Opinion
Record No. 1843-92-2
September 7, 1993
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY RICHARD H. C. TAYLOR, JUDGE.
William H. Hurd for appellant.
Joseph A. Vance, IV (Roberts, Sokol, Ashby Jones, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In Thomas v. Thomas, 13 Va. App. 92, 408 S.E.2d 596 (1991), this Court reversed the trial judge's decision concerning a monetary award and remanded the case for reconsideration. Richard W. Thomas now appeals from the final decree of divorce that was entered on remand and that granted his wife, Donna C. Thomas, a monetary award. The husband contends that the trial judge erred (1) in basing the monetary award upon the $300,000 personal injury settlement proceeds remaining at the time of the separation, without considering expenditures made for the support of the wife, the husband, and the children; and (2) in failing to reconsider all the statutory factors in Code § 20.107.3(E), especially those that mandate consideration of the husband's disability and the wife's conduct that contributed to the dissolution of the marriage. We affirm the decree.
I.
Most of the relevant facts concerning this appeal are recited in this Court's prior decision. See 13 Va. App. 93, 418 S.E.2d 597. In summary, the record establishes that the parties were divorced by a final decree based on one year's separation. Following the initial evidentiary hearing, the trial judge ruled that the proceeds of a $300,000 personal injury settlement were the separate property of the husband, whose injuries from an automobile accident gave rise to the settlement. The remaining item of marital property, the marital residence, was divided equally between the parties. The wife appealed to this Court the issue whether the personal injury insurance settlement was the separate property of the husband. Id. This Court reversed the trial judge's decision and ruled that the insurance proceeds were marital property. Id. at 96, 408 S.E.2d at 599. On remand, the trial judge increased the monetary award to the wife by an additional $75,000. The husband appeals that decision.
II.
Where one party alleges that the other has dissipated marital assets, "equity can only be accomplished if the party who last had the funds is held accountable for them." Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990). "Once the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with dissipation to prove that the money was spent for a proper purpose." Id. In this case, the husband was the one who last held the insurance proceeds and, thus, had the burden "to establish by a preponderance of the evidence that the funds were used for living expenses or for some other proper purpose." Id. at 587, 397 S.E.2d at 261.
The record contains the husband's testimony that he used an unspecified portion of the money for his and the children's support. He testified as follows:
Q. How much of the three hundred thousand dollars did you use for your support?
A. Quite a bit.
Q. Well, how much?
A. I don't, you know — hell, I don't add up daily columns of what I spend.
* * *
Q. Well, do you have no conception how much [money] you have given away?
A. I have no conception of what happened to all of it.
Q. And you have no conception how much you use for your support?
A. A good deal of it, I told you.
The record also contains evidence that the husband loaned part of the settlement proceeds to individuals upon their oral agreement to repay the amount and that the husband bought several luxury items with the insurance proceeds. The trial judge found from the evidence that, after the separation, the husband either squandered or was unable to account for a large portion of the insurance proceeds. These findings are supported by the evidence. Because the husband was unable to offer sufficient proof that the proceeds were used for a proper purpose, the trial judge correctly valued the settlement proceeds at a date other than the date of the evidentiary hearing so as to achieve an equitable result. Id. Consequently, we conclude that the trial judge did not err in holding the husband accountable for the amount of insurance proceeds existing at the time of the separation.
III.
It is well established that the trial judge must consider all of the factors set forth in Code § 20-107.3(E) in fixing a monetary award. Taylor v. Taylor, 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988). Furthermore, this Court has ruled that the trial judge "need not quantify or elaborate exactly what weight was given to each of the factors," provided the findings are "based upon credible evidence." Id. "Unless it appears from the record that the trial judge has not considered or has misapplied one of the statutory mandates, this Court will not reverse on appeal." Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989).
The trial judge's opinion letter stated that the trial judge considered the factors in Code § 20-107.3 in determining that the wife was entitled to additional monetary award of $75,000. Although the trial judge did not elaborate and state what weight he gave to each factor, he was not required to do so.Taylor, 5 Va. App. at 444, 364 S.E.2d at 249. Evidence was presented at the initial ore tenus hearing from which the same trial judge had initially considered evidence of factors as they related to the equitable distribution of the residence and other property of the parties. We find no evidence that he did not properly consider the factors of Code § 20-107.3.
We find no merit to the husband's contention that the trial judge treated as inconsequential the husband's total and permanent disability and disregarded the wife's contribution to the dissolution of the marriage. The husband did not appeal the trial judge's February 1, 1990, monetary award and application of the statutory factors to the marital property. On remand, the trial judge was entitled to give consideration to the statutory factors he previously determined. That he gave the wife an award equivalent to only 25% of the available amount is evidence that he considered the husband's disability.
The husband did not offer any proof and the record does not contain any evidence that the wife's contribution to the dissolution of the marriage had any effect upon the marital property or its value. "Circumstances that lead to the dissolution of the marriage but have no effect upon the marital property or its value are not relevant to determining a monetary award and need not be considered." Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436 (1991). See also Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988).
The final decree recites that "[t]he Court did receive evidence and take into consideration for the purpose of reaching this decision all relevant matters pertaining to the factors set forth in Section 20-107.3 of the Code of Virginia." The findings are supported by the record. Accordingly, we affirm the decree.
Affirmed.