BUCHANAN v. BUCHANAN




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revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


BUCHANAN

v.

BUCHANAN


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Senior Judge Hodges

Argued at Richmond, Virginia

Record No. 2244-02-2

LUTHER BRUCE BUCHANAN

v.

BONNIE BUCHANAN

 

MEMORANDUM OPINION[1]BY
JUDGE WILLIAM H. HODGES

SEPTEMBER 30, 2003

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY

Leslie M. Osborn, Judge

Michael J. Brickhill (Michael J. Brickhill,

P.C., on brief), for appellant.

Carol B. Gravitt (E. Sterling Byrd-Roberts;

Gravitt & Gravitt, P.C., on brief), for

appellee.

Luther Bruce Buchanan (husband) contends on appeal that the

trial court erred: (1) in awarding Bonnie Buchanan (wife) a

divorce on the basis of constructive desertion; (2) in failing

to explain the factors upon which it based equitable

distribution of the marital property; (3) in refusing to assign

a present value to wife’s Virginia Retirement System (VRS)

pension; (4) in assigning husband only 25% of wife’s pension and

awarding her a monetary award of $105,000; (5) in finding as

wife’s separate property a contribution of $23,000 from her

inheritance used to improve the marital home; (6) in

conditioning the Qualified Domestic Relations Order (QDRO) on a

specific payment of the monetary award to wife; (7) in ordering

interest to accrue on the amount of the monetary award if not

timely paid; (8) in reserving wife’s right to seek spousal

support for a specified period; and (9) in barring husband’s

transfer, disposition, conveyance or encumbrance of his solely

titled property until after entry of the final divorce decree.

Pursuant to Rule 5A:21(b), wife contends that the trial

court erred in considering certain debts of husband in the

division of property.

After reviewing the record and considering arguments of the

parties, we affirm the trial court.

PROCEDURAL HISTORY

Husband filed a bill of complaint on March 9, 2001, seeking

a divorce. As grounds, husband alleged cruelty and constructive

desertion on the basis of an alleged assault by wife as well as

repeated incidences of verbal abuse. He sought equitable

distribution of the marital property, spousal support,

possession of the marital home, and attorney’s fees and costs.

Wife filed an answer and cross-bill. She denied any

intentional assault on husband other than in her own attempts to

defend herself against his abuse. In her cross-bill, wife

requested a divorce a mensa et thoro pursuant to Code

? 20-91(6). She sought spousal support, equitable distribution

of the marital property, court costs and attorney’s fees.

Husband denied wife’s allegations and moved to dismiss the

cross-bill.

Following extensive evidentiary hearings, the trial court

found that wife proved cruelty by husband and ordered the

marriage dissolved on that basis. The trial court distributed

the marital property in accordance with Code ? 20-107.3 as set

out in the court’s opinion letter dated April 18, 2002, and

Attachment A to that letter. The trial court valued the marital

property, including debts and liabilities, at $207,962.01.

The trial court ordered husband to pay wife "a lump sum

monetary award of One Hundred and Five Thousand Dollars

($105,000) which shall accrue interest at the judgment rate

until paid if unpaid beginning June 1, 2002." The trial
court

allowed husband to pay the award in three installments, with

$50,000 due by June 1, 2002, $35,000 by September 1, 2002, and

$20,000 by June 1, 2003.

In the final decree, the trial court conditioned entry of

the QDRO[2] on
husband paying at least $50,000 of the wife’s

monetary award. The court awarded wife $27,000 in attorney’s

fees and costs incurred in the divorce proceeding and the

fraudulent conveyance action brought against husband. In the

decree, the trial court prohibited husband from
"transferring,

disposing, destroying or encumbering the boat until wife’s

monetary award and award of attorney’s fees is satisfied except

as is necessary to pay to wife the monetary award and attorney’s

fees directed herein." The trial court reserved wife’s
right to

seek spousal support. Following entry of the final decree, both

parties filed written objections to the order on multiple

grounds.

STATEMENT OF FACTS

On appeal, we review the evidence in the light most

favorable to the wife, the prevailing party below, and grant all

reasonable inferences fairly deducible therefrom. Anderson v.

Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999);

Gamer v. Gamer 16 Va. App. 335, 340, 429 S.E.2d 618, 622 (1993);

McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346

(1990).

