Watts v. Watts

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia

CHARLES G. WATTS, JR.
OPINION BY
v. Record No. 2235-02-1 JUDGE JERE M.H. WILLIS, JR.
MAY 27, 2003
LINDA E. WATTS

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge

Alexander S. de Witt (Ronald S. Evans;
Brenner, Evans & Yoffy, P.C., on brief), for
appellant.

Breckenridge Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellee.

Charles G. Watts, Jr. (husband) contends on appeal that the

trial court erred: (1) in finding that Linda Watts (wife) proved

his adultery by clear and convincing evidence; (2) in relying on

its finding of adultery in determining equitable distribution

under Code § 20-107.3(E); (3) in finding that husband's actions

outside the marriage constituted serious negative nonmonetary

contributions and in relying on that finding to justify an

unequal distribution of the marital estate; (4) in classifying

certain items of personal property acquired during the marriage

as wife's separate property; and (5) in allocating a

substantially disparate share of the marital estate to wife. We

affirm in part, reverse in part, and remand.
 BACKGROUND

The parties were married on May 23, 1980. They have one

child, born on May 2, 1988. On April 27, 2001, wife filed a

bill of complaint seeking a divorce on the ground of adultery.

On April 16, 2002, the trial court conducted an ore tenus

hearing on the issues of adultery and equitable distribution.

In an opinion letter dated June 27, 2002, the trial court found

that wife "established her claim of Husband's adultery[,] . . .

granted the divorce on those grounds" and "report[ed] [its]

conclusions with respect to equitable distribution, having

reviewed the pleadings, transcripts, exhibits and arguments."

On July 29, 2002, the trial court entered the final decree of

divorce setting forth those determinations.

ADULTERY

Husband contends the evidence was insufficient to prove he

committed adultery.

"'To establish a charge of adultery the evidence must be

clear, positive and convincing. Strongly suspicious

circumstances are insufficient. Care and circumspection should

accompany consideration of the evidence.'" Romero v. Colbow, 27

Va. App. 88, 93-94, 497 S.E.2d 516, 519 (1998) (quoting Painter

v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975)).

However, "'while a court's judgment cannot be based upon

speculation, conjecture, surmise, or suspicion, adultery does

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not have to be proven beyond a reasonable doubt.'" Gamer v.

Gamer, 16 Va. App. 335, 339, 429 S.E.2d 618, 622 (1993)

(quoting Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927

(1983)). Rather, the evidence must "'produce in the mind of the

trier of facts a firm belief or conviction as to the allegations

[of adultery] sought to be established.'" Cutlip v. Cutlip, 8

Va. App. 618, 621, 383 S.E.2d 273, 275 (1989) (quoting Seemann

v. Seemann, 233 Va. App. 290, 293 n.1, 355 S.E.2d 884, 886 n.1

(1987)). "It is well settled, however, that such proof may be

by circumstantial as well as direct evidence." Bowen v.

Pernell, 190 Va. 389, 393, 57 S.E.2d 36, 38 (1950).

"[I]n determining whether clear and convincing evidence

supports a finding of adultery, the Supreme Court and this Court

have consistently reviewed the record to determine not only

whether the evidence merely established suspicious conduct, but

also whether a credible explanation existed for the

circumstances." Hughes v. Hughes, 33 Va. App. 141, 150, 531

S.E.2d 645, 649 (2000).

The evidence was before the trial court on both depositions

and an ore tenus hearing. While "a divorce decree based solely

on depositions is not as conclusive on appellate review as one

based upon evidence heard ore tenus," it is nonetheless

"presumed correct and will not be overturned if supported by

substantial, competent and credible evidence." Collier v.

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Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 (1986). If

the court "'hears the evidence ore tenus, its finding is

entitled to great weight and will not be disturbed on appeal

unless plainly wrong or without evidence to support it.'"

