Bomar v. Bomar

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Frank and Senior Judge Overton
Argued at Chesapeake, Virginia

THOMAS W. BOMAR
OPINION BY
v. Record No. 1556-04-1 JUDGE JAMES W. BENTON, JR.
MARCH 8, 2005
AVA W. BOMAR

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge

Elisa D. Carlson (Mary G. Commander; Commander & Carlson, on
briefs), for appellant.

Breckenridge Ingles (Martin, Ingles & Ingles, Ltd., on brief), for
appellee.

Thomas W. Bomar appeals from a final decree of divorce. He contends the trial judge erred

in (1) ordering the transfer of the marital residence to Ava W. Bomar, his wife, while he remained

obligated to pay the mortgage, (2) refusing to order the sale of the marital residence, and (3) fixing

the amount of spousal support. We reverse the portion of the decree concerning the marital

residence and remand for reconsideration, and we affirm the award of spousal support.

I.

The parties married in 1972 and separated in 2002. The four children of the marriage are all

over the age of eighteen years. During the divorce proceedings, the issue of the marital residence

was raised in some fashion on October 10, 2002 at a hearing on the wife’s motion for pendente lite

relief. The record on appeal does not contain a transcript of the hearing. However, the pendente lite

decree contains the following provisions:
 1. Effective immediately and continuing until further order of the
Court[, the wife] shall have exclusive possession of the jointly
owned marital residence . . . .

2. [Husband] shall be responsible for the timely payment of the
first and second mortgage payments, taxes and insurance related to
the jointly owned marital residence.

Paragraph 1 suggests that this order of possession was pendente lite and subject to further order

of the trial judge.

The record also contains an indication that the marital residence was an issue at a hearing on

July 25, 2003. Although no transcript of that hearing is in the record, the trial judge entered a

pretrial order on October 7, 2003, noting that on July 25, 2003 the “parties agree[d] . . . the fair

market value of the marital residence is $113,500.” The order also recites that the “marital

residence will be assigned to the wife and the value of the asset will be considered for equitable

distribution purposes.” When the order was entered on October 7, 2003, the husband had retained

another attorney.

At a hearing several months later, the husband’s new attorney argued that the marital

residence needed to be sold because the wife was not able to refinance the mortgages, the wife was

not financially able to maintain the residence, and the husband would be harmed if he remained

liable on the mortgages. The attorney argued that the husband did not agree to the wife’s possession

of the house without refinancing the mortgages.

The wife’s attorney argued that the parties agreed on July 25, 2003 “that the house would be

transferred to [the wife], period, end of story.” The attorney indicated that he “prepared the pretrial

order consistent with that agreement” and that the judge had signed the order.

Prior to hearing any testimony, the trial judge ruled as follows:

I’m not going to vacate the decree. [The husband] was here.
There was no indication that he didn’t understand what was going
on. The fact that it’s assigned to her, I’m not sure that down the

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 road she can’t be ordered to refinance. I don’t know. I haven’t
gotten into that yet.

At the hearing, the wife testified that her credit rating is “poor” and that she would not be

able to refinance the mortgages. Her attorney conceded that the wife “does not have good

credit.” Although the husband testified that he did not object to the wife having the marital

residence, he said he wanted to be released from the mortgages. The husband testified that the

wife “always had a problem . . . keeping up on her bills.” The parties again stipulated the value

of the marital residence and further stipulated that the marital residence was subject to a principal

deed of trust balance of $88,181.48 and a second deed of trust balance of $7,748.04, resulting in

an equity value of $17,570.48.

In a March 16, 2004 letter opinion, the trial judge made an award “reflect[ing] an . . . equal

division of the parties’ assets.” He ruled that the “wife is awarded the marital residence” and that

she was solely responsible for the debts associated with the marital residence. In response to the

husband’s motion that the opinion “be amended to make provision for Wife to refinance or

otherwise have Husband removed from liability on the mortgage as a condition of receiving the

marital residence,” the trial judge denied the motion and explained his reasoning in a May 6, 2004

letter opinion:

Although I have found no appellate cases on the issue, I
nevertheless conclude that the statutory direction that Mrs. Bomar
“assume [the] indebtedness secured by the property” does not
permit the court to order her to refinance the indebtedness.
Further, my obligation to apportion debt does not include the
power to order an acceleration of the payment of this debt.

