COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia
JAMES D. FORD
Record No. 0458-08-1
MEMORANDUM OPINION * BY
JUDGE JERE M.H. WILLIS, JR.
NOVEMBER 18, 2008
DEBORAH A. FORD
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Jeanne S. Lauer (Inman & Strickler, PLC, on briefs), for appellant.
L. Steven Emmert (Peter V. Chiusano; Sykes, Bourdon, Ahern &
Levy, P.C.; Willcox & Savage, P.C., on brief), for appellee.
On appeal from decrees granting him a divorce from Deborah A. Ford, awarding her
spousal support, and resolving issues of equitable distribution, James D. Ford contends that the
trial court erred (1) in denying him a divorce based on adultery; (2) in awarding Deborah spousal
support without a finding that denial would impose manifest injustice; (3) in valuing the Somme
Avenue property; (4) in denying him equitable distribution credit for his payment of marital
debts, including the mortgage on the former marital residence; (5) in assessing the value of his
retirement accounts on a pre-tax basis; (6) in designating the 2006 Harley Davidson motorcycle
as joint marital property; and (7) in designating his AIG SunAmerica account as joint marital
property. We affirm the judgment of the trial court.
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting to it the benefit of any reasonable inferences.”
Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003).
The parties were married on June 21, 1980, and finally separated on May 30, 2006. In
Fall 2005, they discussed separation. At that time, James acknowledged previous extramarital
affairs. The parties continued to live together in the marital residence. On February 22, 2006,
James learned that in December 2005, Deborah had gone on a trip to California with Patrick
Watson. At that time, he moved out of the marital bedroom. He vacated the marital residence
on May 30, 2006.
In August 2005, James was laid off from his management position at Amerigroup. He
did not seek re-employment. During most of the parties’ marriage, Deborah stayed home to care
for their children. At the time of the final hearing, she was employed full time.
James sued for divorce based on adultery. Deborah filed a cross-complaint, seeking a
divorce based on adultery or constructive desertion. The trial court held that the evidence was
insufficient to prove adultery. It further held that Deborah had failed to prove constructive
desertion. It granted James a divorce based on the parties’ having lived separate and apart for
more than one year.
The parties’ assets included real estate, motor vehicles, bank accounts, and retirement
benefits. Their debts included a mortgage, loans, and credit cards. Each party presented
evidence regarding the marital estate. After considering the equitable distribution factors, the
trial court divided the marital estate equally between the parties.
Having found the evidence insufficient to prove adultery, and having considered the
statutory factors, the trial court awarded Deborah spousal support.
Grounds for divorce
James contends first that he sufficiently proved Deborah’s adultery and that the trial court
erred in denying him a divorce on that ground.
Adultery must be proved by clear and convincing evidence. Coe v. Coe, 225 Va. 616, 622,
303 S.E.2d 923, 927 (1983). “‘Raising a considerable or even strong suspicion of guilt is not
enough . . . . [T]he proof must be such as to lead the guarded discretion of a reasonable and just man
to the conclusion of guilt.’” Hughes v. Hughes, 33 Va. App. 141, 146, 531 S.E.2d 645, 647 (2000)
(quoting Haskins v. Haskins, 188 Va. 525, 531, 50 S.E.2d 437, 439 (1948) (citation omitted)).
“No divorce, annulment, or affirmation of a marriage shall be granted on the
uncorroborated testimony of the parties or either of them.” Code § 20-99. “The question of
corroboration is one of fact, the decision of which in each case depends upon the peculiar facts of
that particular case.” Pommerenke v. Pommerenke, 7 Va. App. 241, 245, 372 S.E.2d 630, 632
(1988) (citation omitted).
The trial court’s finding will be given “great weight” and will not be set aside “unless it is
plainly wrong or without evidence to support it.” Watts v. Watts, 40 Va. App. 685, 690, 581
S.E.2d 224, 227 (2003) (citation omitted).
James called Watson as a witness to corroborate Deborah’s adultery. Watson admitted
having sexual intercourse with Deborah. His testimony was the only evidence corroborating
Deborah’s admission of a “physical” relationship with him. However, Watson was served with a
subpoena immediately before the hearing. When he testified, he was ill and needed medical
attention. Having considered the witnesses and the content of their testimony, the trial court
found this evidence insufficient to prove and corroborate adultery clearly and convincingly. This
holding fell properly within the fact-finding function of the trial court and is supported by the
James next contends that the trial court erred in awarding Deborah spousal support without
first finding that the denial of support would constitute manifest injustice.
[N]o permanent maintenance and support shall be awarded from a
spouse if there exists in such spouse’s favor a ground of divorce
under the provisions of subdivision (1) of § 20-91. However, the
court may make such an award notwithstanding the existence of
such ground if the court determines from clear and convincing
evidence, that a denial of support and maintenance would
constitute a manifest injustice, based upon the respective degrees
of fault during the marriage and the relative economic
circumstances of the parties.
Code § 20-107.1.
The trial court held that James had not proven adultery as a sufficient ground for divorce, a
holding that we have upheld. James did not argue before the trial court that the proof was
nonetheless sufficient to invoke the operation of Code § 20-107.1. Therefore, we do not consider
this issue. Rule 5A:18.
Somme Avenue property
James argues that the trial court erred in valuing the Somme Avenue property. He argues
that in discovery Deborah valued this property higher than she did at trial, when she adopted the tax
assessment. James offered no evidence as to the property’s value. The trial court determined the
value was equal to the tax assessment.
