COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

NANCY M. JAFFE 

 MEMORANDUM OPINION* BY 

v. Record No. 2348-96-2 JUDGE MARVIN F. COLE 

 JUNE 17, 1997 

STEPHEN L. JAFFE 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H. C. Taylor, Judge 

 Lawrence D. Diehl for appellant. 

 Stephen L. Jaffe, pro se. 

 Nancy M. Jaffe (wife) appeals a decision of the Circuit 

Court of Hanover County disposing of certain issues of spousal 

support and equitable distribution. She contends that the trial 

court erred in (1) awarding a lump sum award of $50,000 as 

spousal support in lieu of periodic spousal support; (2) failing 

to compensate her for services rendered and expenses incurred in 

developing and subdividing the marital real estate known as 

"Stanley Farms"; (3) failing to complete the personal property 

division pursuant to its previous rulings; and (4) denying her 

motion to modify and suspend the execution of the court's order 

of August 27, 1996, because the trial court failed to properly 

assess the tax consequences of the order. Upon reviewing the 

record, we find this appeal without merit and affirm, except that 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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part awarding a $50,000 lump sum in lieu of periodic spousal 

support, which we reverse and remand. 

 Because the parties are familiar with the facts, we restate 

only those facts necessary to explain our holdings on the issues. 

 I. Lump Sum Award

 During the years that this cause has been pending, Stephen 

L. Jaffe (husband) has been paying periodic spousal support. In 

its latest spousal support order dated May 25, 1995, the trial 

court ordered husband to pay wife monthly the sum of $1,500, plus 

medical insurance, effective April 1, 1995. In a final letter 

opinion concluding all of the issues before it, the trial court 

found a change of circumstances and ordered that the monthly 

payment of spousal support and medical insurance should cease on 

September 1, 1996, and that the husband will be required to pay 

to wife in lieu thereof a lump sum payment of $50,000, which was 

to be paid out of the husband's distribution from the sale of 

"Stanley Farms" lots held in escrow by Commissioner Vaughan. The 

trial judge stated that "to continue to require a relationship, 

each with the other, is materially destructive." The order did 

not grant the right to the wife to petition the court for 

additional support in the future. 

 Code § 20-107.1 provides that "[t]he court, in its 

discretion, may decree that maintenance and support of a spouse 

be made in periodic payments, or in a lump sum award, or both." 

The exercise of the trial court's discretion will not be 
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disturbed upon appeal unless it has been exceeded. 

 With regard to how the court shall 

fashion an award of spousal support, the 

law's aim is to provide a sum for such period 

of time as needed to maintain the spouse in 

the manner to which the spouse was accustomed 

during the marriage, balanced against the 

other spouse's ability to pay. The balance 

must be struck and awards made upon the basis 

of the circumstances disclosed by the 

evidence at the time of the award. 

Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) 

(citation omitted). 

 In Blank, this Court stated that "[g]enerally, when courts 

do make lump sum spousal support awards they do so because of 

special circumstances or compelling reasons, and appellate courts 

uphold such awards where the record clearly reflects the court's 

rationale for finding that the award will adequately provide for 

contingencies." Id. at 5, 389 S.E.2d at 725. We acknowledged 

that under some circumstances a lump sum award may be justified 

and advantageous to one or both parties. One who receives the 

benefit of a lump sum award does not have to face the possibility 

that payments may diminish with changes in the payor's 

circumstances. The payor is assured that he can plan for the 

future without facing the uncertainty that the support obligation 

may be increased. See id. at 5-6, 389 S.E.2d at 725-26. "A lump 

sum award based on evidence showing special circumstances or 

compelling reasons may be final if fully adequate to meet the 

payee spouse's reasonably foreseeable needs." Id. at 6-7, 389 

S.E.2d at 726. 
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 In the present case, neither party favored a lump sum award. 

 Husband, for reasons set forth in the Plaintiff's Memorandum of 

his Position dated July 20, 1996, contended that wife was not 

entitled to any spousal support because she was able to work and 

had sufficient assets received from equitable distribution of the 

marital assets to support herself. Wife, for reasons set forth 

in the Defendant's Memorandum of her Position filed on July 29, 

1996, contended that her spousal support should remain at $2,000 

monthly, plus payment of medical insurance. She did suggest, 

pursuant to a request from the trial court, that she would accept 

a lump sum award (based upon life expectancy tables of 26.4 years 

and $2,000 monthly support payments) of $471,457. 

 We do not find any special circumstances or compelling 

reasons for a lump sum award in this case. When the parties 

receive their final distribution for the sale of the "Stanley 

Farms" lots, now held in an escrow account by the special 

commissioner, both husband and wife will receive a substantial 

cash distribution which will more than satisfy any need for cash 

at the present time. 

 Husband recognizes that he and wife are at ages where 

disability has become a major concern in their lives. He asserts 

that physical barriers and declining age may affect his economic 

future and that this must be considered in the court's decision. 

