Robert Waverly Roper v. Nancy Chenault Roper

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Kelsey, Petty and Senior Judge Bumgardner
Argued at Richmond, Virginia
ROBERT WAVERLY ROPER
MEMORANDUM OPINION* BY
v. 	Record No. 0547-07-2 	JUDGE WILLIAM G. PETTY
DECEMBER 27, 2007
NANCY CHENAULT ROPER
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Mary Burkey Owens, Judge Pro Tempore
Graham T. Jennings, Jr., for appellant.
Thomas L. Gordon (Gordon, Dodson, Gordon & Rowlett, on brief),
for appellee.
This appeal arises from a final decree of divorce. Husband, Robert Waverly Roper,
contends the trial court erred by (1) awarding wife, Nancy Chenault Roper, a forty-five percent
share of the marital residence; (2) refusing to grant husband a divorce on the ground of constructive
desertion; and (3) refusing to award husband his attorney’s fees and costs.1 For the reasons
discussed in this opinion, we affirm.
I.
Husband contends the trial court erred when it awarded wife a forty-five percent share of
the marital residence as part of the equitable distribution award pursuant to Code § 20-107.3. In
his brief, husband concedes the marital residence was a marital asset and that the trial court
correctly valued the equity in the marital home at $48,817.52. Husband asserts that, based upon
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1 In his brief, husband abandoned a fourth question presented concerning the refusal of
the trial court to award him spousal support. Therefore, we need not address it in this opinion.

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the evidence he presented at trial, the trial court abused its discretion when it applied the
statutory factors in Code § 20-107.3 and failed to award him all of the equity in the marital
residence. This argument is without merit.
“A decision involving the equitable distribution of marital property ‘rests within the
sound discretion of the trial court,’ and can be overturned only by a showing of an abuse of that
discretion.” Owens v. Owens, 41 Va. App. 844, 853, 589 S.E.2d 488, 493 (2003) (quoting Mir
v. Mir, 39 Va. App. 119, 125, 571 S.E.2d 299, 302 (2002)). The amount and form of any
equitable distribution award “are matters committed to the sound discretion of the trial court.”
Barker v. Barker, 27 Va. App. 519, 535, 500 S.E.2d 240, 248 (1998).
By final decree, the trial court divided the equity in the marital residence by awarding
fifty-five percent to husband and forty-five percent to wife. Wife was ordered to convey her
interest in the marital residence to husband “as soon as possible.” The final decree provided that
within sixty days, husband would pay wife $21,967.88 for her interest in the marital residence.
Prior to entering the final decree, the trial court entered an opinion setting forth its
reasons for the equitable distribution award. The trial court found:
[Husband] benefited greatly from the transaction which resulted in
the conveyance of the marital residence to [wife] and the parties’
Antenuptial Agreement. [Husband] insists that the reason for the
transaction was to obtain a lower interest rate; however, the
evidence shows that the transaction between [husband] and [wife]
was necessitated by [husband’s] bankruptcy proceedings.
[Husband] could have arranged alternate financing; however, he
did not. Instead he entered into a bona fide sales transaction with
[wife] with the contractual assurance from her that the residence
would become a marital asset jointly owned by both parties.
Nowhere in the Agreement was the asset identified to remain either
[husband’s] or [wife’s] separate property; it was to be a marital
asset, re-titled jointly upon marriage.
The trial court also took into account, however, that husband paid most of the mortgage
payments, taxes, and insurance costs for the marital residence. Moreover, he made

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improvements to the home and was primarily responsible for cleaning and cooking. Therefore,
based upon husband’s contributions, the trial court awarded husband fifty-five percent of the
equity in the marital residence and forty-five percent to wife.
Thus, we find no basis for husband’s claim that the trial court abused its discretion with
regard to the equitable distribution of the marital residence.
II.
The husband contends the trial court erred when it refused to grant him a divorce on the
ground of constructive desertion. In the proceedings below, husband sought a divorce on the
ground of constructive desertion and wife alleged desertion. The trial court, however, granted
husband a divorce based upon separation of the parties for more than one year without
interruption or cohabitation. In so doing, the trial court found that the parties separated on
December 8, 2004 and appeared in court for an evidentiary hearing on December 19, 2005.
When viewed in the light most favorable to the wife, the party who prevailed below, the
evidence clearly supports the trial court’s findings. 	Moreover, even if we were to assume that
husband established a prima facie case of constructive desertion, “[w]here dual or multiple
grounds for divorce exist, the trial [court] can use [its] sound discretion to select the grounds upon
which [it] will grant the divorce.” Lassen v. Lassen, 8 Va. App. 502, 505, 383 S.E.2d 471, 473
(1989). The trial court ruled that this divorce should be granted to the husband based upon the
parties having been separated for one year, which was proven and corroborated by the evidence.
Therefore, the trial court did not abuse its discretion in determining the appropriate
ground upon which to grant the divorce.

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III.
Husband contends the trial court erred in failing to award attorney’s fees and costs. The
question of whether to award attorney’s fees “‘is a matter submitted to the sound discretion of
the trial court and is reviewable on appeal only for an abuse of discretion.’” Kane v. Szymczak,
41 Va. App. 365, 375, 585 S.E.2d 349, 354 (2003) (quoting Northcutt v. Northcutt, 39 Va. App.
192, 199-200, 571 S.E.2d 912, 916 (2002)); see also Graves v. Graves, 4 Va. App. 326, 333, 357
S.E.2d 554, 558 (1987). “Given the unique equities of each case, our appellate review steers
clear of inflexible rules and focuses instead on ‘reasonableness under all the circumstances.’”
Kane, 41 Va. App. at 375, 571 S.E.2d at 354 (quoting Joynes v. Payne, 36 Va. App. 401, 429,
551 S.E.2d 10, 24 (2001)).
The record reflects that the trial court considered each party’s request for attorney’s fees
and concluded:
The Court considered the testimony of the parties and arguments of
counsel on this issue. The Court finds that each party has
expended significant sums for attorney’s fees. Both parties have
also taken actions to exacerbate this litigation. For example,
[husband] refused to negotiate with [wife] concerning payment of
the mortgage on the marital residence and instead petitioned the
Juvenile Court for spousal support. On the other hand, [wife],
without consulting [husband], used the mortgage and tax deduction
for the marital residence on her individual income taxes for tax
year 2004 when she was fully aware that [husband] had made all of
the mortgage, tax and insurance payments on the marital residence
using his salary. Accordingly, the evidence presented does not
warrant an award of attorney’s fees by either party to the other.
The record contains credible evidence in support of the trial court’s findings; therefore,
we determine that the trial court did not abuse its discretion in denying husband’s claim for
attorney’s fees.2
2 The trial court also ordered the parties to pay an equal share of the costs of the judge
pro tempore fees of $3,000.

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IV.
We hold the trial court did not abuse its discretion and affirm the final decree of divorce.
Affirmed.