Frankly, I would like to have the power to order such
refinancing or acceleration, because I am sympathetic to
Mr. Bomar’s position.

The final decree of divorce granted a divorce on the ground that the parties lived separate

and apart without habitation for a year. It assigned the marital residence to the wife, ordered that

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the wife “shall be responsible for the timely payment of the first and second mortgage payments,

taxes and insurance,” and ordered the husband to convey his title and interest in the marital

residence by a general warranty deed of assumption.

II.

The husband contends the trial judge erred in refusing to order that the marital residence

be sold. The wife did not address this issue in her brief; however, at oral argument she asserted

that the husband had agreed to the transfer and is now barred from raising this issue on appeal.

The trial judge’s October 7, 2003 order memorializes the parties’ agreement, entered on

July 25, 2003. The order provides that “the marital residence will be assigned to the wife and the

value . . . will be considered for equitable distribution purposes.” Nothing in the record

established that the trial judge erred in finding that the parties made this agreement. In view of

the agreement, we will not now consider the husband’s contention that the trial judge erred in

ordering the marital residence transferred to the wife. The “[h]usband will not be permitted to

approbate and reprobate, ascribing error to an act by the trial [judge] that comported with [the

husband’s] representations.” Asgari v. Asgari, 33 Va. App. 393, 403, 533 S.E.2d 643, 648

(2000).

III.

The husband alternatively contends the trial judge erred “in ordering the transfer of the

marital residence to [the] wife, while requiring [the husband] to remain liable on the mortgage

obligation.” He argues that the trial judge’s ruling “was based upon an improper interpretation

of the law.” The wife responds that the trial judge “had the discretion to order that the marital

residence be transferred” and did not abuse his discretion in ordering the husband to remain

liable on the mortgage.

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 In pertinent part, Code § 20-107.3(C) provides as follows:

The court may, based upon the factors listed in subsection E,
divide or transfer or order the division or transfer, or both, of
jointly owned marital property, or any part thereof. The court shall
also have the authority to apportion and order the payment of the
debts of the parties, or either of them, that are incurred prior to the
dissolution of the marriage, based upon the factors listed in
subsection E.

As a means of dividing or transferring the jointly owned marital
property, the court may transfer or order the transfer of real or
personal property or any interest therein to one of the parties,
permit either party to purchase the interest of the other and direct
the allocation of the proceeds, provided the party purchasing the
interest of the other agrees to assume any indebtedness secured by
the property, or order its sale by private sale by the parties, through
such agent as the court shall direct, or by public sale as the court
shall direct without the necessity for partition.

Upon the agreement of the parties, the trial judge required the husband to transfer his title

and interest in the marital residence to the wife as a part of the scheme of distributing the marital

property. The marital residence is encumbered by two deeds of trust securing the repayment of

notes (the mortgages). Although the trial judge ordered the wife to assume the payment of the

mortgages, the order does not protect the husband against default by the wife. The record

establishes, however, that the wife has demonstrated financial irresponsibility and has a poor

credit rating. The trial judge expressly recognized the potential burden that this transaction may

impose on the husband. Although he was “sympathetic” to the husband’s plight, the judge ruled

he was powerless to remedy the problem.

A trial judge “would necessarily abuse [his] discretion if [he] based [his] ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell

v. Hartman Corp., 496 U.S. 384, 405 (1990). Thus, we review a trial judge’s ruling to determine

whether his discretion was guided by erroneous legal conclusions. We applied this principle in

reversing an order distributing marital property where the trial judge “erroneously concluded that

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the provision of Code § 20-107.3(A) abrogated the court’s discretionary power [to reconsider an

asset valuation] and confined his review . . . to the date of the initial evidentiary hearing.”

