Frazer v. Frazer

• Decision Date: 29 October 1996
• Docket Number: Nos. 1699-95-2,1975-95-2,s. 1699-95-2
• Citation: 23 Va.App. 358,477 S.E.2d 290
• Parties: Linda S. FRAZER v. James Douglas FRAZER. Record
• Court: Virginia Court of Appeals

Page 290

477 S.E.2d 290

23 Va.App. 358

Linda S. FRAZER v. James Douglas FRAZER.

Record Nos. 1699-95-2, 1975-95-2.

Court of Appeals of Virginia,

Richmond.

Oct. 29, 1996.

Gail H. Miller; John Randolph Smith, Richmond (Smith & Miller, P.C., on briefs), for appellant.

Murray J. Janus, Richmond (Deanna D. Cook; Bremner & Janus, on brief), for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Linda S. Frazer (wife) appeals the trial court's decisions on equitable distribution, spousal support, and child support. She argues, inter alia, that the trial court erred in: (1) valuing the business of James Douglas Frazer (husband); (2) dividing the parties' Merrill Lynch accounts; (3) crediting husband with his separate property; (4) dividing the parties' Harmony Hills property; (5) ordering each party to pay fifty percent of extraordinary medical expenses for their son; (6) failing to award wife additional pendente lite spousal support and awarding permanent spousal support beginning one month after entry of the final decree; (7) determining husband's gross income for spousal support purposes; (8) calculating spousal support; (9) modifying the child support award after wife had appealed the final decree to this Court; (10) including wife's spousal support in her income for child support purposes; (11) the distribution to husband of his First Penn life insurance policy valued at $12,000; (12) the division of the cash value of a life insurance policy owned by husband; and (13) the exclusion of the $870 life insurance premium from the marital estate. For the following reasons, we remand to the trial court for further proceedings in accordance with this opinion.

BACKGROUND

The parties were married on December 16, 1978. After their marriage, husband adopted wife's daughter from her first marriage, and their son Ben was born on February 5, 1980. The parties separated when husband left the marital residence on October 7, 1992.

Husband filed a bill of complaint for divorce on December 31, 1992. A pendente lite hearing was held January 20, 1994, and the trial court awarded wife custody of the parties' son, $1,704 per month in child support The evidence established that, when the parties married in 1978, husband worked for Litton Industries. In 1984, husband left Litton, and the parties started Frazer Sales & Associates, Inc., with husband as the sole shareholder. Husband's monetary contributions to the marriage were far greater than wife's. His monthly salary was approximately $18,000. Husband's nonmonetary contributions included coaching Ben's soccer team, cleaning the house, and maintaining the yard. Wife's nonmonetary contributions to the marriage included maintaining the home, cooking, caring for the children, and doing the family's laundry and shopping. She also was involved in community activities, helped husband with his business, and entertained his clients. The standard of living established during the marriage was high. The parties lived in a large home and owned luxury vehicles, a sport fishing boat, and a condominium in Hampton, Virginia.

and $1,000 in spousal support for three months. Evidence on equitable distribution and support issues was taken by deposition, and each party submitted exhibits to the trial court.

The trial court issued its first letter opinion on October 6, 1994, and a subsequent letter opinion on October 28, 1994, both resolving issues of equitable distribution and child support. The court held a hearing on February 2, 1995 to consider the parties' requests for division of the marital assets. The final letter opinion dated March 3, 1995 resolved the issues of equitable distribution, spousal support, and child support. A final decree of divorce was entered July 7, 1995, and incorporated the letter opinions of October 28, 1994 and March 3, 1995.

Wife appealed the final decree to this Court on August 1, 1995. On August 3, 1995, the trial court reduced husband's child support obligation to comply with the new legislative guidelines enacted July 1, 1995. On August 30, 1995, wife noted her appeal of the August 3, 1995 order. By order of this Court dated September 19, 1995, the two appeals were consolidated for briefing and argument.

VALUATION OF HUSBAND'S BUSINESS

Husband is the sole stockholder of Frazer Sales & Associates, Inc., a manufacturer's representative business. Wife's expert, who was qualified in valuing similar businesses, valued husband's business at $423,500 and prepared a detailed written report. In evaluating the business, wife's expert relied upon the business' tax returns and information obtained from wife about the history of the business until she left the business in 1991. He also considered the customers and the general operation of the business. Wife's expert had no contact with husband, his employees, or customers in gathering information about the business.

