Toby S. Blevins v. Kate Reid Blevins ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
TOBY S. BLEVINS
MEMORANDUM OPINION * BY
v. Record No. 2297-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 7, 2002
KATE REID BLEVINS
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge Designate
R. Wayne Austin (Scyphers & Austin, P.C., on
brief), for appellant.
Nancyjean Bradford (Bradford & Smith, P.C.,
on brief), for appellee.
Toby S. Blevins (husband) appeals an August 18, 2001 final
decree of divorce as it relates to the division of the marital
property. Husband contends that the trial court erred in (1)
finding a part of the value of his mother's home to be marital
property where the property was given to husband and wife by
husband's mother without consideration and remained under her
control; (2) finding that an $85,000 certificate of deposit was
not marital property; (3) awarding Kate Reid Blevins (wife) a
greater proportion of the marital property when she had been at
fault in the dissolution of the marriage and where the parties
had made equal contributions to the marriage; (4) failing to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
give husband credit for his post-separation payments on a
jointly owned condominium and marital residence; and (5) failing
to state its reasons for awarding wife a greater proportion of
the marital estate. Finding no error, we affirm.
I. BACKGROUND
"On appellate review, a divorce decree is presumed correct
and will not be overturned if supported by substantial,
competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va.
App. 77, 83, 448 S.E.2d 666, 670 (1994).
"On review, we consider the evidence in the light most
favorable to the party prevailing in the trial court."
Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28,
31 (1989).
"'Where, as here, the court hears the evidence ore tenus,
its finding is entitled to great weight and will not be
disturbed on appeal unless plainly wrong or without evidence to
support it.'" Street v. Street, 25 Va. App. 380, 387, 488
S.E.2d 665, 668 (1997) (quoting Martin v. Pittsylvania
Department of Social Services, 3 Va. App. 15, 20, 348 S.E.2d 13,
16 (1986)).
Husband and wife were married on November 10, 1972 and
separated on April 11, 1998. One child, who is now emancipated,
was born of the marriage. Wife filed for divorce on May 11,
1998, seeking a divorce a mensa et thoro on the grounds of
cruelty and/or constructive desertion. Husband filed his answer
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and cross-bill on May 27, 1998 requesting a divorce based on
desertion. The trial court granted husband a divorce based on
wife's desertion.
The trial court made the following pertinent factual
findings. Both parties are in their early fifties and have no
significant health problems. Husband is a self-employed
insurance broker, and wife has worked as a lab technician for
thirty years. Both parties made substantial monetary and
non-monetary contributions to the well-being of the family and
to the acquisition and maintenance of the marital property.
Neither spousal nor child support is at issue. After the
separation, husband remained in the marital home.
By letter opinion and final decree of divorce, the trial
court divided the parties' assets, required wife to pay
husband's attorney's fees and costs and to pay him a $25,000
monetary award.
II. HUSBAND'S MOTHER'S HOME
Husband first contends that the trial court erred in
classifying the parties' one-half interest in husband's mother's
home as marital property and subject to equitable allocation.
He argues that even though the property was transferred by deed
to both husband and wife, no consideration was given, his mother
still retained control of the property, and the transfer was
done only as a "matter of convenience." Thus, the trial court
was required to find that the donor intended this interest to be
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husband's separate property. We disagree and affirm the trial
court.
"Marital property is (i) all property titled in the names
of both parties, whether as joint tenants, tenants by the
entirety or otherwise, except as provided by subdivision
A 3, . . . (iii) all other property acquired by each party
during the marriage which is not separate property as defined
above. . . ." Code § 20-107.3(A)(2).
"All property acquired by either spouse during the marriage
and before the last separation of the parties is presumed to be
marital property." Gilman v. Gilman, 32 Va. App. 104, 116, 526
S.E.2d 763, 769 (2000). "The party claiming that property
should be classified as separate has the burden to produce
satisfactory evidence to rebut this presumption." Stroop v.
Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990).
"Separate property is . . . (ii) all property acquired
during the marriage by bequest, devise, descent, survivorship or
gift from a source other than the other party." Code
§ 20-107.3(A)(1).
