Barker v. Barker

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia

RICHARD L. BARKER
OPINION BY
v. Record No. 0812-97-2 JUDGE ROSEMARIE ANNUNZIATA
JUNE 16, 1998
NANCY J. BARKER

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Andrea R. Stiles (Williams, Mullen,
Christian & Dobbins, on briefs), for
appellant.

Lawrence D. Diehl for appellee.

Richard L. Barker (husband) appeals the order of the trial

court granting him a divorce from Nancy J. Barker (wife) on the

basis that the trial court erred in determining the spousal

support and equitable distribution awards. Specifically, husband

argues that the court overestimated his earning capacity for

purposes of spousal support, improperly applied the tracing

doctrine, and failed to properly consider the statutory factors

in determining equitable distribution. We affirm in part and
1
reverse in part.
Husband and wife were married on December 10, 1978. Wife's

1
Wife has filed a motion to delete or disregard a portion of
husband's designation of the record for the appendix, alleging
that a portion of the appendix is improperly before this Court.
Husband did not respond to this motion. Our review of the record
supports wife's allegations. Accordingly, we grant the motion
and will not consider or rely upon the portion of the appendix
that was improperly filed.
three children from a previous marriage lived with the parties

for a number of years. At the time of the marriage, husband owed

his former spouse over $50,000 in spousal support, payable over a

period of ten years. Although wife did not work outside the home

for the majority of the marriage, both parties contributed funds

to buy their first marital home. During the marriage, husband

was employed as an upper management business executive.

Husband admits that he committed adultery during the period

1986-1989. After husband told wife of the affair in 1989, the

two reconciled and joined an adultery self-help group. In 1990

or 1991, wife discovered evidence that husband had resumed his

affair. After her discovery, wife moved out of the marital

bedroom, although she remained in the marital home. Husband lost

his job in May 1991, although he continued to receive income from

his position until May 1992. On January 30, 1993, husband moved

out of the marital home, and wife filed for divorce.
The trial court referred the case to a commissioner, who

held hearings and filed a report. After the parties filed

exceptions to the commissioner's report, the trial court issued a

letter opinion sustaining husband's exception as to the

commissioner's recommendation for spousal support and related

issues and overruling most of husband's exceptions. After

holding an evidentiary hearing, the court awarded wife less

spousal support than recommended by the commissioner.

2
 I.

Spousal Support

After taking evidence as to the past and present

circumstances of the parties, the commissioner to whom the case

had been referred noted that, "[w]hile husband is currently

unemployed, the commissioner feels that he has the ability to be

employed at an income which would warrant an award of spousal

support to wife of $2,000.00 per month." The trial court elected

not to follow the commissioner's recommendation, and held

additional hearings on the issue of spousal support.
In its letter opinion of July 17, 1996, the trial court

noted that husband, age 62, had been temporarily employed at a

rate of $75,000 per year from August 1995 to October 1995, but

that husband had virtually no income for 1994, and was currently

unemployed. The court also noted that husband had attended real

estate school, had obtained a Virginia real estate license, had

taken the necessary steps to obtain a New Jersey real estate

license, and "hoped" to earn $2,000 per month. The court

explained that wife, in her fifties, earned $300 per week

designing jewelry, had been diagnosed with carpal tunnel

syndrome, and could earn a maximum of $25,000 per year as a

secretary. The court concluded, "[l]ooking first at the

considerable resources the parties have resulting from equitable

distribution and the pertinent factors under § 20-107.1 according

to the evidence, the court will require that husband pay to the

3
wife . . . the sum of $600.00 per month." The trial court did

not find that either party was voluntarily under-employed or

unemployed, and did not impute income to husband or wife.

Husband argues that the trial court erred in ordering him to pay

spousal support to wife because he has no income, actual or

imputed.

Whether and how much spousal support will be awarded is a

matter of discretion for the trial court. Jennings v. Jennings,

12 Va. App. 1187, 1196, 409 S.E.2d 8, 14 (1991) (citing McGuire
v. McGuire, 10 Va. App. 248, 251, 391 S.E.2d 344, 347 (1990)).

Code § 20-107.1 requires a court "to consider the circumstances

and factors which contributed to the dissolution of the marriage,

specifically including adultery," in determining whether to make

an award of spousal support. If the court determines that an

award should be made, the court is required to consider all the

factors outlined in Code § 20-107.1. See Rowe v. Rowe, 24 Va.

App. 123, 139, 480 S.E.2d 760, 767 (1997) (citing Woolley v.
Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422, 426 (1986)). Among

the other statutory factors, the trial court must evaluate the

earning capacity of both parties. See Stumbo v. Stumbo, 20 Va.

App. 685, 691, 460 S.E.2d 591, 594 (1995) (citing Goetz v. Goetz,

7 Va. App. 50, 51, 371 S.E.2d 567, 567 (1988)) (requiring the

trial court to consider earning capacity); Srinivasan v.

Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 675, 679 (1990)

(citing McGuire, 10 Va. App. at 251, 391 S.E.2d at 347)

4
(emphasizing that the court must consider the earning capacity of

both the payor and payee spouse).

Code § 20-107.1, like its predecessor Code § 20-107,

authorizes courts "to consider not only earnings but also

'earning capacity.'" Jacobs v. Jacobs, 219 Va. 993, 995, 254

S.E.2d 56, 58 (1979). "Although 'earning capacity' necessarily

includes actual earnings, it is a broader concept that allows the

trial court to consider more than actual earnings." Frazer v.
Frazer, 23 Va. App. 358, 378, 477 S.E.2d 290, 300 (1996). The

spousal support award, however, "must be based upon the

circumstances in existence at the time of the award." Payne v.

Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987). The

relevant time period includes the immediate past, Stubblebine v.

Stubblebine, 22 Va. App. 703, 709, 473 S.E.2d 72, 75 (1996) (en

banc), as well as the "'immediate or reasonably foreseeable

future.'" Srinivasan, 10 Va. App. at 735, 396 S.E.2d at 679

(quoting Young v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47

(1986)). A spousal support award may not be "premised upon the

occurrence of an uncertain future circumstance." Jacobs, 219 Va.

at 995-96, 254 S.E.2d at 58.

We view the evidence in the light most favorable to wife,

the prevailing party below. Cook v. Cook, 18 Va. App. 726, 731,

446 S.E.2d 894, 896 (1994) (citing Steinberg v. Steinberg, 11 Va.

App. 323, 325, 398 S.E.2d 507, 508 (1990)). So viewed, the

evidence supports the court's assessment of each of the parties'

5
earning capacity. The court heard testimony that since the

separation, wife had worked at a number of low-paying jobs.

