Booth v. Booth

• Court: Virginia Court of Appeals
• Writing for the Court: COLEMAN
• Citation: Booth v. Booth, 371 S.E.2d 569, 7 Va.App. 22 (Va. App. 1988)
• Decision Date: 06 September 1988
• Docket Number: No. 0981-86-3,0981-86-3
• Parties: Wayne Bush BOOTH v. Helen Cash BOOTH. Record

Page 569

371 S.E.2d 569

7 Va.App. 22

Wayne Bush BOOTH v. Helen Cash BOOTH.

Record No. 0981-86-3.

Court of Appeals of Virginia.

Sept. 6, 1988.

S.J. Thompson, Jr. (John T. Cook; Caskie Frost Hobbs Thompson Knakal & Alford, Lynchburg, on brief), for appellant.

L.B. Cann, III (Little, Parsley & Cluverius, Richmond), for appellee.

Present: COLEMAN, DUFF and HODGES, JJ.

COLEMAN, Judge.

On February 2, 1988, we issued an opinion in this case which addressed all issues which had been briefed and argued. On February 26, 1988, we granted appellant a rehearing primarily to consider whether the opinion had improvidently addressed an issue which the appellee had voluntarily withdrawn after oral argument. At the hearing we addressed whether the appellee had withdrawn the issue of BAT Masonry stock, whether the evidence supported our original finding of transmutation, and whether the amount of the monetary award was excessive. We withdrew the original opinion pending the rehearing. Finding that we did improvidently address the issue of classification of BAT Masonry stock, we modify and reissue that opinion.

Equitable distribution in divorce cases in Virginia is a recent creature of statute. Judicial construction of the statute is in its infancy. The many questions concerning the scope, intention and application of the act are now only beginning to be answered. Wayne Booth's appeal of a $565,000 monetary award to his former wife raises some questions under the act which we have not previously addressed. His appeal challenges the applicability of the statute to causes of action that arose before the effective date of the statute, the factors considered by the trial judge in determining the amount of the monetary award, and the steps a trial court may take in ordering a monetary award. Helen Booth challenges the trial court's order that she transfer her interest in the marital home and the court's failure to require a bond from Wayne Booth to secure the deferred portion of her award.

We hold that the statute providing for a monetary award, commonly referred to as the equitable distribution act, applies to this case; that the trial court erred in ordering Helen Booth to transfer her interest in the marital home; and that there was no error in the court's consideration of the statutory factors in determining the amount of the award. Therefore, we vacate the award and remand.

In 1964, Wayne Booth and Helen Cash married. Two children were born of their marriage. Mrs. Booth left the marital home on August 1, 1982. She filed for divorce on August 4, 1982. On January 13, 1983, Mrs. Booth filed a motion in the divorce proceeding for an equitable distribution award. She filed an amended complaint on May 16, 1984, seeking a divorce on the ground of a one year separation. Mr. Booth opposed the motion for equitable distribution on the ground that the cause of action accrued and the parties' property rights were vested before the statute giving rise to equitable distribution became effective. The trial court denied his motion.

When the divorce was granted, the trial judge expressly reserved the issue of equitable distribution. See Morris v. Morris, 3 Va.App. 303, 349 S.E.2d 661 (1986); Parra v. Parra, 1 Va.App. 118, 336 S.E.2d 157 (1985). After receiving evidence he awarded Mrs. Booth $565,000 and ordered the method of payment.

I. Applicability of Statute

We first consider whether the monetary award statute applied. The General Assembly can determine whether legislation applies prospectively or retrospectively, subject to the limitation that its enactments may not infringe or impair a constitutionally protected right or vested interest. U.S. Const. art. I, § 10, cl. 1; Va. Const. art. I, § 11; see also Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787, 789 (1977). The intent of the General Assembly determines whether a statute will be applied retrospectively, but the general rule of statutory construction is that legislation only speaks prospectively. See Eaton v. Davis, 176 Va. 330, 336, 10 S.E.2d 893, 896 (1940). In the absence of expressed provisions, the intent must be gleaned from legislative history, statutory scheme and purpose, and principles of statutory construction. In drafting the statute, the legislature specified "[t]hat the provisions of [the act] shall not affect any pending litigation." Ch. 309, cl. 3, 1982 Va. Acts 517. The effective date of the statute was July 1, 1982. It is silent concerning divorce suits filed after July 1, 1982, involving causes of action that arose prior thereto. Since the Booth case was not pending before the effective date, it is not excluded by the express language of the act.

