Antoinette J. Ferris v Charles W. Ferris, III

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Richmond, Virginia
ANTOINETTE J. FERRIS
v. 	Record No. 1617-94-2 	MEMORANDUM OPINION* BY
JUDGE JOHANNA L. FITZPATRICK
CHARLES W. FERRIS, III 	MARCH 5, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
James Emmett Anderson, for appellant.
Denis F. Soden (Michael S. Huberman;
Spinella, Owings & Shaia, on brief), for
appellee.
*Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
In this domestic appeal, Antoinette J. Ferris (wife) argues
that the trial court erred in: 	(1) awarding wife only twenty
percent of the marital assets; (2) ordering wife to reimburse
Charles W. Ferris, III (husband) for payments made by husband on
marital assets during the pendency of the divorce; (3)
classifying the parties' antique wooden bed as husband's separate
property; (4) refusing to grant wife a continuance; (5) excluding
husband's retirement plans from the marital estate and failing to
award wife a percentage of those plans; (6) valuing the parties'
condominium at the tax assessment value; (7) ordering wife to pay
husband twenty percent of the negative equity in the parties'
condominium; and (8) failing to award wife spousal support and
attorney's fees. 	For the reasons that follow, we affirm the

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trial court.
BACKGROUND
The parties married on July 8, 1988 in Chesterfield County.
After the marriage, wife adopted husband's daughter, Betsy, and
husband adopted wife's daughter, Rachel. 	The parties separated
on January 23, 1992, when husband left the marital residence.
Before the marriage, wife worked full time as a hairdresser
and earned $20,000 in 1987. 	Her assets included a 1988 Ford
Escort and some antique furniture. 	Husband worked as an engineer
for C&P Telephone Co., earning a salary of $56,000 per year.
Husband's assets at the time of the marriage included a house on
Ewes Court in Richmond, assessed at $112,200; a stock option
plan; a 401(k) plan; a Bell Atlantic retirement plan; and
insurance proceeds and settlement proceeds of over $490,000
received after the death of his first wife.
During the marriage, the parties acquired three additional
properties: 	a house on Stuart Avenue in Richmond, assessed at
$216,000; a condominium in Ocean View, assessed at $79,470; and a
lakefront property in Louisa County, assessed at $108,000. 	Both
parties purchased the Stuart Avenue and Louisa County properties
and owned them as tenants by the entirety. 	Husband began
purchasing the condominium before the marriage, and the original
deed of trust is solely in his name. 	After the marriage, husband
gifted the condominium to himself and wife as tenants by the
entirety.

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Husband was the primary source of income, and wife
maintained the household and cared for the children. 	After
quitting her full-time job in August 1988, wife continued to work
part time at home. 	Husband testified that she made between $150
to $200 per month cutting hair at home while wife testified that
she brought in about $500 per month. 	Wife also participated in
renovating the Stuart Avenue house.
After the parties separated, husband continued making
mortgage, insurance, tax, and utility payments on the parties'
properties. 	Husband testified that the mortgage obligations
alone totaled over $70,000 during the period of separation.
Additionally, husband paid off the parties' credit card debt,
which totaled over $7,300. 	Although wife did not make any
mortgage, insurance, or tax payments, she paid utility bills on
the Stuart Avenue property, where she was living, beginning in
June 1992. 	She also paid some utility bills on the Louisa County
and Ocean View properties. 	After the parties separated, wife
obtained full-time employment at a car dealership, where she
averages $1,100 per month.
Husband presented numerous exhibits detailing the parties'
assets. 	Husband estimated that his monetary contributions
represented ninety-seven percent of the total financial
contributions and that his nonmonetary contributions were
sixty-one percent. 	Husband's nonmonetary contributions included
performing repairs on the parties' properties, keeping financial

