Norma Jean Armistead v. William P. Armistead ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
NORMA JEAN ARMISTEAD
MEMORANDUM OPINION * BY
v. Record No. 0614-97-3 JUDGE SAM W. COLEMAN, III
FEBRUARY 3, 1998
WILLIAM P. ARMISTEAD
FROM THE CIRCUIT COURT OF WISE COUNTY
Ford C. Quillen, Judge
(Anthony E. Collins; Collins & Collins, on
brief), for appellant. Appellant submitting
on brief.
William J. Sturgill (Sturgill & Sturgill,
P.C., on brief), for appellee.
In this divorce case, Norma Jean Armistead (wife) appeals
the trial court's decree granting William P. Armistead (husband)
a divorce on the ground of adultery. She contends that husband
failed to prove by clear and convincing evidence that she
committed adultery. She further argues that the trial court
erred in determining the value of the marital estate, in
distributing the marital assets, and by denying her spousal
support. For the reasons that follow, we affirm.
I. BACKGROUND
The couple was married on January 16, 1963. During the
marriage, husband inherited a life estate in certain stock from
his father which included fifty-five shares of Coca-Cola Bottling
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Company of Norton and sixty shares of Coca-Cola Bottling Company
of Vansant. From this inheritance, husband and William Kline,
who also inherited stock from husband's father, formed Lonesome
Pine Coca-Cola Bottling Company. Lonesome Pine purchased the
outstanding shares of the Norton and Vansant bottling companies
with a loan secured by husband's mother. Kline died, and
Lonesome Pine purchased back Kline's shares from the Kline
estate. Husband sold his shares of Lonesome Pine to Coca-Cola
Consolidated for $9,000,000 and received an additional $2,000,000
for a non-compete agreement. 1 The couple invested the proceeds
from the stock sale by purchasing several rental properties,
which husband managed.
On August 4, 1995, the parties separated. Husband filed for
divorce on the ground that wife committed adultery. The trial
court appointed a special commissioner to receive the evidence
and to make factual findings pertaining to the grounds for
divorce, spousal support and maintenance, and equitable
distribution. The parties submitted their evidence to the
special commissioner by de bene esse depositions.
Husband presented the testimony of Regina Lambert and Karen
Blevins to prove his allegation that wife committed adultery.
1
The special commissioner found that husband effectively
merged his life interest in the Norton and Vansant bottling
stocks into the new corporation formed during the marriage and,
thus, transmuted the stock into marital property. See Steinback
v. Steinback, 11 Va. App. 13, 18-20, 396 S.E.2d 686, 690 (1990).
Husband does not contest this finding on appeal.
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Lambert testified that on several occasions she accompanied wife
to various hotels and reserved rooms in her own name so that wife
could covertly meet Bobby Pittman. On these occasions, Lambert
would leave wife and Pittman in the hotel room and return a few
hours later to take wife home. Lambert also accompanied wife to
meet Pittman at his house in Kentucky. She waited outside for
twenty minutes before wife asked her to come inside Pittman's
house. Wife told Lambert that she was meeting with Pittman to
discuss his amorous relationship with wife's granddaughter
because the granddaughter had told wife that Pittman had raped
her. Lambert further testified that she never observed wife
having sexual intercourse with Pittman and that wife never
discussed having sex with him, but she did see wife and Pittman
holding hands. On one occasion, wife urged Lambert to ask
Pittman "if he loved her."
Blevins testified that wife had recounted to her several of
the meetings with Pittman. Blevins testified that wife admitted
having sexual intercourse with Pittman. When asked whether wife
expressly stated that she had sex with Pittman, Blevins claimed
that wife said she "had the best time of her life." According to
Blevins, wife stated that she put "leg locks" on Pittman, that he
"didn't last too long," and that she offered to give him oral
sex. Blevins also testified that she did not observe any sexual
activities between wife and Pittman, but she did see the two
holding hands.
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After reviewing the evidence and briefs of the parties, the
commissioner recommended that the husband be granted a divorce on
the ground of adultery and that wife should not be awarded
permanent spousal support because of her adultery. The
commissioner considered the appraisals of the marital property
submitted by the parties and found the values submitted by the
husband's expert to represent the value of the property. The
commissioner further recommended that the husband be awarded
sixty percent of the marital property and that the wife be
awarded forty percent. The trial court overruled wife's
exceptions to the commissioner's report and entered a final
decree approving and affirming the commissioner's findings. Wife
appealed.
