COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and McClanahan
Argued at Salem, Virginia
DAPHNE MAYHEW
MEMORANDUM OPINION ∗ BY
v. Record No. 2714-09-3 JUDGE ELIZABETH A. McCLANAHAN
JANUARY 11, 2011
JOHN MAYHEW
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
Carter B. Garrett (Garrett & Garrett, P.C., on brief), for appellant.
Curtis L. Thornhill (Berger & Thornhill, on brief), for appellee.
Daphne Mayhew (wife) appeals from a final decree of divorce from John Mayhew
(husband). Challenging the trial court’s equitable distribution award, wife argues, first, that the
court erred in finding husband contributed from his separate funds the sum of $134,788.41
towards the purchase and construction of the marital residence. According to wife, husband met
his burden of proof in tracing only the sum of $42,579.72 as his separate contribution to the
marital residence. Second, wife argues that the court erred in classifying husband’s defined
contribution retirement plan as “part marital and part separate property,” rather than classifying it
as solely marital property, because husband failed to directly trace his separate contributions to
this account.
We agree with wife about the evidence of husband’s separate contribution to the marital
residence. However, as to wife’s argument regarding the classification of husband’s retirement
plan, wife has failed to present a sufficient record upon which we can review this issue. We thus
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
affirm the trial court in its classification of husband’s defined contribution retirement plan,
reverse the trial court in its determination as to the amount of husband’s separate contribution to
the marital residence, and, therefore, remand this case for reconsideration of the equitable
distribution award.
(i) Husband’s Separate Contribution to Marital Residence
“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).
In the context of equitable distribution, Code § 20-107.3(A)(3)(e) states:
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. However, to the extent the
contributed property is retraceable by a preponderance of the
evidence and was not a gift, the contributed property shall retain its
original classification.
Thus, to trace the separate portion of commingled or “hybrid” property, ‘“a party must prove that
the claimed separate portion is identifiably derived from a separate asset. This process includes
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.’” Gilman v. Gilman, 32 Va. App. 104, 122, 526 S.E.2d
763, 772 (2000) (quoting Rahbaran, 26 Va. App. at 208, 494 S.E.2d at 141); see also von Raab v.
von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997) (“[T]he party claiming a separate
interest in transmuted property bears the burden of proving retraceability.”).
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The trial court in this case set forth its findings for the equitable distribution of the
parties’ marital property in a letter opinion dated November 4, 2009, which was incorporated by
reference into the parties’ final divorce decree. The first piece of property that the court
addressed was the marital residence, identified as the “Bishop Creek Road property.” As the
court explained, the parties acquired this property jointly and constructed the marital home on it
during the course of their marriage. The court found that husband contributed a total sum of
$134,788.41 from his “separate asset[s]” towards the costs of acquiring this real estate and
constructing the home. The court, in turn, used this sum to establish the value of husband’s
separate equity interest in the Bishop Creek Road property under the “Brandenburg formula.”
See Martin v. Martin, 27 Va. App. 745, 753, 501 S.E.2d 450, 454 (1998) (explaining that the
“Brandenburg formula,” approved by this Court in Hart v. Hart, 27 Va. App. 46, 65-66, 497
S.E.2d 496, 505 (1998), is “one method for ascertaining the value of the separate and marital
components of hybrid property in relation to the original contributions”).
More specifically, the court found that husband “traced” to three separate sources the
aggregate sum of $134,788.41, which he allegedly contributed towards the Bishop Creek Road
property, as follows: (1) a loan from an equity line of credit in the sum of $39,510.99 secured by
husband’s separately owned real estate, identified as the “Harbor Drive property,” which loan
husband satisfied by the sale of that property; (2) the net proceeds from husband’s sale of the
Harbor Drive property in the sum of $69,697.70; and (3) husband’s separate funds in the sum of
$25,579.72 with which he made post-separation payments “toward reduction” of the parties’
joint mortgage on the Bishop Creek Road property.
The parties have presented on appeal an agreed statement of facts in lieu of a transcript of
the trial court proceedings, pursuant to Rule 5A:8(c); and we are “bound” by this written
statement of facts in our review of the record on appeal. Gologanoff v. Gologanoff, 6 Va. App.
