COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey 

Argued at Chesapeake, Virginia 

JACK M. PARRISH, III 

 MEMORANDUM OPINION∗

 BY 

v. Record No. 1294-04-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MAY 31, 2005 

DIANE D. PARRISH 

 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 W. Reilly Marchant (Marchant, Thurston, Honey & Blanks, L.L.P., 

on briefs), for appellant. 

 M. Alicia Finley (The Barnes Law Firm, P.C., on brief), for 

appellee. 

 Jack M. Parrish, III (husband) appeals from a final decree of divorce awarded to Diane D. 

Parrish (wife) on May 18, 2004. On appeal, husband contends that the trial court erred in: 1) failing 

to allow parol evidence on the issue of whether he intended to gift his premarital separate property 

interest in the marital home, and 2) awarding wife $10,000 in attorney’s fees. For the reasons that 

follow, we affirm. 

I. FACTUAL BACKGROUND 

In accordance with familiar principles, we view the evidence in the light most favorable 

to the wife, the prevailing party below. See Brown v. Brown, 30 Va. App. 532, 534, 518 S.E.2d 

336, 337 (1999). 

The parties were married on March 4, 1989, and separated on November 1, 2000, 

approximately 11 years later. They had no children together. Appellant filed a bill of complaint 

 ∗

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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on December 3, 2001 and the final decree was signed May 18, 2004, approximately two and a 

half years later. 

At issue during the divorce and equitable distribution proceedings was the wife’s interest 

in the marital home. Husband owned the home in his sole name prior to the marriage. However, 

in April 1992 he refinanced the property and it was retitled to husband and wife as tenants by the 

entirety. At an equitable distribution hearing held July 2, 2003, the court heard evidence and 

argument on the issue of wife’s interest in the marital home. In his original letter opinion, the 

trial judge found the evidence insufficient to determine a gift to wife of the equity that existed in 

the marital home at the time of the refinance. Wife filed a motion to reconsider, and the trial 

judge reversed his position and stated: 

On reconsideration, the wife is correct in her argument that there is 

sufficient evidence to determine a gift to the marriage of the equity 

in the property at the time of the refinance. Under Va. Code 

§ 20-107.3(A)(3)(f): 

When separate property is re-titled in the joint names of the 

parties, the re-titled property shall be deemed transmuted to 

marital property. However, to the extent the property is 

retraceable by a preponderance of the evidence and was not 

a gift, the re-titled property shall retain its original 

classification. 

In Utsch v. Utsch, 266 Va. 124 (2003), the [Supreme] Court found 

that a deed of gift that explicitly states that it has been in 

consideration of a gift is unambiguous on its face. Here, the April 

27, 2002 deed recites that it is “in consideration of a gift.” Based 

on this language, there is no ambiguity that a gift was intended, as 

in Utsch. For this reason, parol evidence was not admissible in an 

inquiry of whether the property was a gift to the marriage, and 

thus, marital property. 

(Emphasis added.) 

Wife also requested attorney’s fees and at the close of the February 27, 2004 hearing, 

each side submitted a draft final decree of divorce. The trial judge later stated that he noticed 

two drafts of the decree, but he believed they were duplicates. He signed husband’s draft that 
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did not include a provision for attorney’s fees. However, he later vacated that decree and signed 

wife’s final decree on May 18, 2004 and awarded the fees. In his award of attorney’s fees, the 

trial judge stated: “[U]pon review of the evidence offered at the July 2, 2003 hearing, as well as 

evidence offered on February 27, 2004 and argument of counsel offered on February 27, 2004 

and April 19, 2004 that Defendant’s Motion for attorney’s fees is granted . . . .” 

II. PAROL EVIDENCE 

 Husband first contends that the trial court erred in finding that the deed retitling the 

marital home from husband’s separate property to one of tenants by the entirety was clear and 

unambiguous, thus, precluding the introduction of parol evidence as to his intent. We disagree, 

and affirm the ruling of the trial court. 

 “The parol evidence rule applies to written instruments, including deeds, that express the 

terms of the parties’ agreement.” Langman v. Alumni Assoc. of Univ. of Va., 247 Va. 491, 498, 

442 S.E.2d 669, 674 (1994). 

The question whether a writing is ambiguous is not one of fact but 

of law. Thus, the trial court’s conclusions in this regard are not 

binding on this Court, and we are provided with the same 

opportunity as the trial court to consider the written provisions of 

the deed in question. 

Id. (citing Wilson v. Holyfield, 227 Va. 184, 187-88, 313 S.E.2d 396, 398 (1984)). 

 The parol evidence rule is a time-honored fixture in the law of 

this Commonwealth. In controversies between two parties to a 

contract, parol evidence of prior or contemporaneous oral 

negotiations or stipulations is inadmissible to vary, contradict, add 

to, or explain the terms of a complete, unambiguous, 

unconditional, written instrument. 

* * * * * * * 

 . . . An ambiguity exists when language admits of being 

understood in more than one way or refers to two or more things at 

the same time. However, a document is not ambiguous merely 

because the parties disagree as to the meaning of the language 

employed by them in expressing their agreement. 
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 When the parties set out the terms of their agreement in a clear 

and explicit writing then such writing is the sole memorial of the 

contract and . . . the sole evidence of the agreement. In construing 

the terms of a contract or conveyance, we adhere to the “plain 

meaning” rule in Virginia. The language used is to be taken in its 

ordinary signification. . . . If, when so read, the meaning is plain, 

the instrument must be given effect accordingly. The guiding light 

. . . is the intention of the parties as expressed by them in the words 

they have used, and courts are bound to say that the parties 

intended what the written instrument plainly declares. This court 

is not free . . . to rewrite a deed to express an intention that is 

otherwise indiscernible. 

