Bchara v. Bchara

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia

ADNAN BCHARA
OPINION BY
v. Record No. 1529-01-4 JUDGE ROBERT P. FRANK
MAY 21, 2002
MARJA KAARINA BCHARA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

Jeffrey A. Vogelman (Thomas, Ballenger,
Vogelman & Turner, on briefs), for appellant.

William B. Reichhardt (Colleen C. Sweeney, on
brief), for appellee.

Adnan Bchara (husband) appeals from a final decree of

divorce from Marja Bchara (wife). The circuit court granted a

divorce based on the parties living separate and apart for one

year and found no marital property existed. Husband asks this

Court to reverse the trial court's grant of divorce and the

accompanying property determinations, arguing (1) he and wife

were not separated as of January 2000, (2) the trial court

improperly found the home and the personal property were the

separate property of wife, (3) the trial court did not properly

consider the factors in Code § 20-107.3(E), and (4) the final

decree did not address marital debt. For the reasons stated, we

affirm in part and reverse in part.
 BACKGROUND

Husband and wife were married on March 31, 1991. Prior to

the marriage, wife had inherited approximately $950,000 when her

father, who lived in Finland, died. She continued to keep the

balance of that inheritance, as well as the additional

inheritance received on her mother's death in 1997, in a bank

account in Finland. Husband had no access to this account.

Throughout the marriage, wife transferred funds from the

Finland account into a joint account in the United States, which

both husband and wife used. Husband alleged he also contributed

money to the joint account, 1 but presented only his own testimony

as proof of these deposits.

Prior to their marriage, husband and wife lived together in

a home purchased by wife with money from her inheritance. She

titled the home in both their names. Eventually, this original

home was sold, and the majority of the money from that sale was

deposited in wife's Finland account.

The parties purchased land to build a new home in Fairfax

County in 1993. Wife deposited money from her Finland account

into their joint checking account to pay for the land. She also

made numerous large deposits into the joint account to cover the

1
According to his testimony, husband had owned a flower
shop, which he sold prior to the marriage for $20,000. He
claimed a substantial portion of that money was deposited into
the joint account. Husband also worked briefly during the
marriage.

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construction expenses for the new home. Generally, husband

wrote the checks on the joint checking account that paid the

contractor and suppliers.

The trial court held all of the money in the joint account

came from wife and her inheritance in Finland. The evidence on

this issue consisted of bank records for the joint account that

listed deposits as either transfers from the Finland account or

small deposits that failed to specify a source. None of the

records suggested a deposit of salary or other non-inheritance

money. Husband presented no check stubs, cancelled checks, or

bank records to support his testimony that he made deposits into

the joint account from his salary, the sale of his flower shop,

income from investments, or any other source. The trial court

concluded wife's inheritance was the sole source of funds used

to pay for building the new home and for the personal property

in that home, including all the cars and furniture.

Husband testified that he worked full time at the new

home's construction site, both supervising and engaging in

physical labor. He also testified that he traveled abroad to

purchase items for the new home, which he alleged saved hundreds

of thousands of dollars in the cost of construction materials.

He designed several elements in the home, including a marble

table and medallions in the floors. He claimed his negotiation

efforts reduced the purchase price of the land and the labor

costs of building.

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 The contract manager for the building of the home testified

that husband "did a lot of hard work" at the construction site.

However, the manager often found husband's work was incomplete

or inadequate. For example, husband installed all the sky

lights; however, they leaked and damaged the drywall in three

rooms. Husband also decided to cut down a tree on the property,

which fell through the bedroom roof. Husband built several

retaining walls, but did not complete them.

Husband produced no evidence as to the monetary value of

his labors, except his testimony that he saved $29,000 by

building a retaining wall himself. Husband presented no

evidence that this wall was necessary or that it substantially

increased the value of the home.

An investment account, titled solely in husband's name and

funded by wife's inheritance, was opened with Dean Witter

sometime in 1994. Additional money passed into this account

through the joint checking account. Husband was in charge of

this fund. He transferred the money in the Dean Witter account

to Ameritrade sometime in 1998. Wife claimed no knowledge of

the current balance of the account. Husband claimed wife knew

the investments were performing well at one point.

Husband testified that the investments began to perform

poorly around March 2000. As a significant portion of husband's

investments were purchased "on margin," he had to sell his stock

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to cover his "margin calls." 2 However, he could not raise enough

money solely by liquidating his stock, so husband covered the

rest of the alleged $45,000 debt to Ameritrade with a credit

card issued solely in his name. No documents were presented to

the trial court verifying the status of the Ameritrade account

or the credit card debt.

