Buchanan v. Buchanan

• Court: Virginia Court of Appeals
• Writing for the Court: William H. Hodges
• Decision Date: 30 September 2003
• Docket Number: Record No. 2244-02-2.
• Citation: Buchanan v. Buchanan (Va. App. 2003)
• Parties: LUTHER BRUCE BUCHANAN, v. BONNIE BUCHANAN.

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LUTHER BRUCE BUCHANAN, v. BONNIE BUCHANAN.

Record No. 2244-02-2.

Court of Appeals of Virginia.

September 30, 2003.

APPEAL FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn, Judge.

Michael J. Brickhill (Michael J. Brickhill, P.C., on brief), for appellant.

Carol B. Gravitt (E. Sterling Byrd-Roberts; Gravitt & Gravitt, P.C., on brief), for appellee.

Present: Judges Benton, Clements and Senior Judge Hodges Argued at Richmond, Virginia.

MEMORANDUM OPINION^* BY JUDGE WILLIAM H. HODGES.

Luther Bruce Buchanan (husband) contends on appeal that the trial court erred: (1) in awarding Bonnie Buchanan (wife) a divorce on the basis of constructive desertion; (2) in failing to explain the factors upon which it based equitable distribution of the marital property; (3) in refusing to assign a present value to wife's Virginia Retirement System (VRS) pension; (4) in assigning husband only 25% of wife's pension and awarding her a monetary award of $105,000; (5) in finding as wife's separate property a contribution of $23,000 from her inheritance used to improve the marital home; (6) in conditioning the Qualified Domestic Relations Order (QDRO) on a specific payment of the monetary award to wife; (7) in ordering interest to accrue on the amount of the monetary award if not timely paid; (8) in reserving wife's right to seek spousal support for a specified period; and (9) in barring husband's transfer, disposition, conveyance or encumbrance of his solely titled property until after entry of the final divorce decree.

Pursuant to Rule 5A:21(b), wife contends that the trial court erred in considering certain debts of husband in the division of property.

After reviewing the record and considering arguments of the parties, we affirm the trial court.

PROCEDURAL HISTORY

Husband filed a bill of complaint on March 9, 2001, seeking a divorce. As grounds, husband alleged cruelty and constructive desertion on the basis of an alleged assault by wife as well as repeated incidences of verbal abuse. He sought equitable distribution of the marital property, spousal support, possession of the marital home, and attorney's fees and costs.

Wife filed an answer and cross-bill. She denied any intentional assault on husband other than in her own attempts to defend herself against his abuse. In her cross-bill, wife requested a divorce a mensa et thoro pursuant to Code § 20-91(6). She sought spousal support, equitable distribution of the marital property, court costs and attorney's fees. Husband denied wife's allegations and moved to dismiss the cross-bill.

Following extensive evidentiary hearings, the trial court found that wife proved cruelty by husband and ordered the marriage dissolved on that basis. The trial court distributed the marital property in accordance with Code § 20-107.3 as set out in the court's opinion letter dated April 18, 2002, and Attachment A to that letter. The trial court valued the marital property, including debts and liabilities, at $207,962.01.

The trial court ordered husband to pay wife "a lump sum monetary award of One Hundred and Five Thousand Dollars ($105,000) which shall accrue interest at the judgment rate until paid if unpaid beginning June 1, 2002." The trial court allowed husband to pay the award in three installments, with $50,000 due by June 1, 2002, $35,000 by September 1, 2002, and $20,000 by June 1, 2003.

In the final decree, the trial court conditioned entry of the QDRO¹ on husband paying at least $50,000 of the wife's monetary award. The court awarded wife $27,000 in attorney's fees and costs incurred in the divorce proceeding and the fraudulent conveyance action brought against husband. In the decree, the trial court prohibited husband from "transferring, disposing, destroying or encumbering the boat until wife's monetary award and award of attorney's fees is satisfied except as is necessary to pay to wife the monetary award and attorney's fees directed herein." The trial court reserved wife's right to seek spousal support. Following entry of the final decree, both parties filed written objections to the order on multiple grounds.

STATEMENT OF FACTS

On appeal, we review the evidence in the light most favorable to the wife, the prevailing party below, and grant all reasonable inferences fairly deducible therefrom. Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999); Gamer v. Gamer 16 Va. App. 335, 340, 429 S.E.2d 618, 622 (1993); McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990).

