Virginia Family Law Appeals

Third party's mortgage payments were marital; sole custody justified, GAL report evidence; sole-named debt can be weighed AND ordered paid -- Harrop II v. Harrop

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the sole occupant and solicited the church's assistance, the Virginia Court of Appeals ruled in Harrop II v. Harrop, unpublished, March 7, 2023.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.'”

Two wildly different property-tracing methods can be used in the same case

The Virginia Court of Appeals reiterates that courts are free to use the Brandenburg and the Keeling methods of measuring separate-property shares of a home – upholding a trial court that apparently used both methods in successive stages of the same tracing analysis, in a case that illustrates what a huge difference the choice of formula makes. (Scott v. Scott, unpublished 11/5/19)

The trial court used the Brandenburg formula, which looks at the proportions of contributions to net equity, to measure the separate-property share of the proceeds of the couple’s first house that were rolled into the second house:

Dividing his contribution ($192,651) by the parties’ total contribution ($207,914) equals approximately 92.6%. … Multiplying this percentage by the parties’ total equity in the Abingdon house at the time of sale ($306,818) finds the husband’s share of the Abingdon house proceeds ($284,294). The circuit court could reasonably have concluded that the $214,492 down payment on the Taylor Street house, paid with unsegregated proceeds from the Abingdon house, was consequently also … 92.6% [from] the husband’s separate funds, or $198,619.

But when tracing the resulting separate-property contribution through the parties’ next home, it used the Keeling formula, which looks at the ratio of contributions to total purchase price, and treats the borrowing of mortgage debt as a marital contribution, but then applies the resulting ratio not to the total value, but to the net equity:

Here, the circuit court did not expressly describe the method by which it determined the parties’ respective shares in the Taylor Street home. However, the husband’s traceable separate share of the $628,000 purchase price of the Taylor Street house was $208,319 [the number above plus an additional contribution from a purely separate-property source] … one third of the total purchase price. The logical resulting conclusion … is that marital funds comprised the source of the remaining two-thirds of the purchase price.

We can infer, then, that the circuit court likewise determined that the marital share of the equity in the Taylor Street house was two thirds and consequently the husband’s separate share of the equity in the home was the remaining one third. … The circuit court found that the parties’ equity in the Taylor Street house was $529,876. The court awarded the wife $175,000, which equals approximately half of the parties’ two-thirds marital share of the equity in that home.

… As in Rinaldi [53 Va. App. 61, 72 (2008)], application of this classification method achieved an equitable result in light of the facts of this case.

So the Brandenburg analysis only looks at contributions that actually pay money in, and increase the parties’ net equity in the property. Regardless of what mortgage debt the couple may have taken on when they bought the house, they only get credit for the small amount of mortage principal they paid off during the marriage. But in the Keeling analysis, the high purchase price automatically and hugely increased the marital share and immediately diluted the separate share down to one-third. Thus the separate-property share in that home started out as $208,319 and ended up as $176,625. The opinion does not indicate whether the property’s value went up or down, only that the whole down payment was $214,492 (i.e., 97% separate) and the equity at the time of the divorce was $529,876 -- no indication how much of that is from mortgage payments and how much is from the value going up or down.

It would be more consistent to see the mortgage itself as a marital contribution if the court had ended up dividing the remaining mortgage debt equally, but it does not, and that probably never happens except in cases where a house cannot be refinanced and has to be sold or remain “under water” and co-owned in limbo.

Fees

The Court also finds a moderate award of attorneys’ fees to the wife to be reasonable for the usual reasons, and because of “the history of the case, the husband’s arguments regarding the difficulties that the wife caused during litigation, and the fact that the wife was denied spousal support. [And] that the husband had more control over the length of the litigation.”

Divorce court must account for income effects of property division when setting support; value assets net of secured debt; require strict tracing

Income calculation must include effects of ED award

The Court of Appeals agrees with a husband who says the trial court's income calculation for child and spousal support needed to account for income from accounts that were transferred from him to the wife, and reverses, in Henderson v. Henderson, 5/15/2018, Record No. 1364-17-2. (A separate opinion issued the same day, with a different case number, addressed wife's appeal of various rulings.)

