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DONOHUE v. DONOHUE


DONOHUE v. DONOHUE

(unpublished)


JULY 8, 1997
Record No. 2675-96-2

JOHN BARRY DONOHUE, JR.

v.

MARY PATRICIA SHEARON DONOHUE

MEMORANDUM OPINION[1]
BY JUDGE JAMES W. BENTON, JR.
FROM THE CIRCUIT COURT OF HENRICO COUNTY

James E. Kulp, Judge
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia

Edward D. Barnes (Barnes & Batzli, P.C., on briefs), for
appellant.

J. W. Harman, Jr. (Harman & Harman, on brief), for appellee.


On appeal, John Barry Donohue contests several aspects of a
trial judge’s equitable distribution award to his wife Mary
Patricia Shearon Donohue. The husband presents the following
eight issues:

1. Whether the trial [judge] erred in failing to designate the
loans taken from [the husband's] 401(k) plan and from his mother
as items to be reimbursed or credited to the [husband] in that
such loans were taken for the purposes of maintaining the marital
estate and pay[ing] some other family and marital obligations.

2. Whether the trial [judge] erred in ordering an equal
division of the stock options in that the evidence does not
support such division.

3. Whether the trial [judge] erred in failing to take into
account, when valuing the marital assets, the tax consequences
attributable to the Fidelity Cash Reserves IRA, the Reynolds
Metals 401(k) Plan, the Reynolds Metals Tax Reservation Act Stock
Ownership Plan (TRASOP), and the Reynolds Metals Incentive
Deferral Plan.

4. Whether the trial [judge] erred in finding that the
repayment of the loan from the [husband's] father’s estate and
the tax refunds credits were items to be reimbursed or credited
to [the husband] in that they were applied to maintain the
marital estate and pay some other family and marital obligations.

5. Whether the trial [judge] erred in ordering an equal
division of [the husband's] retirement benefits in that the
evidence does not support such division.

6. Whether the trial [judge] erred in ordering an equal
division of the marital assets and marital debts in that the
evidence does not support such division.

7. Whether the trial [judge] erred in failing to address the
transfer of various items of personal property and to divide the
family photographs.

8. Whether the trial [judge] erred in its monetary award in
that the amount awarded is not supported by the [judge's] other
rulings.

For the reasons that follow, the decree is affirmed in part
and reversed in part.

I.

The husband and wife were married on September 14, 1974. The
wife was employed two years and ceased full time employment
shortly before their first child was born. The husband has been
employed since the beginning of the marriage. Two years after the
marriage, the husband began working for Reynolds Metals Company,
where he continues to be employed. During his employment, the
husband received stock options and other employment related
assets.

The parties separated on March 1, 1993. Shortly after their
separation, husband borrowed $50,000 from his 401(k) account at
Reynolds Metals to pay expenses. After that fund was depleted,
the husband borrowed $33,000 from his mother. In addition, the
husband received a tax refund for 1993 and a repayment of a loan
the husband had previously made to his father’s estate. Husband
appeals from the final decree entered in 1996 ordering a division
of these debts and assets.

II.

HUSBAND’S LOANS

The trial judge refused to allocate the husband’s loans
between both parties because he found the husband’s "use of
these funds to be a dissipation of marital assets." We
disagree that the evidence proved a dissipation.

The evidence proved that shortly before their separation, the
parties expended large amounts of cash for the wife’s automobile
and home improvements. At the time of their separation, the
parties’ cash accounts were minimal. The husband’s salary was the
primary source of funds. The wife was not employed.

After the parties separated in 1993, the husband was ordered
by a juvenile court judge to pay $2,442 per month in child
support and $2,800 per month in spousal support. The letter
opinion ordering those payments found that the husband’s net
monthly income was $5,323. The evidence at that time proved that
the husband had borrowed $50,000 from his 401(k) account at
Reynolds Metals and had put the money into a separate fund
"to pay the mortgage and the support." In ordering
support payments, the letter opinion also ruled that "[the
husband] shall be permitted to deduct the amount of spousal
support from the fund [established by the borrowing and] allocated in anticipation of the need to pay the mortgage."
The opinion further noted that "based upon the monies
available and expenses of the parties, the marital residence
should be listed for sale immediately."

