Tammy T. Ware v. Sudarsan Srinivasan

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Alston and Decker
Argued at Richmond, Virginia
UNPUBLISHED
TAMMY T. WARE
MEMORANDUM OPINION BY
v. Record No. 1568-17-2 JUDGE ROSSIE D. ALSTON, JR.
JULY 31, 2018
SUDARSAN SRINIVASAN
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James S. Yoffy, Judge
Janipher W. Robinson (Robinson and Greene, on briefs), for
appellant.
Kimberly Fitzgerald Austin (Friedman Law Firm, P.C., on brief),
for appellee.
Tammy T. Ware (appellant) contends that the Circuit Court for the County of Henrico
(trial court) improperly divided the net proceeds from the sale of the marital residence.
Appellant specifically argues that the trial court erred in its approach to crediting mortgage
payments, late fees on those mortgage payments, and homeowners’ association (HOA) fees as
well as when it assessed monthly rent against appellant. We disagree and affirm the trial court.
BACKGROUND
Suffice it to say that the background of the dispute is rather convoluted and complex.
Appellant and Sudarsan Srinivasan (appellee) were married on March 29, 1996, and together
they have a minor child. The parties filed cross-petitions for divorce in 2013: appellant’s
ground for divorce was adultery, and appellee sought a no-fault divorce. As the petitions
proceeded, appellant requested pendente lite relief. Accordingly, the trial court issued a

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
pendente lite order on September 10, 2013, granting appellant “[e]xclusive use and possession of
the marital residence” but also requiring her to “pay . . . the mortgage . . . , mortgage insurance,
homeowner’s insurance, and [HOA fees].” The divorce action and the equitable distribution
case were bifurcated, and the trial court issued the final divorce decree on September 28, 2015,
awarding appellant a divorce on the ground of a one-year separation after determining that the
separation date was July 27, 2013.
The trial court next set forth the framework for equitable distribution.1 In this regard, the
trial court first acknowledged that marital property was to be “divided equally” between the
parties and that the marital residence was to be classified as marital property. Moreover, in the
final decree of divorce, the trial court ordered that the marital residence be listed for sale by
February 19, 2016, and that the net proceeds from that sale be divided equally between the
parties. The trial court also directed the parties to “fully comply with the listing agent’s [written]
recommendations” and to make the marital residence “available for showings.”
Appellant objected to the trial court’s equal division of the net proceeds of the sale of the
marital residence even though she had agreed with the trial court’s approach to dividing marital
property at trial. Consequently, the trial court issued its January 19, 2016 letter opinion in which
the trial court set forth its Code § 20-107.3(E) analysis and reiterated its prior determinations
regarding the disposition of the marital estate. To this end, and consistent with the requirements
of Code § 20-107.3(E), the trial court observed that appellee is 47 and appellant is 48, that the
parties were married 19 years, that they “enjoyed a very good standard of living,” and that they
both are mentally stable, but physically, appellant suffered from some medical conditions. In
addition, as found by the trial court, appellee possessed two master’s degrees and has a lucrative
1
References to additional motions and evidence will be confined to those that are
relevant to this appeal.
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career whereas appellant possessed a high school diploma and was a stay-at-home mother.
Appellant assumed this role at the request of appellee as per his cultural tradition. It follows then
that appellee made all monetary contributions whereas appellant made most of the nonmonetary
contributions. Appellee also provided financial support for his parents in the amount of
$1,200-$1,500 per month. The trial court also noted that after appellee lost his job due to no
fault of his own, he found a comparable position in New Jersey. Appellant refused to relocate
there with the parties’ minor child. Consequently, appellee traveled to Henrico, Virginia on the
weekends to see appellant and their child. Regarding the marital residence, the trial court found
that the date of valuation for the marital residence was May 9, 2013. The marital residence was
valued at $430,000, and the mortgage debt was $257,783.47 as of September 15, 2015. Thus, at
the time of equitable distribution, the equity in the marital residence was $172,216.53. The trial
court articulated its findings in the letter opinion and incorporated the letter opinion into the final
decree, which was entered on March 28, 2016.
As directed by the trial court, a realtor, Amy Pryor, was retained, who made
recommendations to the parties to prepare the marital residence for listing. One of her
recommendations was that the parties “remove all clutter” from the marital residence by July 15,
2016. Pryor emailed and left a hard copy of her recommendations with appellant and also
forwarded them to appellant’s counsel, appellee, and appellee’s counsel on July 6, 2016.
Appellee subsequently filed a petition for a rule to show cause regarding the sale of the
marital residence. Appellee alleged that appellant violated the trial court’s order to comply with
Pryor’s written recommendations because appellant failed to “remove all clutter.”2 On
2
In the petition, appellee specifically argued that appellant violated the trial court’s July
18, 2016 order, which again required appellant to comply with Pryor’s written recommendations.
Neither the July 18, 2016 order nor the transcript of the September 6, 2016 hearing were
contained in the record. However, the trial court referred to both in its September 29, 2016
order.
