Virginia Lawyers Weekly VA Lawyers Weekly
Although wife and her boyfriend testified that they traveled together and frequently shared a bed while at each other’s homes, the trial court found they were credible in testifying that they maintained a dating relationship without sexual intimacy, and the Court of Appeals affirms that wife is not barred from receiving spousal support; also, the couple’s use of a Michigan family farm as a vacation home did not prove husband intended to make a gift of the property to wife and the award to her of $35,400 for this interest is reversed.
Applying the clear and convincing standard of proof, a rational fact finder could make a finding of adultery where the following circumstances exist – a spouse and the alleged paramour are engaged in an exclusive and extended dating relationship, they travel together on vacation, they spend the night at each other’s house more times than both can remember and they routinely sleep in the same bed while staying together. However, the circuit court in this particular case (uniquely acting as the fact finder here) found that the allegation of post-separation adultery between wife and her boyfriend had not been proven by clear and convincing evidence. Therefore, our analysis is not whether a fact finder could find sufficient evidence of adultery – but whether the conclusion reached by the specific fact finder in this case was plainly wrong or without evidence to support it.
Here, the circuit court found that wife and her boyfriend provided credible testimony that explained the nature of their relationship and that amounted to more than a bare denial of adultery. In fact, the circuit court based its findings on specific credibility determinations. The circuit court, in its discretion, chose to accept the testimony of wife and her boyfriend that they were dating without a sexual relationship and shared a bed to be close to each other. Wife testified that as long as she was still married she only wanted a dating relationship and her displays of affection and romance with her boyfriend occurred because she was lonely.
We must defer to the trial court’s credibility findings here because they were not plainly wrong or unsupported by record evidence. We affirm the conclusion that adultery was not proved by clear and convincing evidence. We also disagree with husband’s claim that wife should be barred from receiving any spousal support based on his allegation that wife engaged in post-separation adultery.
Assuming wife adequately preserved her appellate claim, she did not prove the fault ground of cruelty or constructive desertion against husband. As the circuit court found, there were actions by both parties consisting of angry words, annoyances and failure to maintain the marital relationship, but the actions were not sufficient to show cruelty.
Bank accounts
The record does not adequately explain how the circuit court derived a “current value” of $77,100.21 for SunTrust account 5678. Bank statements showed balances for SunTrust account 5678 last had a balance as high as $77,000 on the August 2012 statement, that the balance had dwindled to $5,000 on the December 2012 statement and the account had a negative balance on the January 2013 statement. When husband’s counsel referenced these account balances at the Feb. 19, 201 hearing, the circuit court stated it would not reconsider the issue because there needed to be “finality in the litigation.” However, although the admission of evidence is within a trial judge’s discretion, the circuit court’s determination that the “current value” of account 5678 was $77,100.21 was not supported by evidence in the record on appeal. We hold the circuit court committed reversible error regarding this assignment of error by husband. We reverse the finding of a $77,100.21 “current value” for SunTrust account 5678 – remand for reconsideration.
The divorce court did not err in finding that a Lake Michigan vacation house, purchased from this mother’s estate with his separate funds, was husband’s separate property. He also purchased his three siblings’ one-quarter interests in a family farm in Michigan, with separate funds. Husband also used his separate funds to purchase his three siblings’ one-quarter interests in a family farm in Michigan. The trial court found the parties’ use of the property as a vacation home indicated husband’s donative intent, but donative intent must be supported by a more convincing offer of proof. We reject the trial court decision finding that husband intended to make a gift of the property to wife and its award of $35,400 to wife for this interest.
The trial court’s finding that wife dissipated $74,480 in marital assets is affirmed because it was not plainly wrong or unsupported by the evidence. Wife depleted a $300,000 bank account. She was working full-time, but under the pendente lite support, she was not responsible for the home’s mortgage, taxes or utility bills or the children’s medical, dental and counseling costs.
Husband also succeeded in showing that $205,720.78 in proceeds he received from sale of stock of his employer purchased in 2006 was his separate property. We reverse the circuit court finding that the funds in wife’s SunTrust account 7053 were entirely marital, and remand for the circuit court to conduct a retracing analysis on that issue. We also reverse the finding that husband’s SunTrust account 0532 contained only husband’s separate property. We direct the trial court to conduct a retracing analysis on this account as well.
We agree with the circuit court that husband successfully traced the monies held in Union bank account 3301 to his separate funds. Husband argued the bulk of funds in Union account 8512 came from insurance proceeds received after raccoons caused significant damage to the Michigan farm house. We reverse the circuit court with respect to a determination that these were separate funds and remand for a retracing analysis to determine classification of Union accounts 8512 and 4006.
On remand, wife is also directed to address whether adequate special circumstances or compelling reasons still exist for a lump sum spousal support award.
Affirmed in part, reversed in part and remanded.
Concurrence & dissent
Coleman, J.: I concur and join in the majority opinion except I respectfully dissent from the holding as to the Michigan farm. In my view, the very fact that the husband had the deed made to himself and his wife as joint tenants is sufficient to have supported the trial judge’s determination that he intended his wife own the property jointly. An appellate court should not overturn a trial judge’s factual finding that executing and recording a deed to an undivided interest in real estate was sufficient, under these circumstances, to prove donative intent. I would uphold the finding of donative intent. I respectfully dissent.
Delanoy v. Delanoy (Beales) No. 2457-13-2, Dec. 30, 2014; Albemarle County Cir.Ct. (Higgins) Christopher J. Smith for appellant; David B. Franzen for appellee. VLW 014-7-383(UP), 31 pp.