Valuation: Secured Debt

The Court also reverses a valuation that did not subtract the amount of debt secured by the asset. An account had a lien against it for an equity line of credit in the husband's name. The trial court valued the account at its full value, not counting the lien, and divided it equally, then left the debt entirely to the husband. That sounds wrong, but what makes it absolutely wrong under the ED Statute?

Code § 20-107.3 requires a court effecting an equitable distribution to proceed in an orderly fashion: Specifically, it must (1) “classify the property,” (2) “assign a value” to the property, and (3) “distribute the property to the parties, taking into consideration the factors listed in Code § 20-107.3(E).” Theismann v. Theismann, 22 Va. App. 557, 564, 471 S.E.2d 809, 812, adopted upon reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). Code § 20-107.3(E) requires the circuit court, when distributing the marital property during the final phase of the process, to consider the “debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities.” Code § 20-107.3(E)(7). “However, to the extent that a valid indebtedness which is secured creates an encumbrance on the legal title” of marital property, we have held that this “indebtedness must be considered” by the circuit court at an earlier stage in the process, when “determining the value of the marital property.” Trivett v. Trivett, 7 Va. App. 148, 151, 371 S.E.2d 560, 562 (1988)

However, "On remand, the court should once again apply the subsection (E) factors to determine the distribution of the account." So the trial court might do something on remand that arrives at the same result.

Tracing

Husband had two accounts created during the marriage, which he and bank employees testified were funded solely from a pre-marriage account that contained 100% pre-marriage funds. But there were three years during the marriage, about 15 years ago, for which no statements from that old were available. Thus he failed to meet his burden of proof that the new account, created during the marriage, was separate property. The trial court had the discretion not to believe husband's testimony that no marital funds had been added to the old account, so its classification of the accounts as marital is upheld. 

But the husband was able to show that what was already in the account at the time of marriage was sufficient to account for what was put into the new accounts. That doesn't matter: "The mere fact that the husband was able to prove that he had pre-1999 earnings and bonuses in an amount sufficient to fund account #0410, the amount he claims to have traced, was insufficient to meet his burden of proof." 

Disability Retirement

Husband was a retired professional athlete and was receiving disability pension payments under a retirement plan. But there was no evidence that the payments were analogous to a "pain and suffering" personal injury award: they replaced wages and regular retirement benefits, and so they were marital. The timing of husband's employment should have made them hybrid, so it is possible, though not spelled out, that the trial court found the disability portion of already-received payments to be entirely marital because they were considered "wage replacement", not "deferred compensation."

 

Court could "divide" spent 401(k)'s separation-date value without "alternate valuation date"; marital purpose of spending irrelevant

The Court of Appeals upholds a monetary award for half the value of the marital share of a 401(k) valued as of the date of separation, even though the 401(k) had been spent in various ways for seemingly proper purposes, including the taxes on its early withdrawal. McGarrity v. McGarrity, unpub. 4/10/18. 

The account's owner had not withdrawn it voluntarily; after separation he defaulted on a pre-separation loan the couple had taken against it, and so the company closed the account, paid off the loan, withheld taxes and sent him what was left, about $33,000 out of about $68,000. He used $7,000 to pay support arrears to the wife, $5,000 for his divorce lawyer, $1,800 to paint the marital home, and the rest on the mortgage payments and other living expenses. When the money was gone, the IRS said he owed $18,000 for taxes and penalties on the 401(k) funds, even though taxes had been withheld from the distribution.

The trial court said that the value at the time of separation, net of the loan, was $48,000. Based on the husband's evidently undocumented testimony that between $12,000 and $18,000 in premarital retirement accounts had been rolled into it, the trial court called the separate share $15,000 and the marital share $33,000, and ordered the husband to pay the wife half that sum, as a dollar amount, not a transfer of pre-tax retirement-account funds.

On appeal, husband protested that there was no finding of marital waste, and no motion for an alternate valuation date. Neither of those are needed when dividing retirement, the Court of Appeals responds:

the trial court calculated the marital share of the Barrios 401(k) plan according to Code § 20-107.3(G)(1), which defines the marital share of a retirement account as “that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.” (Emphasis added). A trial court values the marital share of retirement assets by looking at the amount earned from the date of marriage to the date of separation. ... No party needed to file a motion for an alternate valuation date in order to have the trial court value the Barrios 401(k) plan as of the date of separation. Code § 20-107.3(G)(1) required the trial court to determine the value of the Barrios 401(k) plan as of the date of separation, not the date of the evidentiary hearing.

