COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
OSCAR MARION BARBER
v. Record No. 1017-95-2 MEMORANDUM OPINION *
PER CURIAM
LAURA BURNSIDE BARBER NOVEMBER 28, 1995
FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
John M. Folkes, Judge
(Jeffrey M. Steingold, on brief), for appellant.
(Henry A. Conner, Jr., on brief), for appellee.
Oscar Marion Barber appeals the decision of the circuit
court finding fraud on the part of Laura Burnside Barber. The
commissioner found, and the circuit court confirmed, that Laura
had fraudulently induced Oscar to convey to her his interest in
property owned jointly. On appeal, Oscar raises the following
issues: (1) whether the trial court erred in refusing to order
Laura to pay rent to him for the time she occupied the property
following the fraudulent conveyance; and (2) whether the trial
court erred in refusing to award Oscar attorney's fees and costs.
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. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Recovery of Rent
Oscar sought to recover rent from Laura as part of the
equitable distribution of the parties' marital estate. "In
reviewing an equitable distribution award on appeal, we recognize
that the trial court's job is a difficult one. Accordingly, 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). Upon entry of the divorce decree, property formerly held
by the spouses as joint tenants or tenants by the entirety is
converted into a tenancy in common. Code § 20-111. We have
ruled that, under some circumstances, a party who retains
exclusive possession of property formerly jointly held may be
liable to the other tenant for rent. See, e.g., Gaynor v. Hird,
15 Va. App. 379, 382, 424 S.E.2d 240, 242 (1992); see also Code
§ 8.01-31. However, those cases are distinguishable from the
situation in this case.
The trial court found Laura had defrauded Oscar out of his
share of the property formerly owned by the parties as joint
tenants. As Oscar acknowledged, Laura did not receive rent
during Oscar's absence, although Laura was sharing the house with
another man. There was no corpus of collected rents upon which
to impose a constructive trust or for which Laura had a fiduciary
duty to account. Moreover, regardless of the fraud perpetrated
by Laura, Oscar would not have been residing in the home for a
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period of time prior to the parties' divorce due to his
incarceration.
The fraud perpetrated by Laura was remedied by the recision
of the deed to Laura as femme sole and the subsequent equitable
distribution of the property. We cannot say the trial court
abused its discretion in denying Oscar's request for the value of
rental income during the time he was incarcerated.
Attorney's Fees and Costs
Awards of attorney's fees or costs are matters submitted to
the sound discretion of the trial court and reviewable on appeal
only for an abuse of discretion. 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.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985). The trial court held Laura "solely responsible and
liable for all liens, notes, debts and other obligations
including clouds of title which she caused to be incurred" upon
the parties' property. Based upon this holding, the evidence
presented and the number of issues involved, we cannot say that
the trial judge abused his discretion in not also ordering Laura
to pay Oscar's costs or attorney's fees.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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