Husband and wife married on September 21, 1973. In 1979, the parties built a home in Mecklenburg County on land purchased by husband prior to their marriage. The land is titled solely in husband's name but the parties agree it is marital property. Husband operates his own business, and wife works for the Halifax County Health Department. At the date of filing of the bill of complaint, wife had twenty-five years of service with the health department. During the marriage, wife participated in the operation of husband's business as a general bookkeeper. Husband and wife have one child, who was emancipated at the time the action commenced.

The parties separated on February 1, 2000, following husband's arrest for assault and battery of wife on that same day. Wife testified that husband began choking her during a heated argument. Husband threatened to kill her and forced a gun barrel in her mouth, cracking her tooth. Wife described other incidents of abuse, including one where husband pulled her from a chair with such force that he dislocated her shoulder. In the last two years of the marriage, husband's behavior became increasingly violent toward his wife and son. The record contains deposition testimony of wife and the son taken on December 18, 2001, detailing several instances of husband's abusive behavior.

On December 20, 2001, the trial court received extensive evidence regarding equitable distribution of the marital assets. The parties agreed that the marital home "was built during the course of the marriage with funds that were marital property [and t]here is no question that it's [a] marital asset." The parties agreed that the home would be assigned to the husband but left open wife's claim to separate funds for monies she contributed for an addition to the home.

Each party introduced separate expert valuations of wife's VRS pension. The experts applied interest rates to their calculations derived from different sources and arrived at distinctly different values.

Husband testified that he borrowed $8,000 from Dewey Edwards and $2,000 from Mr. Ellis of Ellis Septic Tank Company. The trial court attributed $2,946.05 in marital debt to wife.

In a separate but related fraudulent conveyance action brought by wife against husband, wife alleged that husband, after separation, borrowed $80,000 against equity in the marital home and used that money to repay certain alleged loans. In that suit, wife challenged a $5,750 payment by husband to his father and a $12,250 payment by husband to his mother. By order dated October 12, 2001, the trial court found that the transfers to husband's parents were fraudulent pursuant to Code § 55-80 and placed the amounts in a constructive trust pending the outcome of the divorce action.²

On April 18, 2002, the trial court issued an opinion letter granting wife a divorce. It outlined its findings and the values assigned to the equitable distribution schedule and ordered wife's counsel to prepare a rough draft of the final decree of divorce.

At a May 1, 2002 hearing to determine attorneys' fees, husband objected to the reservation of spousal support included in the draft decree and asked the trial court to explain the factors it used to arrive at its equitable distribution award. The trial court declined to elaborate on or quantify any of the specific factors. The trial court entered the final decree of divorce on August 6, 2002.

DISCUSSION

1. GROUNDS FOR DIVORCE

Husband contends the trial court erred in granting wife a divorce on the basis of constructive desertion. He argues the trial court erred in finding constructive desertion because wife remained in the marital home.

"On appellate review, a divorce decree is presumed correct and will not be overturned if supported by substantial, competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va. App. 77, 83, 448 S.E.2d 666, 670 (1994). Findings by the trial court are given considerable deference on review, and "we defer to the factual findings of the court . . . where the court took evidence ore tenus." Shackelford v. Shackelford, 39 Va. App. 201, 207, 571 S.E.2d 917, 920 (2002).

"Where dual or multiple grounds for divorce exist, the trial judge can use . . . sound discretion to select the grounds upon which . . . to grant the divorce." Sargent v. Sargent, 20 Va. App. 694, 707, 460 S.E.2d 596, 602 (1995); Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989).

Code § 20-91(6) authorizes a trial court to grant a divorce "where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other." (Emphasis added.) It is within a trial court's discretion to determine whether a finding of cruelty "entitles a wife to a divorce on the ground of constructive desertion." Brawand v. Brawand, 1 Va. App. 305, 309, 338 S.E.2d 651, 653 (1986). Desertion as a ground for divorce does not depend on who actually leaves the marital home. Rather, "[i]t means desertion of the marital relationship," and it "may be `constructive,' for cruelty by one party, which results in the other party's enforced separation." Zinkhan v. Zinkhan, 2 Va. App. 200, 208, 342 S.E.2d 658, 662 (1986).

In the final decree, the trial court found that "cruelty grounds for divorce exist in favor of the Wife against Husband pursuant to Virginia Code § 20-91(6)." Substantial, competent and credible evidence supports such a finding by the trial...