The couple had one son, born in March 1995. After the

child's birth, husband claimed he and wife stopped having sexual

intercourse. Husband admitted having affairs with numerous

women both before and after the birth, claiming his wife knew

and agreed he was free to pursue such relationships.

On January 22, 2000, wife and a friend discovered a

videotape of husband having sex with another woman. Wife

testified she put all of husband's belongings in the guest

bedroom on that day. Husband usually slept in that room prior

to the moving of his belongings. Wife's friend testified she

visited the home about once a week after January 2000 and saw

husband and wife living separately and apart.

The parties continued to live in the same home until April

2001 when the trial court awarded the home to wife and ordered

husband to leave. There is no allegation of sexual intercourse

between them after January 2000.

2
Husband did not describe the investments he made. No
evidence explained the types of stock purchases he made using
margins or the types of margins he used. No documentation of
the Ameritrade account was introduced into the record.

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 The commissioner in this case was asked to decide whether a

fault basis for divorce existed. He found husband committed

adultery that led to the dissolution of the marriage, 3 but

recrimination by wife prevented granting the divorce on that

ground. The commissioner noted "neither party has sought a

divorce on the ground of voluntary separation at the present

time," but recommended the trial court hear testimony on

separation and grant a divorce on that ground if supported by

additional evidence.

Wife testified in deposition that she stopped depositing

money into their joint account after discovering the videotape.

She also stopped going to church with husband and stopped

attending his family's functions after the discovery.

She admitted buying groceries, doing laundry, and cooking

food that husband ate. She also accepted flowers from husband,

given to her in their son's name on Mother's Day of 2000. Wife

testified she intended to remain permanently apart from husband

after January 22, 2000. She did ask him to leave the house

several times, but he refused.

The trial court granted a divorce a vinculo matrimonii,

finding the parties had lived separate and apart since January

3
The commissioner found "the circumstances and factors
which contributed to the dissolution of the marriage" were
"[t]he continuous and substantial lack of fidelity on the part
of Husband and his crass understanding of the marital vows" and
"[t]he lack of gainful employment on the part of the Husband in
the later half of the marriage."

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2000, a period of more than one year. The court also found the

money used to build the new house was traced from wife's Finland

account, with no contribution from husband; therefore, the house

was deemed wife's separate property. The court found no

evidence of gift.

The court also found no evidence of the value of husband's

non-monetary contributions to the construction of the new home.

The trial court concluded husband did not substantially add to

the value of the home and, therefore, he had no interest in the

property.

The trial court held all the personal property was

purchased by wife with her inheritance and classified it all as

wife's separate property. The court did not address the issue

of debt.

ARGUMENT

The issues on appeal all involve questions of sufficiency

of the evidence to support the final decree. As the trial court

heard evidence ore tenus, these factual findings will not be

disturbed unless plainly wrong or without evidential support.

See Williams v. Williams, 14 Va. App. 217, 219, 415 S.E.2d 252,

253 (1992). We review the evidence and the inferences derived

from that evidence in the light most favorable to wife, the

party prevailing below. See id. at 220, 415 S.E.2d at 253.

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 1. Separate and Apart

Husband argues the parties did not separate in January

2000, the corroborating evidence of separation was insufficient,

and the trial court should not have granted a divorce on this

ground. Examining the evidence in the light most favorable to

wife, we find the trial court's determination is supported by

the record. See id. at 219-20, 415 S.E.2d at 253.

Under Code § 20-91(A)(9)(a), a divorce may be granted "[o]n

the application of either party if and when the husband and wife

have lived separate and apart without any cohabitation and

without interruption for one year." This statute requires

"proof of an intention on the part of at least one of the

parties to discontinue permanently the marital cohabitation,

followed by physical separation for the statutory period."

Hooker v. Hooker, 215 Va. 415, 417, 211 S.E.2d 34, 36 (1975).

Determination of whether and when the parties have "lived

separate and apart without cohabitation" is a fact-based

inquiry, requiring examination of all the circumstances before

the court. Cf. Rickman v. Commonwealth, 33 Va. App. 550,

557-58, 535 S.E.2d 187, 191 (2000) (discussing the factors a

court should consider to determine whether two people are

cohabiting for purposes of Code § 18.2-57.2).

Husband argues the parties did not live separate and apart

until May 2000, when wife served husband with divorce papers.

