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Case Summary: Wayne Bush Booth v. Helen Cash Booth (Ct. App. of Va., Sept. 6, 1988)

Factual and Procedural Background

Wayne Booth and Helen Cash Booth married in 1964 and had two children. Mrs. Booth left the marital home on August 1, 1982, and filed for divorce on August 4, 1982. On January 13, 1983 she moved for an equitable distribution award and later filed an amended complaint on May 16, 1984 seeking divorce on the ground of one-year separation. Mr. Booth opposed the equitable distribution motion on the ground that the cause of action arose before the effective date of the equitable distribution statute and thus property rights were vested prior to the statute. The trial court denied that motion and, after reserving equitable distribution when granting the divorce, received evidence and awarded Mrs. Booth $565,000 and specified the method of payment. Mr. Booth appealed the monetary award and the applicability of the equitable distribution statute; Mrs. Booth cross-appealed the court's order requiring her to transfer her interest in the marital residence and the court's denial of security for the deferred portion of the award.

Legal Issues Presented

  1. Whether the equitable distribution statute (the monetary award statute) applies to actions filed after its effective date even though the cause of action (grounds for divorce) arose prior to the statute's effective date.
  2. Whether the trial court properly considered and weighed evidence of waste (dissipation of marital assets) and attorneys' fees when determining the amount of the monetary award.
  3. Whether the trial court erred by ordering Mrs. Booth to transfer her interest in the marital residence.
  4. Whether the court erred by using different valuations of property when determining the award and when approving a conveyance in satisfaction of the award (i.e., whether the court must determine value at time of transfer if value has changed).
  5. Whether the trial court should have required security (bond) for the deferred portion of the monetary award.

Arguments of the Parties

Appellant (Wayne Booth)

  • Argued that the equitable distribution statute did not apply because the cause of action for divorce accrued and the parties' property rights vested before the statute's effective date.
  • Challenged the monetary award as excessive and contested the trial court's consideration (or failure to quantify) waste and attorneys' fees in setting the award.
  • Contended it was error to use different valuations for the same property (the "metal warehouse") when determining the award and when approving satisfaction of the award.

Appellee / Cross-Appellant (Helen Booth)

