Jorge Juan Nieto Cano v. Jessica Brooke Davidson ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED
JORGE JUAN NIETO CANO
MEMORANDUM OPINION*
v. Record No. 1817-13-3 PER CURIAM
APRIL 1, 2014
JESSICA BROOKE DAVIDSON
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Thomas J. Wilson, IV, Judge
(Shelly R. James, on briefs), for appellant.
(Grant D. Penrod; David A. Penrod; Beth C. Driver; Hoover Penrod,
PLC, on brief), for appellee.
Jorge Juan Nieto Cano (husband) appeals from the parties’ final decree of divorce. Husband
argues that the trial court erred by (1) finding that he had “only $40,160.00 of separate equity in the
marital home because the evidence proved that additional separate funds of [husband] added to the
equity in the home”; (2) “dividing the marital property 50/50 where the evidence proved that
[husband] contributed significant amounts of separate funds to the family”; and (3) denying
husband’s request for spousal support and “misapplying the factors in Code § 20-107.1,” finding
that husband was in the same financial position as when he married Jessica Brooke Davidson (wife),
and “ignoring the disparity in the parties’ income.” By way of cross-error, wife argues that the trial
court erred by awarding husband $40,160 as his separate property from the sale of the former
marital residence. Upon reviewing the record and briefs of the parties, we conclude that the
arguments presented by the parties are without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).
On November 29, 2001, wife and husband married in Spain. Husband owned an
apartment in Spain, which is where the parties lived when they first married. While in Spain,
husband worked with NATO, and wife did not work outside of the home. Shortly thereafter, the
parties moved to the United States, and husband rented his Spanish apartment. Wife attended
school in the United States and obtained her Ph.D. in history.
In 2004, the parties moved from Massachusetts to Harrisonburg, Virginia. Wife worked
as a professor at James Madison University (JMU). Husband worked various jobs.
In 2007, the parties purchased the marital residence. Husband used $40,160 from his
separate property for the down payment. There was no evidence about the purchase price of the
house.
During the marriage, husband sold his Spanish apartment. He used some of the funds to
pay marital debts and make repairs and improvements to the marital residence. He also used his
separate funds to purchase a Honda Odyssey.
On October 1, 2011, the parties separated, and husband moved from the marital
residence. Wife and the parties’ two children stayed in the marital residence. Both parties
worked at JMU; however, wife earned more than husband.
Wife filed a complaint for divorce on October 9, 2012. Husband filed an answer and
counter-complaint. On August 2, 2013, the parties presented their evidence to the trial court. On
August 9, 2013, the trial court issued its letter opinion, which granted a no-fault divorce to wife.
The trial court held that the marital residence was valued at $254,500 and had a mortgage
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balance of $166,120.96 as of the date of separation. It found that husband contributed $40,160
from his separate funds to the equity in the marital residence and awarded him this amount.
After evaluating the factors in Code § 20-107.3, the trial court equally divided the parties’
marital assets. After considering the factors in Code § 20-107.1, the trial court denied husband’s
request for spousal support.
The trial court entered the final decree of divorce on August 26, 2013. Both parties
contest portions of the trial court’s rulings.
ANALYSIS
Former marital residence
Both parties argue that the trial court erred in finding that husband made a separate
contribution of $40,160 to the former marital residence. Husband contends he made a greater
separate contribution, and wife asserts that husband failed to prove his separate contributions.
On appeal, “decisions concerning equitable distribution rest within the sound discretion
of the 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) (citing
Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).
The parties purchased the former marital residence during the marriage; therefore, it is
presumed to be marital property. See Code § 20-107.3(A)(2). Husband claimed that he paid the
down payment with his separate property.
Code § 20-107.3(A)(3)(d) provides:
When marital property and separate property are commingled by
contributing one category of property to another, resulting in the
loss of identity of the contributed property, the classification of the
contributed property shall be transmuted to the category of
property receiving the contribution. However, to the extent the
contributed property is retraceable by a preponderance of the
evidence and was not a gift, such contributed property shall retain
its original classification.
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“The party claiming a separate interest in transmuted property bears the burden of
proving retraceability.” von Raab v. von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156,
160 (1997) (citation omitted). “In order to trace the separate portion of hybrid property,
. . . a party must (1) establish the identity of a portion of hybrid property and (2) directly
trace that portion to a separate asset.” Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494
S.E.2d 135, 141 (1997) (citing Code § 20-107.3(A)(3)(d)-(f)).
Husband had the burden to trace his separate contributions from the marital residence.
Both parties admitted that the Spanish apartment was husband’s separate property. Husband
testified and offered exhibits to prove that he used $40,160 from the proceeds of the sale of his
Spanish apartment to pay the down payment on the marital residence. Wife also testified that
husband “put a large sum of money down for the down payment.” She explained that they
“temporarily borrowed money from his family” and husband repaid the loan with funds from the
sale of his apartment. The evidence, including husband’s testimony and exhibits and wife’s
testimony, supports the trial court’s ruling that husband paid $40,160 for the down payment from
his separate funds.