Husband and wife married on September 21, 1973. In 1979,

the parties built a home in Mecklenburg County on land purchased

by husband prior to their marriage. The land is titled solely

in husband’s name but the parties agree it is marital property.

Husband operates his own business, and wife works for the

Halifax County Health Department. At the date of filing of the

bill of complaint, wife had twenty-five years of service with

the health department. During the marriage, wife participated

in the operation of husband’s business as a general bookkeeper.

Husband and wife have one child, who was emancipated at the time

the action commenced.

The parties separated on February 1, 2000, following

husband’s arrest for assault and battery of wife on that same

day. Wife testified that husband began choking her during a

heated argument. Husband threatened to kill her and forced a

gun barrel in her mouth, cracking her tooth. Wife described

other incidents of abuse, including one where husband pulled her

from a chair with such force that he dislocated her shoulder.

In the last two years of the marriage, husband’s behavior became

increasingly violent toward his wife and son. The record

contains deposition testimony of wife and the son taken on

December 18, 2001, detailing several instances of husband’s

abusive behavior.

On December 20, 2001, the trial court received extensive

evidence regarding equitable distribution of the marital assets.

The parties agreed that the marital home "was built during
the

course of the marriage with funds that were marital property

[and t]here is no question that it’s [a] marital asset."
The

parties agreed that the home would be assigned to the husband

but left open wife’s claim to separate funds for monies she

contributed for an addition to the home.

Each party introduced separate expert valuations of wife’s

VRS pension. The experts applied interest rates to their

calculations derived from different sources and arrived at

distinctly different values.

Husband testified that he borrowed $8,000 from Dewey

Edwards and $2,000 from Mr. Ellis of Ellis Septic Tank Company.

The trial court attributed $2,946.05 in marital debt to wife.

In a separate but related fraudulent conveyance action

brought by wife against husband, wife alleged that husband,

after separation, borrowed $80,000 against equity in the marital

home and used that money to repay certain alleged loans. In

that suit, wife challenged a $5,750 payment by husband to his

father and a $12,250 payment by husband to his mother. By order

dated October 12, 2001, the trial court found that the transfers

to husband’s parents were fraudulent pursuant to Code ? 55-80

and placed the amounts in a constructive trust pending the

outcome of the divorce action.[3]

On April 18, 2002, the trial court issued an opinion letter

granting wife a divorce. It outlined its findings and the

values assigned to the equitable distribution schedule and

ordered wife’s counsel to prepare a rough draft of the final

decree of divorce.

At a May 1, 2002 hearing to determine attorneys’ fees,

husband objected to the reservation of spousal support included

in the draft decree and asked the trial court to explain the

factors it used to arrive at its equitable distribution award.

The trial court declined to elaborate on or quantify any of the

specific factors. The trial court entered the final decree of

divorce on August 6, 2002.

DISCUSSION

1. GROUNDS FOR DIVORCE

Husband contends the trial court erred in granting wife a

divorce on the basis of constructive desertion. He argues the

trial court erred in finding constructive desertion because wife

remained in the marital home.

"On appellate review, a divorce decree is presumed correct

and will not be overturned if supported by substantial,

competent, and credible evidence." Gottlieb v. Gottlieb, 19

Va. App. 77, 83, 448 S.E.2d 666, 670 (1994). Findings by the

trial court are given considerable deference on review, and
"we

defer to the factual findings of the court . . . where the court

took evidence ore tenus." Shackelford v. Shackelford, 39

Va. App. 201, 207, 571 S.E.2d 917, 920 (2002).

"Where dual or multiple grounds for divorce exist, the

trial judge can use . . . sound discretion to select the grounds

upon which . . . to grant the divorce." Sargent v. Sargent,
20

Va. App. 694, 707, 460 S.E.2d 596, 602 (1995); Lassen v. Lassen,

8 Va. App. 502, 505, 383 S.E.2d 471, 473 (1989).

Code ? 20-91(6) authorizes a trial court to grant a divorce

"where either party has been guilty of cruelty, caused

reasonable apprehension of bodily hurt, or willfully deserted or

abandoned the other." (Emphasis added.) It is within a
trial

court’s discretion to determine whether a finding of cruelty

"entitles a wife to a divorce on the ground of constructive

desertion." Brawand v. Brawand, 1 Va. App. 305, 309, 338
S.E.2d

651, 653 (1986). Desertion as a ground for divorce does not

depend on who actually leaves the marital home. Rather,
"[i]t

means desertion of the marital relationship," and it
"may be

‘constructive,’ for cruelty by one party, which results in the

other party’s enforced separation." Zinkhan v. Zinkhan, 2

Va. App. 200, 208, 342 S.E.2d 658, 662 (1986).

