Theismann v. Theismann

• Decision Date: 18 June 1996
• Docket Number: No. 1092-95-4,1092-95-4
• Citation: 471 S.E.2d 809,22 Va.App. 557
• Court: Virginia Court of Appeals
• Parties: Joseph R. THEISMANN v. Jeanne C. THEISMANN. Record

Page 809

471 S.E.2d 809

22 Va.App. 557

Joseph R. THEISMANN v. Jeanne C. THEISMANN.

Record No. 1092-95-4.

Court of Appeals of Virginia Alexandria.

June 18, 1996.

Rehearing En Banc Granted July 31, 1996.

Michael A. Ward, Alexandria (Gannon, Cottrell & Ward, P.C., on briefs), for appellant.

Mark Barondess, Vienna (Brian D. West, Vienna; Donna J. Kraus, Arlington; Sandground, Barondess & West, P.C., Vienna, on brief), for appellee.

Before MOON, C.J., ANNUNZIATA, J., and DUFF, Senior Judge.

MOON, Chief Judge.

Joseph R. Theismann and Jeanne C. Theismann appeal from the final decree of divorce entered on May 12, 1995. Mr. Theismann claims that the trial court erred in making a monetary award of $950,000, in awarding periodic support and maintenance, in failing to impute income to Mrs. Theismann, and in awarding attorney's fees and costs to Mrs. Theismann. Mrs. Theismann claims that the trial court awarded her insufficient spousal support and maintenance, erred in determining the scope of marital property, and erred in its determination of Mr. Theismann's waste of marital assets. We affirm the judgment of the trial court.

The parties married on May 26, 1991. At that time, Mr. Theismann was a sportscaster for ESPN, with an ownership interest in several restaurants and additional income from speaking engagements. Mrs. Theismann was a sportswriter for a Japanese newspaper, having previously been employed as a weather forecaster. No children were born of the marriage.

Prior to the marriage, Mr. Theismann had assets worth over $4 million. Mrs. Theismann's pre-marital assets consisted primarily of a certificate of deposit worth $40,000. She used approximately half of this amount to purchase an automobile for Mr. Theismann and retained the rest as separate property.

Virtually all of the monetary contributions to the marriage came from Mr. Theismann. Mrs. Theismann left her job in Japan so that she could marry Mr. Theismann, and her contributions to the marriage were primarily non-monetary. She engaged in improvement projects in the home, performed a variety of household activities, and also served as a hostess and traveling companion for her husband.

During the marriage, the parties lived on a farm near Leesburg. Shortly after the marriage, Mr. Theismann directed that the farm be deeded jointly to himself and his wife, as tenants by the entireties. In January 1993, he placed Mrs. Theismann's name on his account with Goldman Sachs & Co. Shortly thereafter Mr. Theismann created an account with Merrill Lynch that he also placed in the couple's joint names. The trial court found that in all three cases, the retitling of the property constituted a gift. At the time of the evidentiary hearing, the Goldman Sachs account was worth $842,326, the Merrill Lynch account was worth $72,111, and the farm in Leesburg was worth $1,645,000, with equity of $849,933.

In April 1993, Mr. Theismann began an adulterous affair. The parties separated in January 1994 after Mrs. Theismann first learned of the affair. On April 1, 1994, Mrs. Theismann filed for divorce on the ground of adultery. After a five-day trial, the circuit court filed a letter opinion on January 26, 1995 in which it found that Mrs. Theismann was entitled to a divorce based upon adultery. The court listed marital property worth over $2.5 million, including the two accounts and the farm discussed above. This amount also included a Central Fidelity account worth $69,948 and a First Union account with equity of $201,537, which Mrs. Theismann claimed were created with funds from the two "gifted" accounts. The court found that Mrs. Theismann was entitled to a monetary award of $130,000, to be paid upon recordation of the decree transferring the jointly titled marital property to Mr. Theismann. The trial court awarded Mrs. Theismann spousal support and maintenance of $3500 per month, with no income imputed to Mrs. Theismann, and ordered Mr. Theismann to pay Mrs. Theismann's counsel fees.

On February 23, 1995, Mrs. Theismann filed a motion to reconsider, arguing inter alia that the court had erred in its consideration of the marital gifts. The court also decided to reconsider the monetary award on its own motion. After extensive briefing and argument by the parties, the court issued a second letter opinion increasing the monetary award to $950,000 on the ground that the previous award did not give due weight to the marital gifts. The court did not change the spousal support award. Mr. Theismann's motion for reconsideration was denied, and the final decree was entered on May 12, 1995. These appeals followed.