Husband testified that "[t]he [borrowed] funds have been
used primarily to give [wife] money, . . . to pay the mortgage[,] . . . to pay children’s sports expenses[, and] . . . for some of
the family medical expenses." Husband also testified that
the money was used to pay for automobile insurance on his and the
wife’s vehicles. On August 27, 1994, after the $50,000 loan was
depleted, husband borrowed $33,000 from his mother. Husband used
these funds to continue to pay spousal support and other
expenses. Although the trial judge found that the juvenile court
judge’s letter opinion ordered that the husband was to pay the
spousal support from the borrowed funds, the trial judge refused
to consider these debts to be marital debts and stated that
husband "could not use the marital funds . . . to pay for
his court ordered obligations; to find otherwise, would be to
allow [husband] to pay his court ordered obligations partly from
funds belonging to [wife]."

As a general rule, "[t]he use of [marital] funds for
living expenses while the parties are separated does not
constitute dissipation." Clements v. Clements, 10 Va.
App. 580, 587, 397 S.E.2d 257, 261 (1990). Addressing the concept
of waste by dissipation, this Court has ruled that
"[d]issipation occurs ‘where one spouse uses marital
property for his own benefit and for a purpose unrelated to the
marriage at a time when the marriage is undergoing an
irreconcilable breakdown.’" Id. at 586, 397 S.E.2d at
261 (citation omitted). When dissipation occurs, the spouse who
used funds in that manner must assume full responsibility for the
debt the spouse created. See id. "[T]he burden
is on the party who last had the funds to establish by a
preponderance of the evidence that the funds were used for living
expenses or some other proper purpose." Id. at 587,
397 S.E.2d at 261.

No evidence proved that the funds were used for a purpose
unrelated to the marriage. The evidence proved that when the
parties separated in 1993 the parties had minimal cash assets to
pay their ongoing expenses. The husband was obliged by court
order to pay spousal and child support in an amount that was $81
less than the husband’s net monthly income. In ordering that
amount, the judge’s opinion letter stated that the fund
containing the borrowed money was an appropriate source for the
spousal support payment. Indeed, the evidence clearly proved that
the parties had no funds to pay the mortgage and that the use of
the borrowed funds, which was approved by the letter opinion,
enabled the parties to maintain the marital residence, the major
asset that they owned. Thus, we hold that the trial judge erred
in finding dissipation and refusing to consider the loan
obligation a marital debt. The husband’s initial use of the funds
to pay the mortgage and then spousal support was not an act of
dissipation. See Decker v. Decker, 17 Va. App. 12,
19, 435 S.E.2d 407, 412 (1993) ("[E]xpenditure of funds for
items such as living expenses, support, and attorney’s fees,
constitutes a valid marital purpose and is not dissipation or a
deliberate attempt to affect a monetary award.").

"[A] valid indebtedness secured by marital property
reduces the value of the property to the extent of the
indebtedness." Id. at 18, 435 S.E.2d at 412. The
husband met his burden of showing that he used the funds properly
by proving that the juvenile court judge approved the expenditure
and testifying that he used the money for family expenses. The
wife offered no evidence to contradict his testimony. Thus, the
trial judge erred in failing to reduce the value of the marital
estate by the amount of the indebtedness. We remand this issue to
the trial judge.

III.

STOCK OPTIONS

The evidence proved that from 1987 through 1992, husband
received stock options from his employer. The options could not
be exercised until at least one year after they were granted, and
the options had to be exercised within ten years of the date they
were granted. At the time of the equitable distribution hearing,
the husband had not exercised any of the options.

The husband argues that awarding the wife 50% of the proceeds
earned from exercising the options violated the mandate of Code ? 20-107.3(G)(1). Code ? 20-107.3(G)(1), which
authorizes the trial judge to order division of profit-sharing
plans, pensions, and deferred compensation plans, states that the
non-employee spouse shall not receive a share that
"exceed[s] fifty percent of the marital share of the . . .
benefits." The husband argues that the marital share of the
options was only a fraction of their total value and that by
awarding the wife 50% of their total value the trial judge
violated the mandate of Code ?
20-107.3(G)(1).

We disagree with the husband’s assertion that the marital
share of the stock options was only a fraction of their total
value. The husband relies on Dietz v. Dietz, 17 Va. App.
203, 213, 436 S.E.2d 463, 470 (1993), where the trial judge
determined that only a fraction of the value of the stock options
was marital property. However, in Dietz, the employee’s
right to exercise the option was conditioned upon his continued
employment for a specified duration. See id. at
213, 436 S.E.2d at 469. At the time of the parties’ separation,
the right to exercise the options had not yet vested. See id.
at 213, 436 S.E.2d at 470. Under those facts, the trial judge
properly ruled that a portion of the options was earned after the
parties’ separation, and therefore, that portion of the options
was not marital property. See id.

