Opinion
Record No. 0725-92-4
March 2, 1993
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY LEWIS D. MORRIS, JUDGE DESIGNATE
E. Ralph Coon, Jr. (Craig D. Johnston; Coon Johnston, on briefs), for appellant.
John W. Purdy for appellee.
Present: Judges Benton, Bray and Fitzpatrick
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
E. Sidney Jones, husband, appeals the judgment of the trial court denying his request that a capital gain tax liability be equally apportioned between the parties. He argues that the trial court erred in finding that he failed to present sufficient evidence to determine the amount of the tax liability. We disagree and affirm the judgment of the trial court.
The parties are familiar with the facts of the case, therefore, we recite only those facts necessary to amplify our decision. Husband was granted a no-fault divorce on October 26, 1990, after a 23 year marriage. Thereafter, an equitable distribution hearing was held on August 12, 1991, at which the court heard evidence as to the unresolved property matters. The trial judge issued an opinion letter which disposed of all settled issues and resolved the remaining disputed items: the fair market value of the marital home; and a determination of the income tax liability for the year 1987 arising out of a capital gain from the sale of an investment property. As to this latter issue the trial judge held:
that the Federal Tax lien and Virginia capital gain tax resulting from the capital gain from the sale of the Woodbridge property was a marital obligation which shall be shared equally by both parties. Unfortunately, neither party could furnish the Court with figures showing the share of the total tax . . . attributable to the capital gain . . . from sale of the property.
(emphasis added).
The trial judge then attempted to calculate the amount of Federal and Virginia tax attributable to the capital gain by independently gathering evidence outside that presented at trial. Upon a subsequent motion to reconsider filed by the wife, on the basis that no evidence had been presented at trial as to the amount of total tax attributable to the capital gain, the trial judge reversed his prior ruling on that issue. The trial judge determined:
that the ruling concerning the 1987 income tax liabilities . . . was in error, in that [husband] had the burden of proof as to the amount of tax attributable to the 1987 capital gain and failed to meet that burden, and that the Court's previous ruling as to the capital gain tax must be reversed.
The evidence clearly supports the trial judge's findings that husband failed to present sufficient evidence that would allow a computation and award of the capital gain tax liability. "'[T]he burden is always on the parties to present sufficient evidence to provide the basis on which a proper determination can be made, and the trial court in order to [determine the ownership and value of all real and personal property of the parties] . . . must have evidence before it . . . to grant or deny a monetary award.'" Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (quoting Hodges v. Hodges, 2 Va. App. 508, 517, 347 S.E.2d 134, 139 (1986)).
The trial court properly found that the husband, as the moving party, had the burden of proof to establish the correct allocation, if any, of the 1987 capital gain tax. It was within the trial judge's discretion to make an award without giving consideration to the value of the capital gain tax liability "where the parties have been given a reasonable opportunity to provide the necessary evidence to prove classification or valuation but through their own lack of diligence have failed to do so." Id. at 618, 359 S.E.2d at 551. "The responsibility to develop or fill voids in the evidence . . . rests with the litigants, not with the trial judge." Id. at 617, 359 S.E.2d at 550; accord Ellington v. Ellington, 8 Va. App. 48, 57, 378 S.E.2d 626, 631 (1989).
A trial judge must decide a case based solely on the evidence presented at trial and that evidence may not be augmented by extra-judicial evidence gathering except in the limited circumstances where judicial notice is appropriate. "[F]acts which are not judicially cognizable must be proved, even though known to the judge or to the court as an individual. In other words, the individual and extrajudicial knowledge on the part of a judge will not dispense with proof of facts not judicially cognizable, and cannot be resorted to for the purpose of supplementing the record." Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275 (1942); see also, Jewell v. Commonwealth, 8 Va. App. 353, 357, 382 S.E.2d 259, 262 (1989) (error for trial court to rely on document not admitted into evidence). Therefore, the trial judge should not have attempted to calculate what portion of the parties' tax liability was attributable to the capital gain tax without some evidence on this issue presented at trial. Upon the motion to reconsider, the trial judge recognized this error and reversed his prior ruling. We find no error in this decision.
For the reasons stated, we conclude that the trial judge did not err in finding that the husband failed to meet his burden of proof on the issue of the proper allocation of the capital gain tax liability. Accordingly, we affirm.
Affirmed.