EQUITABLE DISTRIBUTION

"The goal of equitable distribution is to adjust the property interests of the spouses fairly and equitably." Booth v. Booth, 7 Va.App. 22, 27, 371 S.E.2d 569, 572 (1988). In making an equitable distribution, the 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). Alphin v. Alphin, 15 Va.App. 395, 403, 424 S.E.2d 572, 576 (1992). While the division or transfer of marital property and the amount of any monetary award are matters committed to the sound discretion of the trial court, "any division or award must be based on the parties' equities, rights and interests in the property." Id. at 403, 424 S.E.2d at 577; see also Keyser v. Keyser, 7 Va.App. 405, 410, 374 S.E.2d 698, 701 (1988); Code § 20-107.3(D).

Mr. Theismann contends that the trial court abused its discretion in making even the original marital award of $130,000, because the marriage was of short duration and Mr. Theismann made the vast majority of financial contributions to the marriage. We disagree. Duration of the marriage and the parties' monetary contributions are only two of the factors the court must consider in making a monetary award. Monetary contributions do not necessarily carry greater weight than nonmonetary contributions. See L.C.S. v. S.A.S., 19 Va.App. 709, 721, 453 S.E.2d 580, 586 (1995). The trial judge thoroughly examined the evidence and considered the required factors in determining the award. His decision that Mrs. Theismann was entitled to a significant marital award was not an abuse of discretion.

Mr. Theismann also argues that in increasing the award to $950,000, the trial court erred in its treatment of the property that Mrs. Theismann claims was gifted to her. All three items of property were retitled in the parties' joint names by Mr. Theismann. Under Code § 20-107.3, "when separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property, ... [unless] it is retraceable by a preponderance of the evidence and was not a gift." Code § 20-107.3(A)(3)(f). No presumption of gift arises from the fact that the property was retitled. Code § 20-107.3(A)(3)(g).

Because the ordinary presumptions pertaining to interspousal gifts do not apply, ¹ Mrs. Theismann had to prove the existence of a gift. Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 631 (1968). The three elements of a gift are: (1) intention on the part of the donor to make a gift; (2) delivery or transfer of the gift; and (3) acceptance of the gift by the donee. 9A Michie's Jurisprudence, Gifts § 8 (1991). Here, the only element disputed by the parties is the element of Mr. Theismann's intent.

The evidence on the issue of intent was in conflict. Mr. Theismann denied the intention to make a gift. However, he acknowledged that he knew that he had made his wife an owner of the accounts and that he wanted her to share equally in the home. He placed no reservation on the transfers of title permitting him to reclaim the property upon divorce or any other circumstance. Mrs. Theismann presented evidence that Mr. Theismann memorialized the transfers of title in cards that he sent to her, which indicated that the Leesburg farm was now "our home" and that the money was hers to spend. Mrs. Theismann testified that Mr. Theismann bragged that he had made her a "millionaire." Viewing the evidence in the light most favorable to Mrs. Theismann, as we must, we hold that the trial court was not plainly wrong in concluding that Mr. Theismann intended to make a gift of the property to his wife. ²

Mr. Theismann further argues that the trial court erroneously construed McClanahan v. McClanahan, 19 Va.App. 399, 451 S.E.2d 691 (1994), to require that the gifted assets be divided between the parties fifty/fifty, in effect creating a special class of "gifted" marital property that does not exist in the statute. This argument misinterprets the trial court's decision. ³ In its first opinion, the court found that Mr. Theismann made three gifts to Mrs. Theismann. In the second, the court increased the marital award on the basis that it had not given due weight to the gifts, citing McClanahan for the proposition that it would be inequitable to permit Mr. Theismann to revoke, through the divorce, an unconditional gift. The trial court did not then make an automatic fifty/fifty split of the gifted property, but considered "the equities and rights and interests of the parties in the marital property" under Code § 20-107.3(D) and also the statutory factors under Code § 20-107.3(E). ⁴

Relying on McClanahan, the trial court gave great weight to the gifted status of the property in determining the amount of the award. McClanahan establishes the principle that the equities, rights, and interests of spouses in an interspousal gift of jointly titled property are equal under Code § 20-107.3(D), and that the court must give careful consideration to the gifted status of marital property in order to fashion a fair and equitable award. Id. at 405, 451 S.E.2d at 694. The trial court did not err in relying on McClanahan to award Mrs. Theismann a substantial proportion of the gifted property and little or none of the value of the other marital property.

...