COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
RONALD G. REESE
MEMORANDUM OPINION * BY
v. Record No. 2564-00-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 31, 2001
DAVIDINA T. REESE
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Susanne L. Shilling (Shilling & Associates,
on briefs), for appellant.
Edward D. Barnes (Ann Brakke Campfield;
Barnes & Batzli, P.C., on brief), for
appellee.
Ronald G. Reese and Davidina T. Reese appeal a final decree
of divorce entered October 10, 2000. The husband states his
main issue as several varied questions presented, but as he
states in his brief, the "heart" of each complaint is the single
contention that the trial court erred by delaying its final
decision. He also contends the court erred in offsetting
support arrearages against his distribution of the marital
estate, in not updating the value of the wife's profit sharing
plan, in awarding certain personal property to the wife, and in
assessing attorney's fees against him. The wife contends the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial court erred in not ruling the husband committed waste by
dissipating the equity in a residential property. For the
following reasons, we affirm.
The parties married November 15, 1985, and had two
children. They separated January 2, 1998, and the wife filed
for divorce on January 23, 1998. The parties agreed to a
consent order pendente lite by which the husband paid unitary
support of $350 per week and maintained health insurance for the
wife and children. The consent order enjoined the sale, pledge,
or dissipation of any marital asset. As early as June 1998,
compliance became a problem and the source of constant and
persistent litigation.
The husband contracted with the wife to buy the marital
home, but he had no collateral for a home loan. The wife
insisted the husband have a loan commitment before she would
vacate the residence. From October to December 1998, the
parties litigated issues arising from the husband's efforts to
complete the purchase. Eventually, the wife learned the husband
had improperly pledged marital assets to obtain financing, and
she filed a motion to void the sale. In subsequent pleadings,
the wife alleged the husband pledged the marital home for a
loan, reactivated a line of credit on the home, withdrew funds
from a joint banking account, and failed to maintain health
insurance or stay current in support payments. By order dated
January 19, 1999, the trial court addressed the issues of the
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sale of the marital residence and ordered the husband to comply
with discovery requests.
In March 1999, the parties jointly moved to proceed with
equitable distribution by memoranda in lieu of an oral
presentation. Pursuant to a consent scheduling order, the
parties filed all depositions, exhibits, and memoranda April 30,
1999. However, the husband's non-compliance with the consent
order continued to generate litigation. Just before a contempt
hearing April 30, 1999, the husband deposited a check in the
wife's account to eliminate accrued arrearages, but the check
was dishonored shortly after the hearing. At a subsequent
hearing July 21, 1999, the trial court found the husband in
contempt but gave him time to purge his contempt. The day
before the review hearing, new counsel, the husband's third,
appeared and asked for a continuance. The husband moved for
additional continuances in September and December.
Throughout that fall and winter the parties litigated
payment of arrearages. On October 27, 1999, the trial court
sentenced the husband to 60 days for contempt suspended on the
condition that he pay $700 per month. From that point, the
husband only paid the minimum necessary to stay out of jail,
which was half the amount due.
By May 2000, the wife asserted arrearages for support of
$18,056.13 and for health insurance of $6,332.75. In an effort
to resolve the matter, the trial court set a firm date to hear
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all remaining issues. The judge distinctly and explicitly
advised the parties and counsel that the date was the final date
for hearing the case. He directed the parties to complete or
update any depositions they wished the trial court to consider
and to prepare and present any other evidence on July 31, 2000.
The trial court held the hearing as scheduled and issued a
letter opinion August 3, 2000.
The husband contends the trial court "perpetrated a grave
injustice" by "failing to render an opinion or even to
understand the status of the case" between January 1999 and
August 2000. He maintains failure to render a decision allowed
the arrearages to escalate to the point the husband received
nothing through equitable distribution. The extensive record
does not reflect dereliction by the trial court. The trial
court did not neglect this file, and the parties were constantly
before the trial court.
The husband cannot complain the arrearages grew when they
grew because he adamantly refused to pay despite numerous
efforts to force compliance. Until modified or terminated, a
party must comply with the support obligations in accordance
with the terms of the court's decree. Richardson v. Moore, 217
Va. 422, 424, 229 S.E.2d 864, 866 (1976); Newton v. Newton, 202
Va. 515, 519, 118 S.E.2d 656, 659 (1961). The husband's remedy
was to petition for a modification of support. Newton, 202 Va.
at 519, 118 S.E.2d at 659.
