Analysis: Bomar v. Bomar

Richard J. Byrd, Esq.

Bomar v. Bomar, 3/08/05, Gloucester Circuit, Judge Shaw

Facts: In making the E.D. award, the T/C awarded the former marital home to the Wife. The parties had agreed that the W would get the house, but had not agreed as to her being required to refinance in order to get H off the mortgage. Both parties testified that the W’s credit was bad and she would not likely be able to refinance the property so as to relieve the H of the mortgage obligation.

Trial Court: The trial court awarded W the marital residence and ruled that she was solely responsible for the debts associated with the residence. H requested the T/C to rule that Wife must refinance or otherwise have him removed from liability on the mortgage as a condition of receiving the residence. The T/C denied the motion and explained as follows

Although I have found no appellate cases on the issue, I nevertheless conclude that the statutory direction that Mrs. Bomar “assume [the] indebtedness secured by the property” does not permit the court to order her to refinance the indebtedness. Further, my obligation to apportion debt does not include the power to order an acceleration of the payment of this debt.

Frankly, I would like to have the power to order such refinancing or acceleration, because I am sympathetic to Mr. Bomar's position.

The final decree of divorce assigned the marital residence to the wife, ordered that the wife “shall be responsible for the timely payment of the first and second mortgage payments, taxes and insurance,” and ordered the Husband to convey his title and interest in the marital residence to the Wife.

Issue on Appeal:

• Does the Court Have the Power to Order the Wife to Refinance?:

The husband contends the trial judge erred in ordering the transfer of the marital residence to Wife, while requiring him to remain liable on the mortgage obligation. He argues that the trial judge's ruling was based upon an improper interpretation of the law in §20-107.3.

The wife responds that the trial judge “had the discretion to order that the marital residence be transferred” and did not abuse his discretion in ordering the husband to remain liable on the mortgage.

Holding C/A:

The C/A opined that simply ordering W to assume the mortgage does not protect the husband against W’s default. The record established that the W “has demonstrated financial irresponsibility and has a poor credit rating.” The trial judge expressly recognized the potential burden that this transaction may impose on the husband. Although he was sympathetic to the husband’s plight, the judge ruled he was powerless to remedy the problem. A trial judge abuses his discretion if he bases his ruling on an erroneous view of the law.

The C/A found that Code §20-107.3(C) empowers the court to order, as a condition of transferring jointly owned marital property, that the receiving party “assume any indebtedness secured by the property.” “Clearly this grant of power encompasses the power to condition the transfer upon terms that will not leave the other party at risk of financial ruin if the receiving party is not financially responsible.” The term assume any indebtedness obviously means the grantee agrees to discharge the indebtedness, by refinancing, by paying the balance, or by paying according to the terms of the instrument.

The C/A also noted that the trial judge said “The fact that it’s assigned to her, I’m not sure that down the road she cannot be ordered to refinance.” “Because the record indicates that the trial judge erroneously believed the statute did not permit him to order refinancing or other safeguards when he ordered the transfer of the marital residence to the wife, we hold that the judge abused his discretion in making the award.”

Spousal Support issue:

The H also contended that the T/C erred in awarding spousal support to the W exactly equal to the mortgage payment on the former marital home. [Could this be why the Judge did not worry that the W wouldn’t be able to make the mortgage payment?] Remember the Gamble case, 14 Va App. 558 (1992), wherein the C/A reversed a T/C that did just that very thing, stating that §20-107.3 and 107.1 were separate determinations and this would give the wife a double-dip. Well, the C/A did not find a double-dip here and said that the T/C properly considered all of the §20-107.1 factors and therefore the spousal support award equal to the mortgage payment was sustained.

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[Editor's Note: - This is an informal, and not rigorous, treatment of the issues and holdings in these cases. For the sake of brevity and easier reading, some liberty has been taken by the author with some of the language of the Court of Appeals, even though that language appears in Quotes. For example, underlining is used to emphasize important text. Also, shorthand language is used. E.G. - Where the actual opinion might say: "Fowler's position with regard the parties' Property Settlement Agreement of July 1, 1999 was..." this quote might actually be presented here as: "Mom's position regarding their PSA was..."]

© 2005, Richard J. Byrd, Esq., Chairman, Family Law Section, Fairfax Bar Association. This case summary may not be quoted or reprinted without express written permission.