*1 In this for modification. pending petition there is a which was dated support to amend case, petition of the the notice order for support modification Any 2001. November Clearly, prohibited. date is to that prior of time any period such non-conforming payments not allow credit the laws do as these. S.E.2d P. COUREMBIS
Louis Sylvia L. COUREMBIS.
Record No. 1176-03-4. Virginia, Appeals Court Alexandria.
4,May 2004. J., opinion. and filed McClanahan, concurred *4 (Nicholas Balland; M. Baskin Pelton, Balland, Peter A. Demsky, O’Malie, briefs), Baskin & on Arlington, appel- for lant. (Michael Miller; Katharine W. M. Maddox C.
Marcia Vienna, Miller, brief), for Maddox, Cole & McGregor; appellee. McCLANAHAN, ANNUNZIATA, and FELTON
Present: JJ.
ANNUNZIATA, Judge. (husband) from a final decree of appeals
Louis P. Courembis (wife) L. million Sylvia Courembis divorce which awarded $2.7 $64,000 per year spousal marital and from the estate by the trial court erred Husband contends support. and in including within the marital estate properties certain of, for, spousal support. and amount the need determining on certain appeal filed a motion dismiss husband’s Wife of body which we address grounds procedural the trial court’s challenging also opinion. cross-appeals, value, or their total properties, certain decision not include issues of first cross-appeal in marital estate. Wife’s raises follow, affirm the reasons that we For impression Virginia. court, of determination decision of the trial but remand attorney’s award of fees to wife. an Background
I. Be- August and were married on 1975. Husband and operated owned marriage, fore parties’ At the time successful real estate businesses. combined husband and wife assets separation million. approximately were valued $14 (1) real around three estate: appeal parcels This centers (2) “Lee-Taylor” joint property, venture” the “Route (3) apart- and Lorcom Towers the “Horizon property, ments.” joint Route venture acquired
Husband a one-third Husband owned were married. parties before the the property During marriage, in this interest plan husband filed a site from R-4 to R-12 and rezoned on the site. to be built allowing townhouses for the *5 efforts, in value property As a result of these the increased $500,000 $1,573,000 from it was sold at approximately when wife, by auction. auction and prepared The conducted “couple days” preparing who a of “all the details ... spent the up rules.” Consistent with one-third setting] [and] property, interest in the share of increase in the $357,667. value From husband’s the increase totaled share of in of Route 50 the trial property, value the court awarded wife $200,000. lots,
The all property composed is of fifteen of which were The lots purchased during marriage. were purchased in such a way property make the entire contiguous, thereby its overall increasing developers. value to lead in Although acquiring assumed the role and lots, assembling the wife contributed to efforts to rezone the completed application rezoning, Wife con- of tacted members charged making zoning board decisions, garnered and from support members of commu- nity rezoning for the effort. Thome, an expert, Oakleigh called testified that who in Lee-Taylor property increased value the mar- $2,393,000.
riage by Thorne attributed the increase value rezoning property, assemblage of the lots into parcel, one contiguous passive market The total forces. currently $6,125,000. value of the estimated to be The trial accepted testimony expert, court finding wife’s that the by increased value approximately $2.4 million as a result of parties the efforts both while married. value, From that increase in the trial court awarded wife $800,000.
