Property Distribution - § 5-2 (C) - § 5-2 (E)
2010---Dunfee v. Dunfee, Va. Ct. of Appeals, Unpublished, No. 0870-10-4
Trial court did not err in refusing to give wife credit for her post-separation mortgage payments on the marital residence. Wife enjoyed exclusive use and possession of the residence during the separation, had husband removed from the home and changed the locks, and provided husband no access to marital funds or credit cards, forcing him to instead rely on separate savings and family charity.
Trial court did not err in ordering each party to pay the respective credit card debts in his and her individual names, and in awarding husband an additional $2,000 to offset the amount by which the credit card debt in his name exceeded the debt in wife’s name. In refusing to give wife credit for her post- separation payments towards the credit card debt in her name, the court noted that she had refused to afford husband access to the marital residence or to marital funds during the separation, despite knowing that he had no other place to live nor significant money to rely upon, and that she made significantly greater income than husband.
2010---Tucker v. Wilmoth-Tucker, Va. Ct. of Appeals, Unpublished, No. 2008-09-2
The trial court did not err in using the value on the date of acquisition and the value on the date of separation to classify certain property, despite the fact that neither party moved the court for an alternative valuation date pursuant to Va. Code §20-107.3. Because the dispute regarding the property involved classifying the increase in the value of the property during the marriage and after the separation, the consideration of the values on dates other than the date of the hearing served a different purpose (classification) than did the valuation on the date of the hearing (valuation). Thus, husband was not required to move the court for use of an alternative valuation date.
Trial court erred in failing to classify as either marital, separate, or hybrid property a $30,000 home equity credit line that wife took out on the marital residence during the separation of the parties, and erred in failing to consider that debt when valuing the marital residence, instead relying solely on the assessed value.
2010---Gilliam v. McGrady, Supreme Ct. of Va., Rec. No. 090958
The Court of Appeals erred in holding that debts acquired during the marriage are afforded the same "marital presumption" as assets acquired during the marriage. No such presumption exists with respect to the classification of debts incurred by spouses, individually or jointly, during marriage. Instead, traditional rules concerning the allocation of the burden of proof apply. Thus, the party proving that a debt was jointly incurred makes a prima facie showing that the debt is marital, shifting to the party contending otherwise the burden of persuading the court that the debt was separate. Conversely, proof that a debt was incurred by a single spouse makes a prima facie showing that the debt is separate, shifting to the party contending otherwise the burden of persuading the court that it was marital. In making its decision, the court will be guided by the factors set forth in Va. Code§20-107.3(E) "in order to arrive at a fair and equitable monetary award."
2009---Layne v. Layne, Va. Ct. of Appeals, Unpublished, No. 0978-09-3
The trial court did not err in holding that $44,000 in student loan debt incurred by wife during the marriage was marital debt and therefore subject to division. Although husband argued that he should not be responsible for the debt because he would not benefit from wife's education, evidence showed that wife's tuition and books were paid for through the graduate program and that the loan debt was used to maintain the household while she went to school. In determining whether a debt is marital or separate, the trial court looks to the purpose of the original debt and who benefited from it, (citing Gilliam v. McGrady, 53 Va. App. 476 (2009)).
2007---Cote v. Cote, 2007 Va. App. Unpublished, 85
Trial court did not err in finding Husband responsible for $100,000 in debt incurred on a home equity line of credit prior to the parties' final separation. Husband had exclusive use of the equity line funds and offered nothing to support his testimony that he used the funds at issue for marital expenses.
2007---Harrison v. Allegretto, 2007 Va. App. Unpublished, 32
Trial court did not err by failing to apportion marital debt paid by Husband after the parties separated when making the equitable distribution award. Husband presented no documentation addressing the basis for the debts or substantiating his claim that the debts were marital.