  • Maintained entitlement to the equitable distribution award under the statute as applied by the trial court.
  • Cross-appealed the trial court's order that she transfer her interest in the marital home (arguing the trial court erred in that order).
  • Argued the trial court should have required security for the deferred portion of her monetary award.
  • Responded to Mr. Booth's assertion of waste by explaining her use of funds (including payments for legal fees and support); the trial court found a portion ($60,000) lost in a speculative stock venture.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787 (1977) Limits on legislative power: cannot infringe constitutionally protected or vested rights. Used to state the general limitation that retrospective legislation cannot impair vested rights.
Eaton v. Davis, 176 Va. 330, 10 S.E.2d 893 (1940) General rule of statutory construction that legislation speaks prospectively absent intent to the contrary. Supported the presumption against retroactive application and the need to glean legislative intent.
Fry v. Schwarting, 4 Va. App. 173, 355 S.E.2d 342 (1987) Virginia presumption against retrospective effect of statutes. Recognized the presumption but explained why the equitable distribution statute applies to actions filed after its effective date.
Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661 (1986) Practice of reserving equitable distribution at time of divorce decree. Cited to support that the trial judge expressly reserved equitable distribution when granting the divorce.
Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157 (1985) Practice of reserving equitable distribution for later determination. Same use as Morris: supporting reservation of equitable distribution issue.
Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974) Principle that divorce is a creature of statute and legislature governs marriage/incidents subject to constitutional limits. Support for the proposition that parties have no vested right in application of a particular divorce statute.
Valladares v. Valladares, 80 A.D.2d 244, 438 N.Y.S.2d 810 (1981) No vested right in a particular statutory procedure for disposition of property upon divorce. Supported conclusion that legislative changes to remedies upon divorce do not offend constitutional principles.
In re Marriage of Smith, 114 Ill. App.3d 47, 448 N.E.2d 545 (1983) Definition/characterization of "waste" (dissipation of marital funds in anticipation of divorce). Cited for a working definition of "waste" when assessing dissipation of marital assets.
Anstutz v. Anstutz, 112 Wis.2d 10, 331 N.W.2d 844 (Ct. App. 1983) Courts may consider negative contributions (squandering/destroying resources) in equitable distribution. Supported consideration of waste as a negative contribution when making an award.
Sharp v. Sharp, 58 Md. App. 386, 473 A.2d 499 (1984) Equitable distribution's goal is fair adjustment; allowing squandering frustrates that goal. Reinforced rationale that dissipation undermines equitable distribution and must be addressed.
Wagner v. Wagner, 4 Va. App. 397, 358 S.E.2d 407 (1987) Classification of marital property: normally property owned at last separation. Used to state the general rule on classification of marital property at separation.
Price v. Price, 4 Va. App. 224, 355 S.E.2d 905 (1987) Same principle regarding classification of marital property at separation. Same supporting role as Wagner.
In re Marriage of Petrovich, 154 Ill. App.3d 881, 507 N.E.2d 207 (1987) (appeal denied) Principle that wasted assets should be treated as marital property and considered in distribution. Cited to support that wasted assets must be included as marital property and considered in award.
Harrell v. Harrell, 120 A.D.2d 565, 502 N.Y.S.2d 57 (1986) Authority recognizing treatment of dissipation/waste in equitable awards. Supplementary support for treating waste as a factor in equitable distribution.
Woolley v. Woolley, 3 Va. App. 337, 349 S.E.2d 422 (1986) Trial court not required to quantify exact weight given to each statutory factor; findings must be based on evidence. Used to support that the trial court need not specify precisely how it weighted each factor when setting award.
Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546 (1987) Consideration of attorneys' fees and debts in equitable distribution. Supported the trial court's consideration of attorneys' fees as debts/liabilities of the parties.
Haasken v. Haasken, 396 N.W.2d 253 (Minn. Ct. App. 1986) When value of property changes, court may need to determine property's value at time of transfer. Used to explain that a court approving conveyance in satisfaction of an award must consider current value if alerted to a change.
Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646 (1986) Equitable distribution statute does not authorize court to assign, allot, or divide marital property titled in either both names or a single name (i.e., cannot affect title by order). Relied upon to hold the trial court erred in ordering Mrs. Booth to transfer her interest in the marital home.
Pledger v. Pledger, 6 Va. App. 627, 371 S.E.2d 43 (1988) Monetary award in equitable distribution is a judgment. Supported the court's conclusion that a monetary award is a judgment and that standard judgment remedies apply.

Court's Reasoning and Analysis

The court proceeded in structured steps:

