Kelln v. Kelln

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Overton ∗
Argued at Norfolk, Virginia

ALBERT L. KELLN
OPINION BY
v. Record No. 0871-98-1 JUDGE ROSEMARIE ANNUNZIATA
JUNE 29, 1999
AMANDA F. B. KELLN

FROM THE CIRCUIT COURT OF MATHEWS COUNTY
Prentis Smiley, Jr., Judge

McClanahan Ingles; Michael L. Wood (Martin,
Ingles & Ingles, on brief), for appellant.

Kenneth R. Yoffy (Cope, Olson & Yoffy, on
brief), for appellee.

Albert Kelln ("husband") challenges the circuit court's

classification of certain assets transferred in trust during the

marriage of Husband and Amanda Kelln ("wife"). Husband contends

the court erred in holding that the assets at issue, which had

been divided into separate shares pursuant to the terms of a

revocable inter vivos trust agreement, constituted separate

property and, accordingly, were not subject to equitable

distribution under Code § 20-107.3. For reasons set forth

below, we agree and reverse.

∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
 Husband and wife married on September 1, 1990. On June 26,

1991, the parties entered jointly into a Revocable Living Trust

Agreement ("the Agreement"). The Agreement was executed at the

same time as the parties' wills and formed a part of their

estate plan. The relevant provisions of the Agreement follow.

The Agreement created two separate and distinct trusts, one

for each spouse. 1 The Agreement designated husband and wife as

both "Grantors" and "Trustees" and stated as its purpose to

"provide for the management of the Grantors' assets during the

Grantors' lifetimes; to provide a preferred alternative to

guardianship proceedings; and to provide a simplified means of

1
Article II provides:

REGARDLESS OF ANYTHING IN THIS TRUST WHICH
MIGHT BE RELIED UPON TO THE CONTRARY, THIS
TRUST IS IN EVERY RESPECT, TWO SEPARATE AND
DISTINCT REVOCABLE LIVING TRUSTS. The Two
Grantors have chosen to maintain their two
separate trusts together in this one trust
document for reasons personal to themselves.
The two trusts held herein shall be viewed
as having separate and distinct existence,
and shall be construed (in the light of this
overriding pronouncement of Grantor's
intent), so as to arrive at that
construction which will result in a
non-revocable credit shelter trust (THE
FAMILY TRUST, as hereinafter defined) not
being included in the share of the surviving
Grantor, while allowing the full marital
deduction with respect to any portion of the
trust of the first Grantor to die which
passes to the Survivor's Trust (as
hereinafter defined). The provisions in
this document shall apply to the
administration of both Grantors' trust
shares.

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accomplishing both lifetime and death transfers of the

Grantor[s]' assets."

The trust property was defined in Article II of the

Agreement. Under its terms, assets transferred by the Grantors

into the trust were to be designated Schedule A, B, or C assets.

All property not specifically designated as a Schedule B or C

asset was deemed to be a Schedule A asset. According to the

Agreement, "regardless of how [trust] property was acquired, or

how titled . . . , [the property transferred pursuant to the

Trust Agreement] shall for all purposes of [the] Trust be

divided into two separate shares, one for each Grantor . . . ."

Husband's share consisted of one-half of Schedule A assets and

all of Schedule B assets. Wife's share consisted of one-half of

Schedule A assets and all of Schedule C assets. In describing

Schedule A assets, the Agreement specifies: "To the extent that

either [spouse's] share [of Schedule A assets] exceeds his or

her contribution to the Trust, the amount of the difference or

excess contribution shall constitute a completed gift from the

other [spouse]."

Each party retained the right to revoke the trust during

their joint lifetime, at which time the Trustee was required to

"deliver to the Grantors, or as may be directed in the

instrument of revocation, their respective shares of the trust

property." The parties also had the right to receive during

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their lifetimes all of the net income and principal of their

respective share.

