COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judge Bu mgardner and Senior Judge Hodges

EVANS DANDRIDGE PO INDEXTER, JR. MEMORANDUM OPINION * v. Record No. 19 74-00-1 PER CURIAM JANUARY 23, 2001 KATHERINE MOORE JOLLIFF, F/K/A KATHERINE MOORE JO LLIFF POINDEXTER

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Sh adrick, Judge (Charles L. Bashara; Bashara & Hu bbard, on briefs), for appellant. (Barry Kantor; Grad y Aston Palmer III; Christie & Kantor, PC, on brief), for appellee.

Evans Dandridge Po indexter, Jr., appe llant, appeals a decision of the trial court findin g that he was no t entitled to reimbursement for payments he made on a second mortgage. On appeal, appell ant argues the trial court erred in holding that the payments constitu ted 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 affi rm 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 19 94. During th e marriage, the parties jointly ow ned property located in No rth Carolina. As part of the property settle ment agreement, appe llant transf erred his right, title and inte rest in the pr operty to Ka therine Moore Jolliff, appellee. Ap pellee agreed to assu me responsibility for all mortgage payments on the property. In th e property settlement agreement, appellant al so agreed to pay appe llee one-half of the value of his Individual Re tirement Account (IRA). Unbeknownst to appell ee, in 1990, appellan t obtained a second mortgage on the North Carolina property, prior to the parties' divorce. Appell ant acknowledg ed that he signed the documents for the second mortgage knowing that the docu ments stated he was "unmarried." Ap pellee first learned abou t the second mortgage after the parties had signed the property settlement agreement. The record further indi cates that once appe llee learned of the existence of the seco nd mortgage, her atto rney and appellant's attorney reached an agreement whereby appellan t would be responsible for pa ying the loan. Appellant admitt ed that he used $19,00 0 of the proceeds from the second mortgage to buy into a partnership and that he borrowed additional funds agains t the line of credit on at least one other occasion. Appellant ma de payments on the se cond mortgage for a period of time. Howe ver, he stoppe d making the payments at a point where he contende d he had paid an amou nt roughly equal to

- 2 -the amount he ow ed appellee for one-half of the value of his IRA account. Appell ant had not otherw ise paid appellee for her share of the IRA ac count. Appellee filed a moti on to compel appellan t to pay the second mortgage. She also filed and rece ived a show cause order requiring appell ant to show cause why he had not co mplied with the property settlement ag reement by failing to pay her one- half of the value of the IRA ac count. Appell ant filed and re ceived a show cause order demand ing that appellee make the second mortgage payments, argu ing that appellee was resp onsible for al l mortgage payments pursuant to th e property settlement agreement. He also sought reimbursement fo r 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 moti on for reim bursement. INTER VIVOS GIFT On appeal, appellan t argues the trial co urt erred in ruling that his payments on the second mo rtgage were an inter vivos gift. However, the trial cour t's order does not stat e that it found the payments constituted an inter vivos gift. Rath er, the order states that appe llant, "is not entitled to any reimbu rsement for monies paid on the se cond mortgage (equity line of cr edit) as these payments were made voluntarily; and his Motion for reimbursement is hereby denied." Furthermore, the record does not indicate that ap pellant made the argument to the trial court that
- 3 -it erred in ruling that the prior payments constituted an inter vivos gift. The record on appeal includes an orde r entered on July 21, 2000, specifying the trial cour t's findings and rulings. Appellant endo rsed the order "SEEN AND OB JECTED TO." The record also contains several versions of a written statem ent of facts that were not signed by the tria l judge. The tr ial judge signed appellee's "Objections to the Written Statemen t of Facts." See Rule 5A:8(d). Neit her the order no r the written statement of facts contains a stat ement 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 th e property settlement ag reement, appellee was responsible for all mortgage payments on the Nort h Carolina property. In hi s show cause order and in his brief on appeal, appellant conten ded that he made payments on the second mortgage in order to protect hi s credit rating when appellee refused to repay the second mortga ge. In his br ief, appellant characterizes this as paym ent made under duress.

- 4 -Common-law "duress" includes "'any wrongful acts that compel a person, such as a grantor of a deed, to ma nifest apparent assent to a transaction with out volition or cause such fear as to preclude him from exer cising free will and judgment in entering into a transa ction.'" Norfolk Div. of Soc. Servs. v. Unknown Father , 2 Va. App. 420, 43 5, 345 S.E.2d 533, 541 (1986) (citation omitted). The evidence showed that, prior to the parties' divorce, appellant obta ined the second mortgage without the kn owledge of appellee. Appellant also used the monies obta ined from the second mortgage as his own source of fu nds, without th e knowledge of appellee. Therefore, the record does no t support ap pellant's contention that he ac ted under duress when he made payments on this loan, the proceeds of which were used entirely for his own personal benefit. Ac cordingly, the trial court did not err in ruling that appellant continue to pay the second mo rtgage payments and in ruling that ap pellant not be reimburs ed for past payments he made on the loan. UNJUST ENRICHMENT In his show ca use order and in his brie f 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."

- 5 -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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