COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
MICHAEL RAY WIESE
v. Record No. 2512-99-1
BELINDA LEE WIESE MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
BELINDA LEE WIESE JUNE 20, 2000
v. Record No. 2621-99-1
MICHAEL RAY WIESE
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
David W. Bouchard (David W. Bouchard, P.C.,
on briefs), for Michael Ray Wiese.
David N. Montague for Belinda Lee Wiese.
Michael Ray Wiese (husband) and Belinda Lee Wiese (wife)
appeal the equitable distribution decision of the circuit court.
In his appeal, husband contends that the trial court erred in
making a lump sum equitable distribution award of $70,000 to wife,
rather than awarding wife a percentage of the marital assets.
Husband also contends that the circuit court erred by requiring
him to transfer all his interest in marital personal property and
in separate property to wife and by awarding wife an equal share
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
of his separate property. In her appeal, wife contends that the
trial court erred by accepting the finding of the commissioner in
chancery that husband had any interest in the marital home. We
find that the trial court erred in ordering husband to pay wife an
equitable distribution monetary award of $70,000. Therefore, we
reverse and remand the trial court's decision as to this equitable
distribution award. We find no evidence to support husband's
claims concerning the award to wife of certain items of personal
property. Because the trial court's review of the monetary award
may affect the issue raised by wife in her appeal, we also remand
this issue for further consideration.
The evidence was heard by the commissioner in chancery, whose
report was accepted by the trial court with a minor correction.
The commissioner's report is deemed to be
prima facie correct. The commissioner has
the authority to resolve conflicts in the
evidence and to make factual findings. When
the commissioner's findings are based upon
ore tenus evidence, "due regard [must be
given] to the commissioner's ability . . .
to see, hear and evaluate the witness at
first hand." Because of the presumption of
correctness, the trial judge ordinarily must
sustain the commissioner's report unless the
trial judge concludes that it is not
supported by the evidence.
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
(citations omitted). "The decree confirming the commissioner's
report is presumed to be correct and will not be disturbed if it
is reasonably supported by substantial, competent, and credible
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evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d
651, 652 (1986).
Background
The parties were married in May 1992 and separated in July
1997. They had no children. Husband was the primary wage earner
during the marriage, earning $50,000 annually that was deposited
in the parties' joint accounts. Wife did not work during much of
the marriage, but she inherited funds from her grandmother in
1996. These inherited funds were deposited into the joint
accounts. Using these funds to make a down payment of $50,224.74,
the parties purchased a residence for $140,900 in November 1996.
At the time of separation in 1997, husband used $15,000 from the
joint account to prepay the mortgage on the marital residence
until October 1999. The commissioner also found that the parties
agreed to use the inherited funds to pay off approximately $35,000
in husband's separate debt.
In his report, the commissioner found that the outstanding
debt on the marital home was $71,119.60 as of October 1999. The
commissioner did not specifically classify or value the marital
home. Nonetheless, the commissioner recommended that husband pay
wife $70,000 as an equitable distribution monetary award pursuant
to Code § 20-107.3. Although the commissioner did not value the
parties' respective interests in the marital residence, the
commissioner recommended that husband transfer to wife his
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interest in the marital residence as a means of satisfying the
monetary award.
In addition, the commissioner computed the marital share of
husband's retirement benefits, and recommended an award to wife of
a share of those benefits. The commissioner also recommended that
husband transfer to wife certain items of personal property
acquired by the parties during the marriage and claimed by husband
as separate property.
The chancellor overruled the objections of the parties to the
commissioner's report and accepted the report, with only a minor
correction. Both parties appealed.
Record No. 2512-99-1
Equitable Distribution Monetary Award
The trial court erred in accepting the recommendation of the
commissioner that husband pay wife $70,000 as an equitable
distribution monetary award. No evidence in the record
demonstrates that there was a marital asset with sufficient value
from which the recommended monetary award could be made.
Under Code § 20-107.3(D), a trial court may award a lump sum
equitable distribution award when circumstances so warranted. See
Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134 (1986). In
pertinent part, the statute provides:
In addition, 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, the court has the
power to grant a monetary award, payable
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either in a lump sum or over a period of
time in fixed amounts, to either party. The
party against whom a monetary award is made
may satisfy the award, in whole or in part,
by conveyance of property, subject to the
approval of the court.
Code § 20-107.3(D). Therefore, the chancellor had authority to
award a lump sum monetary award, but only to the extent it was
payable from marital assets. "Where the marital property is
encumbered with indebtedness which equals or exceeds its value,
then for purposes of a monetary award it is essentially of no
value. Without value, there is no basis for a monetary award."
Hodges, 2 Va. App. at 515, 347 S.E.2d at 138 (footnote omitted).
Here, the commissioner failed to value or classify the
marital residence, which was the only sizeable asset held by the
parties. The parties used wife's separate property to pay the
down payment, reducing the outstanding indebtedness on the
property. Under Code § 20-107.3(A)(3)(e), to the extent wife's
contribution of separate property was retraceable and was not a
gift, the down payment retained its classification as her separate
property. During the marriage, the mortgage was paid with funds
from the parties' joint accounts, which included wife's
inheritance, as well as husband's earnings during the marriage.
The evidence indicated that the outstanding indebtedness on the
marital residence as of October 1999 was over $70,000. Based upon
the evidence presented concerning the purchase price of the
residence, reduced by the outstanding indebtedness and wife's
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separate property, any equity of the marital property portion of
the residence was substantially lower than the $70,000 monetary
award. Therefore, because there was no unencumbered marital
property sufficient to support the monetary award, we find that
the trial court erred in awarding wife $70,000.
Determination of Personal Property
Husband also contends that the trial court erred by accepting
the commissioner's report as to the classification of certain
property as marital rather than separate, as to the value of that
property, and as to the distribution of that property. However,
the commissioner awarded the items based upon the evidence
presented at the hearing. The commissioner was entitled to
resolve any conflicts between the parties' testimony. We find no
grounds to reverse the trial court's decision to accept the
recommendation of the commissioner concerning the personal
property claimed by husband.
Record No. 2621-99-1
Wife contends that the trial court erred in accepting the
commissioner's report that awarded any interest in the marital
home to husband. The issue wife raises may be affected by the
proceedings of the trial court on remand. Therefore, we express
no opinion on the merits of wife's appeal, but vacate the award
and remand the case for further proceedings as warranted by our
decision in Record No. 2512-99-1.
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Accordingly, the decision of the trial court in Record No.
2512-99-1 is affirmed in part and reversed in part. The trial
court's decision in Record No. 2621-99-1 is vacated. These
matters are remanded for further proceedings consistent with this
opinion.
Record No. 2512-99-1 -- Affirmed in part,
reversed and remanded in part.
Record No. 2621-99-1 -- Vacated and remanded.
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Belinda Lee Wiese v. Michael Ray Wiese
Combined Opinion