June Dyer Mumford v Vaughn W. Mumford, Jr.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Lemons
JUNE DYER MUMFORD
MEMORANDUM OPINION*
v. 	Record No. 1240-99-1 	PER CURIAM
NOVEMBER 2, 1999
VAUGHN W. MUMFORD, JR.
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
(John W. Wescoat, on brief), for appellant.
(C. A. Turner, III, on brief), for appellee.
June D. Mumford (wife) appeals the equitable distribution
decision of the circuit court. 	Wife contends that the trial court
(1) abused its discretion in awarding wife $24,400 in marital
assets and Vaughn W. Mumford, Jr. (husband) $84,600; and (2) erred
by crediting husband with fifteen percent of the value of the
marital residence as his separate property. 	Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. 	Accordingly, we summarily affirm the decision of
the trial court. 	See Rule 5A:27.
The evidence on equitable distribution was received by the
trial court in an ore tenus hearing. 	Wife was represented by
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

counsel, but failed to appear at the hearing and refused her
counsel's request to be deposed.
Under familiar principles we view [the]
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below. 	Where, as here, the court
hears the evidence ore tenus, its finding is
entitled to great weight and will not be
disturbed on appeal unless plainly wrong or
without evidence to support it.
Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986). 	"Fashioning an equitable
distribution award lies within the sound discretion of the trial
judge and that award will not be set aside unless it is plainly
wrong or without evidence to support it." 	Srinivasan v.
Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990).
"Unless it appears from the record that the trial judge has not
considered or has misapplied one of the statutory mandates, this
Court will not reverse on appeal." 	Ellington v. Ellington, 8 Va.
App. 48, 56, 378 S.E.2d 626, 630 (1989).
Distribution of Marital Assets
Wife does not contend that the trial court failed to
consider the statutory equitable distribution factors, but
instead argues that the court abused its discretion by awarding
husband too great a share of the marital estate. 	We find no
error.
There is no statutory presumption of equal distribution
under Virginia law. 	See Papuchis v. Papuchis, 2 Va. App. 130,
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132, 341 S.E.2d 829, 830 (1986). 	Wife failed to appear for
trial and presented no evidence concerning her rights to
equitable distribution. 	What evidence was introduced concerning
her contributions came predominantly through husband's
testimony. 	He acknowledged that wife contributed monetarily to
the marriage, and credited her with making sixty percent of the
purchases for the flea market that they operated.
Husband brought assets exceeding $100,000 to the marriage,
while wife brought only $4,000. 	Husband testified that he
reimbursed wife for that $4,000 following the sale of one of his
parcels of real estate. 	Husband used the proceeds from the sale
of these parcels to purchase the property used for the flea
market and to provide a down payment for the marital residence.
The evidence supports the finding by the trial court that
husband made the greater monetary contributions to the marriage.
The trial court also found that wife deserted the marriage
"under very egregious circumstances." 	The evidence established
that wife left the marital home when husband was in intensive
care with a ruptured aneurysm of the aorta. 	He had additional
serious health complications and remained hospitalized for three
months. 	As a result of his poor health, husband could no longer
work at the flea market as long as he did previously. 	Wife's
desertion amounted to a negative nonmonetary contribution to the
marriage, as it left husband unable to care for himself or to
resume full operation of the flea market. 	See O'Loughlin v.
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O'Loughlin, 20 Va. App. 522, 527-28, 458 S.E.2d 323, 325-26
(1995).
The trial court ruled that husband was entitled to the
inventory from the flea market. 	Wife was now living in
Tennessee and removed herself from the operation of the flea
market. 	The trial court awarded wife the vehicle in her
possession, one-half the household furnishings, and $20,399 as a
monetary award for her one-half interest in the marital share of
the marital residence. 	Wife was also assigned two debts arising
from judgments docketed against her. 	Evidence supports the
equitable distribution decision made by the trial court, and we
find no error.
Marital Residence
Husband argues that wife failed to preserve any objection
to the court's award of fifteen percent of the value of the
marital residence to husband as his separate property. 	Wife
argued below that husband failed to trace his contributions with
sufficient specificity, then argued, in the alternative, that
husband was entitled to no more than fifteen percent for his
alleged separate contributions. 	When invited by the trial court
to "bring . . . to my attention now" any legal mistakes, wife's
counsel raised only the issue whether wife's fault should be
considered in connection with the equitable distribution of the
marital estate. 	Wife's counsel endorsed the decree "Seen and
Objected To," with no objections noted. 	Having raised the issue
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in the closing argument before the trial court, wife
sufficiently preserved her objection. 	See Chawla v.
BurgerBusters, Inc., 255 Va. 616, 622-23, 499 S.E.2d 829, 832-33
(1998).
The trial court found that husband proved he contributed
$7,500 in separate funds towards the purchase of the marital
residence and was entitled to recover fifteen percent of its
equity as his separate property. 	See Code § 20-107.3(A)(3)(e).
Husband presented proof supporting his claimed contributions of
separate property. 	Wife did not present evidence contradicting
husband's claim. 	We find sufficient evidence supported the
finding of the trial court.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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