Gamble v. Gamble

Decision Date02 June 1992
Docket NumberNo. 1726-90-2,1726-90-2
Citation14 Va.App. 558,421 S.E.2d 635
CourtVirginia Court of Appeals
PartiesHarry Yandle GAMBLE, Jr. v. Constance P. GAMBLE. Record

Peter McIntosh, Charlotteville (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on briefs), for appellant.

Susan D. White, Charlotteville, for appellee.

Panel: KOONTZ, C.J., and BENTON and DUFF, JJ.

KOONTZ, Chief Judge.

By final decree entered on September 21, 1990, the Circuit Court for the City of Charlottesville granted Constance P. Gamble a final divorce on the grounds of desertion and adultery from Harry Yandle Gamble, Jr. The decree further granted Mrs. Gamble a monetary award and spousal support, and ordered Mr. Gamble to convey his interest in the jointly owned marital home to Mrs. Gamble in partial satisfaction of the monetary award. On appeal, Mr. Gamble challenges the monetary and spousal support awards. He does not challenge the grounds for the divorce.

Mrs. Gamble filed her Bill of Complaint on March 16, 1990. On June 27, 1990, the parties presented their evidence before the chancellor ore tenus. Thereafter, in letter opinions dated July 20 and August 17, 1990, the chancellor recited the findings of fact upon which the monetary and spousal support awards were granted. These findings of fact are adequately supported by the record.

A detailed recitation of the history of this twenty-six year marriage is not warranted. At the time the couple separated, June 21, 1989, their two children were adults. Mr. Gamble, who had previously earned a doctoral degree in religious studies, held a teaching position at the University of Virginia. He received a net monthly income of $2,607. Throughout the marriage, Mr. Gamble was the primary source of income for the family. However, Mrs. Gamble, who had previously earned a master's degree in education, held a teaching position in the Albemarle public school system from which she received a net monthly income of approximately $1,870. The chancellor, after determining the separate property of the parties, found that the parties had accumulated the following marital property:

1. Personal Property " $ 23,194.00 " jointly owned

2. Real Property " $ 69,713.00 " jointly owned

3. Mrs. Gamble's pension " $ 14,100.00 " owned by Mrs. Gamble

4. Mr. Gamble's pension " $113,674.72 " owned by Mr. Gamble

Total $220,681.72

From this marital property and pursuant to Code § 20-107.3, the chancellor granted Mrs. Gamble a monetary award of $32,024.96. To this amount, the chancellor added the amount of $3,500 1 which had previously been awarded to Mrs. Gamble at a pendente lite hearing; thus, Mrs. Gamble received a total monetary award of $35,524.96. In partial satisfaction of this award, the chancellor ordered Mr. Gamble to transfer all of his interest in the jointly owned marital home, which was determined to be $34,856.50, to Mrs. Gamble. Mr. Gamble's equity in the home was determined by subtracting the outstanding balance of two mortgages from the value of $135,200 of the home set by the chancellor. Mr. Gamble was ordered to pay the balance of $668.46 within three months of the entry of the decree. Pursuant to Code § 20-107.1, the final decree fixed Mrs. Gamble's spousal support award at $850 monthly beginning August 1, 1990.

On appeal, Mr. Gamble raises the following issues: (1) whether the chancellor erred in setting the valuation of the marital home at $135,200; (2) whether the determination of the amount of the monetary award and the order that Mr. Gamble transfer his interest in the marital home to Mrs. Gamble was an abuse of discretion; and (3) whether the determination of the amount of spousal support was an abuse of the chancellor's discretion.

In addressing these issues, we are able to do so with the benefit of the chancellor's reasoning which is recited in detail in the letter opinions in the record. For clarity, we will refer to this reasoning where each specific issue is addressed in this opinion.

I. The Valuation of the Marital Home Issue

At the ore tenus hearing, Mr. Gamble testified that in his opinion the marital home had an "approximate market value" of $175,000. In support of that opinion, he offered an exhibit which contained what he asserted to be valuations of other comparable properties in the neighborhood. The chancellor rejected this exhibit, but permitted Mr. Gamble to state his belief of the value of the home. In contrast, Mrs. Gamble introduced, without objection, a County of Albemarle tax appraisal reflecting a value of $135,200 for the home as of January 1, 1989. The chancellor found that the tax appraisal "is more satisfactory to establish the value of the residence."

