COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Beales and Senior Judge Willis Argued at Salem, Virginia

DAVID JOHN NEUHS MEMORANDUM OPINION * BY v. Record No. 2381

- 11

- 3 JUDGE JERE M.H. WILLIS, JR

. DECEMBER 4 , 2012 PATRICIA ANN RICHARDSON NEU HS

FROM THE CIRCUIT COURT OF BOTETOURT COUNT Y Malfourd W. Trumbo , Judge
Frank K. Friedman ( Erin B. Ashwell; John Gregory, Jr. ; Woods Rogers PLC , on brief s ) , for appellant. Monica Taylor Monday ( Rhonda L. Overstreet; Gentry Locke Rakes & Moore; Over street Sloan PLLC, on brief) , for appellee.

David John Neuhs ( h usband) appeal s from an equitable distribution ruling. H e contends:
I. Where the trial court found Patricia Richardson Neuhs ( w ife ) wasted/dissipated assets, it

err ed by failing to count the wasted assets as property in w ife’s possession

. He asserts specifically
that :

a. Where w ife admitted withdrawing $40,000 from a marital Ameritrade account in order to start her own business, the trial court erred in using the reduced value of the A meritrade account in determining equitable distribution, rather than using that value plus the amount wasted/dissipated and charging w ife with possession of the $40,000 wasted/dissipated.
b. The trial court erred in failing to include as marital assets o ther funds wasted/dissipated by w ife and in failing to restore to h usband his separate property wasted by w ife, including significant sums spent on a trip to London for her son and his friends, a $4 , 500 bracelet,

* Pursuant to Code § 17. 1

- 413, this opinion is not designated for publication.UNPUBLISHED- 2

- approximately $30,000 pilfered from Valley Trailer and Truck Parts, and other unnecessary purchases and expenditures by her that drained marital funds and h usband ’ s separate assets.
II. The trial court erred and misapplied Code § 20

- 107.3 in ruling that DJN Investments, LLC, and other properties held therein, were marital property subject to equitable distribution where those properties were his separate property and were maintained as separate property, particularly noting that he had named DJN for himself and had made himself its managing member and 100%

owner.
III. The trial court erred by failing to classify three marital bank accounts. Wife assign s as cross
- error the following :
I. The trial court erred in failing to classify specific property and/or include it in the equitable distribut ion award . She asserts specifically that :

a. The trial court erred in failing to classify the Christian Avenue property and the proceeds
of its sale as her separate property

. b. The trial court erred in failing to include h usband’s IRA, which was c lassified as marital property, in the equitable distribution award

.

c. The trial court erred in failing to classify, consider, and award her the monthly rent received by h us band for the 1757 Granby Avenue property for the mon ths of April, May , and June
2010.
I I. The trial court erred in classifying the Ameritrade a ccount as marital property.
I II

. The trial court erred in failing to award her spousal support. We affirm the judgment of the trial court in part, reverse it in part, and remand th e case to the trial court for further proceedings consistent with this opinion.- 3

- BACKGROUND The parties were married on March 17, 2002. 1 During the marriage, the y formed several
business entities. The first was Costa Maya Investments, LLC (CMI), which acquire d and managed real estate. Wife was the sole and managing member of CMI. They n ext formed Costa Maya Rentals, LLC (CMR), which owned trucks and trailers used in h usband’s trucking
business. Wife wa s the managing member of CMR. In 2003, in property dist ribution from h is previous marriage, h usband received D&T Trucking Co., Inc. (D&T) and several real estate properties. H e formed DJN Investments, LLC (DJN) to acquire, hold, and manage the se assets. During the parties’ marriage , DJN acquired
additional r eal estate. Husband was the sole owner of DJN. In August 2003, h usband formed DNCS, Inc. (DNCS). He received all the stock of
DNCS i n exchange for the assets of D&T

