Father owed mother back support and a delayed ED monetary award. He paid up after she sued, but she claimed one $10,000 payment to her was not for back support or ED, but was an extra gift to their adult son for his medical expenses and other needs. There was evidence to support her interpretation, including the son's name on the memo line, and the father's texting the son about the check, saying the mother could use if for the son's needs. The trial court refused to hold the father in contempt, but ordered him to pay $10,000 to finish paying what he owed.The Court of Appeals reverses in Monds v. Monds, 5/8/18.
It is exciting to see the Court encounter a trial court finding of fact that is so unbelievable that they reverse it. But the Court explains that whether something is a gift is not a fact question, it is "a question of law that we review de novo on appeal. Smith v. Mountjoy, 280 Va. 46, 53, 694 S.E.2d 598, 602 (2010)." And the presumptions and burdens are all against it:
“It is well settled that the law does not presume a gift and where a donee claims title to personal property by virtue of a gift inter vivos, the burden of proof rests upon him to show every fact and circumstance necessary to constitute a valid gift by clear and convincing evidence.” Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 631 (1968) (quoting Grace v. Virginia Trust Co., 150 Va. 56, 142 S.E. 378 (1928)). Therefore, in order to establish the existence of a gift, wife was required to prove, by clear and convincing evidence “(1) the intention on the part of the donor to make the gift; (2) delivery or transfer of the gift; and (3) acceptance of the gift by the donee.” Robinson v. Robinson, 46 Va. App. 652, 665, 621 S.E.2d 147, 154 (2005) (en banc) (quoting Theismann v. Theismann, 22 Va. App. 557, 566, 471 S.E.2d, 809, 813, aff’d on reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996)). Furthermore “[a] clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite to a gift inter vivos. And this intention must be inconsistent with any other theory.” Matthews v. Hanson, 145 Va. 614, 619, 134 S.E. 568, 569-70 (1926).
The mother claimed it was a gift to the adult son, and the Court of Appeals finds this inconsistent with the fact that the father wrote the check to her and deposited it into her account. It matters not that the son was a "linked" name on all her accounts, which the father may or may not have known. If he wanted to give the son a check he would have written it to him.
The notion that husband would have entrusted wife and his ex-mother-in-law – the joint owners of the account – with these funds instead of paying them directly to his adult child is particularly unbelievable in light of the circuit court’s finding that there was a “total lack of trust between the two of them [husband and wife].”
And "the state of husband’s financial affairs was inconsistent with any intention by husband to make a gift." He was way behind on child support, and was very worried about it, and the mother was reminding him of it and threatening to take him to court. And the deadline to pay a $100,000 monetary award loomed.
In addition, the text messages exchanged between husband and Zach indicate that husband was aware that he was paying this money to wife with only the hope that she would then choose to give this money to Zach. On the day husband made the deposit, he texted Zach, stating, “Deposit made today . . . PLEASE READ UR MOMS TX TO ME . . . . . I HOPE SHES TELLING THE TRUTH . . . BUT DOUBT IT . . . LOVE YAA.” This text message is consistent with husband’s testimony that he hoped wife would give the money to their son, Zach, but he feared that she would not. Husband also texted Zach on February 21, 2017, telling his son, “Hey zach i wud like to help u with ur bills . . . . even if ur mom gave u the 10GRAND LIKE SHE SAID SHE wud . . . . .” The message shows husband’s recognition that the money belonged to wife and that it was her choice whether to give the money to Zach.
Although “[i]ntent is a question to be determined by the fact finder,” Cirrito v. Cirrito, 44 Va. App. 287, 305, 605 S.E.2d 268, 276 (2004), the circuit court here was plainly wrong in finding the required clear and convincing evidence of husband’s donative intent.
Mother claimed father could not appeal, because of Virginia's common-law rule that a refusal to hold someone in contempt cannot be appealed. That would be absurd, the Court of Appeals says. He was appealing not the refusal to hold him in contempt, but the ruling that he still owed $10,000.
Father, conversely, argued that the trial court did not have the power to enforce the obligation in another way once it refused to hold him in contempt. The Court of Appeals replies that the trial court always has the power to enforce its monetary awards, which is not surprising, but its reasoning might be:
“Monetary awards that arise in the context of a divorce differ from other monetary judgments. They compensate a party for his or her rights, equities, and interests in marital property.” Kahn v. McNicholas, 67 Va. App. 215, 226, 795 S.E.2d 485, 490 (2017). “When a monetary award is included in a separation or property settlement agreement, it oftentimes also provides compensation for the waiver of a party’s right to receive spousal support.” Id. at 226-27, 795 S.E.2d at 490. As a result of the unusual nature of monetary awards arising out of divorce, trial courts are vested with the “continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered” under Code § 20-107.3(K) ...
For the same point it cites Shoup v. Shoup, 31 Va. App. 621, 525 S.E.2d 61 (2000) and Green v. Robertson, (Va. Ct. App. Mar. 20, 2018).
Father also argued that he did not have notice that other remedies would be considered, but the Court says the petition for a rule to show cause gave him adequate notice that she was trying to enforce everything that he still owed at the time it was filed. It asked for him to be held in contempt "'and compelled to comply with this Court’s orders'." And a money judgment is one of the remedies that may result from a petition for a rule to show cause, under Shoup and M. Morgan Cherry & Assocs. v. Cherry, 38 Va. App. 693, 703, 568 S.E.2d 391, 396 (2002).
Fees: The Court of Appeals says it cannot award fees to the father, because the agreement only provides for fees for enforcement, not for successfully defending against enforcement.