Because neither party filed a motion, pursuant to Code § 20-107.3(A), for the chancellor to use a different valuation date, Mr. Gamble initially asserts that the chancellor was required to determine the value of the marital home as of the date of the evidentiary hearing. We agree. That date was June 27, 1990. On this premise, Mr. Gamble then asserts that because the chancellor adopted the valuation contained in the January 1, 1989 tax appraisal, the chancellor adopted a valuation date other than June 27, 1990, as required by Code § 20-107.3(A). We disagree. It would be mere speculation to conclude that the chancellor after specifically acknowledging the requirements of this code section would disregard its clear mandate. Moreover, the record does not support such a conclusion.

Nonetheless, Mr. Gamble asserts that Mrs. Gamble offered little, if any, evidence that the value of the home had not increased since the 1989 appraisal. While pictures of the home were placed into evidence, he notes that Mrs. Gamble's only testimony on that point was that there had been little money available for "cosmetic repairs."

In contrast, Mr. Gamble asserts that his opinion of the value of the home was worthy of more weight, in essence, because it was based upon his knowledge of the value of similar homes in the neighborhood and was formulated several days prior to the date of the evidentiary hearing. In addition, he asserts that because the chancellor assigned a "half-way" value to those items of personal property over which the parties disagreed concerning value, the same approach was required for the valuation of the marital home. We disagree.

Upon familiar principles, "we consider the evidence in the light most favorable to the party prevailing in the trial court. Where the trial court's decision is based upon an ore tenus hearing, its determination will not be disturbed on appeal unless it is plainly wrong or without evidence in the record to support it." Schoenwetter v. Schoenwetter, 8 Va.App. 601, 605, 383 S.E.2d 28, 30 (1989). On brief, Mr. Gamble concedes that "in essence each party in this case was entitled to serve as his or her own expert regarding the valuation of the marital home." Viewed in that context, we cannot conclude that the chancellor was plainly wrong in giving less weight to Mr. Gamble's opinion and more weight to Mrs. Gamble's opinion that the value of the home had not increased since the independent tax appraisal; thus, the chancellor was not plainly wrong in determining that appraisal reflected the value of the home on the date of the evidentiary hearing. Accordingly, we hold that the chancellor did not err in setting the value of the marital home at $135,200.

II. The Monetary Award Issue

In determining the amount and method of payment of the monetary award in favor of Mrs. Gamble, the chancellor specifically relied upon our decision in Brinkley v. Brinkley, 5 Va.App. 132, 361 S.E.2d 139 (1987). This decision outlined the steps to be followed in the application of Code § 20-107.3 prior to the 1988 amendments to this Code section. Mr. Gamble does not contest the classification of the marital property or Mrs. Gamble's entitlement to an award. With the exception of the valuation placed upon the marital home which we have previously addressed and affirmed, he does not contest the valuation of the marital property. Thus, the focus here is upon the amount of the award and the method of payment of that award as determined by the chancellor.

Mr. Gamble asserts a three-pronged argument in support of his position that the amount and method of payment of the monetary award are erroneous. First, Mr. Gamble asserts that by combining pension and non-pension marital property in the calculation of the amount of the monetary award, the chancellor "inequitably allowed [Mrs. Gamble] to enjoy the vast majority of the currently available marital assets and granted to [Mr. Gamble] future, only potential benefits of his pension." Next, he asserts that the chancellor erroneously considered Mrs. Gamble's "future psychological, emotional and financial needs for the marital home" in determining the amount of the award and in ordering Mr. Gamble to convey his interest in the home to Mrs. Gamble. Finally, Mr. Gamble asserts that the chancellor misconstrued and misapplied the Code § 20-107.3(E) factors in determining the amount of the award.

The essence of Mr. Gamble's first assertion is that where the amount of the monetary award pursuant to Code § 20-107.3(D) is based or calculated in part on the inclusion of pension benefits but is to be satisfied from non-pension property, Code § 20-107.3(G) limits the chancellor's authority to order satisfaction from non-pension assets until the pension benefits are received by the payor spouse. Specifically, Mr. Gamble argues that the value of his pension benefits was used to determine the amount of the monetary award in favor of Mrs. Gamble and he was required to satisfy that award by transferring his interest in the marital home to her. He argues that this amounts to Mrs. Gamble's receipt of a portion of his pension benefits prior to his actual receipt of those benefits.

In order to focus upon the proper application of Subsection (G) to the factual situation presented by this appeal, we...

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