Howard Williams Dawson v. Shelby Fogg Dawson

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
HOWARD WILLIAMS DAWSON
v. Record No. 1305-95-2 MEMORANDUM OPINION *
PER CURIAM
SHELBY FOGG DAWSON DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
(Howard W. Dawson, pro se, on brief).
(Harry P. Anderson, Jr., on brief), for appellee.
Howard Williams Dawson (husband) appeals the equitable
distribution decision of the circuit court awarding certain
amounts to Shelby Fogg Dawson (wife). Husband's appeal raises
the following issues: (1) whether the circuit court erred or
abused its discretion in reaching its equitable distribution
decision; (2) whether the circuit court erred in not sanctioning
wife; and (3) whether the circuit court erred in ordering the
payment of a lien held by wife's father. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
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the trial court. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Wife argues that husband's appeal is untimely. The final
decree of divorce which equitably divided the parties' marital
property was entered on April 4, 1994. Wife contends the final
order was entered on October 25, 1994, at which time the court
approved the report of the special commissioner and allowed the
payment of outstanding liens and expenses and the distribution of
the marital property. However, both parties had outstanding
Equitable Distribution Decision
Husband alleges that the trial court erred in its equitable
distribution of the parties' marital assets. "Fashioning 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).
"[T]he chancellor is necessarily vested with
broad discretion in the discharge of the
duties . . . [Code § 20-107.3] imposes upon
him. Unless it appears from the record that
the chancellor has abused his discretion,
that he has not considered or has misapplied
one of the statutory mandates, or that the
evidence fails to support the findings of
fact underlying his resolution of the
conflict in the equities, the chancellor's
equitable distribution award will not be
reversed on appeal."
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted).
The matter was referred to a commissioner in chancery, who
heard the evidence ore tenus. The commissioner's report set out
both the statutory factors and the evidence upon which the
recommended distribution was based. The commissioner noted that
husband failed to present "admissible credible evidence of
alternative valuations and classifications." The commissioner
also noted that, while husband had made substantial monetary
motions which were not resolved until the court's decision of
March 3, 1995. Therefore, we find that husband's appeal is
timely.
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contributions early in the marriage, wife made the majority of
the non-monetary contributions throughout the marriage and the
majority of the monetary contributions in the last twelve years.
Wife also made the greater contributions toward the acquisition
of marital assets in the last twelve years of the marriage. In
addition, wife's father provided substantial assistance to the
family during times of financial difficulty.
The trial court accepted the equitable distribution award
recommended in the commissioner's report. The award was
supported by competent, credible evidence, and was made after
consideration of the statutory factors. We therefore find no
grounds for reversal of the court's equitable distribution
decision.
Sanctions against Wife
Husband alleged in the trial court that wife altered items
to be sold at auction in order to reduce their selling price and
committed waste in regards to other marital assets. Husband
argues the trial court erred in failing to sanction wife for
violations of its orders or to modify its equitable distribution
award.
A trial court's award or denial of sanctions is reversible
on appeal only if the trial court abused its discretion. Oxenham
v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991). While
husband brought his allegations of waste by wife before the trial
court, he presented only innuendo and speculation to support his
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allegations. In contrast, credible evidence supported the report
of the special commissioner regarding the outstanding liens,
costs and expenses to be paid prior to the distribution of the
remaining marital assets. Based upon that credible evidence, the
trial court ordered payments to be made pursuant to the special
commissioner's report. Therefore, we cannot say that the trial
court abused its discretion by denying husband's motion to
sanction wife.
Payment of Lien
On October 7, 1994, husband filed a motion disputing the
validity of the lien held by wife's father. On October 25, 1994,
the trial court approved the report of the special commissioner
and ordered the payment of all outstanding liens and expenses,
including the lien held by wife's father. Husband did not
endorse the order, although the order indicates the parties were
present in court.
Wife presented credible evidence documenting the lien.
Husband challenged the lien, but failed to present evidence to
support his challenge. "The burden is on the party alleging
trial court error to show by the record that the judgment was
erroneous, or that the finding was plainly wrong and without
evidence to support it by a preponderance of the evidence."
Carter v. Thornhill, 19 Va. App. 501, 509, 453 S.E.2d 295, 300
(1995). Husband has not demonstrated that the trial court's
decision to approve the outstanding lien was plainly wrong or
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unsupported by the evidence.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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