Leslie Dallas Marshall v. Jan B Marshall ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
LESLIE DALLAS MARSHALL
MEMORANDUM OPINION *
v. Record No. 3367-02-2 PER CURIAM
JULY 1, 2003
JAN B. MARSHALL
FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
William H. Shaw, Judge
(Stephen A. Palmer, on brief), for appellant.
(McClanahan Ingles; Martin, Ingles & Ingles,
Ltd., on brief), for appellee.
Leslie Dallas Marshall appeals the circuit court's ruling
rejecting his exceptions to the report of the commissioner in
chancery in the divorce proceedings initiated by his wife, Jan B.
Marshall. On appeal, husband contends the commissioner (1) erred
by not accepting his "document, which purported to be a memorandum
of fact and law or a brief," (2) incorrectly determined wife
traced the separate funds used to pay debt, and (3) incorrectly
determined those separate funds increased the value of the
property. Upon reviewing the record and briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990). In this light, the evidence proved
that in 1986, wife's parents conveyed to the wife a parcel of
land by deed of gift which was titled to both parties as tenants
by the entirety. Her parents later gave her approximately
$151,000 for improvements to the property. The wife used
approximately $144,700 for improvements to the residence and
used the remainder for appliances and furniture. An appraiser
established the fair market value of the residence was $172,500,
and reported that at the time of the property transfer the land
was worth $60,000. At the time of the trial, the land was worth
$65,100 and the improvements worth $107,400.
The husband declined to present any evidence at the
commissioner's hearing. The commissioner allowed each party to
submit a memorandum of fact and law in lieu of closing
arguments. The husband submitted, instead, a fifteen-page
document reciting evidence not introduced at the hearing. The
commissioner declined to consider the document.
The commissioner concluded the wife's contributions of
separate property exceeded the value of the jointly-titled real
property. The commissioner found that husband made no separate
contribution to the property. Both parties made marital
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contribution of personal efforts by performing physical work to
build the residence.
The husband filed exceptions to the commissioner's report.
After hearing argument, the circuit court overruled the
husband's exceptions.
Analysis
I.
The husband contends the commissioner erred by rejecting
his written argument. We disagree. Although the commissioner
permitted closing arguments in the form of written memoranda,
the husband's document contained new evidence he was submitting
for the first time. The husband had not moved to reopen the
case. Because the document contained evidence and allegations
not raised at trial, the trial court did not err in holding that
the commissioner was not required to consider it.
II. and III.
Marital property includes "all property titled in the names
of both parties" and property acquired by either spouse during
the marriage "in the absence of satisfactory evidence that it is
separate property." Code § 20-107.3(A)(2). Separate property
is the following:
(i) all property, real and personal,
acquired by either party before the
marriage; (ii) all property acquired during
the marriage by bequest, devise, descent,
survivorship or gift from a source other
than the other party; (iii) all property
acquired during the marriage in exchange for
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or from the proceeds of sale of separate
property, provided that such property
acquired during the marriage is maintained
as separate property; and (iv) that part of
any property classified as separate pursuant
to subdivision A 3.
Code § 20-107.3(A)(1). Separate property may exist, even when
marital and separate property are "commingled" in some manner,
"to the extent the contributed property is retraceable by a
preponderance of the evidence and was not a gift." See Code
§ 20-107.3(A)(3)(d), (e) and (f).
The property, given to the wife during the marriage, was
jointly titled and, therefore, presumed marital property. The
burden was on the wife to establish that the property could be
traced to her separate funds. See Rexrode v. Rexrode, 1
Va. App. 385, 392, 339 S.E.2d 544, 548 (1986). To classify all
or a portion of such property as separate and not marital, "the
circumstances of each case" must allow the court to trace the
spouse's contribution back to separate property. von Raab v.
von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997).
The evidence showed the wife's parents gave her the
property and the funds to construct the residence, increasing
the value of the real property. Wife's contribution of her
separate funds to the property exceed the property's current
fair market value. The trial court agreed with the
commissioner's finding that wife presented sufficient evidence
to trace the purchase of the home to her separate funds. We
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will not overturn that factual finding unless plainly wrong or
without evidence to support it. See Gilman v. Gilman, 32
Va. App. 104, 115, 526 S.E.2d 763, 768 (2000).
The trial court did not err by overruling husband's
exceptions to the commissioner's report and confirming the
report in whole. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
Affirmed.
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