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340, 344, 369 S.E.2d 446, 448 (1988) (citing Rule 5A:7(a)(7)). As to husband’s use of the funds
from the equity line of credit, the parties recite in the statement of facts only the following: “The
husband testified that he used the funds from the equity line to [1] buy the land on Bishop Creek
Road in Bedford County, [2] to ‘fix up’ the Harbor Drive property and [3] to pay bills.” Based
on this statement, there was insufficient evidence to support the trial court’s finding that husband
traced all of the funds from the equity line loan in the sum of $39,510.99 as a separate
contribution from him to the Bishop Creek Road property. Nor indeed would this factual
recitation support a finding that husband traced any specific portion of those loan proceeds to
that property. At oral argument, however, wife’s counsel conceded that husband, in fact,
contributed $17,000 from the loan to purchase the real estate comprising the Bishop Creek Road
property. 1
As to husband’s use of the net proceeds of $69,697.70 from his sale of the Harbor Drive
property, the parties recite in the statement of facts only this: “The husband testified that he
deposited the net proceeds into a ‘separate account.’ And, that he used the money [1] to build
the Bishop Creek house, [2] to buy vehicles and [3] to pay bills.” Based on this statement, there
was similarly insufficient evidence to support the trial court’s finding that husband traced all of
the $69,697.70 in net proceeds from husband’s sale of the Harbor Drive property as a separate
contribution from him to the Bishop Creek Road property. Nor would this factual recitation
support a finding that husband traced any specific portion of those net proceeds to that property.
1
In making this concession, wife’s counsel candidly pointed to a notation on a document
included in the joint appendix identified as husband’s Exhibit 5. The notation referenced “Land”
and “17000.00.” Given the limited information provided in the statement of facts regarding this
document, as well as the limited information in the document itself, we could not now conclude,
but for the concession, that the “Land” was the Bishop Creek Road property and that husband
paid $17,000 for it with proceeds from his equity line of credit secured by the Harbor Drive
property.
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Finally, it is undisputed that husband made post-separation payments in the total sum of
$25,579.72 from his separate funds “toward reduction” of the parties’ joint mortgage on the
Bishop Creek Road property.
Accordingly, we remand this matter to the trial court for re-determination of the equitable
distribution award in light of our conclusion that husband’s separate contribution toward the
acquisition of the Bishop Creek Road property and the construction of the marital home on it, as
established by the record and factual concession before us, is limited to $42,579.72 (the total of
$17,000 and $25,579.72).
(ii) Husband’s Defined Contribution Retirement Plan
Wife’s other challenge to the trial court’s equitable distribution award goes to the court’s
classification of husband’s defined contribution retirement plan as “part marital and part separate
property,” rather than classifying it as solely marital property, based on husband’s alleged failure
to directly trace his separate contributions to this account. As to this challenge, wife has failed in
her burden to present a sufficient record upon which we can review this issue. See Prince
Seating Corp. v. Rabideau, 275 Va. 468, 470-71, 659 S.E.2d 305, 307 (2008) (“‘An appellant
who seeks the reversal of a decree . . . has the primary responsibility of presenting to this [C]ourt,
as a part of the printed record, the evidence introduced in the lower court, or so much thereof as
is necessary and sufficient for us to give full consideration to the assignment of error.’” (quoting
Lawrence v. Nelson, 200 Va. 597, 598-99, 106 S.E.2d 618, 620 (1959))); McDonald v. National
Enters., Inc., 262 Va. 184, 195, 547 S.E.2d 204, 211 (2001) (“As appellant in this appeal,
McDonald has the burden to present a sufficient record on which this Court can determine
whether the circuit court erred as McDonald contends.” (citing Wansley v. Commonwealth, 205
Va. 419, 422, 137 S.E.2d 870, 873 (1964))). Among other deficiencies in the record here
presented relative to wife’s analysis of this issue, wife references information in documents
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included in the joint appendix that are not identified or described in any way in the parties’
agreed statement of facts. Thus, we can draw no conclusions from those documents, given that
we have no information as to whether the documents were even admitted into evidence.
“‘If an insufficient record is furnished, the judgment appealed from will be affirmed.’”
Mullins v. Commonwealth, 39 Va. App. 728, 734, 576 S.E.2d 770, 773 (2003) (quoting White v.
Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995)). As wife provides us an insufficient
record upon which to consider her allegation of error in the classification of husband’s defined
contribution retirement plan, we find no error in the trial court’s order regarding that
classification.
CONCLUSION
For the reasons stated above, we affirm the trial court in its classification of husband’s
defined contribution retirement plan, reverse the trial court in its determination as to the amount
of husband’s separate contribution to the marital residence, and remand this case for
reconsideration of the equitable distribution award consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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