MEMORANDUM OPINION*  BY v. Record No. 2044-16-2 JUDGE RANDOLPH A. BEALES DECEMBER 5, 2017 RICHARD E. AUSTIN

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge

Tonya N. Gibbs (TNG Legal, PLC, on briefs), for appellant.

Lawrence D. Diehl (Ann Brakke Campfield; Barnes & Diehl, P.C., on brief), for appellee.

Stacey Wharam (formerly “Stacey Austin”) (“wife”) appeals the circuit court’s November

18, 2016 order awarding Richard Austin (“husband”) child support in the amount of $1,289 per month and finding wife in contempt for failure to comply with a previous order of the circuit court.

The court ordered wife to pay husband $647,832.81 in restitution, in accordance with a monthly

payment plan, to purge herself of the contempt order. Wife assigns ten assignments of error to the circuit court’s order and requests appellate attorney’s fees. Husband also asks for attorney’s fees related to this appeal.

I. BACKGROUND

We review the evidence in the light most favorable to husband, as we must as he is the party prevailing below, and for the same reason, grant him all “reasonable inferences fairly deducible therefrom.” Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).

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

So viewed, the evidence in the record establishes that, prior to their marriage on April 25, 1997, husband and wife executed a prenuptial agreement. During the marriage, husband was employed by REA Development, which, through its holding companies, operated two Arby’s

Roast Beef franchises. Wife was employed as the bookkeeper for husband’s business. During the marriage, husband and wife had three children. The parties separated on June 22, 2013.

Thereafter, the parties engaged in contentious proceedings regarding property distribution, child custody, and child support. After the divorce proceedings began, and while

wife was in sole possession of the former marital residence, wife removed numerous items of tangible personal property from the home. She sold many of these items at auction through Pete

Elliot’s Auction Services on April 5, 2014 and April 12, 2014. On June 26, 2014, after wife’s

actions were discovered, the trial court ordered wife to return those items within 45 days. For any items wife sold, the court ordered wife to provide a receipt indicating the item and the sale price.

On August 12, 2014, husband made a motion for a rule to show cause. In support of his motion, he stated that wife had not facilitated the return of this personal property or provided any receipts. On August 18, 2014, the trial court found wife in civil contempt for failure to comply with the June 26, 2014 order. The order again provided that wife could purge her contempt by returning the items not sold by September 1, 2014 and by providing receipts for the items sold.

The October 2014 Trial and the December 2014 Order

On October 27 and 28, 2014, a trial was held on the divorce, distribution of property, child custody, and child support. Following the hearing, in a December 3, 2014 order, the court granted the parties a divorce.

On December 31, 2014, the court issued a second ruling on matters addressed at the October 2014 trial (the “December 2014 order”). This order granted wife primary physical custody of the children. However, as wife had relocated to Northern Virginia, the court required the children to remain in the care of their maternal grandmother during school days to permit them to continue attending school in Albemarle County.

With respect to distribution of property, the court awarded the martial home to husband as his separate property, given the terms of the prenuptial agreement. The court also made several findings regarding fraudulent actions taken by wife. Namely, the court found wife had:

(1) forged a Deed of Gift purporting to transfer the marital home from husband to the parties as

tenants by the entireties; (2) forged a power of attorney and used it to secure a mortgage on the marital home for $63,543.50 and to obtain a Deed of Trust on her separate property for $902,224.28 with husband’s businesses as guarantors and the parties as co-borrowers; (3) forged powers of attorney to purchase and title a property in the parties’ joint names without husband’s

authorization; and (4) fraudulently obtained a line of credit without husband’s knowledge or approval, in the amount of $649,874.90 with husband’s businesses’ property as collateral and husband’s businesses as guarantors. The court ordered that wife was responsible for the debts secured by these forgeries.^[1]

The December 2014 order also addressed the tangible personal property that is a central issue in this appeal. The court ordered wife to return husband’s gold bullion, silver and gold coins, guns and ammunition, and all personal property removed by wife and auctioned by Pete

Elliot’s Auction Services. The court ruled that each of these items, as well as all items in the marital home, were husband’s separate property. With respect to the tangible property wife already sold or could not return, the court’s order stated that “a determination of said property’s

                                                             value is hereby reserved and shall be addressed upon a future motion of either party.” The court also awarded husband $6,000 in attorney’s fees.

