                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Clements
Argued at Richmond, Virginia


JOHN SANFORD BOISSEAU
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2673-07-2                                   JUDGE ROBERT P. FRANK
                                                                 OCTOBER 21, 2008
LEE WOOD BOISSEAU


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                   Gary A. Hicks, Judge

                 W. Reilly Marchant (Marchant, Honey & Baldwin, LLP, on briefs),
                 for appellant.

                 Richard L. Locke (Shannon S. Otto; Locke Partin & Deboer, on
                 brief), for appellee.


       John Sanford Boisseau, appellant (husband), appeals from a final decree of divorce from

Lee Wood Boisseau (wife). Husband assigns error to the trial court’s ruling that funds borrowed

from the Boisseau Family Trust was husband’s separate debt. He contends that since those funds

were used for marital expenses, the debt should properly be classified as marital debt and

therefore subject to allocation under Code § 20-107.3(E). For the reasons stated, we agree with

husband and reverse the trial court’s decision.

                                          BACKGROUND

       Husband and wife were married on July 6, 1982. They separated in October 2004. In the

summer of 2004, before the parties’ final separation, husband borrowed $90,000 from the

Boisseau Family Trust. He used part of the money to pay off an outstanding balance of $47,000



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
for an equity line loan on the marital home. Husband also wrote a number of checks to pay other

expenses. Wife testified at trial that these checks were all for marital expenses.

                                            ANALYSIS

       Pursuant to Code § 20-107.3(A), a court dissolving a marriage, “upon request of either

party, shall determine the legal title as between the parties, and the ownership and value of all

property” and shall classify that property as separate property, marital property, or part separate

and part marital property. “The court shall also have the authority to apportion and order the

payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of

the marriage, based upon the factors listed in subsection E.” Code § 20-107.3(C).

       The trial court’s classification of property as marital or separate is a factual finding.

Therefore, that classification will be reversed on appeal only if it is “‘plainly wrong or without

evidence to support it.’” Ranney v. Ranney, 45 Va. App. 17, 32, 608 S.E.2d 485, 492 (2005)

(quoting McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994)).

       Marital property is all property titled in the names of both parties and all other property

acquired by each party during the marriage which is not separate property, i.e., property received

during the marriage by bequest, devise, descent, survivorship or gift from someone other than the

spouse. See Code § 20-107.3(A)(2). “All property . . . acquired by either spouse 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.” Id. This presumption applies to

the parties’ assets as well as their debts. See Stumbo v. Stumbo, 20 Va. App. 685, 692-93, 460

S.E.2d 591, 595 (1995) (referring to “marital property” as defined in Code § 20-107.3 as

including both assets and debts).

               The purpose and nature of the debt, and for and by whom any
               funds were used, should be considered in deciding whether and
               how to credit or allot debt. . . . Where the debt was secured by
               marital assets or was a lien on marital property, the purpose,
                                                -2-
               nature, and character of the debt and who benefited from it
               were factors to be considered by the chancellor in distributing
               the property or in fashioning the monetary award.

Gamer v. Gamer, 16 Va. App. 335, 341, 429 S.E.2d 618, 623 (1993) (citing Trivett v. Trivett, 7

Va. App. 148, 151, 371 S.E.2d 560, 562 (1988)).

       In this case, husband contends that the $90,000 loan from the Boisseau Family Trust was

used to pay off the $47,123.89 balance of an equity line mortgage and other marital debts, thus

benefiting wife. Wife agrees that the standard to determine whether the debt is separate or

marital is whether the debt benefited both parties. Wife maintains that the $90,000 was not used

for marital debts. However, wife’s trial testimony is inconsistent with her argument on appeal.

After reviewing the list of checks that represented the distribution of the $90,000 loan, wife

acknowledged that they were marital expenses. Wife testified at least twice during her testimony

that the loan was used to pay off marital expenses. She also agreed those expenditures were not

squandered. On cross-examination, the following testimony was given:

               Q: Now, let’s talk for a minute about the $90,000 that Mr.
               Boisseau borrowed from his Boisseau family trust in the summer
               of 2004. That money you understand was used to pay off an
               existing credit line on the house with that, $47,000; correct?

               A: Yes, that was one of the exhibits.

               Q: Correct. And then there were other checks written off the
               credit line to total up to $90,000, correct?

               A: I didn’t see all those, but –

               Q: Well, you remember at your deposition, do you not when I
               asked you about –

               A: Yes.

               Q: -- all those checks?

               A: Yes.

               Q. Yeah. And I showed you a list of checks that Sanford said
               were the reason – were what he expended on the 90,000?
                                                  -3-
               A: True. But he also was making income at that time.

               Q: Okay. But I went over those checks with you. And do you
               remember telling me –

               A: Right. They were marital expenses.

               Q: They were marital expenses?

               A: That’s correct.

During the same cross-examination, wife was asked, “you saw the checks that [husband] wrote,

and they were all for marital expenses?” Wife responded, “[Y]es.” Later in her testimony, wife

recalled her deposition testimony, in which she was asked about checks husband had written.

When asked about these checks, wife stated, both in her deposition and at trial that those checks

were written for marital expenses.

       In its letter opinion dated March 27, 2007, the trial court explained why it found the

$90,000 debt was husband’s separate property. The trial court concluded “that $90,000

borrowed from the Boisseau Family Trust was a unilateral act by [husband]. As such, it is his

separate debt and not a marital debt. The loan was incurred shortly before the parties’ separation

without the consent and knowledge of [wife].”

