COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge 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, husba nd 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 $10,00 0 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 childre n together. Appellant fi led a bill of complaint

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - 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 dist ribution proceedings was the wife’s interest

in the marital home. Husband owned the home in hi s 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 dist ribution hearing held July 2, 200 3, the court heard evidence and argument on the issue of wife’s in terest in the marital home. In his original letter opinion, the trial judge found the evidence insuffici ent 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 corr ect in her argument that there is sufficient evidence to determine a gi ft 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 explic itly states that it has been in consideration of a gift is unambi guous 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 ambigu ity that a gift was intended, as in Utsch . For this reason, parol evidence was not admissible in an inquiry of whether the property wa s 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 st ated that he noticed two drafts of the decree, but he believed they were duplicates. He si gned husband’s draft that- 3 - 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 a nd awarded the fees. In his aw ard 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 argum ent of counsel offered on February 27, 2004 and April 19, 2004 that Defendant’s Motion fo r attorney’s fees is granted . . . .”

II. PAROL EVIDENCE

Husband first contends that the trial cour t erred in finding that the deed retitling the marital home from husband’s separa te property to one of tenant s 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.” Lang man v. Alumni Assoc. of Univ. of Va. , 247 Va. 491, 498, 442 S.E.2d 669, 674 (1994). The question whether a writing is am biguous is not one of fact but of law. Thus, the trial court’s c onclusions in this regard are not binding on this Court, and we are provided with the same opportunity as the trial court to c onsider 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 controve rsies between two parties to a contract, parol evid ence of prior or contemporaneous oral negotiations or stipulations is in admissible 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 re fers 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.- 4 - When the parties set out the terms of their agreement in a clear and explicit writing then such writin g 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 lang uage used is to be taken in its ordinary signification. . . . If, wh en so read, the meaning is plain, the instrument must be given eff ect accordingly. The guiding light . . . is the intention of the partie s as expressed by them in the words they have used, and courts ar e 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, st ates: “that for and in consideration of a gift pursuant to Section 58.1-810(3) of the Code of Virginia, the sa id 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 prop erty that was held in the sole name of husband to the joint names of husband and wife without compensation a nd stated the consideration was a gift. These terms are not inconsistent nor contradictory. We agree with the trial court that the S upreme 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 th e transfer stated it was a “deed of gift” and as

consideration stated “love and aff ection.” Within the four corners of the deed, it also referenced Code § 58.1-811(D), the section exempting the transf er from recordation ta xes as a gift.- 5 - 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 statut ory provision is simply that the transfer was a gift. As we have previ ously held in a case involving a grantor’s intent in a deed, if th e 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 (interna l 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 th e husband’s intent to re title 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 pr operty, as it recites the c onsideration was a gift. It refers to Code § 58.1-810(3) which, when recordation taxes are pa id 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.- 6 - deed from further recordation ta xes if the husband and wife are th e 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 cas e. The evidence in Cirrito showed the properties in question were purchased with husband’s separate funds and jointly titled as a pr otection 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 partic ular code section appli cable to real estate transfers by gift or between husband and wife. Th e applicability of the parol evidence rule was

not the issue in Cirrito . Rather, that case involved a factua l determination that the wife did not meet her burden of proof to prove a gift and a cr edibility review of the parol evidence admitted. The deed here was clear and unambiguous on its face. We therefor e hold that the trial court did not err in refusing to ad mit 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 erre d 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 app eal only for an abuse of disc retion.” 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 prope r award of counsel f ees 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))).- 7 - 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 suppor ts the trial co urt’s award. Accordingly, we affirm the trial court’s ruling.

Affirmed.