In the final decree, the trial court found that "cruelty

grounds for divorce exist in favor of the Wife against Husband

pursuant to Virginia Code ? 20-91(6)." Substantial,
competent

and credible evidence supports such a finding by the trial

court.

2. TRIAL COURT’S REFUSAL TO EXPLAIN DETAILS OF AWARD

Marital assets at the time of the equitable distribution

hearing included the marital residence, wife’s pension, a patent

held by husband, two vehicles, a motorcycle, a boat, business

equipment, a time share and personal possessions. The court

heard evidence from both parties as to the value of personal

possessions and entered into evidence numerous exhibits from

appraisers. The marital debts included a home equity line and

liens on both vehicles and on certain business equipment. Other

debts included personal loans to husband.

Code ? 20-107.3(E) provides that "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

consideration of the following factors." The statute then
lists

ten factors the trial court must consider. "In fashioning
an

equitable distribution award, the trial court must consider each

of the statutory factors, but may determine what weight to

assign to each of them." Barker v. Barker, 27 Va. App. 519,

535, 500 S.E.2d 240, 248 (1998).

"’In reviewing an equitable distribution award on appeal,

we recognize that the trial court’s job is a difficult one.

Accordingly, we rely heavily on the discretion of the trial

judge in weighing the many considerations and circumstances that

are presented in each case.’" Shackelford, 39 Va. App. at
210,

571 S.E.2d at 921 (quoting Artis v. Artis, 4 Va. App. 132, 137,

354 S.E.2d 812, 815 (1987)). The court is not required to

elaborate upon the exact weight given each piece of evidence and

each factor used to reach its decisions. See Pommerenke v.

Pommerenke, 7 Va. App. 241, 250-51, 372 S.E.2d 630, 635 (1988)

(holding that the analysis in Woolley v. Woolley, 3 Va. App.

337, 345, 349 S.E.2d 422, 426 (1986), as applied to Code

? 20-107.1 concerning spousal support is equally applicable to

Code ? 20-107.3 when addressing the requirement of the trial

court to elaborate on the weight given to each statutory

factor). However, "the court’s findings must have some

foundation based on the evidence presented." Woolley, 3

Va. App. at 345, 349 S.E.2d at 426.

An appellate court must be able to determine from the

record that the trial court gave substantive consideration to

the evidence as it relates to the provisions of Code ?
20-107.3.

See Gottlieb, 19 Va. App. at 95, 488 S.E.2d at 677. Here, the

trial court identified and valued all the marital assets and it

"review[ed] all the pleadings, evidence, exhibits submitted
and

arguments of counsel, and . . . weighed [them] pursuant to the

factors contained in ? 20-107.3." "[A]lthough the
court did not

state with particularity the degree of consideration it accorded

to each of the statutory factors," it indicated it
considered

all the factors. Gottlieb, 19 Va. App. at 94, 488 S.E.2d at

676.

Upon review of the evidence, it is clear that the trial

court fashioned a fair and equitable distribution of the marital

assets after properly considering the evidence and the factors

in Code ? 20-107.3(E). We find no error in the trial court’s

refusal to explain more fully its rationale.

3. REFUSAL TO ASSIGN PRESENT VALUE TO WIFE’S PENSION; AND

4. DIVISION OF PENSION IN LIGHT OF MONETARY AWARD

Husband further alleges the trial court erred by failing to

assign a present value to wife’s pension and awarding husband

25% of that pension. Husband also claims the award of $105,000

to wife constituted reversible error.

"’Fashioning an equitable distribution award lies within

the sound discretion of the trial judge[,] and that award will

not be set aside unless it is plainly wrong or without evidence

to support it.’" Torian v. Torian, 38 Va. App. 167, 181,
562

S.E.2d 355, 362 (2002) (quoting Srinivasan v. Srinivasan, 10

Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).