 Wife claims that because of her age and physical disabilities, 

the only jobs she can secure would pay $5-$8 an hour. She will 
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receive a substantial distribution when the special commissioner 

makes the distribution from the sale of "Stanley Farms" lots. In 

addition, she contends that she will need monthly support 

payments in the amount of $2,000 to live up to the standard of 

living to which she is accustomed. Finding no evidence of 

special circumstances or compelling reasons to justify a lump sum 

award in lieu of periodic payments, we find that the trial court 

erred in awarding the lump sum payment in lieu of periodic 

spousal support payments. We vacate the lump sum award of 

$50,000 and remand for determination of an appropriate periodic 

spousal support payment or the reservation of the right to 

request spousal support if no periodic support is awarded. 

 II. Claim for Services and Expenses Incurred

in Development of "Stanley Farms" 

 Wife contends that she conceived the plan of development of 

"Stanley Farms," obtained releases from lenders, supervised the 

work, did the layouts for electric utilities, and obtained 

approval of the subdivision from Hanover County and appropriate 

state agencies. She asserts that she is entitled to compensation 

for her services and expenses in the work she did in the 

subdivision of "Stanley Farms." Husband points out that he kept 

the cash flowing since January of 1989, that he performed as much 

work as wife, yet he received only 45% of the distribution from 

the sale of this marital asset. 

 On April 13, 1994, wife filed a motion in the divorce and 

equitable distribution cause asking the court to compel the 
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subdivision of "Stanley Farms." She alleged that she, together 

with many professionals experienced in subdivision planning, 

formulated a plan and funding for subdividing "Stanley Farms," 

that husband refused to sign the necessary documents enabling the 

project to go forward, and she moved the court to order the 

proposed subdivision. 

 On April 18, 1994, a hearing was held on the motion to 

subdivide, on a motion to award compensation to the wife for her 

services and expenses and on other motions not pertinent hereto. 

 The trial court ordered that the parties immediately execute all 

documents necessary for the subdivision of "Stanley Farms" 

consistent with the subdivision plan of the wife and Wally 

Hughes, a realtor, the engineering and survey proposal prepared 

by Paul Jalbert and the realty marketing agreement proposed by 

Sandra Worsham and Wally Hughes, Incorporated. The court further 

ordered that until the sale of "Stanley Farms," husband continue 

to pay all outstanding mortgages, taxes and insurance as 

previously ordered by the court. The court further ordered that 

each party share equally in the expenses of the sale of each lot 

associated with the cost of the subdivision, e.g., the cost of 

the roads and surveys. The court took under advisement wife's 

motion for compensation for her work on the subdivision. 

 In her brief, wife admits that no Virginia court has 

directly addressed the issue of fees or compensation for 

equitable distribution sales efforts, but relies upon Swinford v. 
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Swinford, 682 S.W.2d 189 (Mo. Ct. App. 1984), referring to the 

appointment of a person to effectuate a sale of property, the 

court stating: "Obviously, the appointment would entitle the 

person to a reasonable fee to be fixed by the court." Id. at 

192. This case is not on point because it does not deal with 

joint tenants. In this case, the trial court has compensated 

Special Commissioner Vaughan for his services and expenses out of 

joint funds. All of the professional persons who worked on the 

subdivision have been paid out of joint funds. Wife has been 

paid for her expenses out of joint funds. Husband has not been 

reimbursed for payment of the mortgages, taxes and insurance out 

of joint funds. 

 Code § 20-107.3(C) gives to a circuit court jurisdiction to 

deal with marital assets. The statute provides that the court 

may, based upon the factors listed in subsection E, divide or 

transfer or order the division or transfer, or both, of jointly 

owned marital property, or any part thereof. As a means of 

dividing or transferring the jointly owned marital property, the 

statute provides that the court may transfer or order the 

transfer of real or personal property or any interest therein to 

one of the parties, permit either party to purchase the interest 

of the other and direct the allocation of the proceeds, provided 

the party purchasing the interest of the other agrees to assume 

any indebtedness secured by the property, or order its sale by 

private sale by the parties, through such agent as the court 
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shall direct, or by public sale as the court shall direct without 

the necessity for partition. We do not believe that the statute 

grants authority to the circuit courts to require the parties to 

subdivide real estate in order to sell it. Subdivision of land 

requires approval and regulation by both municipal and state 

governments. It requires planning, financing, surveying, 

building roads and utilities before selling lots, as was done in 

this case. The statute does not require the parties to 

involuntarily submit to such risks. The statute envisions a sale 

or division of the property in its current state. Wife has not 

advanced any legal theory that will permit her to recover for 

services rendered in planning a subdivision where the actual work 

has been performed by third parties who are knowledgeable in such 

areas and paid for such work by the special commissioner out of 

the proceeds of sale of the real estate. 

 Wife cannot recover in this divorce case upon any theory of 

contract law because there was no contract between the joint 

owners of the real estate. The husband did not voluntarily agree 

to a subdivision of "Stanley Farms," but was involuntarily 

required to participate by virtue of a court order. 