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September 6, 2016, the trial court heard evidence on the show cause as well as on appellee’s
motion regarding payment of the mortgage—the final decree was silent as to which party was to
assume that obligation. When ruling on the show cause, the trial court did not hold appellant in
contempt; rather, the trial court concluded that by the hearing date, appellant was motivated to
and had complied with Pryor’s recommendation.3 In its resulting September 29, 2016 order, the
trial court reiterated that both parties were required to comply with Pryor’s written
recommendations and permitted the parties to schedule emergency hearings if either party failed
to do so. The trial court also directed appellee to “advance [funds] for all repairs, expenses, and
costs for sale recommended by . . . Pryor[,]” noting that appellee would be reimbursed for these
advancements. Then, addressing the motion on the mortgage payments, the trial court shifted
that responsibility from appellant to appellee, stating that appellee was to be “credit[ed] for
[those] payments from the . . . proceeds.” The matter was continued to October 11, 2016.
On October 11, 2016, the trial court reviewed the status of the show cause. Pryor
testified that she hired a professional to photograph the marital residence. The day before the
session was set to occur, appellant notified Pryor that the date that had been arranged for the
photo session was no longer convenient. This caused Pryor to cancel the appointment and list
the marital residence with just an exterior photograph. Pryor rescheduled the photo session.
During the re-scheduled photo session, appellant refused to leave the marital residence despite
the photographer’s request.
Pryor also attempted to schedule showings of the marital residence. She provided
appellant with two possible times—one was a few hours later and the other was the next
afternoon. Appellant indicated that both proposed times were inconvenient. Pryor followed up
3
The trial court commented as such during the October 11, 2016 and March 13, 2017
hearings.
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with appellant about those dates, and appellant maintained that the times were inconvenient and
informed Pryor that she was now ill. Upon hearing that, Pryor asked appellant to step outside of
the house so that the potential buyers could view the marital residence, but appellant refused.
At the October 2016 review hearing, the trial court repeated that appellee was going to be
credited for mortgage payments he made. In its November 3, 2016 order, the trial court found
that “[appellant] purposefully procrastinated and delayed the sale of the [marital residence, and
that she] did not cooperate with the realtor regarding the showing . . . nor did she cooperate with
the photographer.” The trial court ordered appellant not to “prevent or hinder any showings of
the [m]arital [r]esidence” and specifically directed her to leave the marital residence during the
entire showing. If appellant failed to do so, she would be ordered to vacate the marital residence.
Ultimately, the marital residence was contracted to be sold for $370,000. Appellee and
the buyers signed the purchase agreement on February 9, 2017. On February 14, 2017, appellee
notified appellant of the purchase agreement and demanded that she vacate the marital residence
by March 16, 2017 because of the impending closing date. Appellant did not confirm receipt of
the purchase agreement or agree to vacate the property.
Consequently, appellee filed a motion for an emergency hearing on February 23, 2017.
The trial court heard the matter on March 13, 2017 and again reviewed the status of the
September 2016 show cause.4 Regarding the emergency hearing, appellant stipulated that she
was notified of the purchase agreement; however, she took issue with permanently vacating the
4
Appellant moved to void and set aside the purchase agreement on the ground that the
marital residence was sold below its appraised value. Although the trial court had previously
found that the appraised value of the marital residence was $430,000, the trial court considered
that the marital residence had been listed since September 2016 and that the purchase price had
been reduced several times. This explains why the purchase price, $370,000, differs from the
appraised value. Ultimately, the trial court did not void or set aside the purchase agreement.
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marital residence. Appellant testified that she did not have the resources to facilitate moving out
of the marital residence with the parties’ minor child.
With regard to the show cause, Pryor testified that she required access to the marital
residence to conduct a termite inspection to facilitate the sale of the property. During the termite
inspection, appellant left the marital residence, as she was ordered to do, but directed another
individual to remain in her place. Pryor also stated that the buyers required access to the marital
residence to complete a final walk-through as stated in their addendum to the purchase
agreement. Pryor expressed concern that if appellant prevented the buyers from conducting the
final walk-through, the buyers would dissolve the purchase agreement. Pryor noted that
contractors also needed access to the marital residence to remedy the HOA violations, which
were required to be repaired before the marital residence could be sold.
In its subsequent March 22, 2017 order, the trial directed that “[appellant] cooperate with
. . . Pryor” and allow her access to the marital residence for those limited purposes. The trial
court ordered that appellant leave the marital residence during these times and prohibited her
from directing others to be present in her absence. Recognizing the difficulties appellant faced in
effectuating her move, the trial court extended the date appellant was to permanently vacate the
marital residence to March 27, 2017 and ordered appellee to immediately pay appellant $10,000
“as an advance of her portion of the . . . proceeds.” The trial court continued the matter to July
31, 2017 and directed the parties to file proposed calculations detailing how the trial court was to
distribute the remaining proceeds.