The June 2016 Hearing

On June 16, 2016, the parties again appeared before the court to address husband’s motion for child support2 and to address husband’s renewed motion to show cause concerning

wife’s failure to comply with the December 2014 order.^[3] At the start of the hearing, counsel for wife informed the court that she was not retained to represented wife on husband’s show cause motion – just child custody, visitation, and support. However, as the hearing proceeded, counsel

for wife participated in the hearing on the show cause matters. Also, at the beginning of the hearing, the trial court and counsel discussed the possibility that the court’s ruling on the show cause may be affected by wife’s bankruptcy proceedings. After this discussion, the court stated that it may hear the evidence, but not enter a final order until the parties had an opportunity to submit briefs on the bankruptcy issue.

During the hearing, when asked about his employment, husband testified that he was forced to sell his Arby’s franchises because, as a result of wife’s fraudulent actions, he was unable to reinvest in them. He testified, “[T]he banks are pursuing me for the notes that she took out, and I have no credit whatsoever – my credit rating is destroyed. She left me with $110,000

                                                             on the American Express card. She left other cards maxed out. She cleaned out all of my bank

accounts, personal and otherwise.” Husband further testified that the bank “fire-sold the properties that Ms. Austin had in her name for 30 cents on the dollar. And they’re coming after my money.” He claimed that he continues to be in litigation with the bank on the remaining amount due.

Husband testified that he was not actively seeking employment. He testified that he received $15,000-$16,000 per year in interest income from his checking account where he kept approximately $500,000, which he obtained from the sale of his businesses. He also testified that he would continue receiving similar interest income on that account as long as his account balance did not drop below $500,000.

As part of husband’s show cause petition to the circuit court, husband testified that wife

violated the December 2014 order by failing to pay him the $22,832.81 for mortgage payments, failing to return the gold bullion and silver coins, and failing to return his firearms. Husband also testified that wife never returned the other pieces of personal property addressed by the December 2014 order. Over wife’s objection, the court admitted husband’s exhibit, a personal

inventory (husband’s “Personal Inventory List”), which listed his valuations for pieces of personal property that he claimed wife removed.^[4] In admitting the exhibit, the court noted that it had previously admitted the exhibit at the October 2014 trial. The court also admitted an exhibit that was identified as an identical list, except that a painting that wife claimed was a forgery was removed from the list.^[5] Husband testified that the values he attributed to each of the items were

                                                             the best estimates that he could give at the time he prepared the list. Husband also testified to

having seen a few pieces of his personal property for sale in antique stores, and he provided the court with the listing price given by the antique stores for these items.

During wife’s testimony, wife informed the court that she was employed and making

$75,000 a year. She testified that she disagreed with values placed on the tangible personal property, claiming that they were “highly exaggerated”; however, she did not provide any contrary evidence of the property’s value other than Pete Elliot’s Auction List. On

cross-examination, wife testified that she had remarried and that her husband was employed and grossed approximately $190,000 per year.

The trial court issued a ruling from the bench awarding husband child support and finding wife in contempt of the December 2014 order. With respect to the child support, the court

declined to impute income for husband. It awarded him $1,289 per month of child support, the amount prescribed by the guidelines. The court ordered the child support to be retroactive to

April 2016, and for the months of April, May, June, and July 2016, the court reduced the award to $1,129 per month. As a result of the child support award being made retroactive, the court ordered wife to pay $3,387 in arrearages. As for the personal property, the court ordered wife to pay husband $619,000 in restitution to purge herself of the contempt order. In setting this amount, the court stated, “So while the amount that Mr. Austin has submitted to the Court is high, I can’t find it’s unreasonable, in looking at all of the other circumstances.”

The November 2016 Hearing

On November 1, 2016, wife filed a “Motion to Suspend Execution of the June 16, 2016

Hearing Final Order” although at the time, no final written order had been entered. She also filed a motion to reconsider the ruling from June 16, 2016. On November 18, 2016, the trial court held a hearing for entry of a final order from the June 16, 2016 hearing. The parties used the hearing to seek clarification from the court on the June 16, 2016 ruling from the bench and to finalize a proposed order. After the hearing, the trial court entered the final order awarding child support and finding wife in contempt, consistent with the ruling from the bench. The written order also provides that wife must pay husband an additional $22,832.81 for unpaid mortgage reimbursement payments and $6,000 for attorney’s fees from the October 2014 trial. This

brought the total judgment against wife to $647,832.81. The written order also clarified the payment plan for wife to purge herself of the contempt. Under the plan, wife was to pay a total of $2,589 to husband each month for restitution, child support, and arrearages until wife satisfies her restitution obligations. Wife objected to the final order, citing to the reasons included in her

November 1, 2016 motion. This appeal followed.

