Donald Carter Brown v. Nancy N. Brown ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Alexandria, Virginia
DONALD CARTER BROWN
v. Record No. 0649-95-4 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
NANCY N. BROWN FEBRUARY 6, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
John P. Snider (Donna M. Matthews; Matthews, Snider &
Williams, on brief), for appellant.
Marcia M. Maddox (Heather A. Dipoma; Law Office of
Marcia M. Maddox, on brief), for appellee.
Donald Carter Brown (husband) appeals from a decree of
divorce and an equitable distribution award entered by the
Circuit Court of Fairfax County (trial court) granting the
divorce to Nancy N. Brown (wife) on the ground of desertion and
finding that Walter A. Brown of Virginia, Inc. (the corporation)
was marital property. Husband contends that the trial court
erred in finding the corporation to be marital property; in
making the equitable distribution award; and in determining the
amount of spousal support and attorney's fees awarded to wife.
Husband and wife married upon wife's graduation from college
on August 9, 1958. The two children born of the marriage were
emancipated at the time the bill of complaint was filed. Wife
worked full-time for the first two years of the marriage while
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
husband worked and finished college. Upon the birth of the first
child, with husband's agreement, wife stopped work and did not
return to work outside the home for twenty years. After college,
husband went to work in the family real estate and insurance
business. Husband worked long hours in his insurance business
and did outside work around the house. He also helped wife with
tasks which she was not strong enough to accomplish on her own.
Wife primarily raised the parties' two children and supervised
their training and care.
During the marriage, the parties owned four houses. Through
a small construction company he partly owned, husband contracted
to construct one of the family-owned houses. At the time of the
hearing in this matter, two of the houses had been sold. Of the
two that remained, one was the marital residence on Princess
Street in Alexandria, and the other was in Tappahannock, known as
the River House.
Wife testified that the River House was purchased for
$50,500, and that after paying $10,000 from their joint account
toward that price, the remaining $40,500 was financed. Husband
was not consistent in his testimony concerning the method of
payment for the River House. After stating that he invested his
own separate funds as the initial partial payment, he claimed
that payment was in the sum of $30,000, then later admitted the
first payment was only $10,000.
In 1972, husband, his brother, and sister inherited their
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father's District of Columbia real estate and insurance business.
Thereafter, in 1974, husband took the insurance business and
formed a new Virginia corporation, Walter A. Brown of Virginia,
Inc., also known as Brown Insurance Company. Husband's brother
kept the inherited real estate business in Washington D.C. The
parties stipulated that the value of husband's business as of
1994 was $225,000. The record does not disclose the value of
assets contributed to the new Virginia corporation or its initial
value.
Wife worked at husband's office for a period of time during
the marriage and was compensated for her work. She earned her
resident agent's license to sell insurance and was named as the
secretary/treasurer of the business. She did some entertaining
for the office at the parties' home and accompanied husband on
business trips.
In 1988, wife's mother died. Wife inherited a one-third
share of the assets owned by her mother, plus a one-third
beneficial interest in a trust established by wife's
grandmother's will. The inheritance consisted mostly of real
property in which wife's interest was valued at $1,273,354.
Between 1988 and the date of the hearing, a "substantial amount"
of the inherited properties had been placed on the market for
sale. Some distributions had been made to the beneficiaries in
small amounts; however, a representative of the trustee testified
that "the accounts were never in a liquid position in order to
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make distributions on a regular basis, and if there were
distributions made at some point in time, they had to be covered
usually by borrowing at another time."
At the time of the final hearing, wife was 58 years old,
husband was 59, and both were in good health. Wife was employed
part-time by the Maryland National Capital Park and Planning
Commission where, she testified, there was no opportunity for
advancement in her position. Wife's monthly gross income from
all sources was $2,293.22, there being no income available from
her inheritance.
Husband continued to work for himself in his insurance
business. The amount of his income shown on his expense sheet
was $3,000 per month. Husband's accountant testified that
husband set his own salary and that his commissions had
"decreased substantially" from $429,000 in 1990 to $319,000 in
1993. Wife introduced evidence that husband's average taxable
income for the years 1989 through 1993 was $110,412. Wife
claimed that her average taxable income was $16,900.60.