. DNCS ran the trucking business that h usband had established prior to the marriage. Hu sband worked for DNCS , which paid him a salary. In 2005, t he parties acquired Valley Truck & Trail er Parts, Inc. (VT&T). Husband wa s the sole stockholder. Wife worked full time for VT&T and was paid a salary. In June 2010, the parties sold VT&T.
On De cember 4, 2008, w ife filed a c omplaint for divorce based on adultery and
constructive desertion. Pursuant to a p retrial o rder, the parties submitted schedules identifying property that they claimed to be separate, marital, or hybrid. The trial court hear d evidence and
received t he parties ’ written closing arguments. On May 6, 2011, in its letter opinion, the trial court awarded w ife a divorce based on adultery. It noted that the parties disagreed “over whether the vast majority of the property

1 This was the third marriage for each party. Wife’s second marriage ended in divorce in 2000. Husband’s second marriage ended in divorce on March 15, 2002. The equitable distribution of marital pr operty from husband’s second marriage was finalized on May 19, 2003.- 4

- should be classified as separate or marital property for the purposes of equitable distribution.” It classified and valued most of the property. Considering the factors in Code § 20

- 107.3 (E) , it
awarded h usband sixty percent of the marital property and w ife forty percent. It denied w ife’s request for spousal support. A final decree of divorce was entered on October 26, 2011.
Husband and w ife each noted objections

. ANALYSIS

“ [D] ecisions concerning equitable distribution rest within the sound discretion of the t rial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.”
McDavid v. McDavid , 19 Va. App. 406, 407

- 08, 451 S.E.2d 713, 715 (1994) (citing Srinivasan
v. Srinivasan , 10 Va. App. 728, 732 , 396 S.E.2d 675, 678 (1990))

. Husband’s Assignments of Error
Issue I ( a ): Ameritrade Account
Husband contends that even though the trial court found w ife wasted/dissipated assets, it erroneously failed to count those assets as property in her possession. H e argues that although

w if e admitted withdrawing $40,000 from the Ameritrade account to form a business for herself , the trial court failed to account for this money when valuing and dividing the account. “Dissipation occurs ‘where one spouse uses marital property for his own bene fit 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 , 1094 (Ill. Ct. Ap p. 1981)). Similarly, waste is defined as the “dissipation of marital funds in anticipation of divorce or separation for a purpose unrelated to the marriage and in derogation of the marital relationship at a time when the marriage is in jeopardy.”
Booth v. Booth , 7 Va. App. 22, 27, 371 S.E.2d 569, 572 (1988). See also Smith v. Smith , 18- 5

- Va. App. 427, 430

- 31, 444 S.E.2d 269, 272 (1994) (using “dissipation of assets” and “waste” interchangeably). “Once the aggrieved spouse shows that marital funds were ei ther withdrawn or used after the breakdown [of the marriage], the burden rests with the party charged with dissipation to prove that the money was spent for a proper purpose.” Clements , 10 Va. A pp. at 586, 397 S.E.2d at 261.
The evidence established t hat w ife withdrew $40,000 for her own business purposes. She
admitted that s he did so. The trial court did not address th is $40,000

. In its letter opinion, the trial court stated,
The Court finds that Husband did contribute much more financially to the ac quisition of the property. Furthermore, the short duration of the marriage, the facts surrounding the acquisition of marital property, and the evidence of Wife’s dissipation of marital assets during the separation suggest Husband should be awarded a great er share of the property. (Emphasis added.) Although the trial court h eld that w ife had dissipated marital assets, it did not identify what m arital assets she dissipated. The trial court’s letter opinion and final decree do not provide us sufficient info rmation to
review h usband’s assignment of error and the correctness of the trial court’s holding. Therefore,
we remand this issue for clarif ication of the Ameritrade analysis ; i.e. what the trial court found to be dissipat ed by w ife, whether and to what e xtent this wa s waste, a specific classification of the $40,000 conceded by w ife to have been withdrawn for her business, and reclassification and
valuat ion of the Ameritrade account.
Issue I ( b ): Rule 5A:18 Husband argues that the trial court also failed t o include as marital assets other funds w ife wasted or dissipated. Husband specifically asserts as waste the money w ife spent providing a- 6

- trip to London for her son and his classmates, a $4,500 bracelet she purchased , 2 approximately $30,000 withdrawn from VT&T, and “other unnecessary purchases and expenditures that
drained marital funds a nd husband’s separate assets.” Husband did not preserve th ese issue s in his objections to the final decree of divorce. “No ruling of the trial court .

