Towner v. Towner, Record No. 1072-05-4 (Va. App. 9/26/2006), Record No. 1072-05-4.

• Decision Date: 26 September 2006
• Docket Number: Record No. 1072-05-4.
• Court: Virginia Court of Appeals
• Parties: JONATHAN SCOTT TOWNER v. PAULETTE MOORE TOWNER.

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Unpublished Opinion

JONATHAN SCOTT TOWNER v. PAULETTE MOORE TOWNER.

Record No. 1072-05-4.

Court of Appeals of Virginia, Alexandria.

September 26, 2006.

Appeal from the Circuit Court of Loudoun County, Thomas A. Fortkort, Judge.

James E. Carr (Carr & Carr, on briefs), for appellant.

Daniel L. Grubb (Dunlap, Grubb & Weaver, P.C., on brief), for appellee.

Present: Judges Clements, Haley and Senior Judge Annunziata

MEMORANDUM OPINION^*

JUDGE ROSEMARIE ANNUNZIATA.

Jonathan Scott Towner (husband) appeals the April 6, 2005 final decree awarding Paulette Moore Towner (wife) a divorce a vinculo matrimonii, on the ground that the parties lived separate and apart for over one year. On appeal, husband contends the trial court erred 1) by finding he was responsible for the dissolution of the marriage, 2) by finding wife made a contribution from separate funds towards the acquisition of the marital residence, 3) by failing to include certain funds in wife's gross income, 4) in its spousal support award, 5) in its child support award, 6) by denying his March 2, 2005 motion to modify spousal support, 7) by departing from the guidelines in its revised calculation of child support, and 8) in awarding wife attorney's fees. Wife seeks an award of attorney's fees and costs associated with this appeal. For the reasons that follow, we affirm the trial court's order in part, reverse it in part, and remand for reconsideration consistent with this opinion.

BACKGROUND

We view the evidence, and all reasonable inferences flowing from the evidence, in a light most favorable to wife as the party prevailing below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). "That principle requires us to `discard the evidence' of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial." Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)).

So viewed, the evidence proved the parties married on September 30, 1990. One child was born of the marriage in December 1998. The parties stipulated to a separation date of September 15, 2004. During the marriage husband worked as a flight officer and then a pilot. Wife worked full time as a nurse until the birth of their child. Thereafter, wife worked part-time.

The record reveals husband was physically and verbally abusive towards wife during the marriage. Husband became involved in commodities trading and began his own business as a "day trader." Husband spent large amounts of time in his trading practice and wasted substantial marital assets in trading losses, necessitating his filing for bankruptcy.

In 1992, the parties moved to Virginia from North Carolina. Wife sold her separately owned residence in North Carolina at that time and deposited the proceeds into a separate account at Dominion Bank. Those funds comprised a portion of the money she said she later withdrew and applied towards the purchase of the parties' marital residence in Virginia.

The court determined wife's annual income was $89,414 and awarded her $1,000 per month in spousal support for a period of seven years. The court also determined wife had demonstrated she had contributed $20,000 of her separate property towards the purchase of the marital home and awarded that amount to her as her separate property.

Following the initial hearing, husband filed a motion for modification, claiming he had been involuntarily demoted and that his salary was consequently reduced by approximately fifteen percent. In the final decree the court accepted husband's evidence regarding his reduced income.

Nevertheless, the trial court did not alter its previous spousal award to wife in the amount of $1,000 monthly for a period of seven years. The court based its award "upon the disparity in income, the disparity in age, marital fault, dissolution of the marriage, that the Wife voluntarily limited work hours during the marriage to suit the marital aims of both Parties, and that this was a reasonably long marriage."

Due to consideration of husband's reduced income, however, the court altered its original child support award and ordered husband to pay wife one hundred dollars ($100) monthly in child support, an award that deviates from the calculated guideline figure. Upon reconsideration, the court also reduced the amount it credited to wife as her separate property from $20,000 to $9,780. The court further awarded wife attorney's fees in the amount of $30,000.

ANALYSIS

I.

