COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
CLARENCE BOYD
MEMORANDUM OPINION * BY
v. Record No. 1372-00-2 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 25, 2001
VERA BOYD
FROM THE CIRCUIT COURT OF MADISON COUNTY
Daniel R. Bouton, Judge
Annie Lee Jacobs (Tracey C. Hopper; Parker,
McElwain and Jacobs, P.C., on briefs), for
appellant.
Sarah Collins Honenberger (Shackelford,
Thomas, Willis & Gregg, PLC, on brief), for
appellee.
Clarence Boyd (husband) appeals the trial court's equitable
distribution and spousal support awards to Vera Boyd (wife) in the
final decree of divorce. Husband contends the trial court erred
(1) in failing to consider the tax consequences of his having to
sell some of the real estate to satisfy the court's equitable
distribution award, (2) in ordering husband to pay the equitable
distribution award to wife within sixty days of the date of entry
of the final decree, (3) in overvaluing the Madison County farm,
(4) in failing to credit husband for his payments reducing the
marital debt and his nonmonetary contributions preserving the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
marital assets, and (5) in refusing to reconsider or rehear the
issue of spousal support. 1
Each party seeks an award of appellate attorney's fees and
costs. Finding no error, we affirm the order of the trial court.
Furthermore, we award wife reasonable appellate attorney's fees
and costs and remand this matter to the trial court for
determination of those fees and costs.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
On appeal, we view the evidence in the light most favorable
to the prevailing party below and grant to that evidence all
reasonable inferences fairly deducible therefrom. Wagner v.
Wagner, 16 Va. App. 529, 532, 431 S.E.2d 77, 79 (1993). In
challenging a decision on appeal, the party seeking reversal bears
the burden of demonstrating 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). "Fashioning an equitable distribution award lies within
the sound discretion of the trial judge and that award will not be
1
On brief, husband also argues that the trial court erred
in granting wife two monetary awards. However, we do not
address this issue because husband did not include it in his
"questions presented," as required by Rule 5A:20(c).
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set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396
S.E.2d 675, 678 (1990). "Furthermore, unless it appears from the
record that the trial judge 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 equitable
distribution award will not be reversed on appeal." Blank v.
Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 727 (1990). "[T]he trier
of fact ascertains a witness' credibility, determines the weight
to be given to their testimony, and has the discretion to accept
or reject any of the witness' testimony." Anderson v. Anderson,
29 Va. App. 673, 686, 514 S.E.2d 369, 376 (1999).
"The 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 with Code
§ 20-107.3 must have that evidence before it before determining to
grant or deny a monetary award." Hodges v. Hodges, 2 Va. App.
508, 516, 347 S.E.2d 134, 139 (1986). The trial court must
consider all of the factors set forth in Code § 20-107.3(E);
however, the trial court "need not quantify or elaborate exactly
what weight was given to each of the factors." Taylor v. Taylor,
5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988).
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Here, the trial court awarded husband all of the Madison
County real estate owned jointly by the parties2 and ordered him
to pay wife for her share thereof within sixty days of entry of
the final decree. Husband asserts the trial court knew he was in
bankruptcy, had no liquid assets to pay the award, and had no
borrowing ability. Thus, husband argues, it was apparent that, in
order to satisfy the award, he would have to sell some of the real
estate, thereby incurring the tax consequences of such a sale.
Therefore, he concludes, the trial court erred in failing to
consider the tax consequences of such a sale, as required by Code
§ 20-107.3(E)(9). We disagree.
As indicated in his proposed decree, husband wanted to retain
the jointly owned Madison County farm and one-acre tract on Route
635. However, husband introduced no evidence at trial of any tax
consequences of the division or transfer of the real estate he
requested or of any future sale of some or all of the real estate.
The trial court expressly found that there was "no evidence of the
tax consequences which will flow to either party from the proposed
division." We hold, therefore, that the trial court properly
weighed and considered all of the evidence of tax consequences
before it, and did not err in not specifically taking into account
2
The Madison County real estate consisted of a farm, two
lots on Route 614, one tract on Route 635, and a one-tenth
undivided interest in eighty acres.
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the tax consequences of husband's potential future real estate
sale, about which no evidence was presented.
For the same reasons, husband also contends the trial court
abused its discretion in ordering him to pay the equitable
distribution award to wife within sixty days of the date of entry
of the final decree or, failing to do that, pay nine percent
interest on the award from the date of entry of the final decree.
The award, he argues, should have been ordered to be paid in
installments.
The trial court noted that classification, valuation, and
division of the property was made more difficult by husband's
pending bankruptcy proceedings. The trial court also found that
the real estate was relatively nonliquid. However, the record
reveals that husband was able to sell other parcels of land and
refinance his mortgages during the pendency of his bankruptcy
proceedings. After sales and refinancing, the farm had over
$322,673 in equity. Furthermore, the trial court's decision was
rendered in a letter opinion issued December 14, 1999, and payment
of the award was not required until sixty days after the date of
the entry of the decree, which occurred on May 14, 2000. 3 Upon
consideration of this evidence and all reasonable inferences
3
We further note that the decree appealed from recites the
U.S. Bankruptcy Court's approval of the award and division of
marital property on March 21, 2000 and the agreement of counsel
to certain transfers to satisfy the award.