The Horizon and Lorcom properties acquired Towers marriage before the by Corporation The Horizon and Courem- bis The Enterprises, respectively. Horizon was a Corporation corporate entity which seventy-two percent husband owned of the stock. Enterprises Courembis was a con- partnership sisting two other relatives. build- Apartment ings were properties. corporate built Wife was and she Corporation, of The Horizon and treasurer officer build- apartment The building. Horizon an office kept million *6 approximately in 1999 for a total $17 were sold ings dollars. in selling a role played significant testified she
Wife Louis everything, “I did because stating apartment buildings, properties, for the charts of the bids kept it.” didn’t do Wife said placed. a new bid was Wife each time updated which she sale, she on the that, spent the time husband relative to which continued handling process, more time committed sold, husband’s share buildings were year. a When about million dollars approximately to of the amounted proceeds $6.3 kept that those funds were taxes. Husband stated after Howev- joint in a account. placed never only name and were investment er, subsequent managed that she wife testified them. She control over and exercised some of the funds husband, document, which author- signed by her produced Bank Virginia from First transfers telephone ized her to make after the sale. With placed of the proceeds where some short-term Trea- bought and sold authority, transfer wife her they ma- and forth as bills, money back sury “transfer[ring] of the transfers. Wife maintained records alone tured.” Wife evaluat- companies, interviewed several testified that she also Hus- for her husband. capital prospects them as venture ing In- $600,000 in Alliance Global approximately band invested Wife Services, companies she interviewed. one of the vestor The trial court that investment. prepared application were husband’s and Lorcom Towers that the Horizon found is no and that properties “[t]here separate “pre-marital” The proceeds value. property’s to either component marital separate sole and ... are the [husband’s] from the sale property.” Route 50 and
In to a share addition $64,000 in spousal trial court awarded properties, attorney’s wife’s pay and ordered per year support the trial $90,000. appeals Husband amount of fees by awarding trial court erred decision, that the arguing court’s wife, including within marital estate the entire virtually marital estate the increase value of the Route 50 and Lee- Taylor properties, and awarding wife attorney’s fees. Wife cross-appeals, arguing the trial court erred by not includ- ing, estate, within the marital the entire value of the Lee- Taylor any portion of proceeds from the sale of the Horizon and Lorcom Towers apartments. also requests attorney’s fees in defending incurred ap- peal. find no error and affirm.
II. Procedural Default case, Prior to our hearing of the wife filed a motion appeal dismiss husband’s ground that it procedur- ally (a) defaulted. Wife’s motion was based on the following: husband failed to preserve the issues he presents to this Court (b) for appeal, and incorrectly stated facts his brief and inadequately cited the record in his statement of facts. *7 We consider each ground of the wife’s motion seriatim.
A. Failure to Preserve Objections Pursuant
to Rules 5A:18 and 5A:20 stated, Briefly (1) husband questions appeal: whether the court’s award of nearly all the marital estate to the wife (2) equitable; was whether the court erred in awarding spous- wife; (3) al support to the whether the court in erred deter- mining the amount spousal (4) of the support award; whether the court complied 20-107.1(F) with Code when it awarded (5) spousal support wife; to the whether court the erred in awarding (6) counsel payable wife; fees by husband to and whether the court erred determining that the increase in value of certain properties, the property and the 50 Route property, should be included within the couple’s marital assets. contends her motion to dismiss appeal the that
husband failed to properly preserve objections to the trial court’s ruling as required by Rule 5A:18. Wife also contends that husband failed to comply with Rule 5A:20 because his “questions presented” do not pages reference appendix the questions where such were properly preserved. agree We that with 5A:20 comply regarding husband failed Rule (1) (4), and, assuming that we ad- questions through should further, matter he any agree dress the we that failed (1) (5). comply Rule regarding questions through with 5A.T8 (6) question preserved properly find that was and is before the Court. (1) (4), through clear