  1. Applicability of the Equitable Distribution Statute:
    • The court acknowledged the presumption against retrospective statutes but explained that the General Assembly may prescribe prospective or retrospective application subject to constitutional limits (citing Shoosmith and Eaton).
    • The statute expressly excluded "pending litigation" as of its effective date (July 1, 1982) but was otherwise silent regarding causes of action arising before its effective date yet filed after that date. Because this case was not pending before the effective date, it was not excluded by the statute's express language.
    • The court concluded that the statute applies to actions filed after the effective date regardless of when the cause of action arose, reasoning that the legislature could not have intended the disruptive result of applying pre-Act rules to later-filed cases.
    • The court also held that application of the statute did not impair vested property rights because divorce and its incidents are governed by statute and parties have no vested expectancy in the continued application of a particular statutory procedure absent a contractual right.
  2. Consideration of Waste and Attorneys' Fees in Determining Award:
    • The court adopted a working definition of "waste" (dissipation of marital funds in anticipation of divorce for purposes unrelated to the marriage) and held that waste may be treated as a negative contribution in equitable distribution.
    • Normally marital property is defined at the time of last separation, but where assets were wasted or dissipated in anticipation of separation/divorce, equity requires treating the wasted funds as marital assets held by the party who dissipated them; the trial judge may consider such waste when setting a monetary award.
    • The trial court found $60,000 of $146,000 to be wasted in a speculative stock venture; Mrs. Booth did not challenge that finding. The remainder (legal fees, support) was found not to be waste. The court directed reconsideration of whether and how the wasted amount was included in the marital estate on remand.
    • Attorneys' fees were properly considered as debts/liabilities under Code Sec. 20-107.3(E)(7). The court noted the judge was not "awarding" fees but considering unpaid fees as liabilities; reasonableness findings were unnecessary where fees were treated as debts and the opposing party had not presented evidence of his fees.
  3. Procedures for Making and Satisfying the Award:
    • The court held that the equitable distribution statute did not authorize the trial court to affect title directly by ordering a spouse to transfer an interest in property titled in both names or a single name; relying on Venable, it reversed the order requiring Mrs. Booth to transfer her interest in the marital home and remanded for reconsideration because a portion of the monetary award likely reflected that interest.
    • When a party elects to convey property in satisfaction of a monetary award and the court is alerted that the property's value has changed since valuation, the court must determine the property's current value at the time of transfer and give both parties an opportunity to be heard; absent evidence of change, the court may rely on the original valuation.
    • The trial court used inconsistent values for a property (the "metal warehouse") between determination of the award and the order of satisfaction; the court found this inappropriate and remanded for reconsideration of methods of satisfaction.
    • The court concluded that a monetary award constitutes a judgment (citing Pledger) and the successful party has the same enforcement remedies as any judgment creditor (citing relevant judgment-lien statutes). The General Assembly had not required security for deferred payments; therefore, the trial court did not err in denying Mrs. Booth's motion for security.

Holding and Implications

Affirmed in part, reversed in part, and remanded.

Direct consequences and implications drawn from the opinion:

  • The equitable distribution statute applies to all actions filed after its effective date (July 1, 1982), regardless of when the cause of action (grounds for divorce) arose, and applies to property acquired prior to the effective date unless the parties have agreed otherwise.
  • The trial court did not err in considering attorneys' fees as debts or in considering waste as a factor; however, the court must include wasted assets as marital property when waste is shown and may consider that waste in setting the monetary award.
  • The trial court erred in ordering Mrs. Booth to transfer her interest in the marital home because the statute does not authorize affecting title by such an order; that portion of the award must be reconsidered on remand.
  • If property is offered to satisfy a monetary award and its value has changed, the court must determine value at the time of transfer if alerted to the change and give both parties an opportunity to be heard; absent proof of change, the court may rely on the valuation at the time of the award.
  • A monetary award in an equitable distribution proceeding is a judgment and is enforceable by the same remedies available to other judgment creditors; the court did not err in denying security for deferred payments where statutory provisions provide judgment enforcement mechanisms.

Disposition: The Court of Appeals affirmed those parts of the trial court's actions that comported with the statute and precedent, reversed the order requiring transfer of the wife's interest in the marital residence, vacated the award for reconsideration consistent with this opinion, and remanded for further proceedings.

WAYNE BUSH BOOTH v. HELEN CASH BOOTH

(1) Legislation — Retroactive Application — Standard. — The legislature can determine whether legislation applies prospectively or retrospectively, subject to the limitation that its enactments may not infringe or impair a constitutionally protected right or vested right; the intent of the legislature determines whether a statute will be applied retrospectively, but the general rule of statutory construction is that legislation only speaks prospectively.

(2) Domestic Relations — Divorce — Retroactive Legislation. — Divorce is uniquely a creature of statute and the legislature has the power to govern marriage and its incidents, subject only to constitutional limitations; parties have no vested right in the expectancy that a particular statute will be applied in the case of a divorce unless a contractual right created by the parties is involved.

(3) Domestic Relations — Equitable Distribution — Application. — The equitable distribution statute applies to all actions filed after its effective date, regardless of when the cause of action arose, and applies to property acquired prior to the effective date of the act, unless the parties have agreed otherwise.

(4) Domestic Relations — Equitable Distribution — Waste. — "Waste" is 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; just as a court may consider positive contributions to the marriage in making an equitable distribution award, it can also consider negative contributions in the form of squandering and destroying marital resources.