. . will be consid ered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.
Because h usband did not note these issues in his objections to the trial court ’s ruling , we will not consider th em on appeal.
Issue II : Classification of DJN Husband argues that the trial court erred and misapplied Code § 20

- 107.3 in ruling that DJN and the properties held therein were m arital property subject to equitable distribution. H e contends DJN was his separate property. “Because the trial court’s classification of property is a finding of fact, that classification will not be reversed on appeal unless it is plainly wrong or wit hout evidence to support it.” Ranney v. Ranney , 45 Va. App. 17, 31

- 32, 608 S.E.2d 485, 4 92 (2005) (citations omitted). DJN was formed on July 14, 2003, during the marriage. Therefore, it is presumed to be marital property. Code § 20

- 107.3(A)(2). DJN h eld eight real estate properties at the time of the parties’ separation

. Husband argues that DJN is his separate property because five of the properties in DJN were acquired by h im in his previous divorce and three were acquired in

e xchange for separate p roperty.

2 Although the trial court made no finding of waste, the trial court included the bracelet as part of wife’s jewelry, which it allocated and charged to her, in the equitable distribution award.- 7

- The trial court disagreed with h usband’s contention that DJN was his separate property
and held that it was marital property. The evidence supports th is finding

. I n its letter opinion,

t he trial court stated, “When looking at the Parties’ testi mony combined with the circumstantial evidence of how the Parties operated the entities, the Court finds Wife’s testimony more credible than Husband’s testimony.” 3
Husband testified that he never intended for w ife to have an interest in DJN. Wife
testifi ed that DJN and CMI were formed because she and h usband were looking for a way to acquire real estate for investment purposes for their immediate needs and for their retirement. Both parties were involved in the operations of DJN. As the trial court note d, they both “regularly conversed with their tenants, organized and paid for repairs, and received and deposited rent payments.” In addition, they both had signatory authority on the bank accounts and freq uently commingled funds with their personal bank a ccounts. Based on this evidence, t he trial court found that “the parties intended for [DJN and CMI] to benefit both Parties and not to be maintained separate and apart from one spouse or the other.” We affirm this ruling.
Issue III : Three bank accounts During the marriage, the parties owned three bank accounts, one at Valley Bank and two at Bank of America. Code § 20

- 107.3 requires t he trial court to classify, value, and distribute the parties’ property. See also Alphin v. Alphin , 15 Va. App. 395, 403 , 424 S.E.2d 572, 576 (1992).
The parties agree, and the record confirm s , that the trial court failed to classify, value, and

3 “It is well established that the trier of fact ascertains a witness’ credibility, determines the weight to be given to their testimony, and has the discretion to accept or reject any of the witness’ testimony.” Street v. Street , 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc).- 8

- distribute these bank accounts. Therefore, the case is remanded to the trial court for classification, valuation, and appropriat e dispositi on of the three bank accounts. Wife’s Assignments of Cross

- Error
Issue I ( a ): Christian Avenue property
Wife contends that the trial court erred in fail ing to classify the Christian Avenue property and the proceeds of its sale as her separate p roperty. Wife lived at the Christian Avenue property prior to her marriage to h usband. The parties lived there during the marriage. 4 Wife testified that they sold the Christian Avenue property in
2005 and provided owner financ ing for the purchasers