The trial court recognized that husband's insurance business
had been inherited by husband, but concluded that the newly
formed corporation was marital property. The court stated:
The Court finds that the evidence received
was inadequate to show the amount of
[husband's] inheritance now invested in the
company. The court therefore concludes that
the corporation's value, $225,000.00, is
entirely marital property.
I. The Corporation
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Husband argues that the trial court's judgment with respect
to the classification of the marital property is contrary to the
law and evidence. "A judgment of the trial court will not be set
aside on the ground that it is contrary to the [law and] evidence
unless it appears from the evidence that such judgment is plainly
wrong or without evidence to support it." Dodge v. Dodge, 2 Va.
App. 238, 242, 343 S.E.2d 363, 365 (1986) (citing Code
§ 8.01-680). The record shows that the corporation was formed
during the marriage and fails to show the value of the
corporation when it was formed or the value of any separate
property contributed by husband to the corporation. Property
acquired during marriage is presumed to be marital property, in
the absence of satisfactory evidence to the contrary. Bowers v.
Bowers, 4 Va. App. 610, 615, 359 S.E.2d 546, 549 (1987); Rexrode
v. Rexrode, 1 Va. App. 385, 392, 339 S.E.2d 544, 548 (1986); Code
§ 20-107.3(A)(2). That presumption places the burden on the
party seeking to refute it to present evidence to overcome the
presumption. When that party with the burden of proof on an
issue fails to meet its burden, it cannot prevail on that
question. Id. at 617, 359 S.E.2d at 550. Because husband has
failed to present such evidence, we cannot say that the trial
court was plainly wrong.
II. Support
"The determination whether a spouse is entitled to support,
and if so how much, is a matter within the discretion of the
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[trial] court and will not be disturbed on appeal unless it is
clear that some injustice has been done." Dukelow v. Dukelow, 2
Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). In our review, we
must determine if there is evidence to support the trial court's
discretionary decision. There was evidence that husband's
average earnings during the past several years were approximately
$100,000 annually, whereas wife's average income was shown to be
approximately $16,000 per year. We cannot say that the trial
court's support award was plainly wrong or without evidence to
support it. See Gottlieb v. Gottlieb, 19 Va. App. 77, 448 S.E.2d
666 (1994).
III. Marital Award
Husband further contends that the marital award made to wife
by the trial court was equal to 55.9% of the marital estate.
"[T]he percentage of the monetary contributions toward [the]
acquisition of the marital property is only one factor to be
considered in making a monetary award." Bentz v. Bentz, 2 Va.
App. 486, 489, 345 S.E.2d 773, 774-75 (1986).
There is no presumption in Virginia favoring equal division
of marital property. Papuchis v. Papuchis, 2 Va. App. 130, 132,
341 S.E.2d 829, 830 (1986). This Court has said that the term
"equitable distribution" does not mean "equal distribution."
Marion v. Marion, 11 Va. App. 659, 663, 401 S.E.2d 432, 435
(1991). In reviewing an equitable distribution award on appeal,
we recognize that the trial court's job is a difficult one.
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Fashioning an equitable distribution award lies within the sound
discretion of the trial judge whose award will not be set aside
unless plainly wrong or without evidence to support it.
Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675,
678 (1978). "Accordingly, we rely heavily on the discretion of
the trial judge in weighing the many considerations and
circumstances that are presented in each case." Artis v. Artis,
4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987).
We have examined carefully the trial court's letter opinion
and find that it clearly discloses that the trial court complied
with the requirements of Code § 20-107.3, and that its findings
are supported by evidence in the record. Therefore, we cannot
say that its judgment was plainly wrong.
IV. Attorney's Fees
An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reversible on appeal only
for an abuse of discretion. Furr v. Furr, 13 Va. App. 479, 484,
413 S.E.2d 72, 75 (1992). The key to a proper award is the
reasonableness under all the circumstances. McGinnis v.
McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). In
review of all the circumstances of this case, we cannot say that
an abuse of trial court discretion has been shown.
Accordingly, for the reasons stated, the findings of the
trial court are affirmed.
Affirmed.
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