He argues the parties lived as they normally did until that

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time. As the divorce order found the parties had separated in

January 2000, husband claims no evidence proved the parties had

lived separate and apart for a year. 4

In January 2000, wife found a videotape showing husband

involved in an adulterous affair. She immediately took all of

husband's possessions out of the master bedroom and put them in

a guest bedroom, where husband usually slept. A friend of wife

was in the house when the tape was discovered. Husband does not

deny that wife found the tape or that she moved all his

belongings into the guest bedroom, although he claims none of

this changed their marital relationship. 5

Wife testified she took several actions to live separate

and apart from husband starting in January 2000. She stopped

attending family functions with husband and his family. She

would not attend church with him. She stopped depositing money

into their joint checking account. However, she continued to

buy groceries, cook, do laundry, and clean house. 6 Wife asked

husband several times to leave the house, but he refused.

4
The decree was entered on May 8, 2001.
5
Husband testified that wife knew about his infidelity and
did not care. The commissioner found wife did not condone
husband's affairs, especially the last one. The parties agree
they had not had sexual intercourse for a long time, perhaps
years.
6
The parties' son also lived in the house.

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 A friend of wife testified she visited the house once a

week and observed the parties living in separate bedrooms. Wife

told this friend that she and husband were no longer "a couple."

Wife testified that she intended to live separate and apart from

husband as of January 2000.

This evidence is sufficient for a trial court to find the

parties were living separate and apart without cohabitation.

The parties no longer engaged in sexual intercourse. Husband

openly continued a sexual relationship with another woman. Wife

stopped attending functions with husband. Continuing to share

food and keep a clean house are not behaviors that, as a matter

of law, require a finding that the parties were living together.

See Chandler v. Chandler, 132 Va. 418, 428-31, 112 S.E. 856,

860-61 (1922) (finding desertion does not require neglect of all

aspects of the marital relationship). Wife intended to

permanently discontinue the marital relationship when she moved

husband into the guest bedroom. See Hooker, 215 Va. at 416-17,

211 S.E.2d at 36. The only attempt husband made to change the

situation involved putting his personal items back into the

master bedroom and throwing wife's possessions into the guest

bedroom.

Husband argues wife did not appropriately corroborate her

allegations that they separated in January 2000. We disagree.

"Every element or essential charge need not be corroborated, nor

must the corroborating evidence, standing alone, prove the

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grounds for divorce, but corroboration must give sufficient

strength to the complainant's testimony to be clearly worthy of

belief." Emrich v. Emrich, 9 Va. App. 288, 296, 387 S.E.2d 274,

278 (1989).

Wife's testimony was corroborated by her friend, who was

present when wife found the videotape and moved husband's

possessions into the guest room. This friend testified she

visited the house once a week and observed the parties living

separate and apart. The videotape of husband's infidelity also

corroborated wife's allegations. This evidence provided

sufficient corroboration.

2. Separate Property

The trial court found wife had traced all the funds used to

build the home and to purchase other personal property to her

inheritance, which was kept in her personal accounts in Finland.

Husband argues this money was deposited into a joint account and

the home was titled in both their names; therefore, he claims

the home became marital property. He also alleges he

contributed funds to the joint account. Additionally, he argues

his personal efforts increased the value of the home, resulting

in substantial appreciation of the property and giving him an

interest in the home. 7

7
The trial court found no evidence the property was a gift,
and husband does not argue any property was gifted to him. See
Barker v. Barker, 27 Va. App. 519, 532 n.2, 500 S.E.2d 240, 246

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 Marital property includes "all property titled in the names

of both parties" and property acquired by either spouse during

the marriage "in the absence of satisfactory evidence that it is

separate property." Code § 20-107.3(A)(2). 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) 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 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), (f).

The home, built during the marriage, was jointly titled

and, therefore, presumed marital property. Hence, the burden

was on wife to establish that the property could be traced to

her separate inheritance. See Rexrode v. Rexrode, 1 Va. App.

385, 392, 339 S.E.2d 544, 548 (1986). To classify all or a

n.2 (1998) (noting the parties failed to raise the issue of
gifting under Code § 20-107.3(A)(3)).

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portion of such property as separate and not marital, "the

circumstances of each case" must allow the court to trace the

spouse's contribution back to separate property. von Raab v.

von Raab, 26 Va. App. 239, 248, 494 S.E.2d 156, 160 (1997).

Here, the trial court found wife presented sufficient

evidence to trace the purchase of the home to her separate

funds. We will not overturn that factual finding unless plainly

wrong or without evidence to support it. See Gilman v. Gilman,

32 Va. App. 104, 115, 526 S.E.2d 763, 768 (2000) (noting the

standard of review for equitable distribution issues in a

divorce case).

