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Becker v. Hale

Court of Appeals of Virginia. Argued at Alexandria, Virginia
Jun 21, 1994
Record Nos. 1029-93-4 and 1190-93-4 (Va. Ct. App. Jun. 21, 1994)

Opinion

Record Nos. 1029-93-4 and 1190-93-4

Decided: June 21, 1994

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA, Alfred D. Swersky, Judge

Reversed and remanded in part, affirmed in part.

James Ray Cottrell; B. Scott Wash (Gannon, Cottrell Ward, P.C., on briefs), for appellant.

Patricia A. Smith (Sanders, O'Donnell Smith, on brief), for appellee.

Present: Judges Willis, Elder and Senior Judge Duff


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


In this appeal, Alan R. Becker contends that: (1) the trial court erred in refusing to credit against its monetary award to the wife certain marital assets held in her sole name and possession; (2) it was error for the court not to award the husband full credit for various post-separation expenses paid by him to maintain the marital home; (3) the wife's Norfolk home should not have been classified as wholly her separate property; and (4) the court erred in awarding the wife $7,500 in attorney's fees. Anne Juanita Hale also contends that the court erred in its classification of the parties' property and in the valuation and division of the marital assets. We reverse and remand as to the first issue presented by the appellant and affirm the trial court's opinion as to the other issues.

The chancellor made a monetary award to the wife equal to thirty percent (30%) of the marital property calculated as set forth in a letter opinion dated March 18, 1993. The record shows that various items of marital property were in the sole name and possession of the wife. The husband contends that the chancellor's calculations failed to deduct the value of those items from the wife's monetary award and credit husband for them. The effect appears to give the wife 100% of these items of marital property in her name and possession. The record indicates that the chancellor had before him the issue of the marital property in wife's sole name and possession, and that he simply chose to give credit to some of the contested property and not to certain other property in arriving at the 30% figure. Accordingly, we remand for clarification only, namely, as to whether it was the chancellor's intention for the wife to receive the marital property in her sole name and possession in addition to 30% of the remaining marital property.

These include wife's bank accounts, IRA and bond refund dividends, and other cash already received by wife.

We find no abuse of discretion in the chancellor's refusal to award the husband full credit for various post-separation expenses for the marital home, including mortgage payments, taxes, insurance, etc. Our review of the entire record, and in particular the court's March 18, 1993 letter, satisfies us that the court specifically gave consideration to the husband's "substantial post separation contribution" when it fashioned the lump sum award payable to the wife. The fact that we might have accorded more consideration to such contributions is irrelevant.

Nor do we find error in the trial court's classification of the wife's Norfolk home as her separate property. The home was titled solely in the wife's name. It was her property from a prior marriage. The record contains conflicting evidence as to the extent of the husband's efforts in the care and maintenance of the property. He contended that every time he returned to the Norfolk area during the parties' marriage and his tour of duty in England he would check on the property. The wife contended that she employed a management company to handle all matters with respect to the property, such as collecting rent, paying the mortgage, and handling maintenance and repairs. There was evidence that the management company dealt solely with the wife for the most part in handling the property.

The record shows that marital funds were used to pay off the second mortgage on the property. However, this payment was reimbursed to the husband by the court upon equitable distribution. We find no error in the court's classification of the house as the separate property of the wife.

Finally, with respect to the husband's appeal, he challenges the award of $7,500 in attorney's fees to the wife. We find no merit to the challenge. The record shows that the court considered the circumstances and equities of the entire case. The chancellor observed that all issues had been vigorously and competently contested, particularly the classification and equitable distribution of the property. The record shows the gross annual income of the husband to be in excess of $130,000 per year, and the wife's salary was $39,000 per year.

An award of attorney's fees is a matter submitted to the trial court's sound discretion and is 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). Based on the issues involved, the ultimate division of the marital property, and the respective abilities of the parties to pay, we cannot say that the award was unreasonable or that the chancellor abused his discretion in making the award.

Turning to the issues presented by the wife in her cross-appeal, she contends that the court erred when it failed to credit her for marital assets that she asserts were properly and adequately traced to her inheritance. The burden of proof in tracing assets always rests upon the proponent. Our review of the record and the evidence of the various assets involved in this issue satisfies us that there was sufficient credible evidence in support of the trial court's judgment that she had failed to carry her burden of proof.

Nor is there merit in the wife's next assertion that the trial court erred when it found that she contributed inherited funds as a gift. The record contains evidence that throughout the marriage everything was titled in their joint names, and there was no agreement between the parties concerning the classification or return of any inherited funds. We find ample evidence from which the chancellor could conclude that all funds were commingled and intended to be used as a marital resource. Thus, the finding of a gift is affirmed.

Lastly, the wife asserts that the trial court erred in its valuation of the marital assets of the parties and in awarding her an insufficient percentage of such assets. Our review of the record shows credible evidence in support of the court's decision on these issues, and they are affirmed.

Reversed and remanded in part, affirmed in part.


Summaries of

Becker v. Hale

Court of Appeals of Virginia. Argued at Alexandria, Virginia
Jun 21, 1994
Record Nos. 1029-93-4 and 1190-93-4 (Va. Ct. App. Jun. 21, 1994)
Case details for

Becker v. Hale

Case Details

Full title:ALAN R. BECKER v. ANNE JUANITA HALE

Court:Court of Appeals of Virginia. Argued at Alexandria, Virginia

Date published: Jun 21, 1994

Citations

Record Nos. 1029-93-4 and 1190-93-4 (Va. Ct. App. Jun. 21, 1994)