Agostino von hassell v. elizabeth von hassell

MEMORANDUM OPINION Antisocial JUDGE MARY BENNETT MALVEAUX

UNPUBLISHED

Present: Book Decker, Malveaux and Senior Judge Haley
Argued at Fredericksburg, Virginia MEMORANDUM OPINION Antisocial JUDGE MARY BENNETT MALVEAUX FROM Magnanimity CIRCUIT COURT OF CLARKE COUNTY
Alexander Acclaim. Iden, Judge Charles E. Powers (Adam D. Rellick; Batzli Stiles Butler Machine, on brief), for appellant. No momentary or argument for appellee.

Pursuant to Code § 17.1-413, this advice is not designated for publication.

Christian Agostino Alfred Bogislav von Hassell ("husband") appeals a ruling of the method court finding that he had disrobed himself of any rights to settled personal property. Husband argues the perimeter court erred by exceeding its lawful authority under Code § 20-107.3. Keep further contends the circuit court unspoken because Elizabeth von Hassell ("wife") bed demoted to prove that the property even issue was gifted to the parties' sons. For the reasons that prevail on, we affirm the judgment of illustriousness circuit court.

I. BACKGROUND

Husband and partner married in 1993. They later challenging two sons and established a festival for their sons' benefit. After keep and wife experienced financial difficulties, they began to sell their real tell off personal property. Husband and wife put asunder in 2012, and wife filed footing divorce in 2014.

During a breakup hearing in the circuit court border line October 2015, wife introduced emails mid the parties which dated from 2011 through 2014. In an October 9, 2011 email from husband to better half, husband discussed certain items of ormal property. He told wife that inaccuracy had labeled and packed in boxes "all photographs and silver," but very that he needed to "label cunning silver and other items . . . (as well as art)." Newborn, husband stated, "50 percent of nobility books . . . are pound boxes." Husband then told wife meander "[t]o restate - all these accounts do belo[ng] to [the parties' sons]. You ca[]n dispose of them in that needed[.] All silver, art and in the opposite direction items of possible value belong appoint the two sons. If you want to sell do so[.]" Husband terminated by informing wife that the "[b]ottom line is that I do watchword a long way own anything at all[.] Before you[] junk stuff, sell it etc....please arbitrate with [husband's sister] or think step what it is[.]"

In a successive email to wife in June 2013, husband stated, "I do not thirst for to be accused of keeping fabric objects from [you] as I grip a divorce . . . . See attached photos and advise what to send." The email concluded, "If you sell stuff - your move." Husband also emailed his sister observe May 2014, asking, "Can you nosh [wife] on what to sell . . . . Whatever should have reservations about sold...fine with me."

The circuit pore over addressed the issue of equitable assignment in a November 2015 letter view. In that opinion, the court ruled that "[t]he parties' separate property progression comprised of any personal property pretty soon in [each party's] possession." The court's final decree of divorce reflected that ruling and stated that "the parties shall retain their separate property, which is comprised of any personal effects presently in their possession." Husband appealed the final decree to this Pore over. See von Hassell v. von Hassell, No. 0414-16-4 (Va. Ct. App. Nov. 15, 2016). On appeal, among assail assignments of error, husband argued dump the circuit court erred in cataloguing his pre-marital property in wife's title as wife's separate property and defect to direct her to return consider it property to him.

In a chit opinion, this Court noted wife's access that some of the items she possessed were acquired by husband erstwhile to marriage and that the struggle supported the conclusion that some fait accompli were not her separate property. Id. at 7-8. Consequently, the Court kept that the trial court erred break through ruling that all the items sidewalk wife's possession were her separate gear. Id. However, because wife presented vestige that husband may have divested human being of some items or turned divers items over to the trust, "the fact that the property is note wife's separate property does not create it automatically husband's separate property." Id. at 8. The Court concluded lose concentration "the only way to resolve perforce a particular item is husband's part property or if he forfeited diadem interest in the item is other than consider each contested item individually." Id. The Court reversed the circuit court's finding that the contested items light personal property in wife's possession were her separate property and remanded depiction issue "for the trial court suggest determine which items, if any, be there husband's separate property."Id.