Since wife admitted that husband paid the down payment on the former marital residence
with separate funds, we will not consider her argument on appeal that he did not trace the funds.
Husband argues that he used additional separate funds to pay for various improvements
associated with the former marital residence. He also asserts that he made several payments
from his separate funds to reduce the principal on the mortgage. The trial court rejected
husband’s claims and found that there was insufficient evidence to prove the “amounts
contributed to improvements and increases in value attributable to those expenditures.” The trial
court did not err in finding that husband’s separate contributions to the marital residence were
limited to the down payment of $40,160. There was no additional evidence to establish clearly
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how much husband paid, where the funds came from, and how it increased the value of the
former marital residence.
In her appeal, wife argues that the trial court should not have given husband a
“dollar-for-dollar credit from the initial investment” and should have considered how the down
payment affected the equity. There was evidence regarding the equity in the home, which was
$88,379.04, as of the date of separation. Clearly, the amount of down payment did not decrease
over time. The trial court could not calculate whether the amount of the down payment
increased over time because there was no testimony regarding the purchase price of the home
and the initial mortgage. Therefore, the trial court awarded the minimum to husband, which was
the amount he paid.
In referring to his additional separate payments toward the house, husband contends that
“logic also proves that he made these separate contributions.” Husband argues the equity in the
home included his down payment, his separate contributions, and principal reductions.
However, there was no evidence to support this argument. The only amount that was
successfully traced was the amount of the down payment.
The trial court did not err in awarding husband $40,160 for his separate contributions to
the marital residence.
Equitable distribution
Husband argues that the trial court erred in dividing equally the parties’ marital assets
because he contributed more to the marriage. He notes that he gave up his career, left his home
country of Spain, supported his wife with the furtherance of her education and career, and
contributed separate funds to the marriage.
In fashioning an equitable distribution award, the court must consider the factors in Code
§ 20-107.3(E). “[A]s long as the trial court considers all the factors, it is at the court’s discretion
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to determine what weight to give each factor when making the equitable distribution award.”
O’Loughlin v. O’Loughlin, 20 Va. App. 522, 526, 458 S.E.2d 323, 325 (1995) (citation omitted).
“‘Virginia law does not establish a presumption of equal distribution of marital assets. It
is within the discretion of the court to make an equal division or to make a substantially disparate
division of assets as the factors outlined in Code § 20-107.3(E) require.’” Torian v. Torian, 38
Va. App. 167, 181, 562 S.E.2d 355, 362 (2002) (quoting Matthews v. Matthews, 26 Va. App.
638, 645, 496 S.E.2d 126, 129 (1998) (internal citations omitted)).
In this case, the trial court examined the factors in Code § 20-107.3(E). Contrary to
husband’s argument, the trial court considered and noted husband’s support of wife while she
obtained her Ph.D. and advanced in her career. The trial court also noted husband’s separate
contributions toward the down payment of the marital residence and the purchase of a vehicle.
After considering each of the factors, the trial court held that the marital property should be
divided equally. Based on the record, the trial court did not abuse its discretion in dividing the
marital property equally.
Spousal support
Husband argues that the trial court erred in denying his request for spousal support.
Husband asserts that the trial court erroneously concluded that after the divorce, husband would
be in the same financial situation as he was prior to the marriage. Husband notes that he is
unable to meet his expenses and purchase a home, but he was able to do both prior to the
marriage. He argues that his standard of living deteriorated after the parties’ separation, whereas
wife’s standard of living was the same. He also notes that during the marriage, wife was able to
complete her education and obtain a good career, but husband had to give up his career and move
from his home country. Furthermore, husband contends wife has the ability to pay spousal
support.
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“‘In reviewing a spousal support award, we are mindful that the trial court has broad
discretion in awarding and fixing the amount of spousal support. Accordingly, our review is
limited to determining whether the trial court clearly abused its discretion.’” West v. West, 53
Va. App. 125, 130-31, 669 S.E.2d 390, 393 (2008) (quoting Miller v. Cox, 44 Va. App. 674, 679,
607 S.E.2d 126, 128 (2005)). In awarding spousal support, a trial court must consider the factors in
Code § 20-107.1(E); however, “[t]his 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.” Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
The trial court considered all of the factors in Code § 20-107.1(E), including each party’s
income and expenses. Contrary to husband’s arguments, the trial court acknowledged that
husband left his “successful career” and country in order to support wife while she obtained her
Ph.D. and started her career. Based on the record, the trial court did not abuse its discretion in
denying husband’s request for spousal support.
Attorney’s fees and costs
Wife asks this Court to award her attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration
of the record before us, we deny her request for an award of attorney’s fees and costs she
incurred on appeal.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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