Karen I Perry v. Dwayne N Perry ( 2002 )


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  •                       COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Annunziata and Agee
    Argued at Alexandria, Virginia
    KAREN I. PERRY
    MEMORANDUM OPINION * BY
    v.   Record No. 0672-02-4                    JUDGE G. STEVEN AGEE
    NOVEMBER 19, 2002
    DWAYNE N. PERRY
    FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
    Jeffrey W. Parker, Judge
    Julia S. Savage (Lawrence D. Diehl; Walker,
    Jones, Lawrence, Duggan & Savage, on briefs),
    for appellant.
    Paul A. Morrison (Howard, Morrison & Howard,
    on brief), for appellee.
    The circuit court granted a divorce based on the parties
    living separate and apart for one year and provided for the
    equitable distribution of their real and personal property.     The
    parties appeal different parts of the equitable distribution
    award.   Karen Perry ("wife") contends:   the trial court erred (1)
    in awarding her only one percent (1%) of the value of a marital
    asset, (2) in its valuation of the Perry Racing business, and (3)
    in not awarding wife attorneys' fees.     Dwayne Perry ("husband")
    appeals by claiming the trial court erred in valuing (1) the First
    Virginia NOW accounts, (2) the backhoe, and (3) husband's Ford
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    truck.    For the reasons set forth below, we affirm the rulings of
    the trial court. 1
    I.    EQUITABLE DISTRIBUTION
    If 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.'"
    Pommerenke v. Pommerenke, 
    7 Va. App. 241
    , 244, 
    372 S.E.2d 630
    ,
    631 (1988) (quoting Martin v. Pittsylvania County Dep't of
    Social Servs., 
    3 Va. App. 15
    , 20, 
    348 S.E.2d 13
    , 16 (1986)).        On
    appeal we must "view [the] evidence and all reasonable
    inferences in the light most favorable to the prevailing party
    below."    
    Id.
       Furthermore, "[f]ashioning an equitable
    distribution award lies within the sound discretion of the trial
    judge and that award will not be set aside unless it is plainly
    wrong or without evidence to support it."        Srinivasan v.
    Srinivasan, 
    10 Va. App. 728
    , 732, 
    396 S.E.2d 675
    , 678 (1990).
    A.   The Bearcastle Lot
    The evidence at trial showed that during the marriage
    husband wished to purchase a lot in the Bearcastle subdivision.
    By her own testimony, wife did not think they could afford it
    and did not want her husband to buy it.        When husband's parents
    1
    As the parties are fully conversant with the record in
    this case and because this memorandum opinion carries no
    precedential value, only those facts necessary to a disposition
    of this appeal are recited.
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    offered to pay for the lot, wife again said she did not want it
    but requested that, if they provided the purchase funds, that
    the property be titled in both their names "in case something
    happened to him."   Husband's parents indicated to wife that the
    purchase money was going to be part of his inheritance.
    Thereafter husband's parents gave him a check to cover the
    purchase price of the Bearcastle lot which apparently went into
    husband's bank account.   Husband then paid for the lot from his
    account.
    The trial court's first letter opinion of September 28,
    2001, appears to trace husband's monetary contribution for the
    lot under Code § 20-107.3(A)(3)(d).      Although no specific
    finding classifying the lot as marital property was made, the
    trial court awarded husband substantially all of the value of
    the lot based on the tracing of funds and found a marital share
    of $2,000 which was divided equally. 2
    The trial court's second letter opinion of January 4, 2002,
    finds the Bearcastle property to be marital property based upon
    its joint ownership, a conclusion with which the parties
    evidently agree.    In any event, we read the second letter
    opinion to abandon the tracing analysis, but citing specific
    2
    The parties do not dispute the valuation for the
    Bearcastle lot of $125,000.
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    reasons to support awarding husband and wife the same monetary
    values as in the first opinion letter.
    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).   Alphin v. Alphin, 
    15 Va. App. 395
    , 403, 
    424 S.E.2d 572
    , 576 (1992).    "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 v.
    Theismann, 
    22 Va. App. 557
    , 564-65, 
    471 S.E.2d 809
    , 812 (1996)
    (quoting Alphin, 15 Va. App. at 403, 
    424 S.E.2d at 577
    ).
    Wife argues that since all the marital property, except the
    Bearcastle lot, was divided equally, the lot should be similarly
    divided.   She further contends that a 99% distribution to
    husband of this one marital asset is error as a matter of law.
    We disagree.
    "Each party does have an equal legal interest, but the
    application of the statutory factors [in Code § 20-107.3(E)] may
    justify an unequal distribution."    Lightburn v. Lightburn, 
    22 Va. App. 612
    , 618, 
    472 S.E.2d 281
    , 284 (1996).   While the
    Bearcastle lot is marital property, a 50-50 split is not
    presumed at law.
