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Monds v. Monds

Court of Appeals of Virginia

May 8, 2018



          (Peter V. Chiusano; Abrons, Chiusano & Sceviour, P.L.L.C., on brief), for appellant. Appellant submitting on brief.

          Jennifer B. Shupert (Shupert Chaing, on briefs), for appellee.

          Present: Judges Beales, Alston and Senior Judge Frank Argued at Norfolk, Virginia



         Kevin Glen Monds ("husband") appeals the decision of the Circuit Court of the City of Virginia Beach ("circuit court"), made at a contempt proceeding, that a check he made payable to Laura Marie Monds ("wife") was a gift to the parties' son. Husband argues the circuit court "erred and exceeded its authority when it found that [husband] was not in contempt and dismissed the show cause, but then ordered a sanction, that [husband] pay an additional $10, 000 to [wife]." He also contends that the circuit court erred "when it ruled that the $10, 000 payment to [wife] was a gift."

         I. Background

         On appeal, we are required to view the facts in the light most favorable to wife because she was the prevailing party in the circuit court. See Wright v. Wright, 61 Va.App. 432, 451, 737 S.E.2d 519, 528 (2013). So viewed, the evidence shows that husband and wife were married on March 5, 1995. They had two children, Zachary Monds ("Zach"), born in 1997 (and an adult at the time of the litigation that led to this appeal), and a daughter, born in 2002.

         The parties separated on July 11, 2012, and entered into a separation agreement on June 20, 2016 (the "Agreement"). The Agreement provided that, beginning June 1, 2016, husband would pay wife child support of "$445.00 per month, by direct deposit into Wife's bank account with the deposit due and paid into her account on the 1st of each month." In consideration of her waiver of spousal support, the Agreement provided that husband would pay wife an equitable distribution award according to the following schedule: $25, 000 at the time of the signing of the Agreement; $75, 000 upon the entry of the final divorce decree; and the balance of $100, 000 within six months of the date of the entry of the final divorce decree. The Agreement was "ratified, affirmed, and incorporated, but not merged, into and made a part of" the final divorce decree on August 30, 2016.

         On March 9, 2017, wife filed a petition and affidavit for rule to show cause alleging that husband violated the Agreement and final divorce decree by failing to pay her the $100, 000 within six months. The petition also alleged that husband had failed to pay child support since December 2016. The circuit court issued an order to show cause on the same day.

         The parties appeared before the circuit court on June 2, 2017. At the beginning of the hearing, wife's counsel alerted the circuit court that the case involved "a possible gifting issue." She claimed that, following wife's filing of the petition and affidavit for rule to show cause, husband paid the child support and most of the equitable distribution award.[1] However, wife's counsel argued that husband still owed wife $10, 000 of the $100, 000 equitable distribution award because, although husband wrote a check payable to wife for that amount, that $10, 000 was actually a gift to the parties' adult son, Zach, to allow him to pay off certain medical bills.

         At the hearing, wife testified that, beginning in the middle of January 2017, she started exchanging texts and emails with husband regarding unpaid child support. According to wife, at that time, husband had paid child support for December 2016 - but not yet for January 2017. Wife also testified that her communications with husband included some references to medical bills for Zach, who had suffered a broken ankle while uninsured in December 2016.[2]Specifically, in a January 26, 2017 email to husband, wife stated, "The final decree states the child support has to be an automatic deposit. You refuse to that and now aren't paying. I'm trying not to file anything but you are making impossible. I'm doing everything I can to make sure Zach medical bills are paid since he didn't have insurance." She also testified that she sent other texts to husband regarding the medical bills.

         Following these communications, wife became aware that, on January 27, 2017, husband deposited a $10, 000 check into her bank account. Wife testified that the account was in her name as well as in her mother's name, but that Zach was "linked in" to all of her accounts. Wife stated that she believed that the check was for Zach, although a photograph of the check, introduced at the hearing, showed husband had written wife's name on the payee line of the check, designating wife as the person to whom the check should be paid. The photograph also showed wife's name on the deposit slip on the line provided for the name of the account owner. Zach's name was written on the check's memorandum line. Wife testified that husband did not tell her "anything about that check" - not even the amount - prior to making the deposit, except that he "kept on saying he was going to make it." She also testified that she had received one previous check for $10, 000 from husband toward his $100, 000 equitable distribution obligation.[3]

         Wife testified that, while the entire $10, 000 husband deposited on January 27, 2017 was still in her account, she and Zach had plans for using that money. She explained that Zach was transferring to a new college, and the money would be used to buy him a new car and to pay for his rent and other expenses. When asked if Zach's medical bills had been or were being taken care of as well, wife testified that they still owed approximately $3, 000 to a medical provider.

         After wife's testimony, husband's counsel moved to strike, claiming that there had been no delivery of the check to Zach and, therefore, no gift. The circuit court found that wife "hasn't accepted it yet, [the money is] still sitting in her account."

         On cross-examination, wife initially denied having discussions with husband about problems he was having selling a house and the potential delay in payments that might cause. However, she did not deny sending husband the following text message: "I wanted to work w you for the last payment cuz I know sues house still hasn't sold. But it's kinda hard when u act the way u act!! PS aren't OUR kids gorgeous?????" She also admitted to sending a text message to husband on January 12, 2017, stating, in part, "I had told Zach he could have the money fr u this month for his medical bills." However, she claimed at trial that the money she was referring to was the child support obligation - not the equitable distribution payment.

         Zach was called as a witness for his mother, and he testified that, in January 2017, he received a text message from his father containing a photograph of the check. The photograph depicted wife's name on the payee line and Zach's name in the memorandum line. The text accompanying the photograph stated, "Deposit made today . . . PLEASE READ UR MOMS TX TO ME ..... I HOPE SHES TELLING THE TRUTH . . . BUT DOUBT IT . . . LOVE YAA." Zach testified that he understood the text to mean that his father was sending him a check for $10, 000. Zach stated that he received another text from his father on February 21, 2017. That text stated, "Hey zach i wud like to help u with ur bills . . . . even if ur mom gave u the 10GRAND LIKE SHE SAID SHE wud ..... LETS talk . . we're missen some great times . . . PLEASE." He also stated that he received a voicemail from his father in January[4] in which his father explained that the $10, 000 was for him. He stated that his father "never specified that it was for child support or not, just that it was my money." Zach also testified that he believed this money was gifted to him and that he had access to his mother's account where the money was deposited. On cross-examination, Zach admitted that, in his father's voicemail, his father stated that Zach's mother was going to give Zach the $10, 000.

         Husband testified that he intended for the $10, 000 to be a payment made pursuant to the terms of the Agreement and final divorce decree. He stated that he had communicated with wife and told her that he was working as hard as he could to pay her the total distribution of her money by the due date - and that he was working to sell two houses to come up with the money.

         Husband stated that he wrote Zach's name on the memorandum line of the check because wife "had told him that she was going to give him the money, and I just wanted him to be aware that I had made a direct deposit into her account and that she probably was not going to be truthful and give him the money."

         After the testimony, the circuit court made the following findings:

First off, it's a legitimate dispute between the two of them. It's kind of hard to understand, when you have this total lack of trust between the two of them, for you to - - all this litigation that has occurred, you don't communicate with each other except by text and e-mail, that if, in a convoluted way, that the child support was paid in advance and all these things, the court feels and finds, after reviewing the documents and the credibility issues on both sides, the court feels the ...

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