Wife's most recent job prior to the separation had been in 1986,

and she had attempted but failed to bring her typing and

accounting skills up to date. Wife had been diagnosed with

carpal tunnel syndrome in 1980, and had four bones in her hands

surgically fused together. At the time of the hearing, wife was

performing piecework jewelry design, for which she was paid up to

$300 per week.
The court also heard evidence that husband received his real

estate license in January 1995, joined Coldwell Banker real

estate company, and earned $8,497 in 1995 before taking a

ninety-day position with One Call Medical. Husband worked for

One Call Medical until February 12, 1996, where he earned

approximately $6,000 per month. At the time of the hearing,

husband had passed the New Jersey real estate examination,

rejoined Coldwell Banker, and had been in training for three

weeks. As a real estate agent, husband hoped to earn $2,000 per

month selling real estate. This evidence supports the findings

of the court, and the court did not abuse its discretion in

fashioning a spousal support award of $600 per month based on

this evidence.

Husband also alleges that the trial court required him to

use his portion of the equitable distribution award to pay

spousal support. Code § 20-107.1(8) requires the trial court to

6
consider "[t]he provisions made with regard to the marital

property under § 20-107.3" in fashioning spousal support. As

husband argues, however, it is improper for a trial court to

treat assets divided in equitable distribution as income. Ray v.

Ray, 4 Va. App. 509, 514, 358 S.E.2d 754, 757 (1987); see, e.g.,

Dotson v. Dotson, 24 Va. App. 40, 44, 480 S.E.2d 131, 132-33

(1997) (describing the "'distinct difference . . . between a

spousal support award and a monetary award'" (quoting Brown v.
Brown, 5 Va. App. 238, 246, 361 S.E.2d 364, 368 (1987))). "[A]

decree which singles out this factor [regarding distribution of

the marital property] to the exclusion of others, and which

essentially treats the . . . spouse's marital assets as income,

cannot withstand scrutiny on appeal." Zipf v. Zipf, 8 Va. App.

387, 399, 382 S.E.2d 263, 270 (1989).

The trial court did not abuse its discretion in fashioning

the spousal support award. It is important to note that the

trial court's decision turns on husband's earning capacity rather

than imputed income or principal or income from the distribution.

The trial court's letter opinion of July 17, 1996, reveals that

the trial court gave primary consideration to the age and earning

capacity of the parties. The court reviewed the current earnings

and earning prospects of the parties, and considered the

testimony of husband, wife, and the vocational expert. The court

also considered the expenses claimed by each party. Finally, the

court stated that it had considered "the pertinent factors under

7
§ 20-107.1." We find that the trial court properly considered

the age, expenses, distribution of assets, and earning capacity

of the parties, as well as other statutory factors, in fashioning

the spousal support award, and thus acted within its discretion.

8
 II.

Classification of Property

The trial court affirmed the commissioner's decision to

trace the contributions of both parties to the first marital home

and award both parties a credit for their contributions. The

commissioner recommended that "the proceeds should be divided

equally with offsets to each party for their contribution of

separate property when the cycle of home buying began in 1978."

The commissioner recommended a credit of $23,500 for husband and

a credit of $50,061 for wife to reflect each party's separate

contributions to the purchase of the first marital home on John

Drive. Husband excepted to this recommendation, arguing that

wife could not trace $20,061 of the $50,000 she was credited to

the separate contribution she made to the purchase of the marital

property and that he could trace an additional $20,000 as his

separate property.
In affirming the finding of the commissioner, the trial

court agreed with wife that, apart from the $23,500, "any other

contributions cannot be traced directly from 1978 to the current

equities or properties of the parties." The court found,

"[t]here is no direct tracing evidence resulting from this sale

[of the John Drive home] to the present asset picture to mandate

or require any additional credit where there might otherwise be

on actual value tracing to current assets." The court went on to

note "that the proceeds from the sale of the parties' home in

9
Richmond cannot be directly traced to a specific source [because]

the many prior sale proceeds from other homes purchased during

the marriage and the commingling of other funds[] mak[e] tracing

difficult if not impossible." The trial court concluded that

wife's credit was justified because all of her contribution went

to pay marital bills, even though $20,061 was not used to

purchase the first marital residence or other identifiable asset.

A commissioner's findings of fact which have been accepted

by the trial court "are presumed to be correct when reviewed on

appeal and are to be given 'great weight' by this Court. The

findings will not be reversed on appeal unless plainly wrong."

Rowe, 24 Va. App. at 140, 480 S.E.2d at 768 (citations omitted).

According to Code § 20-107.3(A)(3)(e), "[w]hen 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," unless the contributed property is retraceable

and not a gift. We have explained the requirements of tracing

under Code § 20-107.3(A)(3):
In order to trace the separate portion of
hybrid property, a party must prove that the
claimed separate portion is identifiably
derived from a separate asset. This process
involves 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.

Rahbaran v. Rahbaran, 26 Va. App. 195, 207, 494 S.E.2d 135, 141

(1997) (citing Code § 20-107.3(A)(3)(d)-(f)). "[T]he party

10
claiming a separate interest in transmuted property bears the

burden of proving retraceability." von Raab v. von Raab, 26 Va.

App. 239, 248, 494 S.E.2d 156, 160 (1997) (citing Code

§ 20-107.3(A)(2)). 2

Assuming without deciding that husband's $20,000

contribution was separate property when he acquired it, we hold

that the trial court did not err in finding that husband failed

to present sufficient evidence of tracing to establish his claim

that he should be awarded $20,000 as his separate property.
Viewing the evidence in the light most favorable to wife,

husband cannot establish the separate identity of any portion of

the hybrid property, or directly trace the claimed separate

portion to his original contribution of separate property. In

Rowe, 24 Va. App. at 136, 480 S.E.2d at 766; von Raab, 26 Va.

App. at 249, 494 S.E.2d at 161; and Rahbaran, 26 Va. App. at

209-10, 494 S.E.2d at 142, we addressed the question of "multiple

source tracing," in which marital and separate property are

combined to acquire a single piece of hybrid property. See Brett
2
It is important to note that two tracing issues are not
presented by this case because they are not argued by the
parties. Neither party claims that he or she is entitled to
tracing of appreciation on separate assets. See Code
§ 20-107.3(A)(1); Mann v. Mann, 22 Va. App. 459, 464-65, 470
S.E.2d 605, 607-08 (1996); Lambert v. Lambert, 6 Va. App. 94,
104-05, 367 S.E.2d 184, 190-91 (1988). In addition, neither
party addresses the gift provisions of the transmutation statute.
See Code § 20-107.3(A)(3)(d)-(g); Lightburn v. Lightburn, 22 Va.
App. 612, 616-17, 472 S.E.2d 281, 283 (1996); Theismann v.
Theismann, 22 Va. App. 557, 578, 471 S.E.2d 809, 818 (1996)
(Annunziata, J., concurring in part and dissenting in part),
aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996) (en banc) (mem.).

