Hamad v. Hamad

Decision Date26 March 2013
Docket NumberRecord No. 1148–12–2.
Citation739 S.E.2d 232,61 Va.App. 593
PartiesYasmine S. HAMAD v. Sammy N. HAMAD.
CourtVirginia Court of Appeals

61 Va.App. 593
739 S.E.2d 232

Yasmine S. HAMAD
v.
Sammy N. HAMAD.

Record No. 1148–12–2.

Court of Appeals of Virginia,
Richmond.

March 26, 2013.


[739 S.E.2d 234]


Jason P. Seiden (Ronald R. Tweel; Michie Hamlet Lowry Rasmussen & Tweel, PLLC, Charlottesville, on briefs), for appellant.

Brandy M. Poss (Lawrence D. Diehl; Barnes & Diehl, P.C., Chesterfield, on brief), for appellee.


Present: FRANK, HUMPHREYS and KELSEY, JJ.

KELSEY, Judge.

[61 Va.App. 595]On several grounds, Yasmine S. Hamad appeals a final divorce decree awarding 60% of the marital assets to her husband. Finding no reversible error in the trial court's decision, we affirm.

[61 Va.App. 596]I.

On appeal, “we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” White v. White, 56 Va.App. 214, 216, 692 S.E.2d 289, 290 (2010) (quoting Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003)). “That principle requires us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial.” Owens v. Owens, 41 Va.App. 844, 848–49, 589 S.E.2d 488, 491 (2003) (citation omitted).

So viewed, the evidence before the trial court showed that Yasmine S. Hamad (wife) and Sammy N. Hamad (husband) married in 1982. In 2009, they each filed complaints seeking a divorce. They agreed to a no-fault divorce and submitted to the trial court their requests for equitable distribution and attorney fees. Relying entirely upon depositions and exhibits, neither presented any ore tenus evidence for the court to consider.

The trial court reviewed the evidence, read the parties' memoranda, and heard oral argument. The court thereafter issued a detailed letter opinion addressing equitable distribution and attorney fees. The issues on appeal involve the distribution of several liquid asset accounts in the joint names of husband and his mother: a Scottrade account, a Janus account, an Edward Jones account, a Peoples Advantage account, and an EVB Certificate of Deposit. The court determined the value of each account and identified the separate and marital portions of the Scottrade and Janus accounts. All of the account values derived directly from account statements introduced as joint exhibits. The parties presented no other valuation evidence.

The trial court then addressed the distribution factors under Code § 20–107.3. The court considered wife's admitted adultery during husband's departure of “nearly four years” from the marital home. App. at 1664. The court noted husband's assertion that wife's infidelity caused the marriage to dissolve, [61 Va.App. 597]as well as wife's excuse that she was “lonely” during her husband's absence. Id. The court also took into account the significant contributions made to the marriage by both parties. Based upon this evidence, the court distributed 60% of the marital assets to husband and 40% to wife.

Dissatisfied with the court's explanation for the 60/40 division, wife filed a “Motion for Clarification.” Id. at 1666. Among other things, wife contended the 60/40 division was inconsistent with “what appears to be a favorable discussion of [wife's] side of the case,” and speculated that perhaps “the figures were merely reversed” by inadvertence. Id.

At the hearing on the motion, wife's counsel requested that the trial court further clarify the 60/40 division ratio. Wife's counsel expressed his desire “to stress to the Court” that he was not “asking for a rehearing.” Id. at 1674. Rather, counsel simply “wanted to make sure there wasn't a two percent chance that the Court didn't somehow in drafting the letter, switch those percentages,” given the court's “quite favorable” remarks about wife in the letter opinion. Id. at 1678–79.

From the bench, the court assured wife's counsel that the 60/40 split in husband's favor was not a clerical error. The court made no mention of wife's adultery in its clarification, but identified another consideration not mentioned in the letter opinion:

With regard to the 60/40 split, the method that the Court used in evaluating the respective equities of the parties, quite

[739 S.E.2d 235]

frankly I thought that the defendant failed in tracing many of the assets. And therefore, they became either hybrid or marital assets?

On the other hand, as [husband's counsel] pointed out, many of those assets could have been foreseeably family assets. But the lack in tracing and the way that these parties did business, left the Court almost in a vacuum to make a determination as to the credibility of and the authenticity of those funds.

