Opinion
Record No. 0644-94-3
Decided: November 1, 1994
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG, Mosby G. Perrow, III, Judge
Affirmed.
(Eleanor F. Poe, pro se, on briefs).
(Patricia McAdams Gibbons, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Coleman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The wife appeals the decree of divorce and equitable distribution. 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.
The Divorce
The wife's notice of appeal objects to the trial court's granting the divorce pursuant to Code Sec. 20-91(9) (a) rather than on fault grounds. However, we cannot address this issue on appeal because the wife failed to object at the time of the decree. See Rule 5A:18. Further, the wife failed to file a transcript for the hearing at which evidence on the question of divorce was taken, Rule 5A:18, nor did she file a statement of facts signed by the trial judge. Because such transcript or statement of facts is indispensable to a determination of the issue, we cannot review it on appeal. Clary v. Clary, 15 Va. App. 598, 600-01, 425 S.E.2d 821, 822 (1992).
The Equitable Distribution Award
The wife appeals the unequal division of marital property in the equitable distribution award and the failure to award a portion of the husband's pension. However, we cannot address the award because we do not have all the transcripts indispensable to our review of the trial court's determination. Id. We have before us only the transcript from the October 30, 1992 hearing. While substantial financial evidence was presented at this hearing, significant evidence about the parties' pensions and retirement accounts, personal property, and the parties' monetary and non-monetary contributions during the marriage was heard at other hearings, the transcripts of which were not filed. Thus, we cannot review the trial court's award.
A trial court's equitable distribution award will not be disturbed on appeal absent abuse of discretion, failure to consider or misapplication of the statute, or lack of evidence to support the decision. Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987). Further, equitable distribution does not require equal distribution. Pommerenke v. Pommerenke, 7 Va. App. 241, 249-50, 372 S.E.2d 630, 634 (1988). Therefore, finding no abuse on the face of the award, we affirm the equitable distribution award.
The Certificate of Deposit
The wife complains that the trial court erred in refusing to treat as marital property the certificate of deposit which the husband transferred to the parties' child under the Uniform Gift to Minors Act. More than two years before the wife instituted divorce proceedings and a year prior to the birth of the younger son, the husband purchased for the older son, Jibri, a certificate of deposit designated as a custodial account under the Uniform Gift to Minors Act and designated himself as custodian.
"A transfer made pursuant to Code Sec. 31-45 is irrevocable, and the custodial property is indefeasibly vested in the minor . . . ." Code Sec. 31-47. Thus, as the trial court found, the certificate of deposit was irrevocably transferred to the son. As such, it was not subject to distribution under Code Sec. 20-107.3. The trial court must determine legal title, ownership, and value "of all property, real or personal, tangible or intangible, of the parties, and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property." (Emphasis added.) See Stroop v. Stroop, 10 Va. App. 611, 615, 394 S.E.2d 861, 863 (1990) (leaving open the question of whether property transferred for less than adequate consideration eight months prior to institution of the divorce suit removed the value of the property from the estate of the transferor for purposes of equitable distribution). Here, the transfer was made two years before the institution of the divorce proceedings, and there is no evidence of fraud.
The wife also questions whether the father can "leave the third child Ajani John-Thomas out completely." However, this question is not properly before the Court, since the children's respective interests in the certificate of deposit were not determined in the decree appealed from.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.