(5) Domestic Relations — Equitable Distribution — Waste. — The goal of equitable distribution is to adjust the property interests of the spouses fairly and equitably; to allow one spouse to squander marital property is to make an equitable award impossible.

(6) Domestic Relations — Equitable Distribution — Waste. — In the case of assets wasted or dissipated in anticipation of separation or divorce, equity can only be accomplished if the party who last had the assets is held accountable for them; the trial judge may consider that one party has wasted assets when determining the amount of a monetary award.

(7) Domestic Relations — Equitable Distribution — Monetary Awards. — In determining the amount of a monetary award, the trial court is not required to quantify exactly what weight was given to each of the statutory factors, although the finding must be based on the evidence presented.

(8) Domestic Relations — Equitable Distribution — Marital Property. — The statute does not authorize the court to assign, allot or divide marital property tithed in either both names or a single name; while a court is authorized to partition marital property, it may not otherwise affect tithe by its order.

(9) Domestic Relations — Equitable Distribution — Monetary Awards. — A court may not inequitably allow a party to satisfy a monetary award with property whose value has substantially changed since the date of the award without considering the actual value at the time of the transfer; thus, if either party contends that the value has changed since the time of valuation, that party may raise the issue and both parties must be given the opportunity to be heard, but absent evidence of change in value, the court may rely on the valuation made at the time of the award.

(10) Domestic Relations — Equitable Distribution — Monetary Awards. — A monetary award in an equitable distribution proceeding is a judgment; a party who is granted a monetary award in an equitable distribution proceeding is in the same position as any other judgment creditor and has the same enforcement remedies available.

SUMMARY

Husband appealed the circuit court's equitable distribution award. He argued that the equitable distribution statute did not apply because the cause of action for divorce arose prior to the adoption of the Act. He also argued that the trial court erred in making the monetary award. Wife cross-appealed from the decree, arguing that the trial court incorrectly ordered her to transfer her interest in the marital residence (Circuit Court of Campbell County, J. S. Johnston, Judge).

The Court of Appeals affirmed in part and reversed in part. The Court held that the Act applied to the circumstances of this case and that there was no error in making the monetary award. The Court further held that the trial court erred when it ordered the wife to transfer her interest in the marital residence.

Affirmed in part, reversed in part, and remanded.

OPINION

COLEMAN, J.

On February 2, 1988, we issued an opinion in this case which addressed all issues which had been briefed and argued. On February 26, 1988, we granted appellant a rehearing primarily to consider whether the opinion had improvidently addressed an issue which the appellee had voluntarily withdrawn after oral argument. At the hearing we addressed whether the appellee had withdrawn the issue of BAT Masonry stock, whether the evidence supported our original finding of transmutation, and whether the amount of the monetary award was excessive. We withdrew the original opinion pending the rehearing. Finding that we did improvidently address the issue of classification of BAT Masonry stock, we modify and reissue that opinion.

Equitable distribution in divorce cases in Virginia is a recent creature of statute. Judicial construction of the statute is in its infancy. The many questions concerning the scope, intention and application of the act are now only beginning to be answered. Wayne Booth's appeal of a $565,000 monetary award to his former wife raises some questions under the act which we have not previously addressed. His appeal challenges the applicability of the statute to causes of action that arose before the effective date of the statute, the factors considered by the trial judge in determining the amount of the monetary award, and the steps a trial court may take in ordering a monetary award. Helen Booth challenges the trial court's order that she transfer her interest in the marital home and the court's failure to require a bond from Wayne Booth to secure the deferred portion of her award.

We hold that the statute providing for a monetary award, commonly referred to as the equitable distribution act, applies to this case; that the trial court erred in ordering Helen Booth to transfer her interest in the marital home; and that there was no error in the court's consideration of the statutory factors in determining the amount of the award. Therefore, we vacate the award and remand.