In this case, however, the options were fully vested at the
time of the parties’ separation and were not conditioned on the
husband’s continued employment at Reynolds Metals. Although the
husband was required to wait for one year before exercising the
options, the right to exercise the options at that time was fully
vested. Accordingly, husband’s reliance on Dietz is
misplaced.

Code ?
20-107.3(G)(1) defines the marital share of any profit-sharing
plan as "that portion of the total interest, the right to
which was earned during the marriage and before the last
separation of the parties." The unconditional right to
exercise the options at a future time certain was earned and
vested during the marriage. The full value of the options was,
therefore, marital property.

Accordingly, we hold that the trial judge correctly ruled that
the entire value of the stock options was marital property. The
trial judge did not violate the mandate of Code ? 20-107.3(G)(1) by granting
the wife 50% of the proceeds earned upon exercise of the stock
options. Furthermore, the record does not support the husband’s
argument that the trial judge abused his discretion in awarding
the wife 50% of this asset.

IV.

TAX CONSEQUENCES

The husband obtained the following assets during his
employment at Reynolds Metals: (1) Fidelity Cash Reserves IRA,
(2) 401(k) Plan, (3) Tax Reservation Act Stock Ownership Plan,
and (4) Management Incentive Deferral Plan. The trial judge
awarded 50% of these assets to the wife. The husband argues that
the trial judge erred in refusing to consider the tax
consequences of the division. We disagree.

Ruling on a similar issue, this Court recently stated that
"potential [tax] liability is a proper consideration in the
determination of a property division and an award, if it is
not speculative
." Arbuckle v. Arbuckle, 22 Va.
App. 362, 367, 470 S.E.2d 146, 148 (1996) (emphasis added). The
trial judge in this case found that the amount of taxes was
speculative because the evidence did not prove what tax rate
would apply to the parties at the time the money is withdrawn.
The husband’s contention that his current tax bracket should be
used in determining the tax consequences that will result from
his future receipt of his retirement benefits is simply without
merit. We hold that the trial judge did not err in refusing to
factor in possible tax effects on the ground that a determination
of the tax rates applicable to the parties in the future would be
speculative.

V.

TAX REFUND AND LOAN REPAYMENT

After the parties separated, the husband received a federal
and state tax refund for 1993. The estate of the husband’s father
also repaid husband for a loan husband had extended to the
estate. The trial judge classified as marital property one fourth
of the tax refund and all of the loan repayment.

The husband argues that the monies were not marital property
because they were received after the parties’ separation. We
disagree. The parties’ right to receive both payments had fully
vested before they separated. Before the separation, the parties
had a claim for repayment of any taxes they overpaid. Likewise,
they had a claim for repayment of the loan they had extended to
the husband’s father’s estate. That the parties were not actually
paid until after the separation is of no moment.

The husband also argues that because those funds had been
expended for marital purposes before the equitable distribution
hearing, the trial judge should not have considered these monies
as existing assets. The husband states that he had used the money
to pay for family expenses. We remand this issue to the trial
judge to determine whether those funds were so used. See supra
section II.

VI.

RETIREMENT BENEFITS, MARITAL ASSETS, AND DEBTS

The husband argues that the record does not support the trial
judge’s finding that the wife should receive half of the marital
assets. We disagree.

The trial judge made the following findings:

At the time of the marriage, [the wife] was employed at
the National Institute of Health.

She resigned this position to move to Ohio to be with [the
husband]. She found employment in Ohio in December 1974, and
worked until July 1976, when she again moved with [the
husband] to Connecticut. [The husband] at that time wanted
[the wife] to stay at home to raise the children, to take
care of the home, so she’s not worked since.

[The husband] was with a law firm initially and has been
employed by Reynolds Metals Company . . . since 1976.
Initially, [the wife] worked and contributed monetarily to
the well being of the family, the acquisition, care and
maintenance of the marital property.

Since the move to Connecticut in 1976, her contributions
have been nonmonetary. [The husband] has contributed mainly
monetarily to the marriage, but has contributed nonmonetarily
by assisting the children with various things such as
homework. He’s been involved with their sporting activities,
and has helped the child who has had some health problems.

Based upon the evidence, the trial judge found that "each
party contributed equally to the marriage, and to the
acquisition, care and maintenance of the marital property."

"’The trial court’s findings must be accorded great
deference. Its judgment will not be disturbed on appeal unless
plainly wrong or without evidence to support it.’" Amburn
v. Amburn
, 13 Va. App. 661, 663, 414 S.E.2d 847, 849 (1992)
(citation omitted). The record supports the trial judge’s
rulings. Accordingly, we cannot say that the trial judge abused
his discretion in awarding half of the marital property to the
wife.

