Daniel G. Chretien v. Lynda Rae Chretien

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Humphreys and Powell
Argued at Richmond, Virginia
DANIEL G. CHRETIEN
OPINION BY
v. 	Record No. 1379-08-2 	JUDGE ROBERT J. HUMPHREYS
DECEMBER 30, 2008
LYNDA RAE CHRETIEN
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
(John G. Berry; Berry & Early, on brief), for appellant. Appellant
submitting on brief.
William C. Scott IV (Michie Hamlett Lowry Rasmussen & Tweel,
on brief), for appellee.
Daniel E. Chretien (“husband”) appeals the division of property made by the circuit court
pursuant to his divorce from Lynda Rae Chretien (“wife”). Husband claims that the circuit court
erred by failing to award him part of a personal injury recovery wife received during the
marriage. For the following reasons, we affirm.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable to wife, the party prevailing
below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed,
the evidence in this case establishes the following.
Husband and wife were married on June 7, 2003. On July 4, 2003, the couple was in a
motorcycle accident. At the time of the accident, husband was driving the motorcycle and wife
was riding behind him. The accident occurred when husband allowed the motorcycle to stray

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across the road’s center dividing line and struck an oncoming vehicle. Both parties sustained
serious injuries in the accident.
Husband had insurance policies with Progressive and State Farm Insurance Companies.
Wife had an insurance policy with Infinity. Wife pursued claims with all three companies and
ultimately received a total of $149,928.57. With the assistance of a financial advisor, wife
deposited the money she had received into accounts created in her name alone. At the time of
the divorce, wife had approximately $129,000 remaining from the personal injury recovery.
On August 1, 2006, wife filed for divorce. Both parties claimed that they should receive
at least a portion of the personal injury recovery as part of equitable distribution. Specifically,
the parties argued over whether the circuit court should classify the personal injury recovery as
marital or separate property. Code § 20-107.3 provides: “In the case of any personal injury or
workers’ compensation recovery of either party, the marital share as defined in subsection H of
this section shall be marital property.” Code § 20-107.3(H) defines “marital share” as
that part of the total personal injury or workers’ compensation
recovery attributable to lost wages or medical expenses to the
extent not covered by health insurance accruing 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.
Wife argued that, because Code § 20-107.3 explicitly provides that the marital share is marital
property, all proceeds from the recovery that are not part of the marital share are separate
property. Husband argued that nothing in the statute mandates that the non-marital share of the
personal injury recovery is separate property. He reasoned that such proceeds are subject to the
presumption that all property acquired during a marriage is presumed to be marital property. See
von Raab v. von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997).
The circuit court held that personal injury recoveries are presumptively separate property.
The court found that husband failed to overcome that presumption or to show that he

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substantially increased the value of the recovery through his personal efforts. Alternatively, the
court found that, even if the personal injury recovery is presumed to be marital property, wife
overcame that presumption and proved that the proceeds are separate.
The court also provided a second alternative holding, in case it was incorrect in
classifying the recovery as separate property. In the final decree of divorce, the court wrote:
[S]hould the Court be incorrect and the Proceeds are marital by
virtue of the fact that they were received during the marriage, then
the Court must consider the factors pursuant to Va. Code Ann.
§ 20-107.3(E) in determining how to divide the Proceeds. The
Court has considered all of the factors pursuant to Va. Code Ann.
§ 20-107.3(E) in making its award. Specifically, factor 11 is
compelling. The Court believes [wife’s] testimony as to how the
accident occurred and hereby finds that [husband] was negligent
and caused the accident. If the Proceeds are marital, then the Court
hereby awards all of the Proceeds to [wife] because of [husband’s]
negligence and finds that it would not be equitable to award any of
the Proceeds to [husband] as he caused the tort that led to the
serious injuries suffered by [wife].
Husband now appeals.
II. ANALYSIS
On appeal, husband makes two arguments. First, he claims that the circuit court erred in
holding that the personal injury recovery is separate property. Second, he claims that, even if the
personal injury recovery is separate property, he was entitled to a portion of the recovery because
his efforts substantially increased the amount of the recovery. We agree with husband that the
circuit court erred by classifying the personal injury recovery as wholly separate. However, we
affirm the court’s judgment because that error is harmless.
A. Classification of the Personal Injury Recovery
Code § 20-107.3(A) requires that the circuit court determine “the ownership and value of
all property, real or personal, tangible or intangible, of the parties and shall consider which of
such property is separate property, which is marital property, and which is part separate and part

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marital property.” Code § 20-107.3(A) specifically provides for the classification of personal
injury recoveries received during the marriage. It states: “The court shall classify property as
part marital property and part separate property as follows: . . . c. In the case of any personal
injury or workers’ compensation recovery of either party, the marital share as defined in
subsection H of this section shall be marital property.” Code § 20-107.3(A)(3). Subsection H
provides:
“Marital share” means that part of the total personal injury or
workers’ compensation recovery attributable to lost wages or
medical expenses to the extent not covered by health insurance
accruing 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.
Code § 20-107.3(H). The statute expressly provides that a personal injury recovery is part
marital and part separate property, and identifies the part of a personal injury recovery that is
definitively marital property. Id. The statutory scheme also makes clear that the remainder of
the recovery is separate property. See Code § 20-107.3(A)(1) (defining as separate property
“that part of any property classified as separate pursuant to subdivision A3”). Thus, in order to
divide the recovery into its separate and marital parts, the circuit court must first determine what
part of the recovery was attributable to lost wages and medical expenses not covered by health
insurance, and classify this portion as marital property. The remainder of the recovery, if any –
that portion not “attributable to lost wages or [unreimbursed] medical expenses” – is separate
property.
We hold that, due to the overall presumption in favor of marital property, see von Raab,
26 Va. App. at 248, 494 S.E.2d at 160, wife bore the burden of proving that some or all of the
personal injury recovery was separate property.1 Wife offered into evidence a letter from each
1 This position is consistent with other hybrid property cases where the burden of proof
has been addressed. In Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494 S.E.2d 135, 141