11
R. Turner, Equitable Distribution of Property 266 (1994). This

case, in addition, presents the additional problem of "multiple

destination tracing," in which only a portion of hybrid property

is used to acquire or invest in additional properties, either

simultaneously or successively. Id. at 268. To determine

whether a party's separate property can be retraced under such

circumstances, courts have adopted widely varying approaches to

address the character of withdrawals from hybrid accounts. See

J. Thomas Oldham, Tracing, Commingling, and Transmutation, 23
Family L.Q. 219, 230-33 (1989) (describing approaches). Whatever

approach is used, it is clear that in the absence of sufficient

evidence establishing the identity of separate funds throughout

the multiple investments and withdrawals, the asset in question

must be deemed marital. Rahbaran, 26 Va. App. at 208-09, 494

S.E.2d at 141.

During the time in which the funds used to purchase the

houses were placed in various bank and investment accounts, the

parties continued to conduct withdrawal and deposit transactions

on the accounts. The record contains numerous gaps in recording

the simultaneous and sequential uses of the funds husband seeks

to trace. The evidence showed that husband contributed the

claimed $20,000 to the first marital home in Wheeling, Illinois.

Similarly, wife contributed the proceeds of the sale of her

separate townhouse to the purchase of the Wheeling house. The

parties subsequently placed the proceeds of the sale of the

12
Wheeling home into an account along with the parties' paychecks,

and subsequently invested a portion of the money from the account

in a home in Freeland, Michigan. The record does not reveal what

proportion of the money in the account represented the proceeds

of the Wheeling home, and what proportion represented the

parties' paychecks. When the parties sold the house in Freeland,

Michigan, unspecified proceeds of the sale went into an account

identified as a predecessor to the parties' Merrill Lynch Cash

Management Account (CMA), which also contained an unknown amount

of other marital funds. The parties moved to London, England,

and then back to Connecticut. Upon their return to the United

States, the parties used a portion of the money in the parties'

CMA to purchase a house in Westport, Connecticut. The record

does not establish the proportion of money in the CMA which

represents the proceeds of the sale of the Freeland home.
The parties sold the Westport house and used at least some

of the proceeds to buy a house in McLean, Virginia, the precise

amount of which was not established at trial. During the same

time period, the parties also owned a house in Bloomfield,

Michigan, although it is unclear what funds were used to purchase

the Bloomfield house. The parties sold both the McLean and

Bloomfield houses, and used proceeds in the amount of $500,000 as

a down payment on the Richmond, Virginia home owned at the time

of separation.

Thus, the record makes clear that husband presented

13
insufficient evidence from which the court could determine the

identity of his separate funds, and distinguish them from the

marital property in the hybrid asset, viz., the parties' last

house in Richmond. Therefore, "'the unknown amount contributed

from the separate source transmutes by commingling and becomes

marital property.'" Rahbaran, 26 Va. App. at 208-09, 494 S.E.2d

at 141 (quoting Turner, supra, at 268); see also Minter v.

Minter, 432 S.E.2d 720, 725 (N.C. App. 1993) (holding that party

did not carry his burden to trace transactions made on a marital

account).
Applying the same tracing principles to the classification

of wife's contribution, we hold that wife's evidence of tracing

does not support the court's award to her in the amount of

$20,061. 3 The evidence revealed, and the commissioner noted,

that wife contributed $20,061 of the $50,061 credit to pay

unspecified "marital bills." The evidence fails to establish

that wife contributed these funds toward the value of an
3
In an attempt to avoid the application of the tracing
doctrine and its result, wife argues that the trial court awarded
her a credit under equitable distribution principles, rather than
applying tracing rules to determine her separate property under
classification principles, citing Pommerenke v. Pommerenke, 7 Va.
App. 241, 249, 372 S.E.2d 630, 634 (1988), in support. In
Pommerenke, 7 Va. App. at 249, 372 S.E.2d at 634, we held, under
a previous version of Code § 20-107.3(A), that "the restoration
of a down payment made from separate property based on the
application of the eleven factors of Code § 20-107.3(E), rather
than the automatic restoration of such down payment, constitutes
the proper application of the statute." Our reading of the
rulings of the commissioner and the trial court, however, reveals
that the trial court applied tracing principles to both wife and
husband.

14
identifiable asset, or to the acquisition of an identifiable

asset. In short, wife has not pointed to any separate or hybrid

asset owned at the time of separation to which she claims the

$20,061 of her separate funds may be traced. Accordingly, the

trial court erred in identifying this portion of wife's

contribution as separate. Rahbaran, 26 Va. App. at 208, 494

S.E.2d at 141.

III.
Equitable Distribution Award

The trial court affirmed the commissioner's rulings on the

issue of equitable distribution, and issued a final decree

setting out the terms of the equitable distribution. Husband

contends that the commissioner and court erred in their

consideration of the statutory factors.

A commissioner's findings of fact which have been accepted

by the trial court "are presumed to be correct when reviewed on

appeal and are to be given 'great weight' by this Court. The

findings will not be reversed on appeal unless plainly wrong."
Rowe, 24 Va. App. at 140, 480 S.E.2d at 768 (citations omitted).

The amount and form of any equitable distribution award "are

matters committed to the sound discretion of the trial court,

[but] 'any division or award must be based on the parties'

equities, rights and interests in the property.'" Theismann v.

Theismann, 22 Va. App. 557, 565, 471 S.E.2d 809, 812 (1996)

(quoting Alphin v. Alphin, 15 Va. App. 395, 403, 424 S.E.2d 572,

15
577 (1992)), aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996) (en

banc) (mem.). In fashioning an equitable distribution award, the

trial court must consider each of the statutory factors, but may

determine what weight to assign to each of them. Booth v. Booth,

7 Va. App. 22, 28, 371 S.E.2d 569, 573 (1988). In challenging

the court's decision on appeal, the party seeking reversal bears

the burden to demonstrate error on the part of the trial court.

D'Agnese v. D'Agnese, 22 Va. App. 147, 153, 468 S.E.2d 140, 143

(1996) (citing Lutes v. Alexander, 14 Va. App. 1075, 1077, 421
S.E.2d 857, 859 (1992)).

A.
Consideration of Husband's Support
for Former Spouse and for Wife's Children

Husband contends that the trial court erred in giving

consideration to his use of at least $50,000 of marital funds to

make court-ordered support payments to a former spouse. Husband

also contends that the court failed to consider his support for

wife's children during the marriage.

