Robinson v. Robinson, Record No. 1879-04-2.

• Decision Date: 25 October 2005
• Docket Number: Record No. 1879-04-2.
• Citation: 621 S.E.2d 147
• Parties: George Fisher ROBINSON v. Elisa Kenty ROBINSON.
• Court: Virginia Supreme Court

621 S.E.2d 147

George Fisher ROBINSON v. Elisa Kenty ROBINSON.

Record No. 1879-04-2.

Court of Appeals of Virginia, Richmond.

October 25, 2005.

From the Circuit Court of Albemarle County, Frank A. Hoss, Jr., Judge Designate.¹

John K. Taggart, III (Patricia D. McGraw; Tremblay & Smith, LLP, on brief), Charlottesville, for appellant.

Lawrence D. Diehl, Hpoewell, for appellee.

Present: FITZPATRICK, C.J., and BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, McCLANAHAN and HALEY, JJ.

UPON REHEARING EN BANC

ROBERT J. HUMPHREYS, Judge.

Appellant George Fisher Robinson ("husband") appeals an equitable distribution award entered pursuant to his divorce from appellee Elisa Kenty Robinson ("wife"). Husband contends that the trial court improperly classified the bulk of the parties' assets as marital property because: (1) the assets were purchased with his separate property, (2) the trial court found that he carried his burden of proving retraceability, and (3) there was no clear and convincing evidence that he had gifted those assets to wife. For the reasons that follow, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. We also decline to award either party the cost of their attorneys' fees for this appeal.

I. BACKGROUND

Husband and wife married on November 22, 1999, and they separated on September 5, 2002. No children were born of the marriage.² During their relatively short marriage, neither party was employed in any capacity. Rather, the parties' only source of income was a trust fund husband inherited from his mother.³ Husband receives a net monthly income of approximately $50,000 from the trust, which has a corpus in excess of $59 million. Husband has no control over the generation of trust income, and he is unable to invade the trust principal.⁴

Shortly after the marriage, the parties established a joint checking account and a joint savings account. The parties arranged for husband's trust income to be electronically deposited directly into the joint checking account, and the majority of the parties' expenses, including their car loans and mortgage payments, were paid from that account. During the course of the marriage, husband deposited a total of $2,156,351.14 into the joint checking account, and wife deposited $3,703.80 into the checking account during that same time frame.⁵

One month after their marriage, husband and wife purchased a home, known as "Bleak House," in Earleysville, Virginia. The property was jointly-titled in both parties' names, and wife co-signed the mortgage on the residence. The purchase price of the house was $380,000, but the parties enhanced the value of the home by adding a heated in-ground swimming pool and a basketball court. The parties used husband's trust income to furnish the home and to pay for the mortgage and home improvement costs.⁶

In July 2001, the parties also purchased a 2001 Ford Excursion and a 2001 Ford F-350. They paid between $40,000 and $45,000 for each vehicle, and husband and wife are both listed on the titles of these vehicles. Although wife co-signed the loans for these vehicles as well, husband's trust income was used to make the down payment and all subsequent payments on both vehicles.

Wife's primary contribution to the marriage involved handling the parties' finances. In addition to paying the bills, wife encouraged husband to set aside additional money in the savings account and to curb his spendthrift habits. Wife also "took care of the home, washed the clothes, cooked dinner ... cleaned the house, mowed the grass, took care of the pool ... [and did the] [s]weeping, [ ] general cleaning and cooking." Husband, in contrast, took care of the grocery shopping and helped wife maintain the exterior of the home.

As of the date of separation, the joint savings account contained $244,137.16, and the joint checking account had a balance of $68,886.67. After the parties separated, husband removed the $244,137.16 from the joint savings account and then closed that account. Husband also withdrew $38,886.67 from the joint checking account, leaving a balance of $30,000 at wife's disposal.

On November 1, 2002, wife filed a bill of complaint, seeking a divorce on the grounds of desertion, an award of spousal support, and equitable distribution of the marital estate. The trial court held an emergency pendente lite hearing on December 20, 2002. At the conclusion of the hearing, the court ordered husband to pay all of the parties' outstanding debts and to continue paying the mortgage on Bleak House. The court also awarded wife $4,500 a month in temporary spousal support.

