COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Alexandria, Virginia
JOE GAINES FOREMAN
MEMORANDUM OPINION * BY
v. Record No. 2092-98-4 JUDGE RUDOLPH BUMGARDNER, III
JULY 27, 1999
KRISTIE K. KETCHUM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
Beth A. Bittel (Law Offices of Beth A.
Bittel, on briefs), for appellant.
Kristie K. Ketchum, pro se.
Joe Gaines Foreman and Kristie K. Ketchum were divorced by
a final decree entered August 14, 1998. The husband appeals the
trial court’s (1) equitable distribution of the marital
residence; (2) classification of the Fidelity Investments IRA
account as marital property; (3) finding that he was at fault;
(4) finding that denial of spousal support would constitute a
manifest injustice; (5) failure to impute income to the wife;
and (6) denial of husband’s motion to reopen. We affirm the
trial court on all issues except its classification of the IRA
account, which we reverse and remand for reconsideration in
light of this decision.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
We view the evidence in the light most favorable to the
wife, the prevailing party below. See Cook v. Cook, 18 Va. App.
726, 731, 446 S.E.2d 894, 896 (1994). The parties married in
1986 when the wife was 28 and the husband was 46; they separated
in March 1997. This was the husband’s third marriage, the
wife’s first. The trial court awarded the wife sole physical
and legal custody of the two children. The parties did not
appeal the custody issues.
The husband was anxious to start a family, but the wife
wanted to continue pursuing her career goals, which included
getting a Ph.D. and maintaining her financial independence. The
wife, who had a master’s degree in Education of the Deaf, worked
full-time at Children's Hospital and part-time at Gallaudet
University. She stayed home for six months after their
children's birth, and subsequently earned $26,000 annually
working part-time at Children's Hospital. By 1996, she had
completed her Ph.D. course work. In October 1997, the wife
commenced employment with the Fairfax County schools. The
husband, who had a Ph.D. in electrical engineering from Johns
Hopkins University, earned $86,000 per year at the Naval
Research Laboratory.
The parties first entered marital counseling in 1988. Dr.
Harvey Oaklander saw them as a couple for three years; he also
saw the husband individually through 1991 and the wife until
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1994. The parties saw two other marital counselors after 1991
and a financial advisor in 1996.
The husband commenced psychoanalysis in 1992 with Dr.
Houston MacIntosh at an annual cost of approximately $18,000
between 1993 and 1996. The wife testified that his therapy was
a source of great discord in the marriage. She testified the
expense had a negative impact on the parties' lifestyle
affecting the food and clothes she purchased and the vacations
they took. It also affected the marriage: the husband's
relationship with his therapist was the most important one in
his life, what they addressed was none of the wife's business,
and for four years he attended sessions 3-4 times per week.
In March 1997, the wife left the marital residence, took
the children, and filed for divorce on the grounds of
constructive desertion and mental cruelty. The husband denied
all allegations of fault and cross-complained alleging adultery.
The wife then amended her complaint to charge adultery.
The trial court referred the issues of fault to a
commissioner in chancery. Both parties excepted to the
commissioner’s May 19, 1998 report. The trial judge conducted
the equitable distribution hearing in June, ruled on the
objections to the commissioner’s report, and entered the final
decree on August 14, 1998. The court denied the husband’s
motion to re-open certain testimony from the equitable
distribution trial.
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The court granted the husband a divorce based on the wife’s
adultery. However, it noted that the wife's adultery was
unrelated to the breakdown of the marriage. The trial court
found that the husband's focus of time and energy on his
psychoanalysis was a significant factor in the breakdown of the
marriage.
In challenging the equitable distribution award, the
husband argues the trial court erred in finding a gift of half
the total equity in the marital residence and in dividing the
residence equally. Equitable distribution awards will be upheld
"unless 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 equities . . . ." Blank v. Blank, 10 Va.
