COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
JANET GILBERT MEZZY
MEMORANDUM OPINION *
v. Record No. 1743-99-1 PER CURIAM
JANUARY 18, 2000
MARK J. MEZZY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
(Carl W. Isbrandtsen; Carl W. Isbrandtsen,
P.C., on brief), for appellant.
No brief for appellee.
Janet G. Mezzy (wife) appeals the equitable distribution
decision of the circuit court. Wife contends on appeal that the
trial court plainly erred by (1) awarding Mark J. Mezzy (husband)
fifty percent of wife's Fidelity IRA account #T104862513;
(2) awarding husband fifty percent of wife's Fidelity SEP/IRA
account #T104329904; (3) awarding husband fifty percent of wife's
Fidelity IRA account #T104862513; (4) awarding husband fifty
percent of the Merrill Lynch Children's College fund and in
classifying the fund as marital property; and (5) awarding husband
fifty percent of the marital portion of the equity in the marital
residence. Upon reviewing the record and opening brief, we
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the decision of the trial court. See Rule 5A:27.
Evidence was heard by the commissioner in chancery, whose
report is presumed to be 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.'" Brown v. Brown, 11 Va. App. 231, 236,
397 S.E.2d 545, 548 (1990) (citing Hill v. Hill, 227 Va. 569,
577, 318 S.E.2d 292, 297 (1984)). "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 evidence." Brawand v. Brawand, 1 Va.
App. 305, 308, 338 S.E.2d 651, 652 (1986).
Fidelity IRA #T104862513
The parties agreed that this account was opened by wife
prior to the marriage and that $4,000 of the amount of this IRA
was wife's separate property. The trial court found that the
remaining balance of $17,935.50 was marital property, as it was
contributed by wife during the marriage. While wife argues that
the marital contributions were transmuted into separate property
because they were commingled, Code § 20-107.3(A)(3)(d) provides
that
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When marital property and separate property
are commingled by contributing one category
of property to another, resulting in the
loss of identity of the contributed
property, the classification of the
contributed property shall be transmuted to
the category of property receiving the
contribution. However, to the extent the
contributed property is retraceable by a
preponderance of the evidence and was not a
gift, such contributed property shall retain
its original classification.
Funds earned and contributed by wife during the marriage were
retraceable as marital property and, therefore, the trial court
did not err in classifying those funds as marital.
While wife correctly notes that there is no presumption of
equal division under Virginia law, neither can we say that the
trial court erred in concluding that it was appropriate to make
an equal division of the parties' marital assets. See Papuchis
v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986).
The trial court treated the marital assets claimed by both
parties in the same way, dividing them equally between the
parties. Wife has failed to demonstrate sufficient grounds to
reverse the trial court's decision to accept the recommendation
of the commissioner.
Fidelity SEP/IRA #T104329904
Wife concedes that this account was marital, as it was
created during the marriage. We find no reversible error in the
trial court's decision to accept the recommendation of the
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commissioner to equal by divide this marital asset between the
parties.
Fidelity IRA #T104862513
This account was created during the marriage. For the
reasons previously stated, we cannot say that the trial court's
decision to accept the recommendation of the commissioner that
this account be divided in a manner identical to that used for
other pieces of marital property was reversible error.
Merrill Lynch Children's College Fund
Wife contends that the trial court erred in accepting the
commissioner's report classifying this account as marital
property and awarding husband a fifty percent interest. The
fund was opened during the marriage and titled in wife's name.
Although there was evidence that the parties agreed to use this
fund for the children's education, the intended use of this
money did not affect its classification as marital property. In
contrast, the commissioner found that other property held in the
children's name was not subject to equitable distribution. We
find no error in the trial court's acceptance of the
commissioner's recommendation concerning the classification of
this account or the decision to divide the account equally
between the parties.
Baycliff Drive
Wife contends that the trial court erred by awarding
husband fifty percent of the marital equity in the marital
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residence. The commissioner found that the residence was part
wife's separate property and part marital property. The
evidence established that wife's parents gave wife $28,000 for
the down payment on the house during the marriage. The
commissioner found that an additional $1,000 contribution
towards the down payment used marital funds. Wife's parents
insisted that wife purchase the house solely in her name. The
contract listed wife as the sole purchaser. Husband made no
separate contributions toward the down payment of the house, and
his name was placed on the deed by mistake. The parties reduced
the outstanding mortgage by $9,773.35 through payments made
during the marriage. Wife made the majority of these payments
from her separate account, although husband made four payments
toward the mortgage from his separate funds.
Based upon the Brandenburg formula, the trial court
computed wife's separate share of the equity in the Baycliff
Drive property and the marital share. See generally Hart v.
Hart, 27 Va. App. 46, 64-66, 497 S.E.2d 496, 504-06 (1998). Wife
received $75,783.85 as her separate share of the equity in the
marital residence. The trial court determined that the marital
portion was $29,158.79, and awarded husband fifty percent of the
marital portion.
We find no reversible error. The house was purchased during
the marriage, largely with wife's separate funds. However, the
mortgage was paid during the marriage using marital funds. We
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cannot say that the trial court's division of the equity in the
Baycliff Drive residence was erroneous.
Statutory Factors
Wife also argues that the commissioner and the trial court
failed to consider the statutory factors set out in Code
§ 20-107.3(E) when making the equitable distribution decision.
"A trial court, when considering these factors, is not required
to quantify the weight given to each, nor is it required to
weigh each factor equally, though its considerations must be
supported by the evidence." Marion v. Marion, 11 Va. App. 659,
664, 401 S.E.2d 432, 436 (1991).
[U]nless 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). 1
The commissioner considered the origin of the parties'
property and the source of funds used to maintain the property.
Wife sought a divorce on the grounds of cruelty and desertion,
1
Although wife noted exceptions to the commissioner's
report and the supplemental report concerning the classification
and distribution of specific items of property, wife's only
explicit reference to the consideration of the statutory factors
was made, if at all, through an incorporated reference to an
earlier memorandum. At no point in her exceptions or objections
did wife clearly raise the objection that the commissioner and
the trial court failed to consider the statutory factors.
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but the commissioner granted a divorce solely on the grounds of
the parties living separate and apart in excess of one year.
The commissioner noted that husband was convicted in 1995 for
counterfeiting food stamps and that husband sold marijuana for a
number of years, without wife's knowledge. Nonetheless, the
commissioner found that husband spent time with the parties'
children and was a good father "to the best of his ability."
Wife failed to note with specificity which statutory
factors were not considered by the commissioner or how those
factors would have affected the court's equitable distribution
award.
Although the appellant argues that the trial
court did not consider all of the statutory
factors, [her] brief fails to identify which
factors were not considered and how they
would have affected the trial court's
determination. Since this argument was not
fully developed in the appellant's brief, we
need not address this question. Statements
unsupported by argument, authority, or
citations to the record do not merit
appellate consideration. We will not search
the record for errors in order to interpret
the appellant's contention and correct
deficiencies in a brief.
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992) (citation omitted). Wife, therefore, has failed to prove
any grounds for reversing the equitable distribution for failure
to properly consider the statutory factors set out in Code
§ 20-107.3(E).
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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Janet Gilbert Mezzy v. Mark J. Mezzy
Combined Opinion