin County property. He did not
give the husband credit for a pool loan, a van loan, or payments
of interest on approved loans. The commissioner classified
furniture the wife received from her grandmother during the
marriage and a parrot the husband purchased after 1993 as her
separate property. The commissioner classified crystal and
china the husband acquired during the marriage as marital
property. He awarded the wife $125 monthly spousal support.
The trial court adopted nearly all of the commissioner's
findings of fact in its December 27, 2001 final decree of
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divorce. The court's only deviation was to increase the spousal
support award to $200 after an ore tenus hearing on this issue.
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732,
396 S.E.2d 675, 678 (1990). We give "great weight" to the
factual findings of the commissioner approved by the trial court
and do not assess either the credibility of the witnesses or the
probative value given to their testimony. Cooper v. Cooper, 249
Va. 511, 518, 457 S.E.2d 88, 92 (1995).
The husband contends the trial court erred in not awarding
him full credit for post-separation payments of principal and
interest on marital debt. 1 He maintains the parties had a
financial agreement in 1993, memorialized in a 1997 agreed
order, which required that he be credited for interest as well
as principal payments.
The parties did not sign a written agreement in 1993.
Flanary v. Milton, 263 Va. 20, 23, 556 S.E.2d 767, 769 (2002)
(property agreement between parties must be in writing and
signed by the parties). A juvenile and domestic relations court
1
The husband submits that he paid more than $84,000 between
the parties' separation and May 2001, and claims credit for
$42,387.18. The trial court used the evidence submitted at the
April 14, 2000 hearing before the commissioner.
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agreed order dated June 4, 1997, was endorsed by counsel but not
signed by the parties. It stated that the husband "will make
timely payments on all marital debts of the parties, and the
total amount of his payments of such debts will be taken into
consideration upon full settlement of the property matters
between these parties or equitable distribution between them."
The agreed order provides that the husband's "payment of
such [marital] debts" was to be "taken into consideration." The
order does not mandate that he be given credit for everything he
claims. It merely states that his payments will be considered.
The order required nothing more.
The commissioner carefully considered the evidence and
found that the husband had sufficiently traced his use of
separate funds to pay $17,698.68 in principal only on approved
loans. The husband failed to provide documentation for all his
loan transactions and failed to allocate between principal and
interest. Code § 20-107.3 does not require that the husband be
given a dollar for dollar credit for his post-separation
payments. von Raab v. von Raab, 26 Va. App. 239, 249-50, 494
S.E.2d 156, 161 (1997). The record established that the husband
retained use of the marital residence and after June 1997 such
use was exclusive. We cannot say the ruling is plainly wrong or
unsupported by the evidence.
The husband contends the trial court erred in failing to
accept his evidence regarding other loans transactions. In
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1994, the parties signed loan documents to borrow money to build
a pool. The pool was never built. The husband testified he
used the pool loan funds to pay for the wife's "whims" and other
marital expenses. He offered no independent documentation to
support this argument. The wife testified she believed the
money had not been borrowed because the pool was never built.
She discovered during this litigation that the husband had
borrowed the money but did not know how he spent it. The trial
court did not err in finding that the husband did not prove as a
matter of law that the pool loan constituted marital debt. 2
On January 14, 1994, the husband borrowed $6,363 from First
Union to pay for a van the wife drives. The wife took over the
bank payments in 1997. The bank closed the loan January 25,
1999. The commissioner ordered the wife to pay $1,500 to the
husband for the van and to take over the outstanding
indebtedness. The husband contends the trial court erred in
finding there was an outstanding debt to the bank for the van.
If there were an outstanding balance, the wife should have paid
it. There is no error in ordering her to pay it.
The husband contends the court erred in failing to include
a $6,500 loan from his parents as marital debt. The husband
claims he borrowed $6,500 from his parents in 1994 to make the
2
For these same reasons, we reject the husband's argument
that the trial court erred in failing to account for a November
1994 $2,500 "fish tank" loan.
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loan payments to the bank for the van. He submitted evidence
that there was a balance of $1,300 on the van loan to his
parents yet testified that he still owed them the entire amount,
$6,500. We cannot say the court erred in finding the husband
failed to prove the $6,500 loan from his parents or that any
such loan was marital debt.
The husband testified he borrowed $1,000 from his parents
for a water softener. The trial court valued the water softener
loan as $500 marital debt. The husband contends the court erred
in reducing the loan by $500. There is no independent evidence
regarding this loan. The commissioner found that the loan
benefited the marital residence and its value was considered in
the appraisal. Based on the record before us, we cannot say the
court's accounting for this loan was erroneous. See von Raab,
26 Va. App. at 249-50, 494 S.E.2d at 161.
The husband claims the court erred in failing to award
credit for separate funds he used to purchase real estate during
the marriage. Under Code § 20-107.3(A)(3)(a), he has the burden
to prove the funds were not marital property. In order to do
this, the husband had to "(1) establish the identity of a
portion of hybrid property and (2) directly trace that portion
to a separate asset." Rahbaran v. Rahbaran, 26 Va. App. 195,
208, 494 S.E.2d 135, 141 (1997) (citing Code
§ 20-107.3(A)(3)(d)-(f)).