App. 1, 9, 389 S.E.2d 723, 727 (1990).
The wife must prove the husband's donative intent as well
as the nature and extent of his intent. See Lightburn v.
Lightburn, 22 Va. App. 612, 617, 472 S.E.2d 281, 283 (1996)
(citations omitted). “We look to what the words express, not
what the grantor may have intended.” Davis v. Henning, 250 Va.
271, 275, 462 S.E.2d 106, 108 (1995) (citation omitted). See
Capozzella v. Capozzella, 213 Va. 820, 824, 196 S.E.2d 67, 70
(1973) (a deed intended for one purpose is intended "for all
purposes apparent on its face”); Rowe v. Rowe, 24 Va. App. 123,
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137-38, 480 S.E.2d 760, 766-67 (1997). The court may consider
the circumstances in existence at the time a deed is executed,
see Hills v. Brooks, 253 Va. 168, 177, 482 S.E.2d 816, 822
(1997); Davis, 250 Va. at 275, 462 S.E.2d at 108, and any
ambiguity is construed against the grantor. See Phipps v.
Leftwich, 216 Va. 706, 710, 222 S.E.2d 536, 539 (1976).
The husband purchased the marital residence before the
marriage for $184,000. He invested between $70,000 and $75,000
in separate funds in the house before and during the marriage.
The wife contributed to the upkeep and maintenance of the house.
On May 13, 1992, the husband recorded a deed of gift
transferring the house jointly as tenants by the entirety with
right of survivorship.
The wife claims that the parties agreed to title the house
jointly and own it equally if she deferred her career in order
to raise children. Dr. Oaklander characterized the agreement as
a "quid pro quo"; she would defer her "career indefinitely
because she wanted to stay at home . . . in return for the total
equality financially." Ultimately they executed the deed before
the wife’s second pregnancy.
The husband does not dispute that he agreed to put the
wife's name on the house in case he died; he also wanted her to
earn equity in it. He argues, however, that he intended her to
get one-half of all future equity earned during the marriage,
not one-half of its full equity.
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Code § 20-107.3(A)(2)(i) provides that marital property is
"all property titled in the names of both parties whether as
joint tenants, tenants by the entirety or otherwise, except as
provided by subdivision A3." Subdivision (A)(3)(f) provides
"[w]hen separate property is retitled in the joint names of the
parties, the retitled property shall be deemed transmuted to
marital property. However, to the extent the property is
retraceable by a preponderance of the evidence and was not a
gift, the retitled property shall retain its original
classification." (Emphasis added). The court found the
husband's testimony that he did not understand the deed of gift
and only wanted the wife to get part of the house
"disingenuous." See Langman v. Alumni Association of the
University of Virginia, 247 Va. 491, 442 S.E.2d 669 (1994);
Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987) (en banc) (fact finder is judge of witness' credibility).
Notwithstanding his separate contributions, the trial court
found that the husband intended to make an unconditional gift of
one-half of the full equity in the house to the wife because of
the deed. The evidence supports this finding.
In making an equitable distribution award of marital
property, the court must apply the Code § 20-107.3(E) factors.
See Rowe, 24 Va. App. at 138, 480 S.E.2d at 767. It is not,
however, "required to quantify or elaborate exactly what weight
or consideration it has given to each of the statutory factors."
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Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986).
Highlighting some relevant factors, the trial court found
that the wife deferred her career to raise children, delayed
retirement, and helped to maintain the home. It also found that
the husband made a significant non-monetary negative
contribution to the marriage by devoting his time and energy to
his therapy and that he intended to give the wife half the
house.
Clearly, the trial court considered the parties'
contributions to the marriage and the marital residence, the
cause of the breakdown of the marriage, and other appropriate
factors. Because its decision is based on the evidence, we find
no error in its failure to cite to each factor. In light of all
the evidence, we uphold the trial court's equal division of the
marital residence. See Blank, 10 Va. App. at 9, 389 S.E.2d at
727.