Upon the death of one of the parties, Article III of the

Agreement required the surviving Trustee to make a number of

dispositions of the decedent's share in order to take advantage

of certain tax provisions of the Internal Revenue Code. Among

the stipulated dispositions was the transfer of that portion of

the decedent's share which was "necessary to increase the estate

of the [surviving] spouse under federal law to an amount which

is equal to the total remaining unused unified credit" under 26

U.S.C. § 2010 to the share of the surviving spouse ("the

Survivor's Trust"). Assets allocated to the Survivor’s Trust

were further specifically limited to those assets "which qualify

for the marital deduction" under 26 U.S.C. § 2056. In the event

the surviving spouse disclaimed the transferred property and to

the extent that property remained in the decedent's share, the

Agreement required that property be transferred into a credit

shelter trust in "any portion necessary to make the [trust]

equal to the largest amount" that could "pass free of federal

estate tax . . . by reason of the [decedent's] available unified

credit."

In contemplation of the tax saving purposes of the

Agreement, the following anticipated estate tax goals are set

forth in Article III:

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 For preservation of the marital tax
deduction, [the Survivor's Trust] may be
paid or transferred outright to the
[surviving] spouse if, in Trustee's
judgment, such payment would be necessary to
prevent the loss of the marital
deduction. . . .
The Grantors, by funding the share of
the [surviving] spouse [in this manner], are
fully aware that the share passing to the
[surviving] spouse will be taxed in the
estate of the [surviving] spouse if
thereafter owned at death. The Grantors
prefer to allow [the surviving] spouse the
fullest share that will not knowingly incur
estate taxation upon the death of the
surviving [spouse], as determined at the
time of the death of the Grantor, in order
to minimize the likelihood of funding a
credit shelter trust and thereby incurring
the added expenses of such trust, as well as
having to dealing [sic] with the
inflexibility thereof . . . .

Husband revoked the trust before the parties separated on

January 19, 1997. On January 28, 1997, husband filed a bill of

complaint for divorce. On February 2, 1998, the trial court

held a hearing to determine the classification of the trust

property, all of which was transferred into the trust as

Schedule A assets. At the hearing, the parties jointly filed

the Agreement with the court. Husband's counsel conceded the

trust's activation by a transfer of property. No other evidence

was introduced by either party.

The court, looking to the four corners of the Agreement,

found that the Agreement was clear and unequivocal. Further,

the court found that the Agreement created two separate and

equal trusts and that assets transferred to a spouse's share

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pursuant to the Agreement constituted a completed gift from the

other spouse. Accordingly, by order of March 19, 1998, the

court ruled that all Schedule A assets were separate property to

be divided equally among the parties. In doing so, the court

did not reference any particular provision of Code § 20-107.3,

declined to consider the factors set forth in Code § 20-107.3(E)

pertaining to the division of marital property, and referred the

case to a special master to determine the precise assets

encompassed within Schedule A.

Husband contends the court erred in finding that the

transfer of property to the parties' separate trusts pursuant to

the Agreement constituted a completed gift from the donor

spouse, the nature of which transformed the assets into separate

property. Husband cites as particular grounds, the absence of

sufficient proof of donative intent to create separate property.

See Theismann v. Theismann, 22 Va. App. 557, 566, 471 S.E.2d

809, 813, aff'd on reh'g en banc, 23 Va. App. 697, 479 S.E.2d

534 (1996) (stating that one of the elements of a valid gift is

the donor's intent to make a gift). See also Dean v. Dean, 8

Va. App. 143, 146, 379 S.E.2d 742, 744 (1989) (stating that a

person who claims ownership of property by gift must prove the

donative intent of the donor by clear and convincing evidence).

We agree.

The equitable division of property that the parties have

transferred to a revocable inter vivos trust for estate planning

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purposes presents a matter of first impression under Virginia

divorce law, and one which few of our sister states have had an

opportunity to address directly. However, our analysis is not

without well-founded roots in settled law, specifically, the law

governing the classification of property under Code § 20-107.3

and of property acquired by interspousal transfers.

Other than a document attached to the Agreement that

assigned the parties' furniture, furnishings, and personal

effects to the trust, no evidence was presented to establish

that the property transferred under the Agreement was separate

property. Thus, we treat the assets as marital at the time of

the transfer because property acquired during the marriage is

presumed to be marital in the absence of satisfactory evidence

to the contrary. See Code § 20-107.3(A)(2); Hart v. Hart, 27

Va. App. 46, 61, 497 S.E.2d 496, 503 (1998). 2

The query before us, therefore, is whether marital property

can be transformed into separate property under the terms of a

revocable trust agreement executed during a marriage. In

2
We note, however, that whether the property was marital or
separate before it was transferred into the trust, the
resolution of the issue remains the same under the facts of this
case, as the determinative analysis is premised on the issue of
donative intent to create separate property, not the source or
nature of the property. See Theismann v. Theismann, 22 Va. App.
557, 566, 471 S.E.2d 809, 813, aff'd on reh'g en banc, 23 Va.
App. 697, 479 S.E.2d 534 (1996); McDavid v. McDavid, 19 Va. App.
406, 411-12, 451 S.E.2d 713, 717 (1994) (turning on evidence of
donative intent, not the nature of the property that was the
subject of the interspousal gift).