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records, helping the children with their homework, and helping
the children get ready for bed and school. 	Wife's testimony was
that her nonmonetary contributions to the marriage included
housekeeping, child care, and helping to renovate the parties'
Stuart Avenue home.
In a letter opinion dated February 1, 1994, the trial court
awarded husband a divorce based on separation for more than one
year; granted husband eighty percent and wife twenty percent of
the marital assets; ordered wife to pay twenty percent of the
negative equity on the Ocean View condominium; ordered wife to
reimburse husband for fifty percent of maintenance payments made
during the pendency of the divorce; and awarded husband his
401(k) plan and Bell Atlantic retirement plan. 	In a July 25,
1994 order, the trial court offset the sums owed by wife against
her twenty percent share of the marital estate; credited her with
one-half of the tax benefits on the marital property and the
utility bills she paid; and ordered husband to pay wife a
monetary award of $16,370.55.
DIVISION OF MARITAL ASSETS
Wife argues that the trial court erred in awarding her only
twenty percent of the marital assets in light of her substantial
contributions to the marriage.
In dividing marital property and determining the amount of
any monetary award, the trial court must consider the factors in
Code § 20-107.3(E). 	Alphin v. Alphin, 15 Va. App. 395, 403, 424

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S.E.2d 572, 576 (1992). 	"Unless it appears from the record that
the chancellor has abused his discretion or has failed to
consider or has misapplied one of the statutory factors, his
determination will not be reversed on appeal." 	Klein v. Klein,
11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). 	Virginia law
does not require an equal division of marital assets. 	Papuchis
v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830-31 (1986).
In this case, the record supports the trial court's division
of the marital property--eighty percent to husband and twenty
percent to wife. 	The duration of this marriage was only
three-and-one-half years. 	The evidence established that
husband's monetary contributions to the marriage and the
acquisition and maintenance of marital property were
substantially greater than wife's. 	Specifically, husband
contributed significant amounts of his separate property to buy
the Stuart Avenue house, the Louisa County house, and the Ocean
View condominium. 	Husband's nonmonetary contributions to the
marriage were also significant in that he performed repairs, kept
the parties' financial records, and also cared for the children.
Wife's monetary contributions to the marriage were minimal, and
her nonmonetary contributions included caring for the children
and performing household duties. 	Under these circumstances, the
trial court did not abuse its discretion in determining the
weight to be accorded to the parties' contributions and in
dividing the marital estate.

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REIMBURSEMENT OF POST-SEPARATION EXPENSES
Wife next argues that the trial court erred in ordering her
to reimburse husband for fifty percent of mortgage, insurance,
tax, and utility payments made by husband on marital property
during the pendency of the divorce. 	We disagree.
A trial court must consider "[t]he contributions, monetary
and nonmonetary, of each party in the acquisition and care and
maintenance of such marital property of the parties" in
determining the amount of any monetary award. 	Code
§ 20-107.3(E)(2) (emphasis added). 	Additionally, Code
§ 20-107.3(C) provides that the trial court has 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
marriage." 	No abuse of discretion occurred in this case because
the trial court also credited wife with utility payments she made
on the parties' properties in determining the amount of the
monetary award. 	Wife's argument that husband used marital funds
to pay post-separation expenses is without merit as the evidence
clearly established that husband used his separate,
post-separation earnings to make payments on the marital
property.
CLASSIFICATION OF ANTIQUE WOODEN BED
Wife asserts that the trial court misclassified an antique
wooden bed owned by the parties.
On August 28, 1989, the parties purchased an antique wooden