Respecting questions 5A:20(c) ly comply did not Rule requires 5A:20. Rule must contain a clear and exact questions presented or question reference to record where each appendix brief, In his preserved. only husband cites opening page (1) (4) of the that issues appendix through were That preserved. appendix page contains last page final for court’s decree divorce which counsel signed objected objection “seen and to.” Such an is not sufficient under 5A.T8 to an issue for preserve appeal. Rule provides “Since the rule mere statement ‘[a] judgment contrary to the law award is evidence’ sufficient, not it that a that an order is ‘seen follows statement Lee, to’ be objected must also insufficient.” Lee (1991). 515, 736, (1) The questions remains whether husband’s question (4) 5A:18, through pursuant despite Rule preserved Rule failure appropriate pages 5A.-20 to cite not appendix. Normally, will search record “[w]e interpret appellant’s errors in order to contention and Buchanan, 14 correct in a brief.” Buchanan v. deficiencies *8 response In 415 S.E.2d 239 dismiss, however, wife’s motion to husband cites various other appendix questions in the that his pages evidence that lacking efforts and hold preserved. We find husband’s (5) (1), (3), (4), and are barred because husband questions also that objection failed state trial. find his (2) make same is barred because husband fails to question court. on that he made at trial argument appeal (1) cites preserved, As was question evidence pages repre- These through appendix. pages sent the bulk of the of husband’s counsel. closing arguments argued during closing argument Husband’s counsel never his that the wife’s award it inequitable was because constituted virtually all of the marital estate. also four Husband cites his trial memoranda filed the court as evidence that objection preserved. Three of these memoranda were who, by filed wife obviously, object any did not award. The discusses, fourth by memorandum was filed part, the most which properties should be considered marital and which should separate. be considered Husband therefore (1) present failed to objection to the trial court. question Accordingly, Rule 5A:18 mandates that we not consider ques- (1) tion on appeal. (3) (4)
We likewise find that questions are procedurally defaulted. Husband’s citations to the record do not reveal that he presented these arguments to the trial judge. Accord- ingly, Rule 5A:18 bars our consideration of these issues.
Husband contends that he preserved his appeal (5) question There, closing argument. he asked the court “to deny Mrs. request for ... attorneys’ Courembis’[s] fees this case.” plain This statement does not meet the requirements Rule 5A:18 because it is not an objection stated “together with the grounds therefor.” We therefore decline to address the trial court’s award of attorney’s fees. respect (2),
With to question husband also cites his closing argument. argued closing Husband that “Mrs. Courembis has demonstrated a for spousal support [not] need in this justified case.” He argument this by pointing to she had sufficient funds to sustain herself absent an of support. brief, however, award On husband fails to Instead, make the argument. same argues primarily he the amount of the award was inequitable upholding and that such an award is contrary to public policy. We will not related, “address party’s] but unsupported [a assertion[s].” Commonwealth, Novak v. 20 Va.App. (2) We therefore that question find by barred
Rule 5A:18.
28 rulings court’s alternative, argues that
In the the need for to obviate enough were narrow on all issues Hill, 16 Mackie v. objections, citing in his specificity greater (1993). Mackie, trial court’s In 229, 429 37 Va.App. S.E.2d a settlement concerned whether only finding factual final into a decree. incorporated have agreement should been circumstances, 231, those we Id. at 429 at 38. Under S.E.2d to preserve to” was sufficient objected that “seen and held however, Id. Here, the trial court’s objection appeal. for subjects, and each range a broad encompassed final decree Accordingly, distinct issues. objections contains of husband’s in Mackie does not to the facts of apply ruling find that our we 281, 287, 532 Herring Herring, this case. (2000) (“The is not 923, trial court’s final order S.E.2d and, therefore, Mackie or conclusion single finding limited to a apply.”). does not justice excep ends of argues further that the
Husband spousal issue of apply 5A:18 should to the tion to Rule Herring, decision on this Court’s support. Relying affirmative comply to with the the court’s failure claims 20-107.1(F)—which directs found in statutory duty Code ... findings and conclusions court to make “written trial support E which factors in subsection identifying the applying the ends basis court’s order”—constitutes bring to his failure exception, notwithstanding justice In disagree. to the court’s attention. We alleged error failure to consider, appellant’s Herring, despite to agreed we trial, the trial court at whether object contemporaneously of child amount presumptive to determine the by failing erred 20-108.1(B), by deviating to pursuant support, 287, Herring, Va.App. at amount. presumptive from to the holding limited our specifically at 927. We 532 S.E.2d “To make from the guidelines. a deviation explain failure to of the ends of our application note that holding, clear our we to the court’s applies only in this case ... justice exception guide calculate the to expressly in child cases support failure justify to findings required to the written line amount or make at that amount.” Id. n. its deviation from facts, Herring 927, n. 2. specifically limited its and we holding presented decline extend its the issue here. *10 also of argues justice exception Husband the ends to apply affirmatively Rule 5A:18 should because the record that a miscarriage justice shows has occurred. Husband fails to this on and we develop argument appeal, accordingly Buchanan, will not it. address at 239. consider, however,