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McDavid v. McDavid, 19 Va. App. 406, 451 S.E.2d 713 (1994), we

determined that "property which is marital may become separate

. . . through 'a valid, express agreement by the parties.'" Id.

at 411, 451 S.E.2d at 717 (quoting Wagner v. Wagner, 4 Va. App.

397, 404, 358 S.E.2d 407, 410 (1987)). In that case, we

affirmed the trial court's ruling that real property acquired

during the marriage was properly classified as husband's

separate property based on the terms of a deed of gift executed

by wife, transferring her interest in the property to husband.

See id. at 408, 411, 451 S.E.2d at 715, 717. The McDavid deed

provided that the property was to be held by husband "in his own

right as his separate and equitable estate as if he were an

unmarried man . . . free from the control and marital rights of

this present . . . spouse" and "with full and complete power

. . . [to] dispose of the . . . property . . . during his

lifetime . . . [or by devise]." Id. at 411, 451 S.E.2d at 717.

We found that under the provisions of Code § 20-155, which

accords post-marital contracts the same dignity under law as

pre-marital contracts, 3 the terms of the McDavid deed rebutted

3
Code § 20-155 provides:

Married persons may enter into agreements
with each other for the purpose of settling
the rights and obligations of either or both
of them, to the same extent, with the same
effect, and subject to the same conditions,
as provided in §§ 20-147 through 20-154 for
agreements between prospective spouses,
except that such marital agreements shall

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the presumption that "property acquired during marriage with

marital funds is marital property." Id. at 411, 451 S.E.2d at

717.

Prior to our decision in McDavid, we dealt with an earlier

line of cases which held that property transferred by

interspousal gift was marital property because the property was

acquired during the marriage and the evidence was insufficient

to support the classification of the transferred property as

separate under Code § 20-107.3. See Garland v. Garland, 12 Va.

App. 192, 196, 403 S.E.2d 4, 7 (1991). In Garland, husband

conveyed his entire interest in the marital residence to wife in

anticipation of a pending divorce action. See id. at 193, 403

S.E.2d at 5. Subsequently, the parties reconciled, but legal

title to the residence remained in wife's name. See id. In

conjunction with husband's later suit for divorce, the trial

court found that the marital residence was wife's separate

property. See id. at 194, 403 S.E.2d at 6. We reversed,

stating, "[e]ven though the wife may retain legal title to the

property as a result of the separation agreement, whether the

property is separate or marital is determined by the statutory

definition and is not determined by legal title." Id. at 195,

403 S.E.2d at 6. We further noted that wife's interest was

governed by Code § 20-107.3(A)(1), which limits the acquisition

become effective immediately upon their
execution.

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of separate property by gift to property received from a source

other than the donee's spouse. See id. at 196, 403 S.E.2d at 7.

See also Kauffman v. Kauffman, 7 Va. App. 488, 496, 375 S.E.2d

374, 377 (1988) (finding insufficient evidence to overcome

presumption that jewelry given to wife during the marriage was

marital property, not her separate property). Neither Garland

nor Kauffman involves a transfer of property or an agreement

from which the intent to convey an asset as a spouse's separate

property under Code § 20-107.3 is proven by express and specific

language, as was the situation in McDavid.

Kauffman, Garland, and McDavid each considered the question

of interspousal transfer of marital property by gift. In

Theismann v. Theismann, we addressed the same question in the

context of an interspousal gift of separate property. The

husband in that case retitled his separate real property and two

separate financial accounts jointly in his and his wife's name.

