COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Petty
Argued at Salem, Virginia
DELORES A. SCARBERRY
MEMORANDUM OPINION * BY
v. Record No. 1292-08-3 JUDGE WILLIAM G. PETTY
JANUARY 27, 2009
JOEY SCARBERRY
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Teresa M. Chafin, Judge
Michael L. Dennis (Robert M. Galumbeck; Galumbeck, Necessary,
Dennis & Kegley, on brief), for appellant.
Russell Vern Presley, II (Street Law Firm, on brief), for appellee.
Delores Scarberry, wife, appeals the final decree of divorce equitably distributing marital
property, denying spousal support, and awarding primary physical custody of the parties’ minor
child to Joey Scarberry, husband. On appeal, wife contends that the trial court erred by
(1) improperly classifying two farms owned by husband as separate property; (2) finding that
husband did not own any certificates of deposit at the time of separation and finding that
transferring the certificates he jointly owned with his father into his father’s sole name did not
constitute waste; (3) finding that the husband did not own any livestock at the time of separation;
(4) denying spousal support; and (5) failing to appoint a guardian ad litem to represent the
interests of the child during the custody proceedings. For the foregoing reasons, we disagree
with wife and affirm the trial court’s final decree.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.
We view those facts and incidents “in the ‘light most favorable’ to [husband] and grant to [him]
the benefit of ‘all reasonable inferences fairly deducible therefrom.’” Marvin v. Marvin, 51
Va. App. 619, 621, 659 S.E.2d 579, 584 (2008) (quoting Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)). “That principle requires us to
‘discard the evidence’ of [wife] which conflicts, either directly or inferentially, with the evidence
presented by [husband] at trial.” Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833,
835 (2003) (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162
(2002)). ‘“Where, as here, the court hears the evidence ore tenus, its finding is entitled to great
weight and will not be disturbed on appeal unless plainly wrong or without evidence to support
it.’” Broadhead v. Broadhead, 51 Va. App. 170, 178, 655 S.E.2d 748, 751-52 (2008) (quoting
Hatloy v. Hatloy, 41 Va. App. 667, 671, 588 S.E.2d 389, 391 (2003)).
I. ANALYSIS
A. Equitable Distribution
“Because the trial court’s classification of property is a finding of fact, that classification
will not be reversed on appeal unless it is plainly wrong or without evidence to support it.”
Ranney v. Ranney, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005) (citing McDavid v.
McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994); Srinivasan v. Srinivasan, 10
Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).
Husband’s Farms
Prior to the marriage, husband acquired two farms. Husband’s father paid for both farms
and deeded them in husband’s name alone. Wife argues that the farms are marital property
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because they appreciated in value due to the significant personal efforts of husband. She
contends that husband’s father bought the farms for husband in exchange for husband’s services
in conducting his father’s business throughout the marriage. She asserts that “[c]learly, . . . a
quid pro quo existed between the husband and his father.” Wife concludes that husband earned
the farms because of the significant personal efforts he expended during the marriage, which
transmuted the property from separate to marital property. However, the trial court found that
the farms were husband’s separate property and wife did not present “sufficient evidence of
transmutation or an increase in value of the property due to marital efforts.”
Separate property is defined as property acquired before the marriage. Code
§ 20-107.3(1). In determining whether separate property transmutes into marital property, we
have previously recognized that Code §§ 20-107.3(A) and 20-107.3(A)(3)(a) “establish[] a
three-tiered burden of proof.” Cirrito v. Cirrito, 44 Va. App. 287, 296, 605 S.E.2d 268, 272
(2004). Initially, husband has the burden of proving the property was separate property. Id.
Then, the burden shifts to wife to prove “(i) contributions of marital property or personal efforts
were made and (ii) the separate property increased in value.” Id. In addition, wife has to prove
that the husband’s personal efforts were the proximate cause of the property’s increased value.
See id. at 297, 605 S.E.2d at 273 (citing Gilman v. Gilman, 32 Va. App. 104, 121, 526 S.E.2d
763, 771 (2000)). Simply showing that husband expended significant personal efforts and the
property passively increased in value during the marriage is not sufficient to meet the second tier
of the burden of proof outlined in Code § 20-107.3(A)(3)(a). If, however, wife satisfies the
second tier burden of proving that the property is marital and overcomes the “presumption of
separateness,” then the burden shifts back to the husband to prove that “the increase in value or
some portion thereof was not caused by contribution of marital property or significant personal
effort.” Id. at 296-97, 605 S.E.2d at 272.
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Here, the trial court held that the wife did not present sufficient evidence to prove that the
value of the farms increased due to marital efforts. Therefore, the trial court’s analysis stopped
at the second tier. The testimony of husband and his father both established the fact that the two
farms were a gift from Hubert Scarberry to Joey Scarberry. Husband established that donative
intent, delivery, and acceptance occurred in 1992: two years prior to the marriage. See Utsch v.
