Joe Gaines Foreman v. Kristie K. Ketchum ( 1999 )

  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Coleman, Elder and Bumgardner
    Argued at Alexandria, Virginia
                                                MEMORANDUM OPINION * BY
    v.   Record No. 2092-98-4               JUDGE RUDOLPH BUMGARDNER, III
                                                     JULY 27, 1999
                           J. Howe Brown, Judge
              Beth A. Bittel (Law Offices of Beth A.
              Bittel, on briefs), for appellant.
              Kristie K. Ketchum, pro se.
         Joe Gaines Foreman and Kristie K. Ketchum were divorced by
    a final decree entered August 14, 1998.     The husband appeals the
    trial court’s (1) equitable distribution of the marital
    residence; (2) classification of the Fidelity Investments IRA
    account as marital property; (3) finding that he was at fault;
    (4) finding that denial of spousal support would constitute a
    manifest injustice; (5) failure to impute income to the wife;
    and (6) denial of husband’s motion to reopen.       We affirm the
    trial court on all issues except its classification of the IRA
    account, which we reverse and remand for reconsideration in
    light of this decision.
         * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
         We view the evidence in the light most favorable to the
    wife, the prevailing party below.       See Cook v. Cook, 
    18 Va. App. 726
    , 731, 
    446 S.E.2d 894
    , 896 (1994).      The parties married in
    1986 when the wife was 28 and the husband was 46; they separated
    in March 1997.   This was the husband’s third marriage, the
    wife’s first.    The trial court awarded the wife sole physical
    and legal custody of the two children.      The parties did not
    appeal the custody issues.
         The husband was anxious to start a family, but the wife
    wanted to continue pursuing her career goals, which included
    getting a Ph.D. and maintaining her financial independence.       The
    wife, who had a master’s degree in Education of the Deaf, worked
    full-time at Children's Hospital and part-time at Gallaudet
    University.   She stayed home for six months after their
    children's birth, and subsequently earned $26,000 annually
    working part-time at Children's Hospital.      By 1996, she had
    completed her Ph.D. course work.    In October 1997, the wife
    commenced employment with the Fairfax County schools.      The
    husband, who had a Ph.D. in electrical engineering from Johns
    Hopkins University, earned $86,000 per year at the Naval
    Research Laboratory.
         The parties first entered marital counseling in 1988.        Dr.
    Harvey Oaklander saw them as a couple for three years; he also
    saw the husband individually through 1991 and the wife until
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    1994.    The parties saw two other marital counselors after 1991
    and a financial advisor in 1996.
            The husband commenced psychoanalysis in 1992 with Dr.
    Houston MacIntosh at an annual cost of approximately $18,000
    between 1993 and 1996.    The wife testified that his therapy was
    a source of great discord in the marriage.     She testified the
    expense had a negative impact on the parties' lifestyle
    affecting the food and clothes she purchased and the vacations
    they took.    It also affected the marriage:   the husband's
    relationship with his therapist was the most important one in
    his life, what they addressed was none of the wife's business,
    and for four years he attended sessions 3-4 times per week.
            In March 1997, the wife left the marital residence, took
    the children, and filed for divorce on the grounds of
    constructive desertion and mental cruelty.     The husband denied
    all allegations of fault and cross-complained alleging adultery.
    The wife then amended her complaint to charge adultery.
            The trial court referred the issues of fault to a
    commissioner in chancery.    Both parties excepted to the
    commissioner’s May 19, 1998 report.      The trial judge conducted
    the equitable distribution hearing in June, ruled on the
    objections to the commissioner’s report, and entered the final
    decree on August 14, 1998.    The court denied the husband’s
    motion to re-open certain testimony from the equitable
    distribution trial.
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         The court granted the husband a divorce based on the wife’s
    adultery.   However, it noted that the wife's adultery was
    unrelated to the breakdown of the marriage.    The trial court
    found that the husband's focus of time and energy on his
    psychoanalysis was a significant factor in the breakdown of the
         In challenging the equitable distribution award, the
    husband argues the trial court erred in finding a gift of half
    the total equity in the marital residence and in dividing the
    residence equally.   Equitable distribution awards will be upheld
    "unless it appears from the record that the trial judge 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 equities . . . ."     Blank v. Blank, 10 Va.
    App. 1, 9, 
    389 S.E.2d 723
    , 727 (1990).
         The wife must prove the husband's donative intent as well
    as the nature and extent of his intent.     See Lightburn v.