In addition, "Virginia law does not establish a presumption

of equal distribution of marital assets," and a trial court
has

discretion to make an equal or disparate division as long as it

considered the factors in Code ? 20-107.3(E). Matthews v.

Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998); see

also Torian, 38 Va. App. at 181, 562 S.E.2d at 362 (division of

marital share of husband’s VRS pension, as with any other asset,

rested within the sound discretion of the chancellor, subject to

the limitations of Code ? 20-107.3(G) and upon consideration of

the Code ? 20-107.3(E) factors).

As noted above, the trial court heard extensive evidence

ore tenus on January 30, 2002 and received numerous exhibits on

the issue of equitable distribution. The trial court rejected

the valuation methods presented by each party’s expert and

declined to assign the pension a present value. After

considering the factors in Code ? 20-107.3(E), the trial court

fashioned an equitable distribution award, part of which

included an award to wife of 75% of her pension.

Husband contends the award of $105,000 and 75% of the

unvalued pension resulted in wife receiving an inequitable share

of the marital estate.

Code ? 20-107.3(A) requires the trial court to determine

"the ownership and value of all property . . . of the
parties"

and to "consider which of such property is separate
property and

which is marital property." Artis, 4 Va. App. at 137, 354

S.E.2d at 814. Once the property is identified and valued, the

court is authorized to make a monetary award based on all the

factors enumerated in Code ? 20-107.3(E). However, in 1988,

amendments to the Code eliminated the need to conduct a costly

present value inquiry for pension and retirement accounts held

by either spouse. Under the present scheme, the court is

permitted to grant a separate pension award in addition to the

general monetary award required by Code ? 20-107.3(A). See Code

? 20-107.3(G)(1) (authorizing the court to "direct payment
of a

percentage of the marital share of any pension . . . whether

vested or non-vested, which constitutes marital property and

whether payable in a lump sum or over a period of time").

When a trial court orders deferred distribution of the

marital share of a pension, determining a present value is not

required. See Torian, 38 Va. App. at 177, 562 S.E.2d at 360-61

(under deferred distribution, present value of the pension is

irrelevant). "An award may be a percentage of the marital
share

of the pension, in which case payment is to be made only as

retirement benefits are paid." Gamer, 16 Va. App. at 343,
429

S.E.2d at 624.

This Court recognized that where the evidence makes "a

precise determination of a pension’s [present] value practically

impossible, an award of pension benefits [via the deferred

distribution approach] as those benefits are received by the

payor spouse . . . may prove the only equitable method of

considering the pension benefits in making an award."
Johnson

v. Johnson, 25 Va. App. 368, 375, 488 S.E.2d 659, 662 (1997).

Moreover, where, as here, a trial court is "not satisfied

with the evidence that was presented with regard to the value of

[the VRS pension]," it is not required to assign it a
present

value. Cf. Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d

665, 668 (1997) (a trial court has discretion to accept or

reject expert testimony); Lassen v. Lassen, 8 Va. App. 502, 507,

383 S.E.2d 471, 474 (1989) (although expert testimony is

preferred for valuing marital property, the fact finder is not

required to accept as conclusive the expert’s opinion).

The trial court’s decision to divide the marital estate

equally and award the wife a greater portion of her pension is

supported by the record. Accordingly, the trial court did not

abuse its discretion in refusing to assign a present value to

the pension or in awarding husband a 25% share.

5. WIFE’S SEPARATE CONTRIBUTION

Husband challenges the trial court’s award of $23,000 to

wife as her separate property. He contends: (A) the tracing

provision of Code ? 20-107.3(A)(3) does not apply to separately

titled property; and (B) the trial court erred in applying the

provisions of Code ? 20-107.3(A)(3) because wife contributed
the

money as a gift.

Rule 5A:18 requires that objections to a trial court’s

action or ruling be made with specificity in order to preserve

an issue for appeal. Campbell v. Commonwealth, 12 Va. App. 476,

480, 405 S.E.2d 1, 2 (1991) (en banc). A trial court must be

alerted to the precise "issue" to which a party
objects. Neal

v. Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525

(1992). "’It is the duty of a party . . . when he objects
to

evidence to state the grounds of his objections, so that the

trial judge may understand the precise question . . . he is

called upon to decide.’" Simmons v. Commonwealth, 6 Va.
App.