2007---Lesesne v. Zablocki, 2007 Va. App. Unpublished, 6
The trial court did not err in distributing parties' marital debt equally. Debts incurred during the marriage are presumed to be marital debt and Wife bore the burden of proving that credit card and other consumer debts were Husband's separate property.
1996---Hayes v. Hayes, 21 Va. App. 515
Debt owed by husband to wife, which husband incurred for purposes of paying child support to his former spouse and to improve his separate property, was husband’s separate debt.
1996---Theismann v. Theismann, 22 Va. App. 557
If separate property is re-titled in the names of both parties, the non-owning spouse must prove a gift by clear and convincing evidence. The evidence must show (1) intention, (2) delivery or transfer, and (3) acceptance.
2012--- Sfreddo v. Sfreddo, 59 Va. App. 471
Trial court erred in classifying stock that husband received by gift during the marriage as marital property, based on its findings that no corporate donative intent existed, and that consideration was paid for the transfer.
The trial court found that, though husband’s mother, the sole stockholder of the company at the time of the transfer, intended the transfer to be a gift, husband was nonetheless required to prove that the corporation itself intended the gift. However, a corporation can only act through its officers and agents. Corporate intent is shown by the actions and statements of the officers, directors, and employees who are in positions of authority or have apparent authority to make policy for the corporation. Husband’s mother, brother, and husband himself, the only directors of the corporation, all testified that the transfer by the mother was intended to be a gift. Though the corporation minutes reflected a “sale” of the stock for consideration, evidence revealed that the consideration was nominal only. Thus, the trial court erred in finding a lack of corporate donative intent.
The trial court also erred in finding that the nominal consideration paid by husband for the stock, as reflected in the corporate minutes, was inconsistent with a gift. A gift includes a voluntary transfer of real or personal property without any consideration or without valuable consideration. Although Virginia has long followed the theory in contract cases that even a mere “peppercorn” suffices as consideration, it has also held that a sale for only nominal consideration may lack a bargain, and thus be a gift. Where nominal consideration and the surrounding circumstances of a contract demonstrate a gift rather than a bargained-for sale occurred, the court should find the transaction constitutes a gift. Here, the corporate minutes reflected that Husband “purchased” the stock at a par value of $1.00 per share, despite the stock’s fair market value of over $7,000 per share at the time of sale. Moreover, all directors testified that the transfer was intended as a gift.
2011--- Pratt v. Pratt, Va. Ct. of Appeals, Unpublished, No. 2394-10-4
The trial court erred in holding that wife’s consistent use of an automobile was sufficient evidence that husband gifted the automobile from the marital estate to her separate estate. The auto was acquired during the marriage, paid for from husband’s inheritance, and later titled in joint names. Evidence that she was the primary user of the vehicle suggested nothing more than husband’s intent to provide wife with use of the car, not a gift thereof.
2011---Frye v. Frye, Va. Ct. of Appeals, Unpublished, No. 1829-10-4
The trial court did not err in classifying land purchased during the marriage but subsequently retitled into husband’s name alone as marital. Though husband introduced the deed by which the parties transferred title into his sole name, the deed expressly stated that the transfer was made for estate purposes. Neither the deed, nor any other evidence presented by husband showed any donative intent on wife’s part.
2011--- Prizzia v. Prizzia, Va. Ct. of Appeals, Rec. No. 1343-10-2
The trial court did not err in finding that husband had gifted his separate interest in the marital residence to the marital estate. The court found the following evidence sufficient to establish husband’s donative intent: (i) the residence was jointly titled; (ii) the parties used wife’s separate funds to pay expenses in order to save husband’s salary for mortgage repayment; (iii) and husband’s testimony that the parties agreed together to pay off the house “because [they] loved it so much.”
