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MARY ANNE ROWE v. CHARLES S. ROWE


ROWE v. ROWE


FEBRUARY 4, 1997
Record No. 0843-96-2 and
Record No. 0845-96-2

MARY ANNE ROWE

v.

CHARLES S. ROWE

 

CHARLES S. ROWE

v.

MARY ANNE ROWE

Richard H.C. Taylor, Judge
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia

OPINION BY CHIEF JUDGE NORMAN K. MOON
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG

Donald K. Butler (Ann Brakke Campfield; Morano, Colan &
Butler, on briefs), for Mary Anne Rowe.

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


Charles S. Rowe ("husband") and Mary Anne Rowe
("wife") each appeal the circuit court’s order
affirming the commissioner in chancery’s equitable distribution
and spousal support award. Husband contends (1) the trial court
erred by classifying the entire increase in value of husband’s
newspaper stock as marital property; (2) the $14,000,000 in
salary and stocks received by husband as compensation from the
paper, which was more than fair compensation for husband’s
efforts, precludes classification of the stock appreciation as a
marital asset; (3) the trial court erred in treating all but
$41,000 of the parties’ marital residence as marital property;
(4) the trial court erred in awarding wife $10,000 per month in
spousal support without considering the division of marital
property as a factor in making the support award.

We hold that: (1) the trial court erred in classifying the
entire increase in the 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) compensation by the paper, whether
inadequate or excessive, is but a factor in determining the
amount of marital wealth attributable to marital effort; and (3)
the trial court erred in treating only $41,000 of the Ingleside
Drive home proceeds invested in the parties’ marital abode as
gifted property. Because the trial court must reconsider
classification of the increase in the value of husband’s stock
and distribution of the $82,000 proceeds of the Ingleside Drive
home, the spousal support award must also be reconsidered.

Wife contends in her appeal that: (1) the trial court erred by
accepting husband’s valuation of his newspaper stock; (2) the
trial court erred in failing to order a distribution of husband’s
retirement benefits consistent with the commissioner’s finding
that wife was entitled to one-half of the marital share of the
retirement benefits; (3) the trial court erred in giving husband
credit for post-separation contributions to various marital
accounts while not requiring husband to account for
post-separation withdrawals from the accounts; and (4) the trial
court erred by valuing wife’s marital accounts without deduction
for her litigation expenses.

We find that: (1) the court did not err in evaluating the
newspaper stock; (2) the court properly refused to award wife
one-half of husband’s retirement benefits and/or be allowed to
name an alternate beneficiary; (3) the court erred in classifying
all of husband’s post-separation contributions as marital but did
not err in refusing wife’s proffer concerning husband’s separate
contributions as wife failed to timely offer supplemental
evidence; and (4) the trial court correctly deducted wife’s
litigation expenses in valuing her accounts because she failed to
timely present evidence concerning her litigation expenses.

Husband and wife married on May 1, 1970. A no-fault final
decree of divorce was entered on December 1, 1993. On March 15,
1996, the circuit court entered its equitable distribution and
spousal support decree, confirming the recommendations of the
commissioner in chancery.

The vast majority of the parties’ assets was generated by
virtue of husband’s position as a principal stockholder,
coeditor, and copublisher of the Free Lance-Star, a
family-owned newspaper in Fredericksburg, Virginia. Husband and
his brother became coeditors and copublishers of the Free
Lance-Star
upon their father’s death in 1949. They divided
the duties of the paper. As coeditor, husband was responsible for
the news-editorial side of the paper while husband’s brother
served as business manager, overseeing all other aspects of the
operation, including advertising, production, circulation,
distribution, accounting, as well as operation of the paper’s
radio station. The paper profited substantially under their
control and expanded as the Fredericksburg area experienced rapid
population growth. The paper’s plant, under the supervision of
husband’s brother, was expanded in 1965, 1980 and in 1990.
Husband’s expert calculated the paper’s stock increased in value
from $500 per share in 1970 to $9,500 per share in 1991.

