Ann M. Hayes v Douglas M. Hayes

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
ANN M. HAYES
v. 	Record No. 2386-94-4 	OPINION BY
CHIEF JUDGE NORMAN K. MOON
DOUGLAS M. HAYES 	JANUARY 11, 1996
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
Jay T. Swett, Judge
Ann M. Callaway (Ann M. Callaway, P.C., on
brief) for appellant.
Jeffrey B. Rice for appellee.
Ann M. Hayes appeals the trial court's equitable
distribution decree, in which the trial court ruled that it
lacked authority to order Douglas Hayes, appellee, to pay to Ann
M. Hayes loans made by her to him. 	The trial court reasoned that
the loans, made for the benefit of the husband's separate
property, were separate as opposed to marital debts. 	The judge
construed Code § 20-107.3(C) as not allowing the court to order
repayment of non-marital debts of the parties. 	Because we hold
that Code § 20-107.3(C) authorizes the court to order such
payments, we reverse.
Code § 20-107.3(C) provides in part:
The court shall also have the authority to apportion
and order the payment of the debts of the parties, or
either of them, that are incurred prior to the
dissolution of the marriage, based upon the factors
listed in subsection E.
(Emphasis added).

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Code § 20-107.3(E) provides:
The amount of any division or transfer of jointly owned
marital property, and the amount of any monetary
award, the apportionment of marital debts, and the
method of payment shall be determined by the court
after consideration of the following factors:
1. 	The contributions, monetary and nonmonetary, of
each party to the well-being of the family;
2. 	The contributions, monetary and nonmonetary, of
each party in the acquisition and care and maintenance
of such marital property of the parties;
3. 	The duration of the marriage;
4. 	The ages and physical and mental condition of the
parties;
5. 	The circumstances and factors which contributed to
the dissolution of the marriage, specifically including
any ground for divorce under the provisions of
subdivisions (1), (3), or (6) of § 20-91 or § 20-95;
6. 	How and when specific items of such marital
property were acquired;
7. 	The debts and liabilities of each spouse, the basis
for such debts and liabilities, and the property which
may serve as security for such debts and liabilities;
8. The liquid or nonliquid character of all marital
property;
9. 	The tax consequences to each party; and
10. 	Such other factors as the court deems necessary or
appropriate to consider in order to arrive at a fair
and equitable monetary award.
(Emphasis added.)
The trial court construed the phrase "debts of the parties"
as used in Code § 20-107.3(C) to mean "marital debt," as used in
§ 20-107.3(E), and defined "marital debt" as "that debt incurred
for the joint benefit of the parties during the marriage, rather

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than a loan benefiting just one party's separate property."
The language of Code § 20-107.3(C), and its command to
consider the factors listed in Code § 20-107.3(E), does not
restrict the judge's discretion to order payment of the parties'
non-marital debts to each other. 	The first paragraph of
subsection E states that it is limited to the apportionment of
marital debt. 	However, § 20-107.3(C) does not invoke the first
paragraph of Code § 20-107.3(E). 	The only part of subsection (E)
that is invoked in Code § 20-107.3(C) is the list of the ten
factors. 	Nothing in that list restricts the trial court's
authority to order payment of non-marital debts between the
parties as permitted in Code § 20-107.3(C).1
The language of the statute is unambiguous: 	"The court
shall also have the authority to apportion and order the payment
of the debts of the parties, or either of them." 	The term "debt"
is not limited. 	The authority to order payment of non-marital
debt is only limited to the extent that the court must consider
the factors in Code § 20-109.3(E) before ordering payment.
Furthermore, we conclude that the General Assembly intended
that to the greatest extent possible, matters affecting the
parties' estate be resolved in the divorce action. 	This is
evidenced by the General Assembly's decision to amend Code
1 We are not addressing payment of a non-marital debt owed
to a non-party. 	See Woolley v. Woolley, 3 Va. App. 337, 341, 349
S.E.2d 422, 425 (1986)(holding that the court is not authorized
to make an equitable distribution of marital property to a non-
party).

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§ 20-107.3(C) to permit partition of marital property and to
allow allocation of debt to the parties. 	Consistent with the
General Assembly's intent, we interpret Code § 20-107.3(C) to
authorize the court to require payment of non-marital debt owed
by one party to the other.
Here, it was necessary for the trial court to determine the
parties' separate property. 	See Code § 20-107.3(A). 	The court
could not make that determination without first determining
whether Mr. Hayes owed Mrs. Hayes the amount Mrs. Hayes claimed.
Because evidence showed that Mr. Hayes borrowed the money from
Mrs. Hayes to pay child support to his former spouse and to
improve his separate property, the trial judge's finding that the
debt was separate debt was not plainly wrong. 	Once it so found,
the trial court should have decided whether to order Mr. Hayes to
pay the debt, taking into consideration the factors specified in
Code § 20-107.3(E).
Therefore, we reverse the judgment and remand the case to
the trial court for further proceedings consistent with this
opinion.
Reversed and remanded.