COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
JOHN CLIFTON STACEY
MEMORANDUM OPINION *
v. Record No. 0634-99-1 PER CURIAM
SEPTEMBER 7, 1999
DEBORAH S. M. STACEY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
(Samuel R. Brown, II; Samuel R. Brown, II,
P.C., on brief), for appellant.
(Sonya L. Powell; Law Offices of Charles R.
Hofheimer, P.C., on brief), for appellee.
John Clifton Stacey (husband) appeals the final decree of
divorce entered by the circuit court, which affirmed the report of
the commissioner in chancery. On appeal, husband contends that
the trial court erred by (1) refusing to grant him a divorce from
Deborah S. M. Stacey (wife) on the ground of her willful
desertion; (2) awarding wife spousal support despite the evidence
of desertion; (3) ordering him to pay all costs and $5,000 in
wife's attorney's fees; (4) failing to award him his attorney's
fees and costs; (5) failing to award him the marital residence;
(6) failing to credit him for post-separation mortgage payments;
(7) finding wife was entitled to a $5,000 credit from the sale of
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the marital residence; (8) failing to credit him with $11,000 in
contributions to the marital residence; (9) failing to consider
the value of wife's business and its assets; (10) determining the
amount of spousal support; (11) failing to consider the parties'
agreement on equitable distribution and spousal support; and (12)
awarding wife primary physical custody of the parties' son. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
The evidence was heard by the commissioner in chancery.
"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).
Grounds for Divorce
Husband contends that the trial court erred by refusing to
grant him a divorce on the ground that wife willfully deserted
the marriage. The commissioner found that husband failed to
corroborate his allegation that wife deserted the marriage.
While corroboration need only be slight, see Dodge v. Dodge, 2
Va. App. 238, 245, 343 S.E.2d 363, 367 (1986), we find no error
in the commissioner's finding that husband failed to present
sufficient evidence to support his alleged ground. Husband
presented the testimony of a neighbor who noted that, "I no
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longer see [wife's] car over there. I no longer see her over
there. Been a while." Other credible evidence demonstrated
that the marriage was seriously troubled prior to the date of
separation. The fact that wife admitted leaving the marital
home does not, by itself, establish desertion. We find no error
in the commissioner's finding that husband failed to provide
sufficient corroboration to support his claim that wife
willfully deserted the marriage.
Moreover, a trial court is "not compelled 'to give
precedence to one proven ground of divorce over another.'"
Williams v. Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253
(1992) (citation omitted). "It is well established that 'where
dual or multiple grounds for divorce exist, the trial judge can
use his sound discretion to select the grounds upon which he
will grant the divorce.'" Id. (citation omitted). The evidence
proved that the parties lived separate and apart without
interruption in excess of one year. Therefore, we will not
disturb the decision to award the parties a divorce on the
ground of a one-year separation.
Attorney's Fees and Costs
Husband contends that the trial court erred by ordering him
to pay all costs and $5,000 in wife's attorney's fees. An award
of attorney's fees and costs is a matter submitted to the sound
discretion of the trial court and is reviewable on appeal only for
an abuse of discretion. See Graves v. Graves, 4 Va. App. 326,
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333, 357 S.E.2d 554, 558 (1987). The key to a proper award of
counsel fees is reasonableness under all the circumstances. See
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). While husband argued that wife was at fault in the
breakdown of the marriage, it was apparent from the evidence that
the parties had ongoing marital problems. Husband was the primary
wage earner during the marriage and had substantially greater
financial resources than wife. Based upon the respective
abilities of the parties to pay, we cannot say that the award was
unreasonable or that the trial judge abused his discretion in
making the award.
Sale of the Marital Residence
"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,
396 S.E.2d 675, 678 (1990). "Unless it appears from the record
that the trial judge has not considered or has misapplied one of
the statutory mandates, this Court will not reverse on appeal."
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630
(1989).
Husband contends that the trial court erred by ordering the
sale of the marital residence. He contends that the evidence
supported his assertion that their daughter's best interests
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would be served by living in the same school district. We find
no error.
Code § 20-107.3(C) authorizes the trial court to order the
division or transfer of jointly owned marital property. The
parties presented appraisal values for the marital residence
that ranged between $77,000 to $91,000, due in part to the
home's need for repairs. The commissioner found that "[t]he
value of this house and any equity therein were not established
by a preponderance of the evidence." It was within the
discretionary authority of the trial court to order the sale of
the residence as a reasonable means to divide the parties'
equity in the property.
Furthermore, husband presented no evidence to support his
claim that it was in their daughter's best interest to remain in
the residence. Evidence indicated that the daughter had not
lived continually in the home since January 1997 and had only
recently entered the local public school. Other evidence
indicated that the daughter was attached to both parents but was
interested in residing with the parent with whom her brother was
not residing. This further suggests that the marital residence
did not have the significance to the daughter which husband
claimed. In light of the evidence presented to the
commissioner, we find no reversible error in the trial court's
decision requiring the sale of the marital residence.
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Post-Separation Mortgage Payments
Husband sought credit for post-separation mortgage
payments.
Although the separate contribution of one
party to the acquisition, care, and
maintenance of marital property is a factor
that the trial court must consider when
making its award of equitable distribution,
Code § 20-107.3 does not mandate that the
trial court award a corresponding
dollar-for-dollar credit for such
contributions.
von Raab v. von Raab, 26 Va. App. 239, 249-50, 494 S.E.2d 156,
161 (1997). Husband was the primary wage earner during the
marriage. The continued mortgage payments benefited both
parties. Husband presented no evidence demonstrating the amount
by which there was an increase in equity due to his
post-separation payments. Under these circumstances, we find no
abuse of discretion in the commissioner's failure to award
husband credit for any post-separation mortgage payments.