In addition to running the paper, both brothers were heavily
involved in outside activities. Husband was involved in state and
national level newspaper organizations. He served as president of
the Associated Press Managing Editors Association in 1969 and was
elected to the Board of Directors of the American Society of
Newspaper Editors. He was also elected to the Associated Press
Board in 1976 and served as director until 1985. Wife accompanied
him to all major board meetings and conventions and was described
as "an integral part of the life of the board." As a
result of husband’s heavy involvement with these and other
newspaper organizations, a managing editor was hired in 1975. The
managing editor assumed responsibility for the day-to-day news
responsibilities at the paper, leaving husband free to devote
additional time to his national newspaper activities. No evidence
showed that the stock increased in value due to these activities
by husband.

During the course of the parties’ marriage, husband received
$14,000,000 in salary and dividends. These funds were used to
support the parties and their children from prior marriages. At
the time of their marriage, the parties moved into husband’s home
on Ingleside Drive. Four years later, they acquired a new home at
501 Hanover Street in Fredericksburg. Husband invested the
$82,000 proceeds from the sale of his Ingleside home in the
purchase and/or refurbishing of the Hanover residence, which was
conveyed to the parties by joint title. In the ensuing years,
husband spent an additional $250,000 to $300,000 for improvements
and maintenance of the Hanover Street home. Wife oversaw
refurbishing and decoration of the home and subsequently oversaw
a major addition to the home. At the time of the hearing, the net
value of the home was calculated at $512,992. The parties also
acquired, with funds from husband’s salary and dividends, a home
on John’s Island, Florida.

Husband left the marital home in November, 1991. Wife
subsequently learned that husband had been having an affair
during the time leading up to the separation and had engaged in
another affair during the course of the marriage. Husband filed
for divorce on February 18, 1993, on the ground that the parties
had been living separate and apart for more than one year. Over
the wife’s objection, a decree of divorce was entered on December
1, 1993. Issues of spousal support and equitable distribution
were referred to a commissioner in chancery and following
extensive discovery, a hearing was conducted by the commissioner
in June, 1994. The commissioner’s report and recommendation was
filed August 14, 1995. The final decree of the trial court was
entered on March 15, 1996.

During the interim between the parties’ separation and entry
of the final decree, husband paid many of wife’s expenses
directly, but did not pay wife’s legal expenses. Consequently,
wife paid her litigation expenses with funds withdrawn from her
marital accounts. Husband also continued to receive his salary
and stock dividends during this time and continued to make
deposits, withdrawals and transfers to and from the marital
accounts.

The trial court made an equitable distribution award to wife
of $4,204,530 and a monthly spousal support award of $10,000.

HUSBAND’S ASSIGNMENTS OF ERROR
Increase in Value of Stock

Husband argued that the trial court erred in classifying the
entire increase in the husband’s newspaper stock as marital
property. He asserted that his brother was more responsible for
the increase in value of the stock and that the marital portion
should have been considerably reduced in light of the fact that
from 1970 to 1991, the value of the stock increased dramatically
as a result of passive, external factors.

Code ? 20?107.3(A)(3)(a) provides that "[i]n the
case of the increase in value of separate property during the
marriage, such increase in value shall be marital property only
to the extent that marital property or the personal efforts of
either party have contributed to such increases . . . ." If
husband proved that passive factors, such as the rapid population
growth in the Fredericksburg area and low inflation rates
accounted for a portion of the increase in the value of his
stock, such increase cannot be properly classified as marital
property. Similarly, we have concluded that where third parties
contribute to the increase in value of separate property, the
marital portion is to be reduced proportionately. Decker v.
Decker
, 17 Va. App. 12, 435 S.E.2d 407 (1993).

Here, husband produced evidence that from 1971 to 1991 the
population in the Fredericksburg area increased from 77,425 to
180,500; the circulation of the newspaper grew from 16,490 to
41,161; and gross income increased from $1,175,539 to
$14,890,035. Husband’s expert, Mr. Lee Dirks, who has
participated in sixty-five sales of privately owned newspapers,
testified that the most important factor in the increase in the
value of the stock was the dramatic increase in the number of
households in the Fredericksburg area over a twenty-one year
period. Wife’s experts also agreed that the dramatic population
growth in the market area was one of the most important factors
in the increase in the paper’s value. In addition, husband’s
experts testified that slow inflation contributed to the increase
in the paper’s value.

