Rowe v. Rowe

• Decision Date: 22 August 2000
• Docket Number: Record No. 0981-99-2,Record No. 1028-99-2.
• Parties: Charles S. ROWE v. Mary Ann ROWE. Mary Ann Rowe v. Charles S. Rowe.
• Court: Virginia Court of Appeals

532 S.E.2d 908

33 Va. App. 250

Charles S. ROWE v. Mary Ann ROWE.

Mary Ann Rowe v. Charles S. Rowe.

Record Nos. 0981-99-2, 1028-99-2.

Court of Appeals of Virginia, Richmond.

August 22, 2000.

Carl F. Bowmer (Christian & Barton, L.L.P., on briefs), Richmond, for Charles S. Rowe.

E. Duncan Getchell, Jr. (Robert H. Patterson, Jr.; Richard Cullen; Paul G. Watson, IV; McGuire, Woods, Battle and Boothe, L.L.P., Richmond, on briefs), for Mary Ann Rowe.

Present: BENTON, COLEMAN and LEMONS,¹ JJ.

COLEMAN, Judge.

Both Charles S. Rowe and Mary Anne Rowe appeal the circuit court's order, which essentially reaffirmed and reinstated the trial court's prior equitable distribution and spousal support awards that we reversed in an earlier appeal and remanded for reconsideration. See Rowe v. Rowe, 24 Va.App. 123, 480 S.E.2d 760 (1997)

. For the reasons set forth below, we again reverse the trial court and remand the case for further proceedings in accordance with the following rulings.

I. BACKGROUND

The pertinent underlying facts are set forth in our prior opinion. See 24 Va.App. at 130-34, 480 S.E.2d at 763-64.

Husband and wife were married on May 1, 1970. The parties' major assets were obtained with funds received from husband's position as co-editor, co-publisher, and a principal stockholder of the Free Lance-Star, a family-owned newspaper in Fredericksburg. After husband and his brother inherited the newspaper from their father in 1949, they divided its operation between them; husband assumed responsibility for the news-editorial side, while his brother served as business manager. Over the years, the newspaper grew substantially and profited. Husband's expert witness calculated that the newspaper's stock increased in value from $500 per share in 1970 to $9,500 per share in 1991, Also, during the course of the parties' marriage, husband received $14,000,000 in salary and dividends from the newspaper. When the parties married, they moved into husband's home on Ingleside Drive. Four years later, husband sold the Ingleside Drive property for $82,000, and the parties purchased the marital home on Hanover Street, in which husband invested the $82,000 proceeds from the Ingleside Drive home.

The parties were divorced by final decree on December 1, 1993. In March 1996, the circuit court entered its equitable distribution and spousal support decree. The trial court made an equitable distribution award to wife of $4,204,530, awarded wife $10,000 per month in spousal support, and awarded her $50,000 for attorney's fees and court costs. In doing so, the trial court affirmed the Commissioner in Chancery's report, which recommended that one-half, or $41,000, of the Ingleside Drive sale proceeds remain husband's separate property. Both parties appealed from that decree. We reversed the trial court's rulings on several issues and remanded the case with instructions. On remand, the trial judge, with few exceptions, reaffirmed his prior rulings and the equitable distribution and spousal support awards. The trial judge's disregard of our opinion and mandate on remand has prompted and necessitated the parties' second appeal.

To place matters in a proper context, we note that in the parties' first appeals, wife asserted, inter alia, that the trial court erred by accepting husband's valuation of the newspaper stock. Husband asserted that the trial court erred by classifying the entire increase in value of the newspaper stock between 1970 and 1991 as marital property. He argued the $14,000,000 in salary and stock dividends that he received as compensation from the newspaper during the marriage represented the actual value of his marital effort and, thus, precluded classification of the entire increase of the stock appreciation as a marital asset. Husband also contended the trial court erred by classifying only $41,000 in value of the parties' marital residence as his separate property because the entire $82,000, constituting the proceeds from the sale of his premarital home, was the value of his separate interest. He also asserted the trial court erred in determining the amount of the monthly spousal support award.