Shooltz v. Shooltz, 27 Va. App. 264, 270, 498 S.E.2d 437, 440 (1998). Finding nothing in the

statute to support the judge’s ruling, we held as follows:

[W]e find that the trial court erred in concluding that Code
§ 20-107.3(A) barred it from reopening the hearing on the
valuation of assets. The trial court’s error of law with respect to its
discretion to reopen the hearing was itself an abuse of discretion.
As the Supreme Court has recognized, a trial court “by definition
abuses its discretion when it makes an error of law.” Koon v.
United States, 116 S. Ct. 2035, 2047 (1996). Accordingly, we
reverse and remand the case for the trial court to consider the issue
of reopening the hearing in light of the relevant factors which
govern its exercise of discretion.

Id. at 271, 498 S.E.2d at 440-41 (footnote omitted).

Code § 20-107.3(C) empowers the trial judge to order, as a condition of transferring

jointly owned marital property, that the receiving party “assume any indebtedness secured by the

property.” Clearly this grant of power encompasses the power to condition the transfer upon

terms that will not leave the other party at risk of financial ruin if the receiving party is not

financially responsible. The term “assume any indebtedness” obviously means the grantee

agrees to discharge the indebtedness. This can be done by refinancing, by paying the balance, or

by paying according to the terms of the instrument. Owens v. Lee, 185 Va. 160, 166, 37 S.E.2d

848, 851 (1946); Waddell v. Roanoke Mut. Bldg. & Loan Ass’n, 165 Va. 229, 236, 181 S.E. 288,

290-91 (1935); Linbrook Realty Corp. v. Rogers, 158 Va. 181, 189, 163 S.E. 346, 348 (1932);

Univ. of Richmond v. Stone, 148 Va. 686, 696-97, 139 S.E. 257, 260-61 (1927). See also

Williams v. First Federal Sav. & Loan Ass’n of Arlington, 651 F.2d 910, 931 (4th Cir. 1981).

Nothing in the statute suggests the trial judge did not have the power to order any of these

incidents when he ordered the wife to assume the indebtedness associated with the marital

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property. The statute obviously contemplates that the trial judge has the power to order the usual

and necessary incidents requisite to transferring the property to reach an equitable distribution.1

In addition, we note that nothing in the record indicates the parties’ agreement precluded

the judge from ordering refinancing. Indeed, the trial judge noted this prior to the evidentiary

hearing, saying: “The fact that it’s assigned to her, I’m not sure that down the road she cannot be

ordered to refinance.” Without some further conditions, the order that merely requires the wife

to assume the mortgage indebtedness would leave the parties’ financial affairs entangled for

many years and would make more likely further conflict and litigation between them concerning

the mortgage debts.2 The trial judge obviously has the power to consider whether the husband

should be left to rely upon the notion that the wife, for the remaining term of the mortgages, can

1
We also note that nothing in the statute bars the trial judge from ordering, if appropriate,
that the party receiving the property and assuming the indebtedness indemnify and save harmless
the other party from any claims arising out of ownership and occupancy of the property. Where,
as here, the trial judge ordered that the wife was to be solely responsible for the debts associated
with the residence, a requirement that she indemnify and hold harmless the husband regarding
the debts is nothing more than an incident to assuring that the wife bears the obligation of the
debts. See Rogers, 158 Va. at 188-89, 163 S.E. at 348.
2
In ordering transfers, circuit court judges routinely require various means to assure an
effective transfer of the marital residence and assumption of the associated debt. See e.g. Gibson
v. Gibson, 23 Cir. CH 0229 (2003) (requiring as a condition of the transfer that the wife
“arrang[e] to have [the husband’s] name removed from the [mortgage] or refinance the [debt]”);
Griffiths v. Griffiths, 20 Cir. C 21286 (2003) (same); Williamson v. Williamson, 20 Cir. C
21642 (2003) (in lieu of sale, the wife is given the option to “refinance [the debt on] the marital
residence so as to have title transferred to her”); Rinearson v. Rinearson, 19 Cir. C 170354
(2002) (awarding residence on the condition that one party hold “harmless [the other] on the
existing mortgage”); Phelan v. Phelan, 19 Cir. 145616 (2000) (marital home may be transferred
if the wife “refinance[s] the property so as to remove the husband from obligations under any
loans”); Whittrup v. Whittrup, 19 Cir. C 148413 (1998) (same); Shoemaker v. Shoemaker, 19
Cir. C 130923 (1994) (permitting husband to purchase marital residence by “refinanc[ing] or
otherwise remov[ing] the wife from all liens and hold[ing] her harmless from all claims relating
to said real property”).

