                     COURT OF APPEALS OF VIRGINIA


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


GEORGE HARRISON SEYMOUR
                                           MEMORANDUM OPINION * BY
v.   Record No. 0554-01-2                   JUDGE LARRY G. ELDER
                                                MARCH 5, 2002
SHARON LEE SEYMOUR


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge

          Scott Gregory Crowley (Crowley & Crowley, on
          brief), for appellant.

          Robert L. Flax (Flax & Stout, on brief), for
          appellee.


     George Harrison Seymour (husband) appeals from a ruling of

the Circuit Court of Henrico County holding him in contempt for

failing to pay to his former spouse, Sharon Lee Seymour (wife),

certain sums due pursuant to the parties' divorce decree.     On

appeal, husband contends the court erroneously exercised

jurisdiction because wife's filing for bankruptcy deprived her

of standing to initiate the show cause action and vested all

claims of her estate in the bankruptcy trustee, who had already

accepted partial payment for the debt from husband in the form

of a piano and declared the remainder to be uncollectable.     He

also contends the trial court abused its discretion in finding


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
him in contempt when the evidence showed he had cooperated with

the bankruptcy trustee and was financially unable to pay the

remainder of his obligation.

     We hold the evidence supports the trial court's finding

that wife had standing to initiate the show cause both (1)

because the bankruptcy trustee had abandoned any right of

collection under the property settlement agreement and (2)

because the debt wife sought to have repaid was unrelated to the

piano husband claimed to have relinquished to the trustee.    We

also hold the trial court did not abuse its discretion in

finding husband in contempt because the evidence, viewed in the

light most favorable to wife, established that husband failed to

satisfy his obligations under the property settlement agreement

and did not establish his inability to pay.   Therefore, we

affirm.

                                A.

                   TRIAL COURT'S JURISDICTION

     Husband contends the trial court lacked jurisdiction to

entertain wife's request for issuance of a show cause summons

because her bankruptcy filing deprived her of standing and

vested all claims of her estate in the bankruptcy trustee.    We

disagree.

     Assuming without deciding the record and wife's statements

on brief are sufficient to establish that wife in fact filed for

bankruptcy, one of the exhibits offered into evidence at trial

                               - 2 -
establishes that wife regained standing to pursue these claims

when the bankruptcy trustee abandoned any interest in the

parties' property settlement agreement and related judgment.    11

U.S.C. § 554 provides that the bankruptcy trustee "may abandon

any property of the estate that is burdensome to the estate or

that is of inconsequential value and benefit to the estate."

"Property abandoned under this section ceases to be a part of

the estate.   It reverts to the debtor and stands as if no

bankruptcy petition was filed.    Following abandonment, 'whoever

had the possessory right to the property at the filing of

bankruptcy again reacquires that right.'"    Dewsnup v. Timm, 908

F.2d 588, 590 (10th Cir. 1990) (citation omitted) (quoting In re

Dewsnup, 87 B.R. 676, 681 (Bankr. D. Utah 1988)), aff'd, 502

U.S. 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 (1992).   Thus, wife

reacquired her right to enforce the parties' property settlement

agreement as incorporated into the final decree of divorce

entered December 10, 1997.

     Contrary to husband's contention, wife was not bound by the

trustee's conclusion that the debts owed wife under the property

settlement agreement were uncollectable.    As the court

acknowledged in Dewsnup, property abandoned by the trustee

"reverts to the debtor and stands as if no bankruptcy petition

was filed."   908 F.2d at 590 (emphasis added); see Worth v.

Tamarack American, 47 F. Supp. 2d 1087, 1099 n.9 (S.D. Ind.

1999) ("[E]ven though a lawsuit may be an asset of the

                                 - 3 -
bankruptcy estate, a bankruptcy trustee may abandon the

litigation, leaving the debtor/plaintiff to continue the fight

outside the purview of the bankruptcy action."), aff'd mem., 210

F.3d 377 (7th Cir. 2000); In re West Pointe Props., L.P., 249

B.R. 273, 286 n.13 (Bankr. E.D. Tenn. 2000) (when the trustee

"abandon[s] the cause of action, . . . the cause of action

revests in the debtor[, and] . . . [t]he abandonment enables the

debtor . . . to pursue the cause of action").   Thus, wife

retained her right to attempt to enforce the agreement as

incorporated into the final decree.