Husband contends that Code § 20-107.3(A)(1) is applicable
to the classification of his mother's gift of a one-half
interest in her home to the parties. The evidence is undisputed
that the property was deeded to both husband and wife and was
given during the marriage and, thus, is presumed to be marital
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property. It was husband's burden to provide the trial court
with "satisfactory evidence" to show a donative intent that
excluded wife. See Stroop, 10 Va. App. at 615, 394 S.E.2d at
863. He failed to do so.
The May 6, 1985 deed of transfer from husband's mother to
husband and wife contains no language of limitation, reserves no
rights of any kind to the grantor and does not recite any
reference as a deed of gift or of donative intent. 1 In the
1
The language of the deed is, in pertinent part, as
follows:
THIS DEED, . . . by and between ESTHER
EVELYN BLEVINS BLEVINS [sic], widow, party
of the first part, and CHARLES M. BLEVINS,
JR. and wife, JO ANN BLEVINS, and TOBY S.
BLEVINS and wife, WILEY K. BLEVINS, parties
of the second part; WITNESSETH: That for
and in consideration of the sum of TEN
($10.00) DOLLARS, cash in hand paid, and
other good and valuable considerations, the
receipt of all of which is hereby
acknowledged, the party of the first part
has bargained and sold and does hereby
grant, transfer and convey unto the parties
of the second part, all that certain lot or
parcel of land, together with all
improvements thereon and appurtenances
thereunto belonging, situate in the Green
Hills Subdivision . . . . TO HAVE AND TO
HOLD the above described property together
with all rights and appurtenances thereunto
belongs, unto the parties of the second
part, their heirs and assigns, in fee simple
forever. This conveyance is made with
covenants of general warranty and free from
encumbrances except for real estate taxes
for 1985 which are to be prorated and
assumed by the parties of the second part.
This conveyance is made subject to any and
all covenants, easements or restrictions as
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absence of any limitation or ambiguity, the intention of the
donor may be established by the actual language of the deed. No
evidence was presented by the donor of a contrary intent.
Husband argues that when the trial court found that the
property was deeded by his mother to the parties "for
convenience," this established that she did not intend to give
both her sons and daughters-in-law an equal interest therein.
Husband relies on Stainback v. Stainback, 11 Va. App. 13, 396
S.E.2d 686 (1990), and Kelln v. Kelln, 30 Va. App. 113, 515
S.E.2d 789 (1999), for this proposition. However, these cases
are factually inapposite to the instant case. In Stainback, the
evidence established that the donor testified that his intent
was to make the stock a gift to husband alone and to effecuate
this intent, the stock was listed in husband's sole name. While
title was not controlling, it was a proper consideration. Kelln
concerned an inter vivos trust which husband and wife
established during the marriage and did not concern proving the
donative intent of a third party.
Credible evidence supports the trial court's finding that
husband failed to carry his burden to show that the jointly
titled property was intended by the donor to be husband's
separate property. Thus, there was no error in the trial
contained in former deeds to said property
and, specifically, of record in Deed Book
215, Page 290. . . .
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court's classification of this property as marital, nor in his
later determination that the total value of this asset should be
awarded to husband.
III. CERTIFICATE OF DEPOSIT
Husband next contends the trial court erred in finding an
$85,000 certificate of deposit titled in both parties' names at
the time of the separation to be wife's separate property. We
disagree.
The certificate of deposit was purchased by wife's parents
before the parties' marriage, and its intended use was as an
educational account for her benefit. Over the ensuing years,
the certificate of deposit remained in the name of wife's
parents and later, changed to that of wife and her father. When
wife's father's health began to fail, he gave her a power of
attorney to manage his affairs and, at that time, she re-titled
the certificate of deposit jointly with husband. Wife testified
that she did not intend to make a gift to husband, removed
husband's name from the certificate of deposit after their
separation and placed the accrued interest into a personal
account. The trial court found that wife did not intend to give
husband a gift when she re-titled the certificate of deposit and
the entire corpus of $85,000 was retraceable and remained her
separate property.
Code § 20-107.3(A)(3)(f) provides: "[w]hen separate
property is re-titled in the joint names of the parties, the
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re-titled 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
re-titled property shall retain its original classification."
Code § 20-107.3(A)(3)(g) provides in pertinent part: "[n]o
presumption of gift shall arise under this section where
. . . (iii) existing property is conveyed or re-titled into
joint ownership."
The three elements of a gift are: (1) intention on the
part of the donor to make a gift; (2) delivery or transfer of
the gift; and (3) acceptance of the gift by the donee.
Theismann v. Theismann, 22 Va. App. 557, 566, 471 S.E.2d 809,
813 (1996) (citing 9A Michie's Jurisprudence, Gifts § 8 (1991)),
aff'd on reh'g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996).
