COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
ALVIN QUASH
MEMORANDUM OPINION * BY
v. Record No. 2761-99-2 JUDGE RUDOLPH BUMGARDNER, III
JUNE 27, 2000
MARJORIE S. QUASH
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Horace A. Revercomb, III, Judge
(Kelly A. Halligan; Levit, Mann & Halligan,
P.C., on briefs), for appellant. Appellant
submitting on briefs.
(Bruce E. Arkema; Cantor, Arkema & Edmonds,
on brief), for appellee. Appellee submitting
on brief.
A final decree entered October 20, 1999 awarded Marjorie S.
Quash a divorce from Alvin Quash. On appeal, the husband argues
the trial court erred in failing to follow the commissioner's
recommendations regarding attorney's fees, spousal support,
dissipation of marital funds, and prejudgment interest. He also
argues the trial court erred in overruling his objection to a
divorce based on the ground of desertion. The wife claims the
trial court erred in classifying property. For the following
reasons, we affirm in part, reverse in part, and remand for
reconsideration.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The parties married in New York in 1939, had three
children, moved to Virginia in 1976, and separated September 23,
1996. The wife filed for divorce. On May 8, 1997, issues of
divorce, spousal support, and equitable distribution were
referred to a commissioner in chancery, who heard the evidence
May 21, 1998 and filed a report May 20, 1999.
The commissioner recommended that the wife be granted a
divorce on the ground of desertion, the parties equally share
the marital estate, and the wife not be awarded spousal support.
The commissioner indicated the husband's expenses exceeded his
income. Both parties excepted to the commissioner's
recommendations.
In a September 3, 1999 letter opinion, the trial court
awarded the wife a divorce on the ground of desertion,
$15,377.98 in attorney's fees and costs, spousal support of
$73.33 per month, accepted her valuation dates for the parties'
assets (separation date for bank accounts and hearing date for
certificates of deposit), and concluded the husband dissipated
$19,668.40 of marital funds and awarded the wife one-half of
that value.
On appeal, we review the trial court's disapproval of the
commissioner's report to "'ascertain whether, under a correct
application of the law, the evidence supports the findings of
the commissioner or the conclusions of the trial court. Even
where the commissioner's findings of fact have been disapproved,
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an appellate court must give due regard to the commissioner's
ability . . . to see, hear, and evaluate the witnesses at first
hand.'" Branham v. Branham, 254 Va. 320, 324, 491 S.E.2d 715,
717 (1997) (trial court cannot reverse commissioner's
recommendations upon facts not in record at commissioner's
hearing) (quoting Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d
292, 296-97 (1984)). However, by referring a cause to a
commissioner in chancery, the trial court "does not delegate his
judicial functions . . .; [he must] review the evidence and
arrive at his own conclusions. Commissioners are appointed for
the purpose of assisting the chancellor and not for the purpose
of supplanting him." Green v. Green, 199 Va. 927, 931, 103
S.E.2d 202, 205 (1958) (citation omitted). Therefore, it is our
duty "to evaluate the evidence under a correct application of
the law to determine whether or not it supports the findings of
the commissioner or the conclusions of the chancellor."
Hoffecker v. Hoffecker, 200 Va. 119, 125, 104 S.E.2d 771, 775
(1958).
The husband argues the trial court erred in awarding the
wife attorney's 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)
(citing Ingram v. Ingram, 217 Va. 27, 29, 225 S.E.2d 362, 364
(1976)). "The key to a proper award of counsel fees is
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reasonableness under all the circumstances." Lightburn v.
Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996)
(citation omitted). See L.C.S. v. S.A.S., 19 Va. App. 709, 721,
453 S.E.2d 580, 587 (1995), cert. denied, 517 U.S. 1124 (1996)
(fee award may be disturbed if there is bad faith or gross
disparity of financial resources).
The trial court referred the issue of attorney's fees to
the commissioner. However, the trial court decided the matter
when the commissioner failed to address it. The wife's monthly
income was approximately $100 and the trial court found the
husband's monthly income was $1,562.74. There was evidence that
the husband failed to provide records of marital assets,
required the wife to engage in lengthy and expensive discovery,
and used more than $8,000 of marital funds to pay his attorney's
fees. Under these facts, we conclude the trial court properly
exercised its discretion in awarding the wife counsel fees and
costs in the amount of $15,337.98.
Next, we consider whether the trial court erred in awarding
the wife spousal support. The trial court's determination of
whether spousal support is warranted, "and if so how much, is a
matter within [its] discretion . . . and will not be disturbed
on appeal unless it is clear that some injustice has been done."
Dukelow v. Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211
(1986) (citations omitted). An award of spousal support will be
reversed "only for an abuse of discretion or the judge's failure
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to consider all the factors set forth in Code § 20-107.1."
Barnes v. Barnes, 16 Va. App. 98, 103, 428 S.E.2d 294, 298
(1993) (citation omitted).
The commissioner ruled that the husband's social security
income was not subject to equitable distribution. The trial
court, without any explanation, awarded the wife spousal support
of $73.33 per month, or one-third of the husband's social
security income. Because the trial court did not adequately
explain its reasons for deviating from the commissioner's
decision, we reverse its award.
