COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued by telephone conference
CATHERINE ANN STARK
MEMORANDUM OPINION * BY
v. Record No. 1568-00-2 JUDGE JAMES W. BENTON, JR.
JUNE 26, 2001
DENNIS NEIL RANKINS
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Matthew N. Ott for appellant.
Steven S. Biss for appellee.
This appeal arises in a divorce proceeding from an order
determining a distribution of the property of Catherine Ann
Stark and her husband, Dennis Neil Rankins. Stark and Rankins
challenge several aspects of that distribution. We affirm the
trial judge's ruling, in part, and reverse, in part.
I.
In the decree dissolving the marriage, the trial judge
found that Stark and Rankins were married on September 4, 1983
and last cohabitated as husband and wife on July 16, 1998. The
trial judge granted a divorce on the grounds that Stark had
"wilfully and constructively deserted [Rankins]."
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
A letter opinion contained the trial judge's findings that
the fair market value of the jointly-owned marital home was
$370,000. The home had liens in the amount of $195,000 and
equity of $175,000. Based on testimony that Stark contributed
$20,000 of money inherited from her grandmother as a part of the
down payment to purchase the home, the trial judge found that
Stark's contribution was separate property. After Stark
challenged the trial judge's failure to award her the
appreciated value of the $20,000, the judge found further that
"any increase in value of the $20,000 [was] a gift [by Stark] to
the family."
During the evidentiary hearing, Rankins testified that his
architectural business was dissolved in September 1999 and had
no value. In the letter opinion, the trial judge found that the
business had no value.
In the order determining the distribution of property, the
trial judge awarded to Rankins the marital home, his retirement
account, two automobiles, miscellaneous accounts, and various
other personal property. He also ordered Rankins to pay Stark
$68,000, which included $20,000 of separate property that Stark
contributed to the initial purchase of the marital home. The
judge awarded to Stark her retirement account, an automobile,
miscellaneous accounts, and her bank account, which contained
$4,100 at the date of separation.
- 2 -
II.
Initially, we note that Rankins does not identify any
objection that he made at trial to the issues he now asserts on
cross-appeal. He contends the trial judge erred (1) in finding
that $20,000 of the purchase price of the marital residence was
Stark's separate property, (2) by including $20,000 in separate
property in the net equity of the residence and using that same
amount again in calculating the payment Rankins was to make to
Stark, and (3) in finding no marital property existed in a
condominium Stark purchased after their separation.
Rankins' attorney endorsed the final order with the word
"seen." We have clearly held that "endorsing a decree 'seen and
objected to' does not preserve an issue for appeal unless the
record further reveals that the issue was properly raised for
consideration by the trial court." Twardy v. Twardy, 14 Va.
App. 651, 657, 419 S.E.2d 848, 851 (1992) (en banc). We find no
indication in the record that Rankins stated an objection at
trial to any of these issues. We will not address an issue on
appeal when no objection was made at trial. Rule 5A:18.
III.
Stark contends the trial judge erred by failing to
attribute passive appreciation to her separate contribution to
the purchase of the marital residence. She also contends that
the trial judge erred by ruling "that any increase in value of
the $20,000 [w]as a gift to the family." We agree.
- 3 -
In pertinent part, Code § 20-107.3(A)(1) provides that
"[t]he increase in value of separate property during the
marriage is separate property, unless marital property or the
personal efforts of either party have contributed to such
increases and then only to the extent of the increases in value
attributable to such contributions." Read as a whole,
subsection (A) of the statute contains a "presumption that the
increase in value of the separate property is separate." Martin
v. Martin, 27 Va. App. 745, 753, 501 S.E.2d 450, 454 (1998).
Moreover, we have held that the trial judge has a duty "to
determine the extent to which [a spouse's] separate property
interest in the home increased in value during the . . .
marriage." Id. at 752, 501 S.E.2d at 453.
In Martin, we applied the "Brandenburg formula," first
approved in Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 (1998),
to calculate a husband's proper share of a marital home. See
Martin, 27 Va. App. at 753, 501 S.E.2d at 454. The husband had
used $26,634.22 of separate property to purchase a marital home
worth $60,100. At the time of distribution, the home had a
value of $110,000. We held that the husband's separate property
interest in the home was $26,634.22, plus $22,113.88 of passive
appreciation. Id. at 753 n.3 and 4, 501 S.E.2d at 454 n.3
and 4.
Although we did not hold in Martin that the Brandenburg
formula was the exclusive method to resolve this question, the
- 4 -
facts of this case are similar enough that the formula is
appropriate here as well. The formula is: Nonmarital
contribution divided by total contribution multiplied by equity
equals the total nonmarital property including both the initial
contribution and the appreciation. Hart, 27 Va. App. at 65, 497
S.E.2d at 505. In this case, the trial judge did not make
findings as to all of these values. Clearly, Stark's nonmarital
contribution was $20,000 and the total equity in the home is now
$175,000. Stark appears to have argued at the trial level that
the initial down payment for the purchase of the home was
$55,000, including the $20,000 from Stark and $35,000 which
Rankins borrowed and then repaid with marital funds. The judge
made no finding, however, that this amount was the total that
the couple had contributed towards the purchase of the home over
the course of the marriage. Therefore, we reverse this decision
and remand for a factual finding as to the values necessary for
a Brandenburg calculation, including the total contribution of
the parties towards the purchase of the home.
The trial judge also found that the appreciation in the
value of separate contribution was a gift to the family. No
evidence supports this finding, and certainly insufficient
evidence existed to overcome a presumption that the separate
property remained separate. Therefore, we hold that the judge
erred in not awarding to the wife the appreciation in her
separate contribution to the marital home.
- 5 -
IV.
Stark also contends that the trial judge erred in finding
that the husband's business had no value. She argues that the
evidence demonstrated that the business had "retained earnings"
of roughly $37,000 when the husband's partner left the
enterprise in August 1999.
"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). Rankins testified that the business had a bank
account he used to pay bills and that a document finalizing the
business arrangement with his partner showed "retained earnings"
of $37,500. He further testified, however, that that amount
"would be shared. It's in the company. I have no $37,000
. . . . It would have been in the company account if anywhere
. . . and what we had to do was bring every account we had up to
that date [when the partner left] including payables . . . and
try to come up with a split that was equitable."
The trial judge was free to believe the husband's testimony
that the business had no value. Furthermore, the evidence that
the husband had control over the $37,000 in retained earnings is
hardly conclusive. Rankins testified that the money belonged to
the company and that his business partner had an equal interest
in that money at dissolution and, furthermore, that this amount
- 6 -
was used to pay creditors of the business. On this record, we
cannot say that the judge erred in finding that the business had
no value.
V.
Stark further contends the trial judge erred in his
allocation to her of $4,100 that was in her bank account. She
maintains that she used this money for living expenses between
the time of separation and the time of the distribution award
and that the trial judge should not have determined the value of
the account as of the former date. In addition, she contends
the judge erred in determining the value of a brokerage account.
We find no indication, however, that Stark objected to
these rulings on the order distributing the property. We also
can find no objection anywhere else in the record. Therefore,
we will not consider these issues on appeal. Rule 5A:18.
For these reasons, we affirm in part, reverse in part, and
remand for entry of an order consistent with this opinion.
Affirmed in part, reversed in
part, and remanded.
- 7 -