    22 Va. App. 612
    , 617, 
    472 S.E.2d 281
    , 283 (1996)
    (citations omitted).   “We look to what the words express, not
    what the grantor may have intended.”     Davis v. Henning, 
    250 Va. 271
    , 275, 
    462 S.E.2d 106
    , 108 (1995) (citation omitted).       See
    Capozzella v. Capozzella, 
    213 Va. 820
    , 824, 
    196 S.E.2d 67
    , 70
    (1973) (a deed intended for one purpose is intended "for all
    purposes apparent on its face”); Rowe v. Rowe, 
    24 Va. App. 123
                                   - 4 -
    480 S.E.2d 760
    , 766-67 (1997).   The court may consider
    the circumstances in existence at the time a deed is executed,
    see Hills v. Brooks, 
    253 Va. 168
    , 177, 
    482 S.E.2d 816
    , 822
    (1997); Davis, 250 Va. at 275, 462 S.E.2d at 108, and any
    ambiguity is construed against the grantor.   See Phipps v.
    216 Va. 706
    , 710, 
    222 S.E.2d 536
    , 539 (1976).
         The husband purchased the marital residence before the
    marriage for $184,000.   He invested between $70,000 and $75,000
    in separate funds in the house before and during the marriage.
    The wife contributed to the upkeep and maintenance of the house.
    On May 13, 1992, the husband recorded a deed of gift
    transferring the house jointly as tenants by the entirety with
    right of survivorship.
         The wife claims that the parties agreed to title the house
    jointly and own it equally if she deferred her career in order
    to raise children.   Dr. Oaklander characterized the agreement as
    a "quid pro quo"; she would defer her "career indefinitely
    because she wanted to stay at home . . . in return for the total
    equality financially."   Ultimately they executed the deed before
    the wife’s second pregnancy.
         The husband does not dispute that he agreed to put the
    wife's name on the house in case he died; he also wanted her to
    earn equity in it.   He argues, however, that he intended her to
    get one-half of all future equity earned during the marriage,
    not one-half of its full equity.
                                   - 5 -
         Code § 20-107.3(A)(2)(i) provides that marital property is
    "all property titled in the names of both parties whether as
    joint tenants, tenants by the entirety or otherwise, except as
    provided by subdivision A3."    Subdivision (A)(3)(f) provides
    "[w]hen separate property is retitled in the joint names of the
    parties, the retitled property shall be deemed transmuted to
    marital property.    However, to the extent the property is
    retraceable by a preponderance of the evidence and was not a
    gift, the retitled property shall retain its original
    classification."    (Emphasis added).    The court found the
    husband's testimony that he did not understand the deed of gift
    and only wanted the wife to get part of the house
    "disingenuous."     See Langman v. Alumni Association of the
    University of Virginia, 
    247 Va. 491
    442 S.E.2d 669
    Speight v. Commonwealth, 
    4 Va. App. 83
    , 88, 
    354 S.E.2d 95
    , 98
    (1987) (en banc) (fact finder is judge of witness' credibility).
    Notwithstanding his separate contributions, the trial court
    found that the husband intended to make an unconditional gift of
    one-half of the full equity in the house to the wife because of
    the deed.   The evidence supports this finding.
         In making an equitable distribution award of marital
    property, the court must apply the Code § 20-107.3(E) factors.
    See Rowe, 24 Va. App. at 138, 480 S.E.2d at 767.      It is not,
    however, "required to quantify or elaborate exactly what weight
    or consideration it has given to each of the statutory factors."
                                     - 6 -
    Woolley v. Woolley, 
    3 Va. App. 337
    , 345, 
    349 S.E.2d 422
    , 426
           Highlighting some relevant factors, the trial court found
    that the wife deferred her career to raise children, delayed
    retirement, and helped to maintain the home.   It also found that
    the husband made a significant non-monetary negative
    contribution to the marriage by devoting his time and energy to
    his therapy and that he intended to give the wife half the
           Clearly, the trial court considered the parties'
    contributions to the marriage and the marital residence, the
    cause of the breakdown of the marriage, and other appropriate
    factors.   Because its decision is based on the evidence, we find
    no error in its failure to cite to each factor.     In light of all
    the evidence, we uphold the trial court's equal division of the
    marital residence.    See Blank, 10 Va. App. at 9, 389 S.E.2d at
           We next consider the classification of the Fidelity
    Investments IRA.   The trial court ruled that the evidence was
    insufficient to prove that the IRA was husband's separate
    property and classified it as marital property. 1   The husband
           The trial court ruled that "the evidence was that
    [husband] said, he was the only person that contributed to it,
    but the evidence was insufficient to show that it was separate
    property. I think it was marital property."