 It is an established principle of property law that 

 "[c]otenants may, of course, render, 

themselves jointly liable to third persons by 

contracting jointly in respect to the common 

property. But one tenant in common cannot 
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bind his cotenant personally nor by any 

unauthorized agreement or act in respect to 

the common property. There is no 

relationship existing between cotenants, as 

between partners, which will render the acts 

of one cotenant respecting the common 

property binding on the others. No action of 

one or more of several tenants in common can 

impair the rights of the other cotenants." 

Overby v. White, 245 Va. 446, 448, 429 S.E.2d 17, 18-19 (1993) 

(citation omitted). 

 If we considered the sale in this case equivalent to a 

partition suit for the sale of real estate, wife still could not 

recover for her services. The Supreme Court, in Shotwell v. 

Shotwell, 202 Va. 613, 119 S.E.2d 251 (1961), stated: 

 It is true that as a general rule a joint 

tenant who at his own expense places 

permanent improvements upon common property 

is entitled in a partition suit to 

compensation for the improvements. This is 

so, whether his cotenant agreed thereto or 

not. Compensation of this kind is allowable 

not as a matter of legal right but purely as 

a desire of a court of equity to do justice 

and to prevent one tenant from becoming 

enriched at the expense of another. However, 

in the absence of consent on the part of the 

cotenant the amount of compensation is 

limited to the amount by which the value of 

the common property has been enhanced. 

Id. at 618, 119 S.E.2d at 255. 

 Wife does not come under this rule because she did not prove 
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the actual construction of any improvement and, although 

subdividing the land may have seemed a premium price for it, she 

presented no evidence that her services produced any enhancement 

in value to the common property. We find that the trial judge 

was not plainly wrong in denying her claim for compensation in 

planning the subdivision of "Stanley Farms." 

 III. Personal Property Division

 Wife contends that the trial court failed to complete the 

personal property division pursuant to previous rulings of the 

court. 

 The commissioner in chancery, whose recommendation was 

approved by the trial court, made no monetary award to either 

party, but decided this case under Code § 20-107.3(C) that 

provides for the division or transfer, or both, of jointly owned 

marital property. Regarding a division of the personal property, 

the commissioner reported that wife should retain ownership of 

her motor vehicle and husband should retain the vehicle he had in 

his possession. He further reported that they should each retain 

ownership and possession of the personal property that they had 

in their possession at the time. He distributed to husband 

complete ownership and possession of the personal property 

located at his professional office. He provided that the horses, 

the tack, the motorboat, gear and trailer, sporting equipment, 

the fully equipped workshop and other building supplies should be 

sold with the farm. 
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 The trial court decided that the divisions to date were 

sufficient to finalize the award. Wife in her brief asserts that 

the trial court's statement was made with no evidence to support 

such a conclusion; such a conclusion without a full accounting, 

without a valuation of the remaining items to be distributed, was 

not supported by the record. She contends that we should remand 

this issue to the trial court for purposes of finalizing the 

personal property division according to the original final 

decree. 

 "On appeal, the judgment of the trial court is presumed 

correct. The burden is on the party who alleges reversible error 

to show by the record that reversal is the remedy to which he is 

entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 

S.E.2d 384, 387 (1991) (citations omitted). Litigants have the 

burden to present evidence sufficient for the court to discharge 

its duty. "'[T]he burden is always on the parties to present 

sufficient evidence to provide the basis on which a proper 

determination can be made . . . .'" Bowers v. Bowers, 4 Va. App. 

610, 617, 359 S.E.2d 546, 550 (1987) (citation omitted). 

"'Parties should not be allowed to benefit on review for their 

failure to introduce evidence at trial. . . . At some point we 

must "ring the curtain down."'" Id. (citations omitted). We 

find no error in the trial court's ruling. 

 IV. Tax Consequences

 Wife contends that the trial court erred in denying her 
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Motion to Modify and Suspend its August 27, 1996 order because it 

failed to properly assess the tax consequences of such order. 

The trial court explained, when it denied the motion, that all 

ten items set forth in Code § 20-107.3(E) were examined by the 

commissioner and by the trial court on many occasions, 

particularly during the period of time when the distribution of 

assets, sale of lots, the purchase of lots by wife and the 

purchase of all of the property by wife were under discussion. 

The court stated that the tax consequences were taken into 

consideration in examining the change of circumstances and 

setting the lump sum award in lieu of alimony. 

 The trial court is directed by the statute to consider tax 

consequences in making an award of equitable distribution. The 

record in this case reflects that the trial court on many 

occasions has considered tax consequences. We find that it 

neither abused its discretion nor misapplied the statutory 

factors in its adjudication of the award. Therefore, it did not 

err in refusing to modify or suspend execution of its August 27, 

1996 order. 

 For the foregoing reasons, the decision of the trial court 

is affirmed in part and reversed in part. The provision for a 

$50,000 lump sum award in lieu of periodic spousal support is 

vacated and is remanded to the trial court to determine 

appropriate periodic spousal support. 

 Affirmed in part,

reversed in part,

and remanded.