Karen I Perry v. Dwayne N Perry

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
KAREN I. PERRY
MEMORANDUM OPINION * BY
v. Record No. 0672-02-4 JUDGE G. STEVEN AGEE
NOVEMBER 19, 2002
DWAYNE N. PERRY
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge
Julia S. Savage (Lawrence D. Diehl; Walker,
Jones, Lawrence, Duggan & Savage, on briefs),
for appellant.
Paul A. Morrison (Howard, Morrison & Howard,
on brief), for appellee.
The circuit court granted a divorce based on the parties
living separate and apart for one year and provided for the
equitable distribution of their real and personal property. The
parties appeal different parts of the equitable distribution
award. Karen Perry ("wife") contends: the trial court erred (1)
in awarding her only one percent (1%) of the value of a marital
asset, (2) in its valuation of the Perry Racing business, and (3)
in not awarding wife attorneys' fees. Dwayne Perry ("husband")
appeals by claiming the trial court erred in valuing (1) the First
Virginia NOW accounts, (2) the backhoe, and (3) husband's Ford
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
truck. For the reasons set forth below, we affirm the rulings of
the trial court. 1
I. EQUITABLE DISTRIBUTION
If the court "'hears the evidence ore tenus, its finding is
entitled to great weight and will not be disturbed on appeal
unless plainly wrong or without evidence to support it.'"
Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,
631 (1988) (quoting Martin v. Pittsylvania County Dep't of
Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). On
appeal we must "view [the] evidence and all reasonable
inferences in the light most favorable to the prevailing party
below." Id. Furthermore, "[f]ashioning an equitable
distribution award lies within the sound discretion of the trial
judge and that award will not be set aside unless it is plainly
wrong or without evidence to support it." Srinivasan v.
Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
A. The Bearcastle Lot
The evidence at trial showed that during the marriage
husband wished to purchase a lot in the Bearcastle subdivision.
By her own testimony, wife did not think they could afford it
and did not want her husband to buy it. When husband's parents
1
As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
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offered to pay for the lot, wife again said she did not want it
but requested that, if they provided the purchase funds, that
the property be titled in both their names "in case something
happened to him." Husband's parents indicated to wife that the
purchase money was going to be part of his inheritance.
Thereafter husband's parents gave him a check to cover the
purchase price of the Bearcastle lot which apparently went into
husband's bank account. Husband then paid for the lot from his
account.
The trial court's first letter opinion of September 28,
2001, appears to trace husband's monetary contribution for the
lot under Code § 20-107.3(A)(3)(d). Although no specific
finding classifying the lot as marital property was made, the
trial court awarded husband substantially all of the value of
the lot based on the tracing of funds and found a marital share
of $2,000 which was divided equally. 2
The trial court's second letter opinion of January 4, 2002,
finds the Bearcastle property to be marital property based upon
its joint ownership, a conclusion with which the parties
evidently agree. In any event, we read the second letter
opinion to abandon the tracing analysis, but citing specific
2
The parties do not dispute the valuation for the
Bearcastle lot of $125,000.
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reasons to support awarding husband and wife the same monetary
values as in the first opinion letter.
In making an equitable distribution, the court must
classify the property, assign a value, and then distribute the
property to the parties, taking into consideration the factors
listed in Code § 20-107.3(E). Alphin v. Alphin, 15 Va. App.
395, 403, 424 S.E.2d 572, 576 (1992). "While the division or
transfer of marital property and the amount of any monetary
award are matters committed to the sound discretion of the trial
court, 'any division or award must be based on the parties'
equities, rights and interests in the property.'" Theismann v.
Theismann, 22 Va. App. 557, 564-65, 471 S.E.2d 809, 812 (1996)
(quoting Alphin, 15 Va. App. at 403, 424 S.E.2d at 577).
Wife argues that since all the marital property, except the
Bearcastle lot, was divided equally, the lot should be similarly
divided. She further contends that a 99% distribution to
husband of this one marital asset is error as a matter of law.
We disagree.
"Each party does have an equal legal interest, but the
application of the statutory factors [in Code § 20-107.3(E)] may
justify an unequal distribution." Lightburn v. Lightburn, 22
Va. App. 612, 618, 472 S.E.2d 281, 284 (1996). While the
Bearcastle lot is marital property, a 50-50 split is not
presumed at law.
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All of the provisions of Code § 20-107.3
must be followed in making an equitable
distribution decision. . . . We must be
able to determine from the record that the
trial court has given substantive
consideration to the evidence as it relates
to the provisions of this Code section.