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bed from Gates Antiques for $3,807.50 with marital funds.
Husband estimated the value of the bed at $3,500 and admitted
that the bed was marital property. 	The trial court classified
the bed as husband's separate property and awarded the bed to
him. 	Additionally, during the marriage, husband bought wife a
diamond ring for $8,710.32 on July 5, 1989, with marital funds.
The trial court found that the ring was wife's separate property
and awarded the ring to her.
"Property acquired during the marriage is presumed to be
marital property, unless there is sufficient evidence that it is
separate property." 	Lee v. Lee, 13 Va. App. 118, 121-22, 408
S.E.2d 769, 771 (1991). 	The trial court erred in classifying
these properties as separate. 	The antique wooden bed and the
diamond ring were clearly marital property because they were
acquired during the marriage with marital funds and before the
parties separated. 	However, the errors become harmless when
viewed together, as the trial court awarded wife the value of the
diamond ring, which exceeded that of the bed.
DENIAL OF CONTINUANCE
Wife next contends that the trial court erred in refusing to
grant a continuance so that wife's new attorney could prepare for
the equitable distribution hearing.
The record establishes that the trial court approved the
withdrawal of wife's first attorney on June 29, 1993. 	Wife did
not hire another attorney until October 19, 1993, two weeks

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before the equitable distribution hearing scheduled for
November 3, 1993. 	In denying wife's attorney's request for a
continuance of the trial date, the trial judge stated as follows:
The Court has set deadlines, and the fact
that you came into it late is an unfortunate
one. 	If one party sits and doesn't do
anything until the deadline and then gets it
extended, we would never get anything done
that way. . . . When you get into the case
you have to be aware of the trial
proceedings, pretrial orders that have been
entered with reference to deadlines for
putting in evidence, and if you can't comply
with it, you ought not get into it.
"The decision whether to grant a continuance is a matter
within the sound discretion of the trial court. 	Abuse of
discretion and prejudice to the complaining party are essential
to reversal." 	Venable v. Venable, 2 Va. App. 178, 181, 342
S.E.2d 646, 648 (1986). 	In the instant case, wife delayed for
over three months after the withdrawal of her first attorney
before retaining a new attorney. 	Her failure to designate a new
attorney until immediately before the scheduled hearing resulted
in the lack of preparation time, not the trial court's refusal to
grant a continuance.
EXCLUSION OF RETIREMENT PLANS FROM MARITAL ESTATE
Wife also argues that the trial court erred in excluding
husband's 401(k) plan and Bell Atlantic retirement plan from the
marital estate and in failing to award her a percentage of those
plans.
Husband participated in a 401(k) plan with his employer both

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before and during the marriage. 	Husband's evidence established
that the value of the plan in December 1989 was $31,762.20 and
that the value in December 1991 was $21,703.38. 	Thus, when the
parties separated in January 1992, the plan had decreased in
value approximately $10,000 due to the parties' withdrawal of
$20,000 from the plan in 1991 to pay for household, tuition, and
mortgage expenses. 	Husband's evidence also showed that his Bell
Atlantic retirement plan increased in value approximately $8,200
between the date of marriage and the date of separation.
Pursuant to Code § 20-107.3(G)(1), the trial judge found "it
equitable to award the 401-K Plan and the Bell Atlantic
Management Pension Plan to [husband]."
"Code § 20-107.3(G) provides that, upon consideration of the
factors set forth in Code § 20-107.3(E), the court may direct
payment of up to fifty percent of the 'marital share' of a
party's pension [or retirement benefits]." 	Gamer v. Gamer, 16
Va. App. 335, 342, 429 S.E.2d 618, 624 (1993) (emphasis added).
This Court relies "on the trial judge's discretion in weighing
the particular circumstances of each case" in determining whether
a distribution of pension assets is fair. 	Aster v. Gross, 7 Va.
App. 1, 7-8, 371 S.E.2d 833, 837 (1988).
Although husband's pension assets were not specifically
listed as marital property, neither were they classified as
husband's separate property. 	The trial judge's treatment of
husband's pension assets in a separate paragraph of his letter

