Leake v. Taylor, Record No. 0737-09-4 (Va. App. 3/30/2010), Record No. 0737-09-4.
| Decision Date | 30 March 2010 |
| Docket Number | Record No. 0737-09-4. |
| Court | Virginia Court of Appeals |
| Parties | WAYNE O. LEAKE v. SUSAN J. TAYLOR. |
Appeal from the Circuit Court of Loudoun County, Burke F. McCahill, Judge.
Walter C. Jacob (Walter C. Jacob, P.C., on brief), for appellant.
Thomas F. Plofchan, Jr. (Westlake Legal Group, on brief), for appellee.
Present: Judges Beales, Alston and Senior Judge Annunziata.
Wayne O. Leake (husband) appeals from a final decree of divorce (final decree), terminating the marriage between husband and Susan J. Taylor (wife). Husband contends the circuit court committed a number of reversible errors. First, husband maintains the circuit court erred in denying husband's motion to dismiss a second appeal to the circuit court from the juvenile and domestic relations district court of a spousal support award on res judicata grounds. Second, he argues the circuit court erred in granting an award of spousal support retroactive to January 1, 2009, in the amount of only $2,000 per month to husband, when husband requested spousal support in the amount of $6,000 per month. Third, husband contends the circuit court erred in failing to include in the monetary award proceeds from the refinancing of the marital home, proceeds from the sale of two out-of-state properties, and the reduction in the lien on the marital home that occurred during the parties' marriage. Fourth, husband argues the circuit court erred in failing to consider the ownership of two vehicles when determining the equitable distribution. Fifth, husband maintains the circuit court erred in refusing to find a valid gift of the marital home and personal property from wife to husband. Sixth, husband contends the circuit court erred in denying husband's request for a divorce a mensa et thoro and granting instead a divorce a vinculo matrimonii to wife. Seventh, husband argues the circuit court erred in refusing husband's request for attorney's fees. Finally, both parties request an award for appellate attorney's fees and costs. For the reasons that follow, we affirm the circuit court's decision as to each of the questions presented, deny husband's request for appellate attorney's fees, and deny wife's request for appellate attorney's fees.
We view the evidence, and all reasonable inferences flowing from the evidence, in the light most favorable to wife as the party prevailing below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). "That principle requires us to `discard the evidence' of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)).
Husband and wife married on April 3, 2004. At the time of their marriage, they were in their late forties and had lived together for six months. Husband's twelve-year-old daughter from his previous marriage also lived with the parties. Husband and wife enjoyed a high standard of living as a result of wife's substantial income.
At trial, husband testified that the couple's marital problems began in September 2005, seventeen months after they wed. He stated that wife had been receiving death benefits from her former husband's pension account with the Office of Program Management (OPM). In September 2005, OPM informed wife that the death benefits terminated upon her remarriage, and she had to repay the improperly distributed death benefits. Shortly thereafter, husband claimed wife demanded an annulment of the parties' marriage and presented him with a property settlement agreement. Husband refused to sign either of the documents. Thereafter, husband and wife lived separately under the same roof, but not without conflict. To illustrate these circumstances, wife testified that both parties regularly changed the locks on the marital home's doors to inconvenience one another.
Wife filed a bill of complaint for divorce on October 21, 2005, in which she alleged cruelty and constructive desertion on husband's part as the grounds for divorce. Husband filed a cross-complaint alleging cruelty, willful desertion, and constructive desertion on wife's part as the grounds for divorce. Wife subsequently made a motion for a pendente lite award granting wife exclusive use and possession of the marital residence. The circuit court denied her motion.
A trial on the divorce actions was scheduled for November 2006. At that time, both parties nonsuited their claims against each other.