                                    - 7 -
    argues the IRA was presumed separate property pursuant to Code
    § 20-107.3(A)(1).   We agree.
         "[T]he character of property at the date of acquisition
    governs its classification pursuant to Code § 20-107.3."
    Stratton v. Stratton, 
    16 Va. App. 878
    , 881, 
    433 S.E.2d 920
    , 922
    (1993).   "Code § 20-107.3 provides that property . . . acquired
    before marriage is presumed to be separate."    Barnes v. Barnes,
    16 Va. App. 98
    , 104, 
    428 S.E.2d 294
    , 299 (1993).
         The husband argues that he acquired the IRA before the
    marriage and it earned only passive income during the marriage.
    His disclosure form lists the purchase date as 1982; the parties
    married in 1986.    The wife presented no evidence to show that
    the IRA was marital or that it was acquired during the marriage.
         There was uncontradicted evidence that the husband acquired
    the IRA before the marriage and invested no money in it during
    the marriage.   By statute, the IRA is presumed separate
    property.   The trial court erred in classifying it as marital
    property and including it in the marital estate.   We reverse
    this decision and remand the case for reconsideration of the
    equitable distribution award in light of this ruling.
         Next we consider whether the trial court erred in awarding
    the wife spousal support despite her adulterous conduct.
    Spousal support may be awarded to a party who has committed
    adultery "when the trial court finds by clear and convincing
    evidence that denial of support would constitute a 'manifest
                                    - 8 -
    injustice, based upon the relative degrees of fault during the
    marriage and the relative economic circumstances of the
    parties.'"    Rahbaran v. Rahbaran, 
    26 Va. App. 195
    , 211-12, 
    494 S.E.2d 135
    , 141 (1997) (citing Code § 20-107.1; Barnes v.
    16 Va. App. 98
    , 102, 
    428 S.E.2d 294
    , 298 (1993)).
         The husband, denying all allegations of fault for the
    breakdown in the marriage, challenges the propriety of the
    award.   Fault "encompasses all behavior that affected the
    marital relationship, including any acts or conditions which
    contributed to the marriage's failure, success, or well-being."
    Barnes, 16 Va. App. at 102, 428 S.E.2d at 298.    See also
    O'Loughlin v. O'Loughlin, 
    20 Va. App. 522
    , 528, 
    458 S.E.2d 323
    326 (1995).
         The court, considering both parties' conduct, found that
    the wife's adultery did not cause the dissolution of the
    marriage because their relationship had deteriorated to the
    point of just living together prior to 1996.   The evidence
    supports this finding.   The parties were in counseling
    throughout most of the marriage; the husband thought the
    marriage was failing as early as 1992 when he entered therapy;
    after 1992, the parties ceased behaving as a couple, doing
    things as a family, and having sexual relations; they slept in
    separate bedrooms beginning in 1995; and took no family
    vacations in 1993, 1994, and 1996.
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            The trial court further found that the husband's obsession
    with his psychoanalysis was a significant factor in the
    breakdown of the marriage.    Aside from his own testimony, the
    husband presented no evidence that he needed the psychoanalysis.
    In fact, Dr. Oaklander testified that in his medical opinion the
    husband did not need psychoanalysis.      This opinion is supported
    by evidence that the husband abruptly terminated his sessions in
            The trial court must also weigh and consider the parties'
    comparative economic positions.    It expressly noted that the
    husband had greater earning capacity and income than the wife.
    See Barnes, 16 Va. App. at 103, 428 S.E.2d at 298.       Even if she
    worked full-time, her salary would only be one-half of his, and
    she would have to pay for day care.      We find that the court
    considered the parties' respective degrees of fault and their
    relative economic situations in finding that to deny the wife
    support because of her adultery would be manifestly unjust in
    this case.    The evidence supports the support award.
            We next consider whether the trial court erred in failing
    to impute income to the wife.    The husband contends the wife is
    voluntarily underemployed and that the court erred in failing to
    determine her earning capacity.    We disagree.
            In setting or modifying spousal support, a court may impute
    income to a party voluntarily underemployed.      See Stubblebine v.
