COURT OF APPEALS OF VIRGINIA 

Present: Judges McClanahan, Haley and Senior Judge Willis 

BARBARA JEAN PERRY BROCK 

 MEMORANDUM OPINION* 

v. Record No. 1353-10-3 PER CURIAM 

FEBRUARY 15, 2011 

JERRY EARNEST BROCK 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

 (Rachael A. Sanford; Clement & Wheatley, on brief), for appellant. 

Appellant submitting on brief. 

 No brief for appellee. 

 Barbara Jean Perry Brock (wife) appeals an equitable distribution ruling from a final decree. 

Wife argues that the trial court erred in classifying the Vanguard IRA as Jerry Earnest Brock’s 

(husband) separate property because the Vanguard IRA was acquired during the parties’ marriage 

and there was insufficient evidence of a written agreement between the parties to reclassify the 

property as husband’s separate property pursuant to Code § 20-155. Upon reviewing the record 

and wife’s brief, we find no error, and affirm the decision of the trial court. 

BACKGROUND 

 “When reviewing a trial court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted). 

 The parties were married on October 5, 1958, separated on January 20, 2009, and 

divorced on May 28, 2010. On April 2, 2001, wife signed a document titled, “Spouse’s Consent 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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to Withdrawal from Account” (hereafter “Consent to Withdrawal”), which allowed husband to 

withdraw funds from his 401(K) plan. Husband and wife equally divided the funds. Husband 

placed his portion in the Vanguard IRA. 

 At trial, wife argued that the funds in the Vanguard IRA were marital property subject to 

equitable distribution. Husband asserted that the parties previously agreed to divide his 

retirement, and wife received her portion. Husband argued that the entire amount of the 

Vanguard IRA should be awarded to him. 

 The trial court agreed with husband and found the Vanguard IRA to be husband’s 

separate property. This appeal followed. 

ANALYSIS 

 Wife argues that the trial court erred by classifying the Vanguard IRA as husband’s 

separate property. She contends the Vanguard IRA was acquired during the marriage and there 

was insufficient evidence to prove that the Consent to Withdrawal was an agreement between the 

parties to reclassify the property. 

“Because the trial court’s classification of property is a finding of fact, that classification 

will not be reversed on appeal unless it is plainly wrong or without evidence to support it.” 

Ranney v. Ranney, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005) (citations omitted). 

“Where the record contains credible evidence in support of the findings made by that court, we 

may not retry the facts or substitute our view of the facts for those of the trial court.” Ferguson 

v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992). 

“[P]roperty which is marital may become separate only through ‘a valid, express 

agreement by the parties,’ Wagner [v. Wagner], 4 Va. App. [397,] 404, 358 S.E.2d [407,] 410 

[(1987)]; Code § 20-155 (marital provision of the Premarital Agreement Act), or as provided in 

Code § 20-107.3(A)(3)(d).” McDavid v. McDavid, 19 Va. App. 406, 411, 451 S.E.2d 713, 
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716-17 (1994). As in McDavid, the retirement funds in this case were marital property because 

they were acquired during the marriage. Therefore, “[t]he critical question . . . is whether the 

parties’ subsequent actions resulted in its transmutation into husband’s separate property.” Id. at 

411, 358 S.E.2d at 717. 

When wife signed the Consent to Withdrawal form, the parties orally agreed to withdraw 

and divide the funds from husband’s retirement. Husband’s portion of the retirement funds 

became his separate property, which he placed in the Vanguard account. The parties’ actions 

corroborate their agreement regarding the division of the retirement funds. Furthermore, wife’s 

signature on the Consent to Withdrawal form supports husband’s position that the parties agreed 

to divide the funds and that the funds were divided and became each party’s separate property. 

Contrary to wife’s argument, there is no necessity for a written agreement signed by both 

parties because years prior to the equitable distribution hearing, the parties fulfilled the terms of 

their agreement. The execution itself is evidence of the agreement. 

The trial court did not err in classifying the Vanguard account as husband’s separate 

property. 

CONCLUSION 

 For the foregoing reasons, the trial court’s ruling is affirmed. 

Affirmed.