Husband also produced evidence that his brother was more
responsible for the increase in value of the paper than husband.
During husband’s marriage, his newspaper duties decreased, most
notably after the managing editor was hired in 1975, while
husband’s brother’s duties increased substantially from 1970 to
1991. Husband’s brother was solely responsible for the three
expansions of the newspaper plant and was in charge of every
other activity and function of the paper, with the exception of
the news department. Wife indicated at trial that husband’s
brother was at least equally responsible for the increase in the
value of the paper. In addition, wife and husband spent
considerable time away from Fredericksburg, engaged in
"national newspaper activities," which consumed a
significant portion of husband’s time and detracted from his
involvement with the Free Lance-Star. The evidence also
proved that a managing editor was hired because of husband’s
national newspaper activities.

Based on this evidence, we hold that the trial court erred in
finding that the entire increase in the value of husband’s Free
Lance-Star
stock was due to his personal efforts. The
increase classifiable as marital should reflect only that
attributable to husband’s personal efforts and not those of
husband’s brother or passive factors, such as population growth
and minimal inflation.

Compensation as Fair Return on Increase in
Separate Property

Husband also argued at trial that assuming, arguendo, that his
personal efforts were entirely responsible for the increase in
the value of the Free Lance-Star stock, the $14,000,000 he
received in salary and stock dividends constituted more than
adequate return to the marital estate for his efforts and
consequently classification of the entire increase as marital
should not be permitted as this would constitute double recovery
for the marital estate. While we have not addressed this argument
in the context of the modern statutory scheme, we concluded in Huger
v. Huger
, a divorce case filed under the unitary property
scheme, that the evidence indicated that the husband’s separate
property stock was not transmuted into marital property as the
parties’ efforts which enhanced the stock’s value had been fully
compensated for by the corporation. Consequently, we held the
stock was not transmuted into marital property. 16 Va. App. 785,
789, 433 S.E.2d 255, 258 (1993).

Here, as discussed above, husband has introduced evidence
indicating that the appreciation of the Free Lance-Star
stock was a result not only of his efforts, but also of passive
market forces, i.e., economic conditions and the efforts of his
brother. Husband was very well compensated for his efforts,
earning a total of $14,000,000 in salary and stock dividends
between 1970 and 1991. The adequacy of this compensation is not
in dispute, as evidenced by wife’s expert, who testified that
both husband and his brother were in fact overcompensated; each
receiving a salary roughly twice the industry standard for
positions of equal standing. Wife’s expert estimated that husband
and his brother were each paid roughly $100,000 more per year in
salary than was appropriate according to the industry standard.

In light of this evidence, in classifying the increase in
stock value, in addition to considering the impact of passive
economic factors and the efforts of husband’s brother, the trial
court should consider the extent to which the marital estate has
already been adequately compensated for the husband’s efforts.

501 Hanover Street Home

Husband argues that the trial court erred in treating all but
$41,000 of the Hanover Street property as marital property.
Husband asserts the $82,000 generated by the sale of his
Ingleside home, which husband subsequently invested in the
Hanover Street home, should be treated as separate property
because wife did not prove it was gifted to her. Further, husband
asserts that a sum of the appreciated value of the home
proportionate to husband’s $82,000 contribution should also be
treated as separate property.

Under Code ? 20?107.3(A)(3)(d), "when marital
property and separate property are commingled by contributing one
category of property to another, resulting in the loss of
identity 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."

Here, it is undisputed that in anticipation of the parties’
relocation to the Hanover Street home, husband sold his separate
residence on Ingleside Drive for $82,000. Wife argues the
commissioner’s finding of one-half of the $82,000 as marital
property is justified because she contributed her pre-marital
cash resources, as well as time and energy, in refurbishing the
Ingleside Drive home prior to its sale. However, the record
contains no evidence of the value of wife’s contributions.
Accordingly, as prescribed by Code ? 20?107.3, her
contributions were transmuted into husband’s separate property
when they were commingled with husband’s separate property.

