Jonathan Scott Towner v. Paulette Moore Towner ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
JONATHAN SCOTT TOWNER
MEMORANDUM OPINION* BY
v. Record No. 1072-05-4 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 26, 2006
PAULETTE MOORE TOWNER
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas A. Fortkort, Judge
James E. Carr (Carr & Carr, on briefs), for appellant.
Daniel L. Grubb (Dunlap, Grubb & Weaver, P.C., on brief), for
appellee.
Jonathan Scott Towner (husband) appeals the April 6, 2005 final decree awarding
Paulette Moore Towner (wife) a divorce a vinculo matrimonii, on the ground that the parties
lived separate and apart for over one year. On appeal, husband contends the trial court erred
1) by finding he was responsible for the dissolution of the marriage, 2) by finding wife made a
contribution from separate funds towards the acquisition of the marital residence, 3) by failing to
include certain funds in wife’s gross income, 4) in its spousal support award, 5) in its child
support award, 6) by denying his March 2, 2005 motion to modify spousal support, 7) by
departing from the guidelines in its revised calculation of child support, and 8) in awarding wife
attorney’s fees. Wife seeks an award of attorney’s fees and costs associated with this appeal.
For the reasons that follow, we affirm the trial court’s order in part, reverse it in part, and remand
for reconsideration consistent with this opinion.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
We view the evidence, and all reasonable inferences flowing from the evidence, in a light
most favorable to wife as the party prevailing below. Congdon v. Congdon, 40 Va. App. 255,
258, 578 S.E.2d 833, 835 (2003). “That principle requires us to ‘discard the evidence’ of the
appellant which conflicts, either directly or inferentially, with the evidence presented by the
appellee at trial.” Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160,
162 (2002)).
So viewed, the evidence proved the parties married on September 30, 1990. One child
was born of the marriage in December 1998. The parties stipulated to a separation date of
September 15, 2004. During the marriage husband worked as a flight officer and then a pilot. Wife
worked full time as a nurse until the birth of their child. Thereafter, wife worked part-time.
The record reveals husband was physically and verbally abusive towards wife during the
marriage. Husband became involved in commodities trading and began his own business as a “day
trader.” Husband spent large amounts of time in his trading practice and wasted substantial marital
assets in trading losses, necessitating his filing for bankruptcy.
In 1992, the parties moved to Virginia from North Carolina. Wife sold her separately
owned residence in North Carolina at that time and deposited the proceeds into a separate account at
Dominion Bank. Those funds comprised a portion of the money she said she later withdrew and
applied towards the purchase of the parties’ marital residence in Virginia.
The court determined wife’s annual income was $89,414 and awarded her $1,000 per month
in spousal support for a period of seven years. The court also determined wife had demonstrated
she had contributed $20,000 of her separate property towards the purchase of the marital home and
awarded that amount to her as her separate property.
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Following the initial hearing, husband filed a motion for modification, claiming he had been
involuntarily demoted and that his salary was consequently reduced by approximately fifteen
percent. In the final decree the court accepted husband’s evidence regarding his reduced income.
Nevertheless, the trial court did not alter its previous spousal award to wife in the amount of
$1,000 monthly for a period of seven years. The court based its award “upon the disparity in
income, the disparity in age, marital fault, dissolution of the marriage, that the Wife voluntarily
limited work hours during the marriage to suit the marital aims of both Parties, and that this was a
reasonably long marriage.”
Due to consideration of husband’s reduced income, however, the court altered its original
child support award and ordered husband to pay wife one hundred dollars ($100) monthly in child
support, an award that deviates from the calculated guideline figure. Upon reconsideration, the
court also reduced the amount it credited to wife as her separate property from $20,000 to $9,780.
The court further awarded wife attorney’s fees in the amount of $30,000.
ANALYSIS
I.
Husband cites no authority or principles of law to support his contention that the trial
court erred by finding he was responsible for the dissolution of the marriage. “‘Statements
unsupported by argument, authority, or citations to the record do not merit appellate
consideration.’” Budnick v. Budnick, 42 Va. App. 823, 833-34, 595 S.E.2d 50, 55 (2004)
(quoting Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297 (2003)); see Rule 5A:20
(requiring appellants to brief the “principles of law, the argument, and the authorities relating to
each question presented”).
