Opinion
Record No. 0394-93-3 Record No. 0463-93-3
March 22, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RADFORD WILLIS A. WOODS, JUDGE.
Max Jenkins (Jenkins Jenkins, on briefs), for Hucy N. Davis and Gracie L. Nester.
James L. Hutton (Todd G. Patrick; Gilmer, Sadler, Ingram, Sutherland Hutton, on briefs), for Bruce H. Davis.
Present: Judges Benton, Koontz and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On appeal from the trial court's decree of February 9, 1993, granting her a divorce from Bruce H. Davis, Hucy N. Davis contends that the trial court erred (1) in denying her a fault-grounded divorce, (2) in denying her spousal support, (3) in classifying a municipal bond owned by Mr. Davis as separate property, (4) in holding that Mr. Davis owned a fifty percent interest in a tract of real estate known as "the Frontage Road property," and (5) in denying equitable distribution of nineteen items of personal property in Mr. Davis' possession. On cross-appeal, Mr. Davis contends that the trial court erred in classifying the marital home as marital property and subjecting it to equitable distribution. We find that the trial court erred in denying Mrs. Davis spousal support and in its classification of the municipal bond. We reverse and remand on those issues. Otherwise, we affirm the judgment of the trial court.
Mr. and Mrs. Davis were married in September, 1978. Mr. Davis retitled his home, in which he lived before the marriage, in both names. In November, 1979, Mrs. Davis' mother, Mrs. Nester, moved in with the couple.
Both parties drank heavily during their marriage. Mrs. Davis was hospitalized on three separate occasions due to drinking. However, she joined Alcoholics Anonymous and, fourteen months before the parties' separation, she stopped drinking. In a January 6, 1988 note to Mrs. Davis, Mr. Davis promised "to never get drunk and curse and abuse you as of this date."
Mrs. Davis accepted early retirement in 1984 and has not worked since. She receives $390 per month from social security and has $17,000 in her IRA. Mr. Davis remains employed. He earns $4,723 per month and has savings withheld from his wages. He leases a pasture located on the marital home property.
During their marriage, the couple bought and sold real estate. In 1986, they sold three lots and divided the proceeds. Mr. Davis ultimately invested his share in a "Chesterfield Bond" worth $19,975. Mrs. Davis otherwise invested her share.
The parties purchased a tract on Frontage Road for $63,500 and took title in their joint names. Mrs. Davis paid the initial down payment of $6,350 and paid $11,000 at closing. The purchase contract required three separate yearly payments in addition to the down payment. In March, 1980, Mr. Davis paid Mrs. Davis $9,000 to reimburse her for one-half of the initial payments. On August 1, 1980, Mr. Davis borrowed $18,000 to pay the first yearly payment. On August 1, 1981, Mr. Davis made the second payment. Mrs. Davis made the last payment.
Mrs. Davis and Mrs. Nester claim that Mrs. Davis gave Mr. Davis $2,000 and Mrs. Nester lent him $16,000. The parties documented Mrs. Nester's loan with a note dated October 1, 1980.
Mrs. Davis claimed a cashiers' check for $18,100 dated July 31, 1981 from Mrs. Nester to Bruce Davis provided the funds for this payment.
Mrs. Davis presented a copy of a deed purporting to convey a one-third interest in the Frontage Road property to Mrs. Nester. The original deed was never produced. It was never delivered or recorded. The copy, though executed by Mr. and Mrs. Davis, was not acknowledged. It was neither delivered nor recorded, but was retained in his possession by Mr. Davis. Mrs. Davis contended that the purpose and effect of this deed was to convey a one-third interest in the Frontage Road property to Mrs. Nester in consideration of her monetary advances. The trial court found that the deed had no effect, that Mrs. Nester acquired no interest in the Frontage Road property, and that any money advanced by her either was repaid or was for Mrs. Davis' benefit.
On November 21, 1988, Mr. and Mrs. Davis separated. Mrs. Davis and Mrs. Nester departed the marital home. In early 1989, Mr. and Mrs. Davis discussed reconciliation. However, Mr. Davis continued to drink heavily and to be abusive of Mrs. Davis. She decided not to reconcile with him. Another woman moved into the marital home with Mr. Davis.
The trial court ordered that Mrs. Nester might be joined as a party to the litigation in order to resolve her claimed interest in the Frontage Road property. No process was served on her, and she made no appearance. She is not a party to this appeal, and the conclusiveness of the litigation as to her is not before us.
Mrs. Davis submitted to the trial court a list of nineteen items of personal property in Mr. Davis' possession, contending that these items were marital property and were subject to equitable distribution. No evidence was adduced as to the nature and acquisition of these items. The trial court did not identify these items as marital property, but, by implication, included them in its general classification as separate property of all items not specifically held to be marital.
GROUND OF DIVORCE
Mrs. Davis first contends that the trial court erred in denying her a fault-grounded divorce. She argues that Mr. Davis drank heavily and, by his own admission, abused her. He moved another woman into the marital home after Mrs. Davis moved out. She contends that this not only proves the degree of mental anguish, repeated neglect and humiliation suffered by her, but also proves cruelty and adultery. We disagree.
