Rouse v. Rouse

• Decision Date: 18 July 2017
• Docket Number: Record No. 0033-17-3
• Court: Virginia Court of Appeals
• Parties: RICHARD DAVID ROUSE v. CATHERINE HAGY ROUSE

RICHARD DAVID ROUSE v. CATHERINE HAGY ROUSE

Record No. 0033-17-3

COURT OF APPEALS OF VIRGINIA

JULY 18, 2017

UNPUBLISHED

Present: Judges Petty, Alston and Russell

Argued at Lexington, Virginia

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY

Isaac St. C. Freeman, Judge Designate

Richard David Rouse, pro se.

Faith Dillow Esposito for appellee.

Richard David Rouse (husband) appeals several issues related to his divorce from Catherine Hagy Rouse (wife). Husband argues that the trial court erred by (1) failing to follow the statutory requirements of Code § 20-107.3 when dividing the marital property and "failing to grant husband an opportunity to present testimony or evidence in the equitable distribution matter," (2) determining the monthly rental value of the marital home and ordering husband to pay wife one-half of that figure for each month of separation prior to their divorce, (3) failing to grant husband a divorce on the ground of desertion, (4) concluding that husband allowed the marital home to depreciate and failing to compare an older appraisal of the marital home with a more recent appraisal, (5) "punishing" husband for allegedly using delaying tactics to prevent the sale of the marital home, (6) requiring husband to pay pendente lite spousal support, (7) failing to consider husband's contributions to the support of his stepson under Code § 20-107.3(E)(11),(8) awarding attorney's fees to wife, and (9) holding a hearing on this matter in the same building where wife is employed. For the following reasons, we affirm the trial court.

I. BACKGROUND

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. "When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Niblett v. Niblett, 65 Va. App. 616, 622, 779 S.E.2d 839, 842 (2015) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)).

After separating in 2007, the parties were divorced pursuant to a decree dated March 31, 2015, but entered nunc pro tunc, to March 24, 2014. A final order was entered on September 27, 2016, incorporating a memorandum opinion dated July 6, 2016. Over a nine-year period, the trial court held multiple hearings on the issues of spousal support and equitable distribution, including a 2008 hearing resulting in an award of pendente lite spousal support to wife, and hearings on January 27, 2014, March 24, 2014, and June 16, 2016.

II. ANALYSIS

A. ASSIGNMENTS OF ERROR 1 AND 7

Husband argues that the trial court did not consider and properly apply the factors listed in Code § 20-107.3(E) when dividing the marital property. Specifically, husband argues that the trial court erred by denying him an opportunity to present testimony or enter evidence regarding equitable distribution and by failing to hold an equitable distribution hearing. Also, under assignment of error seven, husband argues that the trial court erred by refusing to consider his contributions to his stepson's support.

In an equitable distribution hearing, a trial court must consider the factors enumerated in Code § 20-107.3(E) in distributing marital property, but it "is not required to quantify the weight given each [factor] nor is it required to weigh each factor equally, though its considerations must be supported by the evidence." Marion v. Marion, 11 Va. App. 659, 664, 401 S.E.2d 432, 436 (1991). Code § 20-107.3(E) provides,

The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after considering the following factors:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivision A (1), (3), or (6) of § 20-91 or § 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

Furthermore, a trial court may consider a husband's support for his wife's children under Code § 20.107.3(E)(1) or Code § 20.107(E)(11), however, "he is not entitled to a dollar-for-dollar credit for contributions he may have made." Barker v. Barker, 27 Va. App. 519, 539, 500 S.E.2d 240, 250 (1998).

The trial court enjoys broad discretion in considering the Code § 20.107.3(E) factors, and a decision regarding equitable distribution will not be disturbed by this Court "unless it is plainly wrong or without evidence to support it." Anderson v. Anderson, 42 Va. App. 643, 647, 593 S.E.2d 824, 826 (2004) (quoting Holden v. Holden, 31 Va. App. 24, 26, 520 S.E.2d 842, 844 (1999)). "Unless it appears from the record that the trial judge has not considered or has misapplied one of the [Code § 20.107.3(E) factors], this Court will not reverse on appeal." Id. (quoting Holden, 31 Va. App. at 27, 520 S.E.2d at 844).

Here, at the beginning of the January 27, 2014 hearing, the trial court announced that it would hear arguments on jurisdictional matters, fault, continued spousal support, and equitable distribution in that order. Both husband and wife agreed to this format. The trial court went on to hear extensive testimony relevant to equitable distribution, including testimony from husband, wife, husband's stepson, husband's mother-in-law, and three other witnesses. Particularly relevant to husband's argument, the trial court heard extensive testimony regarding the acquisition, maintenance, use, expenditure, and care of the marital home. Husband and wife also testified to their respective nonmonetary contributions to the marriage. The court permitted husband and wife to testify at length regarding allegations of physical and verbal abuse and desertion. Husband and wife testified as to income, retirement, and various bank accounts. Exhibits related to income, retirement, and property were entered into evidence by both husband and wife.

Significantly, at no time during the hearing did husband request additional time to present more evidence or call additional witnesses. Husband also fails to specify any proffered testimony or other evidence relevant to equitable distribution that the trial court rejected during any of the hearings on equitable distribution, including the January 27, 2014 hearing. Rather, the substance of husband's argument is repeated citations to testimony that was given during the January 27, 2014 hearing, a citation to testimony given during his 2010 deposition, and a citation to 110 pages in the appendix consisting of: six pages of objections to the final order filed by husband on October 3, 2016; a brief previously filed by husband's subsequently withdrawn counsel; an unpublished opinion by this Court; various email correspondence; an affidavit signed by the stepson; sixty pages related to a property auction and appraisal of real property; previous orders entered by this Court and the trial court; and a copy of Code § 16.1-278.17:1.¹

Regarding assignment of error seven, at the January 27, 2014 hearing, husband testified extensively of his monetary and nonmonetary contributions to his stepson's support. Nothing in the transcript of the January 27, 2014 hearing suggests that the trial court did not consider husband's contributions to his stepson's support. To the contrary, the court stated at the hearing, "[a]pparently, [the stepson] was a small child when these two were married in 1992. And so it would seem that Mr. Rouse was an integral part of his raising. And there was obviously some financial support provided by Mr. Rouse as well as the mother," thus indicating that the trial court considered both husband's contributions to his stepson's support and wife's contributions.²

In its final order, the trial court stated the order was entered, in part, "upon consideration of each of the factors set forth in Virginia Code Section 20-107.3 . . . ." Because there is evidence in the record to show that the trial court considered the Code § 20-107.3(E) factors in dividing the marital property, the court did not abuse its discretion.

B. ASSIGNMENT OF ERROR 2

Husband argues that the trial court erred in determining a monthly rental value of the marital home when there was no evidence to support such finding.

It is an axiom of appellate review that "the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient [appendix] from which we can determine whether the lower court has erred in the respect complained of." Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759, 765 (2003) (quoting Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993)). "The appendix must include 'any testimony and other...