    - 4 -
    All of the provisions of Code § 20-107.3
    must be followed in making an equitable
    distribution decision. . . . We must be
    able to determine from the record that the
    trial court has given substantive
    consideration to the evidence as it relates
    to the provisions of this Code section.
    Woolley v. Woolley, 
    3 Va. App. 337
    , 345, 
    349 S.E.2d 422
    , 426 (1986). . . . "This 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."
    . . . [I]f the court's findings are not
    supported by the evidence in the record, the
    court has abused its discretion, and the
    court's determination must be reversed.
    Trivett v. Trivett, 
    7 Va. App. 148
    , 153-54, 
    371 S.E.2d 560
    , 563
    (1988) (quoting Wagner v. Wagner, 
    4 Va. App. 397
    , 410, 
    358 S.E.2d 407
    , 414 (1987)) (internal citations omitted).
    We find from the record that the trial court considered all
    the statutory factors set forth in Code § 20-107.3(E).    Further,
    the trial court gave specific reasons for its division of the
    Bearcastle lot's value.   The record shows husband found the
    property and secured the money for it, at no cost to the marital
    estate.   Wife, by her own admission, did not want the property
    (notwithstanding the donation of the purchase price), and only
    asked that the property be jointly titled in case husband
    wrecked his speedboat.
    "The statute allows the trial court to take into account
    'such other factors as the court deems necessary or appropriate
    - 5 -
    to consider in order to arrive at a fair and equitable monetary
    award.'"    Mir v. Mir, ___ Va. App. ___, ___, ___ S.E.2d ___, ___
    (Oct. 29, 2002); Code § 20-107.3(E)(10).       In doing so, the trial
    court may make a significantly disproportionate award.      For
    example, in Mir, the primary marital asset was subject to a 95%
    to 5% division of value.
    The trial court could divide the Bearcastle lot based on
    Code § 20-107.3(E)(2), (6) or (10) by disproportionate award to
    husband.   Accordingly, we find no error in the trial court's
    decision, which is affirmed.
    B.   Perry Racing
    The trial court's division of the Perry Racing asset was
    its best effort with the limited evidence available.      The hull
    and rigging (and perhaps the pump and motor) were sold for
    $5,400.    Wife offered no evidence as to contemporary fair market
    value.    Her argument, using an item by item cost basis, ignores
    the fact the rigging and other equipment were incorporated into
    the boat and husband's uncontroverted evidence of market
    conditions and market value.
    There is evidence in the record to support the $10,000
    valuation which lies between the $5,400 sale price and the cost
    basis.    Husband also testified, without contradiction, as to
    defects in the boat and his marketing efforts to justify a sale
    at less than cost.   With no contemporary evidence of fair market
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    value, other than the sale price, the trial court did not abuse
    its discretion in the valuation or division.        The trial court's
    determination is affirmed.
    C.   Valuation of the NOW Accounts
    Apparently these accounts were in husband's name alone.
    Husband therefore had the unique ability to tender evidence of
    date of separation or date of hearing bank statements to show a
    value different from that shown by wife's evidence.        Husband
    failed to do so.    The trial court made its determination on the
    only evidence available.     That decision was not an abuse of
    discretion and is affirmed.
    D.   The Backhoe
    Husband contended at trial that he sold the backhoe to his
    father for an undetermined amount.         He did not tell his wife
    about the sale nor could he produce a bill of sale or any other
    evidence to prove a sale.     The trial court was free to reject
    husband's evidence, consider the backhoe as marital property and
    proceed to value that asset.
    The trial court had some evidence as to value (namely the
    purchase price) and did the best it could with the evidence
    available.   Husband cannot complain that he chose not to produce
    valuation evidence where, again, husband had a unique ability to
    do so.   The trial court's valuation of the backhoe was not an
    abuse of discretion and is affirmed.
    - 7 -
    E.   1999 Ford F-250
    Husband contends that wife's valuation of his Ford truck is
    inaccurate because incorrect data concerning the truck's mileage
    and transmission were utilized for Kelley Blue Book value.
    Husband's contentions in this regard are not apparent from the
    record.   It cannot be said the trial court erred as a matter of
    law in fixing the value based on the evidence presented, which
    it was in the best position to evaluate as the trier of fact.
    As there was no abuse of discretion, the trial court's valuation
    of husband's truck is affirmed.
    II.   ATTORNEYS' FEES
    "An award of attorney fees is discretionary with the court
    after considering the circumstances and equities of the entire
    case and is reviewable only for an abuse of discretion."     Gamer
    v. Gamer, 
    16 Va. App. 335
    , 346, 
    429 S.E.2d 618
    , 626 (1993).
    "The key to a proper award of counsel fees is reasonableness
    under all of the circumstances revealed by the record."
    Ellington v. Ellington, 
    8 Va. App. 48
    , 58, 
    378 S.E.2d 626
    , 631
    (1989).
    The trial court did not abuse its discretion in determining
    not to award attorneys' fees.
    For the reasons set forth above, the decision and decree of
    the trial court are affirmed.
    Affirmed.
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