Electra Moore McGay v. Culbert McGay

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
ELECTRA MOORE McGAY
MEMORANDUM OPINION * BY
v. Record No. 2756-99-3 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 29, 2000
CULBERT McGAY
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Kenneth L. Crosson for appellant.
Randall T. Perdue (P. Donald Moses;
Timberlake, Smith, Thomas & Moses, P.C., on
brief), for appellee.
Electra Moore McGay appeals from an equitable distribution
award and raises eight questions. She contends the trial court
erred (1) in ruling the parties lived separate and apart since
1985; (2) in determining the date of separation without
reference to whether either party intended to live separate and
apart; (3) in finding that money spent after 1985 on joint
obligations was the sole income of the husband; (4) in crediting
the husband with separate income when the income came from the
sale of marital assets; (5) in awarding the husband a share of
marital property based upon the conclusion that the husband used
his separate income to pay for marital obligations; (6) in
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
awarding the husband 60% of the marital property based upon the
conclusion that the husband used his separate income to pay for
marital obligations; (7) in awarding the wife only 35% of the
husband's military and civil service pensions based upon the
conclusion that she did not demonstrate financial need; and (8)
in awarding the husband both habitable real properties and
awarding the wife an uninhabitable property. The majority of
the separately stated questions, Questions (1)-(6), arise from a
single contention: the trial court erred by basing its
equitable distribution rulings on the finding that the marital
partnership ended in 1985. We conclude the trial court properly
used 1985 as the date of separation in its deliberations and did
not err on the remaining assignments of error. Accordingly, we
affirm.
The divorce proceedings began May 28, 1996 when the wife
filed for divorce on the grounds of desertion. The trial court
granted the divorce February 19, 1997 on the grounds the parties
had lived separate and apart since April 1985. The trial court
did not decree equitable distribution in the final decree of
divorce but reserved jurisdiction over that issue for future
decision. Several months later, the trial court referred all
equitable distribution issues to a commissioner in chancery.
The commissioner heard extensive evidence the next summer
and made his report November 9, 1998. The report concluded with
the recommendation that 60% of the marital property and 65% of
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the husband's pensions be allocated to him. It proposed two
alternative methods for allocating the illiquid estate. The
wife filed timely exceptions to the commissioner's report.
After hearing the exceptions, the trial court approved the
commissioner's report, allocated the real estate according to
the second of two alternative plans for distribution, and
entered the final order of distribution November 1, 1999.
The wife took depositions on the issue of fault December
16, 1996, and they became the sole evidence upon which the
divorce was decreed. Both parties and two of their adult
children testified about the marital history and its breakup.
The evidence established that the parties married November 16,
1943 and had three children. The husband worked for, and
eventually retired from, the civil service while the wife worked
intermittently. Throughout the marriage the parties lived apart
for substantial periods of time. The wife began to reside in
Augusta County, Virginia in 1978, though the husband lived and
worked in Georgia. The husband retired to Augusta County in
April 1985, but the two never lived together. They resided on
separate farms about seven miles apart in a rural, remote part
of the county. No divorce action was initiated until May 1996
when the wife brought the divorce action. When the divorce was
decreed, the parties had been married for 54 years. The wife
was 81 years old and in very poor health. The husband was 83
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years old, in reasonably good health, but actively farming their
properties and managing their finances.
From the evidence presented by deposition, the trial court
found that the parties last cohabited in Georgia, and lived
separate and apart from April 1985 without cohabitation or
interruption. The trial court recited the finding in the
decree, granted the divorce on that basis, and entered the
decree February 19, 1997. The decree of divorce was a consent
order, requested by both parties, to which neither party took
exception.
The divorce decree and its finding became a final
adjudication of the issue between the parties just as it would
have become final if equitable distribution had never been
raised and not reserved for future consideration in the decree.
See Toomey v. Toomey, 251 Va. 168, 172, 465 S.E.2d 838, 840
(1996) (Code § 20-107.3(A) permits the trial court either to
adjudicate equitable distribution when it decrees a divorce or
to retain jurisdiction to adjudicate equitable distribution
later, but if it does not retain jurisdiction, the trial court
has no jurisdiction once the decree of divorce becomes final).
The issue became final 21 days after entry of the order.
