                        COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


CALVIN CORNELL RUFFIN, SR.

v.   Record No. 1792-99-1

ANDREANIA (PACE) RUFFIN                    MEMORANDUM OPINION *
                                                PER CURIAM
ANDREANIA (PACE) RUFFIN                     FEBRUARY 22, 2000

v.   Record No. 1804-99-1

CALVIN CORNELL RUFFIN, SR.


           FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                         Verbena M. Askew, Judge

             (Frederic L. Moschel; Moschel, Gallo &
             Clancy, L.L.C., on briefs), for Calvin
             Cornell Ruffin, Sr.

             (Vicki Beard, on briefs), for Andreania
             (Pace) Ruffin.


     Calvin Cornell Ruffin, Sr. and Andreania (Pace) Ruffin appeal

the final decree of divorce entered by the circuit court.       In his

appeal, husband contends that the trial court erred in awarding

wife $1,000 in monthly spousal support.    In her appeal, wife

contends that the trial court erred by (1) failing to find that

husband held his lottery winnings in a constructive trust for the

benefit of wife and the parties' two children; (2) failing to find

that husband was at fault in the dissolution of the marriage; (3)

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
failing to order husband to pay all outstanding marital debt; and

(4) failing to award wife more monthly spousal support.    Upon

reviewing the record and briefs of the parties, we conclude that

these appeals are without merit.   Accordingly, we summarily affirm

the decision of the trial court.   See Rule 5A:27.

                             Background

     The parties married in 1989, had two children, and separated

in November 1995.   The wife filed a bill of complaint for divorce

on August 19, 1996.   Based upon evidence presented at a hearing

held on September 19, 1996, the trial court entered a pendente

lite order on October 1, 1996, directing husband to pay $120 a

week in child support and $80 a week in spousal support, beginning

September 20, 1996.   Husband did not make any support payments

until January 1997.   On September 28, 1996, husband won $4.9

million in a lottery, with a gross payout for twenty years

exceeding $243,000 per annum.   After husband claimed his winnings

in January 1997, wife filed a motion to increase support.    By

order entered March 30, 1998, the trial court ordered husband to

pay $2,446 in monthly child support.    Monthly spousal support

remained $344, and the trial court ordered husband to pay $823 to

wife for payment of over $1,100 in monthly marital debts including

the mortgage.   The trial court left to be resolved at a later

hearing whether the additional payment of $823 was to be

characterized as additional spousal support.



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     By order entered April 30, 1997, the trial court referred the

matter to a commissioner in chancery to determine the grounds for

divorce, equitable distribution and support.    The commissioner's

hearing was held on February 17, 1998, and the report filed with

the court on May 4, 1998.   The commissioner recommended that

husband be granted a divorce on the ground of a one-year

separation.   The commissioner also recommended that wife receive

$750 in monthly spousal support for a period of four years; that

the parties split the marital debt equally; and that wife's

request for the imposition of a constructive trust on husband's

lottery winnings be denied.   Both parties filed exceptions to the

report.   In its decree a vinculo matrimonii entered July 2, 1999,

the trial court granted wife's exception to the commissioner's

recommended spousal support award.     The trial court awarded wife

$1,000 in permanent monthly spousal support.    The trial court

otherwise accepted the commissioner's report.    Both parties

appealed.

                         Constructive Trust

     Wife contends that the trial court erred by failing to find

that husband's lottery winnings were subject to a constructive

trust for her benefit and that of the parties' children.    Wife

argues that husband used his last available funds to purchase the

lottery tickets instead of paying his court-ordered child and

spousal support.   The commissioner found no evidence of fraud or

unjust enrichment warranting the imposition of a constructive

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trust on husband's winnings.   The trial court agreed with that

finding.

     We find no error in the trial court's determination.

           "'Constructive trusts arise, independently
           of the intention of the parties, by
           construction of law; being fastened upon the
           conscience of him who has the legal estate,
           in order to prevent what otherwise would be
           a fraud. They occur not only where property
           has been acquired by fraud or improper
           means, but also where it has been fairly and
           properly acquired, but it is contrary to the
           principles of equity that it should be
           retained, at least for the acquirer's own
           benefit.'"

