Price v. Price, s. 1588-85

• Citation: 355 S.E.2d 905,4 Va.App. 224
• Decision Date: 05 May 1987
• Docket Number: Nos. 1588-85,1592-85,s. 1588-85
• Parties: Baxcetta A. PRICE v. Steven PRICE. Steven PRICE v. Baxcetta A. PRICE. Record
• Court: Virginia Court of Appeals

Page 905

355 S.E.2d 905

4 Va.App. 224

Baxcetta A. PRICE v. Steven PRICE.

Steven PRICE v. Baxcetta A. PRICE.

Record Nos. 1588-85, 1592-85.

Court of Appeals of Virginia.

May 5, 1987.

Donald K. Butler (Morano, Colan & Butler, Richmond, on brief), for Baxcetta A. Price.

Robert N. Johnson (Anne M. Johnson, Robert N. & Anne M. Johnson, Inc., Richmond, on brief), for Steven Price.

Present: KOONTZ, C.J., and COLEMAN and HODGES, JJ.

HODGES, Judge.

On July 19, 1983, Baxcetta Price filed a bill of complaint for a divorce from Dr. Steven Price, her husband, on the grounds of cruelty and constructive desertion. On April 19, 1984, Mrs. Price was awarded a divorce a mensa et thoro with the issue of equitable distribution of property being referred to a commissioner in chancery for determination and recommendations. The commissioner filed his report on January 8, 1985, to which each party noted their exceptions. ¹ The court modified the recommended allocation of the marital residence, but in all other regards adopted the commissioner's findings and recommendations and entered a final decree of divorce on November 19, 1985.

The property allocation proposed by the commissioner would have awarded Dr. Price a money judgment of $15,022.65, and allowed him to retain certain items of property already in his possession valued at $43,063.88. Mrs. Price, on the other hand, would have retained the marital home, in which the parties had equity valued at $97,692.66, as well as $13,632.35 in personal property in her possession. The commissioner recommended that Mrs. Price receive 67.54% of the total value of the marital property and Dr. Price receive 32.46%. The trial court rejected this recommendation and, in effect, reduced the total percentage of the marital property allocated to Mrs. Price to 56.36%, leaving Dr. Price 43.64%. The adjustment was accomplished by allocating more of the value of the marital home to Dr. Price, thereby increasing the amount of the award to be paid to him by Mrs. Price. In addition, the court awarded Mrs. Price $600 per month spousal support.

Both parties contend that the court erred in entering the final decree of divorce. Dr. Price alleges that the court erred by including as marital property the value of his retirement fund and items he purchased after the parties separated. He also challenges the values assigned some items of marital property and asserts that the court erred in awarding spousal support. Mrs. Price contends that the court erred in not adopting the commissioner's recommendation in regard to the amount of the monetary award to be paid by her to Dr. Price and in not granting her additional attorney fees.

The commissioner's report, based on evidence ore tenus and depositions, was submitted to the court on January 8, 1985, and contained the findings of fact and recommendations for relief.

Generally, a commissioner's report should be affirmed by the chancellor unless the findings are not supported by the evidence. Hodges v. Hodges, 2 Va.App. 508, 514, 347 S.E.2d 134, 137-138 (1986). When the chancellor disapproves the commissioner's findings, on appeal we must review the evidence and ascertain whether upon a correct application of the law to the evidence supports the findings of the commissioner or the conclusions of the trial court. Id. However, when a court refers a case to a commissioner in chancery, it does not delegate its judicial functions to the commissioner, and is not bound by the commissioner's recommendations. "Rather, the court must review the evidence, apply the correct principles of law, and make its own conclusions as to the appropriate relief required." Dukelow v. Dukelow, 2 Va.App. 21, 26-27, 341 S.E.2d 208, 211 (1986).

We agree that the monetary award determination was erroneous in certain respects and remand for further proceedings. The court adopted almost entirely the report of the commissioner, and much of our discussion necessarily centers around errors committed by the commissioner and adopted by the court.

We will not address Dr. Price's complaint concerning spousal support since that issue must be redetermined after a proper monetary award decision has been made. See Code §§ 20-107.1(8) and 20-107.3(F); Morris v. Morris, 3 Va.App. 303, 311, 349 S.E.2d 661, 665 (1986).