"Additionally, an order of the circuit court becomes final 21
days after its entry unless modified, vacated, or suspended by
the court during that time." The Berean Law Group v. Cox, 259
Va. 622, 626, 528 S.E.2d 108, 111 (2000) (citing Rule 1:1).
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The trial court fixed April 1985 as the date of the last
separation in this marriage. The record shows the trial court
based the finding on the depositions taken by the wife and filed
by her in support of her proposed decree. As stated in Dietz v.
Dietz, 17 Va. App. 203, 209-10, 436 S.E.2d 463, 467 (1993), "the
legislature recognized that a marriage will be deemed to have
ended for purposes of classifying property on the date of the
last separation, in the absence of proof to the contrary." The
finding became a final adjudication of that issue of fact and
bound the parties during the subsequent equitable distribution
proceedings.
The record is clear that the parties accepted April 1985 as
the date of separation throughout the commissioner's hearing.
The wife made no objection to the use of that date in her
exceptions to the commissioner's report. Rule 5A:18 requires
that objections to a trial court's action or ruling be made with
specificity in order to preserve an issue for appeal. See
Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2
(1991) (en banc). Accordingly, Rule 5A:18 bars our
consideration of this issue on appeal, and that bars
consideration of Questions (1)-(6). Moreover, the record does
not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.
The trial court referred the issues of equitable
distribution to a commissioner in chancery, who heard the
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evidence June 10, 1998 and filed his report November 9, 1998.
The wife filed exceptions to the commissioner's report on
November 19, 1998 and noted four objections: (1) the wife was
denied due process of law because she was incapable of assisting
in the presentation of her evidence; (2) the commissioner
calculated the wife's share of the husband's pensions based on
need; (3) the commissioner erred in using an evaluation date
other than the date of the evidentiary hearing in the absence of
a motion filed as required by Code § 20-107.3(A); and (4) the
commissioner sua sponte selected an alternate evaluation date.
The wife filed no further exceptions, made no request, nor
received leave to file additional exceptions at a later time. 1
See Code § 8.01-615. No exception raised the issues now posed
on appeal in Questions (3)-(6), and for that additional reason,
Rule 5A:18 bars consideration of those questions.
1
The wife concedes that she did not raise additional
objections and did not request or obtain an extension for filing
them. She maintains that she presented the additional issues to
the trial court in her "Reply Memorandum in Support of
Plaintiff's Exceptions to the Report of Commissioner." She
filed the memorandum February 12, 1999 along with new exhibits
not presented at the commissioner's evidentiary hearing. She
maintains the trial court ruled on the additional objections
when it stated at the beginning of the hearing on exceptions:
"And I reviewed everything the Commissioner said. I will review
everything that you-all bring out, and then I'll go through this
record, every bit of it, to see whether it's supported or
whether it isn't."
A review of the arguments presented orally and in the
memoranda and briefs makes clear that the husband objected to
the wife's expanding and recasting her objections beyond those
stated in her pleadings.
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The record reflects no merit or basis for objections to the
commissioner's report (1), 2 (3), and (4). 3 The remaining
exception to the report contends the commissioner erroneously
calculated the wife's share of the husband's pensions based on
need. In reviewing whether the trial court considered need
improperly, we must examine the factors in Code § 20-107.3(E)
that the commissioner considered when distributing the marital
property. In his report the recommendation for allocating the
pensions proceeded from and built upon that analysis because the
same factors must be considered in both decisions. See Code
§ 20-107.3(G).
The commissioner's report was a careful, ordered, and
complete recitation of the steps taken in weighing the evidence
and in deciding upon a fair and equitable distribution of the
marital estate accumulated during the long marriage. The
2
The wife's counsel asserted that the trial court erred by
not appointing a guardian ad litem and suggested that she was
not competent. Immediately on that representation, the trial
court inquired fully whether counsel felt his client was not
competent. Counsel assured the trial court she was competent.
When questioned during oral argument, counsel advised this Court
the wife was competent. Accordingly, there is no basis to
appoint a fiduciary to conduct her suit for her.
3
In objections (3) and (4), the wife asserted the
commissioner chose an alternative valuation date sua sponte
without requiring a motion as provided by Code § 20-107.3(A).