What about the taxes, the attorney's fees, and the spending on the marital home? The Court actually says something quite sweeping by declining to address those issues at all on the grounds that it is unnecessary: by approving of the simple separation-date valuation and division of the marital share, they have made any claims about proper expenditure of the assets not wrong, but irrelevant:

Considering our rulings above, this Court will not address husband’s fifth assignment of error. ... “an appellate court ‘decides cases “on the best and narrowest ground available” ... 

 

Phased payments for selling business, working for buyer and non-competing, can be divided as deferred compensation

The Court of Appeals upholds a court that treated a stream of payments from the sale of a company as "deferred compensation" and thus applied a coverture fraction to determine what share of them was marital. The husband, who had sold the company, is the one who sought this result, and the wife appealed it. He started and then sold the company during the marriage. The sale agreement spread out the payments to him, and required him to work for the buyer, and not to compete with it. He completed most of those conditions after separation.

The numerator of the coverture fraction the circuit court applied was comprised of the number of days from the date ZipList was founded to the date of the parties’ separation. The denominator of the coverture fraction was comprised of the number of days from the date ZipList was founded to the date of the final payout. 

How does stock from a sale, rather than some kind of employee stock ownership or option plan, fit the Code's definition of a divisible deferred compensation plan?, which reads: “The court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time.”?

The Court responds by quoting a phrase from its earlier decisions, along with its context which seems not to specifically justify reading it into the deferred-compensation part of the statute:

As this Court previously stated, “[W]e find no support for the view that the legislature intended to exclude retirement plans, or any other specific type of property, from the overall equitable distribution scheme.” Mann v. Mann, 22 Va. App. 459, 463, - 10 - 470 S.E.2d 605, 607 (1996) (emphasis added) (citing Banagan v. Banagan, 17 Va. App. 321, 325, 437 S.E.2d 229, 231 (1993) (“When pension benefits comprise a ‘portion of the pool of marital assets,’ they are clearly contemplated by the ‘scheme’ of Code § 20-107.3, which is intended to justly distribute the ‘marital wealth of the parties.’”)). See also Cirrito v. Cirrito, 44 Va. App. 287, 292-93, 605 S.E.2d 268, 270-71 (2004) (the Court of Appeals found that the future wages lost pursuant to a non-compete agreement were a substitute for a salary and subject to equitable distribution); see also Luczkovich v. Luczkovich, 26 Va. App. 702, 708-09, 496 S.E.2d 157, 160 (1998) (this Court determined the equitable distribution of severance payments based on whether “the severance pay was intended to compensate the employee for efforts made during the marriage or to replace post-separation earnings”).

But, uh, no one was arguing that this asset should be left out of equitable distribution; the wife was trying to get all of it divided as ordinary marital property rather than deferred compensation. 

However, the trial court and the Court of Appeals are on much solider ground when they go on to say that the Stock Purchase Agreement WAS a deferred compensation plan. It included a plan, it paid compensation for the husband's work performed over time, and it deferred that compensation.

 Allen v. Allen, 2/28/17, unpublished.

Paying college tuition was "waste", hybrid property claims bear burdens of proof & fail for lack of exact tracing

Virginia's Court of Appeals affirms a decision that paying the couple's son's college tuition was waste and counts against the husband's share of marital assets; finding no sufficient tracing of the admittedly existing separate-property share of employer stock and retirement accounts; and that lay testimony on rental value, though admissible with a proper foundation, need not be believed.

Waste/College Costs

"Once the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with dissipation to prove that the money was spent for a proper purpose." Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990). ... husband had the burden of proving, by a preponderance of the evidence, that his expenditure of the funds "was . . . for a proper purpose." 

Although we have affirmed the decisions of trial courts finding that payment of an adult child's college expenses was not waste in those cases, see id. at 587-88, 397 S.E.2d at 262; Amburn v. Amburn, 13 Va. App. 661, 666, 414 S.E.2d 847, 850 (1992), we have not held that, as a matter of law, such payments are never waste.

. . . the parties' separation agreement did not provide that either parent was obligated to pay for college or graduate school for either child. In fact, regarding education decisions, the agreement required equal input from both parents; however, husband unilaterally decided to use a marital asset to make the tuition payments.

