Willard Morris v. Joanne Lynne Nagy Morris

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WILLARD MORRIS
MEMORANDUM OPINION *
v. Record No. 1066-97-4 PER CURIAM
JANUARY 27, 1998
JOANNE LYNNE NAGY MORRIS
FROM THE CIRCUIT COURT OF PAGE COUNTY
Joshua L. Robinson, Judge Designate
(H. Webb Hudson, Jr., on brief), for
appellant. Appellant submitting on brief.
(Nancy M. Reed; Reed & Reed, on brief), for
appellee. Appellee submitting on brief.
Willard Morris appeals from the portion of the final decree
of divorce which awards to his wife, Joanne Lynne Nagy Morris,
the majority of the parties' marital assets. The husband
contends that the trial judge erred when he (1) considered as a
statutory factor for equitable distribution under Code
§ 20-107.3(E) his criminal felony conviction and (2) gave
insufficient weight to his monetary contributions toward the
acquisition of the marital assets. We agree. Therefore, we
reverse the judgment and remand.
"Equitable distribution is predicated upon the philosophy
that marriage represents an economic partnership requiring that
upon dissolution each partner should receive a fair portion of
the property accumulated during the marriage." Aster v. Gross, 7
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Va. App. 1, 5, 371 S.E.2d 833, 836 (1988). Although
"[f]ashioning an equitable distribution award lies within the
sound discretion of the trial judge," Srinivasan v. Srinivasan,
10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990), the trial judge
commits reversible error when "it appears from the record that
the trial judge has not considered or has misapplied one of the
statutory mandates." Ellington v. Ellington, 8 Va. App. 48, 56,
378 S.E.2d 626, 630 (1989).
The statement of facts recites that the parties separated
several times during their marriage. During one of the
separations, the husband purchased a parcel of real estate and a
mobile home in March 1989. In September 1995, the husband was
convicted of several felonies. Two months later, the husband
conveyed the real estate to himself and the wife as tenants by
the entirety. The wife "contributed $8,000 toward the payments
made for the land and the mobile home."
The divorce was granted on the ground that the parties had
lived separate for more than a year beginning in December 1994.
The residential mobile home and lot jointly, valued at $21,500,
were the parties' sole marital assets for distribution. The
trial judge awarded the residence to the wife, subject to a $500
lien to pay the husband's guardian ad litem.
The husband, who, at the time of trial, was serving a
twenty-year sentence for felony convictions, contends that the
trial judge erroneously attached "special weight" to his criminal
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activity. He argues that no evidence proved that his crimes and
incarceration caused a negative economic impact on the marriage
or marital property. We agree.
In decreeing as to the property of the parties, the trial
judge is required to consider the factors contained in Code
§ 20-107.3(E). "Code § 20-107.3, providing for equitable
distribution, is based on the notion that marriage is an economic
partnership in which the parties, through varying contributions,
monetary and nonmonetary, to the acquisition, maintenance, and
care of property and to the well-being of the family, may
accumulate marital wealth." Dietz v. Dietz, 17 Va. App. 203,
210, 436 S.E.2d 463, 467 (1993).
[C]ircumstances that affect the partnership's
economic condition are factors that must be
considered for purposes of our equitable
distribution scheme. Circumstances that lead
to the dissolution of the marriage but have
no effect upon marital property, its value,
or otherwise are not relevant to determining
a monetary award, need not be considered. A
trial court need only consider those
circumstances leading to the dissolution of
the marriage, that are relevant to
determining a monetary award in order to
avoid an unreasonable result.
Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836. "Fault is not a
'wild card' that may be employed to justify what otherwise would
be an arbitrary or punitive award. When fault is relevant in
arriving at an award, the trial judge is required to consider it
objectively, and how, if at all, it quantitatively affected the
marital estate or well being of the family." O'Loughlin v.
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O'Loughlin, 20 Va. App. 522, 528, 458 S.E.2d 323, 326 (1995).
Over the seventeen years of the marriage, the parties
separated several times. Although the final decree recites that
the husband's "criminal activity . . . led up to the parties'
separation," no evidence tended to prove that the husband's
criminal activity or conviction had any effect upon the value of
the real estate or mobile home or had a negative economic impact
upon the marital estate. In the absence of any such evidence,
the trial judge erred in determining that the husband had no
rights or equity in the marital property and was not entitled
under Code § 20-107.3(E) to an equitable award for his share of
the marital assets. Accordingly, the trial court erred in
dividing the parties' marital assets by awarding $21,500 to the
wife, subject to a $500 lien to pay the husband's guardian ad
litem. No evidence supports such a distribution of the property
of the parties.
Accordingly, we reverse the decision and remand the matter
to the trial judge for reconsideration of his equitable
distribution award.
Reversed and remanded.
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Willis, J., dissenting.
The record does not support the majority's finding that the
trial court improperly applied the statutory factors found in
Code § 20-107.3(E) when making its equitable distribution
determination. Specifically, proper consideration of the
parties' ages and physical and mental conditions, the
circumstances which contributed to the dissolution of the
marriage, the debts and liabilities of each party and the basis
for those debts and liabilities, the liquidity of the marital
assets, and other necessary and appropriate factors as determined
by the trial court supports the trial court's determination. See
Code § 20-107.3(E)(4), (5), (7), (8), and (10). Therefore, I
would affirm the judgment of the trial court.
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