In 1964, Wayne Booth and Helen Cash married. Two children were born of their marriage. Mrs. Booth left the marital home on August 1, 1982. She filed for divorce on August 4, 1982. On January 13, 1983, Mrs. Booth filed a motion in the divorce proceeding for an equitable distribution award. She filed an amended complaint on May 16, 1984, seeking a divorce on the ground of a one year separation. Mr. Booth opposed the motion for equitable distribution on the ground that the cause of action accrued and the parties' property rights were vested before the statute giving rise to equitable distribution became effective. The trial court denied his motion.

When the divorce was granted, the trial judge expressly reserved the issue of equitable distribution. See Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661 (1986); Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157 (1985). After receiving evidence he awarded Mrs. Booth $565,000 and ordered the method of payment.

I. Applicability of Statute

(1) We first consider whether the monetary award statute applied. The General Assembly can determine whether legislation applies prospectively or retrospectively, subject to the limitation that its enactments may not infringe or impair a constitutionally protected right or vested interest. U.S.C.onst. art. I, Sec. 10, cl. 1; Va. Const. art. I, Sec. 11; see also Shoosmith v. Scott, 217 Va. 789, 232 S.E.2d 787 (1977). The intent of the General Assembly determines whether a statute will be applied retrospectively, but the general rule of statutory construction is that legislation only speaks prospectively. See Eaton v. Davis, 176 Va. 330, 336, 10 S.E.2d 893, 896 (1940). In the absence of expressed provisions, the intent must be gleaned from legislative history, statutory scheme and purpose, and principles of statutory construction. In drafting the statute, the legislature specified "[t]hat the provisions of [the act] shall not affect any pending litigation." Ch. 309, cl. 3, 1982 Va. Acts 517. The effective date of the statute was July 1, 1982. It is silent concerning divorce suits filed after July 1, 1982, involving causes of action that arose prior thereto. Since the Booth case was not pending before the effective date, it is not excluded by the express language of the act.

Although the presumption in Virginia is against retrospective effect, Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987), we think it apparent from the language of the statute, as well as the necessary consequences of the act, that it applies to cases filed after the effective date of the statute, regardless of when the cause of action arose. To hold otherwise would require courts a generation from now to apply outmoded principles of law. Indeed, we would postpone solving for some time the very inequity the legislature sought to remedy. Disputes would arise over when the grounds for divorce occurred and which support and property laws applied. The legislature could not have intended that result.

(2) Legislative intent that a statute apply retroactively will control unless to do so would impair vested rights. Shoosmith, 217 Va. at 793, 232 S.E.2d at 789. Mr. Booth argues that his vested property rights are impaired by application of the new statute. We disagree. Divorce is uniquely a creature of statute and the legislature has the power to govern marriage and its incidents, subject only to constitutional limitations. See Rothman v. Rothman, 65 N.J. 219, 228, 320 A.2d 496, 501 (1974). The parties have no vested right in the expectancy that a particular statute will be applied in case of a divorce unless a contractual right created by the parties is involved. "[T]he Legislature may change the remedies available upon divorce without offending constitutional principles; and . . . there [is] `no vested' right in a particular statutory procedure governing the disposition of property upon divorce." Valladares v. Valladares, 80 A.D.2d 244, 253, 438 N.Y.S.2d 810, 816 (1981).

(3) We hold that the equitable distribution statute providing for a monetary award applies to all actions filed after its effective date, regardless of when the cause of action arose, and that it applies to property acquired prior to the effective date of the act, unless the parties have agreed otherwise.

II. Considerations in Determining Amount of Award

We next decide whether the trial judge erred in considering evidence of the waste of marital assets and evidence of attorneys' fees in determining the amount of the monetary award.

