THIRD-PARTY MORTGAGE PAYMENTS WERE MARITAL:
A church's payment's of a divorcing couple's joint mortgage obligations were marital-property contributions to the home's equity, even though the husband was the sole occupant and solicited the church's assistance, the Virginia Court of Appeals ruled in Harrop II v. Harrop, unpublished, March 7, 2023. He presented no evidence of what the church's intent was, so he did not overcome the presumption that paying a jointly-titled debt was a gift to both spouses, not just him.
That's all straightforward and sounds right. What's troubling is the court's footnote to this, which seems to mean that its holding is not really going to be the rule in similar future cases where such payments are made post-separation:
We recognize that because the property at issue was acquired after the date of the parties’ last separation, husband would have been entitled to a presumption that the property was separate property. See Luczkovich v. Luczkovich, 26 Va. App. 702, 708 (1998) (“Property acquired after the last separation is presumed to be separate unless the party claiming otherwise proves that the property ‘was acquired while some vestige of the marital partnership continued or was acquired with marital assets.’” (quoting Dietz v. Dietz, 17 Va. App. 203, 211-12 (1993))). However, because husband did not make this argument to the trial court or to this Court on appeal, we treat it as waived. Coward v. Wellmont Health Sys., 295 Va. 351, 367 (2018) (“[I]t is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” (quoting Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017) (applying Rule 5A:20(e)))).
Does "the property at issue was acquired after the date of the parties’ last separation" mean that the home -- the property being divided -- was acquired post-separation, or that the church's contributions to the mortgage were "property" the husband "acquired"? The latter, apparently, because the husband was already making mortgage payments on the home for the same month when the parties separated. So the footnote strongly implies that the payments were property, and were acquired by the husband, even though they were third-party payments of a debt that was in both spouses' names. And that if only he had made that argument, he would have won that point, unless the wife could present proof that the church intended a gift to both spouses.
SOLELY-TITLED DEBTS:
The court also reconciled two things the equitable distribution statute says about debts that are in only one party's name: Code § 20-107.3(C) says “the court shall have no authority to order the division or transfer of . . . marital debt, which is not jointly owned or owed.” It also says the court "shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the [equitable distribution] factors listed in subsection E.”
Therefore, "the court could account for the debts in the course of equitably distributing the property under Code § 20-107.3(E)."
But not only that, "Code § 20-107.3(C) ... still gives courts the option to account for those debts by ordering one spouse to pay debts in the other spouse’s name." However, that was not actually an issue in the case. The court was simply upholding the trial court's allocation to each party of that party's own debts that were already in that party's sole name.
That apportionment, which left the husband with debts elevenfold greater than the wife's, was not a blind refusal to consider such debts: it was correctly done by considering the equitable distribution factors, e.g., "the cumulative effect of the extra-marital conduct ... was devastating and ... a significant negative nonmonetary contribution," and "wife’s positive contributions to the family, including raising the parties’ children and spending substantial time educating herself on how best to care and advocate for the child with autism."
The trial court also properly considered the “debts and liabilities of each spouse” as a factor, and "accounted for holding husband responsible for most of the marital debts by awarding wife less of the marital property than she had sought."
CUSTODY:
The court also approved of the trial court's reasons for awarding sole legal custody: The father was "'mostly resistant and uninvolved'", "'quick-to-anger'", “'resistant to engage in a dialogue with [wife] about child-related decisions' and lacked 'willingness to collaborate with her over the past three years' ... 'even if an agreement is reached in the moment, [husband] takes steps afterwards to frustrate the process and recharacterize the outcome.'” These observations in the Guardian ad Litem's report also "'coincide closely with'" the trial judge's firsthand observations.
Why was the Guardian ad Litem's report admissible evidence? The Court emphatically rejected the father's argument that "a guardian ad litem report is entitled to no more weight than a closing argument. See Wiencko v. Takayama, 62 Va. App. 217, 233 (2013) (finding that the abuse of discretion standard 'affords the trial court appropriate flexibility in determining to what extent it should rely on the recommendation of the guardian ad litem'); Bottoms v. Bottoms, 249 Va. 410, 420 (1995) (reversing trial court’s custody determination for failing to consider guardian ad litem report)."
And the trial court had authority to order sole legal custody even though the mother's pleadings did not expressly request it: "a court may award relief it deems appropriate, even if that form of relief was not specifically requested by that party. ... D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 336 (2005) ... Cloutier v. Queen, 35 Va. App. 413, 424 (2001)." And the father comprehensively "put the question of custody before the court in his counterclaim for divorce when he asked the court to 'adjudicate issues of child custody, visitation and support of the parties’ minor children.'”