COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia
HASSAN DIBICH
MEMORANDUM OPINION∗ BY
v. Record No. 1098-03-2 JUDGE ELIZABETH A. McCLANAHAN
MAY 4, 2004
DEBORAH H. DIBICH
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
Janet E. Brown (Janet E. Brown, P.C., on brief), for appellant.
No brief or argument for appellee.
Hassan Dibich appeals from a final decree of divorce granting his former spouse,
Deborah H. Dibich, now known as Deborah Hoyt Urtz, a lump-sum equitable distribution award
of $475,185.70. On appeal, husband contends that the trial court erred in (1) classifying certain
real estate as wife’s separate property, and including the value of that property in calculating the
monetary award, (2) failing to give husband credit for his interest in two motor vehicles that
were acquired during the marriage and disposed of by wife after the parties separated, (3) failing
to include a partial payment from the sale of a business owned by the parties in calculating the
monetary award, and (4) valuing and including in the monetary award certain real property that
the court was unable to classify. For the reasons that follow, we affirm the decision of the trial
court.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. Background
The parties were married on February 14, 1989 and separated in July 2001. In March
2002, wife filed a bill of complaint for divorce from husband. In May 2002, husband filed a
cross-bill. During the summer of 2002, several depositions were taken, which were submitted to
the trial court as evidence on equitable distribution. In September 2002, the parties appeared
before the court and presented additional evidence on the issues. The court rendered a written
opinion on February 13, 2003, and entered a final decree of divorce on March 27, 2003.
II. Analysis
Equitable distribution of property upon dissolution of a marriage is governed by Code
§ 20-107.3. “Fashioning an equitable distribution award lies within the sound discretion of the
trial judge . . . .” Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
Unless it appears from the record that the chancellor has abused his
discretion, that he has not considered or has misapplied one of the
statutory mandates, or that the evidence fails to support the
findings of fact underlying his resolution of the conflict in the
equities, the chancellor’s equitable distribution award will not be
reversed on appeal.
Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987). See also Thomas v. Thomas, 40
Va. App. 639, 644, 580 S.E.2d 503, 505 (2003). On appeal, we review the evidence in the light
most favorable to the party prevailing below. Brown v. Burch, 30 Va. App. 670, 681, 519 S.E.2d
403, 408-09 (1999).
There are several assets at issue in husband’s appeal. The assets include a piece of real
estate located in the state of Vermont, a 1993 Dodge Caravan van and a 1982 or 1983 Mercedes
automobile, the proceeds from the sale of a convenience store business, and several pieces of real
estate located in the country of Morocco. We analyze each of these assets separately, and
include the evidence as contained in the record and the trial court’s disposition as set forth in its
letter opinion.
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A. Vermont Real Estate
Husband complains that the trial court erred in characterizing the Vermont real estate as a
separate asset belonging to wife and including its value when fashioning her monetary award.
The property was acquired by wife’s great-grandparents in 1942, and had been continuously
owned by the family for four generations. The property was deeded to the parties in 1990, as a
gift to wife from her grandparents, with the understanding that the property was never to be sold.
Wife testified that it was only titled in both parties’ names because they were married. Both
parties understood that it was to remain in wife’s family “forever.” Title to the property was
transferred numerous times over the course of the marriage.
“Generally, the character of property at the date of acquisition governs its classification
pursuant to Code § 20-107.3.” Stratton v. Stratton, 16 Va. App. 878, 881, 433 S.E.2d 920, 922
(1993). Code § 20-107.3(A)(2) provides in pertinent that “all property titled in the names of both
parties . . . [and a]ll property . . . acquired by either spouse during the marriage, and before the
last separation of the parties . . . is presumed to be marital property in the absence of satisfactory
evidence that it is separate property.”
Wife argued and the trial court held that the Vermont real estate was a gift to wife from
her grandparents. Since then, the parties transferred legal title to the property several times, with
title being held by the “Dibich Corporation” at the time of the parties’ separation. The
corporation’s sole shareholder was husband. Wife showed that after the separation, husband
transferred the property from the corporation to his parents, to himself and then to non-related
buyers, even though he knew that the property never was supposed to be sold and was to be kept
in wife’s family.
Code § 20-107.3(A)(1)(ii) provides that all property acquired during the marriage by gift
from a source other than the other party is separate property. If separate property is retitled in
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the joint names of the parties, the property is deemed transmuted to marital property. Code
§ 20-107.3(A)(3)(f). However, to the extent the property is retraceable by a preponderance of
the evidence and was not a gift, the retitled property retains its original classification. Id.1
“[T]he party 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). “This process involves two steps: a party must (1) establish the identity of . . . [the]
property and (2) directly trace that portion to a separate asset.” Rahbaran v. Rahbaran, 26
Va. App. 195, 208, 494 S.E.2d 135, 141 (1997). “When a party satisfies this test, and by a
preponderance of the evidence traces his or her separate . . . property, the Code states that the
contributed separate property ‘shall retain its original classification.’” Hart v. Hart, 27 Va. App.
46, 68, 497 S.E.2d 496, 506 (1998) (quoting Code § 20-107.3(A)(3)(d), (e)).
In its letter opinion, the trial court stated,
it is wholly unclear to the Court why the Vermont property was
placed into the names of Defendant’s parents. However, it is clear
to the Court, based on the testimony of all the witnesses, that the
property was to remain in Plaintiff’s family and not to be sold.
Therefore, the value of the Vermont property along with the
personal items will be credited to Plaintiff as separate property.