(4-5) Mr. Booth argues Mrs. Booth's award should be reduced because the trial court failed to consider her "waste" of $146,000 of marital assets. Although not an exclusive definition "waste" may be generally characterized 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. See In re Marriage of Smith, 114 Ill. App.3d 47, 448 N.E.2d 545 (1983). Just as a court may consider positive contributions to the marriage in making an equitable distribution award, it can also consider "negative" contributions in the form of squandering and destroying marital resources. Anstutz v. Anstutz, 112 Wis.2d 10, 331 N.W.2d 844 (Ct. App. 1983). The goal of equitable distribution is to adjust the property interests of the spouses fairly and equitably. The mechanism to accomplish that goal is the monetary award. To allow one spouse to squander marital property is to make an equitable award impossible. Sharp v. Sharp, 58 Md. App. 386, 399, 473 A.2d 499, 505 (1984). On the other hand, at least until the parties contemplate divorce, each is free to spend marital funds. To decide a question of dissipation of marital assets, we must accommodate these conflicting interests in the marital estate.

(6) Normally, only property owned by the parties at the time of the last separation is classified as marital property. Code Sec. 20-107.3(A)(2)(ii); Wagner v. Wagner, 4 Va. App. 397, 404, 358 S.E.2d 407, 410 (1987); Price v. Price, 4 Va. App. 224, 231, 355 S.E.2d 905, 909 (1987). In the case of assets wasted or dissipated in anticipation of separation or divorce, however, equity can only be accomplished if the party who last had the funds is held accountable for them. The funds necessarily must be considered marital assets held by the party guilty of waste. The trial judge then may consider that one party has wasted assets as a factor when the judge determines the amount of the award. Code Sec. 20-107.3(E)(2) (contributions to the care and maintenance of marital properties).

(7) Mr. Booth presented evidence that Mrs. Booth removed $146,000 from the marital resources. Mrs. Booth then explained her use of those funds. The trial judge specifically considered the question of waste as a factor under Code Sec. 20-107.3(E)(11), which allows the court to consider factors other than those enumerated when such consideration is necessary or appropriate to reach an equitable decision. He found that $60,000 of the $146,000 was wasted when lost in a speculative stock market venture. Mrs. Booth did not challenge that ruling. The remainder, which Mrs. Booth used to pay legal fees and to support herself and her son, was not wasted. The record does not reflect whether the trial judge included that $60,000 as a part of the marital estate. Since we remand this case for reconsideration on other issues, we direct the trial court to reconsider this issue if necessary in view of our holding. The record does reflect that the judge considered the waste as a factor in making the monetary award, though how he considered it is not clear. However, in determining the amount of the award, the trial court is not required to quantify exactly what weight it gives to each of the statutory factors, though the findings must be based on the evidence presented. Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). Again, because we remand this case, the trial court will necessarily have to reconsider the weight to give to waste. In summary, we find that consideration of waste is warranted in this case. When waste has occurred, the trial court must include the wasted assets as marital property and must consider the waste as a factor in determining the monetary award. See In re Marriage of Petrovich, 154 Ill. App.3d 881, 882, 507 N.E.2d 207, 210, appeal denied, 116 Ill.2d 556, 515 N.E.2d 125 (1987); Harrell v. Harrell, 120 A.D.2d 565, 566, 502 N.Y.S.2d 57, 59 (1986); L. Golden, supra at Sec. 8.15; Code Sec. 20-107.3(E)(2).

Attorneys' fees were a second consideration of the trial court in determining the amount of the award. Code Sec. 20-107.3(E)(7) directs the court to consider the debts and liabilities of each spouse and the basis for such debts. Unpaid attorneys' fees constitute debt and the trial court did not err in considering them. Mr. Booth argues that because the court did not find the fees reasonable and because it did not consider the husband's fees, the consideration was erroneous. Both of these arguments fail. First, the judge was not awarding attorneys' fees; rather, he considered them as debts of both parties. Thus, there was no need to find them reasonable. A trial judge might find that the use of marital funds to pay excessive, unreasonable attorneys' fees constitutes waste, but Mr. Booth made no such allegation nor did he attempt to prove waste. Indeed, the trial judge specifically noted: "Moreover, I recognize that the attorneys' fees incurred by Mrs. Booth, or at least a portion of them, were necessarily incurred. This is a case of major proportions and complex issues and has taxed every resource possessed by me." The second argument fails because the court stated that it did consider that Mr. Booth would owe attorneys' fees when it determined debts and liabilities. The trial judge considered the evidence before him and Mr. Booth will not be heard to complain that the record contained no evidence of the amount of his attorneys' fees. See Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550-51 (1987). Though he made no finding as to the amount because Mr. Booth presented no evidence as to the amount, the judge said in his opinion letter: "[I]t is the duty of this court to do equity and equity demands I take cognizance of the attorneys' fees of both parties." We acknowledge that he did so, and we affirm his actions.