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630,

631 (1988) (quoting Martin v. Pittsylvania County Dep't of

Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). In

both instances, however, we must, on appeal, "view [the]

evidence and all reasonable inferences in the light most

favorable to the prevailing party below." Id.

Wife testified on deposition that, by early 2000, husband

"came home from work late almost every night" and took a change

of clothes with him. 1 She noticed that he began checking his

voice mail more frequently, and his telephone usage increased.

In January, 2000, she overheard him on the telephone tell

someone, "'I love you more than I've ever loved any woman in my

life. I miss you. I have been enjoying all of our late nights

together.'" In March, 2000, husband left the marital home and

1
Most of the evidence surrounding the charge of adultery is
contained in the deposition transcripts, however, wife did
testify at the ore tenus hearing that, within the past five
years, husband "never came home before 10:30 [p.m.]" on
weeknights. She also testified that husband provided minimal if
any assistance with household and familial chores and duties and
that their son has suffered emotional problems as a result of
their separation and divorce.

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moved into an apartment. In October, 2000, he contacted wife,

told her he loved her, "that his relationship with Virginia [Mae

Glass] had just been [an] infatuation, and that he wanted to

come back home." He returned home shortly thereafter and

relations between the parties improved.

However, by January, 2001, the relationship worsened.

Husband again began coming home late, and wife began noticing

that husband's shirts had the smell of perfume. She hired a

private investigator. She kept a record of husband's schedule

in March, 2001 and documented several Fridays on which he did

not return home until early morning.

On March 8, 2001, wife hired private investigator Dairold

Easterwood to determine whether husband "was seeing someone

else." Easterwood conducted surveillance on six dates in March.

On March 9, 2001, Easterwood followed husband from his place of

employment (Printpak) to 126 Nelson Drive in Williamsburg.

Husband arrived at 5:30 p.m., parked and met Virginia Mae Glass,

who also worked at Printpak. They "exchanged an embrace and a

short kiss," entered husband's vehicle and left. Around

6:30 p.m., they drove to a house located at 124 Norge Lane,

entered and remained until 10:50 p.m. They then returned to 126

Nelson Drive. Glass exited husband's truck and entered her car.

They drove individually from there to 7850 Cedar Springs Drive

in Gloucester. They arrived a little after midnight, parked,

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got out and "exchange[d] a kiss and embraced." Husband then

re-entered his truck and left.

On the afternoon of March 14, 2001, husband left his office

at 5:05 p.m., entered his car and drove away. Five minutes

later, Glass left the Printpak office. Easterwood followed

Glass "to a roadside parking area on the Colonial Parkway."

Glass parked near husband's waiting vehicle. They exited their

cars, embraced and left. Unable to follow them, Easterwood

proceeded to the 7850 Cedar Springs Drive address. At 9:09 p.m.

Glass and husband arrived in their respective vehicles. They

exited, embraced and entered the residence. "[T]he porch light

that was on was turned off." At 9:45 p.m. another vehicle

arrived, a "reddish 4-by-4," parked and the driver entered the

residence. At 9:55 p.m., husband left.

On March 15, 2001, Easterwood set up surveillance at 7850

Cedar Springs Drive at 8:30 p.m. At 9:15 p.m., husband "drove

up . . . followed by . . . Ms. Glass in her red Oldsmobile."

They parked and entered the residence. At 9:40 p.m. "the same

reddish 4-by-4 came and pulled into the drive." "[B]etween 9:45

and 9:50, [husband] came out and got in his vehicle and left."

On March 16, 2001, Easterwood began surveillance at

Printpak at 4:00 p.m. At 5:20 p.m., husband and Glass left the

building and entered their respective vehicles. They drove to

126 Nelson Drive and parked. They met on the sidewalk, embraced

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and kissed. Husband changed clothes, and the two drove in

husband's vehicle to a restaurant and had dinner. Around

7:06 p.m., they entered the house at 124 Norge Lane and remained

inside until 10:25 p.m. Husband and Glass then drove to a movie

theater complex in Hampton. They watched a movie, "embracing

and kissing several times throughout the movie," and left around

12:45 a.m. when the movie ended. After the movie, they went to

the 7850 Cedar Springs Drive residence, arriving at 1:50 a.m.