Having presented no citations or authority in his brief in support of this contention,
husband has waived this argument on appeal and we need not address it. See Rule 5A:20(e).
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II.
“In reviewing an equitable distribution award on appeal, we have recognized that the trial
court’s job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing
the many considerations and circumstances that are presented in each case.” Klein v. Klein, 11
Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). “A decision regarding equitable distribution . . .
will not be reversed unless it is plainly wrong or without evidence to support it.” Rahbaran v.
Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 139 (1997).
Pursuant to the provisions of Code § 20-107.3(A)(3), property may be classified as part
marital and part separate. Under subsection (e), “when marital property and separate property
are commingled into newly acquired property resulting in the loss of identity of the contributing
properties, the commingled property shall be deemed transmuted to marital property,” unless the
contributed property is retraceable and not a gift. Code § 20-107.3(A)(3)(e). We have explained
the requirements of tracing under that section:
In order to trace the separate portion of hybrid property, a party
must prove that the claimed separate portion is identifiably
derived from a separate asset. This process involves two steps: a
party must (1) establish the identity of a portion of hybrid
property and (2) directly trace that portion to a separate asset.
Rahbaran, 26 Va. App. at 208, 494 S.E.2d at 141 (citing Code § 20-107.3(A)(3)(d)-(f)). “[T]he
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).
Here, the trial court found that wife had successfully demonstrated that a portion of the
funds she used towards the purchase of the marital residence came from her separate property
and awarded $9,780 to wife as her separate property. We find that the trial court erred in making
this award.
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“The goal of the tracing process is to link . . . [every] asset to its primary source, which is
either separate property or marital property.” Id. (citing Brett R. Turner, Equitable Distribution
of Property § 5.23 (2d ed. 1994)). In this case, wife failed to establish the separate identity of a
portion of the hybrid property held in the Dominion Bank account and, thus, failed to link the
funds she used from her Dominion Bank account towards the purchase of the marital home to its
primary separate source, as claimed.
Although wife provided conflicting accounts of the source of the funds she used to open
the account with Dominion Bank and presented no documentary evidence establishing the
amount of the proceeds she received from the sale of her separate property, husband conceded
that wife deposited $9,784 from the sale of her separate property in North Carolina into the
Dominion account.1
Evidence that wife initially deposited separate funds in the amount of $9,784 into the
Dominion Bank account is, in itself, insufficient to satisfy the test set forth in Rahbaran, in light
of the hybrid nature of the account.2 We acknowledge that wife “was not required to have
segregated the [separate funds] from all other marital funds in order to claim a separate interest
in that amount.” Holden v. Holden, 31 Va. App. 24, 28, 520 S.E.2d 842, 845 (1999) (citation
omitted). However, where the evidence fails to establish the identity of a portion of the hybrid
account as separate, the burden of proving a claim of separate property has not been sustained.
“Under generally accepted principles, the party . . . claiming property as separate has the burden
1
Wife initially testified she opened the Dominion Bank account with funds she had
inherited from her deceased husband in the amount of $20,000. However, in subsequent
testimony, she claimed she used the proceeds from the sale of her North Carolina property to
open the account.
2
The evidence established that the money wife derived from the sale of her separate
property was commingled in the account with marital funds earned by wife during the course of
the parties’ marriage.
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to produce satisfactory evidence to rebut [the] presumption [that the funds are marital].”
Rexrode v. Rexrode, 1 Va. App. 385, 392, 339 S.E.2d 544, 548 (1986).
Wife introduced no evidence, documentary or testimonial, regarding the deposits and
withdrawals that may have occurred from the time she opened the account to the time she
withdrew funds from it for the purchase of the marital home. Cf. Holden, 31 Va. App. at 29, 520
S.E.2d at 845 (husband proved that, without the contribution of his separate funds to the parties’
joint bank account, the account would not have contained sufficient funds to support the
purchase of a parcel of property).
