COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Cole man and Willis

CALVIN CORNELL RUFFIN, SR. v. Record No. 1792-99-1 ANDREANIA (PACE) RUFFIN MEMORANDUM OPINION * PER CURIAM ANDREANIA (PACE) RUFFIN FEBRUARY 22, 2000 v. Record No. 1804-99-1 CALVIN CORNELL RUFFIN, SR.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. As kew, Judge (Frederic L. Mosche l; Moschel, Gallo & Clancy, L.L.C., on briefs), for Calvin Cornell Ruffin, Sr. (Vicki Beard, on briefs), for Andreania (Pace) Ruffin.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Calvin Cornell Ruffin , Sr. and Andrea nia (Pace) Ru ffin appeal the final decree of divorce entere d by the circuit court. In his appeal, husband co ntends that the trial court erre d in awarding wife $1,000 in monthl y spousal suppor t. In her appeal, wife contends that th e trial court erre d by (1) failing to find that husband held his lotter y winnings in a constructive trust for the benefit of wife and th e parties' two children ; (2) failin g to find that husband was at fa ult in the dissolution of the marriage; (3)failing to order husban d to pay all outstand ing marital debt; and (4) failing to award wi fe more monthly spou sal support. Upon reviewing the reco rd and briefs of the parties, we conclude that these appeals are without merit. Accordingly, we summarily affirm the decision of th e trial court. See Rule 5A:27. Background The parties ma rried in 1989, had two children, and separated in November 1995. Th e wife filed a bill of complaint for divorce on August 19, 1996. Based upon evidence pr esented at a hearing held on September 19, 1996, the trial court entered a pendente lite order on October 1, 1996, direct ing husband to pay $120 a week in child su pport and $80 a we ek in spousal su pport, beginning September 20, 1996 . Husband did not make any su pport payments until January 19 97. On Septem ber 28, 1996, hu sband won $4.9 million in a lottery, with a gross payout for twenty years exceeding $243 ,000 per annum. After husband clai med his winnings in January 1997, wife filed a motion to increase support. By order entered Marc h 30, 1998, the trial court orde red husband to pay $2,446 in mo nthly child supp ort. Monthly spousal support remained $344, and the trial court orde red husband to pay $823 to wife for payment of ov er $1,100 in monthly marital debts including the mortgage. The tria l court left to be resolved at a later hearing whether the additional payment of $823 was to be characterized as additional spou sal support.

- 2 -By order entered Ap ril 30, 1997, th e trial court referred the

matter to a comm issioner in chancery to determin e the grounds for divorce, equitable dist ribution and support. The commis sioner's hearing was held on February 17, 1998, an d the report filed with the court on May 4, 1998. The commission er recommended that husband be granted a divorce on the grou nd of a one-year separation. The commis sioner also re commended that wife receive $750 in monthly spousal support fo r a period of fo ur years; that the parties spli t the marital de bt equally; an d that wife's request for the im position of a co nstructive trus t on husband's lottery winnings be denied. Both parties filed ex ceptions to the report. In its decree a vinculo matrimonii entered July 2, 1999, the trial court gr anted wife's exception to the comm issioner's recommended sp ousal support awar d. The trial co urt awarded wife $1,000 in perman ent monthly spou sal support. The trial court otherwise accept ed the commissi oner's report. Both parties appealed. Constructive Trust Wife contends that the trial court erred by failing to find that husband's lottery winnings were subjec t to a constructive trust for her bene fit and that of the parties' ch ildren. Wife argues that husb and used his last available funds to purchase the lottery tickets instead of paying his court-ordere d child and spousal support. The commis sioner found no evid ence of fraud or unjust enrichment warr anting the imposition of a cons tructive

- 3 -trust on husband's winn ings. The trial cour t agreed with that finding. We find no error in the tr ial court's dete rmination. "'Constructive trusts arise, independently of the intention of the parties, by construction of law; being fastened upon the conscience of him who has the legal estate, in order to prevent what otherwise would be a fraud. They occur not only where property has been acquired by fraud or improper means, but also where it has been fairly and properly acquired, but it is contrary to the principles of equity that it should be retained, at least for the acquirer's own benefit.'" Rash v. Hilb, Rogal & Hamilton Co. , 251 Va. 281, 287, 467 S.E.2d 791, 795 (1996) (citations and emphasis omitted). "[T]he burden of establishing the gr ounds for the im position of a constructive trust [is] by cl ear and convincing evidence." Hill v. Brooks , 253 Va. 168, 174, 482 S.E.2d 816, 820 (1997). "Moreove r, in order to be entitled to the be nefit of a constructive trust, a claimant's money must be 'd istinctly trac ed' into the chose in action, fund, or other property which is to be made the su bject of the trust." Crestar Bank v. Williams , 250 Va. 198, 204, 462 S.E.2d 333, 335 (1995). Wife contends that the $2 husband used to purchase the winning lottery ti cket on Septembe r 28, 1996 were already owed to her and their children pursuant to the pendente lite order of the trial court at the Sept ember 19, 1996 hearing. She argues that a constructive trust arose as of Se ptember 20, 1996, the date when

