COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
PHILLIP T. LARGEN
MEMORANDUM OPINION
v. Record No. 2856-96-3 PER CURIAM
MAY 27, 1997
COLLEEN H. LARGEN (HARTIS)
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Richard C. Pattisall, Judge
(Arthur E. Smith, on brief), for appellant.
(John J. Robertson; Legal Aid Society of the
New River Valley, Inc., on brief), for
appellee.
Phillip T. Largen (husband) appeals the decision of the
circuit court classifying a Honda automobile as marital property.
Husband raises four arguments on appeal. He contends that the
trial court erred by (1) making an equitable distribution award
to Colleen H. Largen (Hartis) (wife) when she did not seek
equitable distribution of marital property or allege the
existence of an oral agreement; (2) finding that the parties
entered into an enforceable oral premarital contract; (3) finding
that husband's separately titled automobile was transmuted into
marital property by oral agreement and other factors; and (4)
determining the value of the car in the absence of any evidence.
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. Rule 5A:27.
"In reviewing an equitable distribution award, we rely
heavily on the trial judge's discretion in weighing the
particular circumstances of each case." Aster v. Gross, 7 Va.
App. 1, 8, 371 S.E.2d 833, 837 (1988). "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).
The sole issue concerns the 1991 Honda automobile titled in
husband's name at the time of the marriage. The evidence
established that husband purchased the car in 1991 but that wife
paid the entire debt of $13,111.52 two weeks prior to the
marriage and gave the title to husband. The court found that the
parties agreed to pay off the car so that they could obtain
financing on a new home. The court also found that husband
agreed to title the car in both names, but failed to do so. Wife
also paid off husband's separate debts of $6,000 and paid all
maintenance and insurance on the car. Husband was unemployed for
one year during the two-year marriage.
Pleadings
The trial court had equitable distribution jurisdiction
pursuant to husband's prayer in his cross-bill for the court to
determine the parties' property rights. See Lowe v. Lowe, 233
Va. 431, 433, 357 S.E.2d 31, 32 (1987). After finding it clearly
necessary to do so, the court bifurcated this matter, entered the
decree of divorce, and retained jurisdiction to resolve the
parties' equitable distribution. See Code 20-107.3(A).
Oral Agreement
The trial court found that the parties agreed to retitle
husband's automobile in both parties' names. Husband contends
wife failed to prove the existence of any agreement and that it
would be unenforceable because it was not in writing. See Code
20-148.
The agreement does not fail because it was not in writing.
"To be valid and enforceable, the terms of an oral agreement must
be reasonably certain, definite, and complete to enable the
parties and the courts to give the agreement exact meaning."
Richardson v. Richardson, 10 Va. App. 391, 395, 392 S.E.2d 688,
690 (1990). In the absence of any understanding that the oral
agreement will be reduced to writing, the agreement is not
unenforceable, but "the proponent of the oral contract has the
burden of proving all elements of a valid enforceable contract."
Id. at 396, 392 S.E.2d 690. The trial court found the terms of
the oral agreement sufficiently definite, as do we. Wife paid
over ninety percent of the purchase price of the automobile in
furtherance of the parties' goal to purchase a home together.
Substantial evidence supports the trial court's conclusion that
the parties agreed to jointly title the car but that husband
failed to follow through with his obligation under the agreement.
Transmutation
Husband contends that the trial court erred in finding that
the car was transmuted into marital property, as the car was
titled in his name only and wife's payments prior to the marriage
did not constitute personal efforts under Code 20-107.3(A)(3).
Husband does not challenge the court's findings that wife paid
$13,111 of the total purchase price of $14,500 and paid all
maintenance and insurance costs.
As noted above, the court found that husband failed to
retitle the car in both parties' names. But for husband's
violation of the parties' agreement, any discussion of the
classification of the car as marital property would be mere
cavil. Title alone does not sway the decision, for "whether the
property is separate or marital is determined by the statutory
definition and is not determined by legal title." Garland v.
Garland, 12 Va. App. 192, 195, 403 S.E.2d 4, 6 (1991).
[T]o disregard the parties' contributions to
the acquisition and maintenance of the
property and how and when they acquired
rights and equities in the property--whether
pre- or post-marital--is to disregard the
mandate of the statute. Nothing in Code
20-107.3 limits consideration of the
various subsection (E) factors to the time
frame of the marriage.
Floyd v. Floyd, 17 Va. App. 222, 227, 436 S.E.2d 457, 460 (1993).
"Property which is initially separate may become marital
property either by express agreement, or by the manner in which
it is maintained." McDavid v. McDavid, 19 Va. App. 406, 410-11,
451 S.E.2d 713, 716 (1994). See Westbrook v. Westbrook, 5 Va.
App. 446, 454, 364 S.E.2d 523, 528 (1988). In this case, there
was both an express, but unfulfilled, agreement and wife's
greater contributions and maintenance. We cannot say that the
trial court was plainly wrong in ruling that the automobile
purchased by husband prior to the marriage, but ninety percent
paid for and maintained by wife, was transmuted into marital
property.
Valuation
The evidence established that the car was purchased for
$14,500 in 1991 and maintained throughout the marriage. Neither
party presented evidence of the car's current value. The court
ruled that
from the evidence of the purchase price of
the vehicle, the loan payoff balance, the
plaintiff's efforts directed to the care,
maintenance and condition of the vehicle, her
use of the vehicle, pertinent periods of
timespan, depreciation and other factors
considered and within the knowledge of the
Court, that the value of the marital property
in question is $12,000, although the Court
acknowledges that neither party offered
evidence of the value of the Honda on
September 22, 1995, the date of the
evidentiary hearing.
The court's decision was not based on judicial notice of facts
not in evidence, even though the only precise value amount given
by the parties was the purchase price in 1991. Cf. Darnell v.
Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275 (1942). We cannot say
on appeal that the court's finding that the car was worth $12,000
was unsupported by the evidence.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