willWe husband’s sixth question. Wife contends that objection husband’s to the trial court’s award of a portion of the increase in value of the Route procedurally only barred because he mentioned in his motion to strike. in its Viewed however, totality, fairly husband’s motion to strike can be an objection understood as to the court’s treatment of both Route 50 and Lee-Taylor properties, which argued wife should considered properties by be “marital” virtue of marital effort. strike, In his motion to husband countered wife’s theory, arguing that her testimony regarding the effect of her efforts even approach statutory “doesn’t definitions” of “personal efforts” because her “secretarial services” and “auc tion services” did not to any contribute increase in value. Husband’s reference to wife’s secretarial and auction services to analysis relevant performed the court in classifying Furthermore, each property. presents the same grounds objection for his appeal court, as he did the trial namely that prove wife failed to that her efforts contributed to the increase in value of each We therefore find that Rule 5A:18 does not question bar B. Incorrect of Facts Improper Statement
Citations to the Record Wife also contends that appeal husband’s should be dis- missed because he cites facts in part his brief that are not a record, facts, misconstrues other cites inadequately record his statement of facts. Although husband’s brief contains a inadequacies, few most are inconsequential na- ture, any importance and none relate to matter of substantive Furthermore, appeal. argue in this does not that the cites a specific ability prepare failures she affected her response appeal. Finally, correctly that, facts, disagrees *11 property subject equitable constituted marital to division. that support argument, husband claims wife’s “secretari- to al” tasks did not contribute rise in He property’s value. also claims that the trial court in not all the considering erred 20-107.3(E). § no factors found in Code We find error in the trial court’s on this decision issue.
“Fashioning equitable an award lies within distribution the sound of the trial and that will not judge, discretion award it or plainly wrong be set aside unless is without evidence to Srinivasan, Srinivasan it.” support award, In fashioning that the trial § guided court is Code 20-107.3. by § court
Code 20-107.3 directs that the trial determine marital, is property separate, which is that which and part part which is marital and After separate. determining estate, the extent of marital the trial court construe must appellant may with 1. We do not hold that an violate Rule 5A:20 may impunity appellee respond pursuant because the inaccuracies dismissal, attorney's an Rule 5A:21. Nor do we hold that or award of fees, appropriate is for failure to cite the record never an sanction accurately pursuant where are to Rule 5A:20. In a case such failures party’s ability respond, opposing more and affect the substantial attorney’s may award of fees indeed be warranted. dismissal or an in an award accordance the factors laid out equitable 20-107.3(E). Code trial court may classify property part
The some as marital 20-107.3(A)(3) property part separate property. provides that:
The court shall classify property part property marital part separate property as follows: a. In the case of income received from separate property during marriage, such income shall be marital property to the only extent it is to the personal attributable efforts of either In party. the case of the increase value of separate property such marriage, increase value shall marital be to the property only extent marital or property personal efforts of either party have increases, to such provided contributed that any per- such sonal efforts must be significant and result in substantial appreciation of separate
For purposes subdivision, of this the nonowning spouse shall (i) bear the burden of proving that contributions of marital (ii) personal or effort were made and the separate increased value. this proof Once burden of met, owning spouse shall bear the of proving burden that the increase in or portion value some thereof not by caused contributions of marital property personal effort. labor,
“Personal effort” of a party shall be deemed to be effort, inventiveness, physical skill, or intellectual creativity, *12 or managerial, promotional or marketing activity applied directly separate to the property party. of either not Wife does contest that the Route 50 property was acquired parties’ Therefore, before the in marriage. stated statute, wife has the burden of that proving marital efforts contributed to the rise in the property’s value. See Gilman v. Gilman, 104, 120, (2000). Va.App. 763, 32 526 S.E.2d 771 We view the evidence on this issue in a light most favorable to wife as the prevailing party. Congdon Congdon, Va.App. 40 833, 578 S.E.2d 835 32 significantly efforts personal that her argues first in value increase property’s to the Route
contributed marriage. during the marital becomes separate property in value of
The increase
party’s
marital
or a married
funds
expenditure
if the
sig-
increase in value. The
generated
efforts
personal
however,
of effort or funds
factor,
is not the amount
nificant
or
generated
that value was
rather the fact
expended, but
effort.