See Theismann, 22 Va. App. at 565, 471 S.E.2d at 813. We

affirmed the trial court's finding that the transfer constituted

a gift to the wife, which provided a ground for distribution of

a portion of the property's value to her as part of an award of

marital property. See id. at 566-68, 471 S.E.2d at 813-14. In

essence, we held that a gift of separate property during the

marriage becomes marital property subject to division pursuant

to the factors listed under Code § 20-107.3(E). See id. at

567-69, 471 S.E.2d at 813-14. See also J. Thomas Oldham,

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Divorce, Separation and the Distribution of Property

§ 6.02[3][b] (1998).

The principles that emerge from the cases addressing the

classification of property which has been the subject of

interspousal gift do not depend upon the classification of the

source of the property but rather upon whether one party by

clear and express language intended to give the asset as the

other spouse's separate property or merely intended to make a

gift during the marriage, which becomes marital property. Where

the facts clearly and unambiguously support the conclusion that

one of the parties has relinquished all right and interest in

marital property and has transferred those rights

unconditionally to the other, to the exclusion of the donor's

continuing claim upon the property as a marital asset pursuant

to Code § 20-107.3, a separate property right will be found to

exist. See Code § 20-107.3(A)(2) (stating that property

acquired during the marriage by either spouse and before the

last separation of the parties "is presumed to be marital

property in the absence of satisfactory evidence that it is

separate property.") (emphasis added)); McDavid, 19 Va. App. at

411-12, 451 S.E.2d at 717; Kauffman, 7 Va. App. at 496, 375

S.E.2d at 377. However, it is not enough to merely change legal

title. See Garland, 12 Va. App. at 195, 403 S.E.2d at 6. As

noted by one commentator:

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 "An interspousal gift could be construed as
evidence of an implied agreement that the
transferred asset should not be marital
property, but such an agreement is not
automatically present merely because an
interspousal gift was made. Indeed many
interspousal gifts are made without any
intent of removing the asset from the
marital estate in the event of divorce."

Brett R. Turner, Equitable Distribution of Property 217 (2nd ed.

1994) (citing Hemily v. Hemily, 403 A.2d 1139, 1143 (D.C.

1979)). See In re Marriage of Davis, 215 Ill. App. 3d 763, 771,

576 N.E.2d 44, 50 (Ill. App. Ct. 1991) (holding that under

Illinois law the presumption that property acquired by either

spouse during the marriage is marital property can be overcome

only "by clear, convincing, and unmistakable evidence" that the

property was acquired by gift from the other spouse).

It follows that equivocal evidence of intent, including

evidence of a purpose unrelated to the making of a gift, may

defeat a claim of separate property before the divorce court.

See, e.g., Hoagland v. Hoagland, 852 P.2d 1025, 1028 (Utah Ct.

App. 1993) (holding the trial court acted within its discretion

in concluding that real property, conveyed by husband to wife by

quitclaim deed in order to protect it from creditors of

husband's failing business, was marital property); In re

Marriage of Parr, 103 Ill. App. 3d 199, 206-07, 430 N.E.2d 656,

661-62 (Ill. App. Ct. 1981) (finding that the presumption in

favor of classifying property acquired during the marriage as

marital was not rebutted when husband quitclaimed his interest

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in a condominium to wife for business and tax purposes); In re

Marriage of Leff, 148 Ill. App. 3d 792, 807-08, 499 N.E.2d 1042,

1052-53 (Ill. App. Ct. 1986) (affirming the trial court's

finding that the marital residence, acquired during the

marriage, was marital property when husband testified he placed

title in wife's name to protect the residence from a possible

malpractice action and wife failed to rebut presumption that

property was marital by clear and convincing evidence); Davis,

215 Ill. App. 3d at 771-73, 576 N.E.2d at 50-51 (determining

that husband's transfer of his interest in the marital residence

to wife by quitclaim deed was not a gift that transformed the

property into wife's separate property because transfer was made

as part of an estate tax planning scheme); In re Marriage of

Wojcicki, 109 Ill. App. 3d 569, 572-75, 440 N.E.2d 1028, 1030-31

(Ill. App. Ct. 1982) (finding that husband's transfer of his

separate real property to joint tenancy with his wife for the

purpose of avoiding probate was not a gift of the property to

the marital estate); Weberg v. Weberg, 158 Wis.2d 540, 550-52,

463 N.W.2d 382, 386-87 (Wis. Ct. App. 1990) (rejecting wife's

argument that husband's separate funds became marital property

when placed in a joint account based on the absence of evidence

showing donative intent and on husband's testimony that he

placed the funds in the joint account to protect wife in the

event of his death); Berry v. Breslain, 352 N.W.2d 516, 518

(Minn. Ct. App. 1984) (finding that wife's home, although

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transferred to joint tenancy with husband upon marriage,

remained her separate property because the joint tenancy was

created primarily to ensure security on the mortgage).