We will not reverse a judgment of a trial court on the ground that it is contrary to the law and the evidence unless it appears from the record that such judgment is plainly wrong or without evidence to support it. McLaughlin v. McLaughlin, 2 Va. App. 463, 466-67, 346 S.E.2d 535, 536 (1986). Mere problems between spouses, caused by unruly tempers, lack of patience, and uncongenial natures, do not require a court to grant a divorce for fault. Id. at 467, 346 S.E.2d at 537. Rather, a fault ground for divorce "'must be very serious and such as amounts to extreme cruelty, entirely subversive of the family relations, rendering the association intolerable.'" Id. (quotingHoffecker v. Hoffecker, 200 Va. 119, 125-26, 104 S.E.2d 771, 776 (1958)).
The record reflects that the parties endured a deplorable marital situation. Both drank excessively. This caused many occasions of verbal abuse and unhappy living conditions. Separation resulting from these conditions supports the award of divorce. It does not, however, substantiate either party's claim that one spouse could not reasonably be expected to remain in the marriage due to the fault of the other. Rather, the couple's drinking problems, constant bickering, and lack of compassion, not specific offense by either, caused the dissolution of their marriage.
The Virginia Supreme Court held in Coe v. Coe, 225 Va. 616, 303 S.E.2d 923 (1983), that evidence of adultery must provide "'clear, positive and convincing proof.'" Coe, at 623, 303 S.E.2d at 927 (quoting Dooley v. Dooley, 222 Va. 240, 246, 278 S.E.2d 865, 868 (1981)). Here, the evidence showed only that a woman moved in with Mr. Davis. The trial court found that Mrs. Davis' evidence of adultery was not clear and convincing. The record supports this finding. "'Raising a considerable or even strong suspicion of guilt is not enough.'" Dooley, 222 Va. at 246, 278 S.E.2d at 868 (quoting Haskins v. Haskins, 188 Va. 525, 530-31, 50 S.E.2d 437, 439 (1948)).
The record supports the trial court's judgment that neither party proved grounds for a fault-based divorce. That aspect of the decree is affirmed.
SPOUSAL SUPPORT
Mrs. Davis next contends that the trial court erred in denying her permanent spousal support. We agree. Although the "decision to award spousal support rests within the sound discretion of the trial court . . . [,] . . . such discretion is not absolute and is subject to review for abuse." Via v. Via, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992). Furthermore,
[i]n a divorce case, where a claim for alimony is made by a wife who has been held blameless for the marital breach, the law imposes upon the husband the duty, within the limits of his financial ability, to maintain his former wife according to the station in life to which she was accustomed during the marriage.
In fixing the amount of alimony, the court must look to the financial needs of the wife, her age, physical condition and her ability to earn, and balance against these circumstances the financial ability of the husband to pay, considering his income and ability to earn. The amount awarded must, in any event, be fair and just under all the circumstances of the case.
Id. at 870, 419 S.E.2d at 433 (quoting Klotz v. Klotz, 203 Va. 677, 680, 127 S.E.2d 104, 106 (1962)).
Mrs. Davis established her need for support. She is sixty-three years old, is unemployed, and receives only $390 per month from social security. She has experienced back problems and a bout with cancer. The social security benefit cannot support her in the manner to which she was accustomed while married to Mr. Davis. Mr. Davis earns $4,723 per month, an amount adequate to provide spousal support. The trial court erred in denying Mrs. Davis spousal support.
CHESTERFIELD BOND
Mrs. Davis next contends that the trial court erred in classifying the Chesterfield County municipal bond as separate property. We agree. "Property acquired during marriage is presumed to be marital property in the absence of satisfactory evidence that it is separate property." Bowers v. Bowers, 4 Va. App. 610, 615, 359 S.E.2d 546, 549 (1987). See Code § 20-107.3(A)(2)(iii). Code § 20-107.3(A)(1) defines separate property as:
(i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate pursuant to subdivision A 3.
The bond does not fall within this definition. Therefore, it was marital property. Code § 20-107.3(A)(2)(iii).
The trial court reasoned that because Mr. and Mrs. Davis divided the proceeds from the sale of the three lots, each applying his or her share as he or she thought appropriate, each party's share, Mr. Davis' being represented by the Chesterfield bond, became his or her separate property. This logic might well control in determining the distribution to be made of the bond under Code § 20-107.3(E). However, it is an impermissible method of classification under the general scheme of Code § 20-107.3. Therefore, we reverse and remand this determination for proper classification of the Chesterfield bond and its distribution according to the scheme of Code § 20-107.3.
FRONTAGE ROAD PROPERTY
Mrs. Davis next contends that the trial court erred in holding that Mr. Davis owned a fifty percent interest in the Frontage Road property. She argues that Mrs. Nester's ownership of one-third was proven by (1) the cashier's check, written for an amount which nearly equaled the amount of one of the installments owed on the property, given to Mr. Davis by Mrs. Nester in exchange for a promissory note which remains in Mrs. Nester's possession, and (2) the deed, which conveyed a one-third interest to Mrs. Nester. She asserts, as alternative theories, that Mrs. Nester's payment created either a purchase money resulting trust or a constructive trust.