Husband cites no authority or principles of law to support his contention that the trial court erred by finding he was responsible for the dissolution of the marriage. "'Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration.'" Budnick v. Budnick, 42 Va. App. 823, 833-34, 595 S.E.2d 50, 55 (2004) (quoting Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297 (2003)); see Rule 5A:20 (requiring appellants to brief the "principles of law, the argument, and the authorities relating to each question presented").

Having presented no citations or authority in his brief in support of this contention, husband has waived this argument on appeal and we need not address it. See Rule 5A:20(e).

II.

"In reviewing an equitable distribution award on appeal, we have recognized that the trial court's job is a difficult one, and we rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). "A decision regarding equitable distribution . . . will not be reversed unless it is plainly wrong or without evidence to support it." Rahbaran v. Rahbaran, 26 Va. App. 195, 205, 494 S.E.2d 135, 139 (1997).

Pursuant to the provisions of Code § 20-107.3(A)(3), property may be classified as part marital and part separate. Under subsection (e), "when marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property," unless the contributed property is retraceable and not a gift. Code § 20-107.3(A)(3)(e). We have explained the requirements of tracing under that section:

In order to trace the separate portion of hybrid property, a party must prove that the claimed separate portion is identifiably derived from a separate asset. This process involves two steps: a party must (1) establish the identity of a portion of hybrid property and (2) directly trace that portion to a separate asset.

Rahbaran, 26 Va. App. at 208, 494 S.E.2d at 141 (citing Code § 20-107.3(A)(3)(d)-(f)). "[T]he party claiming a separate interest in transmuted property bears the burden of proving retraceability." von Raab v. von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997).

Here, the trial court found that wife had successfully demonstrated that a portion of the funds she used towards the purchase of the marital residence came from her separate property and awarded $9,780 to wife as her separate property. We find that the trial court erred in making this award.

"The goal of the tracing process is to link . . . [every] asset to its primary source, which is either separate property or marital property." Id. (citing Brett R. Turner, Equitable Distribution of Property § 5.23 (2d ed. 1994)). In this case, wife failed to establish the separate identity of a portion of the hybrid property held in the Dominion Bank account and, thus, failed to link the funds she used from her Dominion Bank account towards the purchase of the marital home to its primary separate source, as claimed.

Although wife provided conflicting accounts of the source of the funds she used to open the account with Dominion Bank and presented no documentary evidence establishing the amount of the proceeds she received from the sale of her separate property, husband conceded that wife deposited $9,784 from the sale of her separate property in North Carolina into the Dominion account.¹

Evidence that wife initially deposited separate funds in the amount of $9,784 into the Dominion Bank account is, in itself, insufficient to satisfy the test set forth in Rahbaran, in light of the hybrid nature of the account.² We acknowledge that wife "was not required to have segregated the [separate funds] from all other marital funds in order to claim a separate interest in that amount." Holden v. Holden, 31 Va. App. 24, 28, 520 S.E.2d 842, 845 (1999) (citation omitted). However, where the evidence fails to establish the identity of a portion of the hybrid account as separate, the burden of proving a claim of separate property has not been sustained. "Under generally accepted principles, the party . . . claiming property as separate has the burden to produce satisfactory evidence to rebut [the] presumption [that the funds are marital]." Rexrode v. Rexrode, 1 Va. App. 385, 392, 339 S.E.2d 544, 548 (1986).

Wife introduced no evidence, documentary or testimonial, regarding the deposits and withdrawals that may have occurred from the time she opened the account to the time she withdrew funds from it for the purchase of the marital home. Cf. Holden, 31 Va. App. at 29, 520 S.E.2d at 845 (husband proved that, without the contribution of his separate funds to the parties' joint bank account, the account would not have contained sufficient funds to support the purchase of a parcel of property).

Thus, wife failed to show that the separate funds she used to open the account had not been used for another purpose prior to the purchase of the marital residence, leaving only marital funds in the account at the time she withdrew funds in order to acquire the marital residence. By failing to document whether any deposits and withdrawals from the Dominion Bank account had been made, wife's evidence fails to establish that the...