Opinion
Record No. 2123-92-3
May 3, 1994
FROM THE CIRCUIT COURT OF WISE COUNTY JAMES C. ROBERSON, JUDGE
(Robert Austin Vinyard; Vinyard Moise, P.C., on brief), for appellant. Appellant submitting on brief.
(Linda G. Tiller; Tiller Tiller, P.C., on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Koontz and Willis
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Diann Page O'Bryan Lowe appeals various determinations of the Circuit Court of Wise County arising out of a final decree of divorce granted to her and Joseph Mythias Lowe, her husband. We hold that each of the contested determinations was one committed to the sound discretion of the chancellor. Finding no abuse of that discretion, we affirm.
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. The Lowes were married in 1962. Upon the sudden death of Mrs. Lowe's brother in October, 1986, she moved to Florida to assist her mother in administering her brother's estate and running his business. Mrs. Lowe did not return to Virginia, other than for brief visits. Beginning January 3, 1988, the couple permanently separated. In June, 1988, Mr. Lowe filed a bill of complaint seeking a divorce on the grounds of desertion. Mrs. Lowe filed a cross-bill seeking a divorce on the grounds of adultery.
In November, 1988, the chancellor ordered Mr. Lowe to pay $100 per month in temporary support to Mrs. Lowe. The parties produced evidence by interrogatories, depositions and in an ore tenus hearing. A decree of divorce was entered on May 3, 1990, based upon the parties' separation for more than one year, pursuant to Code § 20-91(9). Under that decree, the court retained jurisdiction to settle matters of support and equitable distribution.
In a final decree dated September 24, 1992, the chancellor ordered an equitable distribution providing Mr. Lowe with sixty-five percent of the marital property. The decree further provided that Mrs. Lowe was not entitled to a share of Mr. Lowe's retirement benefits because her entitlement to those benefits was offset by real estate payments made by Mr. Lowe following the parties' separation. A parcel of real estate Mr. Lowe acquired after the parties' last separation was deemed to be his separate property and not subject to equitable distribution.
In addressing the issue of support, an opinion letter and the decree both stated that "there existed in the husband's favor, grounds for divorce [for the wife's willful desertion for a period of one year] under the provisions of Section 20-91(6) and therefore no permanent support and maintenance should be awarded . . . ." The chancellor further stated that he had considered the statutory factors found in Code § 20-107.1 and that "[a] denial of support and maintenance would not constitute a manifest injustice based on the respective degrees of fault during the marriage and the relative economic circumstances of the parties."
Mrs. Lowe contends that the denial of spousal support was error because, even if Mr. Lowe had proven desertion, the chancellor did not grant Mr. Lowe a divorce on that ground. We disagree. The record shows that the chancellor determined that Mrs. Lowe had deserted the marriage and that the parties had lived separate and apart without cohabitation for more than one year. Both determinations are supported by the evidence. "Where dual or multiple grounds for divorce exist, the trial judge can use his sound discretion to select the grounds upon which he will grant the divorce." Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989). The selection of one ground in such circumstances does not negate the sufficiency of the alternate proof. Thus, because Code § 20-107.1 as in effect at the time these proceedings were commenced in 1988 would bar any award of spousal support where desertion was proven, the chancellor's denial of spousal support was not error.
Mrs. Lowe further contends that the chancellor erred in dividing the marital home. She asserts that by ordering the sale of the property and an unequal division of the proceeds, the chancellor abused his discretion by failing to state the rationale for the unequal division and by effecting an improper transfer of title. See Taylor v. Taylor, 5 Va. App. 436, 440, 364 S.E.2d 244, 247 (1988). We disagree. The record does not reflect that the chancellor ordered an improper transfer of title. Rather, he ordered that the property be partitioned by sale, similar to the transaction in Taylor. In Taylor, the court ordered the proceeds divided equally; here, the chancellor determined that the respective interests in the marital property were unequal, granting a greater portion to Mr. Lowe.