Mr. and Mrs. Davis executed the copy of the deed to Mrs. Nester. The disposition of the original was never established. Neither the original nor the copy was delivered. Mr. Davis retained the copy in his possession. He testified that he did so because it was the parties' intent that the deed should not take effect unless they both died. Under the circumstances, this testimony was not inherently incredible. It supports the trial court's determination that the deed did not take effect and did not grant Mrs. Nester an interest in the Frontage Road property.
Mrs. Davis argues that Mrs. Nester's contributed money created in her favor either a purchase money resulting trust or a constructive trust. Although the evidence shows that Mrs. Nester lent Mr. and Mrs. Davis $16,000, she received a $16,000 promissory note. This note supports the trial court's finding that the transaction was only a loan. It is not evidence that the parties intended that Mrs. Nester should own part of the property.
The facts do not support a finding of a resulting trust. The money was not used to purchase the property but only to pay an installment of the loan. Leonard v. Counts, 221 Va. 582, 588-89, 272 S.E.2d 190, 194-95 (1980). "[N]o resulting trust will arise from a transaction which occurs after title has been conveyed."Ogden v. Halliday, 235 Va. 639, 642, 369 S.E.2d 417, 419 (1988).
Constructive trusts arise, independently of the intention of the parties, by construction of law; being fastened upon the conscience of him who has the legal estate, in order to prevent what otherwise would be a fraud. They occur not only where property has been acquired by fraud or improper means, but also where it has been fairly and properly acquired, but it is contrary to the principles of equity that it should be retained, at least for the acquirer's own benefit.
Leonard, 221 Va. at 589, 272 S.E.2d at 195 (quoting 1 Minor on Real Property § 462 at 616 (2d ed. Ribble 1928)) (emphasis in original). In Leonard, full title in a tract of property was acquired in violation of an agreement to vest part of that title in other persons. The evidence in this case disclosed no such agreement.
The trial court found that Mr. Davis never agreed to vest a one-third interest in the Frontage Road property to Mrs. Nester. Rather, he testified that the parties intended that the one-third interest in the property should go to Mrs. Nester only if he and Mrs. Davis died. The promissory note bolsters this argument. The note suggests that Mrs. Nester's contribution was a loan and not consideration for an interest in the property. Nothing suggests fraud on the part of Mr. Davis. That he simply chose not to deliver the deed to Mrs. Nester was explained by Mr. Davis. The trial court did not err in denying the imposition of a constructive trust.
NINETEEN ITEMS OF PERSONAL PROPERTY
Mrs. Davis' final contention is that the trial court erred in denying equitable distribution of nineteen items of personal property possessed by Mr. Davis. The record discloses that Mrs. Davis, as one of her exceptions to the final decree, stated that nineteen items of personal property should have been treated as marital property. However, she failed to specifically list each of the nineteen items. Mr. Davis argues that she should not be permitted to argue this issue on appeal. Rule 5A:18.
Rule 5A:18 does not apply. The record contains a letter sent to the trial judge. A section of this letter is entitled "MARITAL PROPERTY IN BRUCE DAVIS'S POSSESSION." In this section, Mrs. Davis listed nineteen individual items of personal property in Mr. Davis' possession which she claimed were marital property. She produced no evidence in support of this contention.
"Code § 20-107.3 requires the court to determine the ownership and value of all real and personal property of the parties. Given the complexity inherent in rendering these determinations, we rely heavily on the trial court's discretion." Aster v. Gross, 7 Va. App. 1, 9, 371 S.E.2d 833, 838 (1988). In its final decree, the trial court listed, as marital property, numerous items of tangible personal property with marital value and ordered that each party receive a fifty percent share. The trial court then classified all other items of personal property as the separate property of the party in possession. This classification designated the nineteen items at issue as the separate property of Mr. Davis. Our review of the record reveals sufficient evidence to support this classification.
CLASSIFICATION OF THE MARITAL HOME
On cross-appeal, Mr. Davis argues that the trial court erred in classifying the marital home as marital property. He argues that when he married Mrs. Davis, she promised to pay the mortgage on his home in its entirety if he titled the property in both of their names. He argues that he fulfilled his part of the bargain and added her name to the title, but she never paid the mortgage. Mrs. Davis testified that she never agreed to pay the mortgage. She testified that she contemplated paying it off later in the marriage when she was attempting to reconcile with Mr. Davis, but conditioned this on her mother's approval because her mother would have lent her the money. The trial court accepted Mrs. Davis' version. Consequently, it classified the property as marital and awarded Mrs. Davis a fifty percent share. Because this decision is supported by the evidence, we will not disturb it on appeal.
We reverse and remand the judgment of the trial court for entry of an award of spousal support in favor of Mrs. Davis and for classification and equitable distribution of the Chesterfield bond. Otherwise, we affirm the judgment of the trial court.
Reversed and remanded in part, Affirmed in part.