Doretha Leola Thomas v. John Samuel Thomas ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
DORETHA LEOLA THOMAS
v. Record No. 1147-95-1 MEMORANDUM OPINION *
PER CURIAM
JOHN SAMUEL THOMAS OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
(George Minor, Jr., on brief), for appellant.
(Howard M. Miller, on brief), for appellee.
Doretha Leola Thomas (wife) appeals from the circuit court's
finding in a divorce proceeding that the residence titled in her
name was marital property. Wife argues that the residence was
bought with funds given to her by John Samuel Thomas (husband)
and was her separate property. 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.
This matter was heard by a commissioner in chancery, whose
report was affirmed by the trial court. The decision of the
trial court will not be set aside on appeal unless it is plainly
wrong or without evidence to support it. McLaughlin v.
McLaughlin, 2 Va. App. 463, 466-67, 346 S.E.2d 535, 536 (1986).
Husband asserts wife is barred by Rule 5A:18 from raising this
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
issue on appeal because wife's counsel endorsed the final order
"Seen, Objected and Excepted to." However, wife's counsel filed
an exception to the commissioner's finding that the residence was
marital property. The trial court overruled the exception in the
final decree. Therefore, the issue was raised before the trial
court below and preserved for appeal. Code § 8.01-384.
Property purchased after the date of the parties' last
separation is separate property, unless the evidence establishes
that marital assets were used to purchase it. Price v. Price, 4
Va. App. 224, 229, 355 S.E.2d 905, 908 (1987). The wife contends
that husband gave marital funds to her for her exclusive use and,
thus, altered their classification as marital assets.
The evidence proved two months before the parties'
separation husband received funds from a personal injury
settlement. Husband initially deposited most of the funds into
an account in his name. Several days later, the husband
transferred funds into a new savings account in wife's name.
Shortly thereafter, wife transferred those funds to a passbook
savings account and three certificate accounts as a joint tenant
with right of survivorship with her mother.
Wife testified that husband transferred the funds to her
because he had to make support payments to his children from an
earlier marriage. Wife testified that to avoid paying support
the husband gave her the funds, saying "put it all in your name
and you do what you want to do with it." The wife further
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testified as follows:
After the money was deposited in her name,
wife used to go to the bank every day to
withdraw money to give him because if I
didn't, he would curse me out, wanting to
jump on me, fight me in the house. If you
would look on that statement, all them
withdrawals, he used to make me go get them.
The evidence was uncontested that husband had a serious drug
problem. Wife testified that she paid $20,000 to one of
husband's drug creditors, and up to $40,000 total to husband's
creditors.
After the parties separated on June 28, 1990, wife purchased
the house for $52,000 with funds from her passbook savings
account. The house was deeded to wife as "femme sole, as her
sole and separate equitable estate." Although the evidence
proved that wife and husband discussed buying a house, the
evidence did not show that husband intended to give wife the
funds with which to buy a separate house. Wife testified that
the parties deposited the funds in the bank because "me and
[husband] had intention of getting a house together, but he just
turned sour and he just say he ain't want nothing."
The evidence, including wife's testimony, supports the
commissioner's findings, affirmed by the trial judge that husband
did not give wife the settlement funds as her separate property.
He gave her the funds to avoid his creditors and to hold and use
subject to his direction. Thus, the evidence supports the
conclusion that the residence, which was purchased after the
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parties' final separation was purchased with marital assets and,
was marital property subject to the deed of trust. Code
§ 20-107.3(A)(3)(C) and (H).
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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