COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bumgardner and 

 Senior Judge Hodges 

EVANS DANDRIDGE POINDEXTER, JR. 

 MEMORANDUM OPINION*

v. Record No. 1974-00-1 PER CURIAM 

 JANUARY 23, 2001 

KATHERINE MOORE JOLLIFF, F/K/A 

 KATHERINE MOORE JOLLIFF POINDEXTER 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 (Charles L. Bashara; Bashara & Hubbard, on 

briefs), for appellant. 

 (Barry Kantor; Grady Aston Palmer III; 

Christie & Kantor, PC, on brief), for 

appellee. 

 Evans Dandridge Poindexter, Jr., appellant, appeals a 

decision of the trial court finding that he was not entitled to 

reimbursement for payments he made on a second mortgage. On 

appeal, appellant argues the trial court erred in holding that the 

payments constituted a voluntary inter vivos gift. Upon reviewing 

the record and briefs of the parties, we conclude that this appeal 

is without merit. Accordingly, we summarily affirm the decision 

of the trial court. Rule 5A:27. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
BACKGROUND

 The parties were divorced in 1994. During the marriage, the 

parties jointly owned property located in North Carolina. As part 

of the property settlement agreement, appellant transferred his 

right, title and interest in the property to Katherine Moore 

Jolliff, appellee. Appellee agreed to assume responsibility for 

all mortgage payments on the property. In the property settlement 

agreement, appellant also agreed to pay appellee one-half of the 

value of his Individual Retirement Account (IRA). 

 Unbeknownst to appellee, in 1990, appellant obtained a second 

mortgage on the North Carolina property, prior to the parties' 

divorce. Appellant acknowledged that he signed the documents for 

the second mortgage knowing that the documents stated he was 

"unmarried." Appellee first learned about the second mortgage 

after the parties had signed the property settlement agreement. 

The record further indicates that once appellee learned of the 

existence of the second mortgage, her attorney and appellant's 

attorney reached an agreement whereby appellant would be 

responsible for paying the loan. 

 Appellant admitted that he used $19,000 of the proceeds from 

the second mortgage to buy into a partnership and that he borrowed 

additional funds against the line of credit on at least one other 

occasion. Appellant made payments on the second mortgage for a 

period of time. However, he stopped making the payments at a 

point where he contended he had paid an amount roughly equal to 

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the amount he owed appellee for one-half of the value of his IRA 

account. Appellant had not otherwise paid appellee for her share 

of the IRA account. 

 Appellee filed a motion to compel appellant to pay the second 

mortgage. She also filed and received a show cause order 

requiring appellant to show cause why he had not complied with the 

property settlement agreement by failing to pay her one-half of 

the value of the IRA account. Appellant filed and received a show 

cause order demanding that appellee make the second mortgage 

payments, arguing that appellee was responsible for all mortgage 

payments pursuant to the property settlement agreement. He also 

sought reimbursement for the payments he had already made toward 

the second mortgage. 

 The trial court ruled that appellant made the second mortgage 

payments voluntarily, and it denied his motion for reimbursement. 

INTER VIVOS GIFT

 On appeal, appellant argues the trial court erred in ruling 

that his payments on the second mortgage were an inter vivos gift. 

However, the trial court's order does not state that it found the 

payments constituted an inter vivos gift. Rather, the order 

states that appellant, "is not entitled to any reimbursement for 

monies paid on the second mortgage (equity line of credit) as 

these payments were made voluntarily; and his Motion for 

reimbursement is hereby denied." Furthermore, the record does not 

indicate that appellant made the argument to the trial court that 

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it erred in ruling that the prior payments constituted an inter

vivos gift. 

 The record on appeal includes an order entered on July 21, 

2000, specifying the trial court's findings and rulings. 

Appellant endorsed the order "SEEN AND OBJECTED TO." The record 

also contains several versions of a written statement of facts 

that were not signed by the trial judge. The trial judge signed 

appellee's "Objections to the Written Statement of Facts." See

Rule 5A:8(d). Neither the order nor the written statement of 

facts contains a statement of appellant's specific objections. 

 "The Court of Appeals 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); 

Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of 

this question on appeal. Moreover, the record does not reflect 

any reason to invoke the good cause or ends of justice 

exceptions to Rule 5A:18. 

DURESS

 Pursuant to the property settlement agreement, appellee was 

responsible for all mortgage payments on the North Carolina 

property. In his show cause order and in his brief on appeal, 

appellant contended that he made payments on the second mortgage 

in order to protect his credit rating when appellee refused to 

repay the second mortgage. In his brief, appellant characterizes 

this as payment made under duress. 

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 Common-law "duress" includes "'any wrongful acts that compel 

a person, such as a grantor of a deed, to manifest apparent assent 

to a transaction without volition or cause such fear as to 

preclude him from exercising free will and judgment in entering 

into a transaction.'" Norfolk Div. of Soc. Servs. v. Unknown 

Father, 2 Va. App. 420, 435, 345 S.E.2d 533, 541 (1986) (citation 

omitted). 

 The evidence showed that, prior to the parties' divorce, 

appellant obtained the second mortgage without the knowledge of 

appellee. Appellant also used the monies obtained from the second 

mortgage as his own source of funds, without the knowledge of 

appellee. Therefore, the record does not support appellant's 

contention that he acted under duress when he made payments on 

this loan, the proceeds of which were used entirely for his own 

personal benefit. Accordingly, the trial court did not err in 

ruling that appellant continue to pay the second mortgage payments 

and in ruling that appellant not be reimbursed for past payments 

he made on the loan. 

UNJUST ENRICHMENT

 In his show cause order and in his brief on appeal, appellant 

further alleged that his payments toward the second mortgage 

resulted in the unjust enrichment of appellee. Unjust 

enrichment is defined as, "[t]he retention of a benefit 

conferred by another, without offering compensation, in 

circumstances where compensation is reasonably expected." 

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Black's Law Dictionary 1536 (7th ed. 1999). Appellee received 

no benefit from appellant's conduct of secretly obtaining a 

second mortgage against their jointly owned property, using the 

proceeds from that loan for his own personal benefit, and then 

making payments on that loan. Therefore, appellant's argument 

is without merit. 

 Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed. 

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