Appellee filed a second motion for an emergency hearing on March 21, 2017, which the
trial court heard the next day. Pryor testified that earlier in the week, she sent appellant a text
message stating that contractors were scheduled to be at the marital residence to repair the HOA
violations. Appellant did not respond. Pryor and the contractors arrived at the marital residence
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on March 21, 2017, but appellant was not present. These necessary repairs required both the
garage door and door to the marital residence to be unlocked. Pryor attempted to but ultimately
could not gain entry to the inside of the marital residence.
Appellant testified that she never received Pryor’s text message. Appellant indicated that
on March 21, she had deadbolted the front door while she temporarily left the marital residence.
She returned hours later and informed Pryor and the contractors that she had scheduled a meeting
with professional movers later that afternoon. Even after this discussion with Pryor and the
contractors, appellant refused to keep the garage door and the door to the marital residence open
for the contractors to finish their repairs. Ultimately, the contractors could not complete their
work; thus, the HOA violations were not cured. Hearing conflicting testimony about whether or
not appellant received the text message from Pryor, the trial court asked Pryor to retrieve and
produce her cell phone. After examining Pryor’s cell phone, the trial court stated on the record
that Pryor did send a text message to appellant about the matter. The trial court asked appellant
to argue why she should not be held in contempt. Appellant argued that a text message may
appear to be transmitted but may not actually be sent. In response, the trial court noted that
“[appellant] really has no credibility . . . in this court.”
Accordingly, in its April 7, 2017 order, the trial court found appellant
in contempt for her willful violation of the [trial c]ourt’s order
regarding the sale of the [m]arital [r]esidence. Specifically, the
[trial] court [found] that [appellant] failed to allow the realtor, . . .
Pryor, access to the [marital residence] on March 21, 2017 to
repair HOA violations. The [trial c]ourt [also found that appellant]
has continually delayed the sale of the [marital residence].
The trial court then took “the issue of sanctions for the finding of contempt” under
advisement. The trial court reminded appellant that, this time, if she failed to “fully comply”
with Pryor’s requests, she would be “ordered to report to jail.” Appellant was prohibited from
employing the “deadbolt . . . during daytime hours” and was required to keep the garage door
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and the door to the marital residence open for the contractors. She was also ordered to “permit
all other repairs requested by . . . Pryor.” The trial court continued the matter to July 31, 2017.
At the July 31, 2017 evidentiary hearing, the trial court was set to hear the parties’
proposals regarding the division of the proceeds from the sale of the marital residence.
Appellant moved for a continuance claiming appellee had not produced documents that were
necessary for her testimony. The trial court ordered appellee to produce those documents and
permitted appellant to provide her testimony at a later date.
The court then heard appellee’s evidence. Appellee testified that he advanced $10,000 to
appellant, paid $2,192.90 in recommended repairs, which he supported with receipts, $36,494.14
in mortgage payments, which he supported with a printed payment history, and $5,618 in HOA
fees - that figure included a collection fee of $2,500, a compliance fee of $900, and unpaid HOA
fees of approximately $1,500, which he supported with a statement from the HOA. Appellee
testified that he was not aware that appellant had stopped paying the HOA fees.
The trial court stated that appellee would be reimbursed for a portion of the HOA fees
because the trial court shifted the burden of paying those fees from appellant to appellee in the
September 29, 2016 order. Thus, appellee was to be credited, at most, for $4,526 in HOA fees.
Appellee then asked the trial court to award him attorney’s fees of $14,128, which he supported
with an affidavit. Appellee also admitted that late fees incurred on mortgage payments, totaling
$3,254, should and would be borne by him. The matter was continued to August 28, 2017 for
the presentation of appellee’s evidence.
At the recommencement of the July 31, 2017 evidentiary hearing on August 28, 2017,
appellee presented his final proposal to the trial court; he compromised by decreasing most of his
reimbursement requests. Appellant then advanced her arguments. Arguments relevant to
matters on appeal included the following: she contended that she should receive fifty percent
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credit for the mortgage payments and that she should not be responsible for HOA fees because
she was merely a tenant.
During appellant’s argument regarding mortgage payments, the trial court noted appellant
had been living in the marital residence “rent-free” and that she was “not going to get credit for
any mortgage payments that [appellee] made.” During appellant’s argument regarding HOA
fees, the trial court noted appellee was compromising while “[appellant was] sticking . . . a stick
in [appellee’s] eye.” In its ruling, the trial court concluded that “[appellant] was responsible for
delay after delay after delay” regarding the sale of the marital residence, acknowledged that it
had held her in contempt, and indicated that it was “going to deal with [the contempt matter]
today.”
