COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
CHARLES R. CARPENTER
MEMORANDUM OPINION * BY
v. Record No. 2437-96-3 JUDGE JAMES W. BENTON, JR.
OCTOBER 28, 1997
JUDY ANN SMITH CARPENTER
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge
Harry F. Bosen, Jr. (Harvey S. Lutins;
Stephen B. Hebblethwaite; Lutins, Shapiro &
Kurtin, on brief), for appellant.
Terry N. Grimes (King, Fulghum, Snead, Nixon
& Grimes, P.C., on brief), for appellee.
On this appeal from a final decree of divorce, Charles R.
Carpenter argues that the trial judge erred in decreeing as to
the property of the parties. Specifically, the husband contends
that the trial judge erred in: (1) compelling him to restore
marital funds that he used for payment of indebtedness while the
case was pending; (2) disregarding the testimony of a
court-appointed expert regarding the appraisal of husband's
business and accepting the valuation of a competing expert; (3)
placing a higher value on two automobiles than warranted by the
evidence; and (4) ordering the husband to make a lump sum payment
within six months to his wife, Judy Ann Smith Carpenter, when no
evidence revealed that the husband could do so without obtaining
a loan. The wife argues that the husband's appeal should be
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
dismissed because the husband failed to file an appeal bond with
surety as required by Rule 5A:17 and Code § 8.01-676.1. For the
reasons that follow, we affirm the decree.
EXPENDITURE OF MARITAL FUNDS
On January 9, 1995, three months after the wife filed a bill
of complaint for divorce, the trial judge enjoined the parties
"from selling, secreting, encumbering, or otherwise disposing, in
whole or in part, of marital property during the pendency of
these proceedings." The evidence proved that as of May 31, 1995,
the parties' marital assets included a PaineWebber account with a
balance of $67,792.77. The husband testified, however, that
between May 1995 and March 1996 he used $23,000 from the account
to pay various debts. Specifically, the husband said he paid
$8,500 toward a tax lien, $7,090 in real estate taxes on rental
properties, $5,500 on a note secured by one of the properties,
and $8,200 for personal expenses. He testified that the
remaining balance in the PaineWebber account was $35,699.
The trial judge found that the parties' PaineWebber account
was marital, valued the account at $68,265, and found that the
husband had withdrawn $32,565.24 from the account in violation of
the January 9, 1995 order. Finding that the husband had violated
the order not to dissipate the marital assets, the trial judge
awarded the wife $35,699.76. To restore the funds the husband
had withdrawn in violation of the order, the trial judge awarded
the husband the amount of his expenditure, $32,565.24.
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The husband argues that because he withdrew $23,000 from the
PaineWebber account to pay marital debts, he met his burden of
proving that the funds were spent for a proper purpose.
Therefore, he argues, the trial judge abused her discretion in
allocating the expenditure solely to the husband.
Unless "plainly wrong or without evidence to support it,"
the trial judge's finding of fact that underlies an equitable
distribution award will be upheld. Srinivasan v. Srinivasan, 10
Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). Although the
husband argued that he used the money to pay marital debts, the
only evidence that he did so is his own testimony. The husband
provided no other evidence to support this assertion. He offered
no statements, receipts, or checks. Furthermore, the record
contains no specific identification of the particular debts that
were owed or that the husband said he paid. Without proof that
the debt was marital and that the money was, in fact, used to pay
those debts, the trial judge was not required to accept the
husband's testimony that he used the money to discharge marital
debts. As the trier of fact, the trial judge had to decide the
issue of the witness' credibility. See Klein v. Klein, 11 Va.
App. 155, 161, 396 S.E.2d 866, 869 (1990).
Moreover, the husband did not seek permission from the trial
judge before liquidating the marital assets, and he did not
confer with his wife before invading the account. The husband
did not have checks issued directly from the PaineWebber account
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to any marital creditors, and he admitted that he used part of
the money for his personal use. In the absence of documents
establishing the payment of marital expenses and in view of the
husband's admission that he paid some of his personal bills, we
find no basis to reverse the trial judge's findings. When "[t]he
credibility of witnesses was crucial to the determination of the
facts, . . . the findings of the trial [judge] based upon the
judge's evaluation of the testimony of witnesses heard ore tenus
are entitled to great weight." Shortridge v. Deel, 224 Va. 589,
592, 299 S.E.2d 500, 502 (1983).
"Dissipation [of marital funds] occurs 'where one spouse
uses marital property for his own benefit and for a purpose
unrelated to the marriage at a time when the marriage is
undergoing an irreconcilable breakdown.'" Clements v. Clements,
10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990) (quoting Hellwig
v. Hellwig, 426 N.E.2d 1087 (1981)). Furthermore, we have held
that "[o]nce the aggrieved spouse shows that the marital funds
were either withdrawn or used after the breakdown, the burden
rests with the party charged with dissipation to prove that the
money was spent for a proper purpose." Clements, 10 Va. App. at
586, 397 S.E.2d at 261; see also Amburn v. Amburn, 13 Va. App.
