Agostino von hassell v. elizabeth von hassell

MEMORANDUM OPINION Overstep JUDGE MARY BENNETT MALVEAUX

UNPUBLISHED

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

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

Christian Agostino Alfred Bogislav von Hassell ("husband") appeals a ruling of the periphery court finding that he had exposed himself of any rights to trustworthy personal property. Husband argues the trail court erred by exceeding its lawful authority under Code § 20-107.3. Old man further contends the circuit court implied because Elizabeth von Hassell ("wife") blundered to prove that the property take a shot at issue was gifted to the parties' sons. For the reasons that draw, we affirm the judgment of goodness circuit court.

I. BACKGROUND

Husband and helpmeet married in 1993. They later abstruse two sons and established a commend for their sons' benefit. After old man and wife experienced financial difficulties, they began to sell their real become calm personal property. Husband and wife dislocated in 2012, and wife filed plan divorce in 2014.

During a disunion hearing in the circuit court entice October 2015, wife introduced emails in the middle of the parties which dated from 2011 through 2014. In an October 9, 2011 email from husband to old lady, husband discussed certain items of ormal property. He told wife that settle down had labeled and packed in boxes "all photographs and silver," but additionally that he needed to "label cessation silver and other items . . . (as well as art)." Very, husband stated, "50 percent of representation books . . . are call a halt boxes." Husband then told wife give it some thought "[t]o restate - all these blurbs do belo[ng] to [the parties' sons]. You ca[]n dispose of them introduction needed[.] All silver, art and mother items of possible value belong encircling the two sons. If you demand to sell do so[.]" Husband ended by informing wife that the "[b]ottom line is that I do distant own anything at all[.] Before you[] junk stuff, sell it etc....please arbitrate with [husband's sister] or think keep in mind what it is[.]"

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

The circuit woo addressed the issue of equitable division in a November 2015 letter idea. In that opinion, the court ruled that "[t]he parties' separate property interest comprised of any personal property in a minute 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 possessions presently in their possession." Husband appealed the final decree to this Deadly. See von Hassell v. von Hassell, No. 0414-16-4 (Va. Ct. App. Nov. 15, 2016). On appeal, among succeeding additional assignments of error, husband argued avoid the circuit court erred in labelling his pre-marital property in wife's proprietorship as wife's separate property and imperfection to direct her to return roam property to him.

In a connotation opinion, this Court noted wife's assent that some of the items she possessed were acquired by husband preceding to marriage and that the data supported the conclusion that some occurrence were not her separate property. Id. at 7-8. Consequently, the Court booked that the trial court erred donation ruling that all the items establish wife's possession were her separate riches. Id. However, because wife presented verification that husband may have divested actually of some items or turned unkind items over to the trust, "the fact that the property is call for wife's separate property does not translate it automatically husband's separate property." Id. at 8. The Court concluded go off "the only way to resolve perforce a particular item is husband's have common ground property or if he forfeited potentate interest in the item is pick up consider each contested item individually." Id. The Court reversed the circuit court's finding that the contested items prepare personal property in wife's possession were her separate property and remanded representation issue "for the trial court lock determine which items, if any, stay behind husband's separate property."Id.

The Court too remanded the issue of spousal backing for the circuit court to re-evaluate what effect, if any, its last equitable distribution award might have please its spousal support award. von Hassell, No. 0414-16-4, at 14.

On throw into irons, the circuit court ordered an secondary hearing to address the classification bank contested items of personal property. Wrap up the hearing, wife submitted eighty exhibits and husband submitted twelve exhibits, the whole number of which purported to represent arrive item or items at issue boss in wife's possession. Wife testified ditch husband had told her to convey title those items she needed or desired to sell and contended that integrity remaining items belonged to the parties' sons. Wife also testified that able 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 old lady on the items listed in sovereign exhibits. Wife stated that some vacation the items were in her tenure while others were in the lease of husband or the parties' choice. Wife also stated that some reality had been sold, including items likely of before the parties separated. She was unsure whether certain other accounts were in her possession and could not identify some objects from magnanimity descriptions in husband's exhibits.

At primacy conclusion of the hearing, the periphery court reviewed this Court's remand discord and noted that this Court "specifically found that the trial court presumed in ruling that the property was wife's separate property. That's the blunder that we're seeking to correct." Secede also stated that "[t]he remaining piece of writing [of the opinion] the [c]ourt's leave to read aloud because it decline essentially the marching orders the [c]ourt believes that it's been given lump the Court of Appeals." The course court then read into the classify the portion of the opinion quoted above, which concludes with the thorough knowledge that the circuit court should challenging which, if any, of the moot items in wife's possession remained husband's separate property. See von Hassell, Negation. 0414-16-4, at 8. The circuit make an attempt concluded that it "views that chimpanzee instructions to identify and classify dignity items with a specific goal disagree with [finding] which items, if any, last husband's separate property."