     Finally, even assuming the evidence is sufficient to

establish that husband had possession of the piano and

relinquished it to the bankruptcy trustee in satisfaction of a

portion of his debt under the property settlement agreement, 1 the

agreement makes clear that husband owed wife an additional

$9,000.   In addition to husband's agreement to pay the purchase

price of the piano which resulted in a $9,000 balance on wife's

"First" credit card, husband owed wife another $9,000 as payment



     1
       Although husband apparently did not provide any
documentary evidence to support this argument in the trial
court, he attempted to include such evidence in the appendix
filed in this Court. Wife objected to this inclusion, arguing
that the orders were neither proffered to nor admitted into
evidence by the trial court. By order entered June 11, 2001,
this Court sustained wife's objection and prohibited the
inclusion of the orders in the appendix. Despite this ruling,
husband attached these same documents to his brief. For the
reasons set out in our order of June 11, 2001, we do not
consider these documents.

                               - 4 -
for wife's certificates of deposit husband "cashed in" without

her permission.    Husband represented in his statement of facts

that the $9,000 wife sought to recover was in exchange for her

interest in his business.    An examination of the settlement

agreement makes clear that this sum was entirely unrelated to

husband's debt for the piano.    Thus, the trustee abandoned his

right to collect the $9,000 husband owed wife for her share of

his business, and wife regained standing to seek payment of that

debt.

                                  B.

                           CONTEMPT FINDING

        On appellate review of a finding of contempt,

             we may reverse the ruling of the trial court
             only if we find that it abused its
             discretion. A trial court may hold a[n]
             obligor in contempt for failure to pay where
             such failure is based on unwillingness, not
             inability, to pay. Once nonpayment is
             established, the burden is on the obligor to
             provide justification for the failure to
             comply.

Barnhill v. Brooks, 15 Va. App. 696, 704, 427 S.E.2d 209, 215

(1993) (citations omitted).    In reviewing a trial court's

contempt determination, we view the evidence in the light most

favorable to the prevailing party.       Glanz v. Mendelson, 34 Va.

App. 141, 148, 538 S.E.2d 348, 351-52 (2000).

        Here, wife established that husband failed to comply with

the terms of the August 1997 property settlement agreement

incorporated into the December 1997 final decree, and the

                                 - 5 -
evidence, viewed in the light most favorable to wife, failed to

prove that husband's noncompliance for a period of approximately

three years was justified.   Husband, as the appellant, had a

duty to furnish a sufficient record to permit us to resolve the

issues on appeal.   See, e.g., Twardy v. Twardy, 14 Va. App. 651,

658, 419 S.E.2d 848, 852 (1992) (en banc).    Despite this duty,

the record fails to establish that husband had insufficient

income or assets to make the payments required under the decree.

     The statement of facts husband proffered for the trial

court's approval indicated in paragraph 8(c) that wife's

bankruptcy "trustee had advised him not to make any payments to

[wife], but only to the trustee; further that the trustee had

determined any debts he owed to [wife] [were] uncollectable

because [husband's] only source of income was Social Security

Disability payments."   However, the trial court stated in its

"Additions or Corrections to the Statement of Facts" that it

"[did] not recall the hearsay testimony set out in 8(c)."     The

quoted evidence regarding husband's income as contained in

paragraph 8(c) was hearsay because it involved out-of-court

statements husband made to the trustee about his income and

out-of-court statements the trustee made to husband about the

information husband had given him.     See, e.g., Arnold v.

Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850

(1987).   Thus, the statement of facts approved by the trial

court did not include this information.    No other evidence in

                               - 6 -
the statement of facts indicated that husband's only income was

social security disability, and even if the record had contained

such evidence, it did not indicate the amount of that income as

compared to husband's expenses.

     Further, the evidence established that husband received the

net proceeds from a $250,000 personal injury settlement in

August of 1995, around the time the parties separated.   Husband

testified at the show cause hearing in November 2000 that he

invested this money in a business that failed, but the evidence

offered to the trial court in the show cause proceeding did not

establish when this failure occurred.   Thus, no evidence

properly before us on appeal establishes that husband was

financially unable to pay wife in accordance with the settlement

agreement in August 1997 when he extended the settlement offer

or in December 1997 when the trial court entered the final

decree incorporating the settlement agreement.   The evidence,

even viewed in the light most favorable to husband, establishes

only that the business had failed by the time of the November

22, 2000 hearing on wife's motion to show cause and, therefore,

does not justify husband's nonpayment prior to that time.

Finally, the trial court was not required to believe husband's

testimony in its entirety.   It was entitled to accept his

testimony about receiving the personal injury settlement

proceeds and to reject his testimony that he lost the money when

his business failed, especially in light of husband's statement

                               - 7 -
on January 22, 2001 that he had access to sufficient funds to

allow him to "make arrangements to assume the remaining balance

of the mortgage and to pay the legal fees and costs owing to

[wife's] divorce counsel."

     Thus, viewing the evidence in the light most favorable to

wife, husband did not meet his burden of providing justification

for his failure to comply with the final decree, and the court

did not abuse its discretion when it found him in contempt.

     For these reasons, we affirm the ruling of the trial court.

                                                        Affirmed.




                              - 8 -
