Andreania Pace Ruffin v. Calvin Cornell Ruffin, Sr. ( 2000 )

  •                         COURT OF APPEALS OF VIRGINIA
    Present:    Judges Benton, Coleman and Willis
    v.   Record No. 1792-99-1
                                                    PER CURIAM
    ANDREANIA (PACE) RUFFIN                     FEBRUARY 22, 2000
    v.   Record No. 1804-99-1
                             Verbena M. Askew, Judge
                 (Frederic L. Moschel; Moschel, Gallo &
                 Clancy, L.L.C., on briefs), for Calvin
                 Cornell Ruffin, Sr.
                 (Vicki Beard, on briefs), for Andreania
                 (Pace) Ruffin.
         Calvin Cornell Ruffin, Sr. and Andreania (Pace) Ruffin appeal
    the final decree of divorce entered by the circuit court.       In his
    appeal, husband contends that the trial court erred in awarding
    wife $1,000 in monthly spousal support.    In her appeal, wife
    contends that the trial court erred by (1) failing to find that
    husband held his lottery winnings in a constructive trust for the
    benefit of wife and the parties' two children; (2) failing to find
    that husband was at fault in the dissolution of the marriage; (3)
         * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    failing to order husband to pay all outstanding marital debt; and
    (4) failing to award wife more monthly spousal support.    Upon
    reviewing the record and briefs of the parties, we conclude that
    these appeals are without merit.   Accordingly, we summarily affirm
    the decision of the trial court.   See Rule 5A:27.
         The parties married in 1989, had two children, and separated
    in November 1995.   The wife filed a bill of complaint for divorce
    on August 19, 1996.   Based upon evidence presented at a hearing
    held on September 19, 1996, the trial court entered a pendente
    lite order on October 1, 1996, directing husband to pay $120 a
    week in child support and $80 a week in spousal support, beginning
    September 20, 1996.   Husband did not make any support payments
    until January 1997.   On September 28, 1996, husband won $4.9
    million in a lottery, with a gross payout for twenty years
    exceeding $243,000 per annum.   After husband claimed his winnings
    in January 1997, wife filed a motion to increase support.    By
    order entered March 30, 1998, the trial court ordered husband to
    pay $2,446 in monthly child support.    Monthly spousal support
    remained $344, and the trial court ordered husband to pay $823 to
    wife for payment of over $1,100 in monthly marital debts including
    the mortgage.   The trial court left to be resolved at a later
    hearing whether the additional payment of $823 was to be
    characterized as additional spousal support.
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         By order entered April 30, 1997, the trial court referred the
    matter to a commissioner in chancery to determine the grounds for
    divorce, equitable distribution and support.    The commissioner's
    hearing was held on February 17, 1998, and the report filed with
    the court on May 4, 1998.   The commissioner recommended that
    husband be granted a divorce on the ground of a one-year
    separation.   The commissioner also recommended that wife receive
    $750 in monthly spousal support for a period of four years; that
    the parties split the marital debt equally; and that wife's
    request for the imposition of a constructive trust on husband's
    lottery winnings be denied.   Both parties filed exceptions to the
    report.   In its decree a vinculo matrimonii entered July 2, 1999,
    the trial court granted wife's exception to the commissioner's
    recommended spousal support award.     The trial court awarded wife
    $1,000 in permanent monthly spousal support.    The trial court
    otherwise accepted the commissioner's report.    Both parties
                             Constructive Trust
         Wife contends that the trial court erred by failing to find
    that husband's lottery winnings were subject to a constructive
    trust for her benefit and that of the parties' children.    Wife
    argues that husband used his last available funds to purchase the
    lottery tickets instead of paying his court-ordered child and
    spousal support.   The commissioner found no evidence of fraud or
    unjust enrichment warranting the imposition of a constructive
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    trust on husband's winnings.   The trial court agreed with that
         We find no error in the trial court's determination.
               "'Constructive trusts arise, independently
               of the intention of the parties, by
               construction of law; being fastened upon the
               conscience of him who has the legal estate,
               in order to prevent what otherwise would be
               a fraud. They occur not only where property
               has been acquired by fraud or improper
               means, but also where it has been fairly and
               properly acquired, but it is contrary to the
               principles of equity that it should be
               retained, at least for the acquirer's own
    Rash v. Hilb, Rogal & Hamilton Co., 
    251 Va. 281
    , 287, 
    467 S.E.2d 791
    , 795 (1996) (citations and emphasis omitted).     "[T]he burden
    of establishing the grounds for the imposition of a constructive
    trust [is] by clear and convincing evidence."    Hill v. Brooks, 
    253 Va. 168
    , 174, 
    482 S.E.2d 816
    , 820 (1997).   "Moreover, in order to
    be entitled to the benefit of a constructive trust, a claimant's
    money must be 'distinctly traced' into the chose in action, fund,
    or other property which is to be made the subject of the trust."
