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Thomas v. Thomas9/7/1993
MEMORANDUM OPINION BY JUDGE JAMES W. BENTON, JR.
In Thomas v. Thomas, 13 Va. App. 92, 408 S.E.2d 596 (1991), this Court reversed the trial Judge's decision concerning a monetary award and remanded the case for reconsideration. Richard W. Thomas now appeals from the final decree of divorce that was entered on remand and that granted his wife, Donna C. Thomas, a monetary award. The husband contends that the trial Judge erred (1) in basing the monetary award upon the $300,000 personal injury settlement proceeds remaining at the time of the separation, without considering expenditures made for the support of the wife, the husband, and the children; and (2) in failing to reconsider all the statutory factors in Code ยง 20.107.3(E), especially those that mandate consideration of the husband's disability and the wife's conduct that contributed to the dissolution of the marriage. We affirm the decree.
I.
Most of the relevant facts concerning this appeal are recited in this Court's prior decision. See 13 Va. App. 93, 418 S.E.2d 597. In summary, the record establishes that the parties were divorced by a final decree based on one year's separation. Following the initial evidentiary hearing, the trial Judge ruled that the proceeds of a $300,000 personal injury settlement were the separate property of the husband, whose injuries from an automobile accident gave rise to the settlement. The remaining item of marital property, the marital residence, was divided equally between the parties. The wife appealed to this Court the issue whether the personal injury insurance settlement was the separate property of the husband. Id. This Court reversed the trial Judge's decision and ruled that the insurance proceeds were marital property. Id. at 96, 408 S.E.2d at 599. On remand, the trial Judge increased the monetary award to the wife by an additional $75,000. The husband appeals that decision.
II.
Where one party alleges that the other has dissipated marital assets, "equity can only be accomplished if the party who last had the funds is held accountable for them." Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 257, 261 (1990). "Once the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with dissipation to prove that the money was spent for a proper purpose." Id. In this case, the husband was the one who last held the insurance proceeds and, thus, had the burden "to establish by a preponderance of the evidence that the funds were used for living expenses or for some other proper purpose." Id. at 587, 397 S.E.2d at 261.
The record contains the husband's testimony that he used an unspecified portion of the money for his and the children's support. He testified as follows:
Q. How much of the three hundred thousand dollars did you use for your support?
A. Quite a bit.
Q. Well, how much?
A. I don't, you know -- hell, I don't add up daily columns of what I spend.
Q. Well, do you have no conception how much [money] you have given away?
A. I have no conception of what happened to all of it.
Q. And you have no conception how much you use for your support?
A. A good deal of it, I told you.
The record also contains evidence that the husband loaned part of the settlement proceeds to individuals upon their oral agreement to repay the amount and that the husband bought several luxury items with the insurance proceeds. The trial Judge
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