Gregory Allen Pence v. Liza Marie Pence
1813154
| Va. Ct. App. | Oct 18, 2016Background
- Husband (Gregory Pence) and wife (Liza Pence) married in 2001, had three children, and operated a family construction business (Pence Quality Homes, PQH); wife had a substantial separate trust that sometimes funded PQH projects.
- Marital breakdown began c.2012; wife engaged in an extramarital affair discovered in Nov. 2013 and resumed in Jan. 2014; divorce granted to husband on grounds of wife’s adultery (final decree Sept. 4, 2015).
- Trial court conducted equitable distribution, awarding most PQH property interests (including 29th Street property and proceeds from a 32nd Street project) to husband, allocated half of the 29th Street mortgage liability to each party, required wife to reimburse half of $45,000 she withdrew from PQH, denied emergency spousal support, child support, and attorneys’ fees to both parties.
- Wife appealed multiple equitable-distribution classifications and omissions (14 assignments); husband appealed denial of attorney’s fees, spousal support, and child support (3 assignments). The Court of Appeals affirmed in part, reversed/remanded in part.
- Key legal determinations: trial court permissibly considered adultery and contributions in making a disproportionate award; trial court erred by failing to classify/distribute husband’s IRA, by misclassifying certain bank stock as separate property (FVC stock), by failing to classify wife’s credit-card debts, and by denying child support without required guideline findings.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Whether equitable distribution was punitive and improperly based on adultery | Award was disproportionate and used fault to punish wife | Trial court properly considered adultery under §20-107.3(E) and evidence of diminished contributions | Affirmed: considering adultery and contributions was permissible; award not punitive |
| Whether trial court improperly considered husband’s need/earning capacity in distribution (29th St., 32nd St. proceeds) | Need is relevant only to support, not to equitable distribution | Husband contended properties were part of his ongoing business and reflected his contributions | Affirmed: court considered business role and contributions, not improper post‑divorce need |
| Failure to value or apportion lien on 29th Street despite stipulation | Trial court ignored stipulated $665,000 value and unfairly kept wife liable for lien while awarding property to husband | Husband argued property was marital collateral for PQH and allocation of debt was discretionary | Harmless error re valuation; apportionment of mortgage liability to both parties was within court’s discretion and affirmed |
| Wife’s $45,000 withdrawal from PQH (dissipation) | Funds were spent on living expenses; no alternate valuation motion; no waste shown | Husband argued withdrawal occurred after marriage breakdown and was dissipation | Affirmed: court found dissipation/anticipatory withdrawal; wife failed to trace funds; ordered reimbursement of half |
| Husband’s IRA (post-separation liquidation) — omission from decree | Wife moved for alternate valuation date; evidence IRA was liquidated post-separation and not addressed | Husband said IRA had no value at hearing because he spent funds for household | Reversed/remanded: trial court abused discretion by failing to classify/allocate IRA and must rule on alternate valuation date |
| Admission of husband’s expert business valuation report | Wife sought admission as party admission | Husband did not identify expert as a trial witness; expert not authorized agent for admissions | Affirmed: report inadmissible as party admission when expert not designated/testified at trial |
| Classification of First Virginia Community (FVC) stock | Wife: stock purchased during marriage with PQH funds, presumed marital | Husband claimed stock separate; court classified as his separate property | Reversed/remanded: insufficient evidence rebutting marital presumption; FVC stock is marital and must be distributed |
| Allocation of 2012 federal tax liability | Wife: liability arose from husband’s business income; filed separately so shouldn’t be split | Husband: liability was marital as taxes on PQH income benefitted both | Affirmed: court permissibly apportioned tax liability as marital debt |
| Jewelry classification | Wife claimed substantial pieces were separate (from trust); evidence commingled | Husband testified jewelry was marital and commingled; trial court credited him | Affirmed: trial court did not abuse discretion in finding jewelry marital |
| Wife’s Chase and AmEx credit-card debts | Wife argued trial court failed to classify and divide debts incurred during marriage | Husband did not dispute debt but relied on trial court discretion | Reversed/remanded: court must classify these debts (marital vs separate) and include in distribution |
| Attorney’s fees | Wife sought fees; husband sought fees for discovery abuse | Both parties sought fees and costs | Affirmed: trial court did not abuse discretion in denying fees to either side |
| Spousal support denial to husband | Husband argued he needed emergency spousal support despite distribution | Trial court found equitable distribution awarded husband sufficient assets and earning capacity justified denial | Affirmed: trial court considered §20-107.1 factors and reasonably denied support |
| Child support denial to husband | Husband argued child support wrongly denied; court relied on earning capacities and distribution | Trial court denied support based on same rationale used for spousal support | Reversed/remanded: trial court failed to make required written findings under §20-108.1(B) and must apply guidelines or explain deviation |
Key Cases Cited
- O’Loughlin v. O’Loughlin, 20 Va. App. 522 (Va. Ct. App.) (adultery may be considered among factors in equitable distribution)
- Torian v. Torian, 38 Va. App. 167 (Va. Ct. App.) (standard of review and discretion in equitable distribution)
- Lightburn v. Lightburn, 22 Va. App. 612 (Va. Ct. App.) (distinguishing equitable distribution from support; caution against considering post‑divorce economic difficulties)
- Clements v. Clements, 10 Va. App. 580 (Va. Ct. App.) (dissipation doctrine; burden on dissipating spouse to prove proper use)
- Bowers v. Bowers, 4 Va. App. 610 (Va. Ct. App.) (trial court must determine ownership and value of property; cannot arbitrarily refuse classification)
- Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir.) (expert’s out‑of‑court statement not automatically a party admission when expert not agent or controlled by party)