The $82,000 was subsequently invested in the Hanover Street
home, which was conveyed to the parties by joint title. Although
husband and wife disagree as to the exact use of the $82,000 in
the Hanover Street property, it is evident from the record that
the entire $82,000 was invested in some manner in the property,
as the commissioner concluded, "to reduce the mortgage
and/or renovation costs of the property." This evidence is
sufficient for purposes of Code ? 20?107.3(A)(3)(d) to
retrace the property claimed as separate by husband.

Having found the $82,000 was husband’s separate property, the
commissioner further concluded that husband "made a gift of
those separate sale proceeds to [wife] . . . ." While the
Hanover Street home was conveyed by joint title to the parties,
no presumption of gift arises from the mere fact that the
property was jointly titled. Code ? 20?107.3(A)(3)(g). The
fact that property is jointly titled must be considered by the
trial court in determining if a gift was made, but alone, it is
insufficient proof of a gift. To have found that a gift occurred,
the trial court must have found that wife met her burden of
proving the three elements of a gift: (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. Theismann
v. Theismann
, 22 Va. App. 557, 566, 471 S.E.2d 809, 813
(1996). Here, the only element disputed by the parties is the
element of husband’s intent.

Husband argues that he did not intend to make a gift of the
$82,000 invested in the acquisition of the parties’ marital home
and that there is no evidence of such intent in the record.[1] The
record shows that the parties purchased the home to serve as
their home and that the new home was purchased in order to
accommodate the parties’ growing family. Husband placed no
reservations on the transfers of title permitting him to reclaim
the property upon divorce or any other circumstance. Further,
wife testified that husband had said to her that his property was
also her property. These circumstances, in combination with the
fact that the house was conveyed by joint title, are evidence
that a gift was intended and therefore that the entire sum of
$82,000 was marital property. See id. Accordingly,
we find the trial court erred in determining that only $41,000 of
the property was gifted marital property.

However, while we find that the entire $82,000 is properly
classified as marital, the trial court was not bound to make an
equal distribution of the property. Id. at 568, 471 S.E.2d
at 814. The trial court must give careful consideration to the
gifted status of marital property, but the equitable award of
marital property is ultimately to be determined by the trial
court’s consideration of the evidence and application of the Code
? 20-107.3(E) factors. Id. The gifted status of the
property is relevant to several of the factors in subsection (E),
in particular Code ? 20?107.3(E)(6) and (10), which
require consideration of "[h]ow and when specific items of
such marital property were acquired" and "[s]uch other
factors as the court deems necessary or appropriate to consider
in order to arrive at a fair and equitable monetary award."

Id. As the trial court erred in determining that only
$41,000 of the gifted property was marital, we remand for
reconsideration of the equitable distribution of the entire
$82,000 consistent with our holding herein.

Spousal Support

Husband was ordered to pay wife $10,000 a month in spousal
support. Husband argues this sum was reached in error by both the
trial court and the commissioner because each failed to consider
provisions made with regard to marital property, as required by
Code ? 20?107.1(8).

Code ? 20-107.1(8) provides that "[i]f the court
determines that an award should be made, it shall, in determining
the amount, consider . . . the provisions made with regard to the
marital property under ? 20?107.3 . . . ." Here, the
commissioner found $10,000 the appropriate support amount prior
to quantifying the equitable distribution award. In addition, the
"Value Chart" prepared by the commissioner did not
include nine assets of the parties, having a total value of
$641,838. The trial court affirmed the support award at the
October 30, 1995 hearing, four and one-half months before
Schedule A, [2] quantifying the
equitable distribution award, was adopted by the court in its
final decree on March 15, 1996. The trial court heard evidence
addressing the factors in Code ? 20?107.1; however, it is
unclear from the record whether the court considered the impact
of the final $4,204,530 equitable distribution award on the
spousal support needs of wife.

Wife argued that a significant portion of the $4,204,530 was
to be conveyed in the form of non-income producing assets,
including the parties’ residence and wife’s automobile and
jewelry. However, $1,872,834 of the award is a monetary award.
Wife dismissed this sum as being owed to wife and not available
to her because of this appeal. In determining spousal support,
the commissioner and trial court must consider all factors
contained in Code ? 20?107.1; failure to do so constitutes
reversible error. Woolley v. Woolley, 3 Va. App. 337, 344,
349 S.E.2d 422, 426 (1986). Accordingly, when determining spousal
support, the trial court must consider the income generating
potential of the marital award as well as other income and
expenses generated by the asset assignment constituting the
equitable distribution award.

