COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Overton
Argued at Alexandria, Virginia
ROBERT C. LIGHTBURN
OPINION BY
v. Record No. 1729-95-2 JUDGE NELSON T. OVERTON
JUNE 25, 1996
SHEILA JONES LIGHTBURN
FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge
D. Michael Atkins (McClure, Callaghan &
Atkins, on briefs), for appellant.
J. Barrett Jones (Jones & Green, on brief),
for appellee.
Robert C. Lightburn, husband, appeals the decision of the
circuit court awarding Sheila Jones Lightburn, wife, one-half of
the value of a tract of marital property and $7,250 in attorneys'
fees. Husband contends that the trial court misapplied Code
§ 20-107.3 in making the equitable distribution award and that
the trial court abused its discretion by awarding wife attorneys'
fees. For the reasons that follow, we reverse in part and
remand.
Facts
Husband and wife were married in November 1992 and separated
in November 1993. Wife had a private counselling practice in
Blacksburg prior to the marriage. The parties agreed that wife
would move to Madison County to live with husband, which she did
in July 1993. In late September 1993 husband had his attorney
sever a 10.474 acre tract of land from husband's separate
property and convey it by deed of gift to husband and wife as
tenants by the entirety. Husband and wife lived on this property
for two months, at which time the parties separated.
The trial court determined that this tract of land had been
transmuted to marital property when husband deeded title to the
property to himself and his wife as tenants by the entirety with
right of survivorship, by which conveyance wife received a
one-half undivided interest in the whole property. The trial
court then ordered husband to pay wife one-half of the value of
the property and wife to convey her interest to husband. In
determining this award, the trial court considered the factors in
Code § 20-107.3(E). The judge found the duration of the marriage
to be a significant factor in determining the equitable
distribution award, stating that "[t]he short duration of this
marriage only exacerbated wife's problems connected with
uprooting from Blacksburg and then having to try to re-root there
following this failed marriage."
In ruling on the issue of spousal support, the judge made
similar remarks. "Wife pulled up stakes to leave Blacksburg and
to come to Madison. She did not have time to recover from such a
move before the marriage failed and she moved back to Blacksburg.
The monetary award addresses this." No spousal award was
granted at this time.
Equitable Distribution
At the time of the divorce, husband and wife held the
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property in issue as tenants by the entirety, each owning an
undivided one-half interest in the whole. A tenancy by the
entirety is defined in part by a marriage between the cotenants,
and without such a marriage the tenancy cannot exist. Gant v.
Gant, 237 Va. 588, 591-92, 379 S.E.2d 331, 332-33 (1989). Upon
dissolution of a marriage, a tenancy by the entirety
automatically converts into a tenancy in common. Code § 20-111;
Smith v. Smith, 200 Va. 77, 85, 104 S.E.2d 17, 24 (1958); Gaynor
v. Hird, 15 Va. App. 379, 381, 424 S.E.2d 240, 241 (1992).
Before Code § 20-107.3 was enacted to provide for equitable
distribution of property, "when tenants by the entirety . . .
[were] divorced by final decree and nothing more appear[ed] than
the fact of divorce, each [was] entitled, as a tenant in common,
to an undivided one-half interest in the land formerly held in
entirety." Sundin v. Klein, 221 Va. 232, 241, 269 S.E.2d 787,
792 (1980), cert. denied, 452 U.S. 911 (1981). Absent a
statutory equitable distribution proceeding, this result arises
automatically by force of law.
Determining who has legal title, however, has little or no
bearing upon how the value of an asset is to be equitably
distributed by a monetary award under Code § 20-107.3. The
mandate in a property distribution under this section is to
allocate to each party a fair portion of the marital wealth.
Gamble v. Gamble, 14 Va. App. 558, 570, 421 S.E.2d 635, 642
(1992). Equitable distribution deviates from traditional views
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of property ownership in that "whether the property is separate
or marital is determined by the statutory definition and is not
determined by legal title." Garland v. Garland, 12 Va. App. 192,
195, 403 S.E.2d 4, 6 (1991). Therefore, although property held
in a tenancy by the entirety at the time of divorce automatically
converts to a tenancy in common insofar as legal title is
concerned, the property is to be classified as marital or
separate or both according to the criteria set forth in Code
§ 20-107.3(A)(2).
In making an equitable distribution of property under the
statute, the court first must classify the property as separate,
marital, or part separate and part marital. Gottlieb v.
Gottlieb, 19 Va. App. 77, 93, 448 S.E.2d 666, 676 (1994); Marion
v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436 (1991).