Husband relies on the analysis in Theismann as the
rationale for proving that wife intended to gift husband with an
interest in the certificate of deposit. Husband argues that
Theismann stands for the principle that even where a party
denies that a gift was intended, if other evidence indicates a
gift was made, the property will be classified as marital
property. However, while the evidence in Theismann established
a gift, the evidence in the instant case does not compel the
fact finder to reach the same conclusion. In Theismann, husband
acknowledged that he knew he had made wife an owner of his
accounts and wanted her to share equally in the home. Husband
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memorialized his donative intent in cards to wife, stating that
the farm in question was "our home" and that the money was hers
to spend. Wife testified that husband bragged he had made her a
"millionaire." We held that the trial court was not plainly
wrong in concluding that husband intended to make a gift of the
property to his wife.
The trial court, in analyzing the applicability of
Code § 20-107.3(A)(3)(f) to the facts of the instant case, found
that the entire corpus of the certificate of deposit was
retraceable to the original certificate of deposit acquired by
wife's parents and was not intended by the donor to be a gift to
husband. The original certificate of deposit was purchased by
wife's parents before the parties were married and was intended
to be used solely for her benefit. Wife testified she did not
intend to make a gift to husband when she re-titled the
certificate of deposit and expected the funds to be used for the
benefit of her father who resided in a nursing home. See
Code § 20-107.3(A)(3)(f) (no presumption of gift). Wife
continued to renew the certificate of deposit after the
separation, removed husband's name, and placed the accrued
interest in a personal savings account. Credible evidence
supports the trial court's finding that wife did not intend to
make a gift to husband and that the total amount of the
certificate of deposit was properly re-traced and classified as
her separate property.
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IV. EQUITABLE DISTRIBUTION
"[U]nless 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 the equities,
the equitable distribution award will not be
reversed on appeal."
Arbuckle v. Arbuckle, 27 Va. App. 615, 619, 500 S.E.2d 286, 288
(1998) (quoting Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d
723, 727 (1990)).
The goal of equitable distribution is to
adjust the property interests of the spouses
fairly and equitably. In making an
equitable distribution, the court must
classify the property, assign a value, and
then distribute the property to the parties,
taking into consideration the factors listed
in Code § 20-107.3(E). While the division
or transfer of marital property and the
amount of any monetary award are matters
committed to the sound discretion of the
trial court, any division or award must be
based on the parties' equities, rights and
interests in the property.
Theismann, 22 Va. App. at 564-65, 471 S.E.2d at 812 (internal
citations omitted).
The factors to be considered under Code § 20-107.3(E) are,
inter alia: the contributions, monetary and non-monetary, of
each party in the acquisition and care and maintenance of such
marital property of the parties, the duration of the marriage,
how and when specific items of such marital property were
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acquired, and the liquid or non-liquid character of all marital
property.
When an award is determined in such a manner
without objection, on appeal, because of the
difficulty of determining if and how the
trial court considered the Code
§ 20-107.3(E) factors as to each separate
item of property, we will look to the
overall reasonableness of the award to
determine whether there was an abuse of
discretion. We do not examine the division
of individual items of property.
Blank, 10 Va. App. at 9, 389 S.E.2d at 727.
There is no presumption, therefore, of an equal percentage
division of assets. After consideration of all of the factors,
one party may be entitled to a greater share of the marital
estate than the other. See Gamble v. Gamble, 14 Va. App. 558,
421 S.E.2d 635 (1992).
Husband argues that the overall division of the assets is
inequitable because wife received "two-thirds of the marital
property" when their contributions to the marriage were found to
be "pretty much equal." Husband's position is without merit as
it is based on a faulty factual predicate. Husband created a
table which he argues represents the division of assets set out
by the trial court. Husband listed, inter alia, three items of
real property, eleven items of personal property, seven items of
intangible assets, and the trial court's $25,000 monetary award
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to him. Husband's calculations reflected a property division of
$191,100 to him and from $309,797 to $385,553 to wife.
Husband's chart mischaracterizes the trial court's holding
in several areas. Initially, he states the trial court awarded
$41,500 of the value of his mother's home to wife. However, the
record reflects that the trial court held that "the parties'
undivided one-half interest [in husband's mother's home] is
awarded to Mr. Blevins as his sole, separate property. Mrs.