Thus, wife failed to show that the separate funds she used to open the account had not
been used for another purpose prior to the purchase of the marital residence, leaving only marital
funds in the account at the time she withdrew funds in order to acquire the marital residence. By
failing to document whether any deposits and withdrawals from the Dominion Bank account had
been made, wife’s evidence fails to establish that the money she used for the down payment on
the house was, in fact, her separate property. Cf. Hart v. Hart, 27 Va. App. 46, 68, 497 S.E.2d
496, 507 (1998) (the Court found the trial court erred in refusing to classify as separate property
a spouse’s inheritance where the spouse proved she deposited the inheritance into a joint account
from which the parties subsequently made no withdrawals). Having concluded that the record
does not support the trial court’s ruling, we reverse its decision on this issue.
III.
The trial court ruled that the money received by wife from her parents were loans and not
gifts and that, therefore, it was not to be included in the calculation of wife’s gross income.
Husband’s contention that the trial court erred in making this finding is without merit.
The party claiming the existence of a gift must prove by clear and convincing evidence
“(1) the intention on the part of the donor to make the gift; (2) delivery or transfer of the gift; and
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(3) acceptance of the gift by the donee.” Theismann v. Theismann, 22 Va. App. 557, 566, 471
S.E.2d 809, 813, aff’d on reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996).
Here, wife presented evidence that her parents transferred $106,000 to her for the
purchase of a post-separation residence in September 2003. Although wife’s parents drafted a
gift letter, wife did not accept the funds as a gift. She did not sign the gift letter; instead she
executed a loan agreement. Wife’s mother testified wife had been making payments on the loan.
The evidence shows that wife also received money from her parents to satisfy legal bills.
Wife’s mother testified the transfers were loans, not gifts. We find no error in the trial court
crediting wife’s evidence. “The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the opportunity to see and hear that
evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d
730, 732 (1995).
IV. and VI.
Code § 20-107.1(E)(7) and (8) require the trial court to consider the property interests of
the parties when making a spousal support award. See Stainback v. Stainback, 11 Va. App. 13,
15, 396 S.E.2d 686, 688 (1990). Code § 20-107.1(E)(7) requires the court to consider “the
property interests of the parties, both real and personal, tangible and intangible.” Code
§ 20-107.1(E)(8) requires the court to consider “the provisions made with regard to marital
property under § 20-107.3.” Equitable distribution must take place before a spousal support
award can be made. See Frazer v. Frazer, 23 Va. App. 358, 381, 477 S.E.2d 290, 301 (1996);
Kaufman v. Kaufman, 7 Va. App. 488, 493, 375 S.E.2d 374, 377 (1988).
“[W]here an equitable distribution award is reversed on appeal and ‘the provisions with
regard to the marital property are to be considered on remand, the court must necessarily
re-examine spousal support in the light of whatever new or different considerations flow from
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the additional proceedings.’” Robinson v. Robinson, 46 Va. App. 652, 671, 621 S.E.2d 147, 156
(2005) (en banc) (quoting McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 161
(1985)).
Accordingly, because we reverse the equitable distribution award and remand for
reconsideration, we further direct the trial court, on remand, to reconsider the issue of spousal
support.
V.
In support of his fifth question presented, husband asserts that “[i]f the trial court is
reversed” for the reasons outlined in the arguments supporting his third or fourth question
presented, he “requests the award of child support be reversed . . . .”
Code § 20-108.2, governing the calculation of child support, requires the court to
compute “a basic child support obligation” using the schedules set out in the statute. Use of the
guidelines, in turn, requires the court to calculate the parties’ monthly gross incomes. Code
§ 20-108.2(C) includes “spousal support” as part of a party’s “gross income.”
Code § 20-108.2(C)(4) provides that, for purposes of determining the parties’ gross
incomes under the statute, “spousal support received shall be included in gross income and
spousal support paid shall be deducted from gross income when paid pursuant to an order or
written agreement.” Thus, in calculating the presumptive amount of child support under the
guidelines, the trial court “must include spousal support in the gross income of the receiving
spouse and must deduct the amount of spousal support from the gross income of the paying
spouse.” Frazer, 23 Va. App. at 381, 477 S.E.2d at 301.
