Opinion
Record No. 1312-93-4
Decided: July 5, 1994
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY, Paul F. Sheridan, Judge
Affirmed in part, reversed and remanded in part.
David D. Masterman (Cohen, Gettings, Dunham Harrison, on brief), for appellant.
Mary Cook Hackman, for appellee.
Present: Judges Willis, Elder and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, David Michael Ingram, makes three assignments of error. He asserts that the trial court erred: (1) in valuing the marital home; (2) in determining his part separate share of the home; and (3) in denying his post-trial motion for reasons not supported by the record. For the reasons stated herein, we affirm on issues one and three and reverse and remand on issue two.
On appeal, we view the evidence in the light most favorable to the prevailing party in the trial court, granting to such evidence all reasonable inferences properly deducible therefrom. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
The parties were married on January 22, 1983, and they separated in July 1991. On June 17, 1992, wife (appellee) filed for divorce. The marital home was purchased by husband (appellant) in 1978, before the couple met. He paid $42,000, for which he signed a deed of trust after making a 10% down payment. In 1983, the year the parties were married, the house was assessed at $65,400. In 1985, husband used a $10,000 gift from his mother to commence placing an addition on the house. On June 30, 1986, husband deeded the house to wife and himself as tenants by the entirety. At or near that time, they co-signed a second deed of trust on the home for $30,100. At the time of the hearing in 1993, the additions were only 75% complete.
At the May 20, 1993 hearing, the main issue was equitable distribution of the marital residence. Wife's real estate appraiser, John Austin, appraised the house at $162,000 based on a September 7, 1992 inspection, eight months prior to the hearing. In his professional judgment, Austin believed that the values of homes in the neighborhood had remained stable, within $800 of the September 7, 1992 appraisal. He opined that if the additions were completed, the value would be $200,000 to $210,000. Husband's appraiser, David Hendershott, assessed the house at $139,000 based on a May 11, 1993 inspection.
"The court shall determine the value of . . . property as of the date of the evidentiary hearing on the evaluation issue." Code Sec. 20-107.3(A) (codifying the rule announced in Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987), namely, that "a trial court should determine the value of the parties' assets as of a date as near as practicable to the date of trial" which value "will usually be the most current and accurate value available"); see also Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788, 790 (1991) (finding reversible error where trial court, in 1989 remand, used appraisal of marital home from 1985 evidentiary hearing).
Although the Austin appraisal accepted by the trial court was eight months old, we cannot say that it was error to accept it. The chancellor specifically questioned Mr. Austin as to whether his appraisal remained valid and current, to which Austin responded that the prices had remained stable and his appraisal was within $800 of the current value of the home. This had the effect of updating Mr. Austin's appraisal to the hearing date. "The credibility of [an] expert witness and the weight to be accorded the evidence [are] matters within the province of the [fact finder]." Horsley v. Commonwealth, 2 Va. App. 335, 339, 343 S.E.2d 389, 391 (1986). Because Mr. Austin is an expert in the field, we cannot say that the court's acceptance of his figure was reversible error.
Similarly, we cannot say that the court's denial of appellant's motion for reconsideration was not supported by credible evidence. The record shows that husband maintained a separate checking account in addition to the couple's joint account, and that wife made extensive monetary and nonmonetary contributions. The fact that the record may not support the finding that husband was at fault in not finishing the house in no way lessens the evidence regarding wife's contributions, evidence of which is sufficient to support the chancellor's ruling.
As to the trial court's failure to allow appellant pre-marital appreciation of property that it found to be part separate property, we hold that it was error to neglect to include such appreciation. The record clearly indicates that the 1983 value of the house was $65,400, an increase of $23,400 over the 1978 purchase price. The house was wholly separate property at least until the marriage in 1983. The starting point in the calculation of the value of appellant's "part separate" interest in the house should have been 1983, not 1978 which was before the parties had met. The effect of commencing the calculation as of 1978 was to disallow the appellant the value of pre-marital appreciation.
Accordingly, we reverse and remand for the trial court to redetermine the value of the appellant's "part separate" interest in the house, and then distribute the property pursuant to the mandates of Code Sec. 20-107.3.
For the reasons stated, the trial court's judgments are
Affirmed in part, reversed and remanded in part.