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fairly deducible therefrom, we hold that the trial court's
decision was not plainly wrong or without evidence to support it.
Husband further contends the trial court abused its
discretion in accepting wife's opinion of the value of the farm
property. He argues that wife's testimony should not have been
accepted because her credibility was significantly and repeatedly
impeached and because wife's lay opinion was without support or
explanation. Thus, he concludes, it was error not to accept the
county tax assessment value, which he identifies in his appellate
brief as being $434,100.
The trial judge noted, in making his ruling, that wife
contended the farm property was worth $444,901 and husband
contended its value was $434,100. Although these figures were
used by the parties in their respective proposed decrees, there is
no evidence before us that shows or explains how these values were
arrived at or determined by the parties. Husband argues in his
brief that the trial court should have used his proposed figure
because it was the county tax assessment value and, thus, more
reliable than wife's proposed figure. However, we find nothing in
the record that supports his claim. Husband produced no
documentation or other evidence to establish that his figure was
the county tax assessment value, much less that it was more
reliable than wife's figure.
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Our review of an appeal is restricted to the record. Turner
v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 401 (1986).
"An appellate court must dispose of the case upon the record and
cannot base its decision upon appellant's petition or brief, or
statements of counsel in open court. We may act only upon facts
contained in the record." Smith v. Commonwealth, 16 Va. App. 630,
635, 432 S.E.2d 2, 6 (1993). Furthermore, we do not presume on
appeal that the trial court has erred. Indeed,
"[w]e have many times pointed out that on
appeal the judgment of the lower court is
presumed to be correct and the burden is on
the appellant to present to us a sufficient
record from which we can determine whether
the lower court has erred in the respect
complained of. If the appellant fails to do
this, the judgment will be affirmed."
Id. (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,
256-57 (1991)). Here, upon review of the record, we conclude that
husband has failed to provide us with an adequate record to enable
us to address the factual issue he raises and determine whether
the trial court erred. Therefore, we affirm the judgment of the
trial court.
Husband next contends that the trial court erred by not
giving him credit in the equitable distribution award for his
having reduced the marital debt during the separation by $220,766
and for his nonmonetary contributions that preserved the marital
assets. We disagree.
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Husband and wife agreed that their marital debt at the time
of trial was $111,228, the amount owed on the farm mortgage. In
considering the factors of Code § 20-107.3(E), the trial court
adopted husband's proposed findings of fact setting forth his
positive monetary and nonmonetary contributions to the marriage
and the marital estate. The trial court also noted in making its
equitable distribution award, as follows:
Husband claims that he has paid on the
secured debt since he and wife separated;
that he applied his share of a marital asset
(a promissory note payment) which was paid to
the parties equally; and that he expended
substantial personal effort in having the
bankruptcy plan approved to save the farm
from foreclosure. He contends the equity in
the farm is his separate property.
Although it did not recite specific reasons for its
conclusion, we can conclude from the record that the trial court
properly weighed and considered husband's evidence and all of the
requisite statutory factors in making its equitable distribution
award. We hold that the award is not plainly wrong or without
evidence to support it.
Finally, husband contends the trial court erred in denying
his motion to reconsider and rehear the issue of spousal support.
We find, however, that this claim is not properly before us. For
one thing, husband's motion prayed for reconsideration only.
Because a motion to rehear was not before the trial court, we will
not consider an argument regarding such a motion here. See Ohree
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v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)
(holding that Rule 5A:18 prohibits us from considering an argument
on appeal which was not presented to the trial court).
Likewise, none of the specific arguments husband makes to us
on appeal as to why the trial court erred in denying his motion to
reconsider was set forth in his motion to the trial court. Nor
was a record of husband's argument to the trial court presented to
us. Furthermore, the order does not set forth the argument made
to the trial court or the reason for the trial court's ruling.
Thus, we may not consider husband's arguments. 4 See id.; Smith,
16 Va. App. at 635, 432 S.E.2d at 6.
Because husband brought this appeal without merit, we deny
his request for an award of attorney's fees and costs and find
that wife should be compensated for the reasonable expenses
incurred in defending this unjustified appeal. See O'Loughlin v.
O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). We
therefore, remand this case to the trial court solely for a
determination of those fees and costs.
4
On brief, husband also argues that the trial court's award
of spousal support to wife was excessive because wife does not
need support. However, we do not address this issue because it
was not included in husband's "questions presented." See Rule
5A:20(c).
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For the foregoing reasons, we affirm the order of the trial
court and remand for further proceedings consistent with this
opinion.
Affirmed and remanded.
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