2010---Leake v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0737-09-4
The trial court did not err in finding that wife had not gifted any portion of the personal property in the marital residence to husband by making statements upon their marriage that husband now “owned everything that she owned,” and that husband “now owned a lot of nice stuff.” Husband had the burden of proving donative intent, delivery, and acceptance by clear and convincing evidence. Husband failed to meet that burden, as he admitted in his testimony that he was not sure whether wife had intended to make a gift of half-ownership or full ownership, and further maintained, albeit alternatively, that the property was now his because wife had abandoned it when she vacated the marital residence. The trial court further noted that “consideration must be given to the context of a conversation between either an about to be married couple or a newly married couple attempting to decide what items a party is to bring into the other’s residence,” and determined that wife’s statements were merely a way of saying that husband had “free use of and access to the items already in the furnished house.”
2009---Jones v. Jones, 2009 Va. App. Unpublished, 195
Trial court erred in finding that Wife proved by clear and convincing evidence that a jointly titled investment account and jointly titled real property, each purchased with Husband's separate funds, were gifts and therefore marital property. Access to or use of an account is just that - no gift necessarily follows from access or use. Evidence of joint ownership was not sufficient to prove gifts.
2009---Biernot v. Biernot, 2009 Va. App. Unpublished, 88
Trial court did not err in finding a real estate parcel owned by the parties was hybrid property based on testimony by the Husband that, after he and Wife made payments of the purchase price with marital funds for two years, Husband's father "gave him the property outright." The Court could "implicitly conclude" from the evidence that the parties ceased making payments to Husband's parents in 1976, and could "logically infer" that the suspension of those payments coincided with and resulted from Husband's father having forgiven the remainder of the purchase price as a gift to Husband.
2007---Lesesne v. Zablocki, 2007 Va. App. Unpublished, 6
Trial court erred in finding that Husband transferred to Wife as a gift Husband's separate interest in the marital home at the time of refinancing. In light of Husband's testimony that re-titling was used as a mechanism to transfer property at this death and that he had no intent of gifting his separate interest in the property to the Wife, Wife's mere belief, uncorroborated by other evidence, that Husband gifted his separate interest in the marital home was insufficient to prove donative intent by clear and convincing evidence.
2004---Cirrito v. Cirrito, 44 Va. App. 287
Trial court did not err in holding that wife failed to prove that the retitling of property in joint names constituted a gift by husband to her. Husband testified that he retitled the property solely to guard against creditor seizure and to further protect his assets. Although wife testified that husband intended the retitling as a gift, the court was free to disregard her testimony as less credible than husband's.
2005---Wiese v. Wiese, 46 Va. App. 399
Once a party claiming separate interest retraces his contribution, the burden shifts to the other party to prove a gift. The three elements of a gift are (1) intention, (2) delivery/transfer, and (3) acceptance.
2003---Utsch v. Utsch, 266 Va. 234
Because the text of a deed of gift proves by clear and convincing evidence the intent of a Husband to jointly title a marital residence and proves the donative intent of the Husband in making the transfer, the Court of Appeals erred in finding the instrument ambiguous in certain respects and in
directing that parole evidence be used in interpreting it. The conveyance was made by deed of gift and recited love and affection as consideration for the transfer. Additionally, the deed of gift recited that the conveyance was exempt from recordation taxes under Va. Code §58.1-811(D).
2002---Utsch v. Utsch, 38 Va. App. 450
Husband's house was re-titled in both names. Wife must prove gift for property to be classified as marital. No presumption of gift from re-titling. Va. Code §20-107.3(A)(3)(g).
1999---Kelln v. Kelln, 30 Va. App. 113
Marital property can be transformed into separate property under the terms of a revocable trust agreement executed during a marriage. However, it is not enough to merely change legal title. Where the facts clearly and unambiguously support the conclusion that one of the parties has relinquished all right and interest in marital property and has transferred those rights unconditionally to the other, to the exclusion of the donor’s continuing claim upon the property as a marital asset pursuant to Va. Code § 20- 107.3, a separate property right will be found to exist. Equivocal evidence of intent, including evidence of a purpose unrelated to the making of a gift, may defeat a claim that the property is separate. Where evidence of intent to relinquish all present and future dominion over the property so as to remove it from the marital estate is lacking, the presumption of Va. Code § 20-107.3(A)(2) that property acquired by either spouse during a marriage is marital remains unrebutted.