Rash v. Hilb, Rogal & Hamilton Co., 251 Va. 281, 287, 467 S.E.2d

791, 795 (1996) (citations and emphasis omitted).     "[T]he burden

of establishing the grounds for the imposition of a constructive

trust [is] by clear and convincing evidence."    Hill v. Brooks, 253

Va. 168, 174, 482 S.E.2d 816, 820 (1997).   "Moreover, in order to

be entitled to the benefit of a constructive trust, a claimant's

money must be 'distinctly traced' into the chose in action, fund,

or other property which is to be made the subject of the trust."

Crestar Bank v. Williams, 250 Va. 198, 204, 462 S.E.2d 333, 335

(1995).

     Wife contends that the $2 husband used to purchase the

winning lottery ticket on September 28, 1996 were already owed to

her and their children pursuant to the pendente lite order of the

trial court at the September 19, 1996 hearing.    She argues that a

constructive trust arose as of September 20, 1996, the date when


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his first support payments were due. 1   However, no fund existed on

that date upon which to impose a constructive trust, as husband

did not win the lottery until eight days later.    It is true that

husband's first and second weekly payments were outstanding on the

day husband purchased the winning lottery ticket.    However, as

acknowledged by wife, husband had limited funds on September 20

due in part to the fact he recently had purchased a car.    Although

husband's car payments were undoubtedly a greater drain on his

ability to pay support than the $2 he used to purchase the lottery

tickets, wife argued that the money husband used to purchase the

tickets was traceable solely to funds obligated for support.

     While husband's failure to pay his court-ordered support was

reprehensible, wife failed to present sufficient evidence of fraud

or unjust enrichment to warrant the imposition of a constructive

trust on his lottery winnings.    Husband purchased the lottery

tickets pursuant to his habit established throughout the marriage.

As a result of his winnings, he was capable of providing greater

financial support to his children than at any time during the

marriage.   We cannot say that husband's good fortune so reeked of

injustice as to require the imposition of a constructive trust on

his lottery winnings.




     1
       This ruling was subsequently memorialized in an order
entered October 1, 1996.


                                 - 5 -
                          Grounds of Divorce

     Wife also contends that the trial court erred in failing to

award her a divorce on the ground of desertion.     The commissioner

recommended that husband be granted a divorce on the basis of a

one-year separation.   The trial court accepted that

recommendation.   Assuming without deciding that there was

sufficient evidence to support a finding of desertion by husband,

"[i]t is well established that 'where 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.'"

Williams v. Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253

(1992) (citation omitted).    Evidence established that the parties

lived separate and apart in excess of one year intending the

separation to be final.   Therefore, there was evidence supporting

the trial court's decision.    We find no abuse of discretion in the

trial court's decision not to award wife a divorce on the ground

of desertion.

                             Marital Debts

     Wife contends that the trial court erred by failing to assign

approximately $8,000 in marital debts to husband.     Under Code

§ 20-107.3(C), the trial court has 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."      "[D]ecisions concerning

equitable distribution rest within the sound discretion of the

                                - 6 -
trial court and will not be reversed on appeal unless plainly

wrong or unsupported by the evidence."     McDavid v. McDavid, 19 Va.

App. 406, 407-08, 451 S.E.2d 713, 715 (1994).     There was no

evidence that the debts were incurred solely for the benefit of

one party.   Wife's argument, distilled to its essence, is that

husband's post-separation lottery winnings give him greater

resources from which to pay these debts.     We find that argument

unpersuasive, and find no error in the trial court's decision to

require the parties to share the marital debts equally.

                           Spousal Support

     Finally, wife contends that the trial court erred by failing

to award her more spousal support.      The trial court considered

both the statutory factors and the evidence before making its

award.    While wife faced greater expenses with the prospective

relocation to a larger residence, she also had the greater income

throughout the marriage.   In fact, wife was the primary wage

earner.   We find no error in the trial court's refusal to award a

greater amount of spousal support.

     Likewise, we find no error in the trial court's requirement

that husband pay wife $1,000 per month permanent spousal support.

The trial court's determinations, supported by the evidence,

imposed no bar to wife's entitlement to support.     The amount

ordered is consistent with her proven need and husband's proven

ability to pay.



                                - 7 -
     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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