Thus, because we remand the case to the trial court for a re-determination of the equitable
distribution award and the spousal support award, we necessarily remand the court’s child
support determination.
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VII.
Husband contends the trial court erred by failing to issue a written statement explaining
its deviation from the child support guidelines. Because we hold that husband has failed to
adequately present this issue for our consideration, we decline to rule on the merits of this
argument.
Rule 5A:20(e) requires that the appellant’s opening brief include
the “principles of law, the argument, and the authorities relating to
each question presented.” [Husband’s] argument in support of this
assignment of error does not meet the requirements of Rule
5A:20(e). Not only does [husband] fail to argue the issue with any
specificity, relying instead on a few broad, conclusory assertions,
he also fails to provide any citation to controlling legal authority
that supports his position. And, as we noted in Buchanan v.
Buchanan, 14 Va. App. 53, 415 S.E.2d 237 (1992), “[s]tatements
unsupported by argument, authority, or citations to the record do
not merit appellate consideration. We will not search the record
for errors in order to interpret the appellant’s contention and
correct deficiencies in a brief.” Id. at 56, 415 S.E.2d at 239; see
also Theismann v. Theismann, 22 Va. App. 557, 572, 471 S.E.2d
809, 816 (declining to address an argument that was inadequately
developed in appellant’s brief), aff’d en banc, 23 Va. App. 697,
479 S.E.2d 534 (1996); Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7,
366 S.E.2d 615, 625 n.7 (1988) (en banc) (noting that it is not this
Court’s “function to comb through the record . . . in order to
ferret-out for ourselves the validity of [appellant’s] claims”).
Mullin v. Mullin, 45 Va. App. 289, 306-07, 610 S.E.2d 331, 339 (2005). Husband failed to cite
any authority or argument for the proposition that a trial court is required to issue a written
statement in a modification of child support proceeding. Having presented no pertinent citations
or authority in his brief in support of his contention, husband has waived this argument on appeal
and we need not address it.
VIII.
Whether to award attorney’s fees “is a matter submitted to the sound discretion of the
trial court and is reviewable on appeal only for an abuse of discretion.” Northcutt v. Northcutt,
39 Va. App. 192, 199-200, 571 S.E.2d 912, 916 (2002) (quoting Graves v. Graves, 4 Va. App.
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326, 333, 357 S.E.2d 554, 558 (1987)) (internal quotation marks omitted). “Factors to be
considered include the respective financial positions of the spouses and their degree of fault in
precipitating the end of the marriage.” Gilman v. Gilman, 32 Va. App. 104, 124, 526 S.E.2d
763, 773 (2000). Trial courts should also consider whether “obstructive conduct” by either party
compounded the costs of litigation. Smith v. Smith, 43 Va. App. 279, 290, 597 S.E.2d 250, 256
(2004). When dealing with such discretionary decisions, only “‘when reasonable jurists could
not differ can we say an abuse of discretion has occurred.’” Hernandez-Guerrero v.
Commonwealth, 46 Va. App. 366, 370, 617 S.E.2d 410, 412 (2005) (quoting Thomas v.
Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, aff’d, 45 Va. App. 811, 613 S.E.2d
870 (2005) (en banc)). No abuse of discretion has been shown under the circumstances of this
case.
Wife requests costs and attorney’s fees for matters relating to this appeal.
The rationale for the appellate court being the proper forum to
determine the propriety of an award of attorney’s fees for efforts
expended on appeal is clear. The appellate court has the
opportunity to view the record in its entirety and determine
whether the appeal is frivolous or whether other reasons exist for
requiring additional payment.
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon
consideration of the entire record in this case, we hold that wife is not entitled to costs or
attorney’s fees in the matter.
For the reasons stated, we affirm the trial court’s decision in part and we hold that the
trial judge erred in ruling the evidence was sufficient to retrace the wife’s separate property.
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Accordingly, the decree appealed from is remanded for proceedings consistent with the rulings
expressed herein.
Affirmed in part,
reversed in part,
and remanded.
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