                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia


JAMES D. FORD
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0458-08-1                                   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.
                                         BACKGROUND

       “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.

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                                             ANALYSIS

                                        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




                                                 -3-
holding fell properly within the fact-finding function of the trial court and is supported by the

evidence.

                                           Spousal support

        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.




                                                  -4-
                            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.




                                                 -5-
                                  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

property.

                                      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.

                                                  -6-
                                     CONCLUSION

       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.

                                                                                    Affirmed.




                                               -7-
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

parties.

           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
                  pre-separation adultery.

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.




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