Husband brought approximately $50,250 in intangible personal

property into the marriage. Husband argued that he should

receive a greater portion of the intangible property than the

principal owned at the time of marriage because of the earning

record of the funds, while wife argued that husband's share of

the intangible property should be reduced by the spousal support

paid by husband to his former wife during the marriage, which

totalled more than $50,000. The trial court found that the funds

16
husband brought into the marriage were transmuted by commingling

into marital property, and could not be treated as his separate

property as they could not be traced to a current asset. Thus,

in fashioning a monetary award which reflected this contribution,

the trial court was guided by the statutory factors for equitable

distribution of marital property set forth in Code § 20-107.3(E).

In considering the statutory factors, the court, inter alia,

balanced husband's monetary contributions to the marriage against

his use of marital funds to support his former spouse, and

awarded husband $44,856 for the intangible personal property,

with the remainder of the assets divided equally.
The specific question to be addressed by this Court is

whether the payment of separate debt with marital funds may be

considered by the trial court as a factor in fashioning an

equitable distribution award. We hold that the court may, in the

exercise of its discretion, consider payment of separate debt

with marital funds in fashioning an equitable distribution award.

While the specific question husband raises is a matter of

first impression in Virginia, the principles underlying its

resolution are well established. It is beyond dispute that the

trial court is required to consider all the factors set forth in

Code § 20-107.3(E) in determining the amount of any monetary

award and the division of marital property. See, e.g., Taylor v.

Taylor, 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988). Code

§ 20-107.3(E)(2) requires the court to consider "[t]he

17
contributions, monetary and nonmonetary, of each party in the

acquisition and care and maintenance of [the] marital property of

the parties." "[C]ircumstances that affect the [marital]

partnership's economic condition are factors that must be

considered for purposes of our equitable distribution scheme."

Aster, 7 Va. App. at 5, 371 S.E.2d at 836. This Court has made

clear that both affirmative and negative monetary contributions

to the marital partnership are to be considered. See, e.g.,
O'Loughlin v. O'Loughlin, 20 Va. App. 522, 526, 458 S.E.2d 323,

325 (1995); Traylor v. Traylor, 19 Va. App. 761, 766, 454 S.E.2d

744, 747 (1995). Indeed, there appears to be general agreement

with this principle. Turner, supra, at 565. Those contributions

which impact on the value of the marital estate have been of

particular concern to this Court. O'Loughlin, 20 Va. App. at

528, 458 S.E.2d at 326; Smith v. Smith, 18 Va. App. 427, 431, 444

S.E.2d 269, 273 (1994); Gamer v. Gamer, 16 Va. App. 335, 341, 429

S.E.2d 618, 623 (1993); Aster, 7 Va. App. at 5-6, 371 S.E.2d at

836. A court need not find waste in order to consider negative

contributions in fashioning an equitable distribution award. See

O'Loughlin, 20 Va. App. at 528, 458 S.E.2d at 326; cf. Booth, 7

Va. App. at 29, 371 S.E.2d at 573 (holding that unpaid attorneys'

fees constitute debt which the trial court properly considered in

fashioning equitable distribution award although the debt was not

waste).

In dual classification states such as Virginia, the use of

18
marital funds for non-marital purposes can be considered as a

factor in determining an equitable distribution award. Turner,

supra, at 572. For example, where marital funds are used to pay

the separate debts of one of the parties, a court may properly

consider that fact as a negative monetary contribution to the

marital property. Adams v. Adams, 443 S.E.2d 780, 781 (N.C. App.

1994) ("A reduction in the separate debt of a party to a

marriage, caused by the expenditure of marital funds . . . is

properly considered as a distributional factor . . . ."); Fenske
v. Fenske, 542 N.W.2d 98, 102-03 (N.D. 1996) (holding that trial

court did not err in considering husband's premarital debts paid

off during the marriage with commingled funds in the equitable

distribution award). In addition, we have found that support

obligations arising from a prior marriage may constitute such a

separate debt. Hayes v. Hayes, 21 Va. App. 515, 519, 465 S.E.2d

590, 592 (1996) (finding that debt incurred to pay child support

to a former spouse was separate debt); see Orlandi v. Orlandi, 23

Va. App. 21, 29, 473 S.E.2d 716, 720 (1996) (indicating that a

new spouse is not required to support the other spouse's

children), reh'g en banc granted, appeal withdrawn (1996).
Based on Virginia's statutory scheme and the cases which

have applied it, we hold that the trial court could properly

consider husband's use of marital funds to pay his prior support

obligations as a negative monetary contribution in fashioning its

equitable distribution award. Accord Dobbyn v. Dobbyn, 471 A.2d

19
1068, 1076-78 (Md. Ct. Spec. App. 1984); Jensen v. Jensen, 877

S.W.2d 131, 135 (Mo. Ct. App. 1994); McGee v. McGee, 648 A.2d

1128, 1133-34 (N.J. Super. Ct. App. Div. 1994); Turner, supra, at

594. 4 This view is premised on the clear language of Code

§ 20-107.3(E) and the underlying legislative intent to allow the

court to consider all contributions to the acquisition, care, and

maintenance of the marital property, both positive and negative.

See Code § 20-107.3(E)(2). Consideration of the use of marital

funds to pay separate debt, such as support to a former spouse,

properly falls under the trial court's consideration of the

statutory factors. As such, this case does not turn on the
5
application of the doctrine of "waste." In short, under

Virginia's statutory scheme, which encompasses broad directives

to the trial court to consider the parties' monetary and
4
In Bliss v. Bliss, 898 P.2d 1081, 1083-84 (Idaho 1995), the
Supreme Court of Idaho held that a husband's use of marital funds
to pay attorney's fees and a judgment from a prior divorce did
not meet the requirements of the community property
"reimbursement to the community" doctrine because the community
funds "were used to pay [his] antenuptial, unsecured debts"
rather than "used to enhance the value of [his] separate
property," and therefore fell outside the scope of the
"reimbursement" doctrine.
5
The doctrine of waste is implicated where a spouse
dissipates assets "in anticipation of divorce or separation for a
purpose unrelated to the marriage and in derogation of the
marital relationship at a time when the marriage is in jeopardy."
Booth, 7 Va. App. at 27, 371 S.E.2d at 572. In Rosenfeld v.
Rosenfeld, 597 So. 2d 835, 837 (Fla. Dist. Ct. App. 1992); and In
re Marriage of Burgess, 568 N.W.2d 827, 828-29 (Iowa 1997),
courts held that support payments to a former spouse do not
constitute waste. We express no opinion on whether support
payments to a former spouse might, in a proper case, constitute
waste, as that issue is not before us.

20
nonmonetary contributions to the marital estate, the trial court

properly considered husband's use of marital funds to pay support

to his former spouse.