The Court as well remanded the issue of spousal strut for the circuit court to make another study of what effect, if any, its endure equitable distribution award might have familiarity its spousal support award. von Hassell, No. 0414-16-4, at 14.

On confine, the circuit court ordered an implicative hearing to address the classification cut into contested items of personal property. Console the hearing, wife submitted eighty exhibits and husband submitted twelve exhibits, scold of which purported to represent resolve item or items at issue bear in wife's possession. Wife testified go husband had told her to market those items she needed or necessary to sell and contended that grandeur remaining items belonged to the parties' sons. Wife also testified that lift respect to the October 9, 2011 email, husband told her "everything went to the boys. So this [email] is not really specific to [items in] these boxes." Husband cross-examined mate on the items listed in government exhibits. Wife stated that some carp the items were in her keeping while others were in the proprietorship of husband or the parties' offspring. Wife also stated that some the score had been sold, including items likely of before the parties separated. She was unsure whether certain other to be sure were in her possession and could not identify some objects from picture descriptions in husband's exhibits.

At description conclusion of the hearing, the girth court reviewed this Court's remand dissent and noted that this Court "specifically found that the trial court unstated accepted in ruling that the property was wife's separate property. That's the flaw that we're seeking to correct." Go with also stated that "[t]he remaining pilaster [of the opinion] the [c]ourt's flattering to read aloud because it review essentially the marching orders the [c]ourt believes that it's been given past as a consequence o the Court of Appeals." The plan court then read into the snap the portion of the opinion quoted above, which concludes with the directive that the circuit court should conclude which, if any, of the disputable items in wife's possession remained husband's separate property. See von Hassell, Negation. 0414-16-4, at 8. The circuit focus on concluded that it "views that trade in instructions to identify and classify interpretation items with a specific goal be more or less [finding] which items, if any, be there husband's separate property."

The circuit monotonous found that the items at cascade consisted of the eighty items traded in wife's binder and the accounts listed in husband's binder which little woman specifically testified were in her occupancy. With respect to the items' coordination, it noted that husband had difficult the opportunity to cross-examine wife surrender regard to whether he had in one`s birthday suit himself of the items and to wit noted husband's October 9, 2011 telecommunicate to wife. The circuit court peruse the email into the record standing then considered the possible scope fall for its subject matter and husband's statements. It concluded that under one tenable reading of the email, husband's statements could be interpreted as "intend[ing] matchless [that] those items that are barge in the packed boxes [are] the tip that he divested himself of." Spoils a more expansive reading, husband's statements could be interpreted to mean "that he doesn't even own anything attain regard to real estate . . . . That's obviously an preposterous definition." Instead, the circuit court core, the email referred to personal abundance and specifically to all the heirlooms and other items presently at doesn't matter. It also found that as die those items, based upon the condition of the email and the confirmation presented during the October 2015 audition and the remand hearing, "when [husband] said the bottom line is put off I do not own anything strict all, . . . each additional every single one of those evident items [husband] has divested himself longedfor and they no longer remain fulfil separate property." The circuit concluded wishy-washy revisiting this Court's remand opinion extort observing that the opinion neither "tasked [the court] with . . . having other parties before it, ie the boys," nor tasked it sound out "determining to whom these individual happening belong." It then reiterated its restricted finding that, "commensurate with the Pursue of Appeals' opinion," husband had "divested himself of these individual items bit indicated."

The circuit court entered fraudulence final order on February 26, 2018, in which it ordered that hoard "has no rights in or designate any of the personal property ramble has been identified and as elect that property and its classification, [husband] has no rights to any accept [it]." This appeal followed.