The record shows that the chancellor made an extensive inquiry into the factors found in Code § 20-107.3. The chancellor is vested with broad discretion in the discharge of the duties Code § 20-107.3 imposes upon him. Unless it appears that the chancellor abused his discretion, that he failed to consider or misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor's equitable distribution award will not be reversed on appeal. Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368 (1987). We find no such error in the record. Accordingly, we affirm the chancellor's distribution of the proceeds from the sale of the marital home.
Mrs. Lowe next contends that the chancellor erred in determining that a parcel of real property that Mr. Lowe contracted to purchase in December, 1987 was separate rather than marital property. We disagree. The chancellor determined that because the deed was not delivered nor had Mr. Lowe accrued a financial obligation on the property until after the parties' last separation in January, 1988, the real estate was the separate property of Mr. Lowe.
We recognize that "[w]hether . . . property is separate or marital is determined by the statutory definition and . . . not . . . by legal title." Garland v. Garland, 12 Va. App. 192, 195, 403 S.E.2d 4, 6 (1991). However, the record here does not establish that Mr. Lowe used marital assets to purchase the property and "the presumption that property is marital [ceased] on the date of the de facto dissolution of the marital partnership." Price v. Price, 4 Va. App. 224, 229, 355 S.E.2d 905, 908 (1987). See also Dietz v. Dietz, ___ Va. App., ___, ___, 436 S.E.2d 463, 467 (1993) (holding that property acquired with post-separation salary when one party intends the separation to be permanent is not marital property). Here, the record supports the chancellor's determination that the property was acquired solely by Mr. Lowe in January, 1988 after the parties had permanently separated. Accordingly, we cannot say that the classification of the property as the separate property of Mr. Lowe was error.
Mrs. Lowe further contends that the overall division of the remaining marital property was improper because the chancellor did not state a specific rationale for the percentage of the division. We disagree. The record contains an extensive analysis of the factors for determining the equitable division of property pursuant to Code § 20-107.3. The chancellor is given wide discretion in considering these factors and making the distribution of the marital property. See Brown, 5 Va. App. at 244-45, 361 S.E.2d at 368.
Finally, Mrs. Lowe contends that the chancellor erred in computing her interest in Mr. Lowe's pension and in determining that amounts paid by Mr. Lowe on the mortgage owed on the marital home offset her interest. We disagree. The determination of the monetary award a spouse will receive in equitable distribution of a pension rests within the discretion of the trial court using this guidelines set forth in Code § 20-107.3. Seehorn v. Seehorn, 7 Va. App. 375, 384, 375 S.E.2d 7, 12 (1988). On the facts contained in this record, we find no abuse of discretion either in the amount of the award or the determination of the offset.
For these reasons, the determinations of the chancellor are affirmed.
Affirmed.
Citing Dietz v. Dietz, ___ Va. App. ___ 436 S.E.2d 463 (1993), the majority holds that a parcel of real property acquired by Mr. Lowe during the term of the marriage, but after the parties' last separation, was his separate property. I believeDietz was wrongly decided. Marriage is a legal institution. Legal rights based upon marriage should be determined de jure, not de facto.
Code § 20-107.3(A)(1)(i), (ii), (iii), and (iv) set forth the criteria for identifying separate property. Mr. Lowe's acquisition of the subject parcel of land fits none of those definitions. Code § 20-107.3(A)(2)(iii) provides a catch-all definition of marital property. Mr. Lowe's acquisition of the subject parcel of land fits that definition. The parcel should have been scheduled as marital and its value allocated according to the factors of Code § 20-107.3(E).
As Judge Barrow observed in his dissent in Dietz, "The statutory presumption, relied on by the majority, does not provide an endpoint for determining marital property." It is a mere rule of evidence aiding the scheduling of property according to the statutory criteria. Its chief utility is in regard to property, claimed as separate property, that is acquired during the marriage and prior to the final separation of the parties.
However, I recognize Dietz to be binding precedent. See Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, ___ (1990). Therefore, I concur.