At the hearing and in its written order, the trial court found that the net proceeds totaled
$155,404.16 and that the parties were to split that sum equally. The trial court also ruled that
appellee be reimbursed according to the trial court’s prior orders. Accepting appellee’s
representations, the trial court then credited appellee $36,494.14 for mortgage payments,
$1,096.15 for repairs, $10,000 for the advance, $2,263 for HOA fees, and $5,000 in attorney’s
fees. After doing so, the trial court stated it “was prepared to assess the full $14,000.00 against
[appellant] for her egregious and continued throwing [of] road blocks in the sale of [the marital
residence].” Appellee’s counsel indicated that the trial court erred when it inadvertently credited
appellee with the late fees and for the entire sum of mortgage payments. The trial court
recognized its error and credited appellant with $3,154.10 in late fees, $4,508 in mortgage
payments because appellant did not live in the marital residence for two months, and $5,556.53
for a support payment appellee missed. Before announcing the parties’ corrected respective
shares, the trial court addressed the show cause issues. In this regard, the trial court fined
appellant $100 which it then suspended. The trial court then announced the parties’ share of the
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proceeds: appellee’s share was determined to be $119,236.74 and appellant’s share was set at
$36,167.42.5 Appellant objected and filed a motion for reconsideration which the trial court
denied.
Now comes this appeal.
ANALYSIS
I. DIVISION OF NET PROCEEDS
What began as a decision purely rooted in principles of equitable distribution transformed
into a determination borne out of equitable distribution and contempt principles.
A. EQUITABLE DISTRIBUTION
We recognize that the “equitable distribution statute ‘is intended to recognize a marriage
as a partnership and to provide a means to divide equitably the wealth accumulated during and
by that partnership based on the monetary and non-monetary contributions of each spouse.’”
Robinson v. Robinson, 46 Va. App. 652, 661, 621 S.E.2d 147, 152 (2005) (quoting von Raab v.
von Raab, 26 Va. App. 239, 245, 494 S.E.2d 156, 159 (1997)). “Virginia law does not establish
a presumption of equal distribution.” Judd v. Judd, 53 Va. App. 578, 592, 673 S.E.2d 913, 919
(2009) (quoting Matthews v. Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998)). “It
is within the discretion of the [trial] court to make an equal division or to make a substantially
disparate division of assets as the factors outlined in Code § 20-107.3 require.” Rinaldi v.
Rinaldi, 53 Va. App. 61, 76, 669 S.E.2d 359, 366 (2008) (quoting Matthews, 26 Va. App. at 645,
496 S.E.2d at 126). “Where an equitable distribution is appropriate, then all of the provisions of
Code § 20-107.3 must be followed.” von Raab, 26 Va. App. at 245, 494 S.E.2d at 159 (quoting
Artis v. Artis, 4 Va. App. 132, 136, 354 S.E.2d 812, 814 (1987)). “In fashioning an equitable
5
Based on the trial court’s recitation of the parties’ respective credits, appellee’s share
should be $119,336.74 and appellant’s share should be $36,067.42.
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distribution award, the trial court must consider each of the statutory factors, but may determine
what weight to assign to each of them.” Barker v. Barker, 27 Va. App. 519, 537, 500 S.E.2d
240, 248 (1998) (citing Booth v. Booth, 7 Va. App. 22, 28, 371 S.E.2d 569, 573 (1988)). “[A]ny
division or award must be based on the parties’ equities, rights and interests in the property.” Id.
at 535, 500 S.E.2d at 248 (quoting Theismann v. Theismann, 22 Va. App 557, 565, 471 S.E.2d
809, 812, aff’d on reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996)). “On appeal, a trial
court’s equitable distribution award will not be overturned unless [this C]ourt finds ‘an abuse of
discretion, misapplication or wrongful application of the equitable distribution statute, or lack of
evidence to support the award.’” Anthony v. Skolnick-Lozano, 63 Va. App. 76, 83, 754 S.E.2d
549, 552 (2014).
Appellant argues that the trial court erred by crediting appellee with fifty percent of the
late fees on the mortgage payments, crediting appellee with one-hundred percent of the mortgage
and HOA payments, and for denying her a fifty percent credit for the mortgage and HOA
payments appellee made. Her argument rests on the following premise: the trial court “gave the
parties a one-half interest in the marital residence, which should have made the parties equally
responsible for debt service, maintenance[,] and upkeep.”
“We review the evidence in the light most favorable to . . . the party prevailing below and
grant [him] all reasonable inferences fairly deducible therefrom.” Layman v. Layman, 62
Va. App. 134, 135, 742 S.E.2d 890, 890 (2013) (quoting Anderson v. Anderson, 29 Va. App.
673, 678, 514 S.E.2d 369, 372 (1999)). We dispose of the first assignment of error as it pertains
to the late fees on the mortgage payments straightaway. The record belies appellant’s
contention. At the August 28, 2017 evidentiary hearing, the trial court inadvertently credited
appellee for the late fees he incurred on the mortgage payments. Appellee’s counsel made the
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trial court aware of its mistake. Accordingly, the trial court corrected its error and credited
appellant for that entire sum.
Turning to the mortgage and HOA payments at issue, the trial court’s failure to divide
these credits according to the trial court’s approach to distributing marital property was not an
abuse of discretion on the facts of this case.