II. ANALYSIS

A. Tangible Personal Property

Wife lists three assignment of error regarding the award to husband for the tangible personal property. We address each of these assignments of error in turn.

1. Sufficient Evidence to Determine Value

First, wife assigns error to the trial court’s award of $619,000 because the “Court lacked sufficient evidence that would allow the Court to reasonably assess the value of the tangible personal property to support the monetary award.” Wife argues the court’s valuation was mere guesswork because the court relied significantly on husband’s Personal Inventory List, which wife claims “fails to provide sufficiently clear identification of items.” She specifically takes

issue with the inventory’s description of two items of property as “Yes,” for which husband attributed the values of $27,500 and $6,500. Wife also argues that the reliability of husband’s

Personal Inventory List is discredited by the fact that, in his original list, he had valued a painting at $750,000, when the painting was only appraised for a few hundred dollars.

This Court reviews wife’s first assignment of error for abuse of discretion. Estate of Hackler v. Hackler, 44 Va. App. 51, 64, 602 S.E.2d 426, 432-33 (2004); Hamad v. Hamad, 61

Va. App. 593, 606, 739 S.E.2d 232, 239 (2013). Moreover, “the value of property is an issue of fact, not of law,” Howell v. Howell, 31 Va. App. 332, 340, 523 S.E.2d 514, 518 (2000), and this

Court “will not overturn [a] factual finding unless plainly wrong or without evidence to support it.” Bchara v. Bchara, 38 Va. App. 302, 313, 563 S.E.2d 398, 403 (2002) (alteration added).

Wife repeatedly failed to comply with the orders of the trial court directing her to return husband’s property, which ultimately led to the contempt order.

“Reviewing courts cannot continue to reverse and remand . . . [equitable distribution] cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review for their failure to introduce evidence at trial . . . . At some point we must ‘ring the curtain down.’”

Bowers v. Bowers, 4 Va. App. 610, 617-18, 359 S.E.2d 546, 550 (1987) (citing In re Marriage of Smith, 448 N.E.2d 545, 550 (Ill. App. Ct. 1983)). Although the court’s order was for contempt, not equitable distribution, we find the same principle applies. Wife had the opportunity at the June 16, 2016 hearing to introduce evidence of the property’s value.^[6] The only evidence of value that she introduced was a list of the items she auctioned and their auction sale price. The trial

court, acting within its discretion, rejected wife’s argument that those amounts represented the value of the property.^[7] Wife did not present other evidence on the value of the property, nor did

                                                             wife even cross-examine husband regarding the items listed as “Yes.” Because wife had an opportunity to present evidence on these items’ value and the only evidence she presented was largely rejected by the trial court, the evidence before the trial court was sufficient to find, based

on all the relevant evidence, including husband’s Personal Inventory List, that wife had sold or otherwise disposed of property worth at least $619,000. Therefore, we do not find that the court’s finding of fact in valuing the property wife removed at $619,000 was plainly wrong.^[8]

Although we find no error with the trial court’s reliance on husband’s Personal Inventory

List for setting the amount of the judgment against wife, we remand the judgment to the trial court in order for the trial court to find the value of the two South Sea Tahitian pearl necklaces based on the existing record.^[9] Husband valued these necklaces together at $24,000 on his

personal inventory. However, husband conceded on brief and in oral argument that the necklaces should not have been included on the list because they were gifts from husband’s father to his granddaughters (i.e., husband’s daughters). Therefore, the award should be reduced by the value of the pearl necklaces, as they did not belong to husband, and we instruct the trial court to enter a new judgment with the value of the pearls deducted.

2. Methodology to Assess Value

In wife’s second assignment of error, wife contends that the trial court erred because it

“failed to utilize a proven methodology to assess the value of the tangible personal property.”

Wife argues that husband’s valuations are based on the assumption that the items were in pristine condition and that, for the items for which husband offered specific testimony, husband repeatedly testified to the highest listed price. Wife further argued that the trial court should have valued the property based on the sale prices of the property at auction. On this assignment of error, we affirm the trial court.

It is generally recognized that the opinion testimony of the owner of property . . . is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values.

Haynes v. Glenn, 197 Va. 746, 750, 91 S.E.2d 433, 436 (1956). Husband was the owner of the property, and, as such, his testimony was competent and admissible on the property’s value.

Furthermore, as discussed supra, the court was acting within its discretion when it rejected the argument that the auction prices represented the items’ values.