When separate property is retitled in the joint names of the
parties, the retitled property is transmuted to marital property,
Code § 20-107.3(A)(2)(i), unless the property can be sufficiently
retraced to separate property and was not a gift. Code
§ 20-107.3(A)(3)(f). Virginia does not presume a gift simply by
virtue of jointly titling or retitling property. Code
§ 20-107.3(A)(3)(g). A party claiming entitlement to rights and
equities in marital property by virtue of an interspousal gift
must prove the donative intent of the donor spouse and the nature
and extent of the donor's intention. See Brett R. Turner,
Equitable Distribution of Property § 5.18 (2d ed. 1994 & Supp.
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1995); see also Theismann v. Theismann, ___ Va. App. ___, ___,
___ S.E.2d ___, ___ (1996).
Here the trial court heard testimony from husband as well as
the attorney who drafted the deed of gift, both of whom stated
that the husband had meant to ensure that wife receive the
property in the event of husband's death. Based on this evidence
that the property was conveyed by deed of gift, the court found
that husband intended to and did make a gift to wife.
Consequently, she may have acquired rights and equities in the
property which entitled her to a portion of this marital
property.
Husband does not argue on appeal that, by retracing, the
property should have been classified as separate or that the
trial judge erred in classifying the property as marital. In
fact, husband concedes on brief that he "does not now seek
reversal on the grounds of classification." For the purpose of
this opinion, therefore, we accept the classification of the
property as marital. Furthermore, we accept the trial court's
finding and the appellant's concession that an interest in the
marital property was a gift to the wife.
This Court must decide what rights and equities the wife
acquired by virtue of the interspousal gift and whether the
evidence supported the trial court's finding. Although the wife
owns legal title to one-half of the property, under the statutory
authority in equitable distribution, the court may grant a
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monetary award to one spouse for her interest in the property
"based upon (i) the equities and the rights and interests of each
party in the marital property, and (ii) the factors listed in
subsection E." Code § 20-107.3(D) (emphasis added). The
distribution of property held in a tenancy by the entirety
therefore does not rely merely upon the legal property interests
owned by each party at the time of divorce, but rather is
determined in the same manner as other marital property. This
distribution method comports with the treatment used in other
jurisdictions. See, e.g., Hagler v. Hagler, 354 S.E.2d 228, 233
(N.C. 1987) (equitable distribution is an alternative means of
distribution to the common law conversion to a tenancy in
common); Keystone Sav. Ass'n v. Kitsock, 633 A.2d 165, 168 (Pa.
Super. Ct. 1993) (all marital property, including that held in
tenancies by the entirety, is subject to equitable distribution
upon request by either party); Daeschler v. Daeschler, 520 A.2d
777, 781 (N.J. Super. Ct. App. Div. 1986) ("the power of the
court to disregard the automatic conversion rule in distributing
property held as tenants by the entirety is taken for granted as
a legal proposition"); Grant v. Grant, 286 S.W.2d 349, 352 (Tenn.
Ct. App. 1954) (under the statute, the trial judge has the
discretion to divest a party of her interest in property held by
the entirety).
Because the division of the property's value depends in part
upon the factors in Code § 20-107.3(E), the amount of the award
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will not necessarily result in exactly one-half of the total
value. Each party does have an equal legal interest, but the
application of the statutory factors may justify an unequal
distribution. We reach this conclusion from a plain reading of
Code § 20-107.3(D) and note that other jurisdictions have come to
the same conclusion in applying similar statutory schemes. See
Anderson v. Anderson, 591 A.2d 872, 874 (Me. 1991); Wood v. Wood,
403 S.E.2d 761, 771 (W.V. 1991); In re Marriott, 636 N.E.2d 1141,
1146 (Ill. App. Ct. 1994); In re Burns, 811 P.2d 654, 656 (Or.
Ct. App. 1991).
The trial court in the case at bar did consider the
statutory factors in making its equitable distribution
determination. Husband asserts, however, that the trial court
erred by weighing the short duration of the marriage in wife's
favor for purposes of the equitable distribution of property. We
agree.
The legislature enacted Code § 20-107.3 to divide the value
of marital property between spouses based upon each spouse's
contribution to the acquisition, preservation, or improvement of
property obtained during the marriage. Sawyer v. Sawyer, 1 Va.