The parties agree wife had separate property through an

inheritance in Finland. 8 The parties also agree large portions of

this inheritance were deposited into a joint account for the

purpose of building the home. Depositing separate funds into a

joint account does not preclude tracing. See Rahbaran v.

Rahbaran, 26 Va. App. 195, 207-10, 494 S.E.2d 135, 140-42

(1997).

Husband, who had no job during the building of the home,

claims he deposited money into the joint account at several

points. He testified he worked for the State Department in 1992

for nine months and for a real estate agent sometime between

8
Appellant does not argue the Finland account ever became
marital property because the proceeds from the sale of the first
home were deposited into the separate account.

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1993 and 1995. He alleges these paychecks were deposited into

the joint checking account. He also claims, when he sold the

flower shop he owned prior to the marriage, he deposited the

proceeds from that sale into the joint account. He further

alleges he deposited $38,000 from his trading account into the

joint checking account sometime in 1998 or 1999.

However, husband provided no documentation of those

deposits. The records introduced into evidence show no deposits

into the joint account from husband, and wife testified he made

no monetary contribution to the home. The trial court was free

to find wife's testimony and documents credible and to disregard

husband's testimony. See Brown v. Brown, 30 Va. App. 532, 539,

518 S.E.2d 336, 339 (1999).

Husband also claims, even if he made no monetary

contributions to the building of the home, he worked on its

construction. He argues these efforts transmuted the separate

property into marital property as his contribution was

significant and substantially increased the value of the home.

See Code § 20-107.3(A)(1), (3).

The non-owning spouse 9 has the burden of proving his or her

personal efforts were significant and resulted in substantial

9
We use the term, "non-owning spouse" in the context of our
finding that wife has met her burden of tracing her separate
funds to the home. Therefore, the home, while jointly titled,
is considered the separate property of wife under Code
§ 20-107.3(A).

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appreciation of separate property. Gilman, 32 Va. App. at 120,

526 S.E.2d at 771; Martin v. Martin, 27 Va. App. 745, 751, 501

S.E.2d 450, 453 (1998). "The increase in value of separate

property becomes marital if the expenditure of marital funds or

a married party's personal efforts generated the increase in

value. The significant factor, however, is not the amount of

effort or funds expended, but rather the fact that value was

generated or added by the expenditure or significant personal

effort." Gilman, 32 Va. App. at 120, 526 S.E.2d at 771.

Helping a spouse select the "best deal" generally is not

"significant personal effort." See id. at 121, 526 S.E.2d at

771; Martin, 27 Va. App. at 754-55, 501 S.E.2d at 454-55. The

record should include evidence of the monetary value of the

non-owning spouse's personal efforts as well as evidence of a

substantial increase in the value of the property resulting from

those efforts. See Rowe v. Rowe, 24 Va. App. 123, 136, 480

S.E.2d 760, 766 (1997); Hart v. Hart, 27 Va. App. 46, 66, 497

S.E.2d 496, 505 (1998) ("It is the value that improvements add

to the property, not their cost, that is the proper

consideration . . . .").

Husband did not meet his burden of proof. He did prove he

spent a significant amount of time at the construction site and

physically contributed to the building of the home. However,

the only evidence that suggested a value for his labor was

husband's testimony of a contractor's estimate of $29,000 to

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build a retaining wall. As the overall value of the house was

$950,000, we agree with the trial court that this contribution

was not "significant" in the context of Code § 20-107.3(A), even

if this valuation of husband's labor was appropriate. In

addition, no evidence was presented to prove husband's efforts

resulted in substantial appreciation in the property. See id.

As the trial court's opinion letter explained, "there was an

almost complete lack of proof on the value of Husband's

contribution [from his work at the site]."

In fact, the opinion letter highlighted testimony that

"Husband's work was faulty and had to be redone by others."

Based on this evidence, the trial court could have determined

that husband's efforts did not increase the value of the home,

given the testimony characterizing some of his work as

inadequate and counterproductive. See Brown, 30 Va. App. at

539, 518 S.E.2d at 339 (noting the trial court determines the

weight and credibility of witnesses).

Husband also argues his negotiations and dealings with

suppliers resulted in substantial savings during the

construction of the home. He claims his efforts reduced the

price of the land for the home from $100,000 to $88,000. He

also claims, by purchasing marble for the home in Syria, he

saved $375,000 in materials costs. However, the trial court was

not required to credit this testimony by husband. See id.

