Richard C. Rudisill v. Marie H. Rudisill

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
RICHARD C. RUDISILL
v. Record No. 1636-94-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
MARIE H. RUDISILL MAY 2, 1995
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
Samuel T. Powell, III, Judge
Everette A. Felts for appellant.
Alexandra D. Bowen (Bowen and Bowen,
on brief), for appellee.
In this appeal, we uphold the final decree of divorce and
monetary award entered by the Circuit Court of Charles City
County. The appellant contends that the trial court erred by
finding that the wife did not desert the husband, by granting the
wife spousal support, by finding that the home, certificate of
deposit No. 76, and the round table were marital property, and by
finding the value of the boat to be $12,000. For the following
reasons, we affirm the decisions of the trial court.
Richard and Marie Rudisill were married in 1979. During the
marriage, the husband, Richard, executed a deed to himself and
his wife as tenants by the entirety to the home that he owned
before they were married. The parties separated in 1990, and the
wife filed a bill of complaint for divorce. The husband filed a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cross bill. The matter was referred to a commissioner in
chancery. Hearings were held, a report was filed, and exceptions
were noted. The circuit court entered a final decree and
monetary award.
On appeal, we view the evidence in the light most favorable
to the prevailing party below, granting to her all reasonable
inferences therefrom. McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990). A decree which approves a
commissioner's report will be affirmed unless plainly wrong.
Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 296 (1984).
We first consider whether the trial court erred by finding
that the wife did not desert the husband. Desertion occurs when
one spouse breaks off marital cohabitation with the intent to
remain apart permanently without the consent and against the will
of the other spouse. Barnes v. Barnes, 16 Va. App. 98, 101, 428
S.E.2d 294, 297 (1993). Code § 20-99(2) requires the complaining
party to prove and corroborate his or her grounds for a fault
divorce based on desertion. Hurt v. Hurt, 16 Va. App. 792, 800,
433 S.E.2d 493, 499 (1993). Desertion must be proven by a
preponderance of the evidence. Bacon v. Bacon, 3 Va. App. 484,
490, 351 S.E.2d 37, 40-41 (1986).
The commissioner found "that neither party proved a fault
grounds for divorce" and that there was not "sufficient
corroborated testimony to grant the husband a fault divorce on
the grounds of cruelty and desertion." The trial court accepted
-2-
the commissioner's findings. A trial court may accept or reject
a commissioner's findings as its judgment may require. Hodges v.
Hodges, 2 Va. App. 508, 513, 347 S.E.2d 134, 137 (1986). Unless
the trial court's acceptance or rejection of the commissioner's
report is plainly wrong, we will affirm the decision. See Seeman
v. Seeman, 223 Va. 290, 293, 355 S.E.2d 884, 886 (1987). We
cannot say that the trial court's acceptance of the
commissioner's findings was plainly wrong. Id.
The husband contends that the trial court erred by granting
spousal support to the wife. "In determining spousal support, a
trial court has broad discretion and 'the appellate court will
not interfere with such discretion, unless it is clear that some
injustice has been done.'" Morris v. Morris, 3 Va. App. 303,
309, 349 S.E.2d 661, 664 (1986) (quoting Oliver v. Oliver, 202
Va. 268, 272, 117 S.E.2d 59, 62 (1960)). In determining whether
an award of spousal support is to be granted, the trial court
must consider the factors listed in Code § 20-107.1. Carpenter
v. Carpenter, 19 Va. App. 147, 153, 449 S.E.2d 502, 505 (1994).
The court, however, is not required to quantify or elaborate what
weight or consideration it has given to each factor, as long as
the court's findings have support in the evidence presented.
Wooley v. Wooley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986). The commissioner conducted a detailed examination of the
husband's and wife's expenses and needs. Credible evidence
supported the trial court's findings. We will not interfere with
-3-
the trial court's discretion in this matter.
While the parties were married, the husband, by deed,
transferred the marital home, held solely in his name before the
marriage, to himself and his wife as tenants by the entirety.
The trial court approved the commissioner's finding that the
"property was transmuted to marital property by gift from husband
to wife." We uphold that finding. The deed of conveyance to the
husband and wife as tenants by the entirety during the marriage
transmuted the property to marital property. When the husband
transferred the property, the property became marital property.
See Westerbrook v. Westerbrook, 5 Va. App. 446, 453-54, 364
S.E.2d 523, 527-28 (1988). Having determined that the property
was marital and that the husband made a gift of an interest in
the property to wife, the trial court did not err in its
equitable distribution award.
The husband also contends that the trial court erred when it
adopted the commissioner's finding that certificate of deposit
No. 76 was marital property. Code § 20-107(3)(A)(2)(iii) defines
marital property as "property acquired by each party during
marriage." All property acquired by either spouse during the
marriage is presumed to be marital property. Hurt, 16 Va. App.
at 799, 433 S.E.2d at 497. The parties were married in 1979. On
his 1979 income tax return, the husband did not list certificate
of deposit No. 76 as property. A 1982 bank statement showed that
the husband then owned certificate of deposit No. 76. The
-4-
husband did not challenge the evidence. Thus, the evidence was
sufficient to support the commissioner's finding, as adopted by
the trial court, that certificate of deposit No. 76 was marital
property, since it was acquired during the marriage.
The husband contends that the court erred in classifying a
table to be marital property. The husband, however, did not
brief or address the issue. "We will not search the record for
errors in order to interpret the [husband's] contention and
correct deficiencies in the brief." Gottlieb v. Gottlieb, 19 Va.
App. 77, 86, 448 S.E.2d 666, 672 (1994) (quoting Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)). Nor
will we consider arguments not made in the appellate briefs. See
Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 372
(1994). See also Jenkins v. Commonwealth, 244 Va. 445, 460-61,
423 S.E.2d 360, 370 (1992), cert. denied, 113 S. Ct. 1862 (1993).
As a final contention, the husband states that the court
erred when it determined the value of a boat. This Court will
not disturb a trial court's valuation unless insufficient
evidence exists to support the valuation. Frye v. Spote, 4 Va.
App. 530, 537, 359 S.E.2d 315, 319-20 (1987). "While 'expert
testimony is the most expedient, and, in fact, the preferable
method for [valuing marital property] . . . the finder of fact is
not required to accept as conclusive the opinion of an expert.'"
Stratton v. Stratton, 16 Va. App. 878, 883, 433 S.E.2d 920, 923
(1993) (quoting Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d
-5-
471, 474 (1989)). We find that sufficient evidence exists in the
record to support the trial court's valuation.
We, therefore, affirm the trial court's decisions.
Affirmed.
-6-