As we have found the trial court erred in classifying the full
appreciation of husband’s Free Lance-Star stock as marital
property, a new equitable distribution award must be made,
requiring reconsideration of the spousal support award.
Accordingly, we remand for reconsideration of the spousal support
award consistent with this opinion.

WIFE’S ASSIGNMENTS OF ERROR
Valuation of the Free Lance-Star Stock

Extensive evidence was presented by both parties with regard
to the value of husband’s Free Lance-Star stock and each
party presented significantly different valuations. Wife contends
that the commissioner "devoted only one sentence in his
Report to the actual valuation issue. . . . He simply commented
that `[husband's] experts are more competent as to the valuation
process due to their experience and consistent testimony.’"
Wife further notes that in setting out the values of the marital
assets in the Value Chart, the commissioner calculated a value
for husband’s stock of $5,517,125, achieved by averaging the
values presented by husband’s and wife’s experts. When the
inconsistency in the Chart and the commissioner’s report were
brought to his attention, he issued a clarification letter,
stating that "the value of the stock should be value as
stated by [husband's] expert and should not be the value that I
have listed." On the basis of these observations, wife
argues the commissioner erred in accepting husband’s valuations.

Wife also argues that the court erred in accepting the
valuations because the trial court should not delegate to the
commissioner its judicial functions or its duty to make factual
determinations.

Where experts offer conflicting testimony, it is within the
discretion of the trial court to select either opinion. Reid
v. Reid
, 7 Va. App. 553, 563, 375 S.E.2d 533, 539 (1989).
Here, the commissioner heard considerable evidence from both
parties’ experts regarding the proper value of husband’s stock.
In his report, the commissioner concluded that based on the
evidence presented, "[husband's] experts are more competent
as to the valuation process due to their experience and
consistent testimony." The trial court accepted the
commissioner’s findings and having done so, the findings are
presumed to be correct when reviewed on appeal and are to be
given "great weight" by this Court. Pavlock v.
Gallop
, 207 Va. 989, 994, 154 S.E.2d 153, 157 (1967). The
findings will not be reversed on appeal unless plainly wrong. Chaney
v. Haynes
, 250 Va. 155, 158, 458 S.E.2d 451, 453 (1995).

Wife did not object to qualification of husband’s witnesses as
expert. Rather, wife asserts that her witnesses were more
qualified than husband’s to determine the value of husband’s
stock. The relative qualification of expert witnesses goes to the
weight of the evidence presented by the expert, but is not
determinative of the matter.

The trial court also properly exercised its discretion in
accepting the commissioner’s findings. The commissioner’s
findings are supported by credible evidence and consequently, the
findings, as approved by the trial court, must be affirmed. Id.
at 158, 458 S.E.2d at 453.

Division of Marital Share of Retirement
Benefits

Wife argues that the trial court erred in failing to order
that she receive a portion of husband’s survivor benefits under
his Free Lance-Star Retirement Plan. Husband asserts that
because the commissioner found wife was entitled to 25.6% of
husband’s survivor benefits, [3] and
the husband’s retirement plan only allows for survivor benefits
in 50%, 75% and 100% designations, the trial court properly found
it could not order relief not permitted under the plan.

Federal law prohibits the trial court from "requir[ing] a
plan to provide any type or form of benefit, or any option, not
otherwise provided under the plan." 26 U.S.C.
? 414(p)(3). Code ? 20?107.3(G)(1) provides that:

[t]he court may direct payment of a percentage of the
marital share of any pension, profit-sharing or deferred
compensation plan or retirement benefits whether vested or
nonvested, which constitutes marital property and whether
payable in a lump sum or over a period of time. The court may
order direct payment of such percentage of the marital share
by direct assignment to a party from the employer trustee,
plan administrator or other holder of the benefits. However,
the court shall only direct that payment be made as such
benefits are payable. (Emphasis added).