In short, when evidence of intent to relinquish all present

and future dominion over the property so as to remove it from

the marital estate is lacking, the presumption of Code

§ 20-107.3(A)(2) that property acquired by either spouse during

a marriage is marital remains unrebutted. See McDavid, 19 Va.

App. at 411-12, 451 S.E.2d at 717; Kauffman, 7 Va. App. at 496,

375 S.E.2d at 377. See e.g., Davis, 215 Ill. App. 3d at 771,

576 N.E.2d at 50.

In determining whether the Agreement contains sufficient

evidence of donative intent to create separate estates,

principles governing the construction of contracts are

applicable. The "fundamental rule" when construing a contract

is "to ascertain the intent of the parties . . . ." Monterey

Corp. v. Hart, 216 Va. 843, 850, 224 S.E.2d 142, 147 (1976). In

order to determine intent, courts may look to the "language

employed, the subject matter, and the surrounding

circumstances." Id. The construing court "must give effect to

all of the language of [the instrument] if its parts can be read

together without conflict." Berry v. Klinger, 225 Va. 201, 208,

300 S.E.2d 792, 796 (1983). Further, the instrument must be

read as a single document, with meaning given to every clause.

See id.; Winn v. Aleda Constr. Co., 227 Va. 304, 307, 315 S.E.2d

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193, 195 (1984) ("No word or clause will be treated as

meaningless if a reasonable meaning can be given to it, and

there is a presumption that the parties have not used words

aimlessly."). "The facts and circumstances surrounding the

parties when they made the contract, and the purposes for which

it was made, may be taken into consideration as an aid to the

interpretation of the words used, but not to put a construction

on the words the parties have used which they do not properly

bear." Seaboard Air Line R.R. Co. v. Richmond-Petersburg

Turnpike Authority, 202 Va. 1029, 1033, 121 S.E.2d 499, 503

(1961). See Monterey, 216 Va. 850-51, 224 S.E.2d at 147

("'[Courts] are never shut out from the same light which the

parties enjoyed when the contract was executed, and in that view

they are entitled to place themselves in the same situation

which the parties who made the contract occupied, so as to view

the circumstances as they viewed them, and so to judge of the

meaning of the words and of the correct application of the

language to the things described.'" (quoting Bank of Old

Dominion v. McVeigh, 32 Gratt. (73 Va.) 530 (1879))).

Applying these principles here, we find that the record

does not contain clear and unambiguous evidence that either

party intended to relinquish his or her interest in marital

property and to create separate estates upon the division and

transfer of the property into equal shares under the Agreement.

The Agreement reflects a clear purpose to establish a mechanism,

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using a revocable trust as the vehicle, that would enable the

parties to take advantage of provisions in the Internal Revenue

Code allowing married persons to minimize federal estate tax

liability. Accordingly, the parties' agreement to divide and

place their assets into equal shares must be viewed in light of

the contemplated tax purposes that the Agreement was intended to

serve. Wife's contention that the equal division of Schedule A

assets into two separate shares evidences the husband's intent

to make a completed gift to her of the property transferred to

Schedule A fails to consider that under the estate tax laws,

which underlay the parties' Agreement, the equal division of the

marital estate was critical to assuring the avoidance of tax

liability upon death. See 26 U.S.C. §§ 2001(a), 2010(a),

2056(a), 2523(a); see also James F. Farr & Jackson W. Wright, An

Estate Planner's Handbook § 50, at 335 (1979) ("Because of the

progressive rates, the impact of federal estate taxes on the

combined estate of husband and wife must be least when their

taxable estates are approximately equal. . . . The opportunity

to split the taxable estates of husband and wife by means of the

estate tax marital deduction is entirely lost if the wife, [for

example,] having little or no property of her own, is the first

to die. This situation can be guarded against by gifts to the

wife during her life, insuring that she can at least use most of

the unified credit which will be available to her estate.")