At 2:20 a.m., Easterwood saw a light in a front room become

"dim" or "very low" in brightness. The lights in that room

"brightened up at 4:15 [a.m.]," and at 4:30 a.m., husband got

into his vehicle and left.

On March 23, 2001, Easterwood saw husband and Glass leave

their office at 5:05 p.m., enter their respective vehicles and

drive to 126 Nelson Drive. They met on the sidewalk, embraced

and kissed. Husband changed his shirt and pants and got into

the passenger seat of his truck. Glass got into the driver's

seat and drove from the scene. Easterwood lost them in traffic,

so he proceeded to the 7850 Cedar Springs Drive address and

waited, without success, until 8:30 p.m., at which time he

terminated surveillance.

On March 30, 2001, Easterwood went to Printpak at 3:45 p.m.

At 5:13 p.m., Glass left Printpak and drove to a bank parking

lot where she parked and joined husband, who was in his pickup

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truck. At 6:45 p.m., they entered the 124 Norge Lane residence.

They stayed there until 10:55 p.m., when they recovered Glass's

car and drove their respective vehicles to the 7850 Cedar

Springs Drive residence, arriving around 12:15 a.m. At

12:40 a.m., the light in the front room dimmed, and at

4:20 a.m., the light brightened and husband entered his truck

and departed.

In April, 2001, wife told husband she intended to file for

divorce on the ground of adultery.

Virginia Mae Glass testified in deposition that she resides

at 126 Nelson Drive in Williamsburg and has worked at Printpak

and known husband since 1997. She said husband has visited her

in her home. When asked whether she and husband had a sexual

relationship, she invoked the Fifth Amendment. To subsequent

questions directed at a possible relationship, she stated "I

don't remember" or "I plead the Fifth."

In deposition testimony, husband suggested there were times

he and Glass "had to be together" for "certain

[business-related] functions." When asked whether he visited

Glass's home between January 1, 2001 and April 1, 2001, he

replied, "I don't remember." When asked whether he had sexual

intercourse with Glass, he invoked the Fifth Amendment.

This case is controlled by Coe, 225 Va. 616, 303 S.E.2d

923. The facts in Coe are similar to those in this case. After

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discovering that Mrs. Coe was seeing another man (Madden), Mr.

Coe hired a private investigator to conduct surveillance. Id.

at 620-21, 303 S.E.2d at 926. The investigator saw Mrs. Coe's

car parked outside Madden's apartment at 3:16 a.m. Id. at 621,

303 S.E.2d at 926. The lights of the apartment were out. Id.

At 7:13 a.m., Madden left the apartment. Id. Mrs. Coe left the

apartment almost an hour later. Id. After Mrs. Coe departed,

the investigator knocked on Madden's door and telephoned, but no

one answered. Id. The same scenario took place the next night.

Id. at 621-22, 303 S.E.2d at 927. Mrs. Coe's car was parked

outside Madden's darkened apartment at 2:58 a.m. Id. at 622,

303 S.E.2d at 927. Madden left at 7:15 a.m., and Mrs. Coe left

at 7:53 a.m. Id.

In affirming the trial court's finding of adultery based

upon testimony from Mr. Coe and the investigator, the Supreme

Court explained:

Although the allegation of adultery was
denied by [Mrs. Coe in the bill of
complaint], the record contains no testimony
by her, or that of any witness, which
contradicts or denies the testimony given by
[Mr. Coe] and the detective as to the
alleged adultery. [Mrs. Coe] ma[d]e no
attempt to explain her relationship with
Madden, or her presence in his unlighted
apartment on the two occasions testified to
by the detective.

Id. at 622, 303 S.E.2d at 927.

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 The Supreme Court distinguished Dooley v. Dooley, 222 Va.