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not
of the three insurance companies notifying her of the recovery. The letter from Progressive
stated that wife’s recovery was for “injuries resulting from the motorcycle accident.” The letter
from Infinity stated that it “agreed to conclude [wife’s] claim for $21,428.57.” The letter did
specify the basis of the recovery. The letter from State Farm Insurance Company stated that it
was awarding her a recovery “for the settlement of your injury claim as a result of this accident.”
None of the information wife presented from the insurance companies identified whether any
part of her recovery was for lost wages or uncompensated medical expenses.
Further, while wife did testify that the $103,500 was specifically for “her injuries” her
own testimony actually tended to show that her recovery from Progressive and State Farm was to
compensate for lost wages and medical expenses. In response to the question, “To [Progressive
and State Farm], did you have to provide any documentation?,” wife responded, “Yes. All my
medical insurance – I mean, all my medical bills and work income and how long I was out, all
those forms.” Wife did not testify regarding any other information that she provided to the
insurance companies.
Since wife presented no evidence proving that any of the personal injury recovery was
attributable to anything other than lost wages or uncompensated medical expenses, she failed to
overcome the presumption in favor of marital property. Thus, the circuit court erred by
classifying the personal injury recovery as separate property.
(1997), we held that “[i]n order to trace the separate portion of hybrid property, a party must
prove that the claimed separate portion is identifiabl[e] . . . .” Similarly in a pension case, where
the statutory language is almost identical to the language governing personal injury awards, this
Court placed the burden of proof on the husband to show which portion of the retirement plan
was his separate property. See Frazier v. Frazier, 23 Va. App. 358, 371, 477 S.E.2d 290, 296
(1996).

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B. Harmless Error
The fact that the circuit court erred in classifying the personal injury recovery as separate
property does not mean that such error mandates reversal. The court’s error is only reversible if
it “substantially swayed” the judgment. Billips v. Commonwealth, 274 Va. 805, 810, 652 S.E.2d
99, 102 (2007). In light of the circuit court’s alternative ruling, it is clear that the error had no
effect on the ultimate judgment. The circuit court specifically found that, if the personal injury
recovery was marital property, it would have awarded the entire amount to wife pursuant to Code
§ 20-107.3(E). So long as that basis for the award is proper, the court’s error in classifying the
property is harmless because the court would have reached the same result had it classified the
recovery properly.
When dividing marital property, circuit courts are required to consider all of the factors
enumerated in Code § 20-107.3(E). However, “‘[w]hat weight, if any, to assign to this [or that]
factor in the overall decision lies within the trial court’s sound discretion.’” Robbins v. Robbins,
48 Va. App. 466, 481, 632 S.E.2d 615, 622 (2006) (quoting Owens v. Owens, 41 Va. App. 844,
859, 589 S.E.2d 488, 496 (2003)) (second alteration in original). Circuit courts have “broad
discretion” to make an equal or disparate division as long as they consider the factors in Code
§ 20-107.3(E). Marion v. Marion, 11 Va. App. 659, 663, 401 S.E.2d 432, 435 (1991).
Moreover, “Virginia law does not establish a presumption of equal distribution of marital
assets.” Matthews v. Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998).
In awarding the personal injury recovery to wife, the circuit court explicitly stated that it
had “considered all of the factors pursuant to [] Code [] § 20-107.3(E).” Using its discretion, it
gave the most weight to factor 11. Factor 11 gives the court discretion to consider “[s]uch other
factors as the court deems necessary or appropriate to consider in order to arrive at a fair and
equitable monetary award.” Code § 20-107.3(E)(11). The circuit court held that, under factor

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11, it would be inequitable to award husband any of the personal injury recovery because his
negligence caused the injury that led to the recovery. That finding was within the discretion of
the circuit court and is supported by credible evidence. Thus, the circuit court did not abuse its
discretion by awarding the personal injury recovery to wife because of husband’s negligence.2
Because the circuit court would have reached the same result if it had properly classified
the personal injury recovery as marital property, its error in classifying the recovery as separate
property is harmless.
III. CONCLUSION
For all of the reasons stated above, we hold that the circuit court erred by classifying the
personal injury recovery as separate property. However, that error was harmless because the
circuit court held that, even if the personal injury recovery should have been classified as marital
property, it would nevertheless have reached the same result by applying the factors delineated
by Code § 20-107.3(E). Therefore, we affirm the decision of the circuit court.
Affirmed.
2 Having decided this case under the doctrine of harmless error, we note that it would
have been improper to decide this case by assuming without deciding that the circuit court erred
in classifying the recovery as separate property. Husband argued that even if the recovery was
separate property, he was entitled to at least a portion of the recovery because he contributed to
its growth. See Code § 20-107.3(A)(3) (“In the case of income received from separate property
during the marriage, such income shall be marital property [] to the extent it is attributable to the
personal efforts of either party.”). Therefore, it was necessary for us to determine how the
recovery should have been classified.