Credits to Wife
Husband also contends that the commissioner erred in
crediting wife with $5,000 as her separate property. The
evidence established that wife received $5,000 from her father,
which she testified she used towards the down payment on the
marital residence. As the commissioner's finding is supported
by the evidence, we find no error.
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Husband also contends that the commissioner erred by
failing to credit him for $11,000 in separate funds that he
contributed to the marital residence. See Code
§ 20-107.3(A)(3). At the hearing, husband testified concerning
$11,000 in inherited bonds as follows:
A: That is why I am not sure if I used the
remainder in '95. It might have been '96
that I used the bulk of that to do the
repairs, and I think it probably was, for
the bathroom, insulating the attic up in the
overhead, --
Q: Okay.
A: --kitchen cabinets. We bought two,
three.
Q: All right. So you spent how much, do
you think, on the house for repairs,
improvements?
A: I would say probably ten.
Wife admitted that husband used inherited funds to make home
repairs and improvements to the bathroom, but disputed the
estimate of $10,000. Neither party introduced receipts to
establish what repairs or improvements were completed.
Expenditures for routine maintenance and upkeep do not add
to the value of marital property. "[A]lthough the customary
care, maintenance, and upkeep of a residential home may preserve
the value of the property, it generally does not add value to
the home or alter its character . . . ." Martin v. Martin, 27
Va. App. 745, 756, 501 S.E.2d 450, 455 (1998). There was no
evidence introduced to establish that the home's value was
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increased by husband's contributions. The party seeking to
recover separate property commingled with marital property bears
the burden to retrace the property by a preponderance of the
evidence. See, e.g., Code § 20-107.3(A)(3)(d). Based upon the
scarcity of evidence produced by husband to support his claim,
we cannot say that the commissioner erred by failing to credit
husband for a contribution of separate property.
Value of Window-Washing Business
Husband contends that the commissioner erred by failing to
consider the value of wife's window-washing business. The
evidence indicated that the parties formed the business in 1981,
during the marriage. Wife testified that the business was
incorporated in 1993. The commissioner found that the business
had "little value and few assets," and awarded the business to
wife.
We find no reversible error in the commissioner's decision
that the business had little value or his determination to award
the business to wife. While husband pointed to over $4,000 in
assets listed on the business' 1997 income tax return, he failed
to note that over $3,900 of those assets was cash. The evidence
established that wife operated the business on a part-time
basis, working about fifteen hours a week to accommodate the
children's schedule. Despite extensive cross-examination, the
evidence did not demonstrate that wife had substantially more
income than the $550 average monthly income she claimed or that
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the business had substantially greater assets. Husband failed
to demonstrate error in the commissioner's determination.
Spousal Support
Husband contends that the commissioner erred in awarding
wife $450 in monthly spousal support.
In awarding spousal support, the chancellor
must consider the relative needs and
abilities of the parties. He is guided by
the . . . factors that are set forth in Code
§ 20-107.1. When the chancellor has given
due consideration to these factors, his
determination will not be disturbed on
appeal except for a clear abuse of
discretion.
Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829
(1986).
Husband's argument rests largely on his allegation that wife
was not entitled to support because she deserted the marriage. As
the commissioner rejected a fault-based ground for divorce,
husband's argument is without merit. While husband also contends
that wife had substantial other financial resources, we find no
abuse of discretion. Husband refers to the fact that wife had a
real estate license, but failed to note that wife never worked as
a real estate broker. There was no evidence introduced supporting
husband's claim that wife could earn "far in excess of what she
now earns." We find no merit in husband's argument.
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Property Settlement Agreement
Husband contends that the commissioner failed to consider the
parties' property agreement when equitably distributing the
parties' property. We find no merit in husband's contention. The
parties stipulated that certain items were wife's separate
property. The commissioner did not ignore these assets. In the
section on child support, the commissioner's report stated:
Husband argues that income from wife's
I.R.A. should be imputed to her. This
Commissioner declines to do so. If such
imputation is made, the same treatment would
be given similar investments owned by the
husband as well as the $200,000.00 in
Government Bonds which he attempted to burn.
In his discussion of spousal support, without quantifying any
income available to husband as a result of the $200,000 in
bonds, the commissioner noted that "husband has considerable
financial resources." Thus, the commissioner's report indicated
that he considered the parties' assets, including the property
designated as wife's separate property pursuant to the parties'
agreement. We find no indication that the commissioner failed
to consider relevant evidence or erred in weighing the statutory
factors.
Custody of Parties' Son
"In determining custody, the court shall give primary
consideration to the best interests of the child." Code
§ 20-124.2(B). The evidence presented to the commissioner
indicated that the child had serious problems, including
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depression. His former therapist noted that the child was angry
with himself, but also expressed anger at his father. The
therapist noted that the child was doing better while in wife's
custody and that wife had done everything that the therapists
asked her to do. Husband had not been involved in the child's
therapy. The evidence also indicated that the parties agreed
husband should have custody of the parties' daughter and that it
was in her best interests not to reside with her brother. The
commissioner's determination that it was in the best interests of
the children for wife to have custody of the son is supported by
the evidence and will not be disturbed on appeal.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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