Trial court erred in classifying as separate property certain assets that were divided into equal shares and transferred during the marriage into two, separate inter vivos trusts owned by husband and wife, respectively. The agreement that set up the revocable trusts was clearly a mechanism intended to enable the parties to take advantage of certain tax code provisions in order to minimize federal estate tax liabilities upon either party’s death, and did not express an intent by either party to make a “gift” to the other of the divided and transferred shares. The agreement lacked language of clear donative intent, and the fact that the trusts were revocable further rebutted the notion that either party had relinquished all rights and interest to the separate shares that were transferred into the other party’s trust.
1996---Calmes v. Calmes, Va. Ct. of Appeals, Unpublished, No. 2820-95-1
Trial court did not err in finding that husband gifted his personal injury award to the marriage, where evidence revealed (i) that husband deposited the award in a joint account, (ii) that money from the award was used to pay for marital assets, (iii) that the parties’ financial advisor invested money from the award after meeting with both parties and rendering advice based on the joint goals of the parties, and (iv) that the funds would have automatically passed to wife if husband had died.
1996---DeWitt v. DeWitt, Va. Ct. of Appeals, Unpublished, No. 1636-95-4
Trial court erred in holding that husband intended the deposit into joint accounts of money that husband inherited from his father as a gift to wife. Although husband testified at his deposition that his placing the money in joint accounts was "an act of the heart," he disavowed that statement later in the deposition, indicating that it may have had a legal context that did not describe his motives. He further testified that an investment counselor had advised him to place the money in joint accounts, and that he did so because he trusted that the relationship with wife would last. That evidence alone fell short of "clear and convincing" evidence necessary to establish a "gift." Furthermore, in determining whether a gift was intended, the trial court incorrectly relied on the lack of any express agreements or understandings between the parties as to the classification of the funds in the event that the marriage did not last, as doing so improperly shifted the burden to husband to prove the absence of a gift.
1995--- Thomas v. Thomas, Va. Ct. of Appeals, Unpublished, No. 1147-95-1
Trial court erred in ruling that a house purchased by wife after the separation of the parties with moneys from an account titled solely in her name was wife’s separate property, where the money used for the purchase of the house was money that husband gave to wife for purposes of avoiding his creditors and to hold and use subject to his discretion.
1987--- Wagner v. Wagner , 4 Va. App. 397
Trial court erred in classifying as wife’s separate property interest in a shopping center that she initially acquired during the marriage through a purchase note to her father. Despite the fact that her father later forgave the obligation under the note, said forgiveness did not operate to convert the acquisition into a gift for equitable distribution purposes. [Note: This case was decided prior to the 1988 legislative amendments to Va. Code § 20-107.3 that created a “hybrid” species of property.]
2011--- Pacot v. Pacot, Va. Ct. of Appeals, Unpublished, No. 0642-11-3
The trial court erred in classifying husband’s business as hybrid property. Husband incorporated the business prior to the marriage, and remained sole stockholder throughout the marriage. Wife presented no evidence of the value of the business at the time of the marriage, nor evidence with regard to any assets owned or debt incurred at the time of the marriage. Without evidence of the value of the company at the time of the marriage, the court could not determine whether the business had increased in value during the marriage through husband’s personal efforts. Thus, the trial court erred in finding that wife met her burden of proving the business to be hybrid property.
2011--- Ranjbar v. Ranjbar, Va. Ct. of Appeals, Unpublished, No. 2675-10-2
The trial court erred in classifying parties' marital residence as hybrid property and awarding wife 45% of the equity therein, where evidence established that husband purchased the house in full, with cash, prior to the marriage, and that the parties had made no improvements to the home. Wife's testimony regarding her duties of cleaning and maintaining the home was not sufficient proof of "personal efforts" contributing to an increase in the value of the property.