App. 75, 78, 335 S.E.2d 277, 279 (1985); see Roane v. Roane, 12
Va. App. 989, 994, 407 S.E.2d 698, 701 (1991). "The clear
legislative intent embodied in [Code § 20-107.3] is to maintain
an appropriate separation between considerations of child or
spousal support and considerations of an equitable division of
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marital wealth." Williams v. Williams, 4 Va. App. 19, 24, 354
S.E.2d 64, 66 (1987); Reid v. Reid, 7 Va. App. 553, 564, 375
S.E.2d 533, 539 (1989). A trial court determines distribution of
marital property without regard for the considerations of spousal
support and the factors in Code § 20-107.1. Equitable
distribution is based on different considerations than spousal
support. Stumbo v. Stumbo, 20 Va. App. 685, 691, 460 S.E.2d 591,
594 (1995). 1
In the instant case, the evidence proved that husband owned
the residence prior to the marriage. No evidence proved that
the wife made any contribution to the maintenance or improvement
of the property during the marriage or in contemplation of the
marriage. The trial judge did not determine or address the
"equities and the rights and interests of each party in the
marital property," which equitable distribution of property seeks
to adjust. Code § 20-107.3(D); see Brown v. Brown, 5 Va. App.
238, 246, 361 S.E.2d 364, 368 (1987).
The trial court's letter opinion repeatedly references
wife's two relocations in a short time as a basis for the award,
even though this factor had no bearing upon her acquiring any
rights or equities in the real estate. Admittedly, she lost one
of her two jobs. She had to reestablish herself in her
1
This distinction is often blurred. See Macys v. Macys,
115 B.R. 883, 892 (Bankr. E.D. Va. 1990) (noting that "there
seems to be enough flexibility in the statutory scheme for
divorce courts to make awards in appropriate cases that would be
actually in the nature of alimony, maintenance or support").
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profession. She strained relationships with her children and
friends. To these problems, the trial court states that "[t]he
monetary award addresses this."
A monetary award under Code § 20-107.3, however, does not
rationally address these issues and no provisions within Code
§ 20-107.3 authorize or direct the trial judge to consider
evidence of economic and emotional difficulties following the
divorce. As noted, equitable distribution and monetary awards
stemming therefrom are intended to divide the marital property
fairly between the parties based upon their rights and equities
due to their monetary and nonmonetary contributions to the
acquisition, maintenance, preservation or improvement of the
property. Hardships of one party from the divorce do not
necessarily play a role in this division. "Circumstances that
lead to the dissolution of the marriage but have no effect upon
marital property, its value, or otherwise are not relevant to
determining a monetary award, [and] need not be considered."
O'Loughlin v. O'Loughlin, 20 Va. App. 522, 527, 458 S.E.2d 323,
325 (1995) (quoting Aster v. Gross, 7 Va. App. 1, 6, 371 S.E.2d
833, 836 (1988)). The short duration of the marriage exacerbated
wife's problems in reestablishing her separate life. However,
the relationship that hardship bore to the acquisition, care, and
maintenance of the property has not been established. Certainly,
the consequence of the hardship when weighed against the four
months the wife was present in the house and the husband's
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acquisition of the property does not support an equal division.
The order for equitable distribution appears to have been
grounded upon factors better suited to the consideration of
spousal support, including the issue of the short duration of the
marriage and the expenses associated with relocating and the
interruption of her private counseling practice. See Code
§ 20-107.1(4). In Blank v. Blank, 10 Va. App. 1, 389 S.E.2d 723
(1990), this Court addressed the issue of lump sum spousal
support when "special circumstances" exist. In this case, wife's
sacrifices in her moving to Madison are appropriate
considerations for spousal support, not equitable distribution.
Because the monetary award was not statutorily designed to
address issues properly related to spousal support, we reverse
the decision of the lower court and remand for reconsideration
2
and an award not inconsistent with this opinion.
Attorneys' Fees
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987); Ingram v. Ingram, 217 Va. 27,
29, 225 S.E.2d 362, 364 (1976). The key to a proper award of
counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
2
A trial court must necessarily reexamine spousal support
in the light of a new marital property award on remand. Mitchell
v. Mitchell, 4 Va. App. 113, 121, 355 S.E.2d 18, 23 (1987).
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(1985).
The trial court based the award of attorneys' fees to wife
on the income disparity between the parties during the period of
litigation. In 1994, husband's assets were significantly higher
than wife's. Based on the issues and the respective abilities of
the parties to pay, we cannot say that an award of fees to the
wife was unreasonable or that the trial court abused its
discretion in making the award. In view of the disposition of
the equitable distribution issue, however, we remand to the trial
judge for reconsideration of the amount of the fee award.
Reversed in part
and remanded.
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