       In response to husband’s subsequent motion to reconsider, the court’s decision

concerning the $90,000 debt, the trial court issued a second letter opinion, dated August 15,

2007, concluding:

               While Dorothy Lee Boisseau (hereinafter “Lee”) acknowledged
               that the debt was ultimately used for marital expenses, she also
               testified that at the time Sanford borrowed the $90,000.00 from the
               Boisseau Family Trust, he did so without Lee’s knowledge,
               signature or consent. Lee further testified that when the parties
               closed on the marital home, Sanford tried to convince the closing
               firm that the $90,000.00 was a loan constituting a lien against the
               property that should be satisfied from the proceeds of the marital
               home. In addition, Lee testified that at the time he borrowed the
               $90,000.00, Sanford was refusing to help Lee with finances for
               basic necessities. Lee stated that she was being forced to sell her
               separate assets to buy food for the family, while Sanford spent
                                                 -4-
               nearly half of the $90,000.00 to pay off a $47,000.00 equity line
               that he had previously taken out to purchase automobiles for the
               children. Having considered both parties’ testimony, as well as the
               statutory factors set forth in Section 20-107.3(E) of the Code of
               Virginia, the Court found that the $90,000.00 is Sanford’s separate
               debt, thus he is solely responsible for that debt.

       While acknowledging wife’s concession, the trial court failed to consider whether the

proceeds of the $90,000 loan benefited the parties. A loan unknown to a spouse could still be

used to benefit both parties by paying marital debts, as it was here. While husband’s failure to

support wife might be considered in the equitable distribution award, such a fact is not relevant

to the classification of the debt. See Stumbo, 20 Va. App. at 692-93, 460 S.E.2d at 595 (holding

that a trial court must determine the purpose of the expenses when allocating the debt as separate

or marital). An award based on this determination must have a proper foundation in the record.

Id. The trial court applied the wrong analysis in classifying the $90,000 loan.

       Once the aggrieved spouse shows that marital funds were either withdrawn or used after

an irreconcilable breakdown, the party charged with dissipation bears the burden of proving that

he spent the money for a proper purpose. Clements v. Clements, 10 Va. App. 580, 586, 397

S.E.2d 257, 261 (1990). However, in this case, wife affirmatively testified that husband used the

$90,000 loan for marital expenses.

       A party can concede the facts but cannot concede the law. Cofield v. Nuckles, 239 Va.

186, 194, 387 S.E.2d 493, 498 (1990) (citing Stancil v. United States, 200 F. Supp. 36, 43 (E.D.

Va. 1961)); see also Tuggle v. Commonwealth, 230 Va. 99, 111 n.5, 334 S.E.2d 838, 846 n.5

(1985). Here, wife, after reviewing the list of expenditures, conceded more than once in her

testimony that husband used the $90,000 from the Boisseau Family Trust for marital expenses.

This is a factual concession, and wife may not now ask this Court to believe that she was not

telling the truth. See Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922)



                                               -5-
(“[Appellant’s] statements of fact and the necessary inferences therefrom are binding upon

him.”).

          Wife cannot rely upon other evidence in conflict with her own testimony to strengthen

her case. See Durham v. National Pool Equipment Company, 205 Va. 441, 448, 138 S.E.2d 55,

60 (1964). Cf. Ravenwood Towers v. Woodyard, 244 Va. 51, 55-56, 419 S.E.2d 627, 629-30

(1992) (holding that because the plaintiff testified merely as to her opinion, she was therefore not

bound by her trial testimony). “The Massie doctrine does not apply to a litigant’s statement of

opinion.” Beeton v. Beeton, 263 Va. 329, 337, 559 S.E.2d 663, 667 (2002). In this case,

however, wife did not offer her opinion or impression as to husband’s expenditures.

          Wife now asserts that she is not an attorney and would not know what constitutes a

marital expense. However, in the context of the questioning, wife’s use of the term “marital

expense” is not a legal concept. One need only apply common sense to determine whether or not

money was used for marital expenses. Upon reviewing the list of expenditures and knowing the

marital finances, wife clearly understood whether those expenditures benefited the marriage or

only benefited husband. Wife gave a factual concession at trial, and on appeal, she is bound by

that concession. 1

          We conclude that the trial court erred in not evaluating the nature and character of the

$90,000 debt, as well as who benefited from this loan. The trial court also failed to consider the

presumption that debt incurred during the marriage is marital debt. Combined with wife’s

concession, the trial court incorrectly classified the loan as husband’s separate debt.

          The $90,000 that husband borrowed from the Boisseau Family Trust was used to repay

marital expenses. The loan benefited both husband and wife. We hold that this is martial debt.


          1
         Indeed, the trial court factually found that wife had acknowledged that the debt in
question was ultimately used for marital expenses.

                                                  -6-
        Finally, wife requests that this Court award costs and attorney’s fees expended on appeal.

Upon consideration of the entire record in this case, we hold that husband’s arguments are not

frivolous. 2 Therefore, wife is not entitled to attorney’s fees expended in this appeal. O’Loughlin

v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Accordingly, we deny wife’s

request for an award of attorney’s fees incurred in this appeal.

                                           CONCLUSION

        For the foregoing reasons, we agree with husband that the trial court erred in classifying

the $90,000 loan from the Boisseau Family Trust as husband’s separate debt. We remand the

case to the trial court in order to determine the distribution of the entire marital estate, in

accordance with the factors enumerated in Code § 20-107.3(E).

                                                                              Reversed and remanded.




        2
         Since this matter did not arise from the juvenile and domestic relations district court,
Code § 16.1-278.19 does not govern the award of attorney’s fees. See Lynchburg Division of
Social Services v. Cook, __ Va. __, __, __ S.E.2d __, __ (Sept. 12, 2008).
                                                -7-