On appeal, we held that: (1) the trial court did not err in the valuation of the newspaper stock; however, it erred in classifying the entire increase in value of husband's stock as marital property because fifty percent or more of the increase was attributable to the efforts of husband's brother and/or passive economic factors; (2) the amount of compensation paid to husband by the newspaper for his services, whether inadequate or excessive, was but a factor to consider in determining the amount of marital wealth attributable to marital effort; (3) the trial court erred in treating only $41,000 of the $82,000 of the Ingleside Drive sale proceeds invested in the parties' marital home as gifted, marital property; (4) the court properly refused to award wife one-half of husband's retirement benefits and the court had the power to order the husband to pay wife's designee, if wife predeceased husband; (5) the court erred in classifying all of husband's post-separation pension contributions as marital but did not err in refusing wife's proffer concerning husband's separate contributions because wife failed to timely offer supplemental evidence; and (6) the trial court correctly deducted wife's litigation expenses from her list of other expenses in valuing her accounts because she failed to timely present evidence concerning her litigation expenses. Because the trial court had to reconsider, on remand, classification of the increase in the value of husband's stock and distribution of the $82,000 proceeds from the Ingleside Drive home gifted by husband, we also held that the spousal support award must be reconsidered.

While the case was pending on appeal, husband sold his newspaper stock for an amount far in excess of that valued the experts in 1991. On remand, wife filed a motion for re-valuation of the stock. The trial court denied that motion. In denying wife's motion for re-valuation of the stock, the trial judge ruled, "The change in value of the Free Lance-Star stock based upon Husband's sale of the Free Lance-Star stock to his brother long after the separation, divorce and opinion by the Court of Appeals does not affect the value as determined by the Commissioner and set forth in the distribution order." The trial judge specifically noted that we had ruled the trial court erred by finding "the entire increase in [value of] Husband's stock was due to his personal efforts" and that we instructed the trial court to consider on remand, as a factor in determining the extent to which husband's personal efforts had contributed to the increase in value of his stock, the fact that husband may have been overcompensated for his efforts by receiving $14,000,000 in salary and stock dividends during the marriage. Disregarding our decision, the trial judge held that "[b]ecause the Commissioner and [the trial court] considered both factors and with sufficient evidence, the ultimate finding [that the entire increase in value of the stock was marital] was a judgment call properly considered and supported."

Additionally, the trial court ruled on remand that: (1) husband shall pay wife 25.6 percent of each of his pension payments; (2) the "entire sum of $82,000.00 invested in `Hanover Street' by Husband and classified by the Court of Appeals as marital property shall be distributed to Wife"; (3) wife's motion for updated discovery and valuation of marital assets was denied; and (4) the "findings concerning spousal support, litigation expenses, and post-separation deposits and withdrawals have been reconsidered, and the Court FINDS that the original determination as set forth in the Final Decree of March 15, 1996 constitutes a distribution which is fair and equitable to each party."

A trial judge is bound by a decision and mandate from this Court, unless we have acted outside our jurisdiction. A trial court has no discretion to disregard our lawful matedate. When a case is remanded to a trial court from an appellate court, the refusal of the trial court to follow the appellate court mandate constitutes reversible error. See IB Michie's Jurisprudence Appeal and Error § 349 (M.J. Divine & G.E. Legner eds.1995); see also Nassif v. Board of Supervisors, 231 Va. 472, 480, 345 S.E.2d 520, 525 (1986)

(stating that "[w]hen this Court rules that the judgment of a trial court is erroneous it does not matter whether that judgment is erroneous for one reason or ten; it is no longer viable").

Furthermore, a trial judge violates his or her oath of office by willfully refusing to abide by the rulings of an appellate court concerning the very case on appeal from the trial court, regardless of how erroneous the trial judge may consider the appellate ruling to be. Moreover, the Canons of Judicial Conduct provide that "[a] judge shall be faithful to the law . . .," Canons of Judicial Conduct for the State of Virginia Canon 3(B)(2) (1999), and "[a] judge should respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2(A). Here, the trial judge expressly refused to follow or abide by our opinion, mandate, and instructions on remand.

II. ISSUES

In the present appeal, husband contends the trial court erred in its remand decree: (1) by classifying a portion of the increase in value of the Free Lance-Star stock as marital property; (2) in awarding wife the entire sum of $82,000, representing the proceeds from the sale of husband's separate property, which he invested in the marital home; and (3) in failing to modify its previous spousal support award. Wife also appeals, contending that the trial court erred by: (1) failing to re-value the Free Lance-Star stock to determine the actual fair market value because husband had sold the stock while the case was...