3. Husband’s Separate Property

In her third assignment of error, wife argues that “the Court erred because it improperly included in the judgement [sic] entered against [wife] amounts for property not previously found

to be [husband’s] separate property in the equitable distribution pursuant to the December 31, 2014, Order and the pre-nuptial agreement.” Wife claims that there are items on husband’s

Personal Inventory List that are not included on Pete Elliot’s Auction List nor specifically included in the December 2014 order. Wife also claims that a number of items of jewelry were gifts to her, and thus, pursuant to the prenuptial agreement, are not husband’s separate property.

On wife’s third assignment of error, we affirm the trial court. As discussed with respect to wife’s first and second assignments of error, the trial court was permitted to accept husband’s testimony that the items on husband’s Personal Inventory List were his separate property and that the value of the items exceeded $619,000. Although wife’s brief states that husband’s Personal

Inventory List includes jewelry which belongs to wife, there is no support for that claim in the - 10 - record. Furthermore, it appears that the time for wife to have argued that the jewelry belonged to

her would have been at the October 2014 trial where the court addressed the distribution of property. Wife did not provide this Court with a copy of the transcript from that proceeding to allow us to determine if wife presented evidence on the jewelry at that time, and we therefore consider this argument waived. See Smith v. Commonwealth, 281 Va. 464, 469, 706 S.E.2d

889, 893 (2011) (“[T]he failure to file an indispensable transcript result[s] in waiver of the issue associated with the transcript.” (alteration added)).

B. Time to Retain Counsel

In her fourth assignment of error, wife argues that the trial court erred because it “failed to give [wife] a fair and reasonable opportunity to retain Counsel for the Show Cause Hearing on June

16, 2016, and adequate time to develop and present evidence on the valuation of the tangible personal property incident to the divorce.” In support of this assignment of error, wife argues:

(1) husband withheld discovery from her; (2) the discovery he did provide was not provided until a

week before trial, including husband’s Personal Inventory List that wife did not receive until June 9, 2016; (3) wife did not retain counsel for the show cause matter because she relied on her bankruptcy counsel’s representation that it would be improper for the court to proceed while bankruptcy

proceedings were occurring regarding wife’s estate; and (4) the trial judge proceeded to rule on the show cause matter after initially stating that she would reserve judgment on the matter. However, wife failed to preserve this issue for appeal.

In this assignment of error, wife asks us to equate her counsel’s statement to the trial court that she was not retained as counsel in the show cause matter as a request for a continuance, which

this Court would review for an abuse of discretion. Rosenberger v. Commonwealth, 159 Va. 953, 957, 166 S.E. 464, 465-66 (1932). However, although wife’s counsel informed the judge that she was not retained for the show cause issue, neither she nor wife requested a continuance or objected

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to proceeding with the hearing. Instead, wife’s counsel proceeded with representing wife on the show cause matters. Furthermore, the trial court’s initial statement regarding waiting to make a final ruling on the show cause does not support wife’s argument. The court clearly represented that

it only intended to wait to rule until it received short briefs from counsel regarding the effect of the bankruptcy. The trial court never implied that it would reserve making a ruling to allow the parties to present more evidence on the merits of the show cause. Because wife never requested a continuance, we find that she did not preserve this assignment of error, Rule 5A:18, and we affirm the ruling of the trial court.

C. Introduction of the Inventory Exhibit

In wife’s fifth assignment of error, wife argues the trial court erred when it “allowed into evidence, utilized, and relied on in rendering its decision, [husband’s] Personal Inventory, which

[husband] failed to timely provide in discovery.” Wife claims that her attorney, who was not

representing her in the show cause matter, requested all exhibits for the June 16, 2016 trial in discovery, but she did not receive the list until seven days prior to trial.^[10] As a result, the only time she claims that she was able to prepare to defend against husband’s valuations was during the lunch recess.

“[A] trial court’s decision to admit evidence that is not timely disclosed . . . will not be reversed unless the court’s action amounts to an abuse of discretion.” Rappold v. Ind.

Lumbermens Mut. Ins. Co., 246 Va. ^[10], 15, 431 S.E.2d 302, 305 (1993) (citing First Charter v. Middle Atlantic, 218 Va. 304, 308-09, 237 S.E.2d 145, 147-48 (1977)). We find no abuse of discretion in the admission (and reliance) on husband’s Personal Inventory List. Even if the exhibit was produced late in discovery, an exhibit substantially similar to husband’s Personal