Stanley Smith, Jr. v. Elisabeth C. Smith

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
STANLEY SMITH, JR.
MEMORANDUM OPINION * BY
v. Record No. 0131-96-2 JUDGE JAMES W. BENTON, JR.
JANUARY 7, 1997
ELISABETH C. SMITH
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Charles O. Boyles (Gayle, Boyles & Culler, on
brief), for appellant.
Murray J. Janus (Deanna D. Cook; Bremner &
Janus, on brief), for appellee.
On this appeal from a final decree of divorce, Stanley
Smith, Jr., contends that the trial judge erred by (1) awarding
his wife 55% of the marital estate, (2) denying his request to
satisfy the entire property distribution award by a conveyance of
property, and (3) adopting a date for evaluating certain property
that was not established by the evidence. On cross appeal,
Elisabeth C. Smith contends that the trial judge erred by failing
to award interest on the property distribution award from the
date the order was entered.
I.
The wife filed this divorce action in the circuit court on
October 4, 1984 and alleged in her bill of complaint that the
husband was guilty of cruelty, desertion, and abandonment. The
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
husband filed an answer and crossbill seeking a divorce on the
ground that they had lived separate and apart for one year. A
trial judge entered the final decree of divorce eleven years
later.
The evidence in the record before the commissioner in
chancery proved that the parties were married on October 14,
1949, and that they separated in 1983. The commissioner
recommended that the wife be granted a divorce on grounds of
desertion because the husband left the marital residence in
August 1983. On review of the commissioner's report, the trial
judge found that the evidence supported the grounds of desertion
and confirmed that aspect of the commissioner's report.
After further hearings, the commissioner found that the law
in effect in 1984 applied, that the parties had accumulated a
marital estate valued at $3,184,607.59, and that the wife was
entitled to a monetary award pursuant to Code § 20-107.3(D).
Addressing the factors under Code § 20-107.3(E) for determining
the award, the commissioner found that the parties' contributions
to the well-being of the family were "relatively equal" and that
both parties contributed to the acquisition and maintenance of
the marital property. The commissioner also found that the wife
was suffering from rheumatoid arthritis, a disabling disease
which prevented her from maintaining full time employment, and
that the husband continued to work full time. Finding that the
husband's misconduct caused the dissolution of the marriage and
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also had an economic impact on the marital property, the
commissioner decided that the wife was entitled to a credit in
her favor. After extensively addressing all the factors in Code
§ 20-107.3(E), the commissioner recommended that the wife be
awarded 55% of the marital estate, or $1,751,534.17. None of the
other recommendations made by the commissioner are at issue on
this appeal.
Upon review of the commissioner's report and the parties'
exceptions to that report, the trial judge affirmed the report
except for the portion giving the wife a credit to account for
the husband's misconduct in causing the dissolution of the
marriage. The trial judge found that those "circumstances had
little, if any, economic impact on the marital assets of the
parties." Upon making his own analysis of the statutory factors
and the evidence in the record, the trial judge ruled that the
amount of the award recommended by the commissioner was
nevertheless "reasonable and appropriate."
After the trial judge issued his ruling, counsel stipulated
that certain properties should not be regarded as part of the
marital estate. Thus, the total value of the marital estate was
reduced to $2,997,607, causing the wife's 55% share to be reduced
to $1,648,683. The trial judge approved the husband's conveyance
of certain properties to the wife in partial satisfaction of the
award and denied the husband's request that the remainder of the
judgment be satisfied by transferring certain other properties to
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the wife. After the husband conveyed to the wife properties with
a total value of $1,471,229.59, the trial judge found that the
husband still owed the wife $166,454.26 plus a portion of funds
in an escrow account. The judge awarded judgment to the wife for
$166,454.26 plus interest on that sum from the date of the May 4,
1995 order. The final decree was entered in December 1995.
II.
"The goal of equitable distribution is to adjust the
property interests of the spouses fairly and equitably." Booth
v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). In so
doing, the trial judge is required to "tak[e] into consideration
the factors presented in Code § 20-107.3(E)." Marion v. Marion,
11 Va. App. 659, 665, 401 S.E.2d 432, 436 (1991). "This division
or transfer of jointly owned marital property and the amount of
any monetary award, subject to the enumerated statutory factors,
is within the sound discretion of the trial court." Dietz v.
Dietz, 17 Va. App. 203, 216, 436 S.E.2d 463, 471 (1993).
The husband argues that when the trial judge found that the
husband's misconduct did not have an economic impact on the
parties' marital assets, see Aster v. Gross, 7 Va. App. 1, 5-6,
371 S.E.2d 833, 836 (1988), the trial judge necessarily was
required to adjust downward the percentage share of the marital
property awarded to the wife. We disagree that a different
division was a necessary consequence of the finding.
In Aster, this Court answered the inquiry "whether an award
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of a disproportionate percentage of [marital property] to one
party will, on its face, be error." 7 Va. App. at 7, 371 S.E.2d
at 837. This Court ruled as follows:
In Papuchis v. Papuchis, 2 Va. App. 130, 132,
341 S.E.2d 829, 830 (1986) we held that Code
§ 20-107.3 contains no presumption favoring
equal division of marital property.