I. CLASSIFICATION AND VALUATION

The commissioner classified as marital property Dr. Price's pension fund and certain other items of real and personal property purchased by Dr. Price after the separation of the parties. The commissioner included the following assets as marital: a personal computer, a money market account, a radio, a television, and equity in a house in Vienna, Virginia, which Dr. Price bought with a third party. While it was proper to classify the pension fund as marital property, the commissioner recommended an improper mode of payment. The items acquired after the last separation should not have been included as marital assets absent a showing by Mrs. Price that marital assets were used to purchase them. The burden of proving that property purchased after the last separation is marital is on the proponent and we hold that the presumption that property is marital ceases on the date of the de facto dissolution of the marital partnership.

In making a monetary award determination, courts are faced initially with a two-fold problem: the proper date for classification of marital property and the proper date for valuing the marital property. The two dates are not necessarily the same since the factors involved in the selection of one may not be involved in the selection of the other.

A. CLASSIFICATION

The law in effect when the suit was filed read: "Marital property is (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise, and (ii) all other property acquired by each party during the marriage which is not separate property as defined above. All property acquired by either spouse during the marriage is presumed to be marital property in the absence of satisfactory evidence that it is separate property." Code § 20-107.3(A)(2) (emphasis added). In 1984 the General Assembly amended the statute to read in pertinent part: "All property acquired by either spouse during the marriage, and before the filing of a bill of complaint stating a ground for divorce, is presumed to be marital property in the absence of satisfactory evidence that it is separate property." (emphasis added). The General Assembly amended the statute again in 1986 and it currently reads: "All property ... acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital." (emphasis added). The language setting out the marital property presumption affords some guidance to the classification date problem but does not address the valuation date question.

The 1984 amendment limiting the application of the presumption to the period before the filing of the bill of complaint is not applicable to this suit. "[W]hen a statute is amended while an action is pending, the rights of the parties are to be decided in accordance with the law in effect when the action was begun, unless the amended statute shows a clear intention to vary such rights." Washington v. Commonwealth, 216 Va. 185, 193, 217 S.E.2d 815, 823 (1975) (citing Burton v. Seifert Plastic Relief Co., 108 Va. 338, 350-51, 61 S.E. 933, 938 (1908)). Nothing in the 1984 amendment indicates that the General Assembly intended the amendment to apply to actions filed before the effective date of the amendment.

Prior to adoption of Code § 20-107.3 in 1982, Virginia was one of a few states which still determined property rights upon divorce based upon a determination of who held the "legal" title to the property, rather than viewing the assets acquired during the marriage as similar to property acquired by a partnership, shared enterprise, or a joint undertaking. 24 Am.Jur.2d Divorce and Separation § 870 (1983). ² Viewing the enactment of the statute as an adoption of the view that marriage is a partnership of two individuals who have joined forces to benefit the union, ³ it is evident that when the partnership ceases to work for the common good the marriage is for all practical purposes over. By enacting Code § 20-107.3 the General Assembly enabled the divorce courts to recognize the contributions made by both parties to the marriage, whether monetary or non-monetary, when considering division of their property upon the dissolution of a marriage.

By initially not specifically designating in Code § 20-107.3 when property was to be classified as marital or separate, we believe the silence of the General Assembly evinced an intention to leave such determination to the courts. While the statutory amendments made in 1984 and 1986 are not applicable or controlling, they do not now restrict the exercise of that discretion which the legislature had earlier conferred other than to limit application of the presumption to the period before the filing of the bill of complaint (1984 amendment) or the period before the last separation of the parties (1986 amendment).

In this case, Dr. Price acquired some of the property included in the monetary award determination after the date of the filing of the bill of complaint and following the last date of separation. The chancellor adopted the date of the commissioner's hearing as the most appropriate date for purposes of both classification and valuation of the marital property. We conclude that under the circumstances it was erroneous for the trial court to select a classification date which included as marital property that which was acquired by the husband without the exchange or pledge of marital assets after the de facto dissolution of the marriage partnership.

We believe that in most cases the appropriate date...