II. STANDARD OF REVIEW
"Where the evidence is heard by a commissioner and not ore
tenus by the trial court, the decree is not given the same weight
as a jury verdict, . . . but if the decree is supported by
substantial, competent and credible evidence in depositions, it
will not be overturned." McLaughlin v. McLaughlin, 2 Va. App.
463, 466-67, 346 S.E.2d 535, 536 (1986) (citations omitted). See
Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828
(1986) (divorce decree based solely on depositions held "not as
conclusive on appellate review as one based upon evidence heard
ore tenus, but such a decree is presumed correct and will not be
overturned if supported by substantial, competent, and credible
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evidence").
III. ADULTERY
To prove adultery, the evidence of another spouse's
extramarital sexual intercourse must be "clear and convincing."
Derby v. Derby, 8 Va. App. 19, 24, 378 S.E.2d 74, 76 (1989).
"While a court's judgment cannot be based upon speculation,
conjecture, surmise, or suspicion, adultery does not have to be
proven beyond all doubt." Gamer v. Gamer, 16 Va. App. 335, 339,
429 S.E.2d 618, 622 (1993) (citing Coe v. Coe, 225 Va. 616, 622,
303 S.E.2d 923, 927 (1983)). Rather, the evidence must "'produce
in the mind of the trier of facts a firm belief or conviction as
to the allegations [of adultery] sought to be established.'"
Cutlip v. Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989)
(quoting Seeman v. Seeman, 233 Va. App. 290, 293 n.1, 355 S.E.2d
884, 886 n.1 (1987)).
Clear and convincing evidence in the record supports the
trial court's finding that the wife committed adultery. Husband
produced substantial, competent and credible evidence of wife's
extramarital affair with Pittman. Blevins testified that wife
admitted having sexual intercourse with Pittman. Furthermore,
the evidence proved that wife covertly met with Pittman in hotel
rooms on various occasions. In these instances, the wife's
friends would reserve a hotel room in the friend's name, leave
wife and Pittman in the hotel room, and return several hours
later to pick up wife. Further, Blevins testified that wife held
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hands with Pittman and described to Blevins the "leg locks" she
placed on Pittman and how Pittman "didn't last too long" during
their encounters.
The commissioner was free to disbelieve wife's explanation
to Lambert that she met with Pittman to discuss his relationship
with wife's granddaughter. Based on the foregoing evidence, we
cannot say that the trial court erred in finding that wife
committed adultery.
IV. VALUATION OF MARITAL PROPERTY
We hold that the trial court's valuation of the marital
assets was not erroneous. The trial court must value the
parties' marital property before making an equitable
distribution. See Code § 20-107.3. The parties bear the burden
of providing the trial court with sufficient evidence from which
it can value their property. Bosserman v. Bosserman, 9 Va. App.
1, 5, 384 S.E.2d 104, 107 (1989).
In this case, the parties presented conflicting expert
appraisals of the property. The commissioner found the value of
the property to be "consistent with the appraisal of [husband's
expert]." Wife contends the commissioner arbitrarily disregarded
the credible evidence of wife's expert and argues that the trial
court's acceptance of the commissioner's valuation was error.
Wife's contention is without merit. The commissioner had
discretion to resolve the conflicting evidence of the expert
appraisers and to make factual findings. See Reid v. Reid, 7 Va.
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App. 553, 563, 375 S.E.2d 533, 539 (1989) (commissioner may find
one of several conflicting expert appraisals more credible so
long as credible evidence supports selected appraisal); see also
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
("The commissioner has the authority to resolve conflicts in the
evidence and to make factual findings."). Moreover, the
commissioner stated in his report that he found the testimony of
the husband's expert to be "convincing and worthy of a great deal
of weight." In this respect, the commissioner's report indicates
that he weighed the evidence of both experts and found the
valuation of the husband's expert more plausible. Accordingly,
the trial court did not err in accepting the commissioner's
valuation of the marital property.
V. EQUITABLE PROPERTY DISTRIBUTION
We hold that the trial court did not err in assigning only
forty percent of the marital estate to wife under equitable
distribution. "The goal of equitable distribution is to adjust
the property interests of the spouses fairly and equitably."
Booth v. Booth, 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988).
In making an equitable distribution, once the court classifies
and determines the value of marital property, it must distribute
the property to the parties, taking into consideration all of the
factors in Code § 20-107.3(E). Alphin v. Alphin, 15 Va. App.
395, 403, 424 S.E.2d 572, 576 (1992). The court is not required
to qualify each factor, or weigh them equally, but its
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consideration of each factor must be supported by the evidence.
Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 434
(1991). Further, in fashioning an award, the trial court has
broad discretion to weigh the particular circumstances of each
case, Gamble v. Gamble, 14 Va. App. 558, 573, 421 S.E.2d 635, 644
(1992), and its decision will not be set aside unless it is
plainly wrong or unsupported by the evidence. Srinivasan v.
Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
Here, the commissioner considered all of the factors in Code
§ 20-107.3(E). He found that husband's business interests and
acumen supplied the "vast majority of the monetary contribution
to the well-being of the family" and accounted for the
acquisition of the couple's marital property. He noted that wife
cared for the couple's child and house in the early years of the
marriage, but was frequently absent from the home towards the end
of the marriage. Further, he found that wife's adultery
contributed to the dissolution of the marriage, but did not cause
any economic depreciation in the marital property. From these
facts, the commissioner recommended assigning sixty percent of
the value of the marital property to husband and forty percent to
wife.
Wife contends the evidence fails to support the
commissioner's finding that husband contributed the substantial
portion of the marital property. We disagree. The record
reveals that most, if not all, of the marital property was
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acquired by husband's use of his inheritance to establish
Lonesome Pine and purchase the rental properties. The
commissioner's finding is supported by substantial and credible
evidence and, thus, the trial court's affirmance of this finding
is not error.
Further, citing Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833(1988), wife contends the commissioner and trial court improperly
considered wife's marital fault in making an equitable
distribution. Aster held that "[c]ircumstances that lead to the
dissolution of the marriage but have no effect upon marital
property, its value, or otherwise are not relevant in determining
a monetary award, need not be considered." 7 Va. App. at 5-6,
371 S.E.2d at 836. In this vein, Aster sought to eliminate
arbitrary monetary awards that punished a spouse for his or her
marital fault without showing such fault had an economic impact
on the marriage. See O'Loughlin v. O'Loughlin, 20 Va. App. 522,
528, 458 S.E.2d 323, 326 (1995).
Wife's reliance on Aster is misplaced. Although the
commissioner did find that wife's adultery had "not caused any
economic depreciation in the marital property value," the
commissioner's report does not reflect that he considered wife's
adultery in recommending an equitable distribution. Moreover,
the trial court did not mention wife's adultery in finding the
commissioner's sixty/forty distribution fair and equitable, but
rather relied "especially [upon] the monetary contributions by
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the husband . . . ." Accordingly, the trial court's equitable
distribution did not violate Aster. 2
VI. DENIAL OF SPOUSAL SUPPORT
We hold that the trial court's denial of spousal support was
not erroneous. Code § 20-107.1 provides that "no permanent
maintenance and support shall be awarded from a spouse if there
exists in such spouse's favor a ground of divorce [for
adultery]." The court may, in its discretion, make such an award
if it determines from "clear and convincing evidence that a
denial of support and maintenance would constitute a manifest
injustice, based upon respective degrees of fault during the
marriage and the relative economic circumstances of the parties."
Code § 20-107.1. Wife asserts that the trial court's denial of
2
At any rate, we elaborated on Aster in O'Loughlin and
stated that:
our ruling in Aster did not establish that
the negative impact of marital fault . . .
could not be considered in light of other
factors, such as the couple's nonmonetary
contributions, under Code § 20-107.3(E).
Just as marital fault could be shown to have
an economic impact on a marriage, i.e., waste
or dissipation of assets, it can also be
shown to have detracted from the marriage in
other ways.
20 Va. App. at 528, 458 S.E.2d at 326. Thus, "the negative
impact of fault on non-economic aspects of the marriage [may]
also be considered in determining a monetary award." Theismann
v. Theismann, 22 Va. App. 557, 569, 471 S.E.2d 809, 815 (1996)
(emphasis added). In this respect, the trial court, if it had so
chosen, could have considered the effect of wife's adultery on
the nonmonetary contributions by the parties to the well-being of
the family.
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spousal support constituted a manifest injustice because she had
not performed any gainful employment for thirty years, is in poor
health, and had become accustomed to having maids and
housekeepers.
Decisions regarding spousal support rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence. Konefal v.
Konefal, 18 Va. App. 612, 614, 446 S.E.2d 153, 154 (1994). The
commissioner recommended denying wife spousal support after
considering wife's adulterous conduct and the relative economic
circumstances of the parties. We cannot say that the trial court
abused its discretion in accepting this recommendation and
finding that wife failed to show by clear and convincing evidence
that its denial of spousal support constituted a manifest
injustice.
Finding no error, we affirm the trail court's decree.
Affirmed.
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