445, 450, 371 S.E.2d 7, 10 (1988) (citation omitted).

Husband listed nine arguments in the "Subject Index"
of his

brief, however, he only listed eight questions presented in the

section referencing where he preserved each issue.

In the "Argument" section, husband claimed the
"trial court

erred in finding that the wife’s contribution of $23,000 from

her inheritance to construct an addition to the marital abode

was her separate property." Rule 5A:20(c) requires a
party’s

opening brief to contain a "statement of the questions
presented

with a clear and exact reference to the page(s) of the

transcript, written statement, record, or appendix where each

question was preserved in the trial court." By omitting a

reference to where he preserved the issue, husband failed to

comply with Rule 5A:20.

Prior to entry of the final decree, husband submitted

sixteen typewritten objections. In objection Number 2, he

alleged, generally, that the trial "[c]ourt erred in
finding

that [wife] made a separate contribution to the marital

residence in the amount of $23,000." Husband’s general

objection did not alert the trial court to the specific

arguments he presents in his brief, viz., that the tracing

provisions do not apply to separately titled property and that

wife contributed the money as a gift, thereby precluding

tracing.

Because husband did not present to the trial court the

arguments he now makes on appeal, Rule 5A:18 bars our

consideration of these questions for the first time on appeal.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

Husband’s general objection Number 2 preserved for appeal,

however, the question of whether there was sufficient evidence

to support the trial court’s finding that the $23,000 was wife’s

separate property.

Code ? 20-107.3(A)(3)(d) provides that

when marital property and separate property

are commingled by contributing one category

of property to another, resulting in the

loss of the contributed property, the

classification of the contributed property

shall be transmuted to the category of

property receiving the contribution.

However, to the extent the contributed

property is retraceable by a preponderance

of the evidence and was not a gift, such

contributed property shall retain its

original classification.

The evidence supports the finding of the trial court that funds

contributed by wife to the addition to the marital home came

from money inherited from her mother’s estate. Under Code

? 20-107.3(A)(1)(ii), "separate property is all property

acquired during the marriage by bequest, devise, descent,

survivorship or gift from a source other than the other
party."

Wife presented evidence of an inheritance received upon her

mother’s death and both documentary and testimonial evidence of

her separate contribution of some of the inherited funds to the

addition to the marital home. The trial court’s finding is

supported by a preponderance of the evidence. Therefore, the

trial court did not err in awarding wife $23,000 as her separate

property.

6. CONDITIONING ENTRY OF THE QDRO ON PAYMENT OF MONETARY AWARD

Husband argues that the trial court committed reversible

error by conditioning entry of the QDRO until he has paid wife a

portion of the monetary award. He relies on Morris v. Morris, 3

Va. App. 303, 349 S.E.2d 661 (1986), where this Court held that

the trial court had no authority to condition the wife’s

monetary award on her conveying her interest in the jointly

owned home to the husband.

Wife counters that Code ? 20-107.3(G) authorizes the trial

court to consider factors in subsection (E) when awarding a

percentage of the marital share of any pension considered

marital property. She contends Code ? 20-107.3(E)(10), which

allows the trial court to consider other factors deemed

"necessary or appropriate . . . to arrive at a fair and

equitable monetary award," permits conditioning entry of
the

award on husband paying part of the monetary award.

The Morris Court held that the trial judge "had the

authority to make a monetary award as well as authority to

partition the jointly owned property, but he had no authority to

condition one on the other." Morris, 3 Va. App. at 310, 349

S.E.2d at 665. There, the trial court ordered the wife "to

convey her interest in [the] jointly owned marital home and

office building to the husband upon his payment of the $70,000

monetary award." Id. at 310, 349 S.E.2d at 664. We held
that

the trial court could not order the transfer as part of the

monetary award because the value of the marital property needed

to be considered as part of the marital award before any

partition occurred. Because the value of the monetary award

depended on the amount realized after partition, we reversed.

Id. at 310, 349 S.E.2d at 665.