Moreover, in reviewing an equitable
distribution award, we rely heavily on the
trial judge's discretion in weighing the
particular circumstances of each case. Only
under exceptional circumstances will we
interfere with the exercise of the trial
judge's discretion.
Aster, 7 Va. App. at 7-8, 371 S.E.2d at 837.
When the trial judge in this case ruled that the evidence
did not support the commissioner's ruling that the husband's
misconduct had an economic impact on the marital property, the
trial judge then considered "all the factors of [Code]
§ 20-107.3" and the evidence in the record. Notwithstanding the
commissioner's report, the trial judge was required to
independently weigh the evidence.
When a cause is referred to a commissioner in
chancery the [trial judge] does not delegate
his judicial function to him. The
commissioner is appointed for the purpose of
assisting the [trial judge] and not for the
purpose of supplanting or replacing him. It
is the duty of the [trial judge] to weigh the
evidence according to correct principles of
law and arrive at his own conclusions. Thus,
in this case, it is our duty to evaluate the
evidence and determine whether or not it
supports the findings of the commissioner or
the conclusions of the [trial judge].
Higgins v. Higgins, 205 Va. 324, 328-29, 136 S.E.2d 793, 796
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(1964).
Although the coincidence that the trial judge and the
commissioner reached the same percentage result in dividing the
property might appear surprising, we cannot conclude from this
record that the trial judge's analysis was erroneous. The record
contains evidence of the wife's age and ill health that, when
considered with the other evidence, could support the division
favoring the wife. Thus, upon a full review of the record, we
cannot say that the weight of the evidence is contrary to the
trial judge's ruling or that the trial judge abused his
discretion in weighing the evidence. See Aster, 7 Va. App. at
7-8, 371 S.E.2d at 837.
III.
"The party against whom a monetary award is made may satisfy
the award, in whole or in part, by conveyance of property,
subject to the approval of the court." Code § 20-107.3(D).
"[T]his provision serves to prevent unilateral action by the
party seeking to make payment by the transfer of property."
Payne v. Payne, 5 Va. App. 359, 366, 363 S.E.2d 428, 432 (1987).
The evidence proved that the majority of the marital
property consisted of real estate. Much of the real estate was
rental property, located in various places, and diverse in value.
The trial judge allowed the husband to satisfy approximately
ninety percent of the award by transferring property to the wife.
In view of the diverse properties and the husband's knowledge of
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the intrinsic values of the properties, we cannot say that the
trial judge abused his discretion in requiring the husband to
satisfy a small percentage of the award by making a cash payment.
Accordingly, we hold that no evidence proved the trial judge
abused his judicial discretion by not allowing the husband to
satisfy the entire award by a transfer of property. See id. at
366-67, 363 S.E.2d at 432.
IV.
The husband contends that the trial judge adopted an
evaluation date that was unsupported by the evidence. He argues
that this occurred when the trial judge adjusted the marital
estate to account for the sale of a property whose value had been
set by stipulation of the parties. We find no error.
The record established that when the parties presented
evidence before the commissioner they stipulated that the value
of a specific rental property was $20,000. Before the equitable
distribution award had been satisfied, the parties agreed to sell
that property for $50,082.90 in cash and a second deed of trust
note in the amount of $10,000, which was later paid in full.
Following the sale, the trial judge adjusted the marital estate
by deducting the stipulated $20,000 value of the property from
the marital estate and recalculated the amount of the wife's 55%
interest in the estate. The trial judge also ordered the
proceeds of sale to be divided 55% to the wife and 45% to the
husband.
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The trial judge's disposition was a rational way to give
effect to the decreed percentage division of the property.
Contrary to the husband's argument, that adjustment did not
violate any valuation principle recognized in Wagner v. Wagner,
15 Va. App. 120, 421 S.E.2d 218 (1992).
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V.
The wife contends on her cross appeal that the trial judge
erred in failing to award interest on the property distribution
award from the date of entry of the award. We disagree.
The trial judge's decree required the husband to satisfy the
property distribution award "within 180 days from March 17, 1994"
and refused the wife's request to award interest on the award.
We agree with the wife's argument that Brown v. Brown, 5 Va. App.
238, 361 S.E.2d 364 (1987), established that the trial judge was
not authorized to make such an award payable within 180 days.
See id. at 245-47, 361 S.E.2d at 368-69. However, Brown also
explicitly states that Code § 20-107.3(D) authorizes the trial
judge "to fix a date upon which the award was due and payable."
Id. at 247, 361 S.E.2d at 369. Likewise, Code § 8.01-382 states
that "[e]xcept as otherwise provided in [Code] § 8.3-122, in any
. . . suit in equity, the . . . decree of the court, may . . .
fix the period at which the interest shall commence."
Here, the trial judge explicitly ruled, in response to the
wife's motion, that interest would not be awarded on the portion
of the property distribution award to be satisfied by the
transfer of property as approved by the judge. The trial judge
did award the wife interest on the cash payment of $166,454.26
from May 4, 1995. In view of the trial judge's decision to award
the wife 55% of the marital property, most of which was satisfied
by a transfer of real estate, we find no error in the trial
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judge's decision to deny interest on that portion of the award
satisfied by a transfer of property.
For these reasons, the decree is affirmed.
Affirmed.
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