. Sh e testified that she paid off the mortgage “[b]y check from my personal account.” Then, she admitted that the funds used to pay off the loan came from a joint checking account. The new buyers refinanced and paid off the

owner
- financed loan in 2010. Wife testified that she deposited the funds into her “personal account” and then used the funds to pay off t he note on 1757 Granby Avenue. The trial court does not mention the Christian Avenue property in its letter opinion. The Christian Avenue property was sold in 2005, and the note on the Granby Avenue property was paid off in 2010. 5 T he trial court did not classify, value, and dispose of the Christian Avenue property and its proceeds, as it was required to do under Code § 20

- 107.3

. T he case is remanded
to the tr i al court on these issues

. Issue I ( b ): Husband’s IRA
Wife contends that although the trial court classified h usband’s IRA as marital property,
it erroneously failed to include it in the value of property awarded to h usband.

4 Wife did not specify how long they lived at the Christian Avenue property, but confirmed that they lived there prior to purchasing the marital residence in January 2004.

5 The parties separated in December 20 08, prior to the date of the payoff on the Granby Avenue property loan.- 9

- “ Fashioning an equit able distribution award lies within the sound discretion of the trial judge and that award will not be set aside unless it is plainly wrong or without evidence to support it. ” Srinivasan , 10 Va. App. at 732, 396 S.E.2d at 678. Contrary to w ife’s argument s, the record reflects that the trial court properly valued, considered, and disposed of h usband’s IRA. Th at ruling is affirmed.
Issue I ( c ): Granby Avenue rent checks
Wife contends that the trial court erroneously failed to classify and award to her the monthly rent received by h usband for the 1757 Granby Avenue property held by CMI. The trial court ruled that CMI was marital property and awarded it to w ife. She argues she was entitled to the April, May, and June 20 10 rent checks. At trial, w ife testi fied that the renters at Granby Avenue paid their rent to C MI. For practical purposes, the renters gave the ir check s to h usband, who gave them to w ife. The record
does not show that w ife did not receive the rent checks that she claims

. Therefore, the tr ial court’s ruling is affirmed. See Mir v. Mir , 39 Va. App. 119, 125, 571 S.E.2d 299, 302 (2002) ( holding that an equitable distribution ruling lie s within the discretion of the trial court so long as the evidence support s it).
Issue II : Ameritrade Accou nt
Wife contends that the trial court erred in classifying the Ameritrade account as marital , as opposed to hybrid , property. She a sserts that she opened the account prior to the parties’ marriage and that it was titled in her name only . She argues the initial funds in the account were her separate funds. She acknowledged that h usband also contributed funds to the account prior to the marriage.- 10

- Because we are remanding the trial court’s ruling and disposition of the Ameritrade

account on the issues rai sed in h usband’s assignments of error, we also remand this issue to the
trial court for consider ation when it clas sifies , values , and distributes the account.
Issue III : Spousal Support
Wife contends that the trial court erred in denying her spousal supp ort. “[W]here an equitable distribution award is reversed on appeal and ‘the provisions with regard to the marital property are to be considered on remand, the court must necessarily re

- examine spousal support in the light of whatever new or different con siderations flow from the additional proceedings.’”
Robinson v. Robinson , 46 Va. App. 652, 671, 621 S.E.2d 147, 156 (2005) (en banc) (quoting
McGinnis v. McGinnis , 1 Va. App. 272, 277, 338 S.E.2d 159, 161 (1985)). Accordingly, we remand the issue of spou sal support. Wife’s request for attorney’s fees and costs incurred on appeal Wife seeks an award of the attorney’s fees and costs she incurred on appeal. However, because this litigation “addressed appropriate and substantial issues,” and “neither party generated unnecessary delay or expense in pursuit of its interests,” Estate of Hackler v. Hackler , 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004), we deny her r equest for an award of attorney’ s fees and costs

. See O’ Loughlin v. O’ Loughlin , 23 Va. App. 690 , 695, 479 S.E.2d 98, 100 (1996).
CONCLUSION
W e affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings consistent with this opinion. Affirmed in part, reversed in part,

and remanded.