240, 278 S.E.2d 865 (1981), in which the trial court disregarded

the commissioner in chancery's recommendation not to find Mrs.

Dooley guilty of adultery. The Coe Court emphasized that Mrs.

Dooley had testified before the commissioner, who "heard all the

evidence in the case," rather than the trial judge, and had

provided the commissioner an "explanation of the events which

had been narrated by the [private] detective." Coe, 225 Va. at

622, 303 S.E.2d at 927. The evidence before the commissioner

supported his determination that adultery was not sufficiently

proven and demonstrated that the trial court erred when it

disregarded that finding. Id.

The majority of the cases cited by husband in support of

reversing the trial court are distinguishable in that many of

those cases involved trial court findings of insufficient

evidence of adultery, affirmed on appeal. See, e.g., Seemann,

233 Va. 290, 355 S.E.2d 884 (commissioner and trial judge found

no adultery; affirmed on appeal); Painter, 215 Va. at 420, 211

S.E.2d at 38 (trial court found no adultery; Supreme Court

affirmed, holding trial court not plainly wrong in finding

evidence insufficient); Haskins v. Haskins, 188 Va. 525, 50

S.E.2d 437 (1948) (trial court found that wife's allegation of

adultery was not proved; affirmed on appeal). In those cases,

as here, on appellate review a trial "'[court's] finding is

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entitled to great weight and will not be disturbed on appeal

unless plainly wrong or without evidence to support it.'"

Pommerenke, 7 Va. App. at 244, 372 S.E.2d at 631 (quoting

Martin, 3 Va. App. at 20, 348 S.E.2d at 16).

Hughes, upon which husband relies, is also distinguishable.

There, the trial court found Mrs. Hughes guilty of adultery

based on her cohabitation with alleged paramour, Kopeski.

Hughes, 33 Va. App. at 145, 531 S.E.2d at 647. Mrs. Hughes

testified that she and her children initially lived with

relatives after she left the marital residence due to husband's

physical abuse. Id. at 144, 531 S.E.2d at 646. Due to space

limitations, she and the children left the relatives' home and

moved into a shelter. Id. Five months later, she and the

children "moved into Kopeski's residence . . . because she had

'nowhere else to live.'" Id. at 144-45, 531 S.E.2d at 646.

Both Mrs. Hughes and Kopeski testified in depositions "that they

maintain[ed] separate bedrooms" and "[were] not having sexual

intercourse." Id. at 145, 531 S.E.2d at 646. In reversing the

trial court's finding of adultery, we distinguished "[t]hose

cases [which] involved covert meetings" between a spouse and a

suspected paramour for which "no reasonable explanation for the

spouse's conduct" existed. Id. at 150, 531 S.E.2d at 649. We

also recognized situations where there is evidence "'that the

relationship or living arrangement between the [spouse] and the

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[alleged paramour] was for economic benefit or personal

convenience or was other than amorous.'" Id. at 152, 531 S.E.2d

at 650 (quoting Gamer, 16 Va. App. at 340, 429 S.E.2d at 622).

Hughes involved a situation very different from this case.

Here, husband acted covertly and provided no plausible

explanation for his clandestine meetings with Glass.

Wife proved by clear and convincing evidence that husband

committed adultery. In January 2000, two months before husband

first left the marital home, wife overheard husband tell someone

over the telephone how much he missed and loved the unidentified

person on the other end. In October 2000, after returning to

the marital home from a previous separation, husband admitted to

wife he had an "infatuation" with Glass.

Glass admitted socializing with husband before he and wife

separated, and she provided no explanation for the after-work

liaisons documented by Easterwood.

Surveillance revealed a series of meetings between husband

and Glass taking place after work in March 2001, at which

husband and Glass were embracing and kissing in public. On two

occasions husband and Glass spent several hours inside 124 Norge

Lane. On March 16, 2001, after spending three and one-half

hours inside the Norge Lane residence, husband and Glass went to

a late movie, then to the house on Cedar Springs Drive, where

husband remained until 4:30 a.m. On March 30, husband and Glass

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spent over four hours at the Norge Lane home, after which they

went to the Cedar Springs Drive home, where husband remained

with Glass for three and one-half hours, leaving at 4:20 a.m.