Assuming Morris remains valid in light of numerous

statutory changes since that decision, those facts are

distinguishable from the facts of this case. The amount of the

monetary award in Morris depended on the partition of the

jointly owned property. The value of the marital property

needed to be considered as part of the marital award and before

any partition occurred. Such is not the case here. The trial

court did not condition the monetary award on conveying an

interest in jointly owned real property in a way that would

affect value. Rather, it merely conditioned the entry of the

QDRO on the payment of the award.

Moreover, Morris involved the conveyance of real property

which has an effect on the property holder’s title, whereas

here, the trial court divided a pension by giving husband a

future interest in that property. But that assignment did not

concern title in the property; it was an assignment of rights.

In assigning a future interest in wife’s pension to

husband, the trial court recognized the need to protect wife

from the possibility that husband may obtain 25% of her pension

without paying her at least a minimal portion of her marital

share. Code ? 20-107.3(G) authorizes the trial court to divide

and distribute a pension after consideration of the factors in

subsection 20-107.3(E). Given the factual circumstances of this

case, including husband’s prior attempts to defeat wife’s effort

to receive her share of the marital assets, we find the court

acted within its equitable powers and in its sound discretion in

arriving at an equitable award. Accordingly, the trial court

did not abuse its discretion in conditioning entry of the QDRO.

7. INTEREST AWARD

The trial court "has the power to grant a monetary award,

payable either in a lump sum or over a period of time in fixed

amounts, to either party." Code ? 20-107.3(D). "The
provisions

of ? 8.01-382, relating to interest on judgment, shall apply

unless the court orders otherwise." Id. Code ? 8.01-382

provides that a "judgment or decree of the court may
provide for

interest on any principal sum awarded and fix the period at

which the interest shall commence."

The trial court ordered interest to run on the monetary

award beginning thirty days after entry of the final divorce

decree. The monetary award of $105,000 "shall accrue
interest

at the judgment rate until paid if unpaid beginning June 1,

2002," the due date of the first installment payment. A
trial

court has discretion to award interest and determine when it

should begin to accrue.

Husband argues that the trial court cannot order interest

to accrue on amounts that have not yet "come due."
However,

this argument misconstrues the nature of the trial court’s

judgment. The trial court ordered a lump sum payment of

$105,000 due thirty days from May 1, 2002. However, it provided

husband with an option to pay in installments. Interest would

begin to accrue on June 1, 2002, until fully paid.

The statute allows the trial judge to fix the period at

which the interest will commence. Accordingly, we find no error

in the trial court’s decision to include interest.

8. RESERVATION OF SPOUSAL SUPPORT IN FAVOR OF WIFE

Husband appeals the trial court’s reservation of spousal

support in favor of wife. He contends the trial court cannot

reserve the right to seek future spousal support after wife

indicated at trial she would not seek spousal support.

According to husband, wife waived her right to seek spousal

support in the future by explicitly forfeiting spousal support

in her statements to the court and in the parties’ stipulation

that periodic spousal support would not be an issue. He argues

that a waiver of current spousal support contains an implicit

waiver of future spousal support.

"[W]here there is no bar to the right

of spousal support ‘it is reversible error

for the trial court, upon request of either

party, to fail to make a reservation in the

decree of the right to receive spousal

support in the event of a change of

circumstances,’ even though, at the time of

the decree, neither party needed support."

Vissicchio v. Vissicchio, 27 Va. App. 240, 254, 498 S.E.2d 425,

432 (1998) (quoting Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d

723, 724 (1990) (quoting Bacon v. Bacon, 3 Va. App. 484, 491,

351 S.E.2d 37, 41 (1986))). Wife initially indicated during a

pretrial conference that spousal support was not an issue.

However, during a May 1, 2002 hearing at which the terms of the

forthcoming decree were discussed, wife asked to reserve spousal

support. Husband contended wife waived spousal support in a

"pre-trial conference," and once forfeited, she could
not then

reserve it.

Wife argued that she was now requesting a reservation of

spousal support in case husband declared bankruptcy so as to

thwart her ability to obtain her equitable distribution award.

Husband argued, "I think she [wife] has forfeited the right
in

this case, even though generally people should probably get that

reservation if they simply ask for it, that’s the problem in

this case. And the statute does say may." The trial court

ruled, "Well, at this point, I’m going to reserve a right
for

five years" with regard to spousal support.