personal
or
expenditure
significant
by
added
834,
Moran,
Moran v.
here,
below,
(1999). Second,
argues
argued
property
separate
in value to
the statute the increase
under
contributions
either
significant personal
to the
attributable
agree
that increase marital
party renders
argument for two reasons.
wife’s second
that either
First,
of the statute confirms
plain reading
increase in value
may
to the
efforts
contribute
party’s personal
property.2
constitutes marital
increase
value
and that such
20-107.3(A)(3)(a) (“In
of the increase
value
the case
such increase
marriage,
property during
of separate
that marital
only to the extent
property
marital
value shall be
have contribut-
party
efforts of either
personal
or the
added)). Second, although
increases.” (emphasis
ed to such
raised
ad-
expressly
that has not been
this is an issue
267-68, 578
at
Congdon, Va.App.
Virginia,
dressed
cf.
trial court’s
objection,
(affirming,
over wife’s
839-40
S.E.2d
stock as ten
company
in value of
of the increase
classification
supported
ground
marital
percent
to ten
efforts contributed
that husband’s
the determination
come
increase),
of other states have
majority
percent
on the
in Turner’s treatise
conclusion. As noted
to the same
of property,
distribution
equitable
meaning of the statute and
ignored
plain
appeal, husband
2. On
be
lots should
in value of the
argued
the increase
that his
despite undisputed evidence
separate property
considered
IV.B.
See
Part
to such increase.
contributed
personal efforts
infra
*13
broadly
... define a marital contribution
states
[m]ost
of
or the
owning
non-owning
include the efforts
either the
correct,
clearly
The
rule is
as the marital
spouse.
majority
of
efforts
spouse’s
estate should include the fruits
either
If
marriage.
separate property appreciates
be-
alone,
cause of the
efforts
owning spouse’s
appreciation
tree,
is a fruit of the marital
and thus marital property.
Turner,
5.22,
§
Brett R.
Distribution
at
Equitable
Property
of
(2d
Supp.2003).
ed. 1994 &
Here, wife’s testimony regarding her contributions to the
property
Route 50
was insufficient as a
matter
law. She
auction,
up
testified that “she set
all the
details
collect-
in,
ed the
deposit,
signed everybody
helped
...
conduct the auction.” She testified that the
she expend-
time
in preparing
ed
the auction amounted to
a
“probably couple of
days.”
testimony
indication, moreover,
Her
no
gave
that her
personal
generated
Moran,
efforts
the increase
value. See
Nonetheless, testimony wife’s also established that husband’s efforts contributed to the increase in value. She testified that the Route 50 property was worth “about $500,000” before husband a site plan. filed After husband plan filed a site property, testified the value increased threefold. also affirmed that the site plan was prepared during parties’ marriage.