Husband denied recalling the March 2001 visits. He

provided no explanation for his presence with Glass until the

late hours of the night. 2 Because the record supports the trial

court's determination that wife established her claim of

adultery, we affirm that holding.

RELIANCE ON ADULTERY

Husband contends the trial court erred in relying upon its

finding of adultery in determining equitable distribution. This

argument was dependent on a determination by us that wife failed

to prove adultery by clear and convincing evidence. Because we

find sufficient evidence supported the trial court's finding of

adultery, see supra, we also hold that the trial court did not

err in considering adultery in regard to equitable distribution.

See Code § 20-107.3(E)(5) (the trial court may consider

circumstances and factors which contributed to the dissolution

2
Although husband invoked the Fifth Amendment when asked
during deposition testimony whether he and Glass engaged in
intercourse, we make no negative inference based on his exercise
of the privilege. See Code § 8.01-223.1; see also Romero, 27
Va. App. at 93, 497 S.E.2d at 518 (fact that wife exercised her
Fifth Amendment rights could not be used against her by
commissioner). In doing so, however, husband failed to provide
a reasonable explanation for his conduct, a matter about which
we do take cognizance.

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of the marriage, specifically including any ground for divorce,

in fashioning an award).

NEGATIVE, NONMONETARY CONTRIBUTIONS

Husband asserts the trial court "err[ed] in finding that

his 'actions outside the marriage constituted serious negative,

non-monetary contributions,' and in relying upon this finding as

an equitable distribution factor justifying an unequal

distribution of the marital share." We disagree.

Resolution of this issue is controlled by Code

§ 20-107.3(E) and our holdings in Smith v. Smith, 18 Va. App.

427, 431, 444 S.E.2d 269, 273 (1994), and O'Loughlin v.

O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995).

Code § 20-107.3(E) provides, inter alia, that the division

of marital property shall be determined by the court after

considering nine specified factors plus "[s]uch other factors as

the court deems necessary or appropriate to consider in order to

arrive at a fair and equitable monetary award." Code

§ 20-107.3(E)(10). Subsection (E)(1) allows the trial court to

consider "[t]he contributions, monetary and nonmonetary, of each

party to the well-being of the family," and subsection (E)(5)

allows consideration of "[t]he circumstances and factors which

contributed to the dissolution of the marriage, specifically

including any ground for divorce."

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 In Smith, we affirmed the trial court's determination that

husband did not dissipate assets. In approving an alternative

way to address the use of marital funds to pursue a paramour, we

explained that, in addition to considering the effect of fault

on the value of the marital estate pursuant to subsection

(E)(5), a trial "court may also consider the negative impact of

the affair on the well-being of the family [pursuant to] Code

§ 20-107.3(E)(1), and the mental condition of the parties

[pursuant to] Code § 20-107.3(E)(4)." Smith, 18 Va. App. at

431, 444 S.E.2d at 273.

In O'Loughlin, Mr. O'Loughlin argued that the "trial

court's equitable distribution award was based entirely and

wrongfully upon consideration of his negative nonmonetary

contributions to the well-being of the family, absent economic

fault on his part." O'Loughlin, 20 Va. App. at 524, 458 S.E.2d

at 324. In upholding the trial court's ruling, we explained,

"as long as the trial court considers all the factors, it is at

the court's discretion to determine what weight to give each

factor when making the equitable distribution award." Id. at

526, 458 S.E.2d at 325 (holding that trial court is not required

to "quantify the weight given to each" factor or to weigh each

factor equally). "Not only did [Mr. O'Loughlin] make no

positive nonmonetary contributions, his unfaithfulness hindered

the wife's efforts to contribute to the partnership in a

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nonmonetary way." Id. at 527, 458 S.E.2d at 326 (explaining

that if evidence of misconduct is relevant under any factor

other than subparagraph (5), "it may in the judge's discretion

be considered"). Moreover, "[j]ust as marital fault could be

shown to have an economic impact on a marriage, i.e., waste or

dissipation of assets, it can also be shown to have detracted

from the marital partnership in other ways." Id. at 528, 458

S.E.2d at 326.

