Harrop v. Harrop

• Court: Virginia Court of Appeals
• Writing for the Court: DORIS HENDERSON CAUSEY, JUDGE
• Decision Date: 07 March 2023
• Docket Number: 0158-22-3
• Citation: Harrop v. Harrop, 0158-22-3 (Va. App. Mar 07, 2023)
• Parties: KEITH IVERSON HARROP, II v. LESLEY ANN BUTTERFIELD HARROP

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KEITH IVERSON HARROP, II v. LESLEY ANN BUTTERFIELD HARROP

No. 0158-22-3

Court of Appeals of Virginia

March 7, 2023

UNPUBLISHED

FROM THE CIRCUIT COURT OF ROANOKE COUNTY James R. Swanson, Judge

Melanie Hubbard (Malinowski Hubbard, PLLC, on briefs), for appellant.

Monica Taylor Monday (Brooke Rosen, Guardian ad litem for the minor children; Gentry Locke; Woods Rogers PLC, on brief), for appellee.

Present: Judges Malveaux, Ortiz and Causey Argued at Lexington, Virginia.

MEMORANDUM OPINION^[*]

DORIS HENDERSON CAUSEY, JUDGE

Lesley Ann Butterfield Harrop ("wife") and Keith Iverson Harrop, II ("husband"), were divorced by order of the trial court, which also provided for equitable distribution of the parties' marital estate and awarded to wife sole legal and physical custody of their four children. On appeal, husband challenges the trial court's distribution of the marital residence and marital debt. He also seeks review of the trial court's custody ruling. For the following reasons, we affirm the trial court's judgment.

Background

The parties were married on July 30, 2005, and separated around March 11, 2017, after more than ten years of marriage. Wife filed for divorce soon after. Over the course of several hearings, the parties presented evidence on equitable distribution, spousal support, child custody child support, and attorney fees. They subsequently submitted written closing arguments. In December 2020, the trial court issued its letter opinion.

The court awarded husband the marital residence ("Overhill Trail home"), which husband and wife jointly owned. Husband requested that a portion of the reduction in mortgage principal since the parties' separation be credited to him. The court denied this request. Husband had paid the mortgage at the Overhill Trail home between March 2017 through October 2018 and December 2019 through June 2020, but from November 2018 through November 2019, the Church of Latter-Day Saints ("church") paid the mortgage. The court found that "[s]ince the gifted funds from the church were used to make the mortgage payments on the residence that was jointly owned by the parties," the gift was for both parties and not husband individually.

The trial court also ruled that husband and wife would each "pay and be solely responsible for the marital debt in his or her individual name." The trial court found that wife had marital debts in her name totaling $43,253 and husband had marital debts in his name totaling $493,027. The court found that it had "no authority to . . . order the division of marital debt that is not jointly owed."

Finally the trial court awarded sole custody of the parties' four children to wife. The court found that based on the evidence, the parties' arguments, the statutory factors, and the guardian ad litem's report, it was in the best interests of the children for wife to have sole custody, with visitation to husband. At the beginning of the trial, wife had not explicitly requested sole custody, but she filed a supplemental notice and a motion including a request for sole legal and physical custody during the trial.

Husband filed a motion to reconsider the trial court's rulings. Husband and wife were divorced by final decree entered by the court in April 2021, but the decree stated that the decree was not a final order as the court was retaining jurisdiction to consider husband's motion to reconsider. The trial court held a hearing on husband's motion to reconsider and issued a letter opinion in November 2021, which decreased husband's support obligations but did not modify the court's previous rulings on the church's gift payments, marital debt, or child custody. The court then entered an order memorializing its letter opinion and finding that the order was final for purposes of appeal because "there [were] no further issues for adjudication by the court or any ongoing suspension of the court's jurisdiction." Husband timely appeals the court's equitable distribution and custody rulings.

Analysis

I. Equitable Distribution of the Marital Residence Husband first contends that the trial court erred by classifying the church's payments of the mortgage on the Overhill Trail home as a marital contribution to the property rather than husband's separate contribution. He argues that these payments were gifts from the church intended for his benefit alone, so the court, in its equitable distribution determination, should have credited him for the reduction in the mortgage principal. However, we hold that the trial court did not err because the evidence supports its conclusion that the payments were marital property.

