                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McClanahan and Senior Judge Willis


TERESA A. GRIMES
                                                                MEMORANDUM OPINION *
v.     Record No. 0106-08-1                                          PER CURIAM
                                                                  SEPTEMBER 2, 2008
WARDEN L. GRIMES


                  FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                               Wilford Taylor, Jr., Judge

                 (Stephen A. Dunnigan; Dunnigan & Messier, P.C., on brief), for
                 appellant. Appellant submitting on brief.

                 (E. Thomas Cox, on brief), for appellee. Appellee submitting on
                 brief.


       Teresa A. Grimes (wife) and Warden L. Grimes (husband) were divorced by decree on

December 18, 2007. Wife appeals the trial court’s equitable distribution and spousal support

rulings. On appeal, wife argues that the trial court erred in (1) ruling that husband’s business

was worth $8,200; (2) failing to find that husband’s alcohol use was a negative non-monetary

contribution; (3) ruling that wife’s spousal support award was limited to $1,000 per month for

sixty months; (4) awarding husband 65% and wife 35% of the marital estate; (5) valuing the

wife’s jewelry at $12,800 and deducting that amount from the sum owed to wife for her interest

in the marital estate; (6) not including husband’s jewelry in the marital estate; and (7) admitting

checks and bank statements into evidence. Upon reviewing the record and briefs of the parties,

we affirm the decision of the trial court.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        BACKGROUND

        Husband and wife were married on September 21, 1985, separated October 23, 2005, and

divorced on December 18, 2007. Husband owned and operated a drywall business, Grandview

Drywall, for approximately twenty years. Wife primarily stayed at home and raised the parties’

three children. In October 2005, husband discovered that wife withdrew large sums of monies

from several business bank accounts. He also discovered that wife was using cocaine. Both

parties had a history of prior drug use, and husband consumed alcohol on a regular basis.

        At the equitable distribution hearing, both parties presented expert testimony on the value

of the drywall business. Husband’s expert testified that the business was worth $8,200, and

wife’s expert testified that the business was worth $157,000. The court found husband’s expert

to be more credible and ruled that the business was worth $8,200.

        Husband introduced checks into evidence, over wife’s objection, which showed wife

wrote checks totaling over $100,000 to herself and her friend over a two-year period. Husband

testified that wife later admitted to him that she wrote the checks to purchase drugs. The court

held that wife’s actions constituted a negative non-monetary contribution and awarded wife 35%

of the marital estate.

        Husband presented evidence of wife’s jewelry at the time of separation. She testified that

she pawned the jewelry after the date of separation, but presented no documentation to support

the value of the jewelry. She also testified that husband had some jewelry. The court adopted

husband’s evidence regarding the jewelry.

        The court further ruled that wife should receive $1,000 per month in spousal support for

sixty months, especially in light of her negative contributions to the family. Wife objected to the

duration of the award.

        Wife handwrote her objections to the final decree, and timely noted her appeal.

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                                           ANALYSIS

       On appeal, “decisions concerning equitable distribution rest within the sound discretion

of the 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) (citing

Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)). “When reviewing

a trial court’s decision on appeal, we view the evidence in the light most favorable to the

prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon, 40

Va. App. 255, 258, 578 S.E.2d 833, 834 (2003). So viewed, we affirm the trial court’s rulings

for the reasons stated below.

                                       Valuation of business

       Both husband and wife presented expert testimony on the value of husband’s business. A

court may “choose among conflicting assessments of value as long as its finding is supported by

the evidence.” McDavid, 19 Va. App. at 413, 451 S.E.2d at 718. “The trial court’s decision will

not be disturbed on appeal unless plainly wrong or without evidence to support it.” Howell v.

Howell, 31 Va. App. 332, 341, 523 S.E.2d 514, 519 (2000).

       The court considered each of the experts’ testimony and found that husband’s expert was

more credible because he considered the real estate trends in the area and how it affected the

future income streams. “The trial court heard the testimony of the two experts and evaluated

those experts’opinions. We defer to the trial court’s evaluation of the credibility of the witnesses

who testify ore tenus.” Shackelford v. Shackelford, 39 Va. App. 201, 208, 571 S.E.2d 917, 920

(2002) (citing Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795 (1997)).

       Based on the evidence presented, the trial court found that the business was valued at

$8,200. That ruling is supported by the record.




                                                -3-
                                      Husband’s use of alcohol

        Wife argues that husband’s use of alcohol was a negative non-monetary contribution,

which should have been considered for equitable distribution. The court heard testimony about

husband’s drinking.

        On appeal, the trial court’s findings must be accorded great deference. See Bandas v.

Bandas, 16 Va. App. 427, 432, 430 S.E.2d 706, 708 (1993). “[I]n reviewing an equitable

distribution award, we rely heavily on the trial judge’s discretion in weighing the particular

circumstances of each case.” Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 837 (1988) (citing

Rexrode v. Rexrode, 1 Va. App. 385, 394-95, 339 S.E.2d 544, 550 (1986)).

        Under our standard of review, there is evidence to support the trial court’s decision that

husband’s alcohol consumption did not constitute a negative non-monetary contribution.