    Crestar Bank v. Williams, 
    250 Va. 198
    , 204, 
    462 S.E.2d 333
    , 335
         Wife contends that the $2 husband used to purchase the
    winning lottery ticket on September 28, 1996 were already owed to
    her and their children pursuant to the pendente lite order of the
    trial court at the September 19, 1996 hearing.    She argues that a
    constructive trust arose as of September 20, 1996, the date when
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    his first support payments were due. 1   However, no fund existed on
    that date upon which to impose a constructive trust, as husband
    did not win the lottery until eight days later.    It is true that
    husband's first and second weekly payments were outstanding on the
    day husband purchased the winning lottery ticket.    However, as
    acknowledged by wife, husband had limited funds on September 20
    due in part to the fact he recently had purchased a car.    Although
    husband's car payments were undoubtedly a greater drain on his
    ability to pay support than the $2 he used to purchase the lottery
    tickets, wife argued that the money husband used to purchase the
    tickets was traceable solely to funds obligated for support.
         While husband's failure to pay his court-ordered support was
    reprehensible, wife failed to present sufficient evidence of fraud
    or unjust enrichment to warrant the imposition of a constructive
    trust on his lottery winnings.    Husband purchased the lottery
    tickets pursuant to his habit established throughout the marriage.
    As a result of his winnings, he was capable of providing greater
    financial support to his children than at any time during the
    marriage.   We cannot say that husband's good fortune so reeked of
    injustice as to require the imposition of a constructive trust on
    his lottery winnings.
           This ruling was subsequently memorialized in an order
    entered October 1, 1996.
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                              Grounds of Divorce
         Wife also contends that the trial court erred in failing to
    award her a divorce on the ground of desertion.     The commissioner
    recommended that husband be granted a divorce on the basis of a
    one-year separation.   The trial court accepted that
    recommendation.   Assuming without deciding that there was
    sufficient evidence to support a finding of desertion by husband,
    "[i]t is well established that 'where dual or multiple grounds for
    divorce exist, the trial judge can use his sound discretion to
    select the grounds upon which he will grant the divorce.'"
    Williams v. Williams, 
    14 Va. App. 217
    , 220, 
    415 S.E.2d 252
    , 253
    (1992) (citation omitted).    Evidence established that the parties
    lived separate and apart in excess of one year intending the
    separation to be final.   Therefore, there was evidence supporting
    the trial court's decision.    We find no abuse of discretion in the
    trial court's decision not to award wife a divorce on the ground
    of desertion.
                                 Marital Debts
         Wife contends that the trial court erred by failing to assign
    approximately $8,000 in marital debts to husband.     Under Code
    § 20-107.3(C), the trial court has the authority "to apportion and
    order the payment of the debts of the parties, or either of them,
    that are incurred prior to the dissolution of the marriage, based
    upon the factors listed in subsection E."      "[D]ecisions concerning
    equitable distribution rest within the sound discretion of the
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    trial court and will not be reversed on appeal unless plainly
    wrong or unsupported by the evidence."     McDavid v. McDavid, 19 Va.
    App. 406, 407-08, 
    451 S.E.2d 713
    , 715 (1994).     There was no
    evidence that the debts were incurred solely for the benefit of
    one party.   Wife's argument, distilled to its essence, is that
    husband's post-separation lottery winnings give him greater
    resources from which to pay these debts.     We find that argument
    unpersuasive, and find no error in the trial court's decision to
    require the parties to share the marital debts equally.
                               Spousal Support
         Finally, wife contends that the trial court erred by failing
    to award her more spousal support.      The trial court considered
    both the statutory factors and the evidence before making its
    award.    While wife faced greater expenses with the prospective
    relocation to a larger residence, she also had the greater income
    throughout the marriage.   In fact, wife was the primary wage
    earner.   We find no error in the trial court's refusal to award a
    greater amount of spousal support.
         Likewise, we find no error in the trial court's requirement
    that husband pay wife $1,000 per month permanent spousal support.
    The trial court's determinations, supported by the evidence,
    imposed no bar to wife's entitlement to support.     The amount
    ordered is consistent with her proven need and husband's proven
    ability to pay.
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         Accordingly, the decision of the circuit court is summarily
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