Part of husband's argument on this issue is that "the

evidence in this case failed to establish marital fault on his

part that . . . affected the marital estate or well being of the

family, within the meaning of O'Loughlin." He also argued that

"the trial court failed to identify or explain how Husband's

nonmonetary 'actions outside the marriage' resulted in an

adverse economic impact on the well-being of the family."

Consideration of nonmonetary contributions to the well

being of the family under Code § 20-107.3(E)(1) requires no

showing of an adverse economic impact. In that context, the

"well-being" of the family relates to the effect on the family's

emotional welfare and condition. 3 During the ore tenus hearing,

3
In Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988), we
said:

[C]ircumstances that affect the
partnership's economic condition are factors
that must be considered for purposes of

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 . . . equitable distribution. . . .
Circumstances that lead to the dissolution
of the marriage but have no effect upon
marital property, its value, or otherwise
are not relevant to determining a monetary
award, need not be considered.

Id. at 5-6, 371 S.E.2d at 836. In O'Loughlin we explained
Aster, saying:

The rule established in Aster, that
circumstances leading to the dissolution of
the marriage but having no effect on the
marital property or its value are not
relevant to determining the monetary award,
was meant to require proof of some
relationship between the fault and the
marital estate, to require objectivity to
the trial court's decision making on
equitable distribution, and was focused on a
couple's monetary contributions. Our
purpose was to eliminate arbitrary monetary
awards that punished a spouse for his or her
fault without showing such fault had an
economic impact on the marriage. However,
our ruling in Aster did not establish that
the negative impact of marital fault or
other behavior could not be considered in
light of the other factors, under Code
§ 20-107.3(E). Just as marital fault could
be shown to have an economic impact on a
marriage, i.e., waste or dissipation of
assets, it can also be shown to have
detracted from the marital partnership in
other ways. Thus, as in this case, the
trial court found not only that appellant
made no nonmonetary contributions to the
well-being of the family, but that his
long-term infidelity and abusive behavior
over the course of the marriage actually had
a negative impact on the marital
partnership.

O'Loughlin, 20 Va. App. at 528, 458 S.E.2d at 326.

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wife testified that, during "the last five years," husband "was

never home." "[O]n weeknights he never came home before

10:30 [p.m.]" The trial court admitted without objection wife's

Exhibit 14, entitled "Non-Monetary Contributions." In it, wife

listed the respective percentage of time she and husband spent

doing family-related tasks and duties. She indicated she was

responsible for between 90% and 100% of every activity except

for "Vacation/Move Planner," for which she and husband each

contributed 50% of the time required. Some of the other

activities for which wife claimed she expended most of the

effort included buying and preparing food, cleaning, gardening,

doing yard work, caring for the pet, bookkeeping and budgeting,

gift giving, child care and overseeing their son's health,

education and welfare.

The record supports the trial court's finding that

husband's actions constituted "negative non-monetary

contributions," and its consideration of that factor in

distributing the marital property. The testimony of wife and

Easterbrook proved a course of conduct by husband of meeting

with Glass after work and staying out late. Such actions

prejudiced the well-being of the family and dashed any hope that

the parties' October, 2000 reconciliation would succeed. During

the last five years of the marriage, nearly one-fourth of the

time the parties were married, husband came home late and failed

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to help with family responsibilities. His late-night activities

foreclosed contact with his school-age son and required wife to

assume most family responsibilities and duties. Wife testified

that since the separation and divorce proceedings, the parties'

minor son "has had a lot of emotional problems" and is currently

undergoing counseling.