Additionally, even if husband's negotiations saved money, those

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efforts are not the type of "personal efforts" required to

transmute a portion of separate property into joint property

under Code § 20-107.3(A)(3). See Gilman, 32 Va. App. at 120-21,

526 S.E.2d at 771 (finding efforts to purchase property at a

reduced price did not constitute significant personal effort).

This analysis also applies to the trial court's

characterization of the personal property. The court found wife

proved her separate inheritance was used to purchase all of the

personal property. At this point, the burden shifted to husband

to prove his personal efforts were significant and resulted in

substantial appreciation of this separate property. He did not

meet this burden.

The trial court did not evaluate each item of personal

property on the schedules submitted by the parties. For most of

these items, no evidence was introduced, except for the

testimony and documents regarding tracing. Testimony and

receipts about several pieces of furniture were introduced.

Husband admitted wife paid for the furniture. However, he

contends his family connections allowed them to buy the

furniture at a discount. This evidence does not prove husband

made a significant contribution that substantially increased the

value of the property. See Martin, 27 Va. App. at 754-55, 501

S.E.2d at 454-55. The value of the furniture remained the same,

only the price decreased.

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 A review of the record does indicate wife conceded a 1995

Izuzu Trooper belonged to husband. The trial court did not

address this concession in determining the status of the

property. On remand, husband should be awarded this vehicle.

3. Code § 20-107.3(E)

Code § 20-107.3(E) requires a trial court consider a list

of enumerated factors before determining "the amount of any

division or transfer of jointly owned marital property, and the

amount of any monetary award, the apportionment of marital

debts, and the method of payment." Husband argues the trial

court did not consider all these factors. However, the trial

court found no marital property existed to divide between the

parties. Because all the property in this case was separate

property, the trial court did not need to apply the provisions

of Code § 20-107.3(E). 10

4. Debt

Neither the final decree nor the opinion letter mentions

husband's request that the trial court assess marital debt. We

agree with husband that the trial court should have addressed

this issue.

10
The trial court will need to apply these factors if the
court determines on remand that marital debt exists.

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 Husband testified he actively invested in the stock market

through a personal account opened in his name at Ameritrade. 11

Wife provided $45,000 to open the initial account. At one

point, the account grew to over $400,000.

In March 2000, the stock market declined, and husband had

significant margin calls to cover. He testified he liquidated

his account as much as he could, but still had to charge

approximately $45,000 to a credit card to cover the margin debt.

Husband did not present any documentation from the investment

account or the credit card company. Wife admitted husband had

an account that performed well at one point, but she did not

know what happened to the account.

The trial court did not discuss this debt or make a ruling

regarding the existence of the debt. On remand, the trial court

must determine if the debt exists and, if it does, whether it is

marital or separate debt. If it is marital debt, then the court

must apply Code § 20-107.3(E) to determine the distribution of

the debt. See Holden v. Holden, 35 Va. App. 315, 325, 544

S.E.2d 884, 888 (2001) (noting that one party should not suffer

a loss because a marital asset decreases in value before

division of the property occurs); Barker, 27 Va. App. at 542-43,

500 S.E.2d at 251 (noting that the court should examine marital

debt in determining an equitable distribution award).

11
Initially, husband opened an account at Dean Witter, but
later moved it to Ameritrade.

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 Attorney's Fees

In her brief, wife asks for an award of attorney's fees and

costs associated with this appeal. Given wife substantially

prevailed and husband's arguments were largely without merit, 12

we find it appropriate to award wife attorney's fees and costs.

See Marks v. Marks, 36 Va. App. 216, 218, 548 S.E.2d 919, 920

(2001). The trial court on remand must determine the

appropriate amount to award wife. In making this determination,

the trial court should consider, while husband prevailed on two

minor issues, the principal arguments he made on appeal were

without merit.

Conclusion

We affirm the trial court's grant of divorce on the ground

of living separate and apart for a year. We also affirm the

finding that the home and the personal items are the separate

property of wife. However, we remand for the trial court to

award the Izuzu Trooper to husband. We also remand the issue of

the credit card debt for the trial court (1) to determine

whether any credit card debt exists, (2) if such debt exists, to

classify that debt as marital or separate, and (3) to apportion

any marital debt pursuant to the Code. Finally, we remand for

the trial court to determine and award reasonable costs and

12
Husband is entitled to one item of personal property and
correctly argued that the trial court made no ruling on the
credit card debt.

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attorney's fees associated with this appeal to wife, consistent

with this opinion.

Affirmed in part;
remanded in part.

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