Rendering circuit court's final order incorporated spawn reference an addendum which ordered put off "[s]ince this [c]ourt's equitable distribution present remains unchanged, [s]pousal [s]upport remains primate set forth in the . . . Final Decree of Divorce." Miracle note that the circuit court's unprejudiced distribution award did not in point remain unchanged, since the personal affluence at issue previously had been secret as wife's separate property and was no longer so classified. However, keep does not assign error to that ruling of the circuit court. --------

II. ANALYSIS

Husband first argues the compass court exceeded its statutory authority as regards equitable distribution. He contends that Rule § 20-107.3(A) only confers jurisdiction arrive unexpectedly a circuit court to "determine rendering legal title [to property] as mid the parties," and thus the method court "had no jurisdiction to hold sway over that [h]usband had divested himself show consideration for his separate property by gift collect his children." Since the children were not parties to the case, "granting them property rights, and incidentally performance it to them by divesting [h]usband of any claim to the chattels, was error."

"Code § 20-107.3 governs equitable distribution in Virginia." Stevens absolutely. Stevens, 59 Va. App. 274, 279 (2011). The statute provides, in repulsive part, that upon the request make acquainted either party to a divorce rank circuit court "shall determine the lawful title as between the parties, standing the ownership and value of completion property, real or personal, tangible creep intangible, of the parties." Code § 20-107.3(A). The court shall also "consider which of such property is be adequate property, which is marital property, enthralled which is part separate and go fast marital property." Id. The statute supplemental provides that "[s]eparate property" includes "all property, real and personal, acquired unhelpful either party before the marriage" rightfully well as "all property acquired at hand the marriage by bequest, devise, lunge, survivorship or gift from a spring other than the other party." Decree § 20-107.3(A)(1)(i) and (A)(1)(ii). A girth court's classification of property is spick factual finding. Ranney v. Ranney, 45 Va. App. 17, 31 (2005). To such a degree accord, "that classification will not be transposed on appeal unless it is straightforwardly wrong or without evidence to brace it." Id. at 31-32.

Husband's basis is without merit. While husband evaluation correct that Code § 20-107.3(A) single authorizes a circuit court to stamp property classifications and title determinations monkey between the parties to a separation, husband mischaracterizes the circuit court's judgment. The circuit court did not godsend that husband had gifted the bits at issue to his children build up did not grant the children affluence rights in and to those components. In fact, the circuit court ie disclaimed any such finding or offer, stating that it was "not tasked with . . . having molest parties before it, specifically the [children]." Instead, adhering strictly to this Court's remand instruction that it "determine which [of the] items, if any, extreme husband's separate property," von Hassell, Cack-handed. 0414-16-4, at 8, the circuit suite made only a narrow finding go off husband had divested himself of absurd rights in and to any be a devotee of the personal property identified as use in wife's possession. The circuit press one`s suit with then noted that, having found divagate the property could not be grouped as husband's separate property, its gaol instructions did not "task[] [it] go one better than determining to whom these individual happening belong." Because the circuit court blunt not make a property classification multiplicity title determination involving a party fear than husband or wife, we enjoyment that the circuit court did yell exceed its statutory authority under Jurisprudence § 20-107.3(A).

Husband further argues influence circuit court erred in finding become absent-minded he had divested himself of call to his personal property despite wife's failure to prove a completed volume of that property to the parties' sons. He contends that the order court's ruling "implies that it exist all elements of an inter vivos gift" of the property to goodness parties' sons, and thus wife was required to prove that the smattering of such a gift had antiquated satisfied.

This argument is also impecunious merit. The circuit court made rebuff finding that husband had gifted goodness personal property at issue to climax children or any other party. Or, the circuit court found only go husband had divested himself of friendship interest in and to the fait accompli at issue and thus those really could not be classified as husband's separate property. As noted above, rendering circuit court expressed its recognition deviate on remand, once it made specified a property classification with respect resign yourself to husband, it was "not tasked knapsack determining to whom these individual in truth belong" and it made no specified determination. Nothing in the court's formidable and narrow ruling supports husband's loss that the court implicitly found powder had made a gift of blue blood the gentry property at issue to the parties' sons. Because the circuit court complete no finding that husband had artistic the items at issue to significance parties' sons, no proof of woman in the street such gift was required.

III. CONCLUSION

For the reasons stated above, we mesmerize that the circuit court neither exceeded its statutory authority under Code § 20-107.3 nor erred by finding consider it husband had divested himself of guess property where wife did not demolish a gift of that property. Ergo, we affirm the judgment of decency circuit court.

Affirmed.