Blevins will be required to convey her interest therein to him."
Thus, the $41,500 husband states wife received from this
property is, in fact, zero. Additionally, husband failed to
subtract from wife's assets the equitable distribution award of
$25,000 payable to him. This error, along with husband's
mischaracterization of the division of the funds from his
mother's house, accounts for $66,500 of the alleged disparity.
Husband also disputes the trial court's award of wife's
retirement account "as her sole, separate property." Husband's
expert placed a present value of the marital share of this
pension to be $196,249 at age fifty-five and $120,493 at age
sixty-five. The trial court considered this retirement amount
in conjunction with husband's retirement assets and awarded
"husband his retirement account . . . and the cash value of his
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whole life policy as his sole, separate property" along with the
$25,000 monetary award.
[Code § 20-107.3] does not require that a
spouse be awarded a percentage of all
marital properties. Instead, the trial
court must make a fair and equitable
monetary award after consideration of the
statutory factors. Consideration of the
factors as applied to various assets can
justify different equities in each of those
assets.
Theismann, 22 Va. App. at 570, 471 S.E.2d at 815.
Husband's next contention that the trial court failed to
consider wife's fault in the dissolution of the marriage in its
award is without merit. As we stated in Aster v. Gross, 7 Va.
App. 1, 371 S.E.2d 833 (1988),
circumstances 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. A trial
court may only consider those circumstances
leading to the dissolution of the marriage,
that are relevant to determining a monetary
award in order to avoid an unreasonable
result.
Id. at 5-6, 371 S.E.2d at 836. No evidence in the record
establishes that wife's desertion had an economic impact on the
marital estate, and appellant cites no specific evidence in
support of this argument. Equitable does not necessarily mean
equal, and we cannot say the trial court abused its discretion
in fashioning its equitable distribution plan.
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V. HUSBAND'S POST-SEPARATION PAYMENTS
Husband next contends that the trial court failed to
consider or credit post-separation maintenance payments he made
on a vacation condominium and on the marital residence. 2
The record reflects that the trial court both considered
and addressed husband's post-separation payments on the vacation
condominium and the marital residence. It found that "Mr.
Blevins had paid the taxes and insurance and taken care of
routine maintenance" on the marital home. It also found that
husband had resided in the home since the separation and that
the residence had a "fair rental value of $400 per month."
The vacation condominium, which had an indebtedness of
$11,500 secured by the marital home, was found by the trial
court to "probably [have] been extinguished by this time
period." Husband made all the payments on the condominium
indebtedness, including maintenance, taxes and insurance. Prior
to the parties' separation, wife managed this rental property
and the parties received between $5,500 and $6,300 per year in
rental income. Since the separation, the condo was used on
occasion by husband and had not been rented.
2
We note that husband does not raise the issue of whether
his post-separation mortgage payments created a separate
property interest. Rather, he requested only that the trial
court divide "the value of the residence . . . on an equal
basis."
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The marital home was awarded to wife as her separate
property, and the vacation condo was awarded to husband.
"Although the separate contribution of one party to the
acquisition, care, and maintenance of martial property is a
factor that the trial court must consider when making its award
of equitable distribution, Code § 20-107.3 does not mandate that
the trial court award a corresponding dollar-for-dollar credit
for such contributions." von Raab v. von Raab, 26 Va. App. 239,
249-50, 494 S.E.2d 156, 161 (1997).
We hold that the trial court did not abuse its discretion
because it considered husband's post-separation payments on
these properties in conjunction with his exclusive use and the
rental value of each. These benefits, which accrued to him,
were properly considered by the trial court. See Ellington v.
Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989).
VI. FAILURE OF TRIAL COURT TO STATE REASONS FOR AWARD
Lastly, husband contends that the trial court erred in
failing to state its reasons for "awarding wife two-thirds of
the property." As noted in Section IV, husband's calculations
as to the amount awarded are erroneous. Additionally, the trial
court properly classified, valued and distributed each item of
property submitted.
The requirement that the trial court
consider all of the statutory factors
necessarily implies substantive
consideration of the evidence presented as
it relates to all of these factors. This
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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. Therefore, we hold that
in a determination involving spousal
support, if the court's findings do not have
evidentiary support in the record, then the
court has abused its discretion.
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986).
The trial court's findings have evidentiary support in the
record and, accordingly, we cannot say the trial court abused
its discretion in making the equitable distribution award.
Affirmed.
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