Duva v. Duva

• Decision Date: 08 December 2009
• Docket Number: Record No. 0179-09-1.
• Citation: 55 Va. App. 286,685 S.E.2d 842
• Parties: Christopher John DUVA v. Karen Denise DUVA.
• Court: Virginia Court of Appeals

685 S.E.2d 842

55 Va. App. 286

Christopher John DUVA v. Karen Denise DUVA.

Record No. 0179-09-1.

Court of Appeals of Virginia, Chesapeake.

December 8, 2009.

Kim M. Mattingly (John H. Kitzmann; Davidson & Kitzmann, P.L.C., on briefs), Charlottesville, for appellant.

Robert Jeffries (Law Offices of Diane Fener, P.C., on brief), Virginia Beach, for appellee.

Present: FELTON C.J., FRANK and POWELL, JJ.

ROBERT P. FRANK, Judge.

Christopher J. Duva, appellant (husband), contends the trial court erred in: (1) refusing to consider any evidence of a change in circumstances relating to visitation and the best interests of the children; (2) classifying a house in Rhode Island as marital property rather than as hybrid or separate property; (3) ordering husband to pay wife spousal support for an unlimited duration; and (4) failing to give husband a credit for payoff of a marital debt and/or failing to equitably apportion marital debt. For the reasons stated, we affirm in part, reverse in part, and remand.

BACKGROUND

The parties were married on October 22, 1995 and have two minor children. For most of the marriage husband was employed as a Navy SEAL, earning approximately $45,000 per year. After retiring due to health problems, husband worked for a defense contractor for just over a year. Husband currently works in Rhode Island in the heating and air conditioning industry. Wife did not work outside the home for the first years of the marriage. From 2001 until the present she has worked part-time as a teacher earning fourteen dollars an hour. She also cleans houses to supplement her income.

Wife filed for divorce on August 3, 2006. On January 7, 2008 the trial court held a hearing on the issues of divorce, custody, visitation, equitable distribution, and spousal support. Prior to the hearing, the parties agreed to joint legal custody of the minor children, with physical custody to the wife. The parties also agreed to supervised visitation to husband until such time as the guardian ad litem felt that unsupervised visitation would be appropriate. This visitation agreement was never memorialized in a decree.

The trial court issued a written opinion letter on August 21, 2008 that addressed equitable distribution and spousal support, but not visitation. On October 28, 2008, the court conducted a hearing on the entry of the final decree and at that time husband requested a modification of the visitation ruling. The court declined to modify its ruling, and husband filed a motion to reconsider addressing various issues, including visitation. On December 1, 2008 the court issued a second opinion letter granting an award of spousal support to the wife, declining to change the visitation arrangements, and entering an order for equitable distribution of the parties' assets.

This appeal follows.

ANALYSIS

Visitation

At the October 28 hearing, husband asked the court for a ruling on visitation, namely, that the court amend the visitation from supervised to unsupervised. The court noted that it had previously left that decision to the guardian ad litem and declined to change that ruling. Husband then requested that the court revise the visitation schedule in his motion to reconsider. In its second opinion letter, the court stated that "[t]o the extent the motion seeks different visitation terms, [husband] has not argued any reason the terms should change. Furthermore, [husband] is also arguing that wife has not complied with the Court's therapy order but that is an issue for a show cause hearing, not a motion for reconsideration."

Husband argues on appeal that wife's refusal to take the children to therapy violated the terms of the oral agreement and, thus, constituted a change of circumstances which the trial court failed to consider in continuing supervised visitation to husband. Wife responds that husband did not show a change of circumstances; he simply reiterated that he was unhappy with the agreement as it currently stood.

Husband's question presented is premised on the belief that the trial court refused to consider evidence of a change in circumstances. At the October 28, 2008 hearing, husband proffered only that wife violated the agreement as to taking the children to therapy. In his motion to reconsider, he again argued only that wife was in violation of the agreement because she took the children to only thirteen therapy sessions. In its December 1, 2008 opinion letter, however, the trial court concluded that husband did not argue any reason why the terms of visitation should change.