661, 666, 414 S.E.2d 847, 850 (1992). When the trial judge finds
that one of the parties has dissipated marital funds, the trial
judge does not err in adding that value to the marital estate
when making the monetary award. Stroop v. Stroop, 10 Va. App.
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611, 615, 394 S.E.2d 861, 863 (1990). Accordingly, we hold that
the trial judge did not abuse her discretion in ordering the
husband to restore funds he withdrew in violation of the judge's
order.
VALUATION OF BUSINESS
David P. Lucas, a certified public accountant, was selected
to prepare a report valuing Vinton Roofing and Remodeling, a
business that was marital property. Lucas reviewed the
corporation's tax returns for the previous five years,
interviewed the accountant who had prepared the tax returns, and
met with the husband to discuss the business. In addition, Lucas
reviewed the corporation's books, inspected its equipment, and
inquired about the realty held by the corporation. Lucas
reported that the business had a market value of $45,533,
excluding any real estate. Lucas also reported that the real
estate had a net equity value of $10,347. Lucas conceded that
another expert might find that the market value of the business
was substantially greater.
Hope Player, another certified public accountant, testified
that she reviewed Lucas' report and also reviewed the corporate
tax returns of the business. She did not conduct an independent
valuation of the business. Player valued the business at
$172,988, basing her higher appraisal on the consideration of the
business' revenue and profit generating capability and the value
of the assets of the business. Stating that she gave
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consideration to the testimony of both experts, the trial judge
accepted Player's analysis and valued the business at $172,988.
A trial judge's resolution of conflicting expert testimony
is a question of fact and will not be disturbed on appeal unless
plainly wrong. See Frazer v. Frazer, 23 Va. App. 358, 366, 477
S.E.2d 290, 293-94 (1996). Contrary to the husband's argument,
the trial judge was not required to reject Player's analysis.
Both analyses were fully explained in testimony and by the
experts' reports. The evidence before the trial judge required a
resolution of conflicting valuations. The trial judge was not
plainly wrong in accepting Player's analysis and rejecting Lucas'
valuation. Because the evidence in the record amply supports the
trial judge's finding that the corporation had a value of
$172,988, we affirm the ruling.
VALUATION OF AUTOMOBILES
Richard Mayo, a dealer in "collectible" cars, testified that
he appraises vehicles. Based upon his review of photographs,
Mayo testified that the value of the husband's reproduction
Oldsmobile was between $1,500 and $3,000 and that the value of
the Metz was between $2,500 and $5,000. He testified that a
restored Metz would be worth $10,000. The husband testified that
he purchased the Oldsmobile for $1,500 and that the high bid for
the Metz at an auction was $3,600. The trial judge valued the
vehicles at $9,500.
A trial judge may select a value within a range of
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conflicting opinions. See Zipf v. Zipf, 8 Va. App. 387, 395, 382
S.E.2d 263, 268 (1989). The trial judge had credible evidence of
value to base her finding and was not required to reject it
merely because the husband believed his evidence was more
persuasive. See id. According to the testimony of Mayo, the
combined values for the cars was between $6,500 and $13,000. The
value the trial judge placed on the cars was within the range of
values attributed to the cars by the expert. Thus, the evidence
supported the trial judge's valuation.
LUMP SUM PAYMENT
In the final order, the trial judge found that the husband
possessed $854,665 in marital assets and the wife possessed
$130,585 in marital assets. Ordering a distribution of the
assets' value, the judge found that the husband owed the wife
$361,975. As partial satisfaction of the award, the judge
ordered the wife to select eight parcels of real estate. To
satisfy the remainder of the award, the husband was ordered to
make a lump sum payment to the wife equal to the difference
between the equity value of the properties selected by the wife
and the sum of $361,975. The payment was to be made within 180
days of April 5, 1996.
The trial judge may, in her discretion, order that a
monetary award be payable as a lump sum or in periodic fixed
amounts. See Code § 20-107.3(D); Brinkley v. Brinkley, 5 Va.
App. 132, 135, 361 S.E.2d 139, 140 (1987). In this case, the
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trial judge ordered the husband to make a lump sum payment of
over $100,000 to the wife within 180 days. The husband argues
that he would have to obtain an institutional loan to make this
payment and, therefore, should be allowed to satisfy the award in
twelve monthly installments.
In his statement of objections, the husband stated that he
did not object to the "monetary sum decreed by the Court" and
that the "source of funds to make such monetary payment is the
real property." The evidence proved, however, that the husband
had sufficient assets that he could liquidate to satisfy the
award, including selling some of his real property. Accordingly,
the trial judge did not abuse her discretion in ordering the
husband to pay the award within 180 days.
BOND ISSUE
The wife's argument that the husband's appeal bond is
defective is moot. After the wife filed her brief, the husband
filed a replacement bond. The new bond secures the costs of
appealing from the September 5, 1996 judgment and is in proper
form.
In summary, we affirm the trial judge's decree ordering the
husband to restore the marital funds dissipated from the
PaineWebber account, valuing the business and vehicles, and
awarding a lump sum to the wife to be paid within 180 days. In
addition, however, we remand the case to the trial judge for
consideration of appellee's request for her attorney fees
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expended on this appeal.
Affirmed and remanded.
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