There is no rule that college tuition always is, or is not, waste, the Court says. As for this case, it reasons as to how the trial court might have plausibly found it to be waste, citing evidence that the trial court apparently did not cite as reasons for the waste finding, but could've:

... despite some visits, husband was largely absent from the children's lives and ... wife bore the burden of raising them. The evidence also establishes that the son had issues regarding his education before adulthood, with husband noting that the son "had a somewhat difficult high school career" and only "had gotten his life on track in college." Additionally, the trial court could consider that the payments were made years after the parties' final separation, with a majority of the payments occurring more than a decade after the effective end of the marriage. These additional facts, when considered with everything else, allow a reasonable factfinder to conclude that the husband's payment of son's tuition was an attempt to improve his relationship with his son and was "for [husband's] own benefit and for a purpose unrelated to the marriage." Clements, 10 Va. App. at 586, 397 S.E.2d at 261.

The citations to Clements are for its general principles about expenditures for the husband's own benefit, and the burden of proof, not about college tuition specifically, as Clements in fact upheld a finding that college tuition was not waste; without any deep discussion of why and when it isn't waste, Clements simply says about that:

The trial court specifically stated that it was satisfied with the explanations offered by the husband that the money contained in these accounts was used primarily for household and tuition expenses, a finding which ... is supported by the checks themselves.

Editorial comment, for what it's worth:

The observation that the separation agreement required joint educational decisionmaking seems like a far better argument than the downright lame and insulting argument that the tuition payments were nutrition-free goodies to bribe the child to forgive the long-distant father, especially since the rest of the evidence quoted indicates that college was very worthwhile for this child. However, there is nothing in the opinion saying whether attending this college was the decision of the mother, the father, both, or neither; whether the college decision was made when the child was under 18 and that provision of the separation agreement was therefore still in force (the graduate school decision certainly wasn't); nor what the mother had said about the payments at the times they were made. The opinion does not say that attending or paying for college and graduate school were the father's unilateral decisions, only that "husband unilaterally decided to use a marital asset to make the tuition payments." Nor is there anything about what non-marital sources were available for the payments. Nor whether the husband thought at the time that the assets were marital, or had even heard of the concept -- but that question does not seem to matter in any of these waste/improper expenditure cases.

On the other hand, there certainly are cases where a unilateral expenditure for the child IS a frivolous, and often intentional and malicious, waste of marital assets. But it would be a good rule of public policy to have a rebuttable presumption that educational expenses are not that. It should be rebuttable by the trial court bringing together evidence and weighing it, not by scattered pieces of evidence that are put together only by an appeals court to speculate that the trial court might have been able to do so.

Tracing

The funds came from an employee stock ownership plan that was partly from before the marriage. The trial court found that these funds were hopelessly comingled. This is upheld because the husband did not meet his burden of "tracing the value of the initial investment separate and apart for [sic] any investment of marital funds. Husband, citing a lack of recordkeeping over the lengthy time period, was unable to establish the value of the stock at the relevant intervals that might allow the trial court to determine a separate property value as distinguished from the presumptively marital whole." 

The husband also had employer stock at the time of separation and continued adding stock to that account after separation, and argued that the burden should be on the wife to prove what was marital. But the trial court called this "potentially separate property that had been commingled with marital property when it was held in the same account", and "because there was no evidence as to the number of shares added post-separation or of what was the change in value of the account post-separation, the trial court could not accurately differentiate between the separate and marital components."

As to stock acquired after separation, even though:

"Generally, property acquired by one partner after the last separation . . . will not be marital property. . . ." Dietz v. Dietz, 17 Va. App. 203, 210, 436 S.E.2d 463, 468 (1993). Property that is acquired post-separation can "be classified as marital" only if the party making such a claim can "prov[e], without the benefit of a presumption, that it was acquired while some vestige of the marital partnership continued or was acquired with marital assets." Id. at 211-12, 436 S.E.2d at 469.

-- nevertheless, once the wife proved that some marital assets were exchanged for the new stock post-separation, the burden of tracing how much was separate rested, again, on the party claiming a separate property interest.