Accordingly, in a viewing light evidence most favorable wife, we find that she submitted sufficient marital contributions to from which the trial court could reasonably conclude that increase value constituted a subject marital asset to equitable division. Be- say cause we cannot that the trial court’s decision plainly was wrong, we will not appeal. disturb it on reject also argument the trial court failed to consider all the factors listed Code 20- 107.3(E) in making its award. “The trial court in fixing monetary award is required to consider all of the factors set 20-107.3(E). quantify court need not The forth factors. to each of the exactly weight given what *14 elaborate must, however, upon be based credible findings The court’s 436, 444, 364 S.E.2d Taylor Taylor, Va.App. v. 5 evidence.” 337, 345, (1988) 244, Woolley, Va.App. v. 3 (citing Woolley 249 (1986)). Here, finding trial court’s 422, 426 the 349 S.E.2d by the wife rele- provided evidence upon was based credible 20-107.3(E). Therefore, the § in to the factors Code vant ruling court’s will stand. trial Lee-Taylor Property
IV. court also erred deter- contends that the trial Husband of the Lee- of the increase the value portion that a mining property. responds marital Taylor constituted property Lee-Taylor property court’s classification that the trial significantly both she and husband upheld should be because argues In cross-appeal, in value. wife to its rise contributed to reflect the should be modified that the trial court’s award just not property, entire fair market value of the total con- value, the entire property increase because property’s in turn. argument address each property. stituted marital Marital Property Not Lee-Taylor A. The Was Lee-Taylor that the entire argues In cross-appeal, her hus- property marital because should be considered property property acquired that presumption failed to rebut the band Although the lots consti- property. is marital during marriage during property were assembled tuting Lee-Taylor err in judge trial did not find that the marriage, we parties’ in value of the increase portion to wife to a limiting its award in a issue, the evidence this we view property. For 258, 40 Congdon, Va.App. most to husband. light favorable at 835. 578 S.E.2d marriage pre is during property acquired
All 20-107.3(A)(2). The Code to be marital sumed marriage is during acquired claiming property party presump this rebutting bears the burden separate property 544, 385, 392, Rexrode, 1 339 S.E.2d Va.App. Rexrode v. tion.
35 (1986). “Thus, presented property evidence is where judge the trial must con- marriage, was acquired is evidence property adequate it is marital unless clude that it is as defined separate property to establish that produced 94, 20-107.3(A)(l).” Lambert, 6 Va.App. Lambert v. (1988). presented “If no is 184, 187 and then identify properly a chancellor could upon which faced with property, item as or marital classify separate an satisfactory the lack of evi- statutory presumption it, classify chancellor must dence to rebut Stainback, marital.” Stainback S.E.2d contends that his evidence establishes
Husband it separate property because was *15 In to acquired separate property. with funds from order is Lee-Taylor property separate property, show that the of the to acquisition separate husband must trace the 20-107.3(A)(l)(iii) (“Separate property property. in for marriage exchange ... all the property acquired during or from of sale of proceeds separate property.”). the
Here, light in a most viewing the evidence favorable husband, presented find he sufficient evidence from we which trial could of the judge acquisition conclude adequately separate prop- traced to Lee-Taylor property was he funds erty “already [the funds. Husband testified that had in These purchase Lee-Taylor lots] bank.” funds, a property, came from sale of explained, Horizon and the refinanc- Corporation, The liquidation Towers, all of occurred 1988.3 ing of Lorcom which from million these approximately Husband received $2 sources, presented and the at trial established that evidence total, lots, million Lee-Taylor approximately cost $2 funds used to purchase. Husband stated further joint lots never purchase placed were refinanced, properties, 3. Wife does not contest that these when sold properties. separate account with his wife and were not commingled with marital Blackwell, Husband called Thomas a Certified Pub- Accountant, lic who testified that he had personal knowledge of how these funds were Blackwell, used. According hus- band used the purchase funds to the Lee-Taylor lots.
Wife, however, points to Blackwell’s admission that he “was in South Carolina” from 1994 to 2000 and that he not did “know anything years.” about those Though pur- [six] chase of the Lee-Taylor 1991, lots began at least three of the lots were acquired during Blackwell’s absence. Wife also complains that neither nor Blackwell produced any statements, checks, bank or deposit slips tracing the funds from their purported source to the purported destination. Additionally, wife that, introduced showing between 1976 and husband earned a total taxable income nearly million and that years for the $3.5 1989 and 1994 to the present, husband earned over million. Wife reasons that $12.5 the funds used to purchase the Lee-Taylor lots therefore could have come from which, husband’s income she argues, would be considered marital the absence of evi- dence that it 20-107.3(A)(2). is not. See Code
It however, is apparent, that the trial judge resolved the conflict in the evidence in husband’s favor. The credibility of witnesses and the weight to be accorded their testimony is a matter within the sole province of the finder of fact. See Commonwealth, Servis 6 Va.App. Because testimony and the testimony
Blackwell, viewed in a light most favorable to the appellee, support the conclusion of the trial court that husband traced the acquisition of the Lee-Taylor lots to his separate property, we will not that Srinivasan, disturb conclusion on appeal. See at Va.App. at S.E.2d 678.