Pursuant to the equitable distribution statute, a trial court
(i) shall determine the legal title as between the parties, and the
ownership and value of all property, real or personal, tangible or
intangible, of the parties and shall consider which of such property
is separate property, which is marital property, and which is part
separate and part marital property in accordance with subdivision
A 3 and . . . shall determine the value of any such property as of
the date of the evidentiary hearing on the evaluation issue.
Code § 20-107.3(A).
After doing so, the trial court is authorized “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). Such factors include “[t]he
contributions, monetary and nonmonetary, of each party in the acquisition and care and
maintenance of such marital property of the parties,” the “debts and liabilities of each spouse
[and] the basis for such debts and liabilities,” as well as “[s]uch other factors as the [trial] court
deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary
award.” Code § 20-107.3(E)(2), (7), and (11). While we recognize that
the separate contribution of one party to the acquisition, care, and
maintenance of marital property as by post-separation mortgage
payments or upkeep, is [merely] a factor that the trial court must
consider when making its award of equitable distribution, Code
§ 20-107.3 does not mandate that the trial court award a
corresponding dollar-for-dollar credit for such contributions.
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von Raab, 26 Va. App. at 249-50, 494 S.E.2d at 161 (citing Ellington v. Ellington, 8 Va. App.
48, 56, 378 S.E.2d 626, 630 (1989)).6
The trial court initially ordered appellant to pay both the mortgage and HOA fees
pursuant to the pendente lite order and granted her exclusive use and possession of the marital
residence. The trial court then issued the final decree, awarding the parties a divorce. Contained
within the final decree were equitable distribution determinations, some of which pertained to the
marital residence. The trial court properly adhered to the steps set forth in the equitable
distribution statute by classifying, valuing, and distributing the marital residence. At trial, the
trial court indicated that that marital property was to be divided equally and that the marital
residence was marital property. The trial court then ordered its sale and noted that the net equity
was to be divided equally.7 Appellant objected to that equal division. The trial court, in its letter
6
This principle has become bedrock in the jurisprudence of this Court. Acknowledging
that “[u]npublished opinions of this Court . . . hav[e] no precedential value, [they] are
nevertheless persuasive authority.” Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735
S.E.2d 255, 258 n.3 (2012); see, e.g., Ross v. Ross, No. 0748-17-4, 2017 Va. App. LEXIS 331
(Va. Ct. App. Dec. 19, 2017), Dunfee v. Dunfee, No. 0870-10-4, 2010 Va. App. LEXIS 500
(Va. Ct. App. Dec. 28, 2010), Mosteller v. Brooks, No. 2889-07-4, 2008 Va. App. LEXIS 565
(Va. Ct. App. Dec. 23, 2008), Ford v. Ford, No. 0458-08-1, 2008 Va. App. LEXIS 505
(Va. Ct. App. Nov. 18, 2008), Noce v. Noce, No. 2219-05-1, 2006 Va. App. LEXIS 149
(Va. Ct. App. April 11, 2006), Blevins v. Blevins, No. 2297-01-3, 2002 Va. App. LEXIS 281
(Va. Ct. App. May 7, 2002), Banks v. Banks, No. 0414-00-4, 2001 Va. App. LEXIS 452
(Va. Ct. App. July 31, 2001), Stacey v. Stacey, No. 0634-99-1, 1999 Va. App. LEXIS 519
(Va. Ct. App. Sept. 7, 1999), Alberger v. Alberger, No. 2527-98-4, 1999 Va. App. LEXIS 351
(Va. Ct. App. June 15, 1999), and Cline v. Cline, No. 0504-99-3, 1999 Va. App. LEXIS 688
(Va. Ct. App. Dec. 21, 1999).
7
While designated as marital property, the marital residence was only titled in appellee’s
name. It is significant that neither party objected to the trial court’s classification of and order to
list the marital residence for sale. Pursuant to Code § 20-107.3(C), “the [trial] court shall have
no authority to order the division or transfer of separate property or marital property, or separate
or marital debt, which is not jointly owned or owed,” “absent an agreement between the parties.”
Taylor v. Taylor, 5 Va. App. 436, 442, 364 S.E.2d 244, 248 (1988) (citing Venable v. Venable, 2
Va. App. 178, 185, 342 S.E.2d 646, 650 (1986)); see Ozfidan v. Ozfidan, No. 1265-14-2, 2015
Va. App. LEXIS 148, at *14 (Va. Ct. App. May 5, 2015) (indicating that it was appropriate,
pursuant to Code § 20-107.3, for wife to concede that the trial court improperly ordered the
transfer of an IRA to wife as it was not jointly titled). The division or transfer of marital
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opinion later incorporated into the final decree, valued the marital residence at $430,000, noted
that the mortgage debt was $257,783.47 as of September 15, 2015, and found that the net equity
in the marital residence was $172,216.53.
Upon appellee’s subsequent motion to determine which party was tasked with the
responsibility of paying the mortgage, the trial court expressly shifted that obligation to appellee
in its September 29, 2016 order. Also in that order, the trial court required appellee to “advance
[funds] for all repairs, expenses, and costs for sale recommended by . . . Pryor.” At that point,
appellee was also required to pay HOA fees. The trial court derived its authority to impose those
obligations on appellee from Code § 20-103. The statute states, in pertinent part, that a trial
court
may, at any time pending a suit pursuant to this chapter, in the
discretion of such court, make any order that may be proper . . .
