Equitable distribution and income rulings affirmed

Where the parties have made multiple assignments of error regarding the court’s rulings on equitable distribution, valuation of property and calculating income for child support purposes, the trial court’s rulings are affirmed.

Husband’s appeal

Husband asserts the trial court’s apportionment of his TSP retirement account was flawed because the court did not classify his premarital funds as separate property. However, by statute, property is presumed marital unless there is satisfactory evidence that it is separate.

Husband claims that $19,094 was in the account before the parties’ marriage but he did not provide the court any prenuptial records. The court properly determined that the TSP was marital property.

For similar reasons, the trial court correctly determined that a trading account was marital property, rather than husband’s separate property, in the absence of evidence to the contrary. Further, wife documented a $10,000 deposit of marital funds into the account shortly before the parties separated.

Wife was properly awarded a $117,717 separate interest in her TSP. The court admitted, without objection, wife’s extensive records related to the account both before and after the parties’ marriage. The court correctly determined wife’s separate interest by referring to these records.

The trial court correctly granted wife’s motion for an alternate valuation date of the marital property. “It was undisputed that husband took control of hundreds of thousands of dollars of marital funds after the separation and spent most of those monies before trial; he conceded his improper use of at least $230,000.

“Moreover, in the twenty-three-month period between the parties’ separation and the trial, husband spent $633,868, which was about four times the amount of his annual income.

“He failed to submit a detailed list of each expenditure’s amount and purpose after making numerous transfers between accounts, withdrawing large amounts of cash, writing dozens of checks, and making large credit card payments reflecting hundreds of charges.

“Instead, he offered vague testimony, claiming that his shopping sprees, payments or purchases for relatives, and frequent visits to restaurants and sports and billiards bars were proper expenditures. …

“When no evidence showed that his expenditures ‘were for a proper purpose,’ it was not ‘inequitable’ as husband alleges, to apply an alternate valuation date and certainly not an abuse of the trial court’s discretion.”

Husband claims that the court incorrectly calculated his income for child support purposes because the court did not consider “expenditures to his rental properties[.] …

“After including $3,250 per month of rental income, which husband receives from two rental properties, the trial court found that husband’s income is $13,745 per month for child support purposes.

“No cases stand for the proposition that husband’s claimed rental property expenses are ‘reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business’ within the meaning of Code § 20-108.2(C).” The trial court correctly calculated husband’s income for child support purposes.

Wife’s appeal

The bulk of wife’s appeal relates to her response to husband’s interrogatory regarding the value of five disputed parcels of realty, referred to as the “excluded properties.”

The trial court issued a scheduling order, which required the parties to complete discovery and all responses to financial discovery 30 days before trial. One of husband’s interrogatories asked wife to state the fair market value of the excluded properties.

“Wife concedes that she answered that the fair market values of the excluded properties were ‘unknown, to be determined by appraisal.’ Nonetheless, she contends that she complied with discovery by otherwise making ‘the additional or corrective information … known to [husband] during the discovery process or in writing’ under Rule 4:1(e)(2).

“Specifically, wife contends that husband was otherwise on notice of the fair market values when she had proposed written stipulations of fact to husband, which suggested values for the excluded properties, and provided copies of tax assessment values to husband with other documents supporting her proposed stipulations. We disagree.

“Both parties were represented by counsel in this case. Wife never provided husband with a definitive answer to his interrogatory request regarding valuation until the morning of trial. Based on wife’s production of the tax assessment values and her participation in negotiating a stipulation, we find that wife was aware of her obligation under the interrogatory. We further find that she and her counsel failed to engage an appraiser or commit to a value until trial – to the detriment of husband.

“The trial court properly found that wife’s sworn answer regarding the value of the five excluded properties was that the fair market values were ‘unknown, to be determined by appraisal.

“The trial court further found that wife never supplemented the values and properly found that wife violated the scheduling order. Although wife further contends that she gave notice to husband … she did not do so until … after the cutoff the scheduling order imposed.” She did not provide an update until after trial began.

“By the time husband was aware of her position on the values of these excluded properties, it was too late for him to review and act on this information. …

“[T]he trial court did not err in finding that wife violated the scheduling order.”

The court sanctioned wife by excluding her valuation testimony. Wife asserts the trial court improperly sanctioned her under Rule 4:12(a) for a discovery violation because husband never filed a motion to compel discovery. But the court did not sanction wife under Rule 4:12(a). Instead, the court granted husband’s motion in limine to exclude her testimony after she violated the scheduling order.

The trial court’s rulings relating to the parties’ assignments of error are affirmed.

Moore v. Moore, Record Nos. 0314-20-4 and 0315-20-4. CAV (Athey) from Fairfax County Cir. Ct. (Azcarate) Tashina M. Gorgone for Steven Douglas Moore, Mary C. Huff for Bridget Monica Moore. VLW 020-7-196, 29 pp. Unpublished.