Utsch, 266 Va. 124, 128, 581 S.E.2d 507, 509 (2003) (reciting three elements to establish an
inter vivos gift: donative intent, delivery, and acceptance). There is no proof that a “quid pro
quo” existed or that husband “earned” the farm by his efforts during the marriage. Therefore, the
trial court’s conclusion that wife failed to meet her burden of proof required to overcome the
presumption of separateness was not plainly wrong or without evidence to support it. Because
wife failed to meet her burden, we will not disturb the trial court’s finding that the husband’s
farms were separate property and that they were not subject to equitable distribution.
The Certificates of Deposit
Wife argues that husband treated the certificates of deposit as his own and that he
transferred them out of the marital estate “when the marriage was in jeopardy, . . . amount[ing] to
waste.” In order to commit waste, the owner spouse must use “the marital property for his own
benefit and for a purpose unrelated to the marriage at the time when the marriage is undergoing
an irreconcilable breakdown.” Amburn v. Amburn, 13 Va. App. 661, 666, 414 S.E.2d 847, 850
(1992). The trial court held that the certificates of deposit were “not marital or mixed property.”
It further held that husband did not own the certificates of deposit at the time of the separation
and that he did not commit waste by transferring them to his father prior to the breakdown of the
marital relationship.
According to the evidence, husband and his father owned the certificates of deposit
jointly. They had been purchased prior to the marriage. Husband reported the interest earned
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from the certificates on his tax returns. In 2002, at wife’s insistence, husband transferred
whatever interest he had in the certificates of deposit to his father and ceased to include the
interest earned from them on his tax return. At the time of the transfer, the marriage was intact
and it remained so until the parties separated in October 2004. Therefore, even if the certificates
of deposit were marital property, husband’s transfer of his interest in them to his father would
not constitute waste under Amburn because the transfer took place prior to the breakdown of the
marriage. Therefore, we conclude that the trial court did not err in finding that husband did not
own the certificates of deposit at the time of separation and that they were not subject to
equitable distribution.
The Livestock
Wife argues that the trial court erred in rejecting her testimony that husband owned 100
head of cattle. She reasons that because her testimony was unimpeached and consistent with the
facts in the record, the trial court cannot arbitrarily disregard that testimony and the trial court
must accept her testimony as true. However, both husband and his father testified that the
husband did not own any livestock. Husband testified that he sold his last head of cattle in the
spring of 2004 before the couple separated on October 11, 2004.
The trial court held that wife did not present “sufficient evidence to prove that the alleged
livestock even exists much less represents marital property.” Because this finding is neither
plainly wrong nor without evidence to support it, the trial court did not err in refusing to consider
the livestock a part of the marital estate.
B. Spousal Support
The trial court entered the divorce decree in December 2005 and, at that time, awarded
wife $384 per month in pendente lite spousal support. After the trial court heard all of the
evidence and arguments, it denied wife’s request for permanent spousal support. Wife argues
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that the trial court erred in denying her spousal support because, (i) nothing had changed since
the court ordered pendente lite support and (ii) the trial court did not make written findings of
fact on every factor listed in Code § 20-107.1(E). 1
Initially we note that ‘“[w]hether and how much spousal support will be awarded is a
matter of discretion for the trial court.’” McKee v. McKee, 52 Va. App. 482, 494, 664 S.E.2d
505, 511 (2008) (quoting Barker v. Barker, 27 Va. App. 519, 527, 500 S.E.2d 240, 244 (1998)).
And, when the trial court “has given due consideration to each of these factors [contained in
Code § 20-107.1], as shown by the evidence, [its] determination as to spousal support will not be
disturbed except for a clear abuse of discretion.” Thomasson v. Thomasson, 225 Va. 394, 398,
302 S.E.2d 63, 66 (1983).
We reject wife’s argument that the trial court should have awarded her permanent spousal
support “in the same amount as awarded pendente lite . . . .” Wife reasons that the “parties
financial positions did not change from the time of the award” and, in making this argument,
implies that a change of conditions is necessary to modify the award. However, we held in
Holmes v. Holmes, 7 Va. App. 472, 484, 375 S.E.2d 387, 394 (1988), that “[t]he amount of
temporary support is not a factor under Code § 20-107.1 that the judge must consider when
determining the appropriate amount of spousal support.” There, we concluded that “the trial
1
With respect to wife’s second argument, we recognize that “[w]here a trial court is
required to make written findings supporting its decision, its failure to do so constitutes
reversible error.” Robinson v. Robinson, 50 Va. App. 189, 194, 648 S.E.2d 314, 316 (2007).
