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Domestic Relations – Cruelty – Equitable Distribution – Family Dog

Although wife alleges multiple acts of domestic violence by husband, she had corroborating evidence for only one incident in 2006, and the Fairfax Circuit Court declines to award a divorce on the ground of cruelty based on the single incident.

Here, the evidence established that wife only sustained minor injuries from the Feb. 2, 2006 assault. Wife’s witness testified that she only saw a red spot on wife’s shoulder. While this court recognizes that an assault should never be tolerated or condoned, the assault in this case is not sufficiently severe to award wife a divorce based on cruelty. A divorce is awarded on the basis of the parties living separate and apart for more than one year.

In Virginia, dogs are considered to be the personal property of the owner. The court finds husband’s testimony credible in regard to his ownership of the family dog. The dog was a gift to husband from his mother. The dog has always lived with husband. Since the gift was only intended for husband, the court finds that the family dog is separate property and the dog is awarded to husband.

In 2003, wife filed for bankruptcy and after a bankruptcy hearing, she was discharged from her portion of a joint debt from a Wachovia Bank deed of trust for $20,000. The evidence supports that wife listed the deed of trust as a debtor and all interested parties received notice of the bankruptcy proceeding. Husband argued that this court, despite the valid bankruptcy order, should apportion the debt equally between the parties since it was a marital debt. Husband provided no evidence that he has appealed the federal bankruptcy order. Also, he failed to provide any other basis why this court could collaterally attack and ignore the federal bankruptcy order. Based on the evidence, this court finds that it is proper to give full effect to wife’s bankruptcy order and not allow husband to collaterally attack the order. The court apportions the complete remaining balance of the deed of trust to husband.

The court further finds that the marital residence is a marital asset. The parties purchased the marital home in 1986 after two years of marriage. The evidence indicates the down payment and all subsequent monthly mortgage payments came from marital bank accounts.

The court rejects wife’s argument that she should be awarded 100 percent of the marital residence because she suffers from multiple sclerosis, which prohibits her from working. The evidence did not support that wife’s disability prevents her from working. Moreover, with spousal support she currently makes as much money as husband. Each party’s current financial situation is similar and each will face adjustments after the dissolution of the marriage. Each party is awarded 50 percent of the marital home’s equity. Wife is awarded the use of the marital home but must purchase husband’s interest. If the parties are unable to agree to a purchase price, then both parties may obtain separate appraisals and determined an appropriate sale price based upon an average of the two value appraisals.

Neither party is awarded attorney’s fees.

Elliot v. Elliot (Thacher, J.) No. CL 2007-4976, June 10, 2008; Fairfax Cir.Ct.; Roy Baldwin, Bradley Chase for the parties. VLW 008-8-163, 5 pp.

VLW 008-8-163

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