We distinguish Brown v. Brown, 5 Va. App. 238, 361 S.E.2d

364 (1987), upon which husband relies. In Brown, the
"decree of

divorce specifically left open the issue of spousal
support,"

however, "[a]t the beginning of [a] subsequent
proceeding," Mrs.

Brown’s attorney advised the trial court that wife "was not

seeking spousal support." Id. at 245, 361 S.E.2d at 368

(emphasis added). Here, the final decree was not final when

wife requested the reservation.

Moreover, in Brown, the trial court made a specific finding

of waiver, which finding was affirmed upon appellate review.

Id. at 247, 361 S.E.2d at 369. Here, the trial court found no

waiver. Based on the circumstances before the trial court and

applying a deferential standard of review, we find the trial

court did not err in reserving wife’s right to spousal support

for a period of five years.

Husband also alleges the trial court erred in failing to

make written findings or conclusions as required by Code

? 20-107.1(F) to justify reserving spousal support. Our review

of the record does not show that husband made this argument to

the trial court. Rule 5A:18 provides that "[n]o ruling of
the

trial court . . . will be considered as a basis for reversal

unless the objection was stated together with the grounds

therefor at the time of the ruling . . . ." Accordingly, we
are

precluded from addressing it on appeal.

9. CONDITIONING DISPOSAL OF HUSBAND’S PROPERTY

Husband contests the trial court’s authority to prohibit

him from encumbering or disposing of his boat, which is marital

property and not jointly titled, for any purpose other than to

satisfy the monetary award to wife. Husband relies on Code

? 20-107.3(C), which prohibits the trial court from ordering
the

division or transfer of separate property or marital property

which is not jointly owned. Husband contends that if a trial

court lacks any authority over such property’s division or

transfer, then a fortiori, the court could not prohibit the

owner from selling it.

Husband posits that wife should take her place with other

creditors vying for his solely-titled assets and not receive a

preferred claim on his property. She would then have to pursue

available enforcement remedies to collect her award.

Wife contends the trial court has the authority to restrict

the circumstances under which the husband can sell his boat.

She argues Code ? 20-107.3(K) grants the trial court
"continuing

authority . . . to make any additional orders necessary to

effectuate and enforce any order entered pursuant to [Code

? 20-107.3]."

Courts in Virginia "operate under the long held principle

that a court of chancery need not fully exercise its power at

one time but may adapt its relief to the circumstances of a

particular case." Morris, 3 Va. App. at 306, 349 S.E.2d at
663.

The facts of this case reveal an attempt by husband to avoid

wife’s claims to marital assets.[4]

Because the boat is marital property, solely titled to

husband, the trial court has no authority to order its division

or transfer. Code ? 20-107.3(C). However, subsection (C) does

not prohibit the trial court from placing restrictions on what

husband does with any proceeds from a sale occurring before the

judgment to wife is satisfied.

The trial court credited the boat to husband in the

equitable distribution schedule and it did not order the boat

divided or transferred. By placing the condition on the boat,

the trial court acted properly in order to protect wife’s

marital share of the boat. The trial court’s prohibition merely

preserves the asset in the husband so that if he chooses to sell

the boat, the asset is available to satisfy the judgment award

owed to wife. Accordingly, the trial court did not err.

BY WIFE’S ASSIGNMENT OF CROSS-ERROR:

ERROR IN CONSIDERING HUSBAND’S DEBTS

Wife claims the trial court erred in considering three

debts attributed to husband. She contends consideration of a

$5,750 debt allegedly owed to husband’s father is barred by the

doctrine of res judicata due to the trial court’s earlier

decision to void fraudulent transfers to husband’s father and

mother. Alternatively, she argues there was insufficient

evidence of the existence of certain debts for the trial court

to consider them in the equitable distribution.[5]

In addition, wife contends there was insufficient evidence

to prove the $5,750 debt to father, an $8,800 debt owed to Dewey

Edwards, and a $2,450 debt owed to Ellis Septic Tank Co.

