COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Overton
Argued at Alexandria, Virginia
ALVIN EDWARD NIEDER
MEMORANDUM OPINION * BY
v. Record No. 1248-95-4 JUDGE JAMES W. BENTON, JR.
JUNE 18, 1996
MYEONG YAE NIEDER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
John P. Snider (Alvin E. Nieder, pro se, on
briefs), for appellant.
James Ray Cottrell (Gannon, Cottrell & Ward,
P.C., on brief), for appellee.
Alvin E. Nieder appeals from a final decree of divorce. He
contends that the trial judge failed to equitably distribute the
parties' assets, erred in the awards of spousal and child
support, and awarded excessive attorney's fees to his wife,
Myeong Nieder. Upon reviewing the fourteen issues he presents,
we affirm thirteen of the trial judge's rulings. We reverse one
of the trial judge's rulings and remand for the trial judge to
grant to the husband credit for the fair market rental value of
the family's residence from the date of the divorce to the date
the residence is sold.
The parties married in 1980 in Korea while the husband was
in the military. They have two children: a son, born April 18,
1981, who is institutionalized with a neurological disorder and a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
daughter, born September 23, 1983, who currently lives with her
mother. During the marriage, the husband was verbally and
physically abusive to the wife and children. On January 9, 1994,
the wife obtained an emergency protective order against the
husband. They have been separated since that time. The wife
filed for a divorce in February 1994. On January 25, 1995, a
judge ruled that the husband abused his two children and
prohibited the husband from entering the home without a further
order.
Following equitable distribution and support hearings, the
trial judge made various rulings and awards reflected in the
final decree of divorce entered May 10, 1995. The husband
alleges that the trial judge committed fourteen reversible
errors. Much of the husband's appeal is based upon his claim
that his separate assets were incorrectly classified as marital
property.
On appeal, "[w]e are guided by the principle that decisions
concerning equitable distribution rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence." McDavid v.
McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994).
Under Code § 20-107.3(A)(2), "[a]ll property acquired by either
spouse during the marriage is presumed to be marital property in
the absence of satisfactory evidence that it is separate
property." Stroop v. Stroop, 10 Va. App. 611, 614-15, 394 S.E.2d
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861, 863 (1990). "Separate property is . . . all property
acquired by either party before the marriage." Code
§ 20-107.3(A)(1). Consistent with these principles, we address
the issues in the order the husband briefed them.
1. Husband's contribution to purchase of current residence.
The evidence proved that prior to the marriage, the husband
had funds in a Merrill Lynch account and an Ent Federal Credit
Union account. During the marriage he opened several other
accounts and transferred funds from one account to another. Some
of the funds transferred among these accounts came from the
husband's sister and the husband's property investments.
In 1982, the parties moved to Virginia and bought a house in
Lorton, using money from the Merrill Lynch account to make the
down payment. The parties sold the home in 1988 when the husband
was restationed in Korea and they deposited the proceeds into a
joint stock account. When the parties returned from Korea, some
of those proceeds, as well as money from other accounts, were
then used to purchase the current residence.
In determining the husband's separate contribution to the
current residence, the trial judge found "that $40,800 of [the
husband's investment] retains its separate property character."
Just prior to making this finding the trial judge stated to both
attorneys: "[d]on't let me commit errors here, if I'm clearly
committing an error, stop me . . . I don't mean on how much, but,
if I'm doing something I can't do under [Code § 20-]107.3, I want
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you to let me know." Husband's counsel did not object to the
trial judge's valuation of the separate property during the
evidentiary hearing. Husband first contested this ruling after
entry of the final decree when he filed a motion to reconsider.
The evidence supporting the husband's claim that he took
funds from a separate account and applied them to the home
purchase was his oral testimony and inferences argued from a very
incomplete financial trail. During the evidentiary hearing, the
husband produced copies of three checks which totaled $43,014.65
and testified that the source of those checks was his separate
property. The trial judge rejected as evidence documents
identified as check stubs that contained handwritten notations by
the husband. The record did not contain a settlement statement
showing $48,000 in payments that the husband asserts were
separate funds.
The checks that the husband contends were used to purchase
the house were payable to the husband. No evidence, save the
husband's testimony, established the purpose for which the checks
were drawn and used. The trial judge was not required to accept
his testimony. Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d
866, 869 (1990). On this evidence, we cannot say that the trial
judge was plainly wrong in finding that only $40,800 retained its
separate property character. Keyser v. Keyser, 7 Va. App. 405,
409, 374 S.E.2d 698, 701 (1988).
