COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Coleman 

Argued at Salem, Virginia 

CHARLES R. CARPENTER 

 MEMORANDUM OPINION* BY 

v. Record No. 2437-96-3 JUDGE JAMES W. BENTON, JR. 

 OCTOBER 28, 1997 

JUDY ANN SMITH CARPENTER 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Diane McQ. Strickland, Judge 

 Harry F. Bosen, Jr. (Harvey S. Lutins; 

Stephen B. Hebblethwaite; Lutins, Shapiro & 

Kurtin, on brief), for appellant. 

 Terry N. Grimes (King, Fulghum, Snead, Nixon 

& Grimes, P.C., on brief), for appellee. 

 On this appeal from a final decree of divorce, Charles R. 

Carpenter argues that the trial judge erred in decreeing as to 

the property of the parties. Specifically, the husband contends 

that the trial judge erred in: (1) compelling him to restore 

marital funds that he used for payment of indebtedness while the 

case was pending; (2) disregarding the testimony of a 

court-appointed expert regarding the appraisal of husband's 

business and accepting the valuation of a competing expert; (3) 

placing a higher value on two automobiles than warranted by the 

evidence; and (4) ordering the husband to make a lump sum payment 

within six months to his wife, Judy Ann Smith Carpenter, when no 

evidence revealed that the husband could do so without obtaining 

a loan. The wife argues that the husband's appeal should be 

 

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

designated for publication. 
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dismissed because the husband failed to file an appeal bond with 

surety as required by Rule 5A:17 and Code § 8.01-676.1. For the 

reasons that follow, we affirm the decree. 

EXPENDITURE OF MARITAL FUNDS 

 On January 9, 1995, three months after the wife filed a bill 

of complaint for divorce, the trial judge enjoined the parties 

"from selling, secreting, encumbering, or otherwise disposing, in 

whole or in part, of marital property during the pendency of 

these proceedings." The evidence proved that as of May 31, 1995, 

the parties' marital assets included a PaineWebber account with a 

balance of $67,792.77. The husband testified, however, that 

between May 1995 and March 1996 he used $23,000 from the account 

to pay various debts. Specifically, the husband said he paid 

$8,500 toward a tax lien, $7,090 in real estate taxes on rental 

properties, $5,500 on a note secured by one of the properties, 

and $8,200 for personal expenses. He testified that the 

remaining balance in the PaineWebber account was $35,699. 

 The trial judge found that the parties' PaineWebber account 

was marital, valued the account at $68,265, and found that the 

husband had withdrawn $32,565.24 from the account in violation of 

the January 9, 1995 order. Finding that the husband had violated 

the order not to dissipate the marital assets, the trial judge 

awarded the wife $35,699.76. To restore the funds the husband 

had withdrawn in violation of the order, the trial judge awarded 

the husband the amount of his expenditure, $32,565.24. 
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 The husband argues that because he withdrew $23,000 from the 

PaineWebber account to pay marital debts, he met his burden of 

proving that the funds were spent for a proper purpose. 

Therefore, he argues, the trial judge abused her discretion in 

allocating the expenditure solely to the husband. 

 Unless "plainly wrong or without evidence to support it," 

the trial judge's finding of fact that underlies an equitable 

distribution award will be upheld. Srinivasan v. Srinivasan, 10 

Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). Although the 

husband argued that he used the money to pay marital debts, the 

only evidence that he did so is his own testimony. The husband 

provided no other evidence to support this assertion. He offered 

no statements, receipts, or checks. Furthermore, the record 

contains no specific identification of the particular debts that 

were owed or that the husband said he paid. Without proof that 

the debt was marital and that the money was, in fact, used to pay 

those debts, the trial judge was not required to accept the 

husband's testimony that he used the money to discharge marital 

debts. As the trier of fact, the trial judge had to decide the 

issue of the witness' credibility. See Klein v. Klein, 11 Va. 

App. 155, 161, 396 S.E.2d 866, 869 (1990). 

 Moreover, the husband did not seek permission from the trial 

judge before liquidating the marital assets, and he did not 

confer with his wife before invading the account. The husband 

did not have checks issued directly from the PaineWebber account 
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to any marital creditors, and he admitted that he used part of 

the money for his personal use. In the absence of documents 

establishing the payment of marital expenses and in view of the 

husband's admission that he paid some of his personal bills, we 

find no basis to reverse the trial judge's findings. When "[t]he 

credibility of witnesses was crucial to the determination of the 

facts, . . . the findings of the trial [judge] based upon the 

judge's evaluation of the testimony of witnesses heard ore tenus

are entitled to great weight." Shortridge v. Deel, 224 Va. 589, 

592, 299 S.E.2d 500, 502 (1983). 

 "Dissipation [of marital funds] occurs 'where one spouse 

uses marital property for his own benefit and for a purpose 

unrelated to the marriage at a time when the marriage is 

undergoing an irreconcilable breakdown.'" Clements v. Clements, 

10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990) (quoting Hellwig 

v. Hellwig, 426 N.E.2d 1087 (1981)). Furthermore, we have held 

that "[o]nce the aggrieved spouse shows that the marital funds 

were either withdrawn or used after the breakdown, the burden 

rests with the party charged with dissipation to prove that the 

money was spent for a proper purpose." Clements, 10 Va. App. at 

586, 397 S.E.2d at 261; see also Amburn v. Amburn, 13 Va. App. 

