PRESENT: All the Justices
JULIE ANDREWS UTSCH
OPINION BY
v. Record No. 021987 JUSTICE DONALD W. LEMONS
June 6, 2003
FRANCIS VINCENT UTSCH
FROM THE COURT OF APPEALS OF VIRGINIA
Shortly after his marriage to Julie Andrews Utsch (“Wife”),
Francis Vincent Utsch 1 (“Husband”) transferred title of their
marital residence from his name solely to himself and his wife
as tenants by the entirety. The conveyance was made by deed of
gift and recited “love and affection” as consideration for the
transfer. Additionally, the deed of gift recited that the
conveyance was exempt from recordation taxes under Code § 58.1-
811(D). 2 In the divorce and equitable distribution proceeding,
the trial court held that the deed of gift was unambiguous and,
consequently, that parol evidence concerning the circumstances
surrounding the execution of the deed of gift was inadmissible.
1
Mr. Utsch died during the pendency of his appeal to the
Court of Appeals. Pursuant to Code § 8.01-20, the Court of
Appeals retained jurisdiction “as if such event had not
occurred.” This Court will retain jurisdiction under the same
statute.
2
Code § 58.1-811(D) states the following: “No recordation
tax shall be required for the recordation of any deed of gift
between a grantor or grantors and a grantee or grantees when no
consideration has passed between the parties. Such deed shall
state therein that it is a deed of gift.”
On appeal, the Court of Appeals reversed the judgment of
the trial court and held the following:
[A]lthough the deed is clear and unambiguous on
its face as to [H]usband’s intent to transfer
legal title of the marital residence to himself
and [W]ife jointly as tenants by the entirety
without consideration, it is not clear and
unambiguous with regard to [H]usband’s intent to
make a gift of the marital residence to the
marital estate. Thus, the fact finder must
consider not only the terms of the deed itself,
but also other competent evidence of the
circumstances surrounding its execution and
delivery.
Consequently, we conclude the trial court
erred in finding the language of the deed of gift
unambiguous, in finding the deed of gift
conclusive on its face to establish [H]usband’s
donative intent, and in excluding the
introduction of parol evidence relating to the
circumstances surrounding the execution of the
deed of gift.
Utsch v. Utsch, 38 Va. App. 450, 463, 565 S.E.2d 345, 351-52
(2002). We awarded Wife an appeal from the adverse judgment of
the Court of Appeals. Because we hold that the deed of gift was
unambiguous on its face, both for the purpose of retitling and
proof of donative intent, parol evidence surrounding its
execution was not admissible.
I. Analysis
In equitable distribution proceedings, the determination of
title to property is a separate inquiry from the classification
of property for the purposes of making an award pursuant to Code
§ 20-107.3. The case before the Court involves a narrow
2
question concerning the proof necessary to determine
classification of separate property that has been subsequently
retitled in the joint names of the parties.
Both Husband and Wife agree that the marital residence
before retitling would have been classified as separate property
pursuant to Code § 20-107.3(A)(1). However, Code § 20-
107.3(A)(2) provides in part that marital property consists of
“all property titled in the names of both parties, whether as
joint tenants, tenants by the entirety or otherwise, except as
provided by subdivision A 3.”
Code § 20-107.3(A)(3)(f) provides the following:
When separate property is retitled in the
joint names of the parties, the retitled property
shall be deemed transmuted to marital property.
However, to the extent the property is
retraceable by a preponderance of the evidence
and was not a gift, the retitled property shall
retain its original classification.
The question presented in this appeal is whether the retitling
in this case was a gift. If so, the marital residence is
properly classified as marital property. If not, subject to
proof of retracing, the marital residence retains its
classification as separate property.
The burden of proof that the transfer was a gift is upon
the party seeking to establish the gift. No presumption of gift
arises from the act of retitling. Code § 20-107.3(A)(3)(g).
Additionally,
3
[i]t is well settled that the law does not
presume a gift and where a donee claims title to
personal property by virtue of a gift inter
vivos, the burden of proof rests upon him to show
every fact and circumstance necessary to
constitute a valid gift by clear and convincing
evidence.
Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 631 (1968).
Proof of donative intent, delivery, and acceptance are necessary
to sustain the burden. Id., 159 S.E.2d at 632. In this case,
only donative intent is in controversy.
