Rosedale v. Rosedale, Record No. 2414-07-4 (Va. App. 7/22/2008)
| Decision Date | 22 July 2008 |
| Docket Number | Record No. 2414-07-4 |
| Court | Virginia Court of Appeals |
| Parties | DAVID IRVING ROSEDALE v. PAMELA JOY ROSEDALE |
Appeal from the Circuit Court of Stafford County, Gordon F. Willis, Judge.
Nicholas A. Pappas for appellant.
Pamela J. Rosedale, pro se.
Present: Judges Clements, Kelsey and Senior Judge Annunziata
David Irving Rosedale (husband) appeals from the final decree of divorce entered by the Circuit Court of Stafford County (trial court) on September 10, 2007. On appeal, husband contends the trial court erred in (1) awarding Pamela Joy Rosedale (wife) more than 50% of the present value of his 401(K) account, (2) awarding wife 65% of the overall value of the marital property, (3) classifying a sailboat titled in his name as marital property, (4) awarding wife permanent spousal support in the amount of $3,110 per month, and (5) failing to order the return of the cash bond he posted for his appeal to the trial court. For the reasons that follow, we affirm the trial court's judgment in part, reverse the trial court's judgment in part, and remand for further proceedings consistent with this opinion.
As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
The parties were married in July 1992. One child was born of the marriage in November 1992. On February 3, 2005, wife filed for divorce and requested, inter alia, that the court make an equitable distribution of the parties' marital assets and award her permanent spousal support.
The trial court conducted an evidentiary hearing on those issues on April 27 and May 25, 2007. The issue of child support was also before the trial court on husband's appeal from the juvenile and domestic relations district court. Following the presentation of evidence, the parties submitted their closing arguments in writing.
On August 15, 2007, the trial court issued a letter opinion finding that the parties' marital residence, husband's Fidelity 401(K) account, wife's 2002 Jetta automobile, and husband's Hunter sailboat were wholly marital assets subject to distribution. After considering the factors set forth in Code § 20-107.3(E), the trial court determined that wife was entitled to 65% of the overall value of the marital property. Finding the evidence presented was insufficient to establish the equity value of the marital residence, the trial court ordered that the residence be sold, with 65% of the net proceeds going to wife and 35% of the net proceeds going to husband. The trial court also found that, as of the date of the hearing, husband's 401(K) account had a present value of $77,551.99 and the sailboat and Jetta had equity values of $22,505 and $1,569, respectively.
The court then divided the marital property and ordered husband to pay a monetary award to wife as follows:
[Wife] shall retain ownership of the 2002 Jetta vehicle, which is already solely titled in her name and in return [husband] will receive a credit of $549.15 (35% of $1569.00) towards any lump sum payment he is required to pay to [wife].
[Husband] shall retain ownership of the 34 foot Hunter Sailboat which is already solely titled in his name and in return, he shall pay to [wife] $14,628.25 as part of the lump sum award made herein.
[Husband] shall also retain sole ownership of his 401(K) plan with Fidelity Investments and in return he shall pay to [wife] $50,408.79 (65% of $77,551.99) as part of the lump sum award made herein.
Taking into account the above division of the marital property, [wife] is awarded a lump sum award against [husband] in the amount of $64,487.89 ($50,408.79 + $14,628.25-$549.15) payable within 60 days of the entry of the final decree.
After considering the factors set forth in Code § 20-107.1, the trial court also awarded wife permanent spousal support in the amount of $3,110 per month. The court further ordered husband to pay $629 per month in child support and noted in its letter opinion as follows: "By its rulings herein, the Court has effectively dealt with all of the issues raised by [husband] in his appeal to this Court from the prior rulings of the Stafford JDR Court."
The trial court entered a final decree of divorce incorporating its letter opinion on September 10, 2007, and this appeal followed.
On appeal, husband challenges the trial court's equitable distribution of the Fidelity 401(K) account, the overall value of the marital property, and the Hunter sailboat.
"In reviewing an equitable distribution award on appeal, we recognize that the trial court's job is a difficult one." Shackelford v. Shackelford, 39 Va. App. 201, 210, 571 S.E.2d 917, 921 (2002). The trial court "must classify the property, assign a value, and then distribute the property to the parties, taking into consideration the factors listed in Code § 20-107.3(E)." Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 809, 812, aff'd en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). "Fashioning an equitable distribution award lies within the sound discretion of the trial judge and that award will not be set aside unless it is plainly wrong or without evidence to support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
Moreover, in reviewing the trial court's equitable distribution award, we view the evidence and all reasonable inferences flowing from the evidence in the light most favorable to wife as the party prevailing below. Thomas v. Thomas, 40 Va. App. 639, 642, 580 S.E.2d 503, 504 (2003). "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." Id. at 644, 580 S.E.2d at 505.
Husband contends the trial court erred in awarding wife more than half of the present value of the marital share of his Fidelity 401(K) account because wife explicitly asked for only 50% of the present value of that account. Alternatively, he argues that Code § 20-107.3(G)(1) prohibits an award of more than 50% of the marital share of a deferred compensation plan. We agree that the trial court improperly awarded wife a greater share of the present value of the Fidelity 401(K) account than she expressly requested.1
It is axiomatic that a court may generally not award more relief to a party than expressly requested by the party. See Irwin v. Irwin, 47 Va. App. 287, 298 n.10, 623 S.E.2d 438, 444 n.10 (2005) () (citing Wilson v. Wilson, 25 Va. App. 752, 761, 492 S.E.2d 495, 499 (1997) ()); see also Gaymon v. Gaymon, 258 Va. 225, 234, 519 S.E.2d 142, 147 (1999) (); Carter v. Lambert, 246 Va. 309, 313, 315, 435 S.E.2d 403, 405, 406 (1993) (); Johnson v. Buzzard Island Shooting Club, Inc., 232 Va. 32, 36, 348 S.E.2d 220, 222 (1986) (); Brown v. Brown, 5 Va. App. 238, 245, 361 S.E.2d 364, 368 (1987) (); Commonwealth v. Brown, 8 Va. App. 41, 46, 378 S.E.2d 623, 626 (1989) (Cole, J., dissenting) (); M.E.D. v. J.P.M., 3 Va. App. 391, 395, 405-07, 350 S.E.2d 215, 218, 224-25 (1986) (); cf. Adams Outdoor Adver., Inc. v. Bd. of Zoning Appeals, 261 Va. 407, 414, 544 S.E.2d 315, 319 (2001) (). The underlying purpose of this principle is to protect, in the interest of fairness and due process, the opposing party's right to address the propriety of the relief granted. See Wilson, 25 Va. App. at 761, 492 S.E.2d at 499 ().
In Irwin, following the wife's filing of a bill of complaint for divorce, the parties entered into a property settlement agreement in January 2004. 47 Va. App. at 290, 623 S.E.2d at 439-40. The parties' agreement provided that the husband's pension, which the husband was already receiving, would "be split equally between the parties." Id. at 290, 623 S.E.2d at 440. In April 2004, the trial court entered a final decree incorporating the parties' agreement. Id. However, the wife did not start receiving her share of the pension payments until after a QDRO was approved and entered by the court in September 2004. Id. at 291, 623 S.E.2d at 440....
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