COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
VIRGINIA JOYCE MILLER SMITH
MEMORANDUM OPINION *
v. Record No. 1111-97-3 PER CURIAM
NOVEMBER 10, 1997
RANDOLPH MCDONALD SMITH
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Glen A. Tyler, Judge
(Harvey S. Lutins; Jonathan S. Kurtin;
J. Emmette Pilgreen, IV; Charles N. Dorsey;
Lutins, Shapiro & Kurtin, on brief), for
appellant.
(Charles B. Phillips; Phillips & Swanson, on
brief), for appellee.
Virginia Joyce Miller Smith appeals from the trial judge's
equitable distribution decision. She contends that the trial
judge erred by (1) valuing her business at $140,000; (2) finding
the Mason's Creek property to be the separate property of her
husband, Randolph McDonald Smith; and (3) failing to award her
attorney's fees. 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.
Business Valuation
The wife contends that no evidence supported the trial
judge's determination that her clothing business had a value of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
$140,000. We disagree. The trial judge considered the evidence
produced at the hearing, including the testimony of the parties'
expert witnesses. That evidence proved that in 1985 the wife and
her business partner invested approximately $140,000 for the
business, inventory, equipment, and an agreement not to compete.
The evidence also proved that the business' sales increased
during the five years prior to the evidentiary hearing. Although
a revolving line of credit was available to purchase inventory,
no evidence proved that was a debt that remained outstanding.
Approximately $31,000 in accounts payable existed as of the time
of the hearing.
The trial judge determined the value of the wife's share in
her business within the range supported by the evidence.
Although the wife estimated that the business was worth $10,000,
the trial judge found that value unrealistic because it was "an
evaluation for the total business at a figure less than half of
the amount of her annual salary withdrawn from the enterprise."
"It is well established that the trier of fact ascertains a
witness' credibility, determines the weight to be given to their
testimony, and has the discretion to accept or reject any of the
witness' testimony." Street v. Street, 25 Va. App. 380, 387, 488
S.E.2d 665, 668 (1997). Furthermore, the principle is well
established that "[t]he finder of fact is not required to accept
as conclusive the opinion of an expert." Lassen v. Lassen, 8 Va.
App. 502, 507, 383 S.E.2d 471, 474 (1989). The trial judge
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considered and weighed the testimony of the wife and the experts.
We find the trial judge's valuation of wife's business supported
by the evidence.
Classification of Mason's Creek Real Estate
Under Code § 20-107.3(A)(1)(ii), separate property includes
"all property acquired during the marriage by bequest, devise,
descent, survivorship or gift from a source other than the other
party." The husband proved that his mother deeded the property
on Mason's Creek to him during the parties' marriage. Although
the deed recited consideration of $15,000, husband testified that
the property was a gift and that he did not pay any money to his
mother as consideration. The wife asserted that the husband used
marital funds to obtain this property. However, the husband's
mother corroborated the husband's testimony in her deposition.
The trial judge found husband's testimony credible,
particularly in light of the mother's pattern of giving husband,
wife, and their children each $10,000 annually. The testimony
regarding the annual giving and the lack of payment for the
property was credible and rebutted the presumption that the facts
set out in the deed were accurate. See Code § 8.01-389.
The wife also claimed that she made extensive renovations to
the property and cleaned and repaired the home after it sustained
flood damage. On this basis, the wife asserted that the property
became partly marital property. The statute provides that
[t]he increase in value of separate property
during the marriage is separate property,
unless marital property or the personal
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efforts of either party have contributed to
such increases and then only to the extent of
the increases in value attributable to such
contributions. The personal efforts of
either party must be significant and result
in substantial appreciation of the separate
property if any increase in value
attributable thereto is to be considered
marital property.
Code § 20-107.3(A)(1).
Although the wife testified that her efforts increased the
value of the Mason's Creek property after a flood, her testimony
proved that both she and the husband restored the property. Upon
review of the testimony, we cannot say that the wife presented
evidence to require a finding as a matter of law that there was a
substantial appreciation in the value of the home due to her
significant personal efforts. Accordingly, we conclude that
credible evidence supports the trial judge's classification of
this property as husband's separate property.
Attorney's Fees
An award of attorney's fees 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, 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). The trial judge noted that the
parties had individual financial resources and declined to order
either to pay the other's fees. We cannot say that this decision
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was unreasonable or that the trial judge abused his discretion.
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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