61 Va.App. 598]Id. at 1681. Wife's counsel did not object to the court's additional explanation.

At the hearing, wife's counsel also raised what he called a “half issue,” id. at 1677, noting that the court's letter opinion had used the liquid account balances found on the statements offered into evidence. Though wife's counsel thought he and husband's counsel had already “clarified” the point between themselves, id., he said the account statements were not current as of the time of the equitable distribution hearing and stated that current statements were needed “to bring everything up to date,” id. at 1678. The court did not specifically address the liquid accounts in its remarks from the bench but did restate the general rule: “The value of the assets [is] as of the date of the hearing. That's the law of the case and the law of Virginia.... And as far as the other assets, it's the value as of the date of the hearing.” Id. at 1681–82.

At the court's request, wife's counsel drafted the proposed final decree for the court's consideration. The court entered the decree as written, except for one minor handwritten edit. The decree reaffirmed the court's findings, noting they were “more particularly described in its letter ruling,” and restated the “characterization of the property.” Id. at 1691. The decree also included this restatement of the court's earlier comments from the bench: “[M]any of the contested assets, [husband] was unable to completely trace which caused the assets to become marital or hybrid. However, these assets could have been foreseeably [husband's] family assets. The Court considered the substantial contributions of [husband's] parents.” Id. at 1698. Consistent with the court's letter opinion, the final decree distributed 60% of the marital assets to husband and 40% to wife.

The final decree did not address wife's contention that the valuation figures should be updated with more current account balances. Instead, the decree recited the amounts previously noted in the court's letter opinion, which were based upon the account statements offered by the parties into evidence.

[61 Va.App. 599]Wife's counsel endorsed the order with the caveat, “Seen and objected to ... based on [wife's] objections filed herein.” Id. at 1700. Three of wife's objections are relevant to this appeal:

• [Wife] objects to the Court's ruling which awarded [husband] ... 60% of the marital estate or assets.... [T]he Court utilized a factor, which is not an appropriate factor, to determine the extent of equitable distribution under Code Section 20–107.3. The Court, after ruling that numerous accounts held jointly by [husband] and his mother were “marital accounts,” basically utilized some remaining doubts about the classification of those assets to award [husband] 60%.

• [Wife] objects to the Court's ruling which did not award a majority of the marital assets to [wife] as the Court did not properly consider all of the statutory factors found in Code Section 20–107.3.

• [Wife] objects to the Court's ruling which did not call for a division of the current balance of numerous liquid accounts such as CDs and money market funds, and instead only awarded [wife] a percentage of the balance of those marital accounts at the time that the evidence was produced by way of deposition almost 6 months before. There was no need to “value” accounts that are entirely marital and liquid such as money market funds, stock funds and CDs.

Id. at 1687–88.


II.

Wife retained new counsel to appeal the trial court's ruling. Wife's appellate counsel raises two assignments of error. The first asserts the trial court erred (for four separate

[739 S.E.2d 236

reasons) in awarding husband 60% of the marital assets. The second contends the court erred by using stale values for the liquid accounts (calculated generally around the time of several depositions) rather than the account balances at the time of the equitable distribution hearing. We find several aspects of [61 Va.App. 600]wife's arguments on appeal to be procedurally defaulted and conclude the remaining arguments have no merit.

A. Procedurally Defaulted Sub–Arguments

Wife supports her first assignment of error challenging the 60/40 distribution ratio with four sub-arguments. As wife sees it, the trial court erroneously (1a) distributed marital assets “as if” they were hybrid; (1b) treated its own “speculation and confusion over the evidence” as a distribution factor; (1c) took into account “the substantial contributions” to the marriage made by husband's parents; and (1d) “failed to identify any factor” justifying the 60/40 distribution ratio. Appellant's Br. at 3.

In the trial court, however, wife made only two objections to the 60/40 distribution ruling: First, she claimed that the court based its decision on its “remaining doubts about the classification” and improperly treated those doubts as a distribution factor. App. at 1687. Second, she argued that the court “did not properly consider all of the statutory factors.” Id. at 1688.

To some extent, wife's sub-arguments on appeal attempt to flesh out her rather general objections in the trial court. But, in doing so, her sub-arguments go considerably beyond the objections made in the trial court. Rule 5A:18 precludes us from addressing on appeal issues different from those presented to...

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