B. The Increase in Value of the Lee-
Taylor Property Was Marital Turning to husband’s contention on appeal that the trial court erred in determining the increase value of the Lee-Taylor property during marriage the to marital prop- be the Although without merit. we find it to be erty, supra, as discussed separate property, itself the trial court from which was presented sufficient evidence in its the increase that marital efforts caused could conclude marriage. the during value show-
Wife, bears the burden of non-owning spouse, as the “(i) marital property personal of ing contributions (ii) increased separate property made and the effort were 20-107.3(A)(8)(a). in Part III As stated value.” Code is marital to the extent either supra, the increase value the to increase. Id. view evidence party such contributed as the on this issue. light appellee in a most favorable to wife at 835. Congdon, First, made significant contends that she contributions wife on her Primarily, wife relies Lee-Taylor to zoning to After completing efforts re-zone the property. board, zoning wife and them with the application papers filing and [zoning] to each board members” “wrote letters of the flyers neigh- talked to out some seven hundred “passed know, called convince—you get approval.” to to bors of the expert Thorne who testified that increase value being to townhouses property was “due the lots re-zoned ownership.” under common and assembled Second, argues that husband’s contributions consid- marriage properly property during value Lee-Taylor property partly should ered that, undisputed as marital. It is characterized be to make the Lee- various lots marriage, husband “assembled” contiguous. expended personal He effort Taylor property by with some of the owners acquire by negotiating the lots negotiated at auctions. He outbidding developers other finally acquiring “for years” one reluctant owner fifteen before undisputed It is that the value lots 3 and 17. further of his property increased as result efforts assemble lots. proving that wife met her burden
We find constituted in the value increase *17 marital property subject equitable division because the proves evidence the efforts of both husband and wife 20-107.3(A)(3)(a). contributed to the increase. Code The burden then shifted to prove that the increase in value was not caused by contributions marital effort. See id. present Husband did not any credible evidence in this and, regard, in any event, concedes in opening brief that some of the increase in value derived from his efforts to assemble the lots during Thus, the marriage. considering the its totality and in a light wife, most favorable to we say cannot the trial court erred.
V. The Horizon and Lorcom Apartment Towers Buildings that, argues although the Horizon and Lorcom Towers apartment buddings were separate property be- they cause acquired before the marriage, husband failed to maintain proceeds received from the sale of the build- ings as separate property. 20-107.3(A)(l)(iii) See Code (“Separate is ... all property acquired during the marriage exchange or from the proceeds of sale separate property, provided that such property acquired dur- ing the marriage separate maintained as property.”).