The record contains an appropriate motion that the husband filed
21 days before the commissioner's hearing. The commissioner did
not act sua sponte. Additionally, the record reflects the
commissioner applied an alternative valuation date to only one
parcel of real estate. He gave precise reasons for that
decision, and the evidence supports it.
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commissioner determined the legal title, ownership, and value of
the real and personal property. It identified the marital and
separate property. It presented a clear, concise, and cogent
review and analysis of the evidence that embraced each factor in
Code § 20-107.3(E). In orderly sequence, the report gave a
complete presentation of the salient details of the marriage and
fully evaluated all factors specified in Code § 20-107.3(E). It
then summarized its more detailed discussion of the factors:
Throughout the parties' 41-year marriage,
Mr. McGay was virtually the sole monetary
contributor to the well-being of the family
and the acquisition of the marital property.
He was the principal nonmonetary contributor
in the care and maintenance of such
property. Based upon the testimony of the
parties and their witnesses at the divorce
depositions and the Commissioner's hearing,
the circumstances and factors which
contributed to the dissolution of the
marriage tend to favor Mr. McGay although
the Court did not find that either party was
at fault and, as previously noted, Mrs.
McGay was unable to be an effective witness
on her own behalf. With the exception of
Mrs. McGay's extremely poor physical and
mental condition, none of the other factors
set forth in Virginia Code § 20-107.3 E
weigh to either party's advantage. After
considering all of these factors, a larger
share of the marital property should be
awarded to Mr. McGay because he is almost
solely responsible for the accumulation of
the marital wealth. A substantial provision
must be made for Mrs. McGay, however, in
view of the length of the parties' marriage
and her state of health and dependent
condition. Accordingly, your Commissioner
recommends that 40% of the marital property,
excluding Mr. McGay's military and civil
service pensions, be awarded to Electra
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Moore McGay and the remaining 60% to Culbert
McGay.
The summary itself recites evidence covering factors (1)
through (5), which were the factors the commissioner deemed more
important in this case. Our review of the record reveals
evidence presented on each statutory factor. The evidence
supports the findings made by the commissioner, and the report
reflects the commissioner carefully weighing and balancing the
various factors before arriving at his conclusion of law.
All decisions made in distributing the marital property
were an exercise of sound discretion. There is no presumption
favoring an equal division of marital property. See Papuchis v.
Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 831 (1986). We
recognize that "the trial court's job [in reviewing an equitable
distribution award] is a difficult one, and we rely heavily on
the discretion of the trial judge in weighing the many
considerations and circumstances that are presented in each
case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866,
870 (1990). The trial court's decision will not be reversed on
appeal unless plainly wrong or unsupported by the evidence. See
Rahbaran v. Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 139
(1997). The record suggests no abuse of discretion by the trial
court.
After dividing the marital property, the commissioner's
report next addressed distribution of the husband's pensions.
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The wife contends they saved the husband's pensions for their
joint benefit and an unequal distribution unfairly benefits him.
She argues the commissioner impermissibly based the award on
need. The report stated:
Mr. McGay's military and civil service
pensions have been the parties' principal
sources of support during their retirement
and separation. The entire amounts of both
pensions are consumed in paying the parties'
debts and living expenses. Mr. McGay has
been the sole monetary and nonmonetary
contributor to the accumulation,
acquisition, and maintenance of his pensions
and he should be awarded a larger share of
the pensions than his share in the rest of
the marital property. In addition, Mrs.
McGay has not demonstrated the need for more
than 35% of the monthly total of these
pensions for her continued maintenance and
support.
The report shows that the commissioner considered the
proper factors in deciding to make an award of the pension.
Having discussed the factors in Code § 20-107.3(E) for purposes
of distributing marital property, the report moved to
considering how those factors weighed differently when
distributing the pensions. The commissioner gave additional
weight to the factor that the husband was "the sole monetary and
nonmonetary contributor to the accumulation, acquisition, and
maintenance of his pensions."
The commissioner did not require the wife to prove her
need. The comment about lack of need was an aside to make clear
that the recommendation would provide for her adequately. It
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related to the earlier comment that the wife required
"substantial provisions" because of the length of marriage and
her failing health, and it related to the finding that the
pension income had been consumed to pay debts and living
expenses during the separation. The commissioner was assuring
the trial court that the proposed division of the pensions would
continue to provide the wife a means of support as it had during
the separation. It was not limiting her pension award on the
basis of need. When a trial court "divides the pension
unequally, its reasons for doing so must be done on the record."
Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 504, 508
(1990). Based on the record, we find no error in the division
of the husband's pension.
Finally, we consider whether the trial court erred in
distributing the jointly owned real property. The wife objected
to the trial court's selection of the commissioner's second
option for allocating the parties' marital real estate and his
rejection of her alternative proposal which was not reported by
the commissioner. She contends that real estate allocated to
her is uninhabitable and that it was unconscionable to evict her
from her residence due to her age and failing health.
The parties' primary asset was real estate consisting of
three separate farms. While the only indebtedness encumbered
the farm titled in the husband's name, the marital estate was
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illiquid. The three properties were called Hadlow, Riverjack,
and Epidarus.
Hadlow consisted of two separate parcels divided by Route
600, a state secondary road. The husband bought both parcels in
1964. Hadlow I contained 121 acres and the farmhouse in which
the wife resided. Despite the husband's periodic repairs, the
farmhouse remained in poor condition. The balance contained
cropland and pasture which the husband farmed. Hadlow II
contained 133 acres of timberland.
The husband resided with his disabled daughter on the farm
called Riverjack. It contained 100 acres on which the husband
raised cows. The farmhouse was in poor condition; it had only
two heated rooms. The farm was in the village of Deerfield
approximately seven miles from Hadlow. Riverjack was titled in
the husband's name alone.
The third farm known as Epidarus was located in Rockbridge
County some distance from the other farms. It contained 160
acres of which 53 were open and the remainder cut-over timber.
At the wife's insistence, the husband purchased it in 1971. The
wife originally wanted to develop it as a land restoration
project, but nothing was done with the farm for many years. It
contained no electricity, plumbing, or water.
The commissioner's report offered two alternatives for
allocating the real estate. The first distributed Hadlow I (the
residence) to the wife and distributed Hadlow II, Riverjack, and
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Epidarus to the husband. The second alternative distributed
Epidarus to the wife and Hadlow I, Hadlow II, and Riverjack to
the husband. After hearing the exceptions to the commissioner's
report and approving it, the trial court gave the parties 21
days to select their preference of the two recommended
alternatives. The wife did not select one of the alternatives
but filed a new plan of distribution. She wanted all of the
Hadlow property, which required her to incur $48,589 of debt.
The trial court rejected her proposal and selected the
commissioner's second alternative.
From 1966 when the wife broke a number of ribs, she
suffered from osteoporosis, which became progressively worse.
The wife had a severely compressed spine, moved with extreme
difficulty, and appeared to be in constant pain. She suffered
from hypertension, hypothyroidism, urinary tract infections, and
glaucoma. Her health was precarious, and she could not attend
the final hearing. She was recovering from a broken hip, living
at her grandson's house, and not able to return to her own home
without continuous live-in care. Her memory and mental
processes were seriously impaired and serious enough that her
attorney suggested that a guardian ad litem was required.
Over the course of the litigation, the trial court observed
the wife's physical condition and its deterioration. The trial
court expressed deep concern about her ability to live at
Hadlow, which it knew to be in a remote, isolated area far
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removed from medical services. The trial court considered her
plan impracticable because it required the wife to service
$48,589 debt without the means to do so. The trial court
recognized that Epidarus had been a sound investment that the
wife could sell. The trial court expressed concern that, while
her attorney advised that the wife intended to return to Hadlow
with a full-time care provider, the attorney was not familiar
with the property or its isolation and had only talked with her
son, not with her.
It is clear that the trial court did not intend for the
wife to reside in the uninhabitable house at Epidarus but found
it unrealistic to expect that she could live at Hadlow. The
trial court reviewed the record, heard the arguments of counsel,
and concluded the wife's proposal was not practicable for an
84-year-old woman in poor health. The trial court also felt the
commissioner's plan permitted the husband to earn income by
continuing to farm both Riverjack and Hadlow. From the record,
we conclude the trial court properly exercised its discretion
when allocating the properties among the parties.
For the reasons stated, we affirm.
Affirmed.
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