VII.

PERSONAL PROPERTY

The husband filed a motion in the equitable distribution
proceeding seeking, among other things, permission to retrieve
his personal belongings from the marital residence. In the final
equitable distribution decree, the trial judge awarded all
"personal property located at [the] marital residence"
to the wife. However, the trial judge also ordered that the wife
"immediately turn over to [the husband] the items of
non-marital [personal] property of [the husband] identified in a
previous exhibit." The husband’s exhibit 7 listed several
items of non-marital personal property. Thus, the record clearly
reveals that the trial judge did address this issue in the final
decree and made a specific ruling.

The husband also requested that the trial judge divide equally
all family photographs and memorabilia. However, the final decree
contained no provision directing the division of the photographs
or otherwise addressing the husband’s request. The husband
properly noted his objection to the trial judge’s failure to
address the family photographs in the final order. Accordingly,
we remand this issue to the trial judge for a ruling on the
proper division of the family photographs and memorabilia.

VIII.

AMOUNT OF FINAL AWARD

The husband argues that although the trial judge stated
clearly his intent to divide the marital assets and debts evenly
between the parties, the final award did not achieve an equal
division. Therefore, the husband argues, the trial judge’s order
is erroneous. We agree.

The trial judge made the following statements:

I’m dividing [the marital assets] equally . . . that gives
a total to [the wife] in the amount of $35,157. And to [the
husband], $47,315.

The Court orders [the wife] to pay all of the marital
debts which are listed on her submission in the amount of
$13,022.

* * * * * * *

The Court further orders that [the husband] is to pay
[another marital debt] . . . in the amount of $6,733. . . .

Now, taking into account the marital debt, which the Court
indicated should be divided equally among the parties, that
brings the total for [the wife] at $38,524. And [the
husband], $53,826.

The Court after consideration of all the equities in the
case and the factors set forth in section 20-107.3(E), makes
a monetary award to [the wife] in the amount of $15,300.

Although the trial judge explicitly stated his intention to
divide the marital debts and assets equally between the parties,
an analysis of the above discussion reveals that the trial judge
failed to reach that result.[2]

Obviously, if the wife had in her possession $35,157 in assets
and the husband had in his possession $47,315 in assets, the
total amount of assets to be divided was $82,472. The wife was
ordered to pay $13,022 of the debts and the husband was to pay
$6,733 of the debts, for a total of $19,755. Thus, the net
marital assets after payment of debts was $62,717. Equally
divided, each should have received $31,358.50 of the net assets.

The parties had in their possession, after payment of debts
allocated to them, the following assets:

Husband Wife

$47,315 $35,157

- 6,733 -13,022

$40,582 $22,135

To effect an equal division, the husband was only required to
pay the wife the difference between $40,582 and $31,358.50 — a
total of $9,223.50. A review of the trial judge’s calculations
demonstrates that the trial judge committed errors in his
determination of the final award.

For the reasons stated in this opinion, the award must be
recalculated. Accordingly, we reverse the decree distributing the
marital property and remand the case for reconsideration.

Affirmed in part, reversed in part, and remanded.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

[2] To account for the debt, the
judge ordered the wife to pay $13,022 and the husband to pay
$6,733. Thus, the total debts were $19,755, and each party should
have been responsible for $9,877.50. However, the trial judge, in
addition to requiring the wife to pay $13,022, apparently
credited the wife as having received an additional $3,367 in
assets (the amount of her half of the debt that the husband was
required to pay) for a total of $38,524 in assets. The net
"debt" the judge therefore held the wife responsible
for was $16,389. Similarly, in addition to requiring the husband
to pay $6,733, the trial judge apparently credited the husband as
having received an additional $6,511 in assets (the amount of his
half of the debt that the wife was required to pay) for a total
of $53,826 in assets. The net "debt" the judge
allocated to the husband was $13,244. Moreover, based on the
trial judge’s conclusion that the wife had received $38,524 in
assets and the husband had received $53,826 in assets, the trial
judge ordered the husband to pay to the wife $15,300. Presumably,
the purpose of the award was to cause the wife’s full award to be
$53,824, just a few dollars less than the total amount the judge
concluded the husband had received. The fallacy in that
conclusion, however, is that after ordering the husband to pay
$15,300, the judge should have reduced the husband’s total award
by that amount. Thus, the husband actually received only $38,526.

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