The parties agree and the Court of Appeals held that the
deed of gift was unambiguous concerning the intent to retitle
the property. The Court of Appeals held that “[i]t does not
necessarily follow, however, that [H]usband intended to convey
the property into the marital estate and thus relinquish his
separate interest in the property for the purposes of equitable
distribution.” Utsch, 38 Va. App. at 461, 565 S.E.2d at 350.
Further, the Court of Appeals held that “in considering
equitable distribution, a trial court must consider all tendered
competent evidence of the context in which a deed is executed
and delivered in order to determine whether that deed effects a
donative intent under Code § 20-107.3(A)(3)(f).” Id. In
reaching these two holdings, the Court of Appeals added
requirements to the elements of proof required under Code § 20-
107.3(A)(3)(f) and eliminated the parol evidence rule from
application in determining a gift in the context of
4
classification for equitable distribution purposes. In each
holding, the Court of Appeals erred.
Nowhere in Code § 20-107.3(A)(3)(f) is there a requirement
of proof that a gift was intended for a particular purpose. The
proof required under the statutory provision is simply that the
transfer was a gift. As we have previously held in a case
involving a grantor’s intent in a deed, “[i]f [the party]
intended the deed to be operative for one purpose, he must be
taken to have intended it to be operative for all purposes
apparent on its face.” Capozzella v. Capozzella, 213 Va. 820,
824, 196 S.E.2d 67, 70 (1973).
In determination of what is apparent on the face of a deed,
we must consider the application of the parol evidence rule.
Contrary to the holding of the Court of Appeals, nothing in the
statutory scheme suggests that the parol evidence rule is not to
be applied in the determination of donative intent for equitable
distribution purposes. The legislature is fully capable of
stating that the parol evidence rule does not apply to such a
determination. In the absence of such a declaration, the courts
should not supply it, particularly where such a rule of law has
been routinely applied to interpret deeds in Virginia. See
Adams v. Alliant Techsystems, Inc., 261 Va. 594, 598-99, 544
S.E.2d 354, 355-56 (2001).
5
“[T]he question whether a writing is ambiguous is not one
of fact but of law.” Pyramid Dev., L.L.C. v. D&J Assocs., 262
Va. 750, 754, 553 S.E.2d 725, 727 (2001) (quoting Langman v.
Alumni Assoc. of the Univ. of Virginia, 247 Va. 491, 498, 442
S.E.2d 669, 674 (1994)). Just as we are not bound by the trial
court’s conclusions regarding an instrument’s ambiguity, neither
are we bound by the conclusion of the Court of Appeals. Id. at
754, 553 S.E.2d at 727. “[W]hen the language of a deed is
‘clear, unambiguous, and explicit,’ a court interpreting it
‘should look no further than the four corners of the instrument
under review.’ ” Id., 553 S.E.2d at 728 (quoting Langman, 247
Va. at 498-99, 442 S.E.2d at 674).
Within the four corners of the instrument in question in
this case are the declaration that it is a “deed of gift,” the
recitation that the conveyance is for “love and affection,” and
the reference to Code § 58.1-811(D) permitting exception from
recording taxes for gifts. We hold that the deed was
unambiguous on its face and that the parol evidence rule applies
to the determination at issue. The deed not only shows by clear
and convincing evidence the intent to jointly title the marital
residence, but it also shows the donative intent of Husband in
making the transfer.
6
Failure to recognize the applicability of the parol
evidence rule in this context would result in unacceptable
uncertainty in the law. As one noted commentator observed:
If [there were no parol evidence rule], no lawyer
would be safe in advising upon the construction
of a written instrument, nor any party in taking
under it; for the ablest advice might be
controlled, and the clearest title undermined,
if, at some future period, parol evidence of the
particular meaning which the party affixed to his
words, or of his secret intention in making the
instrument, or of the objects he meant to take
benefit under it, might be set up to contradict
or vary the plain language of the instrument
itself.
11 Richard A. Lord, Williston on Contracts § 33.1, at 556 (4th
ed. 1999) (citation omitted).
II. Conclusion
Because the Court of Appeals reversed the judgment of the
trial court concerning its classification of the marital
residence and ordered a remand, the court did not address
Husband’s challenge to the trial court’s distribution of that
property’s value in the equitable distribution award. Utsch, 38
Va. App. at 464 n.4, 565 S.E.2d at 352 n.4.
For the reasons stated, we will reverse the judgment of the
Court of Appeals and remand to the Court of Appeals for
consideration of the remaining unaddressed issue.
Reversed and remanded.
7