Next, we consider whether the trial court erred in finding
the husband dissipated marital assets. The husband spent
$67,675.09 of marital funds from the date of separation to the
commissioner's hearing and adequately accounted for $56,179.69.
Of that sum, the trial court found that only $48,006.69 was
expended for valid purposes. The trial court concluded the
husband dissipated $19,668.40 of marital assets and awarded the
wife one-half of that value. The husband argues that paying his
own attorney's fees was not a dissipation of marital funds. We
agree.
Dissipation of assets occurs when "one spouse uses marital
property for his own benefit and for a purpose unrelated to the
marriage at a time when the marriage is undergoing an
irreconcilable breakdown." Amburn v. Amburn, 13 Va. App. 661,
666, 414 S.E.2d 847, 850 (1992). The spouse charged with
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dissipation has the burden of establishing by a preponderance of
the evidence that the funds were used for a proper purpose. See
Alphin v. Alphin, 15 Va. App. 395, 402, 424 S.E.2d 572, 576
(1992); Clements v. Clements, 10 Va. App. 580, 587, 397 S.E.2d
257, 261 (1990). Marital funds "spent for living expenses,
attorney's fees for the divorce proceedings, and other
necessities of life while the parties are separated do not
constitute dissipation." Anderson v. Anderson, 29 Va. App. 673,
695, 514 S.E.2d 369, 380 (1999) (citations omitted).
The amount of dissipated funds included $8,173 the husband
paid to his attorneys. The trial court's inclusion of this
permissible expense was error. See id. However, credible
evidence supports the court's finding that the husband
dissipated the remaining sum of $11,495.40. For these reasons,
we reverse the court's finding that paying attorney's fees is an
impermissible expense.
Next, we consider whether the trial court erred in valuing
the marital estate, awarding the wife prejudgment interest, and
in accepting the wife's valuation dates. The trial court
accepted the wife's exhibit, which set forth valuation dates and
values for marital assets.
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732,
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396 S.E.2d 675, 678 (1990). The award of prejudgment interest,
which may be issued to make a party whole, see Ragsdale v.
Ragsdale, 30 Va. App. 283, 292, 516 S.E.2d 698, 702 (1999), is
discretionary. See Marks v. Sanzo, 231 Va. 350, 356, 345 S.E.2d
263, 267 (1986).
Neither party's evidence was flawless or totally
convincing. The trial court considered the entire record,
including the commissioner's recommendations and the law, when
it resolved the equities between the parties. Its findings are
supported in the record, and we cannot say the court abused its
discretion.
We also consider whether the trial court erred in granting
the wife a divorce on the ground of desertion. "Desertion is
. . . an actual breaking off of the matrimonial cohabitation
coupled with an intent to desert in the mind of the deserting
party. Once separation and intent to desert have been
established, the desertion is presumed to continue until the
contrary is shown." Petachenko v. Petachenko, 232 Va. 296,
298-299, 350 S.E.2d 600, 602 (1986) (citations omitted). See
also Code § 20-99 (divorce cannot be granted on the
uncorroborated testimony of the parties).
The wife's evidence established that the husband moved out
of the marital bedroom two years before the parties separated.
She testified that he routinely turned off the water to the
house, forcing her to go to neighbors' houses to get water for
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drinking, bathing, and laundry. On occasion, the husband also
incapacitated her car. The wife testified the parties did not
eat meals together, and, instead of communicating with her, the
husband yelled and cursed at her. Two other witnesses
substantially corroborated the wife's testimony. The trial
court affirmed the commissioner's recommendation that the wife
be granted a divorce on the ground of desertion. We find no
error in doing so.
Finally, the wife cross-appeals the classification of the
Caroline County land as the husband's separate property.
Because the husband acquired the property during the marriage,
it is presumed to be marital, see Code § 20-107.3, and the
husband has the burden to rebut that presumption. See Stainback
v. Stainback, 11 Va. App. 13, 17-18, 396 S.E.2d 686, 689 (1990).
The wife claimed the husband told her he paid several
family members $500 each for land. The husband claims he
inherited the property from his mother and that she intended it
to be his separate property. He claims the payments he made on
the land were for property taxes. The deed corroborates the
husband's testimony because it reflects a conveyance of real
estate to the husband, in his name alone, from his mother. The
wife failed to show the donor had a contrary intent and the
trial court deemed her evidence "ambiguous".
The husband presented sufficient credible evidence to rebut
the presumption that the real estate was marital property. "The
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weight to be given evidence and the resolution of conflicts in
the evidence are for the fact finder." Gamer v. Gamer, 16 Va.
App. 335, 345, 429 S.E.2d 618, 625 (1993) (citation omitted).
The trial court's finding is supported by credible evidence.
For the foregoing reasons, we affirm the trial court's
rulings on attorney's fees, valuation and classification of
marital property, prejudgment interest, and the grounds of
divorce. We reverse the award of spousal support and the
finding that the husband's payment of $8,173 in attorney's fees
was an impermissible expense. Accordingly, we affirm in part,
reverse in part, and remand for reconsideration in light of this
opinion.
Affirmed in part,
reversed in part,
and remanded.
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