Morris v. Morris

• Decision Date: 21 October 1986
• Docket Number: Nos. 0606-85,0637-85,s. 0606-85
• Court: Virginia Court of Appeals
• Parties: Marjorie Martin MORRIS v. Harry Arthur MORRIS, Jr. Harry Arthur MORRIS, Jr. v. Marjorie Martin MORRIS. Record

Page 661

349 S.E.2d 661

3 Va.App. 303

Marjorie Martin MORRIS v. Harry Arthur MORRIS, Jr.

Harry Arthur MORRIS, Jr. v. Marjorie Martin MORRIS.

Record Nos. 0606-85, 0637-85.

Court of Appeals of Virginia.

Oct. 21, 1986.

Diane L. Abdelnour (Smith & Abdelnour, Grafton, on brief), for Marjorie Martin Morris.

D. Wayne Moore (Moore & Moore, Newport News, on brief), for Harry Arthur Morris, Jr.

Present: BAKER, BARROW and HODGES, JJ.

BARROW, Judge.

Both Marjorie Martin Morris (wife) and Harry Arthur Morris, Jr. (husband) appeal this divorce case. Wife complains that the marital property was not properly determined and that the court improperly ordered the transfer of jointly owned property to husband. Husband claims the court erred in awarding spousal support to wife and, in the alternative, in awarding an excessive amount of spousal support. The trial court was correct in all of its rulings except the order requiring the transfer of jointly owned property to the husband. For this reason, we reverse the judgment and remand the case for further proceedings.

Four properties were the subject of controversy in determining a monetary award. These were the marital residence, husband's office building, husband's law practice and a fifteen acre parcel of land. The trial court placed a value on each item except the law practice, the value of which was never proved, and determined that the properties, with the exception of the law practice, were marital property. The trial court awarded wife a $70,000 monetary award conditioned upon wife conveying the marital home and office building to husband and also awarded her spousal support in the amount of $850 a month.

Before addressing the issues raised by the parties on appeal we must dispose of a procedural concern which they did not raise. The trial court reserved in its decree of divorce certain collateral issues which it disposed of in a subsequent decree. On April 3, 1984, the decree of divorce was entered granting the husband a divorce on the ground of a one-year separation. This decree also made the monetary award described previously but reserved decision on attorney's fees, spousal support and custody for a later determination. On April 18, 1984, within twenty-one days after the decree of divorce, the court on the wife's motion vacated its decision "as to property rights, equitable distribution and partition" and reserved "its jurisdiction and authority" to dispose of these matters along with spousal and child support, child custody, visitation rights and attorney's fees. On April 15, 1985, the trial court entered an order disposing of those issues it had reserved for a later determination. The monetary award in the second decree was identical to that provided for in the first decree.

This court has previously held that a trial court has the power to reserve in a decree of divorce the authority to make a monetary award under Code § 20-107.3. Parra v. Parra, 1 Va.App. 118, 127, 336 S.E.2d 157, 162 (1985). This holding is consistent with the long held principle that a court of chancery need not fully exercise its power at one time but may adapt its relief to the circumstances of a particular case. Brinn v. Brinn, 147 Va. 277, 285, 137 S.E. 503, 505 (1927). The trial court's decision was also consistent with its authority to reserve consideration of support questions beyond the time of the final decree. Thomasson v. Thomasson, 225 Va. 394, 397 n. 1, 302 S.E.2d 63, 65 n. 1 (1983). Therefore, we find no error in the trial court's exercise of this authority.

Although the wife filed a notice of appeal to the monetary award provision contained in the first decree, the husband did not. Since no timely notice of appeal was filed with respect to the decree of divorce itself we do not consider any issue concerning the correctness of the decree of divorce and only consider evidence of the grounds for divorce to the extent that it relates to the award of spousal support.

I. MARITAL PROPERTY

Wife complains that the trial court erred in determining that the fifteen acre parcel of land titled in her name was marital property. The property was purchased by the wife after the marriage. She paid for it by selling stock and by obtaining a loan which was repaid from child support monies she received for two dependent children from a previous marriage.

In her appeal, wife claims the stock, the proceeds of which were used to buy the fifteen acre parcel, belonged to her prior to the marriage. Code § 20-107.3(A)(1)(iii) provides that "all property acquired during the marriage in exchange for or from the proceeds of sales of separate property" is separate property so long as it is maintained as separate property. Thus, the wife contends that the fifteen acre parcel purchased from the proceeds of the sale of the stock is separate property.

