concurring in part and dissenting in part.
Insofar as the opinion of the majority holds that the trial court erred concerning the retirement benefits and whether wife was guilty of desertion, I concur with its holding. I also agree that the trial court did not err in ordering the jointly owned realty sold rather than selecting one party to be the purchaser from the other. I further agree that in light of this opinion the trial court should be required to reevaluate spousal and child support, attorney’s fees, and the $41,000 monetary award.
I do not agree that the judgment of the trial court was erroner ous in determining that wife’s interest in the shopping center was separate property. Wife’s father testified that the purchase option method was used to transfer the property in order to gain a tax advantage in completing a gift. He forgave wife’s note and filed a gift tax return on the transaction. Ascribing a certain name to a transaction does not itself define the character of the transaction as a matter of law. Hanging a sign on a horse which says, “this is a cow,” will not convert the horse to a cow. It will still be a horse. The commissioner who heard and saw the witnesses testify, and who evaluated their testimony, concluded that the transaction, although initially labeled a purchase, was in fact a gift. The trial judge reviewed the record and approved the commissioner’s finding. On appeal, a decree that approves a commissioner’s report will be affirmed unless plainly wrong. Sprott v. Sprott, 233 Va. 238, 240, 355 S.E.2d 881, 882 (1987). If believed, as he obviously was by the commissioner and the trial court, wife’s father devised a multi-step method of making a gift of the 5 percent interest in the shopping center to wife. See Code § 20-107.3(A)(1)(ii). The finding of the trial court that this was separate property is supported by credible evidence and I would affirm its judgment on this issue. Code § 8.01-680.
Further, I do not agree with the majority’s conclusion concerning the valuation date of husband’s stock. I am not aware of any *413statute, and none has been called to our attention, which evinces a legislative intent that valuation of the marital property should be made on any date other than the date on which the marital property is classified. While I agree that there may be practical reasons for using a different valuation date, the setting of such a date is a matter of legislative concern.5 Simply because a law fails to provide an answer or conclusion desired by this Court we are not authorized to disregard the law as written and construct our own view of how the law might better operate. It is the function of the legislature, not this Court, to articulate public policy and procedure, subject only to the limits of the constitutions. In the absence of valid constitutional objection, this Court must apply the law as written. I would find that under the statute existing when this divorce suit was filed the marital property and its value should be determined as of the date of the filing of the bill of complaint, and to the extent that this finding conflicts with the finding of the majority I respectfully dissent.
See the 1986 Amendment changing the date on which marital property is classified. Code § 20-107.3(A)(2).