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The husband maintains he used separate funds ($25,000) to
buy the land on which the marital residence is built and
($37,000) to buy property in Franklin County. The husband
owned a trailer in North Carolina when the parties married. He
contends he used the proceeds from the sale of the trailer to
purchase another home in North Carolina. He also contends he
used the proceeds from the sale of that house to purchase the
property on which the marital residence was built. Finally, he
points to a series of bond transactions in his name alone after
1979 to establish that he consolidated pre-marital debt in 1981
and had $51,000 of separate funds.
The trial court found that the husband failed to overcome
the presumption that the funds used to purchase the marital
property were marital. The record fails to show with any
precision the amount of separate assets that comprised a part of
the purchase price of the marital property. When the court
cannot determine the exact amount of separate funds used to
purchase marital property, the funds are commingled and become
marital. Gilman v. Gilman, 32 Va. App. 104, 122, 526 S.E.2d
763, 772 (2000). Accordingly, the trial court did not err in
finding that the husband failed to meet his burden of tracing
his separate portion of the parties' real property.
The essence of the husband's arguments is that the trial
court did not credit his evidence and did not explain each
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conclusion it reached. 3 While the trial court must consider all
of the statutory factors of Code § 20-107.3 in fashioning an
equitable distribution award, it "is [not] required to quantify
or elaborate exactly what weight or consideration it has given
to each of the statutory factors." Woolley v. Woolley, 3
Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). In this case,
the trial court accepted the commissioner's findings of fact and
his explanations for the credit awarded the husband for loan
payments. See von Raab, 26 Va. App. at 249-50, 494 S.E.2d at
163. We cannot say these determinations are plainly wrong or
without credible evidence to support them.
The husband contends the trial court erred in classifying
the wife's marital property as separate property and in
classifying his separate property as marital property. The wife
testified that furniture she received from her grandmother 4 was a
gift to her for her "devotion" and loving care of her
grandmother. Two letters from her uncle corroborate her
explanation. The commissioner also classified a parrot the
husband purchased after the parties separated as wife's separate
3
The evidence supports the trial court's valuation of the
martial residence. The husband's challenge to the appraisal
value accepted is without merit.
4
The husband also contests the court's classification of
dining room furniture as the wife's separate property. The
wife's father testified that he gave the dining room furniture
to her before he got married in May 1979. Therefore, this
furniture is the wife's separate property because she received
it before the marriage.
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property. He noted that the husband meant it to be a completed
gift to the wife and had no love for the parrot. The wife
presented sufficient credible evidence to rebut the presumption
that her grandmother's furniture and the parrot were marital
property. Code § 20-107.3; Bowers v. Bowers, 4 Va. App. 610,
617, 359 S.E.2d 546, 550 (1987).
On the other hand, the husband's family gave him crystal
and china during the marriage that the commissioner classified
as marital property. A February 3, 2001 letter from his mother
states that she gave the gift, but does not indicate that it was
intended for the husband alone. The letter does not rebut the
presumption that the china was marital property. The trial
court did not err in classifying it as marital property.
The commissioner awarded the wife $125 per month in spousal
support. The trial court heard evidence ore tenus on July 18,
2001 on that one issue and increased spousal support to $200 per
month. The record does not contain a transcript of that
hearing. The husband failed to provide an adequate record that
permits us to "determine whether the lower court erred in the
respect complained of." Justis v. Young, 202 Va. 631, 632, 119
S.E.2d 255, 256-57 (1961). We presume the trial court's
judgment is correct and affirm it.
Throughout this appeal, the husband has argued that the
trial court's judgment is either plainly wrong or is not
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supported by credible evidence. Until the contrary is shown, we
presume the court acted properly. Riggins v. O'Brien, 263 Va.
444, 448, 559 S.E.2d 673, 675 (2002). The husband, however,
went so far as to speculate that the trial court did not review
the record before accepting the commissioner's report. On
February 8, 2002, he filed a notice that he would request the
trial court to admit whether it had reviewed the entire record
in this case. The court declined to consider the notice.
An order becomes final 21 days after its entry unless
vacated or suspended by the court during that time. Rule 1:1.
The husband filed his notice February 8, 2002, well beyond 21
days after entry of the final order, December 27, 2001. The
trial court had no jurisdiction to act on the proposed motion,
Zhou v. Zhou, 38 Va. App. 126, 132, 562 S.E.2d 336, 339 (2002),
and did not err in refusing to consider it.
The wife requests an award of attorney's fees relating to
this appeal. Upon consideration of the entire record, we find
that the wife should be compensated for the reasonable costs and
fees incurred in defending this appeal. O'Loughlin v.
O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
We, therefore, remand this case to the trial court solely for a
determination of those costs and fees to include fees and costs
incurred on remand to determine and collect this award.
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For the foregoing reasons, we affirm the judgment of the
trial court and remand for further proceedings consistent with
this opinion.
Affirmed and remanded.
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