- 4 -his first supp ort payments were due. 1 However, no fund existed on that date upon which to impose a constructi ve trust, as husband did not win the lo ttery until eight days later. It is true that husband's first an d second weekly payments were ou tstanding on the day husband purcha sed the winning lottery ticket. However, as acknowledged by wife, husband had limited funds on September 20 due in part to the fact he recently had purcha sed a car. Although husband's car paym ents were undo ubtedly a greate r drain on his ability to pay support th an the $2 he used to purchase the lottery tickets, wife ar gued that the mo ney husband used to purchase the tickets was tracea ble solely to fu nds obligated fo r support. While husband' s failure to pay his co urt-ordered support was reprehensible, wife failed to pres ent sufficient ev idence of fraud or unjust enrichment to warrant the imposition of a constructive trust on his lottery winnings. Husband pu rchased the lottery tickets pursuant to his habit esta blished thro ughout the marriage. As a result of his wi nnings, he was capable of providin g greater financial supp ort to his children than at any time during the marriage. We cann ot say that husb and's good fortun e so reeked of injustice as to require the imposi tion of a constr uctive trust on his lottery winnings.

1 This ruling was su bsequently memorial ized in an order entered Octobe r 1, 1996.

- 5 -Grounds of Divorce Wife also contends that the trial court erred in failing to award her a divorc e on the ground of desertion. The commissioner recommended th at husband be granted a di vorce on the basis of a one-year separation. The trial court ac cepted that recommendation. Assuming without deciding that there was sufficient evidence to support a find ing of desertion by husband, "[i]t is well esta blished that 'whe re dual or mult iple grounds for divorce exist, the trial judge ca n use his sound discretion to select the grounds up on which he will gr ant the divo rce.'" Williams v. Williams , 14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992) (citation omitte d). Evidence establis hed that the parties lived separate and ap art in excess of on e year intending the separation to be final. Therefore, there wa s evidence supporting the trial court' s decision. We fi nd no abuse of di scretion in the trial court's deci sion not to awar d wife a divorce on the ground of desertion. Marital Debts Wife contends that the trial court erred by failing to assign approximately $8,000 in marita l debts to husban d. Under Code § 20-107.3(C), the trial court ha s the authority "t o apportion and order the payment of the debts of the partie s, or either of them, that are incurred prio r to the dissol ution of the ma rriage, based upon the factors li sted in subsection E." "[D]ecisions concerning equitable dist ribution rest wi thin the sound di scretion of the

- 6 -trial court and wi ll not be reversed on appeal unless plainly wrong or unsupported by the evidence." McDavid v. McDavid , 19 Va. App. 406, 407-08, 45 1 S.E.2d 713, 715 (1 994). There was no evidence that th e debts were incurred so lely for the benefit of one party. Wife 's argument, dist illed to its esse nce, is that husband's post-separation lotter y winnings give him greater resources from which to pay these debt s. We find that argument unpersuasive, and find no error in the trial cour t's decision to require the part ies to share the mari tal debts equally. Spousal Support Finally, wife conten ds that the trial co urt erred by failing to award her more spou sal support. The trial cour t considered both the statutory fa ctors and the ev idence before making its award. While wi fe faced greater expenses with the prospective relocation to a larger residence, she also had the grea ter income throughout the marriage. In fa ct, wife was th e primary wage earner. We find no error in the trial cour t's refusal to award a greater amount of spousal su pport. Likewise, we find no error in the tria l court's re quirement that husband pay wife $1,000 per month perman ent spousal support. The trial court' s determinations , supported by the evidence, imposed no bar to wife 's entitlement to su pport. Th e amount ordered is consistent with her proven need and husband' s proven ability to pay.

- 7 -Accordingly, the de cision of the circuit court is summarily affirmed. Affirmed.

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