                                       Spousal support award

        On appeal, wife contends the trial court committed reversible error because the trial court

failed to consider the applicable statutory factors.

        The trial court awarded spousal support to wife in the amount of $1,000 per month for

sixty months, or until either party dies, or wife remarries, whichever occurs first. Wife’s brief

argues that the court failed to consider the factors in Code § 20-107.1, although her question

presented argues that the amount of spousal support was too low and the duration of spousal

support was too short. Her objection on the final decree only relates to the duration of the award.

Wife argues each statutory factor and why her spousal support award was not sufficient.

        Wife did not preserve her argument that the trial court failed to consider the applicable

statutory factors in determining its spousal support award. See Rule 5A:18. Rule 5A:18 states

that “No ruling of the trial court . . . will be considered as a basis for reversal unless the objection

was stated together with the grounds therefor at the time of the ruling, except for good cause

                                                 -4-
shown or to enable the Court of Appeals to attain the ends of justice.” We “will not consider an

argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26

Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of Rule 5A:18 is to allow the trial

court to correct in the trial court any error that is called to its attention.” Lee v. Lee, 12 Va. App.

512, 514, 404 S.E.2d 736, 737 (1991) (en banc). There was no miscarriage of justice in this

case, and the ends of justice exception does not apply.

          Wife fails to present any argument regarding the duration of the spousal support award.

This defect is significant. See Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317

(2008) (“the Court of Appeals should . . . consider whether any failure to strictly adhere to the

requirements of [the Rules of Court] is insignificant”) Therefore, we will not consider this issue

on appeal. See Rule 5A:20.

          The record supports the court’s finding of the spousal support award, and the ruling is

affirmed.

                                       Division of marital estate

          Wife contends the court erred in dividing the marital estate, which resulted in husband

receiving 65% and wife receiving 35%.

          “[I]n considering the circumstances that led to the dissolution of the marriage, Code

§ 20-107.3(E)(5), the court should consider the circumstances that affected the marriage

partnership’s economic condition.” O’Loughlin v. O’Loughlin, 20 Va. App. 522, 527, 458

S.E.2d 323, 325 (1995) (citing Aster, 7 Va. App. at 5-6, 371 S.E.2d at 836).

          In light of the trial court’s findings that wife made a negative non-monetary contribution

by squandering marital funds to buy drugs and husband’s alcohol use did not constitute a

negative non-monetary contribution, the trial court was not plainly wrong in dividing the marital

estate.

                                                 -5-
                                          Wife’s jewelry

       Wife argues that the court erred in valuing her jewelry at $12,800. The court adopted

husband’s valuation as presented in his memorandum of argument and his testimony regarding

the value of wife’s jewelry. Wife pawned her jewelry after the date of separation, but presented

no documentation regarding the value of the jewelry.

       Wife asks this Court to make a monetary award without giving consideration to

husband’s testimony on the value of her jewelry. “[A] court may not arbitrarily refuse to classify

or evaluate marital or separate property where sufficient evidence to do so is in the record.”

Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987).

       The record supports the trial court’s ruling that wife’s jewelry was worth $12,800 and

should be credited against the amount that she receives from the marital estate.

                                        Husband’s jewelry

       Wife contends the court did not include husband’s jewelry in the marital estate. Wife

presented evidence that husband had a diamond ring and a gold necklace, valued at $2,500. The

trial court rejected wife’s testimony regarding husband’s jewelry and accepted husband’s

testimony as to the value of the marital jewelry to be included in the marital estate. The record

supports the trial court’s ruling on the jewelry issue, taking into consideration wife’s jewelry and

husband’s jewelry.

                     Admission of checks and bank statements into evidence

       Wife argues that the trial court erred in admitting the checks and bank statements into

evidence, which showed the sums of money that wife withdrew, because the court then relied on

the documents to conclude wife used the money for drugs. During the trial, wife argued that the

checks and bank statements were hearsay and were being offered for the truth of the matter,




                                                -6-
despite the fact that no one from the bank authenticated the checks.1 The court overruled the

objection and received the bank statements into evidence. Assuming without deciding that the

trial court erred in admitting the bank statements into evidence, the trial court’s error was

harmless. “When it plainly appears from the record and the evidence given at the trial that the

parties have had a fair trial on the merits and substantial justice has been reached, no judgment

shall be arrested or reversed . . . for any error committed on the trial.” Code § 8.01-678.

       Even if the court erred in admitting the checks, husband testified that wife admitted to

him that she took between $1,000 and $2,000 per week from the bank accounts to purchase

drugs. Therefore, by her own statements, she used the funds for a negative non-monetary

contribution.

                                          CONCLUSION

       The record supports the trial court’s finding of the spousal support award and the

classification and valuation of the property. Accordingly, we affirm the judgment.

                                                                                     Affirmed.




       1
         Wife only objected to the entry of the first set of checks, Exhibit 27. She did not object
to the remaining checks, Exhibits 28-30, although she made a general objection to the entry of
“any and all checks” at the conclusion of husband’s direct examination.
                                               -7-