In showing that husband failed to keep separate, funds wife points to her position as an officer and director of Horizon Corporation, corporate entity that owned the buildings. She also points to testimony her that she main- tained banking records and prepared financial documents for properties both and that she had authority transfer over the proceeds. She further claims that she “managed” pro- ceeds because she advised and directed husband towards certain investments interviewing after twelve different venture capital prospects. that,
Husband testified at trial wherever the proceeds from rest, the sale eventually came to they remained his name only, subject to his ultimate control. Wife does not contest this assertion on appeal. the evidence is whether issue we must decide
The *18 of the sale the the from acquired that funds established proper separate were husband’s apartment buildings, which § Code 20- property.4 See ties, separate maintained as 107.3(A)(l)(iii). the establishes that find that evidence property. as proceeds separate maintained the commingle not that husband did
The evidence showed 20-107.3(A)(3)(d- § see proceeds property, marital Code e), joint “in the names proceeds that he did not retitle the 20-107.3(A)(3)(f). Furthermore, no § parties.” Code pro gift that husband intended evidence established 20-107.3(A)(l)(ii) (“Separate § to his wife. See Code ceeds marriage acquired during by ... all property property is (emphasis party.” ... from a source other than other gift (“Marital 20-107.3(A)(2)(iii) added)); property § ... Code party all each property by marriage other acquired (emphasis as above.” separate which is not defined 20-107.3(A)(3)(d-f) added)); separate that (stating “to the extent original shall “retain its classification” (emphasis was a gift” ... is retraceable ... not [it] Kelln, 113, 122, added)); 30 Va.App. see also v. Kelln (1999). 789, 793 S.E.2d
Wife, however, urges theory a new as basis for management reversal on this issue. She reasons that her did separate funds is evidence that husband not husband’s proceeds separate maintain the as She cites no property. contention, authority support of her and we have found and the Accordingly, none. we find evidence law proceeds the trial court’s determination that supports 20-107.3(A)(l)(iii), separate, remained see Code and we will not finding appeal. disturb Although presents may support argu- 4. some of the an "personal in value of that her efforts” contributed to the increase ment buildings, entitling proceeds apartment her to share in the sales as argument property, failure part marital wife limits her to husband’s We, thus, proceeds separate do not address maintain personal whether efforts her to a share of the the issue of her entitle proceeds. Attorney’s Fees
VI. attorney’s an award of fees in this case. requests clearly comply Because failed to with Rule 5A:18 and above, respect 5A:20 with to the issues noted see supra Rule II.A, Part to the trial court with direction that it we remand attorney’s fees incurred in defending award wife reasonable portion appeal. O’Loughlin O’Lough See lin, 98, 100 S.E.2d
VII. Conclusion Because we find that the trial court’s allocation of the assets law, affirm, supported by the evidence and the we but attorney’s remand to the trial court for an award of fees to wife. *19 and remanded.
Affirmed McCLANAHAN, J., concurring: I appellant’s question, majority’s On sixth concur However, I agree procedur- result. with wife the issue is ally only Lee-Taylor proper- barred. Husband referenced ty majority opinion in his motion to strike. The indicates that “[vjiewed ... motion to strike can totality its be fairly objection understood as an to the court’s treatment of Lee-Taylor properties.” both the Route 50 and The tran- objection reveals no evidence that made script any to, of, or mention the Route 50 his motion not, therefore, should impute argument strike. We about to the Route 50 Lee-Taylor property trial ... ruling Rule 5A:18 states: “No court will be objection considered as a for reversal unless the basis therefor at the time of the together grounds stated cause shown or to enable the Court ruling, except good also 8.01- Appeals justice.” to attain the ends See “ 384(A). purpose requiring timely specific ‘The main ob- to afford the trial court an to rule jections opportunity avoiding on the issues thus unneces- intelligently presented, Commonwealth, 26 v. sary appeals reversals.’” Ohree
41
(1998)
484,
488
Weid-
(quoting
494
Va.App.
S.E.2d
(1991)).
44,
164,
Babcock,
40,
400
167
S.E.2d
man v.
Va.
made,
have not
this Court
specific objections
been
such
When
appeal
present-
an
on
that was not
argument
not consider
will
(citing
court.
lant fails to state complain on See court, appeal. or she will not heard he be Commonwealth, Campbell raise the in his motion Appellant failed to issue 8.01-384(A) Thus, Rule our
strike. 5A:18 and Code bar Moreover, rec- appeal. of this question consideration not reflect to invoke the cause any good ord does reason justice exceptions to Rule 5A:18. ends of notes if wife with his statement of she include may her own statement of facts which she believes 5A:21(b). record. See be an recitation of accurate Rule therefore, not, appeal We will dismiss husband’s on the grounds urged by wife.1 III. Route Property appeal. We now consider the merits of this Husband contends trial court incorrectly determined that portion proceeds from the sale of the Route 50 property In