We next consider the classification of the Fidelity
Investments IRA. The trial court ruled that the evidence was
insufficient to prove that the IRA was husband's separate
property and classified it as marital property. 1 The husband
1
The trial court ruled that "the evidence was that
[husband] said, he was the only person that contributed to it,
but the evidence was insufficient to show that it was separate
property. I think it was marital property."
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argues the IRA was presumed separate property pursuant to Code
§ 20-107.3(A)(1). We agree.
"[T]he character of property at the date of acquisition
governs its classification pursuant to Code § 20-107.3."
Stratton v. Stratton, 16 Va. App. 878, 881, 433 S.E.2d 920, 922
(1993). "Code § 20-107.3 provides that property . . . acquired
before marriage is presumed to be separate." Barnes v. Barnes,
16 Va. App. 98, 104, 428 S.E.2d 294, 299 (1993).
The husband argues that he acquired the IRA before the
marriage and it earned only passive income during the marriage.
His disclosure form lists the purchase date as 1982; the parties
married in 1986. The wife presented no evidence to show that
the IRA was marital or that it was acquired during the marriage.
There was uncontradicted evidence that the husband acquired
the IRA before the marriage and invested no money in it during
the marriage. By statute, the IRA is presumed separate
property. The trial court erred in classifying it as marital
property and including it in the marital estate. We reverse
this decision and remand the case for reconsideration of the
equitable distribution award in light of this ruling.
Next we consider whether the trial court erred in awarding
the wife spousal support despite her adulterous conduct.
Spousal support may be awarded to a party who has committed
adultery "when the trial court finds by clear and convincing
evidence that denial of support would constitute a 'manifest
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injustice, based upon the relative degrees of fault during the
marriage and the relative economic circumstances of the
parties.'" Rahbaran v. Rahbaran, 26 Va. App. 195, 211-12, 494
S.E.2d 135, 141 (1997) (citing Code § 20-107.1; Barnes v.
Barnes, 16 Va. App. 98, 102, 428 S.E.2d 294, 298 (1993)).
The husband, denying all allegations of fault for the
breakdown in the marriage, challenges the propriety of the
award. Fault "encompasses all behavior that affected the
marital relationship, including any acts or conditions which
contributed to the marriage's failure, success, or well-being."
Barnes, 16 Va. App. at 102, 428 S.E.2d at 298. See also
O'Loughlin v. O'Loughlin, 20 Va. App. 522, 528, 458 S.E.2d 323,
326 (1995).
The court, considering both parties' conduct, found that
the wife's adultery did not cause the dissolution of the
marriage because their relationship had deteriorated to the
point of just living together prior to 1996. The evidence
supports this finding. The parties were in counseling
throughout most of the marriage; the husband thought the
marriage was failing as early as 1992 when he entered therapy;
after 1992, the parties ceased behaving as a couple, doing
things as a family, and having sexual relations; they slept in
separate bedrooms beginning in 1995; and took no family
vacations in 1993, 1994, and 1996.
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The trial court further found that the husband's obsession
with his psychoanalysis was a significant factor in the
breakdown of the marriage. Aside from his own testimony, the
husband presented no evidence that he needed the psychoanalysis.
In fact, Dr. Oaklander testified that in his medical opinion the
husband did not need psychoanalysis. This opinion is supported
by evidence that the husband abruptly terminated his sessions in
1997.
The trial court must also weigh and consider the parties'
comparative economic positions. It expressly noted that the
husband had greater earning capacity and income than the wife.
See Barnes, 16 Va. App. at 103, 428 S.E.2d at 298. Even if she
worked full-time, her salary would only be one-half of his, and
she would have to pay for day care. We find that the court
considered the parties' respective degrees of fault and their
relative economic situations in finding that to deny the wife
support because of her adultery would be manifestly unjust in
this case. The evidence supports the support award.