(vi) for the exclusive use and possession of the family residence
during the pendency of the suit, [and] (vii) to preserve the estate of
either spouse, so that it be forthcoming to meet any decree which
may be made in the suit.
Code § 20-103(A) (emphasis added). This Court interpreted Code § 20-103 to empower a trial
court to order post-separation mortgage payments until the “period of time that is required to
adjudicate the rights of the parties under the equitable distribution statute.” Taylor v. Taylor, 5
Va. App. 436, 441, 364 S.E.2d 244, 247 (1988). “[T]his [w]as a temporary provision to
commence with the filing of the suit and to terminate upon the final adjudication of all of the
property includes ordering the sale of such property. See Code § 20-107.3(C) (“As a means of
dividing or transferring the jointly owned marital property, the court may . . . order its sale by
private sale by the parties, through such agent as the court shall direct, or by public sale as the
court shall direct without the necessity for partition.”).
The trial court did not have the authority to order that the marital residence be sold based
on the express language of subsection C. However, this argument was never brought before the
trial court nor is it made on appeal; accordingly, we will not consider this issue. See Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (noting that pursuant to Rule
5A:18, we will not hear arguments not presented to the trial court).
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issues properly raised in the pleadings.” Id. But in cases where, as here, the marital residence
was sold after the final decree was entered, trial courts were to
indicate whether the payments should be considered as spousal or
child support, or whether it is a provision for the use and
possession or preservation of the estate . . . as [t]his designation
could be helpful in subsequent proceedings involving partition and
sale of the real estate in determining whether a credit should be
given to the party making the payment.
Id. at 441-42, 364 S.E.2d at 247.
In this case, the trial court did just that. The trial court separately listed these obligations
from appellee’s support obligations in its September order; thus, the trial court framed appellee’s
obligations as “provision[s] for the use and possession or preservation” of the marital residence.
Id. at 441, 364 S.E.2d at 247; see e.g., Cline v. Cline, No. 0504-99-3, 1999 Va. App. LEXIS 688
(Va. Ct. App. Dec. 21, 1999). We note that “[a trial] court speaks only through its orders.”
Smith v. Commonwealth, 23 Va. App. 766, 772, 531 S.E.2d 11, 14 (2000) (quoting Cunningham
v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964)). This Court “presume[s] that the order,
as the final pronouncement on the subject, . . . accurately reflects what transpired.” Kern v.
Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986).
Turning to appellant’s argument regarding the trial court’s crediting of these payments,
appellant’s primary argument is that because the trial court “gave the parties a one-half interest
in the marital residence, . . . the parties [should] equally [be] responsible for debt service,
maintenance[,] and upkeep.” This does not comport with the law of this jurisdiction because
“Virginia law does not establish a presumption of equal distribution.” Judd, 53 Va. App. at 592,
673 S.E.2d at 919 (quoting Matthews, 26 Va. App. at 645, 496 S.E.2d at 129). “It is within the
discretion of the [trial] court to make an equal division or to make a substantially disparate
division of assets as the factors outlined in Code § 20-107.3 require.” Rinaldi, 53 Va. App. at 76,
669 S.E.2d at 366 (quoting Matthews, 26 Va. App. at 645, 496 S.E.2d at 126). In addition, we
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presume that “[u]nless a party can show evidence to the contrary, . . . the trial court properly
applied the law to the facts.” Barker, 27 Va. App. at 543, 500 S.E.2d at 252. Code
§ 20-107.3(A) directs the trial court to
determine the nature of all debts of the parties, or either of them,
and [to] consider which of such debts is separate debt and which is
marital debt. . . . The [trial] court shall determine the amount of
any such debt as of the date of the last separation of the parties, if
at such time or thereafter at least one of the parties intends that the
separation be permanent, and the extent to which such debt has
increased or decreased from the date of separation until the date of
the evidentiary hearing.
Pursuant to Gilliam v. McGrady, 279 Va. 703, 710, 691 S.E.2d 797, 800 (2010), we
recognize that
no presumption exists with respect to the classification of debts
incurred by spouses during marriage, individually or jointly.
Instead, traditional rules concerning the allocation of the burden of
proof apply. Thus, the party proving that a debt was jointly
incurred makes a prima facie showing that the debt is marital,
shifting to the party contending otherwise the burden of persuading
the court that the debt was separate. Conversely, proof that a debt
was incurred by a single spouse makes a prima facie showing that
the debt is separate, shifting to the party contending otherwise the
burden of persuading the court that it was marital.
Because the trial court ordered appellee alone to make these payments, the burden shifted
to appellant to persuade the trial court that the debt was marital. Marital debt is defined as
(i) all debt incurred in the joint names of the parties before the date
of the last separation of the parties, if at such time or thereafter at
least one of the parties intends that the separation be permanent,
whether incurred before or after the date of the marriage, and
(ii) all debt incurred in either party’s name after the date of the
marriage and before the date of the last separation of the parties, if
at such time or thereafter at least one of the parties intends that the
separation be permanent.