Husband objects to the trial court's characterization of

his negative nonmonetary contributions as "serious." It lies

within the trial "court's discretion to determine what weight to

give each factor when making the equitable distribution award."

O'Loughlin, 20 Va. App. at 526, 458 S.E.2d at 325. Evidence

supported the trial court's recognition and consideration of

husband's negative nonmonetary contributions, and we find no

abuse of discretion in its labeling them serious.

CLASSIFICATION OF PROPERTY AS SEPARATE

Husband contends the trial court erred in classifying

certain items of personal property as wife's separate property.

We agree.

Separate property is: (i) all property,
real and personal, acquired by either party
before the marriage; (ii) all property
acquired during the marriage by bequest,
devise, descent, survivorship or gift from a
source other than the other party; (iii) all
property acquired during the marriage in
exchange for or from the proceeds of sale of
separate property, provided that such
property acquired during the marriage is
maintained as separate property; and (iv)

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 that part of any property classified as
separate pursuant to subdivision A 3.

Code § 20-107.3(A)(1).

Subdivision (A)(3) includes provisions allowing the court

to find that separate property exists, even when marital and

separate property are "commingled" in some manner, "to the

extent the contributed property is retraceable by a

preponderance of the evidence and was not a gift." See, e.g.,

Code § 20-107.3(A)(3)(d),(e) and (f).

Code § 20-107.3(A)(3)(d) provides, in pertinent part, that

where separate property is contributed to marital property, "to

the extent that the [separate] property is retraceable by a

preponderance of the evidence and was not a gift, the [separate]

property shall retain its original classification." The

converse of that provision is that when retraceable separate

property is used to purchase a gift, it no longer retains its

classification as separate property.

As the "party claiming entitlement to rights and equities

in . . . property by virtue of an interspousal gift," husband

bore the burden of "prov[ing] the donative intent of [wife] and

the nature and extent of [her] intention." Lightburn v.

Lightburn, 22 Va. App. 612, 616-17, 472 S.E.2d 281, 283 (1996).

See also Theismann v. Theismann, 22 Va. App. 557, 565-66, 471

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S.E.2d 809, 813, aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996)

(en banc).

Wife testified at the ore tenus hearing that, in 1995, she

inherited $104,000 from the estates of her grandmother and

mother. She deposited that money into the parties' joint

savings account, then transferred it to their joint checking

account. In December 1995, she purchased a brass bed. Later,

using the last of her inheritance money, she purchased four

hundred shares of Pershing Monument Medical Science stock (the

Pershing stock).

Wife testified that using her inheritance money to buy

things "was something [nice she] wanted to do" for her family.

She considered the items to be "gifts for us." On wife's

exhibit entitled "Property Inventory," she even listed the

Pershing stock as marital.

However, in the final decree, the trial court classified

the brass bed and the Pershing stock as wife's separate

property.

The record proves that wife intended the brass bed and

Pershing stock to be gifts for the family. Thus, the trial

court erred in classifying them as separate property. We

reverse and remand on this issue for the trial court to classify

these items properly and to recalculate its equitable

distribution award.

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 UNEQUAL DIVISION OF PROPERTY

Husband contends the trial court "erred in allocating a

substantially disparate share of the marital estate to wife."

"Fashioning an equitable distribution award lies within the

sound discretion of the trial judge[,] and that award will not

be set aside unless it is plainly wrong or without evidence to

support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732,

396 S.E.2d 675, 678 (1990). "Virginia law does not establish a

presumption of equal distribution of marital assets." Matthews

v. Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998).

Because the trial court considered the factors set out in Code

§ 20-107.3(E), and the evidence supports its conclusions, we

will not disturb its equitable distribution award merely because

it is unequal. Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d

504, 508 (1990).

For the reasons stated, we affirm in part, reverse in part

and remand.

Affirmed in part,
reversed in part,
and remanded.

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