Likewise, the husband's partly-separate IRA was classified as entirely marital because he did not meet the burden of tracing a specific separate portion, and the Court roundly rejects his argument that the burden was on the wife who claimed it was marital, citing "Chretien v. Chretien, 53 Va. App. 200, 205 n.1, 670 S.E.2d 45, 48 n.1 (2008); Frazer v. Frazer, 23 Va. App. 358, 370-71, 477 S.E.2d 290, 296 (1996); see also Pence v. Pence, 2016 Va. App. LEXIS 275, at *25 (Va. Ct. App. Oct. 18, 2016) ('a retirement "account created or added to during the marriage is presumed to be marital property.'"

Lay Testimony

The Court upholds the trial court's ability to rule that a party's lay testimony about the rental value of the home was admissible under Evidence Rule 2:701, but happened to have "virtually no probative value." 

HVOZDOVIC v. MCGUIRE, 2/27/18

Prenup does the job without express waiver of equitable distribution

A prenup was still effective even though it did not include a specific waiver of a right to equitable distribution of property in a divorce, Virginia's Court of Appeals said in Thomas v. Thomas, unpublished, 5/31/16. The agreement had sufficient language to define certain property as separate property; to classify property acquired during the marriage depending on how it was titled, and to specify how co-owned property was to be divided, leaving only a small amount of property to be divided in equitable distribution. In equitably distributing that property, the trial court went through all the factors that could affect how it distributed it, and then divided it in accordance with the prenup, which said that co-owned property would be divided in half, regardless of any separate-property contributions to it.

Proving that efforts didn't increase value of property is up to non-owning spouse: Va. S. Ct.

In David v. David, released today, the Virginia Supreme Court addresses the question of the burden of proof in cases where a divorcing spouse owned separate property, but either that spouse or the other spouse contributed work to it during the marriage, and the other spouse claims that the work made it increase in value. The non-owner spouse has the burden of proving that the work was done and that there was an increase in value, but then, once that is proven, the owner spouse has the burden of DISproving that the work CAUSED the increase. 

This decision exactly relfects a statute which already addressed this exact issue, Virginia Code Sec. 20-107.3 A 3 a, which says in part:

For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contributions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increase in value or some portion thereof was not caused by contributions of marital property or personal effort.

 

 

http://www.courts.state.va.us/opinions/opnscvwp/1122145.pdf

Separate vs. Marital Property; South Carolina real estate - Va.Ct.App.

PROPERTY DIVISION – SOUTH CAROLINA REAL ESTATE – ARLINGTON REAL ESTATE. Equitable distribution decisions, too, are within the trial court’s sound discretion. But the trial court had awarded the entire South Carolina to the husband, even after acknowledging that it was jointly owned, and that husband did not dispute wife’s down payment from her separate property. The court’s award of the entire property to the husband despite her traced separate contribution was reversed. When there is commingling of separate with marital, it is transmuted, but the re-traced part retains (or gets back, one could say) its original classification. (This Court has at times been more precise, distinguishing between co-mingled and hopelessly co-mingled.) Thus the case has to be remanded for determination of the value of the wife’s interest, and then a proper proportional division. Given the remand, the court did not have to address some of wife’s other arguments relating to that property. ARLINGTON REAL ESTATE. The trial court held that some real estate titled in the husband’s name and owned by him five years before marriage was not transmuted into hybrid. After they married the parties paid off its mortgage by renting it out, using the rentals for the South Carolina mortgage as well. The wife contended that its value increased substantially during the marriage because of her personal efforts. She testified she paid for various remodeling and addition jobs on it, and was the primary property manager for it. She too owned the house before marriage and after they married used its rental income for the South Carolina mortgage and her own Arlington mortgage. Now husband’s Arlington property, owned before marriage, was thus presumed separate, by statute. Wife failed to prove the value increase that she argued, because she never proved its dollar value at the moment the marriage ceremony took place. That left the trial court unable to determine the amount of any increase, no matter how much detail about the improvements was shown him. The Court of Appeals won’t reverse that. Canedo v. Canedo, unpublished, R. No. 0851-12-4 (2/26/13).

 

PROPERTY DIVISION – PERCENTAGES – ALI¬MONY – CHILD SUPPORT. - Va.Ct.App.

Nor was there an­y­thing wrong in the Patel case with giving wife 40% of the marital property. The parties had a 27-year marriage, and husband was found to have an income of $32,888 per month. Wife‘s alimony of $7,000 per month with $1,245 monthly child support was also approved. Patel v Patel, 61 Va. App. 714, 740 S.E.2d 35 (4/9/13).