Husband also contends that the commissioner failed to

consider his support for wife's children by a prior marriage in

determining the equitable distribution. After the parties

married, they supported three of wife's children and one of

husband's children in the marital home. The trial court

concluded that the commissioner considered husband's support of

wife's children under Code § 20-107.3(E)(10), the so-called

"catchall" factor, notwithstanding the absence of any reference

to the factor in the commissioner's report.
The court could consider husband's support for wife's

children pursuant to two statutory provisions: (1) as a

"contribution[], monetary and nonmonetary, of each party to the

well-being of the family"; and (2) as an "other factor[] as the

court deems necessary or appropriate to consider in order to

arrive at a fair and equitable monetary award." Code

§ 20-107.3(E)(1), (10); accord Cox v. Cox, 882 P.2d 909, 920

(Alaska 1994) (citing Burcell v. Burcell, 713 P.2d 802, 805

(Alaska 1986)). Husband's contribution to support for wife's

children, however, need only be considered under the factors

outlined in Code § 20-107.3; he is not entitled to a

dollar-for-dollar credit for contributions he may have made. See
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630

21
(1989). The commissioner heard evidence on husband's support for

wife's children, and the trial court ruled that the commissioner

had considered this factor. Husband does not point to any

evidence that this conclusion is unjustified or unsupported by

the record, and we find none.

B.

Consideration of Fault

Code §§ 20-107.1 and 20-107.3 require a court to consider

"the circumstances and factors which contributed to the

dissolution of the marriage," including adultery, in determining

an equitable distribution award. A party claiming adultery by

the other party must prove it by clear and convincing evidence.

Seeman v. Seeman, 233 Va. 290, 293, 355 S.E.2d 884, 886 (1987).

Condonation of adultery nullifies the legal effect of the

adultery, but "[c]ondoned adultery is revived where the guilty

party resumes his association with his paramour." Cutlip v.

Cutlip, 8 Va. App. 618, 621, 383 S.E.2d 273, 275 (1989) (citing
McKee v. McKee, 206 Va. 527, 532, 145 S.E.2d 163, 166 (1965)).

In Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836-37, this

Court held that a trial court must consider fault in terms of its

economic impact on the marital estate. In O'Loughlin, 20 Va.

App. at 528, 458 S.E.2d at 326, however, we held that a court may

consider a party's negative nonmonetary contributions to a

marriage arising out of his or her adultery regardless of its

economic impact. We also "reaffirmed our holding in Aster that

22
fault could not be used as a 'wild card' to justify an otherwise

arbitrary award." Theismann, 22 Va. App. at 569, 471 S.E.2d at

815 (citing O'Loughlin, 20 Va. App. at 528, 458 S.E.2d at 326).

The commissioner found that husband committed adultery

during the marriage. The commissioner stated that he had

considered the relevant statutory factors in fashioning the

equitable distribution award, but did not explicitly rely on the

finding of adultery in explaining the award. The trial court

granted a divorce on the basis that the parties lived separate

and apart for more than one year.
After husband excepted to the commissioner's finding, the

trial court reviewed the issue of adultery. The court affirmed

the commissioner's finding, explaining the evidence supported the

commissioner's finding that "the earlier condonation was

eliminated by later conduct even though the later affair may have

extended to the time the parties had become separated." The

court also noted that the evidence supported a finding that "wife

was reasonably suspect that relations with the first paramour had

resumed, contributing to the dissolution of the marriage." The

court stated that although the adultery did not have direct

economic impact, the commissioner could consider the adultery as

a negative nonmonetary contribution to the marriage, "if indeed

he did."

Husband argues that the evidence showed that the evidence

was insufficient to support a finding of uncondoned adultery and

23
that the court should not have considered his adultery for

economic impact or as a negative nonmonetary contribution. We do

not reach the question of the sufficiency of the evidence because

we conclude that the commissioner and trial court did not base

their equitable distribution award on husband's adultery. The

commissioner and trial court both referred to the evidence of

husband's adultery, but did not explicitly base any distribution

decision on husband's adultery; upon noting that both parties had

made nonmonetary contributions to the marriage, the commissioner

merely mentioned that husband had committed adultery during the

marriage. In turn, the trial court noted that the commissioner

could consider husband's adultery as a negative nonmonetary

contribution under O'Loughlin, but expressed skepticism that the

commissioner had actually done so.

In the absence of a specific finding by the commissioner or

trial court that husband's adultery affected the distribution of

assets, we will not presume that the court improperly relied on

husband's adultery. See Pommerenke v. Pommerenke, 7 Va. App.

241, 251, 372 S.E.2d 630, 635 (1988) ("Viewing the totality of

the evidence as it relates to other factors in Code

§ 20-107.3(E), we would be required to speculate to assign merit

to [wife's] argument. The trial court in fashioning the monetary

award certainly did not state that it was influenced by or

attributed any particular weight to the fact that it found [wife]

guilty of adultery."). The brief mention of husband's adultery

24
among many other factors considered by the commissioner and court

does not support an inference that the commissioner and trial

court improperly relied on husband's adultery, particularly in

the absence of a specific, express finding that they did so. Id.

Husband has not shown otherwise. See D'Agnese, 22 Va. App. at

153, 468 S.E.2d at 143 (citing Lutes, 14 Va. App. at 1077, 421

S.E.2d at 859) (explaining that the party seeking relief on

appeal bears the burden to show reversible error).
Husband also argues that the court erred in adopting the

commissioner's finding that wife was without legal fault in the

dissolution of the marriage. In order to constitute legal fault,

marital cruelty "must be so serious that it makes the

relationship intolerable or unendurable." McLaughlin v.

McLaughlin, 2 Va. App. 463, 467, 346 S.E.2d 535, 537 (1986)

(citing Hoback v. Hoback, 208 Va. 432, 436, 158 S.E.2d 113, 116

(1967)). All of the evidence of marital cruelty came from

husband, and wife and her three children all contradicted

husband's testimony. Under the governing standard of review, we

find that the trial court resolved this conflict in the evidence

in wife's favor, and will not reverse the trial court's

determination. See Farley v. Farley, 9 Va. App. 326, 328, 387

S.E.2d 794, 795 (1990).

C.

Allocation and Consideration of Marital Debt

In determining an equitable distribution award, a court must

25
consider the "debts and liabilities of each spouse [and] the

basis for such debts and liabilities." Code § 20-107.3(E)(7).