Res Judicata

In a fraudulent conveyance action, consideration and intent

are at issue and must be proved. Code ? 55-80. "Every
gift,

conveyance, assignment or transfer of . . . any estate, real or

personal . . . with the intent to delay, hinder or defraud

creditors, purchasers or other persons of or from what they are

or may be lawfully entitled to shall . . . be void." Id.
This

section shall not affect the title of a purchaser for valuable

consideration, unless it appear that he had notice of the

fraudulent intent of his immediate grantor or of the fraud

rendering void the title of such grantor. In an equitable

distribution proceeding, the court is required to consider all

evidence of the parties’ debts and assets. Identifying a debt

in a divorce proceeding merely requires proof of the existence

of that debt. See Code ? 20-107.3(C) and (E) (the apportionment

of marital debts shall be determined by considering, among other

things, the basis for such debts and liabilities).

We find wife’s res judicata argument without merit. "Res

judicata precludes the re-litigation of a claim or issue once a

final determination on the merits has been reached by a court

having proper jurisdiction over the matter." Gottlieb, 19

Va. App. at 81, 448 S.E.2d at 669. A person seeking to assert

res judicata must establish "(1) identity of the remedies

sought; (2) identity of the cause of action; (3) identity of the

parties; and (4) identity of the quality of the persons for or

against whom the claim is made." Id.

In the fraudulent conveyance action, wife sought to

overturn certain transfers by husband made to defraud wife,

whereas in the divorce action, the trial court considered the

basis of the debts in an attempt to make an equitable

distribution of the marital estate. We agree with the trial

court that there "is not identity of the relief
sought" between

the two actions. Both the remedies and the cause of action are

different. The divorce action did not re-litigate the validity

of the debt, but merely sought to ascertain the debt’s

existence. Accordingly, the trial court did not err.

Wife also argues the trial court erred in including

husband’s debts in its calculation because they were not proved

by the evidence and are corrupted by badges of fraud. Wife

alleges that husband offered no documentary evidence for the

debts. The trial court heard testimony from husband that

Edwards loaned him $8,000 in 1998 and that he repaid the loan

plus interest on February 13, 2001. Husband offered a check for

$8,800 endorsed by Edwards as proof of the loan. Regarding the

loan from Ellis and Ellis Septic Tank, husband testified that he

borrowed the money "to pay bills" and that the money
"was

between him and I." Husband introduced a promissory note
for

$2,000, plus interest, signed by husband and dated July 1998,

and indicating payment made on February 21, 2001 in the amount

of $2,450. In addition, H.B. Buchanan testified that he loaned

his son $5,750 in 1999 to help him pay his bills.

After listening to the testimony and reviewing the

evidence, the trial court gave the husband credit for all three

loan amounts in the equitable distribution award. The trial

court, sitting as fact finder, believed husband’s evidence.

"[T]he findings of the trial court based upon the judge’s

evaluation of the testimony of witnesses heard ore tenus are

entitled to great weight." Gottlieb, 19 Va. App. at 83, 448

S.E.2d at 670. "We treat the factual determinations of a

chancellor based on ore tenus evidence in the same manner as

factual determinations made by a jury; we reverse them only if

they are plainly wrong or without evidence to support
them."

Richardson v. Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151

(1991) (citations omitted). The record contained sufficient

evidence to support the trial court’s finding of the existence

of these debts. Accordingly, the trial court did not err in

considering husband’s debts.

CONCLUSION

For the reasons set forth above, we affirm the decision of

the trial court.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.

 

[2]The trial
court and parties refer to the QDRO as an

"Approved" Domestic Relations Order. See Code ?
20-107.3(K)(4).

 

[3]See Buchanan
v. Buchanan, ___ Va. ___, ___ S.E.2d ___

(Sept. 12, 2003) (affirming the trial court).

 

[4]See footnote
2, supra, and accompanying text.

 

[5]While we find
evidence satisfying the contemporaneous

objection requirement of Rule 5A:18 to allow this Court to

address wife’s argument on appeal, we also note that wife failed

to properly draft her additional question presented in her

brief. Rule 5A:21(b) requires that any additional questions the

appellee wishes to present be done "with a clear and exact

reference to the page(s) of the transcript, written statement,

record or appendix where each additional question was preserved

in the trial court." Wife failed to reference where in the

record she preserved the issue.


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