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Code § 20-107.3(A)(5). The trial court may designate separate debt as marital if
a party can show by a preponderance of the evidence that the debt
was incurred for the benefit of the marriage or family, the court
may designate the debt as marital.
Code § 20-107.3(A)(4).
While the trial court did not expressly classify the debt as separate or marital and did not
determine whether appellee paid these debts from separate funds, we note that the trial court
stated that the marital residence was marital property and that the net equity of the proceeds was
to be divided equally. In addition, the obligations at issue existed prior to the dissolution of the
marriage. The trial court shifted the responsibility of paying these obligations to appellee in its
September 29, 2016 order, after the entry of the final divorce decree, and the trial court stated
that appellee would be reimbursed for these payments throughout the course of the litigation.
Moreover, while the mortgage and HOA payments benefited both parties by decreasing
the amount of mortgage debt encumbering the marital residence, appellant retained exclusive use
and possession of the marital residence from the entry of the pendente lite order to the date she
was permanently ordered to vacate.
The trial court determined the exact value of these credits at the final August 28, 2017
evidentiary hearing. The net equity of the proceeds to be divided was $155,404.16, and appellee
was reimbursed $36,494.14 in mortgage payments (two of these payments in the amount of
$4,508 were credited to appellant) and $2,263 in HOA payments. Appellant only specifically
objected to the amount of these credits at the August 28, 2017 evidentiary hearing. The trial
court then announced the parties’ respective shares of the proceeds: appellee’s was $119,236.74
and appellant’s was $36,167.42. Significantly, the trial court found that the delay in the sale of
the marital residence was due to the fault of appellant.
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Appellant failed to meet her burden and there was evidence in the record to support the
trial court’s decision to reimburse appellee for these payments. The trial court was not required
to reimburse appellee for the entirety of these sums. von Raab, 26 Va. App. at 249-50, 494
S.E.2d at 161 (quoting Code § 20-107.3(E)). We note that the trial court’s equitable distribution
analysis was also rooted in the sanctions relating to its show cause determinations. The trial
court’s general application of the equitable distribution scheme thus was reinforced by the trial
court’s authority to address appellant’s continuous contemptuous behavior throughout the course
of the proceedings.
B. CONTEMPT
“Contempt is defined as an act in disrespect of the court or its processes, or which
obstructs the administration of justice, or tends to bring the court into disrepute.” Kahn v.
McNicholas, 67 Va. App. 215, 225, 795 S.E.2d 485, 490 (2017) (quoting Epps v.
Commonwealth, 47 Va. App. 687, 708, 626 S.E.2d 912, 921 (2006) (en banc)).
The power to punish for contempt is inherent in, and as ancient as,
[the] courts themselves. It is essential to the proper administration
of the law, to enable courts to enforce their orders, judgments and
decrees, and to preserve the confidence and respect of the people
without which the rights of the people cannot be maintained and
enforced.
Id. at 226, 795 S.E.2d at 490 (quoting Carter v. Commonwealth, 2 Va. App. 392, 395, 345
S.E.2d 5, 7 (1986)). “[W]e review the exercise of a [trial] court’s contempt power under an
abuse of discretion standard.” Id. (quoting Petrosinelli v. People for the Ethical Treatment of
Animals, Inc., 273 Va. 700, 706, 643 S.E.2d 151, 154 (2007)). The trial court’s contempt
authority in the context of equitable distribution is derived from Code § 20-107.3(K)(2). That
statute states, in pertinent part, that
the [trial] court shall have the continuing authority and jurisdiction
to make any additional orders necessary to effectuate and enforce
any order entered pursuant to this section, including the authority
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to . . . [p]unish as contempt of court any willful failure of a party to
comply with the provisions of any order made by the court under
this section.
Code § 20-107.3(K)(2).
In the final decree of divorce, the trial court ordered Pryor to make written
recommendations to the parties to ready the marital residence for listing. The parties were
ordered to comply with those recommendations. Prior to and during the listing process,
appellant’s actions resulted in delays and protracted litigation. At first, appellant failed to
“remove all clutter” as recommended. This inaction resulted in appellee filing a show cause.
The trial court found that appellant was not in contempt because by the time the matter was
heard, appellant had complied. However, the trial court retained authority over the final
disposition of the rule to show cause. The resulting September 29, 2016 order pertained to other
matters; the trial court ordered appellee to pay for required repairs, shifted the responsibility of
paying the mortgage and other recommended expenses to him, and stated appellee was entitled
to reimbursement for these expenses.
Next, there was a review hearing on the show cause. At that hearing, Pryor testified
about appellant’s interference with the photographing and showing of the marital residence.
Appellant’s behavior resulted in Pryor cancelling the session, and during the re-scheduled
session, appellant refused to leave the marital residence when the photographer requested.