The court then held that the Vermont real estate was wife’s separate property with a value of
$275,000. Wife established by a preponderance of the evidence that the property was originally
a gift to her and that although it was titled in the parties’ names, it was to be kept separate for the
benefit of the family. She traced the property from husband’s sale to non-related buyers directly
back to her receiving it as a gift. Wife’s evidence was sufficient for the trial court to find that
she overcame the presumption that the Vermont real estate was marital property. Therefore, the
1
No evidence was presented by either party suggesting that the property was a gift to
both parties or to husband from wife.
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trial court did not err in classifying the Vermont property as wife’s separate asset and crediting to
her the full amount of the sale in the monetary award.
B. Automobiles
Husband claims that the trial court erred in failing to give credit to him in the equitable
distribution award for proceeds acquired from the disposition of a 1993 Dodge Caravan van and
a 1982 or 1983 Mercedes automobile. Husband provides no citations to the record in his brief as
to when the vehicles were disposed of, nor does he provide authority or argument in support of
the question. “Statements unsupported by argument, authority, or citations to the record do not
merit appellate consideration.” Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297
(2003) (citation and internal quotation marks omitted); see Rule 5A:20(e). Because husband has
not provided sufficient information for this Court to determine whether the trial court committed
error, he has waived this question on appeal and we need not address it. See Rule 5A:20(e).
C. Proceeds from Fastop Stores
Husband contends that the trial court erred in failing to give husband credit in its
calculation of the monetary award for a $50,500 deposit received by wife as a deposit on the sale
of convenience stores that the parties owned during the marriage. In its letter opinion, the court
wrote:
During the marriage, the parties owned three Fastop convenience
stores. The parties testified that the properties sold for different
amounts. The only documentation of the sale is a HUD statement
which indicates a sale price of $187,366.86. . . . One-half of this
amount will be credited to Plaintiff. The total received from the
sale of the Fastop stores will be divided 50/50.
The party seeking a share of an asset titled in the name of the other party has the burden of
presenting sufficient evidence for the court to value the asset. Gamer v. Gamer, 16 Va. App. 335,
346, 429 S.E.2d 618, 626 (1993) (citing Hodges v. Hodges, 2 Va. App. 508, 517, 347 S.E.2d 134,
139 (1986)). Husband failed to provide any documentation or evidence of when or whether there
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was a transfer of $50,500 to wife. Therefore, having failed to produce sufficient evidence at trial,
husband will not be heard on appeal to claim that the trial court erred in its equitable distribution
award. See Batts v. Commonwealth, 30 Va. App. 1, 11, 515 S.E.2d 307, 312 (1999) (“A party
may not invite error and subsequently raise that error as grounds for appeal.”); see also Bowers v.
Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (“When the party with the burden of
proof on an issue fails for lack of proof, he cannot prevail on that question.”).
D. Moroccan Real Estate
Finally, husband contends the trial court erred in valuing the Moroccan real estate. In his
letter opinion, the chancellor wrote:
With regard to the holdings in Morocco, the Court is unable to tell
whether the farm and the villa were properties purchased by and
jointly owned by these parties as Plaintiff testified or were family
land owned by the Dibichs, some for hundreds of years. The Court
is persuaded, however, that Plaintiff and Defendant did send
money to Morocco that was invested in the properties. Some of
the money “at least $100,000.00 was sent for the construction of
the villa.” (Pl. dep. 154). This money appears to be marital assets
and Plaintiff will be credited with 50% of it.
* * * * * * *
The testimony appears clear that the parties purchased land
in Khozama. The Court finds Defendant’s testimony that the
property was foreclosed on to be unpersuasive. (Def. Dep. at 136
where Defendant testified that he “had to give it away.”). The
value of this property, valued at $100,000 will be divided equally
between the parties.
The court classified the farm and villa as unknown,2 and listed its value at $100,000, but added a
footnote that said, “It is known, however, that $100,000 was invested into the farm and villa in
Morocco.” The Khozama property was classified as marital, with a value of $100,000.
2
Husband does not question, and therefore we do not address, whether the trial court
erred by not classifying the farm and villa.
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Code § 20-107.3(A) provides that the trial judge, “upon request of either party, shall
determine the . . . value of all property, real or personal, tangible or intangible, of the parties.”
However, as we stated in Bowers, 4 Va. App. at 617, 359 S.E.2d at 550:
consistent with established Virginia jurisprudence, the litigants
have the burden to present evidence sufficient for the court to
discharge its duty. When the party with the burden of proof on an
issue fails for lack of proof, he cannot prevail on that question.
“[T]he burden is always on the parties to present sufficient
evidence to provide the basis on which a proper determination can
be made, and the trial court in order to comply . . . must have the
evidence before it . . . to grant or deny a monetary award.”
[Hodges, 2 Va. App.] at 517, 347 S.E.2d at 139. Furthermore,
“[r]eviewing courts cannot continue to reverse and remand . . .
[equitable distribution] cases where the parties have had an
adequate opportunity to introduce evidence but have failed to do
so. Parties should not be allowed to benefit on review for their
failure to introduce evidence at trial . . . .”
(Citation omitted). The trial court’s determination of the marital values in the several properties
is supported by the evidence before it. Husband failed to provide the trial court with enough
evidence to find otherwise; therefore, on appeal, he cannot prevail on that question. We find no
error in the court’s conclusions.
III. Conclusion
For the reasons stated, we find no error in the trial court’s equitable distribution award.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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