Although the presumption in Virginia is against retrospective effect, Fry v. Schwarting, 4 Va.App. 173, 180, 355 S.E.2d 342, 346 (1987), we think it apparent from the language of the statute, as well as the necessary consequences of the act, that it applies to cases filed after the effective date of the statute, regardless of when the cause of action arose. To hold otherwise would require courts a generation from now to apply outmoded principles of law. Indeed, we would postpone solving for some time the very inequity the legislature sought to remedy. Disputes would arise over when the grounds for divorce occurred and which support and property laws applied. The legislature could not have intended that result.

Legislative intent that a statute apply retroactively will control unless to do so would impair vested rights. Shoosmith, 217 Va. at 793, 232 S.E.2d at 789. Mr. Booth argues that his vested property rights are impaired by application of the new statute. We disagree. Divorce is uniquely a creature of statute and the legislature has the power to govern marriage and its incidents, subject only to constitutional limitations. See Rothman v. Rothman, 65 N.J. 219, 228, 320 A.2d 496, 501 (1974). The parties have no vested right in the expectancy that a particular statute will be applied in case of a divorce unless a contractual right created by the parties is involved. "[T]he Legislature may change the remedies available upon divorce without offending constitutional principles; and ... there [is] 'no vested' right in a particular statutory procedure governing the disposition of property upon divorce." Valladares v. Valladares, 80 A.D.2d 244, 253, 438 N.Y.S.2d 810, 816 (1981).

We hold that the equitable distribution statute providing for a monetary award applies to all actions filed after its effective date, regardless of when the cause of action arose, and that it applies to property acquired prior to the effective date of the act, unless the parties have agreed otherwise.

II. Considerations in Determining Amount of Award

We next decide whether the trial judge erred in considering evidence of the waste of marital assets and evidence of attorneys' fees in determining the amount of the monetary award.

Mr. Booth argues Mrs. Booth's award should be reduced because the trial court failed to consider her "waste" of $146,000 of marital assets. Although not an exclusive definition, "waste" may be generally characterized as the dissipation of marital funds in anticipation of divorce or separation for a purpose unrelated to the marriage and in derogation of the marital relationship at a time when the marriage is in jeopardy. See In re Marriage of Smith, 114 Ill.App.3d 47, 69 Ill.Dec. 827, 448 N.E.2d 545 (1983). Just as a court may consider positive contributions to the marriage in making an equitable distribution award, it can also consider "negative" contributions in the form of squandering and destroying marital resources. Anstutz v. Anstutz, 112 Wis.2d 10, 331 N.W.2d 844 (Ct.App.1983). The goal of equitable distribution is to adjust the property interests of the spouses fairly and equitably. The mechanism to accomplish that goal is the monetary award. To allow one spouse to squander marital property is to make an equitable award impossible. Sharp v. Sharp, 58 Md.App. 386, 399, 473 A.2d 499, 505 (1984). On the other hand, at least until the parties contemplate divorce, each is free to spend marital funds. To decide a question of dissipation of marital assets, we must accommodate these conflicting interests in the marital estate.

Normally, only property owned by the parties at the time of the last separation is classified as marital property. Code § 20-107.3(A)(2)(ii); Wagner v. Wagner, 4 Va.App. 397, 404, 358 S.E.2d 407, 410 (1987); Price v. Price, 4 Va.App. 224, 231, 355 S.E.2d 905, 909 (1987). In the case of assets wasted or dissipated in anticipation of separation or divorce, however, equity can only be accomplished if the party who last had the funds is held accountable for them. The funds necessarily must be considered marital assets held by the party guilty of waste. The trial judge then may consider that one party has wasted assets as a factor when the judge determines the amount of the award. Code § 20-107.3(E)(2) (contributions to the care and maintenance of marital properties).

Mr. Booth presented evidence that Mrs. Booth removed $146,000 from the marital resources. Mrs. Booth then explained her use of those funds. The trial judge specifically considered the question of waste as a factor under Code § 20-107.3(E)(11), which allows the court to consider factors other than those enumerated when such consideration is necessary or appropriate to reach an equitable decision. He found that $60,000 of the $146,000 was wasted when lost in a speculative stock market venture. Mrs. Booth did not challenge that ruling. The remainder, which Mrs. Booth used to pay legal fees and to support herself and her son, was not wasted. The record does not reflect whether the trial judge included that $60,000 as a part of the marital estate. Since we remand this case for reconsideration on other issues, we direct the trial court to reconsider this issue if necessary in view of our holding. The record does reflect that the...