However, wife’s question presented only asks the following question: “[w]hether the trial court
erred in its finding that the Appellant was not entitled to an award of Spousal Maintenance and
Support Money and in failing to make an award of spousal maintenance and support money to
the Appellant?” Because the argument in wife’s brief was not contained in her question
presented, consideration of the argument is procedurally barred. Rule 5A:20(c); see also Ace
Temporaries, Inc. v. City Council of Alexandria, 274 Va. 461, 465, 649 S.E.2d 688, 690 (2007)
(holding that Rule 5:17(c) prescribes that “[o]nly errors assigned in the petition for appeal will be
noticed by” the Supreme Court of Virginia); Moore v. Commonwealth, 51 Va. App. 1, 3-4, 654
S.E.2d 305, 306 (2007) (under Rule 5A:12(c) “[o]nly questions presented in the petition for
appeal will be noticed by the Court of Appeals” (citation omitted)).
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judge gave due consideration to the factors enumerated in Code § 20-107.1 and did not abuse his
discretion.” Id.
Moreover, temporary orders of support are subject to a completely different standard than
permanent spousal support. Harrell v. Harrell, 272 Va. 652, 657, 636 S.E.2d 391, 394 (2006)
(“A trial court grants pendente lite relief pursuant to Code § 20-103, while a request for
permanent spousal support or a reservation of permanent spousal support is made pursuant to
Code § 20-107.1. The two statutory schemes are separate and distinct.”). While Code § 20-103
permits the trial court to award temporary spousal support in the trial judge’s discretion, Code
§ 20-107.1, while still discretionary, requires the trial court to consider the evidence and an
exhaustive list of factors. Further, Code § 20-103(E) provides that “[a]n order entered pursuant
to this section shall have no presumptive effect and shall not be determinative when adjudicating
the underlying cause.” (Emphasis added). Accordingly, the trial court did not abuse its
discretion by denying spousal support simply because pendente lite spousal support had been
awarded.
Here, the trial court issued an opinion letter dated January 15, 2008, which it
incorporated in the final decree of equitable distribution, support and maintenance, custody and
visitation. According to the trial court’s opinion letter, the trial court relied upon the following
factors to support its order denying spousal support: “the standard of living during the marriage,
the duration of the marriage, the contributions of each party, the parties’ earning capacities, and
the debts and liabilities of the parties.”
The trial court held that wife did not show a need for a monthly award of spousal support.
In fact, the trial court found that wife earned a salary of approximately $23,000 a year, that her
employer provided health and retirement benefits, and that she discharged all of her debts, except
the home mortgage and utilities, in bankruptcy. The trial court weighed these facts against the
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facts that husband made roughly the same amount per year, without benefits or retirement, that
he had voluntarily reduced both parties’ joint debt, and that he provided health insurance for their
minor child. Because the trial court weighed the factors supporting its finding that wife was not
entitled to spousal support and reduced those supporting factors to writing, we hold that the trial
court did not abuse its discretion in denying wife spousal support.
C. Guardian ad litem
After the hearings ended, the court directed the parties to submit written arguments
regarding all disputed issues. In a letter filed in response to that directive, wife, for the first time,
requested the court to appoint a guardian ad litem to represent the parties’ child. Wife now
argues that the trial court abused its discretion by failing to do so. 2
In a case such as this, a circuit court has the authority to appoint a guardian ad litem.
Verrocchio v. Verrocchio, 16 Va. App. 314, 322, 429 S.E.2d 482, 487 (1993). The trial court
may appoint a guardian ad litem in contested custody cases “in which the court makes a factual
determination that it would be necessary to protect the interests of the child.” L.C.S. v. S.A.S.,
19 Va. App. 709, 723, 453 S.E.2d 580, 588 (1995). However, there is no requirement that it do
so. Id.; Verrocchio, 16 Va. App. at 322, 429 S.E.2d at 487; cf. Code § 16.1-266 (requiring the
trial court to appoint a guardian ad litem in cases involving an abused or neglected child). Here,
the trial court had no obligation to appoint a guardian ad litem, and, accordingly, did not err in
failing to do so.
2
Wife’s question presented asks “[w]hether the trial court erred in its finding regarding
custody of the minor child of the parties and in particular in failing to appoint a guardian Ad
litem for the child, in view of the allegations and evidence produced by the parties herein?”
However, wife’s argument only addresses whether the trial court erred in failing to appoint a
guardian ad litem. Thus, we limit our analysis to the failure to appoint the guardian. Rule
5A:20(e) (requiring “[t]he principles of law, the arguments, and the authorities relating to each
question presented” shall be included in the appellant’s opening brief).
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II. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
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