A court may “choose among conflicting assessments of value as long as its finding is
supported by the evidence.” McDavid v. McDavid, 19 Va. App. 406, 413, 451 S.E.2d 713, 718
(1994). The evidence presented was credible and supports the trial court’s finding of value.
Credit for payment of marital debts
James contends that the trial court erred in denying him credit for making the mortgage
payments on the former marital residence, where Deborah resided, as required by the court’s
pendente lite order. During the course of the litigation, he was unemployed and was required to
invade his retirement funds to meet this court-ordered obligation. He argues that he is entitled
credit for these payments because he paid them from his retirement and the debt was marital. A
court is not required to give a dollar-for-dollar credit for payment of debts out of separate
property. von Raab v. von Raab, 26 Va. App. 239, 250, 494 S.E.2d 156, 161 (1997) (citing
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989)).
The trial court found that James was voluntarily unemployed and had the capacity to earn
a high income. The record supports this finding. Had he been working, James would have had
no need to invade his retirement funds to pay the mortgage. Thus, the record reflects no abuse of
discretion by the trial court in denying James credit for invading retirement accounts to fund
what he should have been able to pay out of his earnings.
Valuing husband’s retirement accounts
James next contends that the trial court erred in valuing his retirement accounts on a pre-tax
basis. He has advanced no authority in support of this position, and this contention may be
considered waived. Rule 5A:20(e). Notwithstanding this, his argument lacks merit.
James liquidated his retirement accounts after the parties’ separation. The trial court based
its value of the retirement accounts on their statement values, not the amount that was actually
received by James after deductions. It found that James was voluntarily unemployed, that had he
been working, he would not have had to liquidate his retirement funds, and that the value of those
funds would thus have been their statement values. We find no abuse of discretion in this analysis.
2006 Harley Davidson motorcycle
James next contends that the 2006 Harley Davidson motorcycle was his separate property.
The motorcycle was purchased with funds from a joint account in October 2005. James contends
that he purchased the motorcycle in anticipation of an inheritance and that he reimbursed the joint
account when he received the inheritance. He presented no documentary evidence proving that the
subsequent deposit into the joint account came from his inheritance. The trial court found this
evidence insufficient to trace the Harley Davidson purchase funds to James’s separate property.
“Under Code § 20-107.3, all property acquired during the marriage and before the last
separation of the parties is presumed to be marital property in the absence of satisfactory
evidence that it is separate property.” Hart v. Hart, 27 Va. App. 46, 61, 497 S.E.2d 496, 503
(1998). “[T]he party . . . claiming property as separate has the burden to produce satisfactory
evidence to rebut that presumption.” Rexrode v. Rexrode, 1 Va. App. 385, 392, 339 S.E.2d 544,
548 (1986). “If no evidence is presented upon which a chancellor could properly identify and
then classify an item as separate or marital property, faced with the statutory presumption and the
lack of satisfactory evidence to rebut it, the chancellor must classify the property as marital.”
Stainback v. Stainback, 11 Va. App. 13, 17, 396 S.E.2d 686, 689 (1990).
The trial court did not err in classifying the Harley Davidson motorcycle as marital
AIG SunAmerica annuity
James argues that the AIG SunAmerica annuity is his separate property, purchased with
money he inherited from his father. As with the Harley Davidson motorcycle, James offered no
evidence, other than his own testimony, tracing the annuity purchase to his inheritance. The trial
court found that James had not met his burden of proving that the annuity was separate property
and, therefore, classified it as marital. The trial court did not err.
The record supports the trial court’s findings for the grounds for divorce, the spousal
support award, and the classification and valuation of the property. Accordingly, we affirm the
judgment of the trial court.
Petty, J., concurring.
I concur in the judgment of the Court. I have chosen to write separately, however,
because I do not agree with the majority’s analysis regarding the issue of the grounds for
divorce. I also believe that the husband did not properly object to the award of spousal support
and therefore is barred from raising the issue on appeal.
Husband’s first question presented challenges the decision of the trial court to award a
divorce on the grounds of one-year separation of the parties rather than on the grounds of
adultery by the wife. We have said on too many occasions to count that it is well established that
“[w]here dual or multiple grounds for divorce exist, the trial judge can use his sound discretion
to select the grounds upon which he will grant the divorce.” Lassen v. Lassen, 8 Va. App. 502,
505, 383 S.E.2d 471, 473 (1989) (citing Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d
658, 663 (1986)); see Derby v. Derby, 8 Va. App. 19, 25, 378 S.E.2d 74, 77 (1989). See also
Williams v. Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253-54 (1992).
Accordingly, even if we assume for purposes of discussion that the husband is correct
that the clear and convincing evidence established adultery by the wife, the trial court did not
abuse its discretion by awarding the divorce based on the uncontested one-year separation of the
Husband’s second question presented is stated as follows:
The trial court erred in an award of spousal support in the absence
of a finding of manifest injustice, given the proof of Appellant’s
The real substance of his argument is that Code § 20-107.1 precluded the trial court from
awarding spousal support, regardless of the grounds upon which the divorce was awarded,
because he had proven adultery by clear and convincing evidence. However, this argument was
not included in husband’s objections to the final order of the trial court. Instead, his objection
regarding the issue of adultery went only to the equitable distribution of the house proceeds.
Nowhere did the husband object to the award of spousal support. Accordingly, I would Rule
5A:18 prevents him from raising this issue for the first time on appeal.