Opinion
Record No. 1016-92-4 Record No. 1028-92-4
June 8, 1993
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY WILLIAM SHORE ROBERTSON, JUDGE.
Jud A. Fischel (Susan C. Minkin; Jud A. Fischel, P.C., on brief), for Phyllis D. Perkins.
Linda I. Dodge, for Douglas C. Perkins.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
We have consolidated the appeals of Douglas C. Perkins (husband) and Phyllis D. Perkins (wife) in this opinion. We modify and affirm the court's divorce decree and hold (1) that the trial court erred when valuing the Liberty Savings Bank account by failing to take into account the $16,958.17 that the court ordered husband to use to pay the mortgage on the marital residence for thirty months; (2) the evidence in the record is insufficient to determine any accrued interest to wife on the parties' jointly owned Liberty Bank account, and (3) the trial court committed harmless error when ordering a sale of the parties' jointly owned marital property pursuant to Code § 20-107.3(C), as amended. The other assignments of error are without merit and will not be addressed. Rule 5A:27.
On May 14, 1991, following an ore tenus hearing, the court ordered that husband continue using funds from the Liberty Savings Bank to make the mortgage payments and the accrued late charges, but such account was to have no other funds withdrawn without court approval.
On July 10, 1991, the trial court issued a letter opinion with its findings from the August 15 — 16, 1990 trial. The court granted husband a divorce on the basis of a one-year separation and denied wife's request for spousal support. The court classified each item of property set forth in the parties' joint exhibit submitted at trial, valuing wife's separate estate at $9780, the husband's separate estate at $11,773 and valuing the marital estate at $303,297.80. The court declined to make a monetary award to either party. Instead, the court ordered the public or private sale of the parties' jointly owned marital property pursuant to Code § 20-107.3(c), as amended in 1988, and an equal division of the proceeds.
On April 21, 1992, the trial court entered the final decree of divorce, which set forth the rulings consistent with its July 10, 1991 opinion.
I.
Husband contends that the trial court erred in placing a value of $50,571.75 on the Liberty Savings Bank account, the value as of the date of separation, as opposed to a value of $16,326.23, the value at the date of trial.
Code § 20-107.3, states in pertinent part:
The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. Upon motion of either party made no less than twenty-one days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used.
This Court held in Price v. Price, 4 Va. App. 224, 232, 355 S.E.2d 905, 909-10 (1987) as follows:
The evidentiary hearing date or trial date may be the most practical and suitable valuation date in most instances. We recognize, however, that this date may not always be the most appropriate since both fortuitous or intentional events can drastically affect values and equities between date of classification and valuation, and courts should have the discretion to adopt a different date if the equities of the case demand it.
On February 24, 1988, the court first ordered husband to pay mortgage payments beginning in March 1988. Prior to its July 1991 opinion valuing the bank account at $50,571.75, the court ordered husband on May 14, 1991, to continue using the Liberty Bank account to pay the mortgage payments until the Liberty Bank account was depleted. This May 14, 1991, order further ordered husband not to spend any money from the bank account other than that authorized by the court.
After the husband had spent the money on mortgage payments and his attorney fees, among other expenses, the balance in the Liberty Bank account at the time of the August 1990 trial had decreased to $16,326.23. The amount of money spent for the mortgage payments, ordered by the court, from March 1988 through July 31, 1990, that was deducted by husband from the Liberty Bank account, was $16,958.17.
We modify the court's order by changing the value of the jointly owned marital Liberty Bank account from $50,571.75 to $33,613.58 to reflect the court ordered mortgage payments made by husband of $16,958.17.
II.
Wife asserts that the trial court should have added accrued interest to the value of the parties' bank account from the date of separation, January 15, 1988, to the trial date of August 15, 1990. However, the evidence in the record is insufficient to determine how much interest accrued. It is not this Court's responsibility to search the record for the proper amount of interest accrued. See Buchanan v. Buchanan, 14 Va. App. 53, 56, 45 S.E.2d 237, 239 (1992).
III.
The joint exhibit reflects that the Liberty Bank account is jointly titled marital property. The value of such account, as determined by this opinion, is $33,613.58. The account shall be divided equally as ordered by the trial court. Because husband has spent money from the account in violation of the court's May 1991 order, husband is responsible for providing wife with one-half of $33,613.58, despite the fact that only $16,326.23 remains in the account. Wife's proper share is $16,806.79.
Wife asserts that the trial court lacked authority to order a sale of the parties' jointly owned marital property pursuant to Code § 20-107.3(C), as amended in July 1988, because this code section does not apply retroactively to this action which was filed in January 1988. We agree, but hold that any error is harmless under the facts and circumstances of this case because neither party can demonstrate any prejudice from sale at public auction, as opposed to partition. However, because neither party requested partition and either party may now seek partition if no agreement can be reached as to the disposition of the marital home, we amend the final decree to exclude the marital residence from the jointly held property to be sold at public auction.
The Jefferson National Bank account, identified as marital property titled only in the husband's name on the joint exhibit, shall not be divided pursuant to the trial court's order, which orders the partitioning of only jointly owned marital property.
IV. Conclusion
Code § 8.01-681 states in pertinent part:
The appellate court shall affirm the judgement if there is no error therein, and reverse the same, in whole or in part, if erroneous, and enter such judgement as to the court shall seem right and proper and shall render final judgement upon the merits whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice.
Because the husband has transferred the Liberty Bank account into his name, the decree is modified to grant the wife an award of $16,806.79, with interest at the legal rate from the date of the decree, April 21, 1992. The decree is further modified to delete the marital residence from the list of property to be sold at public auction. In all other respects the decree is affirmed.
Affirmed and modified.