2. The American Securities Bank account
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The evidence proved the husband opened an American
Securities Bank account in 1993 and deposited $35,000 from his
Pentagon Federal Credit Union account. A January 1994 statement
revealed that the American Securities account balance was
$6,851.36. The husband testified that he had transferred money
to the Ent Federal Credit Union to pay bills. However, the
evidence does not establish the amount of the transfers. The
record also does not contain any other statements of transactions
involving the American Securities account.
Without evidence to establish the source of the account
balance and evidence to prove that other transactions did not
result in changes in the American Securities account, husband has
not adequately proved his claim that the account retained its
separate character. The evidence proved that moneys were moved
in and out of all the accounts frequently. Therefore, the trial
judge did not err in classifying the remaining funds in the
account as marital property.
3. The Ent Federal Credit Union Savings account
The husband contends that his Ent Federal Credit Union
Savings account, opened in 1978, retained its characteristic as
separate property. The evidence failed, however, to establish
the account's balance prior to the marriage. The evidence
indicates that the husband deposited funds into this account in
October 1993 from the Pentagon Federal Credit Union account. He
contends that the funds were separate property. However, the
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account statements include numerous withdrawals from and deposits
to the accounts that were never explained at trial. The husband
admitted that during the marriage there were "a whole series of
money transfers [between different accounts depending upon]
whichever savings account paid the highest interest rate."
Although the husband's counsel argued that various other
separate properties were transferred into this account, the
evidence did not prove any of these transactions. Based upon the
evidence that a "whole series of money transfers" occurred, we
cannot say that the evidence proved that the property was
separate. See Code § 20-107.3(A)(2). Thus, the trial judge did
not abuse his discretion by classifying the account as marital
property and considering its value in making a monetary award.
4. The Marital Share of the Military Pension
Pursuant to Code § 20-107.3(G)(1), the trial judge awarded
the wife fifty percent of the marital share of the husband's
military pension. The husband contends that 55.8 percent of the
total pension represents the marital share and that the trial
judge erred in finding the marital share to be 56.2 percent.
The small difference between the two figures arises because
of an uncertainty as to when the husband began earning his
military pension. The record reveals that the trial judge and
counsel considered this problem and after discussion arrived at
the 56.2 percent figure. We find no evidence that this ruling
was plainly wrong and, thus, will not disturb it. McDavid, 19
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Va. App. at 407-08, 451 S.E.2d at 715.
5. Crediting the husband for mortgage payments
After the separation, both parties refused to pay the
mortgage for several months. The original pendente lite order
did not direct the husband or the wife to pay the mortgage. In
May of 1994, the trial judge held a hearing to modify the
pendente lite order and ordered the wife to pay the mortgage.
However, in the final decree of divorce, the husband and wife
were each ordered to pay fifty percent of the mortgage.
From the time of the divorce, both parties have owned the
residence as tenants in common. Code § 20-111. The wife has
enjoyed exclusive possession of the house since the divorce and
only paid half of the mortgage. We have held in similar
circumstances that the husband should receive "the fair market
rental value of [his] interest in the property." Gaynor v. Hird,
15 Va. App. 379, 382, 424 S.E.2d 240, 243 (1992). Accordingly,
we remand this issue to the trial judge to grant to the husband a
similar credit from the date of divorce until the property's date
of sale. See id.
6. Classifying the Pentagon Federal Credit Union
At trial husband's counsel conceded "that $25,000 [in the
Pentagon account] was marital" property. The husband now
contends that he was entitled to all of those funds because he
paid for marital expenses, including the mortgage and attorney's
fees, out of this account. At the time of his ruling, the trial
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judge was aware of these payments. He did not abuse his
discretion by dividing the account equally between the parties.
7. Classification of the Individual Retirement Account
The husband claims that his IRA in Olde Discount Corporation
contained only his separate property. However, he opened the
account after the marriage. The evidence did not trace the funds
in this account and did not prove by a preponderance of the
evidence that the account was not a marital asset. Code
§ 20-107.3(A). In his brief, the husband cites to a chart as
"coherent [and] concise [proof] of each IRA contribution" but
that exhibit was never introduced into evidence. Furthermore,
the evidence did not prove the origin of the funds. The husband
had the burden of proving at trial that the IRA was separate
property. Code § 20-107.3(A). He did not do so.
The husband also complains that the trial judge valued the
account at the time of the hearing instead of the separation
date. Under Code § 20-107.3(A), "[t]he court shall determine the
value of any [assets] as of the date of the evidentiary hearing."