III. Making the Award

Finally, we consider whether the trial court erred in making the award. Specifically we decide whether the court erred in ordering Mrs. Booth to transfer her interest in the marital home to Mr. Booth, whether the court erred in valuing property differently when determining the award than when ordering satisfaction of the award, and whether the court should have awarded security for the deferred portion of Mrs. Booth's award. Because we remand this case, we do not address whether the court abused its discretion in making the award.

(8) Mrs. Booth asserts that the court erred in ordering her to transfer her interest in the marital home. We agree. We previously have ruled that our equitable distribution statute does not authorize the trial court to assign, allot, or divide marital property titled in either both names or a single name. Venable v. Venable, 2 Va. App. 178, 185, 342 S.E.2d 646, 650 (1986); Code Sec. 20-107.3(C). While a court is authorized to partition marital property, it may not otherwise affect title by its order. Thus, the trial court erred by ordering Mrs. Booth to transfer her interest in the marital home. Because we presume that a portion of the monetary award included consideration for Mrs. Booth's interest in the marital home, the award will require reconsideration as to this issue. Accordingly, we reverse this ruling of the trial court.

The trial court's order predated the 1988 amendment to Code Sec. 20-107.3 empowering trial courts to distribute marital property.

(9) In his order for the satisfaction of the equitable distribution award, the trial judge found the value of the property known as the "metal warehouse" to be $135,000, although the same property had been valued at $145,000 for purposes of deciding the amount of the award. Mr. Booth argues that the use of two different figures is error. We agree. If the party against whom a monetary award is made elects to convey property in satisfaction of the award, and if the court is alerted to the fact that the value of the property has changed, the court in approving the conveyance must determine the property's value as of the date of transfer. The court may not inequitably allow a party to satisfy a monetary award with property whose value has substantially changed since the date of the award without considering the actual value at the time of the transfer. Thus, if either party contends that the value has changed since the time of valuation, that party may raise the issue and both parties must be given the opportunity to be heard. Absent evidence of change in value, however, the trial court may rely on the valuation of the property at the time of the award and should approve the transfer on that basis. See Haasken v. Haasken, 396 N.W.2d 253 (Minn. Ct. App. 1986). In the present case, the record does not reflect the reason why the trial court used different values for the metal warehouse property. Since the trial court must necessarily reconsider its award in view of our holding regarding the order to transfer an interest in the marital home, the method for satisfaction of the award must be reconsidered. Thus, we reverse and remand for the court to consider the method of satisfying the award.

(10) Finally, Mrs. Booth argues that the trial court should have awarded her security for the deferred portion of her award. A monetary award in an equitable distribution proceeding is a judgment. See Pledger v. Pledger, 6 Va. App. 627, 371 S.E.2d 43 (1988). Code Sec. 8.01-458 provides that a judgment or decree is a lien on real estate of the debtor, and Code Sec. 8.01-460 makes specific provisions for decrees of monetary awards to be paid in future installments. A party who is granted a monetary award in an equitable distribution proceeding is in the same position as any other judgment creditor and has the same enforcement remedies available. The General Assembly has made no provision which requires security from a judgment debtor in matters such as this, and the trial judge did not err in denying Mrs. Booth's motion. We find no error.

The 1988 amendment to Code Sec. 20-107.3(D) provides: "An award entered pursuant to this subsection shall constitute a judgement within the meaning of Code Sec. 8.01-426 and the provisions of Sec. 8.01-382, relating to interest on judgements, shall apply unless the court orders otherwise.

Affirmed in part, reversed in part, and remanded.

Duff, J., and Hodges, J., concurred.

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BOOTH v. BOOTH
(Sep 6, 1988)