Woolley v. Woolley, 3 Va. App. 337, 345, 349
S.E.2d 422, 426 (1986). . . . "This does
not mean that the trial court is required to
quantify or elaborate exactly what weight or
consideration it has given to each of the
statutory factors. It does mean, however,
that the court's findings must have some
foundation based on the evidence presented."
. . . [I]f the court's findings are not
supported by the evidence in the record, the
court has abused its discretion, and the
court's determination must be reversed.
Trivett v. Trivett, 7 Va. App. 148, 153-54, 371 S.E.2d 560, 563
(1988) (quoting Wagner v. Wagner, 4 Va. App. 397, 410, 358
S.E.2d 407, 414 (1987)) (internal citations omitted).
We find from the record that the trial court considered all
the statutory factors set forth in Code § 20-107.3(E). Further,
the trial court gave specific reasons for its division of the
Bearcastle lot's value. The record shows husband found the
property and secured the money for it, at no cost to the marital
estate. Wife, by her own admission, did not want the property
(notwithstanding the donation of the purchase price), and only
asked that the property be jointly titled in case husband
wrecked his speedboat.
"The statute allows the trial court to take into account
'such other factors as the court deems necessary or appropriate
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to consider in order to arrive at a fair and equitable monetary
award.'" Mir v. Mir, ___ Va. App. ___, ___, ___ S.E.2d ___, ___
(Oct. 29, 2002); Code § 20-107.3(E)(10). In doing so, the trial
court may make a significantly disproportionate award. For
example, in Mir, the primary marital asset was subject to a 95%
to 5% division of value.
The trial court could divide the Bearcastle lot based on
Code § 20-107.3(E)(2), (6) or (10) by disproportionate award to
husband. Accordingly, we find no error in the trial court's
decision, which is affirmed.
B. Perry Racing
The trial court's division of the Perry Racing asset was
its best effort with the limited evidence available. The hull
and rigging (and perhaps the pump and motor) were sold for
$5,400. Wife offered no evidence as to contemporary fair market
value. Her argument, using an item by item cost basis, ignores
the fact the rigging and other equipment were incorporated into
the boat and husband's uncontroverted evidence of market
conditions and market value.
There is evidence in the record to support the $10,000
valuation which lies between the $5,400 sale price and the cost
basis. Husband also testified, without contradiction, as to
defects in the boat and his marketing efforts to justify a sale
at less than cost. With no contemporary evidence of fair market
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value, other than the sale price, the trial court did not abuse
its discretion in the valuation or division. The trial court's
determination is affirmed.
C. Valuation of the NOW Accounts
Apparently these accounts were in husband's name alone.
Husband therefore had the unique ability to tender evidence of
date of separation or date of hearing bank statements to show a
value different from that shown by wife's evidence. Husband
failed to do so. The trial court made its determination on the
only evidence available. That decision was not an abuse of
discretion and is affirmed.
D. The Backhoe
Husband contended at trial that he sold the backhoe to his
father for an undetermined amount. He did not tell his wife
about the sale nor could he produce a bill of sale or any other
evidence to prove a sale. The trial court was free to reject
husband's evidence, consider the backhoe as marital property and
proceed to value that asset.
The trial court had some evidence as to value (namely the
purchase price) and did the best it could with the evidence
available. Husband cannot complain that he chose not to produce
valuation evidence where, again, husband had a unique ability to
do so. The trial court's valuation of the backhoe was not an
abuse of discretion and is affirmed.
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E. 1999 Ford F-250
Husband contends that wife's valuation of his Ford truck is
inaccurate because incorrect data concerning the truck's mileage
and transmission were utilized for Kelley Blue Book value.
Husband's contentions in this regard are not apparent from the
record. It cannot be said the trial court erred as a matter of
law in fixing the value based on the evidence presented, which
it was in the best position to evaluate as the trier of fact.
As there was no abuse of discretion, the trial court's valuation
of husband's truck is affirmed.
II. ATTORNEYS' FEES
"An award of attorney fees is discretionary with the court
after considering the circumstances and equities of the entire
case and is reviewable only for an abuse of discretion." Gamer
v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993).
"The key to a proper award of counsel fees is reasonableness
under all of the circumstances revealed by the record."
Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631
(1989).
The trial court did not abuse its discretion in determining
not to award attorneys' fees.
For the reasons set forth above, the decision and decree of
the trial court are affirmed.
Affirmed.
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