Appellant also prevented Pryor from showing the marital residence, stating that the suggested
times were inconvenient and denying Pryor’s request to step out to allow the prospective buyers
an opportunity to view the marital residence. Even in light of these actions frustrating the
process of the disposition of the marital residence, the trial court did not find appellant in
contempt in the November 3, 2016 order. The trial court, however, did acknowledge that
“[appellant] purposefully procrastinated and delayed the sale of the [marital residence].”
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Then, after appellee and the prospective buyers entered into a purchase agreement for the
marital residence, appellant did not respond to appellee’s notification of the agreement nor to his
request that she permanently vacate the marital residence. This culminated in appellee’s filing
for an emergency hearing. At the emergency hearing, the trial court again reviewed the show
cause. Regarding the emergency hearing, appellant stipulated she received notice but stated
challenges she faced in vacating the marital residence. Regarding the show cause, Pryor testified
that she required access to the marital residence for three purposes: completing a termite
inspection, conducting a final walk-through, and curing HOA violations. Appellant was not
present in the marital residence during the termite inspection but directed another individual to
remain there. Although again not finding appellant in contempt, the trial court ensured Pryor’s
access to the marital residence for those purposes in its March 22, 2017 order.
Subsequently, Pryor text messaged appellant about remedying the HOA violations.
Appellant failed to respond. The contractors arrived to begin their work but were not able to
finish the repairs because appellant refused to keep the garage and doors to the marital residence
open. Consequently, appellee filed for a second emergency hearing. The trial court found
appellant in contempt in its April 7, 2017 order “for her willful violation of the [trial c]ourt’s
order regarding the sale of the [m]arital [r]esidence” because she failed to provide the contractors
with the requisite access. The trial court also found that she “has continually delayed the sale of
the [marital residence].” The trial court took the issue of sanctions under advisement.
At the first evidentiary hearing on July 31, 2017, appellee presented his initial proposal
for equitable distribution, highlighting the sums he had advanced during the pendency of the
divorce action while also noting credits that the parties should receive while they were separated.
Finally, at the final evidentiary hearing on August 28, 2017, the trial court resolved both
equitable distribution and contempt matters. Appellee presented his final proposal for equitable
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distribution, decreasing his requests for credit. Appellant then presented her suggestion for
equitable distribution essentially advancing a pure 50/50 split of the proceeds from the sale of the
marital residence. The trial court calculated the parties’ share of the proceeds, listing specific
sums each party was to be credited, including mortgage payments and HOA fees.8 In
conjunction with these calculations, the trial court addressed the issue of contempt sanctions.
The trial court assessed a $100 fine against appellant which it then suspended.
The trial court issued these rulings and entered these orders in full view of the role
appellant played in delaying the sale of the marital residence. Acting within its authority
pursuant to Code § 20-107.3(K)(2), the trial court reimbursed appellee for portions of the
mortgage and HOA payments he made. Thus, we cannot say the trial court abused its discretion
pursuant to its contempt powers.
II. ASSESSING MONTHLY RENT AGAINST APPELLANT
Appellant also contends that the trial court improperly assessed monthly rent against
appellant. Appellant mischaracterized the trial court’s statements. While the trial court
commented that appellant lived in the marital residence “rent-free” from the date of the final
decree to the date she was ordered to vacate, the trial court did not assess rent against her. This
becomes clear when considering the transcripts of the October 11, 2016 hearing and the August
28, 2017 evidentiary hearing.
At the October 11, 2016 hearing, appellant admitted on direct examination that while
living in the marital residence, she never paid rent and no longer paid the mortgage. At the
August 28, 2017 hearing, the trial court attempted to assign two mortgage payments to appellant.
8
Appellee’s counsel informed the trial court that its calculations were not entirely
correct. At the trial court’s direction, appellee’s counsel recalculated the parties’ share of the
proceeds. Ultimately, these recalculations served as the trial court’s basis for the distribution of
the proceeds from the sale of the marital residence.
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Appellee’s counsel informed the trial court that appellant did not live in the marital residence for
those two months and requested that the trial court credit appellant for both of those mortgage
payments. The trial court did so. Thus, the record directly contradicts appellant’s argument; the
trial court never assessed monthly rent against appellant for time she did not live in the marital
residence.
III. ATTORNEY’S FEES
Both parties requested attorney’s fees on appeal. We are conscious of the fact that
appellant filed several appeals with this Court resulting in increased litigation costs for appellee.
While indeed there are some equities in awarding fees to appellee, we choose to decline an
award of fees and costs because a portion of appellant’s appeal “addressed appropriate and
substantial issues.” Estate of Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438
(2004).
CONCLUSION
Considering the evidence in light of equitable distribution and contempt principles, the
trial court did not abuse its discretion in calculating the distribution of the proceeds from the sale
of the marital residence. In addition, the trial court did not assess monthly rent against appellant
for months she did not live in the marital residence. Finally, considering the “appropriate and
substantial” issues on appeal, we decline to award attorney’s fees and costs.
Affirmed.
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