However, there was no evidence that the stock was acquired prior to the marriage or by gift or inheritance. The trial court found that she purchased the fifteen acre parcel for "$7,500 by selling $3,000 worth of stock and obtaining a bank loan" and that "[w]hile she testified that she brought $35,000 including some stocks into the marriage, no evidence was presented tracing those funds or stocks to this purchase." Based on the presumption that all property acquired by either spouse during the marriage is marital property, Code § 20-107.3(A)(2), and "other evidence" supporting this conclusion, the trial court concluded that the fifteen acre parcel was marital property. This conclusion is not plainly wrong and is supported by the evidence; therefore, we will not disturb it. See Alls v. Alls, 216 Va. 13, 14, 216 S.E.2d 16, 17 (1975).

The trial court refused to reopen the proceedings at the wife's request to hear additional evidence concerning the source of funds used to purchase the fifteen acre parcel. Since the request came six weeks after the evidentiary hearing consisting of two full days of testimony during which each party had ample opportunity to present evidence, it was within the court's discretion to refuse to take further evidence on this subject. See Mundy v. Commonwealth, 161 Va. 1049, 1064, 171 S.E. 691, 696 (1933); Wilkie v. Richmond Traction Co., 105 Va. 290, 296, 54 S.E. 43, 45 (1906).

The wife also contends that the husband's law practice should have been considered as marital property in determining the monetary award. The trial court concluded that "there was insufficient evidence ... to take it into consideration." The only evidence she presented on this issue was elicited from the husband on cross-examination. He testified that the value of the equipment and books he owned was less than the $13,500 he owed and that his anticipated gross income in 1983 was $73,000. We agree with the trial court that this is insufficient evidence from which the value of a business can be determined for the purposes of making a monetary award. Since "[w]ithout value, there is no basis for monetary award," Hodges v. Hodges, 2 Va.App. 508, 347 S.E.2d 134, 138 (1986), we do not reach the issue of whether the value of a professional practice is marital property to be used in determining a monetary award.

II. SUPPORT

Husband and wife had a stormy relationship during the last few years of their marriage. They were involved in several altercations, and they verbally abused one another.

Husband is a lawyer who has a successful practice as a sole practitioner. Wife worked periodically during the marriage, but she was not employed at the time of the divorce hearing. She contracted bladder cancer and was very ill for the past few years; however she apparently recovered and is capable of working.

Husband contends that his wife's conduct toward him constituted cruelty which amounted to constructive desertion, thus barring her right to spousal support. He testified that she locked him out of the house occasionally, threw his clothes outside, destroyed his personal belongings, used profanity and struck him once with a dust pan. The wife claimed that the husband stayed out late at night, was seeing another woman and physically assaulted her on several occasions. The evidence was conflicting and was resolved by the judge who concluded that the wife had not constructively deserted the husband. This finding has "the weight of a jury verdict," and we will not disturb it since it is not plainly wrong and is supported by evidence. See Alls v. Alls, 216 Va. at 14, 216 S.E.2d at 17. Thus, the wife's right to spousal support was not barred. Thomas v. Thomas, 217 Va. 502, 504, 229 S.E.2d 887, 889 (1976); Rowand v. Rowand, 215 Va. 344, 346, 210 S.E.2d 149, 150-51 (1974); Code § 20-107.1.

The wife asserts that if she is barred from receiving spousal support because of her conduct, then the husband's alleged adulterous conduct after their separation reimposed his obligation to pay her spousal support. Since we affirm the trial court's conclusion that the wife's conduct did not bar her right to spousal support, we need not reach this issue.

Husband also claims that the award of spousal support was excessive. His anticipated gross income for 1983 was approximately $73,000, and the wife, who was unemployed at the time of the hearing, had only held unskilled jobs during the marriage. Upon dissolution of the marriage her only source of income will be $622.00 per month from the Veteran's Administration. In determining spousal support, a trial court has broad discretion and "the appellate court will not interfere with such discretion, unless it is clear that some injustice has been done." Oliver v. Oliver, 202 Va. 268, 272, 117 S.E.2d 59, 62 (1960). In this instance there was no apparent injustice in the award of spousal support, and we do not consider it excessive.

III. MONETARY AWARD

The trial court erred in ordering the wife to convey her interest in the jointly owned marital home and office building to the husband upon his payment of the $70,000 monetary award. The...