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and will make rational economic decisions concerning the ownership of the property and the

joint debts she is obligated to pay, and for which the husband remains continually liable.3

Because the record indicates that the trial judge erroneously believed the statute did not

permit him to order refinancing or other safeguards when he ordered the transfer of the marital

residence to the wife, we hold that the judge abused his discretion in making the award.

IV.

The husband contends that the trial judge erred in awarding spousal support. In our view

of this issue, we are governed by well established principles.

Whether a spouse is entitled to support, and if so how much, is a
matter within the sound discretion of the trial court and will not be
disturbed on appeal unless it is clear that some injustice has been
done. Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208,
211 (1986). The challenge to the amount of support raises the
issue of the sufficiency of the evidence to support the judgment.
The judgment of the trial court is presumed correct and we may not
disturb its ruling if there is credible evidence to support it. Code
§ 8.01-680.

Steinberg v. Steinberg, 11 Va. App. 323, 329, 398 S.E.2d 507, 510 (1990).

Recognizing the high hurdle to overcome, the husband contends he “was denied the

opportunity to prepare a spousal support case since the trial court declined to grant a request for

continuance.” The appeal, however, presents no issue concerning the denial of a continuance.

We are constrained by Rule 5A:20 not to consider it. See Clements v. Riverside Walter Reed

Hosp., 40 Va. App. 214, 228 n.9, 578 S.E.2d 814, 820 n.9 (2003) (an argument that is not part of

the question presented for appeal will not be considered).

3
In Stroop v. Stroop, 10 Va. App. 611, 394 S.E.2d 861 (1990), the trial judge devised an
elaborate means by which the spouse receiving the marital residence would pay the other spouse
for his interest $18,500 at the rate of 9% per annum by monthly payments of $138.75, later
increasing to $250. Id. at 613, 394 S.E.2d at 862. We held that the trial judge was not
empowered to so entwine the parties’ finances so far into the future.
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 The husband also contends that the trial judge violated principles established in Gamble

v. Gamble, 14 Va. App. 558, 421 S.E.2d 635 (1992), when he awarded the wife an amount of

spousal support almost equal to the amount of the mortgage payment. He relies upon the

following ruling:

The outstanding obligations on marital property are properly
considered when Code § 20-107.3 determinations are made and the
marital wealth is equitably distributed. The same obligations are
not to be factored again into the Code § 20-107.1 determination.
In short, the appropriate separation between considerations of
spousal support and considerations of an equitable distribution of
marital wealth prevents a “double dip” by a spouse who seeks and
receives encumbered marital property under Code § 20-107.3 and
also seeks and receives spousal support under Code § 20-107.1.

Id. at 577, 421 S.E.2d at 646-47.

The evidence in this record does not support the husband’s claim that the award of

spousal support was an impermissible “double dip.” The record unambiguously establishes that

the trial judge set the amount of the spousal support award after reviewing the factors in Code

§ 20-107.1 and considering their application to the facts in this record. We hold, therefore, that

the record fails to establish an abuse of discretion, and we affirm the spousal support award.

V.

For these reasons, we reverse the decree respecting the distribution of property and

remand to the trial judge to reconsider the award in light of these principles. We affirm the

award of spousal support.

Affirmed, in part,
reversed, in part,
and remanded.

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