Accordingly, while the trial court has no authority to order
direct payments from a retirement plan in contravention of that
plan’s provisions, Code ? 20?107.3(G)(1) does not mandate
that payments come directly from the retirement plan. The court
is free to order that husband, not the plan, pay wife her share
of husband’s retirement benefits. Consequently, if the court
desires to award benefits to wife in a manner not encompassed by
the plan, the court may require husband to make a lump sum
payment out of his share of the martial estate[4] or to pay wife a
percentage of the retirement benefits as he receives those
benefits. See Gamble v. Gamble, 14 Va. App. 558,
421 S.E.2d 635 (1992).

Wife also contends that the trial court erred in not requiring
that she be allowed to name an alternate beneficiary for her
portion of the marital share of husband’s retirement benefits.
Husband argues that wife’s request to be allowed to name an
alternate beneficiary was properly denied by the trialcourt under
both state and federal law because his retirement plan does not
allow for the naming of an alternate beneficiary. "Under
federal law, qualified domestic relation orders [(QDROs)] are an
exception to ERISA’s proscription against alienation and
assignment of pension benefits." Wilson v. Wilson, 18
Va. App. 193, 200, 442 S.E.2d 694, 698 (1994). In order to
qualify as a QDRO, a domestic relations order must "not
require a plan to provide any type or form of benefit, or any
option, not otherwise provided under the plan," and must
"not require the plan to provide increased benefits."
26 U.S.C. ? 414(p)(3). Here, because husband’s retirement
plan does not make provisions for payment by the plan to an
alternate beneficiary, the court cannot order such payment from
the plan. However, as noted above, this does not preclude the
court from exercising its discretion to have the payments made
from husband, either in lump sum or as the benefits are paid to
him, instead of directly from the plan. Accordingly, not only may
the court require that husband pay wife 25.6% of his retirement
benefits, in the event that wife predeceases husband, the court
may also instruct husband, not the plan, to pay wife’s designee.

On remand the trial court, in reconsidering the marital award,
should consider whether to order that a lump sum or payments
equal to the wife’s share of the retirement benefits due her
under the equitable distribution award be made to wife or her
beneficiary.

Post-Separation Deposits and Withdrawals

Wife argues that the commissioner and trial court erred in
awarding husband credit for post-separation contributions to
various marital accounts. The post-separation deposits were made
with distributions from the husband’s Free Lance-Star
stock, the appreciation of which was classified as part marital
and part separate. Accordingly, a portion of the post-separation
distributions which husband deposited were earnings on the
marital stock and therefore should have been classified as
marital property.

Code ? 20?107.3(A)(2) addresses the classification of
property acquired post-separation:

Marital Property is . . . all property . . . acquired by
either spouse during the marriage, and before the last
separation of the parties, if at such time or thereafter at
least one of the parties intends that the separation be
permanent, is presumed to be marital property in the absence
of satisfactory evidence that it is separate property.

Dividends received post-separation from husband’s separate
property are properly classified as non-marital. However, if the
property or some portion thereof which generated the dividends
was marital, the dividends attributable to the marital property
would be properly classified as marital. Here, we have remanded
for reconsideration the classification of the increase in the
value of husband’s stock. Once the trial court determines what
portion of the appreciation is marital and what portion is
husband’s separate property, the trial court must also classify
earnings attributable to the marital portion as marital.

Wife also argues that husband made post-separation withdrawals
from the accounts and that the trial court erred by failing to
require husband to account for these withdrawals. Wife argues
that because of the complex tracing involved in order to verify
husband’s figures regarding the various account balances, she did
not discover the numerous discrepancies in the multiple accounts
in time to present evidence at the June 29, 1994 hearing. A
subsequent motion for leave to present supplemental evidence was
denied. Wife proffered that husband made numerous post-separation
withdrawals and transfers and that in total while making $285,000
in post-separation contributions, he withdrew $372,562. Wife
argues that the commissioner and trial court erred in failing to
accept her proffer and in failing to require husband to account
for the $87,562 net discrepancy.

The granting or denying of a motion to hear additional
evidence is within the sound discretion of the trial court. See
Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663
(1986). In Morris the trial court refused to reopen the
proceedings at the wife’s request to hear additional evidence
concerning an asset the wife asserted should not have been
classified as marital property. Id. We concluded that
since the request to hear additional evidence "came six
weeks after the evidentiary hearing consisting of two full days
of testimony during which each party had ample opportunity to
present evidence, it was within the court’s discretion to refuse
to take further evidence . . . ." Id. (citations
omitted).