661, 666, 414 S.E.2d 847, 850 (1992). When the trial judge finds 

that one of the parties has dissipated marital funds, the trial 

judge does not err in adding that value to the marital estate 

when making the monetary award. Stroop v. Stroop, 10 Va. App. 
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611, 615, 394 S.E.2d 861, 863 (1990). Accordingly, we hold that 

the trial judge did not abuse her discretion in ordering the 

husband to restore funds he withdrew in violation of the judge's 

order. 

VALUATION OF BUSINESS 

 David P. Lucas, a certified public accountant, was selected 

to prepare a report valuing Vinton Roofing and Remodeling, a 

business that was marital property. Lucas reviewed the 

corporation's tax returns for the previous five years, 

interviewed the accountant who had prepared the tax returns, and 

met with the husband to discuss the business. In addition, Lucas 

reviewed the corporation's books, inspected its equipment, and 

inquired about the realty held by the corporation. Lucas 

reported that the business had a market value of $45,533, 

excluding any real estate. Lucas also reported that the real 

estate had a net equity value of $10,347. Lucas conceded that 

another expert might find that the market value of the business 

was substantially greater. 

 Hope Player, another certified public accountant, testified 

that she reviewed Lucas' report and also reviewed the corporate 

tax returns of the business. She did not conduct an independent 

valuation of the business. Player valued the business at 

$172,988, basing her higher appraisal on the consideration of the 

business' revenue and profit generating capability and the value 

of the assets of the business. Stating that she gave 
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consideration to the testimony of both experts, the trial judge 

accepted Player's analysis and valued the business at $172,988. 

 A trial judge's resolution of conflicting expert testimony 

is a question of fact and will not be disturbed on appeal unless 

plainly wrong. See Frazer v. Frazer, 23 Va. App. 358, 366, 477 

S.E.2d 290, 293-94 (1996). Contrary to the husband's argument, 

the trial judge was not required to reject Player's analysis. 

Both analyses were fully explained in testimony and by the 

experts' reports. The evidence before the trial judge required a 

resolution of conflicting valuations. The trial judge was not 

plainly wrong in accepting Player's analysis and rejecting Lucas' 

valuation. Because the evidence in the record amply supports the 

trial judge's finding that the corporation had a value of 

$172,988, we affirm the ruling. 

VALUATION OF AUTOMOBILES 

 Richard Mayo, a dealer in "collectible" cars, testified that 

he appraises vehicles. Based upon his review of photographs, 

Mayo testified that the value of the husband's reproduction 

Oldsmobile was between $1,500 and $3,000 and that the value of 

the Metz was between $2,500 and $5,000. He testified that a 

restored Metz would be worth $10,000. The husband testified that 

he purchased the Oldsmobile for $1,500 and that the high bid for 

the Metz at an auction was $3,600. The trial judge valued the 

vehicles at $9,500. 

 A trial judge may select a value within a range of 
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conflicting opinions. See Zipf v. Zipf, 8 Va. App. 387, 395, 382 

S.E.2d 263, 268 (1989). The trial judge had credible evidence of 

value to base her finding and was not required to reject it 

merely because the husband believed his evidence was more 

persuasive. See id. According to the testimony of Mayo, the 

combined values for the cars was between $6,500 and $13,000. The 

value the trial judge placed on the cars was within the range of 

values attributed to the cars by the expert. Thus, the evidence 

supported the trial judge's valuation. 

LUMP SUM PAYMENT 

 In the final order, the trial judge found that the husband 

possessed $854,665 in marital assets and the wife possessed 

$130,585 in marital assets. Ordering a distribution of the 

assets' value, the judge found that the husband owed the wife 

$361,975. As partial satisfaction of the award, the judge 

ordered the wife to select eight parcels of real estate. To 

satisfy the remainder of the award, the husband was ordered to 

make a lump sum payment to the wife equal to the difference 

between the equity value of the properties selected by the wife 

and the sum of $361,975. The payment was to be made within 180 

days of April 5, 1996. 

 The trial judge may, in her discretion, order that a 

monetary award be payable as a lump sum or in periodic fixed 

amounts. See Code § 20-107.3(D); Brinkley v. Brinkley, 5 Va. 

App. 132, 135, 361 S.E.2d 139, 140 (1987). In this case, the 
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trial judge ordered the husband to make a lump sum payment of 

over $100,000 to the wife within 180 days. The husband argues 

that he would have to obtain an institutional loan to make this 

payment and, therefore, should be allowed to satisfy the award in 

twelve monthly installments. 

 In his statement of objections, the husband stated that he 

did not object to the "monetary sum decreed by the Court" and 

that the "source of funds to make such monetary payment is the 

real property." The evidence proved, however, that the husband 

had sufficient assets that he could liquidate to satisfy the 

award, including selling some of his real property. Accordingly, 

the trial judge did not abuse her discretion in ordering the 

husband to pay the award within 180 days. 

 BOND ISSUE 

 The wife's argument that the husband's appeal bond is 

defective is moot. After the wife filed her brief, the husband 

filed a replacement bond. The new bond secures the costs of 

appealing from the September 5, 1996 judgment and is in proper 

form. 

 In summary, we affirm the trial judge's decree ordering the 

husband to restore the marital funds dissipated from the 

PaineWebber account, valuing the business and vehicles, and 

awarding a lump sum to the wife to be paid within 180 days. In 

addition, however, we remand the case to the trial judge for 

consideration of appellee's request for her attorney fees 
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expended on this appeal. 

 Affirmed and remanded.