Husband contends that the commissioner and trial court failed to

properly consider the debt associated with the marital property

known as Rochester Housing Associates Two Limited Partnership and

the preparation of the parties' joint 1992 tax return by DeLoitte

& Touche. Husband introduced evidence that Rochester Housing

Associates was encumbered by $22,400 in debt, which he reduced to

$17,000 after the parties' separation, and that he paid Deloitte

& Touche approximately $2,300 to prepare the parties' joint 1992

tax return.
Husband's argument is without merit. In allocating the

marital liabilities, the commissioner found that husband should

receive a credit of $44,856 against the intangible marital

assets. In making this recommendation, the commissioner stated

that, "[h]usband should not be allowed an offset for the

Rochester Housing Associates account or the DeLoitte and Touche

bill when making an accounting, the commissioner having already

taken these into account in making an equitable distribution of

the property." Similarly, evidence of husband's $5,400 payment

to reduce the debt on the Rochester Housing Associates account

was before the commissioner, and there is no reason to believe

that the commissioner did not take the payment into account. The

trial court addressed husband's arguments, affirmed the

commissioner, and noted that the commissioner properly resolved

26
the conflicts in the evidence.

We find no basis in the record in support of husband's

contention that the court failed to consider husband's debt.

Husband is not entitled to a dollar-for-dollar credit for

post-separation contributions made to the care, acquisition, or

maintenance of marital property. von Raab, 26 Va. App. at

249-50, 494 S.E.2d at 161 (citing Ellington, 8 Va. App. at 56,

378 S.E.2d at 630). The court was not presented with an issue of

valuation, in which debt must be fully considered in establishing
6
value, but rather with the issue of fashioning an equitable
distribution award, in the exercise of its discretion after

considering the statutory factors. See Booth, 7 Va. App. at 28,

371 S.E.2d at 573. Unless a party can show evidence to the

contrary, we presume that the trial court properly applied the

law to the facts. Bottoms v. Bottoms, 249 Va. 410, 414, 457

S.E.2d 102, 105 (1995) (citing Yarborough v. Commonwealth, 217

Va. 971, 978, 234 S.E.2d 286, 291 (1977)).

Because we find that the trial court improperly awarded a

$20,061 credit to wife, we reverse its decision and remand so

that the trial court may address the issue.
Affirmed in part, and
reversed in part.

6
See, e.g., Trivett v. Trivett, 7 Va. App. 148, 151, 371
S.E.2d 560, 562 (1988) (holding that a valid debt secured by
marital property reduces the value of the property by the amount
of the debt).

27
Benton, J., concurring in part and dissenting in part.

I concur in Parts I and II; however, I dissent from Part

III. Therefore, I would reverse the decree and remand for

reconsideration of the monetary award for the reason stated in

Part II and for the additional reasons contained below.

(A)

The evidence proved that the husband brought into the

marriage $239,000 in assets that were used for marital purposes.

During the marriage, he annually earned substantial salaries,

including $409,000 in one year, that were used to support the

wife and her children from a prior marriage. At trial, the wife

argued that, during the course of their nineteen-year marriage,

the husband "depleted the marital estate by $50,000 to pay a

separate debt [of court-ordered support to his former spouse]."

Apparently believing the evidence proved dissipation, the trial

judge agreed with the wife's argument and "conclude[d] that the

commissioner recognized [the wife's] argument that [the

husband's] contributions to the marriage should be reduced by

spousal support he paid to his ex-wife and that . . . [the

commissioner] considered these payments." The majority opinion

rules that the trial judge did not err because the husband's

payments were appropriately considered under Code

§ 20-107.3(E)(2) as a negative monetary contribution to the

marriage. I believe both rulings are incorrect.
"Code § 20-107.3, providing for equitable distribution, is

28
based on the notion that marriage is an economic partnership in

which the parties, through varying contributions, monetary and

nonmonetary, to the acquisition, maintenance, and care of

property and to the well-being of the family, may accumulate

marital wealth." Dietz v. Dietz, 17 Va. App. 203, 210, 436

S.E.2d 463, 467 (1993). Code § 20-107.3 mandates an equitable

distribution of the parties' accumulated marital wealth. See

Gamble v. Gamble, 14 Va. App. 558, 570, 421 S.E.2d 635, 642

(1992). Thus, we have ruled that "what has always been

contemplated by the Code § 20-107.3 scheme for equitable

distribution of the marital wealth of the parties . . . [is] a

distribution which will equitably 'compensate a spouse for his or

her contribution to the acquisition of property obtained during

the marriage.'" Id. at 569, 421 S.E.2d at 642 (citation

omitted).

A trial judge may not apply the statute in a manner that

does not further the statute's purpose and policy. "Every

statute is to be read so as to 'promote the ability of the

enactment to remedy the mischief at which it is directed.'"
Bulala v. Boyd, 239 Va. 218, 227, 389 S.E.2d 670, 674 (1990)

(citation omitted). Nothing in the letter or the spirit of the

statute authorizes judges to examine the parties' lifestyle

choices and conclude post facto that they could have better used

their incomes to accumulate more wealth. Thus, a trial judge may

not, under the guise of applying Code § 20-107.3(E), rotely

29
consider a party's use of income or marital assets to pay a debt

during the course of marriage as a factor in the distribution of

marital property or in making a monetary award. We have

recognized that the statute is not a license for judges to make a

post facto examination of the spending of the husband and wife

during the marriage to determine whether they made prudent

decisions in using their incomes or marital assets to pay for

necessities of life. Thus, we previously have stated that, "at

least until the parties contemplate divorce, each is free to

spend marital funds." Booth v. Booth, 7 Va. App. 22, 27, 371

S.E.2d 569, 572 (1988).

Although some of the factors in Code § 20-107.3(E) might be

broadly read to encompass future conduct, in Marion v. Marion, 11

Va. App. 659, 401 S.E.2d 432 (1991), we noted that the

legislative purpose had to be considered in making equitable

distributions. See id. at 668, 401 S.E.2d at 438. We held that

"'Code § 20-107.3 provides for the equitable distribution of the
accumulated marital wealth between the marital parties; it does

not contemplate consideration of the future ability of one spouse

to accumulate what will be separate property or the future needs

of the other spouse.'" Id. (citation omitted). See also

Stainback v. Stainback, 11 Va. App. 13, 21-22, 396 S.E.2d 686,

691-92 (1990).

We also have ruled that not all past conduct of the parties

during a marriage affects the equitable distribution of property.

