John Mitchell Burgess v Shirley Clarke Burgess

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
JOHN MITCHELL BURGESS
MEMORANDUM OPINION* BY
v. 	Record No. 1813-99-3 	JUDGE RUDOLPH BUMGARDNER, III
MAY 23, 2000
SHIRLEY CLARKE BURGESS
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Dixon L. Foster, Judge Designate
George W. Townsend, III, for appellant.
R. Scott Pugh (Valerie J. Mayo; Mayo & Mayo,
on brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
John M. Burgess appeals an equitable distribution award
arguing the trial court erred in classifying and valuing parcels
of real property and in not establishing a total value of the
marital estate. 	He also challenges the trial court's use of the
wife's property valuations. 	Both parties contend the trial
court erred in reducing the total value of the marital estate by
$66,000 before dividing it. 	We conclude the reduction of the
value of the marital estate was error, and we remand the cause
for reconsideration of its division of the marital estate.
The parties met September 24, 1994, married August 9, 1996,
separated May 25, 1998, and the wife filed for divorce on August

28, 1998. 	The wife earned approximately $35,000 and owned a
house, a rental property, a bank account, and a car. 	She had a
small credit-card debt. 	The husband earned approximately
$25,500 per year farming and hauling. 	He had a bank account, a
truck, and a rental property. 	The parties lived in the wife's
house, and the husband paid her approximately $300 per month for
expenses.
The wife submitted a request for admissions that asked
whether an attached list of their property was "an accurate and
complete list of the property and debts of the parties." 	The
husband did not reply to the request for admissions. 	The trial
court granted a motion to deem the request admitted except as
contradicted by the husband's answers to discovery
interrogatories. 	No contradictions were noted.
No transcript was made of the equitable distribution
hearing, so the record does not provide the verbatim record of
the testimony and incidents of the hearing. 	However, the
statement of facts, which the trial court certified, reflects
that the trial court properly classified and valued the various
items of property as required by Code § 20-107.3. 	Using the
wife's Exhibit 1 "Real and Personal Property and Accounts" as a
list, the trial court classified and valued, line by line, each
item of property. 	Trial courts are required to classify the
parties' property, and assign it a value. 	See Marion v. Marion,
11 Va. App. 659, 665, 401 S.E.2d 432, 436 (1991).
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The husband's allegation that the trial court erred in
admitting the valuations presented in the wife's request for
admissions is without merit. 	See Rule 4:11(a) (each submitted
admission "is admitted unless, within 21 days . . . the party to
whom the request is directed serves . . . a written answer or
objection . . ."). 	While the trial court accepted most of the
values assigned by the wife in her Exhibit 1, it altered and
adjusted some values as noted in the findings of fact. 	The
trial court gave the husband the opportunity to object to the
wife's valuations, but he failed to present objections and did
not present any contradictory evidence. 	When the trial court
made its ruling, item by item, the husband still did not specify
his objections to the rulings.
The evidence in the record supports the classification and
valuations of the parties' real property. 	The trial court
classified and valued the parties' real estate: 	the Chandler's
Mill property, marital property, valued at $49,000; the Kings
Lane property, marital property, valued at $30,187.1; the
Lutreville property, hybrid property, valued at $53,056.57; and
the Poplar Hill property, hybrid property, allocated as $2,000
marital property and $28,780 as the wife's separate property.
Similarly, it supports the determinations for the personal
property and for the debts of the parties. 	On this record made,
we cannot say that the trial court abused its discretion in
classifying and valuing the marital estate.
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The total value of the marital estate was $248,553.41.
However, before allocating that sum between the parties the
trial court announced that it was reducing the total value by
$66,000. 	The trial court explained, "an adjustment of $66,000
downwards in the total of the marital property equity and values
is appropriate based upon the totality of the evidence including
the short length of the marriage and the contributions of the
parties to the marital assets prior to transmutation and during
the marriage before calculating a lump sum award." 	From the
reduced amount, the trial court deducted the value of the
property in the wife's possession; then it allocated half of
that remainder to each party.
Both parties appeal the trial court's reduction of the
marital estate by $66,000 before distributing it. 	The husband
argues the determination was inconsistent with the factors
identified in Code § 20-107.3, but does not otherwise specify
his objection. 	The wife argues the arbitrary reduction was an
abuse of discretion. 	She requests that we award her half the
total value of the estate.
A decision regarding equitable distribution rests within
the sound discretion of the trial court, and we will not disturb
it unless it is plainly wrong or without evidence to support it.
See McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713,
715 (1994). 	"Unless it appears from the record that the trial
judge has not considered or has misapplied one of the statutory
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mandates, this Court will not reverse on appeal." 	Ellington v.
Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989).
After the trial court classifies and values the marital
estate, it must divide the estate equitably in accordance with
the factors in Code § 20-107.3(E). 	In this case, the trial
court relied upon factors listed in that subsection to reduce
its valuation of the marital estate. 	The trial court emphasized
the duration of the marriage, the parties' relative debts, and
their contributions to the marital estate as considerations.
These are some of the considerations under Code § 20-107.3(E),
but the trial court erred when it used them to value the estate
rather than to apportion it. 	The net effect was to reduce the
total award decreed to the wife.
"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) (citing Papuchis v.
Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986)). 	The
trial court is vested with broad discretion to divide equally
the assets or "to make a substantially disparate division of
assets" pursuant to Code § 20-107.3(E). 	Id. (citing Aster v.
Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 837 (1988)). 	The trial
court may not, however, reduce the value of the estate to the
benefit of one party by adjusting the value of the marital
estate even if it relies on factors that could permit it to
decree an unequal distribution.
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Based on the record, we affirm the classifications and
valuations of the marital estate. 	We conclude the trial court
proceeded incorrectly by reducing the marital estate before
decreeing equitable distribution. 	Because the trial court did
not apply the factors in Code § 20-107.3(E) at the proper stage
of its deliberations, we reverse and remand for reconsideration
in light of this opinion.
Affirmed in part,
reversed in part,
and remanded.
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