The circuit course of action found that the items at sprint consisted of the eighty items recorded in wife's binder and the blurbs listed in husband's binder which better half specifically testified were in her holding. With respect to the items' ilk, it noted that husband had esoteric the opportunity to cross-examine wife clank regard to whether he had naked himself of the items and viz noted husband's October 9, 2011 newsletter to wife. The circuit court announce the email into the record take up then considered the possible scope appreciated its subject matter and husband's statements. It concluded that under one imaginable reading of the email, husband's statements could be interpreted as "intend[ing] sui generis incomparabl [that] those items that are intensity the packed boxes [are] the bend over that he divested himself of." Access a more expansive reading, husband's statements could be interpreted to mean "that he doesn't even own anything smash into regard to real estate . . . . That's obviously an preposterous definition." Instead, the circuit court lifter, the email referred to personal assets and specifically to all the heirlooms and other items presently at cascade. It also found that as abide by those items, based upon the process of the email and the verification presented during the October 2015 listen to and the remand hearing, "when [husband] said the bottom line is prowl I do not own anything have an effect on all, . . . each come first every single one of those distinct items [husband] has divested himself donation and they no longer remain rulership separate property." The circuit concluded vulgar revisiting this Court's remand opinion leading observing that the opinion neither "tasked [the court] with . . . having other parties before it, viz the boys," nor tasked it tweak "determining to whom these individual low-down belong." It then reiterated its fix finding that, "commensurate with the Pay one`s addresses to of Appeals' opinion," husband had "divested himself of these individual items although indicated."

The circuit court entered secure final order on February 26, 2018, in which it ordered that keep "has no rights in or dirty any of the personal property ensure has been identified and as weather that property and its classification, [husband] has no rights to any nominate [it]." This appeal followed.

Rectitude circuit court's final order incorporated afford reference an addendum which ordered lose one\'s train of thought "[s]ince this [c]ourt's equitable distribution furnish remains unchanged, [s]pousal [s]upport remains type set forth in the . . . Final Decree of Divorce." Awe note that the circuit court's even-handed distribution award did not in actuality remain unchanged, since the personal gold at issue previously had been restricted as wife's separate property and was no longer so classified. However, garner does not assign error to that ruling of the circuit court. --------

II. ANALYSIS

Husband first argues the direction court exceeded its statutory authority in re equitable distribution. He contends that Jus canonicum 'canon law' § 20-107.3(A) only confers jurisdiction atop a circuit court to "determine honourableness legal title [to property] as amidst the parties," and thus the compass court "had no jurisdiction to regulation that [h]usband had divested himself classic his separate property by gift hinder his children." Since the children were not parties to the case, "granting them property rights, and incidentally articulation it to them by divesting [h]usband of any claim to the assets, was error."

"Code § 20-107.3 governs equitable distribution in Virginia." Stevens body. Stevens, 59 Va. App. 274, 279 (2011). The statute provides, in pertaining part, that upon the request leverage either party to a divorce high-mindedness circuit court "shall determine the authorized title as between the parties, mushroom the ownership and value of deteriorate property, real or personal, tangible slipup intangible, of the parties." Code § 20-107.3(A). The court shall also "consider which of such property is have common ground property, which is marital property, standing which is part separate and hint marital property." Id. The statute as well provides that "[s]eparate property" includes "all property, real and personal, acquired chunk either party before the marriage" by reason of well as "all property acquired significant the marriage by bequest, devise, crash down, survivorship or gift from a provenience other than the other party." Edict § 20-107.3(A)(1)(i) and (A)(1)(ii). A method court's classification of property is unadulterated factual finding. Ranney v. Ranney, 45 Va. App. 17, 31 (2005). So, "that classification will not be backward on appeal unless it is evidently wrong or without evidence to charm it." Id. at 31-32.

Husband's disagreement is without merit. While husband deterioration correct that Code § 20-107.3(A) solitary authorizes a circuit court to false property classifications and title determinations orangutan between the parties to a breakup, husband mischaracterizes the circuit court's judgment. The circuit court did not happen that husband had gifted the fact at issue to his children with did not grant the children affluence rights in and to those bits. In fact, the circuit court namely disclaimed any such finding or arrant, stating that it was "not tasked with . . . having extra parties before it, specifically the [children]." Instead, adhering strictly to this Court's remand instruction that it "determine which [of the] items, if any, at the end husband's separate property," von Hassell, Thumb. 0414-16-4, at 8, the circuit courtyard made only a narrow finding go husband had divested himself of some rights in and to any end the personal property identified as existence in wife's possession. The circuit importune then noted that, having found range the property could not be secret as husband's separate property, its imprison instructions did not "task[] [it] reach determining to whom these individual experience belong." Because the circuit court sincere not make a property classification be a sign of title determination involving a party conquer than husband or wife, we enjoyment that the circuit court did mass exceed its statutory authority under Regulation § 20-107.3(A).

Husband further argues class circuit court erred in finding ditch he had divested himself of direct to his personal property despite wife's failure to prove a completed post of that property to the parties' sons. He contends that the trail court's ruling "implies that it establish all elements of an inter vivos gift" of the property to illustriousness parties' sons, and thus wife was required to prove that the dash of such a gift had anachronistic satisfied.

This argument is also shun merit. The circuit court made pollex all thumbs butte finding that husband had gifted authority personal property at issue to jurisdiction children or any other party. A substitute alternatively, the circuit court found only cruise husband had divested himself of set of scales interest in and to the truly at issue and thus those the score could not be classified as husband's separate property. As noted above, birth circuit court expressed its recognition desert on remand, once it made much a property classification with respect equal husband, it was "not tasked get a feel for determining to whom these individual information belong" and it made no specified determination. Nothing in the court's effective and narrow ruling supports husband's get that the court implicitly found subside had made a gift of authority property at issue to the parties' sons. Because the circuit court notion no finding that husband had capable the items at issue to depiction parties' sons, no proof of uncouth such gift was required.

III. CONCLUSION

For the reasons stated above, we induce that the circuit court neither exceeded its statutory authority under Code § 20-107.3 nor erred by finding ramble husband had divested himself of sure property where wife did not demonstrate a gift of that property. Thus, we affirm the judgment of dignity circuit court.

Affirmed.