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The record shows that the husband delayed resolution of the
main issues in this divorce by changing jobs, not paying
support, not being forthcoming about his financial condition,
changing attorneys, requesting continuances, and by filing
numerous motions himself. During it all, he never justified his
failure to provide support nor justified a reduction. We find
no error in the trial court's assessing an arrearage for the
husband's noncompliance. In addition, we find no error in the
trial court's offsetting the arrearages against the husband's
share of the marital estate. The husband permitted the
arrearages to accrue. He resisted all efforts to get him to
comply, and nothing suggests he would pay the sum now without
court action. Having permitted the arrearages to grow, the
husband cannot complain that the court enforces the wife's right
to receive the sum he owes.
The husband contends the trial court erred in failing to
permit him to update the value of the wife's 401K pension plan.
The trial court made abundantly clear that July 31, 2000 was the
final date for presenting evidence. The husband did not offer
to update the value of the 401K plan until one month after the
final hearing. The court must be able to set a date for
bringing finality to equitable distribution cases. "Parties
should not be allowed to benefit on review for their failure to
introduce evidence [in a timely manner] . . . . At some point
we must 'ring the curtain down.'" Bowers v. Bowers, 4 Va. App.
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610, 617-18, 359 S.E.2d 546, 550 (1987) (citation omitted). The
husband was given an adequate opportunity to present the
evidence and failed to do so. The trial court did not err in
refusing to allow the husband to reopen the proceedings to
update the value of the wife's 401K plan.
The husband contends the trial court erred in classifying
as marital property items that were his separate property.
While the trial court cannot arbitrarily reject evidence
regarding classification of property, the husband has the burden
to rebut the wife's evidence that the property was marital. Id.
at 618, 359 S.E.2d at 550. The husband failed to produce
evidence to do so, and the evidence presented supported the
trial court's findings. We find no error in the classification
of the personal property.
We find no error in the trial court's assessing attorney's
fees against the husband. The trial court has broad discretion
to award attorney's fees. The husband repeatedly refused to
satisfy his support obligation, was less than forthright in
divulging information about his ability to purchase the marital
residence, and caused delays by twice changing counsel. The
wife was "forced to employ attorneys to establish and enforce
her rights which were resisted by her former husband throughout
this extensive litigation. Her legal expense is attributable to
his recalcitrance." Alig v. Alig, 220 Va. 80, 86, 255 S.E.2d
494, 498 (1979).
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The wife contends the trial court erred in not finding the
husband dissipated the equity in a residence that the husband
had built as a speculative investment. The husband lived in it
for several months during the litigation but did not make
mortgage payments after August 1998. The lender foreclosed, and
the sale resulted in a deficiency. The wife contends the house
had an equity of $54,000, which was the difference between the
value of the house and the amount of the mortgage at
foreclosure.
To establish the value of the house before foreclosure, the
wife points to the husband's testimony. At one point in
cross-examination, the husband indicated the house had a fair
market value of $221,000. However, at other times he assigned
other values. The estimate of $221,000 came from the value
assigned on a bank loan application. The record does not
reflect any expert testimony of the value or of any stipulation
of the value.
While an owner's opinion of value is admissible, it is not
conclusive proof, and the trial judge still must assign weight
to it. "'The Owner of an article, whether he is generally
familiar with such values or not, ought certainly to be allowed
to estimate its worth; the weight of his testimony (which often
would be trifling) may be left to the jury, and courts have
usually made no objections to this policy.'" Haynes v. Glenn,
197 Va. 746, 751, 91 S.E.2d 433, 436 (1956) (quoting 3 Wigmore
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on Evidence § 716, 48 (3d ed. 1940)). We cannot say the trial
court erred in not accepting the evidence presented as
sufficient to prove the wife's allegation of dissipation or
waste. "When the party with the burden of proof on an issue
fails for lack of proof, he cannot prevail on that question."
Bowers, 4 Va. App. at 617, 359 S.E.2d at 548 (retirement plan).
For the reasons stated, we affirm the trial court.
Affirmed.
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