(emphasis added)). The trust provision that directs, to the

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extent a spouse's share of trust assets exceeds his or her

contributions to the trust, the difference in the contributions

"shall constitute a completed gift from the other [spouse],"

must be similarly understood, as this provision is likewise

critical to the estate planning and tax liability reduction

purposes of the instrument. See Farr & Wright, supra, § 50, at

181-82 (Supp. 1995) ("If the [one spouse] does not have

sufficient property to utilize [his or her] full credit, [the

other spouse] should consider making gifts to her so that she

will be able to use her full credit if she should die first.").

Furthermore, the evidence fails to support the obverse

proposition espoused by wife. The Agreement, by its terms,

affords no evidence that, at the time of the trust's formation,

the parties contemplated it would govern the classification of

property in the event of divorce. Indeed, the provisions of

Article III regarding disposition of the trust's assets upon the

death of either spouse, when coupled with the contemporaneous

execution of the parties' wills, make plain that the parties'

underlying expectation was the survival of their marriage, not

its demise.

Unlike the deed of gift in McDavid, which explicitly stated

that husband was to hold the transferred property "in his own

right as his separate and equitable estate" as if unmarried,

free from the control and marital rights of his spouse, such

language of clear donative intent to create separate property

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pursuant to Code § 20-107.3 is absent here. Indeed, it is clear

that both husband and wife intended to retain their interest in

the trusts' assets, each being named the beneficiary of the

share held by the other, with the remainder passing to their

children and other named beneficiaries upon the death of both

parties.

Finally, we note that the retention of the right to revoke

the trust by each spouse supports the conclusion that neither

had the requisite donative intent to transform marital property

into separate, as was the case in McDavid. Retaining the right

to revoke a trust is inconsistent with the notion that a grantor

has relinquished all right and interest in the trust property.

See Burnet v. Guggenheim, 288 U.S. 280, 284, 53 S. Ct. 369, 390

(1933) (finding that property transferred to revocable trusts

did not constitute a completed, taxable gift to the

beneficiaries until the grantor's power to revoke was

eliminated); Newman v. Commissioner of Internal Revenue, 222

F.2d 131, 136 (9th Cir. 1955) (finding that settlor's transfer

of property under a revocable trust was not a completed gift for

purposes of taxation so long as the right to revoke existed);

In re Estate of Knickerbocker, 912 P.2d 969, 977 (Utah 1996)

("To make an equitable division of the marital assets, the court

needs flexibility to decide upon the evidence whether . . .

property transferred by one spouse into a revocable trust[]

should be included within the marital estate."); Lynch v. Lynch,

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522 A.2d 234, 235 (Vt. 1987) (finding that property in trust,

because the grantor spouse expressly reserved the power to

revoke the trust, was owned by the grantor and thus subject to

equitable distribution as marital property); Friedrich v.

Bancohio National Bank, 470 N.E.2d 467, 471 (Ohio Ct. App. 1984)

(stating that the grantor of property held in trust "retains the

right to reinvest himself with legal title at some point in the

future" by reserving a power of revocation); Salvio v. Salvio,

441 A.2d 190, 197-98 (Conn. 1982) (finding that, in the absence

of any unequivocal act rendering savings account trusts

irrevocable or otherwise transferring ownership rights to the

beneficiaries, trusts established by wife were the property of

the marriage and subject to the trial court's power to

distribute marital assets); Brett R. Turner, Equitable

Distribution of Property § 6.28, at 447 (2nd ed. 1994) (stating

that courts treat the power to revoke a trust as "tantamount to

the power of ownership" and that assets transferred into a

revocable spousal trust are generally treated as if owned by the

settlor spouse individually). Viewed in this light, the power

of revocation possessed by the parties under the Agreement

supports the conclusion that husband had no intent to divest

himself of all of his right and interest in the marital assets

transferred into the trust.

Under Virginia law, in the absence of clear and unambiguous

evidence of intent to create a separate estate in the other

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party, an interspousal gift is ineffective as a device to

transform an asset into the separate property of the donee

spouse. See, e.g., McDavid, 19 Va. App. at 411-12, 451 S.E.2d

at 717; Theismann, 22 Va. App. at 566, 471 S.E.2d at 813.

Accordingly, we reverse the trial court and remand for further

consideration of the division of the parties' marital assets in

accordance with Code § 20-107.3.

Reversed and remanded.

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