30
In Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994), the

wife contended the trial judge erred by not considering as a

factor the "husband's dissipation of marital assets, which she

alleges occurred . . . during the course of his fifteen-year

extramarital affair." Id. at 430, 444 S.E.2d at 272. In

rejecting that contention, we ruled as follows:
Our case law uniformly holds that the
challenged use of funds must be "in
anticipation of divorce or separation . . .
[and] at a time when the marriage is in
jeopardy." Wife is correct in her assertion
that the Court in Booth defined waste only
"generally" and did not purport to set forth
"an exclusive definition." Nevertheless, to
date, Virginia's appellate courts have
applied this rule only to funds spent
contemporaneously with the marital breakdown,
and we will not expand the definition to
cover expenditures made for a fifteen-year
period which were not specifically for the
purpose of depleting the marital estate and
where there was no evidence that there was an
irreconcilable breakdown of the marriage.
Accordingly, we conclude that the trial court
did not err by finding that wife failed to
show that husband's pre-separation
expenditures constituted dissipation of
marital assets.

Id. at 430-31, 444 S.E.2d at 272 (citations omitted).

During the marriage, the parties may at any time properly

use marital income that they earn for nonmarital purposes. Only

when one party claims an impropriety or improper dissipation of

marital assets that impacts a statutory purpose should the court

intervene and construct a financial accounting of income and

expenditures during the marriage. No valid purpose of Code

§ 20-107.3 is served by analyzing the debts the parties paid

31
during the marriage to determine which spouse gained the greater

benefit from payment of the debt and then using that benefit

analysis to support a set-off to the other spouse when making a

distribution of property upon divorce. Obviously, if the debt

bears some significance to the purpose of the property division,

such as dissipation in contemplation of or after marital

dissolution, the evidence establishes a nexus to the statutory

purpose.
In this case, the husband's payment during the marriage of

spousal support to a former spouse bears no significant

relationship to the statutory purpose of Code § 20-107.3. It is

not unusual that parties enter into marriage with either or both

having separate antenuptial debts. The payments of spousal

support in this case were not made to obtain or maintain a

separate asset that the husband can sell, trade, or transfer for

money after the divorce. No inequity justifies the trial judge's

use of these payments to increase the property distributed to the

wife on divorce. The husband's spousal support payments were no

different than any other expenditure made during the marriage for

a purpose solely benefitting the husband, such as dues to a golf

association, membership in a racquetball club, contributions to a

church building fund, dues at a private club, or expenditures on

a hobby that did not result in the acquisition of an asset.

To authorize a set-off or credit in the distribution of the

marital property because certain expenditures made during the

32
marriage benefitted the husband finds no support in the language

or purpose of the statute. Indeed, the lack of logic in this

decision is doubly manifest because the record contains no

indication that the trial judge considered the favorable tax

benefits the parties received as a result of the spousal support

payments. To the extent the wife contends the husband's payments

deprived her of the ability to spend the money during the

marriage for something that directly benefitted her, she ignores

the benefit the tax savings provided.
No evidence in this record tends to prove the husband's

payment of spousal support to his former spouse pursuant to a

court's order affected any factor contained in Code

§ 20-107.3(E). Clearly, the trial judge confused this issue with

"dissipation" or "waste."
Although not an exclusive definition[,]
"waste" may be generally characterized as the
dissipation of marital funds in anticipation
of divorce or separation for a purpose
unrelated to the marriage and in derogation
of the marital relationship at a time when
the marriage is in jeopardy. Just as a court
may consider positive contributions to the
marriage in making an equitable distribution
award, it can also consider "negative"
contributions in the form of squandering and
[d]estroying marital resources. The goal of
equitable distribution is to adjust the
property interests of the spouses fairly and
equitably. The mechanism to accomplish that
goal is the monetary award. To allow one
spouse to squander marital property is to
make an equitable award impossible. On the
other hand, at least until the parties
contemplate divorce, each is free to spend
marital funds.

33
Booth, 7 Va. App. at 27, 371 S.E.2d at 572.

The Virginia cases do not support either the trial judge's

ruling or the majority's opinion. In Gamer v. Gamer, 16 Va. App.

335, 429 S.E.2d 618 (1993), the husband and wife received during

the marriage money that should have been sent to the husband's

former spouse. The husband and wife spent the money for living

expenses. See id. at 338-39, 429 S.E.2d at 621. The debt, which

was created by their receipt and expenditure of money that was

not theirs, was reduced to a judgment and became a lien against

the marital residence. See id. at 341, 429 S.E.2d at 623.

Applying Code § 20-107.3(E)(7), we ruled that "[w]here the debt

was secured by marital assets or was a lien on marital property,

the purpose, nature, and character of the debt and who benefitted

from it were factors to be considered by the chancellor in

distributing the property or in fashioning the monetary award."

Gamer, 16 Va. App. at 341, 429 S.E.2d at 623. Obviously, when

the husband and wife misappropriated and spent funds during the

marriage that were not theirs and thereby created a debt that

resulted in a lien on marital property, that debt was a marital

debt created by the husband and the wife.

In Hayes v. Hayes, 21 Va. App. 515, 465 S.E.2d 590 (1996),
we did not rule that the husband's share of the marital estate

could be reduced by the amount of child support payments the

husband made during the marriage for the child of his prior

marriage. Because the wife had made loans to the husband "for

34
the benefit of the husband's separate property," id. at 515, 465

S.E.2d at 591, the trial judge found that the husband's debt to

the wife was separate debt. See id. at 519, 465 S.E.2d at 592.

We upheld the trial judge's finding that the debt was a separate

debt, and we ruled that the trial judge erred in not determining

pursuant to Code § 20-107.3(C) whether the husband was required

to repay the borrowed funds. See id. We remanded the matter to

the trial judge to determine whether to order the husband to pay

the debt that arose from the loan. See id. In the case we

decide today, no claim has been made that the husband borrowed

funds from the wife or that the husband used the wife's funds to

improve his separate asset.

The decision in Orlandi v. Orlandi, 23 Va. App. 21, 473

S.E.2d 716 (1996), has no bearing on the issues that arise in

this case. Orlandi concerns issues of child support between two

divorced parties. No issue of equitable distribution or the

interpretation of Code § 20-107.3 arose in that case.

The majority erroneously treats this issue as if the

husband's spousal support payments were a contribution made to

enhance a nonmarital asset that is extant at the divorce. It was

not. The husband's payment of court-ordered spousal support was

not a ruse to fund a separate asset. Many of the cases cited by

the majority were not decided under Virginia law and contain

instances in which a spouse spent marital assets to obtain or

enhance a separate asset. In those instances, courts of other

35
states have deemed that a diversion of marital funds to enhance a

separate asset creates a marital interest in the enhanced

property.

The evidence in McGee v. McGee, 648 A.2d 1128 (N.J. Super.

