Wagner v. Wagner

Barrow, X,

dissenting.

Revaluing the marital assets after an appeal to redetermine a monetary award may result in an inequitable monetary award if the factors that must be considered under Code § 20-107.3 are not also re-evaluated to reflect changes that may have occurred while the appeal was pending. Furthermore, the “marital partnership” justifying the award of a monetary sum based, in part, on the value of the assets acquired during a marriage, terminates upon divorce; therefore, a monetary *125award based on the value of assets several years after a divorce is inconsistent with thé purpose of Code § 20-107.3.

The valuation of marital assets required under Code § 20-107.3 provides the foundation for “a fair and equitable monetary award based upon the equities and the rights and interests of each party in the marital property.” Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987). Generally, in order to determine the value of the assets, a valuation date should be selected that will provide the court “with the most current accurate information available which avoids inequitable results.” Id.

Usually, the “value of the assets determined as near as practicable to the date of [the original] trial” is the most current and accurate value available. Id. Occasionally, a date “prior to the date of trial” should be selected as the date on which to value the assets if the “values determined upon the date of trial may result in a monetary award which is not ‘fair and equitable.’ ” Id.

This rule, now codified by statute,3 guides the selection of the date for valuing the parties’ assets between the date of their marital separation and the date of their divorce; however, to construe this rule to require the assets to be revalued upon a remand following an appeal may create, not avoid, “inequitable results.” The monetary award is based, not only on the value of the parties’ assets, but on various factors enumerated in Code § 20-107.3(E). As the value of the assets may have changed while the appeal was pending, so too may the factors identified in Code § 20-107.3(E), especially the contributions of each party in the care and maintenance of the marital property; the ages, physical and mental condition of the parties; the debts and liabilities of each of the parties; the liquid and non-liquid character of the marital property; and the tax consequences to each party. See Code § 20-107.3(E). Thus, reconsidering the value of the assets without reconsidering the factors in Code § 20-107.3(E) “may result in a monetary award which is not ‘fair and equitable.’” Mitchell, 4 Va. App. at 118, 355 S.E.2d at 21.

In this case, the commissioner, whose recommendations the trial court adopted, redetermined only the value of the husband’s stock in Landmark Communications, Inc. and TeleCable Corporation and the value of the wife’s interest in her father’s shopping center. He did not *126revalue any other assets, nor did he reconsider any of the factors in Code § 20-107.3(E). Instead, he simply applied the same percentage factor he had determined at the evidentiary hearing held before the appeal to the new values he found for the husband’s stock after the appeal. In my opinion, the trial court erred in making a monetary award based on this determination.

The selection of a valuation date following an appeal involves different considerations than those involved in selecting a valuation date upon termination of the marriage. “The marital partnership notion terminates with the termination of the marriage.” Reid v. Reid, 1 Va. App. 553, 565, 375 S.E.2d 533, 540 (1989); see also Marion v. Marion, 11 Va. App. 659, 668, 401 S.E.2d 432, 438 (1991); Stainback v. Stainback, 11 Va. App. 13, 21-22, 396 S.E.2d 686, 691-92 (1990). The purpose of Code § 20-107.3 is to distribute equitably the marital property accumulated at that time. Reid, 7 Va. App. at 565, 375 S.E.2d at 540. The parties’ future “has no bearing on the issue of the appropriate division of what has been accumulated by their contributions during the marriage.” Id. Therefore, a marital award should be carefully determined following an appeal so as not to include inadvertently the events occurring or property acquired after termination of the marriage and at the same time compensate the party entitled to the award for any loss of use of the award during the pendency of the appeal.

Generally, these goals can best be accomplished by using the original date selected for valuing the assets and, if determined correctly initially, using the same values to redetermine the monetary award. Any loss of use can be compensated for by allowing interest on the award from the date of the original decree. If, because of unusual circumstances, such as artificially depressed values, use of the original values would result in an inequitable award upon remand, the trial court may select another date for valuing the assets that will produce an equitable monetary award, as indicated by the considerations required by Code § 20-107.3(E), If a different date is used, the factors to be considered under Code § 20-107.3(E) should be reconsidered to reflect any changes occurring between the original valuation date and the new date.

For these reasons, I would reverse the trial court’s monetary award and remand this matter for a redetermination of the monetary award in a manner consistent with the principles expressed in my opinion. Therefore, I dissent from the majority’s decision.

Code § 20-107.3(A); Gaynor v. Hird, 11 Va. App. 588, 593 n.1, 400 S.E.2d 788, 791 n.1 (1991).