When the Court of Appeals used an unpublished opinion to reverse the Fairfax Circuit Court in Lesesne v. Zablocki, 21 VLW 968 (1/9/07) the main issue was whether one-third of the real estate value was marital or separate. When the married couple bought the marital home it was as tenants in common, with the husband, Zablocki, owning a 5/6ths interest and the wife owning 1/6th. But when they refinanced the property in 1997 it was retitled as tenants by the entirety. The whole question concerning it at the time of divorce was whether this retitling was meant to cut down husband’s disproportional share and give the wife an equal legal and equitable interest by gift.
Husband had testified he intended no such thing. The trial judge said that the refinancing and retitling, and the circumstances surrounding them, proved a gift bringing wife’s share up a full half and cutting husband’s down to same. (Husband said he thought the retitling was just a financing device and an assurance that his wife would get the whole property at his death, while wife testified that she thought a gift was intended). The statutory standard of clear and convincing evidence, the Court of Appeals said, takes more than that. Husband testified to his intent and there was not really anything to refute him, except what wife says she thought. The Court of Appeals said:
“In light of husband’s testimony that the retitling was used as a mechanism to transfer the property at death and that he had no intent to gift [sic] his separate interest in the property to wife, wife’s mere belief, uncorroborated by any other evidence, that husband gifted his separate interest in the marital home to her at the time of the 1997 refinancing is insufficient to prove donative intent by clear and convincing evidence.“Wife admitted she did not know what husband intended at the time of the refinancing. The fact that husband had made partner at Ernst & Young, coupled with wife’s belief that husband could afford to give her a greater interest in the property, did not prove husband, in fact, intended to do so.”
The Court of Appeals panel saw nothing wrong with the judge’s refusal to impute income for alimony purposes to the wife who was by then staying home to take care of their three young children, pursuant to mutual pre-separation agreement, but since the E.D. was reversed, alimony will need to be reconsidered too. As for child support, there was nothing wrong with the trial judge’s refusal to deviate from the statutory child support guidelines and make the father pay the full private school tuition for the kids. Wife did not present evidence proving the need for private school on educational, emotional or developmental grounds.