    22 Va. App. 703
    , 710, 
    473 S.E.2d 72
    , 75 (1996) (en
                                    - 10 -
    banc); Calvert v. Calvert, 
    18 Va. App. 781
    , 784, 
    447 S.E.2d 875
    876 (1994).   The court's decision will not be disturbed on
    appeal unless plainly wrong or unsupported by the evidence.      See
    Saleem v. Saleem, 
    26 Va. App. 384
    , 393, 
    494 S.E.2d 883
    , 887
    (1998).   Whether a person is voluntarily underemployed is a
    factual determination.   In evaluating a request to impute
    income, the trial court must "consider [the parties'] earning
    capacity, financial resources, education and training, ability
    to secure such education and training, and other factors
    relevant to the equities of the [parties]."      Niemiec v. Dept. of
    Soc. Servs., Div. of Child Support Enforcement, 
    27 Va. App. 446
    499 S.E.2d 576
    , 579 (1998).      Furthermore, the husband has
    the burden of proving that the wife was voluntarily foregoing
    more gainful employment.    See id.
         The evidence supports the trial court's finding that the
    wife was not voluntarily underemployed and that the parties
    agreed that she would not work full-time while the children were
    young.    The wife provided both monetary and non-monetary
    contributions to the family.   She was an equal marital partner;
    she worked outside the home before and after the children were
    born, maintained the household, and cared for the children.
    When she perceived her job was in jeopardy, she secured
    employment as a “cued speech” educator earning $21,155 annually
    on a ten-month contract.
                                   - 11 -
         The husband also failed to establish that the wife
    voluntarily rejected full-time employment.   His expert testified
    that there were three full-time positions available in Fairfax
    County where the wife could earn approximately $30,000.   The
    wife challenged his expert on whether the vacancies were in
    "cued speech," her specialized field, how many applications each
    position had, and what the competition was for each.   Under
    these circumstances, the court properly held that the wife had
    not unreasonably refused employment for which she was qualified.
    See Srinivasan v. Srinivasan, 
    10 Va. App. 728
    , 734, 
    396 S.E.2d 675
    , 679 (1990).   We affirm the finding that the wife is not
    voluntarily underemployed and its decision not to impute income
    to her.
         Finally, we affirm the denial of the husband's motion to
    reopen.   He claims that the wife's justification for leaving the
    Children's Hospital job was inconsistent with prior statements,
    caught him by surprise, and prevented him from presenting
    rebuttal evidence.   In support of his motion, the husband
    proffered testimony from the wife's supervisor that (1) she was
    not fired, (2) she voluntarily resigned, and (3) he did not tell
    her that her position would be eliminated.
         It is within the trial court's discretion to grant or deny
    a rehearing.   See Hughes v. Gentry, 
    18 Va. App. 318
    , 326, 
    443 S.E.2d 448
    , 453 (1994) (citation omitted).   "[A] petitioner must
    show either an 'error on the face of the record, or . . . some
                                  - 12 -
    legal excuse for his failure to present his full defense at or
    before the time of entry of the decree.'"   Holmes v. Holmes, 
    7 Va. App. 472
    , 480, 
    375 S.E.2d 387
    , 392 (1988) (quoting Downing
    v. Huston, Darbee Co., 
    149 Va. 1
    , 9, 
    141 S.E. 134
    , 136-37
         The wife testified that she left her job because her
    supervisor had been fired, she felt her job was in jeopardy,
    that it was becoming increasingly difficult to bill insurance
    companies for educator services, and that she was advised that
    it was "probably time to look around."
         Despite the husband's claim that this testimony surprised
    him, he did not cross-examine the wife about her alleged prior
    inconsistent statements.   See Code § 8.01-404.   Nor did he
    establish that the wife's trial testimony was in fact
    inconsistent with her prior statements.   Therefore, there is no
    justification for the husband's "surprise" or lack of
    preparation.   The husband also failed to show that his "new"
    evidence was "not known or accessible" prior to trial, Hughes,
    18 Va. App. at 326, 443 S.E.2d at 453, or that it is likely to
    produce a different result.   We affirm the denial of this
         For the foregoing reasons, we affirm all issues raised
    herein except the classification of the Fidelity Investments
                                  - 13 -
    IRA.   We reverse and remand that issue for reconsideration in
    accordance with this opinion.
                                         Affirmed in part,
                                         reversed and remanded.
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