The trial judge properly determined the value of the IRA at the
time of the evidentiary hearing and did not abuse his discretion
in classifying or valuing the IRA.
8. Classifying the Olde account
In his brief, the husband argues that his Olde account
should be classified as separate. At trial he introduced
numerous account statements and other financial data regarding
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this account that he opened during the marriage. In his brief he
states that he received all of the money from his sister.
However, the record does not establish that he traced the money
in the account and proved that the account did not constitute
marital property. The testimony of the husband and his sister
was confusing and not well supported by documents. Thus, we hold
that the trial judge was not plainly wrong in classifying the
account as marital.
9. Calculating the Marital Equity in the Vehicles
The husband claims that the trial judge inequitably divided
the couple's two vehicles by finding that "[a]s far as the two
cars, you keep what you have and you're responsible for the
debt." The fact that the amount of equity in the two cars was
unequal does not establish that the trial judge was plainly
wrong. We find no abuse of discretion.
10. Classifying the funds invested in the first residence
The husband and wife partially financed the current
residence with the proceeds from the sale of their first home.
The husband contends that he invested $10,925 from his separate
Merrill Lynch account into the first home and is entitled to
credit for that investment. The husband attempted to trace his
investment with only his oral testimony and did not support his
claim by providing proof of the source of those funds. Based
upon the husband's testimony, the trial judge did not err in
classifying all the proceeds from the first home as marital. See
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Klein, 11 Va. App. at 161, 396 S.E.2d at 869.
11. Credit for the assets the husband owned prior to the marriage
Prior to determining how the assets should be divided, the
trial judge acknowledged that "[the husband] definitely had
considerable property at the beginning of the marriage." The
husband argues that the trial judge did not, however, consider
his separate assets brought into the marriage. This aspect of
the case is a general appeal of the trial judge's decision and is
not directed at any particular asset.
The trial judge noted that "[i]t's hard to me to imagine on
a relatively small estate a more complicated situation than this
one. I've never seen more transfers and money going around."
The record supports the trial judge's finding that the husband
constantly shifted funds in and out of his various bank and
brokerage accounts. In an appeal from an equitable distribution
decree, "we rely heavily on the discretion of the trial judge in
weighing the many considerations and circumstances that are
presented in each case." Artis v. Artis, 4 Va. App. 132, 137,
354 S.E.2d 812, 815 (1987). Due to the confusion over where
different funds were shifted and the husband's failure to
adequately trace these assets, we hold that the trial judge did
not err in refusing to award the husband greater credit for his
claim of separate assets.
12. Spousal support
Determining the amount of spousal support rests "within the
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sound discretion of the trial [judge] and will not be reversed on
appeal unless plainly wrong or unsupported by the evidence."
Floyd v. Floyd, 17 Va. App. 222, 224, 436 S.E.2d 457, 458 (1993).
The trial judge must consider the factors in Code § 20-107.1,
but is not required to recite specific findings from the evidence
relative to each factor or assign the weight accorded to it.
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986).
The record establishes that the husband retired from the
Army in 1991 and is now fully employed. The wife is a registered
nurse. During the marriage, the husband paid the household bills
and mortgage and the wife paid for things such as family
clothing, the children's lessons and entertainment and food. The
trial judge heard extensive evidence regarding the equitable
distribution of the parties' property and the financial
circumstances of the parties. The award of $600 in monthly
spousal support was based upon competent evidence presented at
trial. See Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d
518, 523 (1988). The evidence at trial touched upon all of the
factors enumerated in Code § 20-107.3(E). When such substantial
evidence exists, we will not reverse the trial judge's decision.
Id.
13. Child support
Both parties presented evidence and argued over the actual
cost of child care and the proper amount of child support. The
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trial judge found the wife's $333 monthly payment for child care
a legitimate cost. The trial judge also lowered by $200 the
total amount of child support calculated under the support
guidelines because of the son's institutionalization. Based on
the evidence in the record, the trial judge committed no error in
ordering the husband to pay $856 per month in child support.
14. Attorney's fees
"The allotment of costs and attorney's fees is a matter
within the sound discretion of the trial court." D'Auria v.
D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986). Based
upon the evidence at the extensive hearings, we find no support
for the husband's contention that the trial award of $12,000 in
attorney's fees was excessive and plainly wrong.
For these reasons, we reverse and remand this case with
direction to the trial judge to award the husband credit for his
portion of the fair rental value of the residence accruing after
the entry of the divorce decree. All other rulings by the trial
judge are affirmed.
Affirmed in part,
reversed in part
and remanded.
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