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opinion was done in a manner that indicated he considered
husband's pension assets as marital property, but did not award
wife a portion of them. 	Husband's evidence established that wife
benefitted from the $20,000 withdrawn from his 401(k) account
during the marriage and that his 401(k) plan decreased in value
in excess of the increase in value of his Bell Atlantic
retirement plan. 	Thus, the trial court did not err in failing to
award wife an additional percentage of husband's pension assets.
VALUATION OF OCEAN VIEW CONDOMINIUM
Next, wife contends that the trial court erred in valuing
the Ocean View condominium at its tax assessed value of $79,470.
The evidence established that the tax assessment value of
the condominium decreased from $114,000 in 1992 to $79,470 in
1993. 	In her deposition, wife testified that the parties
purchased the condominium for $120,000 and that its value "might
have stayed the same, but it wouldn't have gone down that
severe." 	The only other evidence of the condominium's value in
the record was a 1993 listing agreement with a realtor,
indicating a sale price of $126,300.
In this case, the trial court was not plainly wrong in
accepting the 1993 tax assessment value as evidence of the value
of the condominium and in giving less weight to wife's testimony
and the listing agreement. 	A party claiming an interest in
marital property or claiming that the trial court erred in
evaluating an item of marital property has the duty to prove the

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value of the property. 	See Bowers v. Bowers, 4 Va. App. 610,
617, 359 S.E.2d 546, 550 (1987). 	Wife offered no reliable
evidence of value and did not object to using the tax assessment
value for other marital property.
MORTGAGE ON OCEAN VIEW CONDOMINIUM
Husband's evidence proved that the Ocean View condominium
had a tax assessment value of $79,470 in 1993 and an outstanding
mortgage with a principal balance of $91,748.42. 	Thus, the
negative equity in the condominium was approximately $12,278.
The parties owned the condominium as tenants by the entirety, and
each assumed the risk that the asset might increase or decrease
in value during the marriage.
The trial court accepted husband's value of the condominium
and determined that the negative equity in the condominium should
be apportioned between the two parties. 	Because the court had
the authority to divide "the debts of the parties . . . incurred
prior to the dissolution of marriage," Code § 20-107.3(C), it did
not err in finding that wife was responsible for twenty percent
of the negative equity in the condominium.
FAILURE TO AWARD SPOUSAL SUPPORT OR ATTORNEY'S FEES
Wife contends that the trial court erred in failing to
consider her request for spousal support and in denying her
attorney's fees. 	She also argues that the trial court should
have considered husband's adulterous behavior in determining
spousal support and her inability to pay her attorney's fees.

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In wife's cross-bill of November 1992, she requested spousal
support and attorney's fees. 	However, at the final hearing held
November 3, 1993, wife failed to request the trial court to award
spousal support or attorney's fees. 	In arguing attorney's fees,
wife's counsel acknowledged that "[t]he parties should bear their
own expenses." 	Wife requested the Louisa County property and
$50,000 cash as a "fair resolution of this case." 	In its letter
opinion of February 1, 1994, the trial court ruled that the
parties were responsible for their own attorney's fees and did
not address the issue of spousal support. 	Wife filed exceptions
to the letter opinion on April 26, 1994, and objected to the
court's failure to award spousal support and attorney's fees.
We hold that the trial court did not err in failing to award
wife spousal support or attorney's fees. 	At the final hearing,
wife failed to raise the specific requests or arguments she now
raises on appeal. 	See Rule 5A:18. 	She did not request either
spousal support or a reservation of support. 	Concerning
attorney's fees, wife acknowledged the parties' responsibility to
bear their own expenses in arguing against husband's request for
attorney's fees.
Additionally, the record contains insufficient evidence to
determine wife's entitlement to spousal support and attorney's
fees. 	In determining spousal support, a trial court must
consider "[t]he earning capacity, obligations, needs and
financial resources of the parties." 	Code § 20-107.1(1). 	Wife

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failed to present any evidence of her expenses and how much
support she needed. 	She also failed to present any evidence of
the amount of attorney's fees incurred.
MOTION FOR SANCTIONS
In relation to this appeal, wife filed a motion for
sanctions against husband pursuant to Rule 5A:25(g), arguing that
husband designated unnecessarily several hundred pages of
irrelevant documents for inclusion in the appendix. 	We deny the
motion because the pages designated by husband were clearly
relevant to issues on appeal.
Accordingly, the decision of the trial court is affirmed.
Affirmed.