When determining whether to change visitation, a trial court "must apply a two-pronged test: (1) whether there has been a change in circumstances since the most recent [visitation] award; and (2) whether a change in [visitation] would be in the best interests of the child." Visikides v. Derr, 3 Va.App. 69, 70, 348 S.E.2d 40, 41 (1986) (discussing this test in the context of custody determinations). "In matters of custody, visitation, and related child care issues, the court's paramount concern is always the best interests of the child." Farley v. Farley, 9 Va.App. 326, 327-28, 387 S.E.2d 794, 795 (1990). "In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests." Id. at 328, 387 S.E.2d at 795. "A trial court's determination of matters within its discretion is reversible on appeal only for an abuse of that discretion, ... and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it." Id.

The trial court concluded that husband did not articulate any material reason the visitation must change. Thus, the trial court did consider husband's argument that the circumstances had changed, and rejected it. We note that husband did not proffer why thirteen therapy sessions was a material change in circumstances, that the number of sessions violated the agreement, nor that the best interests of the children would be furthered by unsupervised visitation. Based upon our standard of review, we do not find that the trial court abused its discretion in not changing the visitation arrangements.

Rhode Island Property

Husband contends the trial court erred in classifying the Rhode Island property as marital. Specifically, he argues that the trial court applied the wrong standard in determining that the Rhode Island property (separate property) was transmuted into marital property because the Rhode Island mortgage was paid by marital funds.

Husband purchased the property in May 1995, five months prior to the parties' marriage. He paid $81,200, and financed the entire purchase price. He titled the property solely in his name, and it remained so throughout the marriage. Husband alone made the first five mortgage payments, but the record does not disclose whether any equity was accumulated during that period.

The parties lived in that property for approximately one year and then moved to Panama. They leased the property, and the rental income was deposited into a joint account for the sole purpose of receiving the rental income. The rent proceeds were then transferred to a joint account with Navy Federal Credit Union. Husband also deposited his Navy paycheck into the Navy Federal Credit Union account, and the parties' joint debts were paid from that account. After the marriage, the Navy Federal Credit Union account paid all of the mortgage payments. Because the rental income was never adequate to fully pay the mortgage, marital funds from the Navy Federal Credit Union account were used to supplement the rental income to pay the mortgage. The property was refinanced several times, but wife never had any liability on any of the notes.

In its August 21, 2008 opinion letter, the trial court classified the property as marital. In response to husband's motion to reconsider, alleging the court did not properly classify the property, the trial court clarified its earlier ruling in an opinion letter dated December 1, 2008, which stated in part:

The simple fact the property was acquired before marriage does not overcome the Court's finding that the bulk of the mortgage was paid with marital funds. Separate property may become marital property by the act of commingling which is what was found to occur in this case. See Va. Code § 20-107.3(A)(3)(d) (2008).

The trial court found that the property's mortgage was paid from marital funds, i.e., that the marital funds were commingled with the separate property. The court concluded that the Rhode Island property was transmuted to marital property. This analysis did not address tracing the commingled funds or hybrid property.

Code § 20-107.3(A) requires that the circuit court determine "the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property." The trial court's classification of property as marital or separate is a factual finding. Therefore, that classification will be reversed on appeal only if it is "`plainly wrong or without evidence to support it.'" Ranney v. Ranney, 45 Va.App. 17, 31-32, 608 S.E.2d 485, 492 (2005) (quoting McDavid v. McDavid, 19 Va.App. 406, 407-08, 451 S.E.2d 713, 715 (1994)).

Marital property is all property titled in the names of both parties and all other property acquired by each party during the marriage which is not separate property, i.e., property received during the marriage by bequest, devise, descent, survivorship or gift from someone other than the spouse. See Code § 20-107.3(A)(2). "All property ... acquired by either spouse during the marriage, and before the last separation of the parties ... is presumed to be marital property in the absence of satisfactory evidence that it is separate property." Id.

Code § 20-107.3(A)(3)(d) defines "hybrid...