2010---Olsen v. Mackay, Va. Ct. of Appeals, Unpublished, No. 1553-09-4
Trial court did not err in classifying the $250,000 in proceeds that Husband received from settling his wrongful termination suit with the federal government as marital property. The stipulated settlement stated that the $250,000 "represented the entire amount of settlement, including, but not limited to any claims for back pay, front pay, employment benefits, damages, interest, costs, and attorney's fees." Husband attempted to argue that, because he had been reinstated to his position and awarded back pay prior to the settlement of remaining claims, and because his post-termination employment in the private sector rendered him ineligible for further back pay under federal law, that the settlement proceeds he received must have been for non-economic loss, and thus, separate property. However, the trial court looked to the plain language of the stipulated settlement, which addressed only economic losses, including back pay, and made no mention of non-economic losses. Thus, the trial court did not err in holding, pursuant to Va. Code §20-107.3(H), that the proceeds were marital property
2009---Duva v. Duva, 55 Va. App. 286
One acquires property as either separate or marital, not as hybrid property. The concept of hybrid property is relevant only after the initial classification is determined, such as when income is derived from separate property, when separate and marital property are commingled, when separate property is retitled in joint names, or when separate property is commingled into newly acquired property. If hybrid property were an original classification category, the marital and separate property presumptions that apply based on the acquisition of property would be meaningless.
2009---Layne v. Layne, Va. Ct. of Appeals, Unpublished, No. 0978-09-3
The trial court did not err in concluding that wife met her burden of proving that a condominium, acquired by husband prior to the marriage, was hybrid property due to increases in value resulting from substantial personal efforts during the marriage. The parties resided in the condo for the first year of their marriage, then maintained it as rental property. The trial court found that wife's assistance in finding renters, leasing the property, calling repairmen, collecting rent, and writing checks for the mortgage constituted significant personal efforts sufficient to transmute the increase in the value of the condo to marital property. Furthermore, the parties' joint funds were used to reduce the mortgage owed on the property.
2009---Biernot v. Biernot, 2009 Va. App. Unpublished, 88
Trial court did not err in finding a real estate parcel owned by the parties was hybrid property based on testimony by the Husband that, after he and Wife made payments of the purchase price with marital funds for two years, Husband's father "gave him the property outright." The Court could "implicitly conclude" from the evidence that the parties ceased making payments to Husband's parents in 1976, and could "logically infer" that the suspension of those payments coincided with and resulted from Husband's father having forgiven the remainder of the purchase price as a gift to Husband.
2008---Chretien v. Chretien, 53 Va. App. 200
Va. Code §20-107.3(H) expressly provides that a personal injury recovery is part marital and part separate property. Due to the overall presumption in favor of martial property, the party alleging that some portion of a personal injury recovery is separate property has the burden of proving what, if any, portion of that recovery is not attributable to lost wages or uncompensated medical expenses, and thus, separate property.
2003---Fowlkes v. Fowlkes, 42 Va. App. 1
Trial court erred in classifying wife’s residence as part marital and part separate property as the result of an addition, which husband paid for in part with separate funds prior to the marriage, but which wasn’t completed until after the marriage. Both parties conceded that wife’s residence, with the exception of the addition, was separate property, and both parties conceded that the addition was paid for with separate, pre-marital funds. Although wife previously agreed that she would re-title the residence in her and husband’s name in exchange for husband’s separate property contributions for the addition, she ultimately refused to do so after the marriage and the completion of the addition. The trial court erred in holding that the building of the addition constituted a commingling of marital property with separate property, as the addition itself was not marital, but separate, because it was purchased with separate funds. Thus, the addition constituted merely the commingling of wife’s separate property with husband’s separate property, leaving no marital property for the court to divide.