A.D. 1994), proved that prior to their marriage, the husband

purchased the wife's house to save it from foreclosure and to pay

debts the wife owed. See id. at 1129. He paid only $63,000 for

the house even though it was valued at $150,000, exclusive of

furnishings and the surrounding eleven acres of land. The value

of the furnishings and eleven acres was unknown. See id. After

the marriage, the husband "denuded the house of $134,000 of

equity" by borrowing against the property, used the borrowed

money to pay an obligation to his former spouse, and then

conveyed the property to himself and the wife. Id. at 1131. The

court ruled that the husband's conduct effectively used the

wife's separate assets to pay the husband's pre-existing

obligations to his former wife. See id. at 1134. Because of the

husband's misuse of the wife's house prior to and during the

marriage, the court ruled that under New Jersey law, "[t]he case

can be viewed from the vantage point of the shared enterprise of

marriage beginning before the ceremonial act, or as one in which

equitable remedies such as constructive trust, quasi contract or

quantum meruit are invocable for equitable reasons." Id. at

1134. That ruling is not dispositive of issues in this case.

In Dobbyn v. Dobbyn, 471 A.2d 1068 (Md. Ct. Spec. App.

36
1984), the court was not concerned with a party's payment of

support to another spouse during the marriage as a basis for

making a monetary award. The issue in Dobbyn was whether the

trial judge could consider the divorced husband's new and future

family obligations under Maryland's statutory requirement to

consider '"[t]he economic circumstances of each spouse at the

time the award is to be made.'" Id. at 1077.

In Jensen v. Jensen, 877 S.W.2d 131 (Mo. Ct. App. 1994), the

court ruled that the husband's payment of child support to a

former spouse and to a former lover after the husband's
separation from his current wife was the husband's separate debt.

See id. at 135. Thus, when the husband liquidated marital

assets during the separation to pay those debts, the court set

aside those funds as credits against the husband's share of

marital assets. See id.

In Fenske v. Fenske, 542 N.W.2d 98 (N.D. 1996), the trial

judge found "that the parties had paid off their individual and

marital debts 'by commingling everything they had.'" Id. at 102.

Nothing in the Fenske opinion suggests that the trial judge gave

either party a distribution based upon a party paying a

pre-marital debt with marital funds.

North Carolina courts have ruled that "[a] reduction in the

separate debt of a party to a marriage, caused by the expenditure

of marital funds, is, in the absence of an agreement to repay the

marital estate, neither an asset nor a debt of the marital

37
estate." Adams v. Adams, 443 S.E.2d 780, 781 (N.C. Ct. App.

1994). Under that state's law, any such reduction in the

separate debt may only be considered as a factor if a justifiable

reason exists. See id. (citing N.C. Gen. Stat. § 50-20(C)(12)).

In the case before us, the trial judge accepted the

commissioner's recommendation "that [the husband's] contributions

to the marriage should be reduced by spousal support he paid to

his ex-wife." I believe that the following reasoning, employed

in Rosenfeld v. Rosenfeld, 597 So.2d 835 (Fla. Dist. Ct. App.
1992), is more pertinent to the issues that arise in this case:
The wife in this case took the position at
the time of the divorce that the trial court
should revisit the parties' expenditures
throughout the marriage, and should
retroactively decide that certain of the
expenditures should not have been made. . . .
[T]his amounted to a request for "a
financial accounting of all of the marital
years to determine which spouse was the more
prudent investor and spender. We do not
choose to start down such a path with this
case."

In the present case the wife complains
because the husband paid court-ordered
support to his previous wife, and made other
payments required by the divorce decree. The
wife's position is entirely without merit.

* * * * * * *

Payments made to an ex-wife or children
pursuant to a court order cannot be
considered as waste or misuse of the marital
assets of the successor marriage. Those
obligations were incurred before the
successor marriage, and obviously the
subsequent spouse was well aware of them
prior to the successor marriage. In any
event, a party cannot refuse to make court
ordered payments on the grounds that he or

38
 she has now remarried. Likewise, payment of
expenses incident to a prior dissolution,
such as attorneys' fees, does not constitute
waste or misuse of marital funds.

Id. at 837 (citation omitted) (footnotes omitted).

Using similar reasoning, the court in In re Marriage of

Burgess, 568 N.W.2d 827 (Iowa App. 1997), ruled that, in the

division of marital property upon divorce, a wife was not

entitled to a set-off or credit for the husband's payment during

the marriage of spousal and child support to his former wife.
See id. at 828. The court concluded that it would be inequitable

to consider those payments as a distribution factor because "the

payment of the [support] obligation [by the husband] was a

reasonable and expected aspect of the particular marriage." Id.

The majority correctly notes that Bliss v. Bliss, 898 P.2d

1081 (Idaho 1995), involved a division of property on divorce in

a community property state. However, the principles applied to

"community" property are not completely unrelated to issues that

arise regarding "marital" property. In Bliss, the court held

that the use of community funds to pay antenuptial debts, where

such payment is unrelated to the enhancement of a separate asset,

is not a basis upon which a party upon divorce may seek

reimbursement to the community funds. See id. at 1084. That

reasoning is valid when analogized to the issue in this case.

Simply put, Code § 20-107.3(E) does not authorize judges to

enrich one of the parties based upon the mere finding that the

other party, who was the sole source of income during the

39
marriage, used portions of that income to pay debts that the

party incurred prior to the marriage. In particular, no evidence

tended to prove that the husband's payment of spousal support to

his former spouse negatively contributed to his marriage to the

wife. For these reasons, I would reverse the trial judge's

equitable distribution decision and remand for reconsideration.

(B)

Although the trial judge expressly noted that he was

reducing the husband's equitable distribution award for payments

the husband made under a court order to support the husband's

spouse of a prior marriage, the record contains no indication

that in making the monetary award the trial judge gave any

consideration to the husband's support, during the marriage, of

his wife's children from a prior marriage. The trial judge noted

that "[t]here is no mention by the commissioner of these matters

[in the report]." Yet, the trial judge assumed the matter was

considered because the commissioner "does say he has considered

all the relevant factors which, of course, includes the catch all

one in § 20-107.3(E)." The irony of the disparity between the

treatment of this issue and the issue of the husband's payment of

spousal support to his former wife is palpable.
The evidence proved that when the wife's former spouse

stopped paying child support, the husband supported the three

children from the wife's prior marriage beginning when the oldest

child was age fifteen. One of the wife's children continued

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living in the house four years past the child's majority. The

husband's salary was the family's sole source of financial

support.

On remand, I would direct the trial judge to expressly

consider the husband's payments and conduct which contributed to

the well-being of the family. See Code § 20-107.3(E)(1).

(C)

The evidence proved that the husband paid $5,400

post-separation to reduce a marital debt that was associated with

an asset that had no value. I find no evidence in the record

that the trial judge adjusted the award to consider that payment.

Likewise, the evidence proved that the husband paid $2,282 for

the preparation of the parties' joint tax return and received no

credit for that payment. I would also require the trial judge to

reconsider on remand adjustments for those payments.

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