On November 4, 2003, the trial court conducted a hearing on the merits of wife's bill of complaint. During the hearing, husband testified that he set up the checking account in both parties' names "[p]urely for convenience just so [wife] would be able to sign checks to pay bills" and that he set up the savings account as a joint account for the "[s]ame reason."⁷ Husband also testified that wife co-signed the mortgage and the loans on the vehicles because "she didn't have any income to back up a loan and [his] credit was not in good enough shape to get the loan by [himself] even with [his] income."

During closing arguments, wife contended that almost all of the parties' assets—including the marital residence and the two vehicles—should be equitably distributed, arguing that "the way the money was handled would allow the Court to infer intent on Mr. Robinson's part to make a gift." Husband, in contrast, argued that simply retitling separate property is insufficient evidence of donative intent and, thus, the bulk of the parties' estate constituted husband's separate property.

At a hearing conducted on January 13, 2004, the court awarded wife a divorce a vinculo matrimonii on the grounds of separation for one year. As for classification of the parties' assets, the court found as follows:

I find that while Mr. Robinson clearly made all or almost all of the monetary contributions to the marriage, the wife, Mrs. Robinson, did make significant nonmonetary contributions. To me, the logical conclusion of the husband's argument that since he could trace his monetary contributions to all of the assets of the marriage, thus they should be his, would mean that in every marriage where the wife does not work and produce income, she would not be able to share in any of the assets accumulated during the marriage.

So to me, while it's clear most of the assets of the marriage were purchased with moneys obtained solely from the husband's trust proceeds and I would concede could be traced as contemplated by statute, it's equally clear to me that Mrs. Robinson deserves a share in a portion of those assets based on the factors. To me, just because it came from a trust fund — the parties considered it as their income. To me, it's just the same as if Mr. Robinson was actually earning that money on a monthly — on a yearly basis.

Thus, the court ordered the marital home to be sold and the proceeds divided between the parties.⁸ The court also ordered that wife should receive one-half of the $244,137.16 that husband withdrew from the savings, reasoning that "such funds were there and available, regardless of the source of those funds, largely through the efforts of Mrs. Robinson to bring Mr. Robinson's spending habits under control and to better manage their income. I believe she is entitled to half of it, which is $122,069." The court also ordered husband to pay wife an additional $5,368, reasoning that, on the date of separation, husband withdrew $38,886 from the joint checking account and left wife $27,610, resulting in a difference of $11,276, of which the court believed wife was entitled to half.⁹

The trial court also awarded wife the Ford Excursion and ordered husband to pay off the remaining debt on the vehicle. The court awarded husband the F-350. Finally, the court ordered husband to pay $3,500 a month in spousal support from February 1, 2004 until July 1, 2005, reasoning that a limited period of spousal support was warranted because the marriage was of relatively short duration. The court also noted that "the award made [to wife during] the equitable distribution was significant, especially considering monetary contributions by the husband and lack thereof by the wife," concluding that wife did not need spousal support for an extended period because she "is receiving approximately a quarter of a million dollars in marital assets when the evidence shows she brought very little to the table in the first instance."

After the hearing, husband moved to reconsider, arguing that "the Court's finding that all of the property would be considered marital, notwithstanding its further finding that Mr. Robinson had met his burden of retracing his separate contributions to the property, was in error." Husband reasoned that "it was undisputed that Mr. Robinson's trust and the income from that trust were his separate property, acquired by him by inheritance long before the parties' marriage."

The trial court denied husband's motion to reconsider, holding that,

[w]hile the property of Mr. Robinson came into the marital partnership as separate property ... Mrs. Robinson contributed significantly to the "maintenance" and "preservation" of the asset. It was, and is still, my belief that there would have been no asset to divide but for the efforts of Mrs. Robinson and I think she should be allowed to share in the same to the extent ordered in the court's ruling.

By opinion dated May 31, 2005, a three-judge panel of this Court, with one judge dissenting, reversed the equitable distribution award and remanded the case for reconsideration. See Robinson v. Robinson, 45 Va.App. 682, 613 S.E.2d 484 (2005). By order dated June 28, 2005, this Court granted wife's petition for rehearing en banc and stayed the mandate of the panel opinion. Upon...