Amos v. Coffey, 228 Va. 88, 91-93, 320 S.E.2d 335, 337 (1984) (internal quotations and 

citations omitted), see also Golding v. Floyd, 261 Va. 190, 192-93, 539 S.E.2d 735, 736-37 

(2001). 

In the instant case, the deed, on its face, states: “that for and in consideration of a gift

pursuant to Section 58.1-810(3) of the Code of Virginia, the said Grantors do grant and convey 

unto the said Grantees, in fee simple, with GENERAL WARRANTY and English Covenants of 

Title, as tenants by the entirety with the right of survivorship as at common law, the following 

described real estate . . . .” (Emphasis added.) That language is clear and unambiguous. The 

deed, on its face, transferred property that was held in the sole name of husband to the joint 

names of husband and wife without compensation and stated the consideration was a gift. These 

terms are not inconsistent nor contradictory. 

We agree with the trial court that the Supreme Court’s holding in Utsch v. Utsch, 266 Va. 

124, 581 S.E.2d 507 (2003), controls the outcome of this case. In Utsch, shortly after their 

marriage, husband transferred title of the marital residence from his sole name to that of himself 

and his wife as tenants by the entirety. Prior to the marriage, the residence was his sole and 

separate property. The deed that accomplished the transfer stated it was a “deed of gift” and as 

consideration stated “love and affection.” Within the four corners of the deed, it also referenced 

Code § 58.1-811(D), the section exempting the transfer from recordation taxes as a gift. 
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 The burden of proof that the transfer was a gift is upon the party 

seeking to establish the gift. No presumption of gift arises from 

the act of re-titling. Code § 20-107.3(A)(3)(g). Additionally, it is 

well settled that the law does not presume a gift and where a donee 

claims title to personal property by virtue of a gift inter vivos, the 

burden of proof rests upon him to show every fact and 

circumstance necessary to constitute a valid gift by clear and 

convincing evidence. Proof of donative intent, delivery and 

acceptance are necessary to sustain the burden. In this case, only 

donative intent is in controversy. 

* * * * * * * 

 Nowhere in Code § 20-107.3(A)(3)(f) is there a requirement of 

proof that a gift was intended for a particular purpose. The proof 

required under the statutory provision is simply that the transfer 

was a gift. As we have previously held in a case involving a 

grantor’s intent in a deed, if the party intended the deed to be 

operative for one purpose, he must be taken to have intended it to 

be operative for all purposes apparent on its face. 

Id. at 128-29, 581 S.E.2d at 508-09 (internal quotations and citations omitted).1

 See also

Capozzella v. Capozzella, 213 Va. 820, 824, 196 S.E.2d 67, 70 (1973) (deed operative for one 

purpose, operative for all purposes apparent on its face).

In the instant case, the deed clearly shows the husband’s intent to retitle the property from 

his sole and separate name, to the joint names of the parties.2 It shows no compensation was 

paid for wife’s interest in the property, as it recites the consideration was a gift. It refers to Code 

§ 58.1-810(3) which, when recordation taxes are paid on a prior deed, exempts a subsequent 

 1

 Code § 20-107.3(A)(3)(f) provides: 

When separate property is re-titled in the joint names of the parties, 

the retitled property shall be deemed transmuted to marital 

property. However, to the extent the property is retraceable by a 

preponderance of the evidence and was not a gift, the retitled 

property shall retain its original classification. 

2

 While the deed lists both “JACK M. PARRISH, III AND DIANE D. PARRISH” as 

grantors, it was stipulated that the marital home was husband’s separate property before the 

refinance. 
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deed from further recordation taxes if the husband and wife are the only parties to the deed. The 

transfer by husband to wife was voluntary and made in order to refinance the property, a benefit 

to both husband and wife. As the Supreme Court instructed us in Utsch, “[f]ailure to recognize 

the applicability of the parol evidence rule in this context would result in unacceptable 

uncertainty in the law.” 266 Va. at 129, 581 S.E.2d at 509. 

 Cirrito v. Cirrito, 44 Va. App. 287, 605 S.E.2d 268 (2004), relied on by appellant, is 

distinguishable from this case. The evidence in Cirrito showed the properties in question were 

purchased with husband’s separate funds and jointly titled as a protection against creditors. The 

deeds did not include language that specifically addressed the intent of the husband to gift the 

properties nor was there any reference to a particular code section applicable to real estate 

transfers by gift or between husband and wife. The applicability of the parol evidence rule was 

not the issue in Cirrito. Rather, that case involved a factual determination that the wife did not 

meet her burden of proof to prove a gift and a credibility review of the parol evidence admitted. 

The deed here was clear and unambiguous on its face. We therefore hold that the trial 

court did not err in refusing to admit parol evidence, as the nature of the gift can be determined 

within the four corners of the deed. 

III. ATTORNEY’S FEES 

Husband next contends the trial court erred in granting attorney’s fees to wife. 

“An award of attorney’s fees is a matter submitted to the sound discretion of the trial 

court and is reviewable on appeal only for an abuse of discretion.” Northcutt v. Northcutt, 39 

Va. App. 192, 200-01, 571 S.E.2d 912, 916 (2002) (citing Graves v. Graves, 4 Va. App. 326, 

333, 357 S.E.2d 554, 558 (1987)). “The key to a proper award of counsel fees is reasonableness 

under all the circumstances.” Id. (citing Joynes v. Payne, 36 Va. App. 401, 429, 551 S.E.2d 10, 

24 (2001) (citing McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985))). 
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Appellee filed at least two motions to compel, two petitions to show cause, and a motion 

for sanctions. The record shows the discovery process was long and difficult and due, mostly, to 

appellant’s failure to comply. A review of the record supports the trial court’s award. 

Accordingly, we affirm the trial court’s ruling.

 Affirmed.