Here, the wife’s motion for leave to present supplemental
evidence was made nine weeks after the hearing. Wife asserts that
she was unable to present evidence at the hearing regarding
discrepancies in the accounts because husband failed to fully
disclose information about some of the Fidelity accounts until a
few days prior to the hearing. Assuming, arguendo, that wife’s
assertions accurately represent the facts, such untimeliness in
providing wife with the account information may have excused
wife’s failure to present evidence on this matter at the hearing;
however, it does not explain wife’s nine week delay in moving for
leave to present additional evidence. Consequently, we find that
neither the trial court nor the commissioner erred in rejecting
wife’s proffer, as the decision was within the sound discretion
of the court.

Deduction of Litigation Expenses

Wife argues that the trial court erred in failing to deduct
her litigation expenses from the valuation of wife’s accounts.
Alternatively, wife argues that if she is not given credit for
her litigation expenses, husband should be ordered to pay all of
her litigation fees and costs, not merely the $50,000 awarded by
the trial court.

The trial court and commissioner could have properly
considered evidence in the record of the depleted value of wife’s
marital accounts attributable to her litigation expenses. This is
especially true because some four years and four months passed
between the time of separation and entry of a final decree.
However, at the extensive hearing wife did not address the
stipulated values and subsequent depletion due to significant
legal fees. Rather, wife sought to have this evidence admitted
nine weeks after the hearing. Both parties had ample opportunity
during the hearing to present evidence regarding the value of
accounts and the costs of litigation.

The trial court’s and commissioner’s decision to receive
additional evidence after the close of the record is within the
discretion of the court. Morris, 3 Va. App. at 307, 349
S.E.2d at 663. The commissioner exercised his discretion not to
do so and given wife’s opportunities to address this matter on
the record, we find no abuse of discretion.

Wife’s alternate argument is also unpersuasive. The
commissioner indicated that in considering the sizable legal fees
claimed by wife and in light of the equitable distribution and
spousal support awards, $50,000 was an appropriate payment to
wife for her legal expenses. Wife presents no argument that
suggests the commissioner or trial court abused their discretion
in ordering payment of $50,000 and no evidence in the record
suggests that as a matter of law, a larger sum should have been
awarded. However, in view of our remand of the equitable
distribution award and the spousal support award, the trial court
should reconsider the attorney’s fee award.

Affirmed in part,
reversed in part,
and remanded.

 

FOOTNOTES:

[1] Husband argues that our holding
in Lightburn v. Lightburn, 22 Va. App. 612, 472 S.E.2d 281
(1996), where we reversed the trial court’s order awarding wife a
one-half interest in a tract of jointly titled marital property,
supports husband’s assertion that the trial court erred by
finding a gift on the facts of this case. Husband misconstrues
our ruling in Lightburn. In Lightburn, we reversed
on the basis that the trial judge failed to determine or address
the statutorily prescribed "equities and the rights and
interests of each party in the marital property," in
determining the wife’s share of the retitled property. 22 Va.
App. at 619, 472 S.E.2d at 284. There was no issue, as there is
here, as to whether a gift had occurred, as we "accept[ed] the trial court’s finding and the appellant’s concession that an
interest in the marital property was a gift to the wife." Id.
at 617, 472 S.E.2d at 283.

[2] The trial court, recognizing
that the Value Chart prepared by the commissioner did not include
all of the parties’ assets, directed counsel to prepare
"Schedule A," a classification and valuation of all
assets and proposed division thereof for the court.

[3] The commissioner recommended
Wife receive one-half of the marital portion of Husband’s Free
Lance-Star
Retirement Plan pension, which constitutes 25.6%
of husband’s pension.

[4] Such a lump sum payment is
permitted under Code ? 20-107.3(G) which permits a trial judge
to determine the present value of the marital portion of the
pension and in dividing that portion, to include the awarded
amount in a monetary award under Code ? 20-107.3(D). Gamble
v. Gamble
,
14 Va. App. 558, 421 S.E.2d 635 (1992).

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