We next consider whether the trial court erred in failing
to impute income to the wife. The husband contends the wife is
voluntarily underemployed and that the court erred in failing to
determine her earning capacity. We disagree.
In setting or modifying spousal support, a court may impute
income to a party voluntarily underemployed. See Stubblebine v.
Stubblebine, 22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) (en
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banc); Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875,
876 (1994). The court's decision will not be disturbed on
appeal unless plainly wrong or unsupported by the evidence. See
Saleem v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887
(1998). Whether a person is voluntarily underemployed is a
factual determination. In evaluating a request to impute
income, the trial court must "consider [the parties'] earning
capacity, financial resources, education and training, ability
to secure such education and training, and other factors
relevant to the equities of the [parties]." Niemiec v. Dept. of
Soc. Servs., Div. of Child Support Enforcement, 27 Va. App. 446,
451, 499 S.E.2d 576, 579 (1998). Furthermore, the husband has
the burden of proving that the wife was voluntarily foregoing
more gainful employment. See id.
The evidence supports the trial court's finding that the
wife was not voluntarily underemployed and that the parties
agreed that she would not work full-time while the children were
young. The wife provided both monetary and non-monetary
contributions to the family. She was an equal marital partner;
she worked outside the home before and after the children were
born, maintained the household, and cared for the children.
When she perceived her job was in jeopardy, she secured
employment as a “cued speech” educator earning $21,155 annually
on a ten-month contract.
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The husband also failed to establish that the wife
voluntarily rejected full-time employment. His expert testified
that there were three full-time positions available in Fairfax
County where the wife could earn approximately $30,000. The
wife challenged his expert on whether the vacancies were in
"cued speech," her specialized field, how many applications each
position had, and what the competition was for each. Under
these circumstances, the court properly held that the wife had
not unreasonably refused employment for which she was qualified.
See Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d
675, 679 (1990). We affirm the finding that the wife is not
voluntarily underemployed and its decision not to impute income
to her.
Finally, we affirm the denial of the husband's motion to
reopen. He claims that the wife's justification for leaving the
Children's Hospital job was inconsistent with prior statements,
caught him by surprise, and prevented him from presenting
rebuttal evidence. In support of his motion, the husband
proffered testimony from the wife's supervisor that (1) she was
not fired, (2) she voluntarily resigned, and (3) he did not tell
her that her position would be eliminated.
It is within the trial court's discretion to grant or deny
a rehearing. See Hughes v. Gentry, 18 Va. App. 318, 326, 443
S.E.2d 448, 453 (1994) (citation omitted). "[A] petitioner must
show either an 'error on the face of the record, or . . . some
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legal excuse for his failure to present his full defense at or
before the time of entry of the decree.'" Holmes v. Holmes, 7
Va. App. 472, 480, 375 S.E.2d 387, 392 (1988) (quoting Downing
v. Huston, Darbee Co., 149 Va. 1, 9, 141 S.E. 134, 136-37
(1927)).
The wife testified that she left her job because her
supervisor had been fired, she felt her job was in jeopardy,
that it was becoming increasingly difficult to bill insurance
companies for educator services, and that she was advised that
it was "probably time to look around."
Despite the husband's claim that this testimony surprised
him, he did not cross-examine the wife about her alleged prior
inconsistent statements. See Code § 8.01-404. Nor did he
establish that the wife's trial testimony was in fact
inconsistent with her prior statements. Therefore, there is no
justification for the husband's "surprise" or lack of
preparation. The husband also failed to show that his "new"
evidence was "not known or accessible" prior to trial, Hughes,
18 Va. App. at 326, 443 S.E.2d at 453, or that it is likely to
produce a different result. We affirm the denial of this
motion.
For the foregoing reasons, we affirm all issues raised
herein except the classification of the Fidelity Investments
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IRA. We reverse and remand that issue for reconsideration in
accordance with this opinion.
Affirmed in part,
reversed and remanded.
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