Husband's expert, the accountant for the business, reviewed corporate books and records and had prepared the business' 1993 tax return. In determining the value of the business, he examined its capital assets and current income and expenses. Husband's expert valued the assets of the business at $75,000 and opined that the business had "perhaps as much as $150,000.00 in value." Husband's expert emphasized the personal nature of husband's relationships with his clients and the importance of husband's participation to the business' continued success. Additionally, husband testified that he had worked twenty-six years in developing his relationships with his two customers and that the business would have no value if he was not part of the company. The trial court accepted husband's evidence and valued the business at $150,000.

Wife argues that the trial court erred in accepting husband's expert's value of Frazer Sales and in rejecting wife's expert's detailed analysis.

"Conflicting expert opinions constitute a question of fact...." McCaskey v. Patrick Henry Hosp., 225 Va. 413, 415, 304 S.E.2d 1, 2 (1983). The trial court's "province alone, as the finder of fact, [is] to assess the credibility of the witnesses and the probative value to be given their testimony." Richardson v. Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991). In determining the value of marital property, " 'the finder of fact is not required to accept as conclusive In the instant case, the trial court accepted the valuation of husband's expert after weighing the valuations presented by both experts and the basis for each expert's opinion. Husband's expert was clearly familiar with the daily workings of the business and its records and assets, and based his opinion in part on the importance of husband's personal contributions to the success of the business. Although wife's expert had valued similar businesses and prepared a detailed analysis of the business' value, he relied primarily on outside information obtained from wife. The trial court was not required to accept his valuation and could "weigh the testimony of all the ... experts." Bell Atlantic, 16 Va.App. at 746, 433 S.E.2d at 33. Under these circumstances, the trial court was not plainly wrong in accepting the valuation of husband's expert rather than that of wife's.

                the opinion of [any] expert.' "  Stratton v. Stratton, 16 Va.App. 878, 883, 433 S.E.2d 920, 923 (1993) (quoting Lassen v. Lassen, 8 Va.App. 502, 507, 383 S.E.2d 471, 474 (1989)).   Additionally, the trial court, as fact finder, " 'has a right to weigh the testimony of all the witnesses, experts and otherwise.' "  Bell Atlantic Network Servs. v. Virginia Employment Comm'n, 16 Va.App. 741, 746, 433 S.E.2d 30, 33 (1993) (emphasis added) (quoting Pepsi-Cola Bottling Co. v. McCullers, 189 Va. 89, 99, 52 S.E.2d 257, 261 (1949))
                

MERRILL LYNCH ACCOUNTS

In wife's Exhibit 1 submitted May 3, 1994, she listed three Merrill Lynch accounts totaling $132,827 as marital assets: (1) a $69,168 account in the name of husband's business; (2) a $10,360 account in husband's name; and (3) a $53,299 account in wife's name. Husband testified in his deposition on April 27, 1994 that he had two accounts with Merrill Lynch, one personal and one corporate, and that the parties shared a joint bond account. However, in husband's Exhibit 4 submitted May 24, 1994 and during his deposition taken that day, he indicated a single Merrill Lynch account in wife's possession with a value of $132,827. In the trial court's first letter opinion dated October 6, 1994, the court classified all of the accounts as marital property and valued them at $132,827.

On October 18, 1994, wife filed a motion to reconsider, arguing that husband omitted certain investments from his exhibit. She submitted an account statement that showed an additional value in husband's personal Merrill Lynch account of $33,180, dated November 27, 1992, two years before either husband or wife submitted exhibits to the court. At the October 20, 1994 hearing, the trial court refused to hear additional evidence regarding the accounts and ruled that "there must be a limit on the time in which evidence can be submitted." In its final letter opinion of March 3, 1995, the trial court assigned the value of the accounts--$101,101 to wife and $31,726 to husband. In the final decree entered July 7, 1995, the court ordered the parties to "sign whatever papers are necessary to effectuate the transfers of vehicles, partnerships and other property," and ordered wife to pay husband a monetary award of $31,726.

Wife contends that the trial court erred in refusing to allow her to present additional evidence of the value of the Merrill Lynch accounts after the evidence was concluded because husband misrepresented the value of his personal Merrill Lynch account by omitting certain investments. A trial court "may not refuse or fail to give parties a reasonable opportunity to develop and present evidence of value." Mosley v. Mosley, 19 Va.App. 192, 195, 450 S.E.2d 161,...