"We begin our analysis by recognizing the well-established principle that all trial court rulings come to an appellate court with a presumption of correctness." Wynnycky v. Kozel, 71 Va.App. 177, 192 (2019) (quoting Stiles v. Stiles, 48 Va.App. 449, 453 (2006)). "In challenging [a] court's decision on appeal, the party seeking reversal bears the burden to demonstrate error on the part of the trial court." Sobol v. Sobol, 74 Va.App. 252, 272-73 (2022) (quoting Barker v Barker, 27 Va.App. 519, 535 (1998)). On appeal from an equitable distribution award, we review the evidence in the light most favorable to the party prevailing below. See, e.g., Anderson v. Anderson, 29 Va.App. 673, 678 (1999). We will not overturn an equitable distribution judgment unless we find "an abuse of discretion, misapplication or wrongful application of the equitable distribution statute, or lack of evidence to support the award." Dixon v. Dixon, 71 Va.App. 709, 717-18 (2020) (quoting Anthony v. Skolnick-Lozano, 63 Va.App. 76, 83 (2014)). "[T]o the extent that the appeal requires an examination of the proper interpretation and application of Code § 20-107.3, it involves issues of law, which the Court reviews de novo on appeal." Id. at 718.

"Because the trial court's classification of property is a finding of fact, that classification will not be reversed on appeal unless it is plainly wrong or without evidence to support it." Ranney v. Ranney, 45 Va.App. 17, 31-32 (2005). "In making an equitable distribution of property under [Code § 20-107.3], the [trial] court first must classify the property as separate, marital, or part separate and part marital." Lightburn v. Lightburn, 22 Va.App. 612, 616 (1996). Under the equitable distribution statute, "separate property" includes, in relevant part, "all property acquired during the marriage by . . . gift from a source other than the other party." Code § 20-107.3(A)(1)(ii).^[1] On the other hand, "marital property" includes "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." Code § 20-107.3(A)(2)(i), (iii).

We cannot say the trial court abused its discretion in its factual finding that the mortgage payments from the church constituted marital property. It is true that "gifts from others to a party represent separate property" under Code § 20-107.3(A)(1)(ii). Sfreddo v. Sfreddo, 59 Va.App. 471, 480 (2012). But a gift to one of the spouses will be treated as separate property only "if there is credible evidence presented to show that the property was intended by the donor to be the separate property of one of the spouses." Stainback v. Stainback, 11 Va.App. 13, 17-18 (1990). "[Donative i]ntent is a question to be determined by the fact finder." Cirrito v. Cirrito, 44 Va.App. 287, 305 (2004).

The trial court did not err in concluding that husband did not present sufficient credible evidence to show that the church intended the gift for him alone. Neither party disputes that they jointly owned the Overhill Trail home as marital property. The checks from the church were made payable to the jointly owned home's mortgage holder, SunTrust Bank, rather than husband individually. Husband presented no testimony from the church that the church intended to give the gift to him alone. Contra Stainback, 11 Va.App. at 17-18 (donor's intent to gift stock separately to husband established by donor's testimony); Foster v. Foster, No. 1141-21-2, slip op. at 15 (Va. Ct. App. June 21, 2022) (donor's intent to gift stock separately to husband established by donor's financial advisers' testimony and emails specifically mentioning "gifting shares to [husband]").

Husband's emphasis that the payments from the church resulted from his initiative- without wife's involvement or knowledge-is not dispositive because he failed to establish how his actions revealed the church's donative intent. Evidence of how husband acquired the gift, without more, does not prove as a matter of law that the church had a donative intent for his individual benefit. Instead, the trial court could have found such evidence merely cumulative to already established evidence: the church intended to contribute to the mortgage of the parties' jointly held property.^[2]

The court, in its role as factfinder, was entitled to evaluate the credibility of husband's self-serving testimony. See Harvey v. Flockhart, 65 Va.App. 131, 146 (2015) ("The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." (quoting Sandoval v. Commonwealth, 20 Va.App. 133, 138 (1995))).

It was within the trial court's discretion to conclude that husband's independent engagement with the church did not overcome the evidence supporting that its payments were marital property. Because we cannot say the trial court was plainly wrong to find that the church donations were marital property, we affirm on this issue.^[3] II. Equitable Distribution of the Marital Debt

Husband next argues that ...