On February 23, 2007, wife executed a deed of gift, which purported to convey the marital residence, which was titled in her name alone and acquired prior to the parties' marriage, and the tangible personal property in the residence to an irrevocable trust for the benefit of wife's mother and sister. Thereafter, husband filed a complaint to set aside the deed of gift on the house as fraudulent. The circuit court set aside the deed of gift on the house, but did not address the conveyance of the personal property, as husband failed to ask that the conveyance of the personal property be voided. A final order reflecting the circuit court's determination was entered on July 2, 2008.
On April 16, 2007, husband filed a petition for spousal support in the juvenile and domestic relations district court. The juvenile and domestic relations district court heard the matter on February 28, 2008, and on March 3, 2008, prior to the entry of the written order, wife noted her appeal of the court's decision. The juvenile and domestic relations district court entered its written order on April 18, 2008, which contained the following findings of fact: Wife had an income of over $20,000 per month; husband had an earning capacity of zero; the standard of living in the marriage was high; the duration of the marriage was short; wife moved out of the marital residence on February 15, 2006; wife suffered from Stage IV non-Hodgkin's lymphoma; wife made all of the financial contributions to the family; and neither party contributed to the attainment of education, career or profession of the other. The juvenile and domestic relations district court ordered wife to pay husband $6,000 per month in spousal support, retroactive to April 16, 2007. She received a credit for $4,780 per month retroactive to April 16, 2007. This figure equaled the marital residence's mortgage, which wife had been paying. The court stated that when husband vacated the marital residence, wife would no longer receive the mortgage credit, and she was obligated to pay husband the full $6,000 per month in spousal support. The juvenile and domestic relations district court calculated an arrearage from April 2007 to April 2008 of $4,244. Wife subsequently appealed the written April 18, 2008 spousal support order within ten days of its entry and filed an appeal bond within thirty days of the entry of the written order.2
On June 6, 2008, the circuit court dismissed the appeal filed by wife on March 3, 2008, finding the appeal was not timely filed and no appeal bond was posted.
In July 2008, wife stopped paying the utility bills for the marital residence, husband moved out of the marital residence, and wife began paying husband $6,000 per month in spousal support, pursuant to the juvenile and domestic relations district court order.
On October 20, 2008, husband filed a motion in the circuit court to dismiss wife's second appeal on res judicata grounds. He argued the circuit court had previously dismissed the March appeal of the spousal support oral ruling, and that decision controlled the circuit court's consideration of the second appeal. The circuit court denied husband's motion to dismiss.
In the meantime, wife initiated a second divorce proceeding on March 12, 2008. She alleged that the parties lived separately under the same roof beginning on November 4, 2005, and that the parties physically separated on February 14, 2006, when wife physically left the marital residence due to concern for her safety. Wife requested a divorce a vinculo matrimonii based on a separation of one year. Husband filed a cross-complaint for divorce a mensa et thoro on cruelty and desertion grounds.
The parties' divorce actions were originally scheduled for two hearing days; instead, the circuit court heard four days of testimony and argument. During the four-day trial, husband testified that when he and wife married, wife instructed him that he needed to dispose of the house he owned with his father, as well as all of its contents. Husband alleged that wife told him that he would no longer need them because everything she owned was now husband's property. Husband testified that he sold the home he owned with his father and gave away or threw away virtually all of his personal property. In this regard, husband testified that wife would not even allow his daughter to bring her bedroom furniture to the parties' marital home, because it was not needed. Husband testified that wife was present when husband disposed of his property and that others were present when wife discussed the fact that all of her property now belonged to husband. Husband stated that when his daughter and a friend asked wife for permission to use the marital residence's hot tub, wife directed them to husband, explaining that since all of wife's possessions were now husband's possessions, they should obtain husband's permission. Husband also testified that wife said that half of everything she owned was husband's upon their marriage. Alternatively, husband testified that all of the property in the marital home belonged to him, not because wife gave him the property, but because she abandoned it when she vacated the marital home in February 2006.
Husband's daughter and her friend also testified. They corroborated husband's testimony that wife had made various statements about his ownership of wife's property, although...
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