COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Kelsey and Senior Judge Willis 

Argued at Chesapeake, Virginia 

CHARLES G. WATTS, JR. 

 OPINION BY 

v. Record No. 2235-02-1 JUDGE JERE M.H. WILLIS, JR. 

 MAY 27, 2003 

LINDA E. WATTS 

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY 

William H. Shaw, III, Judge 

 Alexander S. de Witt (Ronald S. Evans; 

Brenner, Evans & Yoffy, P.C., on brief), for 

appellant. 

 Breckenridge Ingles (Martin, Ingles & Ingles, 

Ltd., on brief), for appellee. 

 Charles G. Watts, Jr. (husband) contends on appeal that the 

trial court erred: (1) in finding that Linda Watts (wife) proved 

his adultery by clear and convincing evidence; (2) in relying on 

its finding of adultery in determining equitable distribution 

under Code § 20-107.3(E); (3) in finding that husband's actions 

outside the marriage constituted serious negative nonmonetary 

contributions and in relying on that finding to justify an 

unequal distribution of the marital estate; (4) in classifying 

certain items of personal property acquired during the marriage 

as wife's separate property; and (5) in allocating a 

substantially disparate share of the marital estate to wife. We 

affirm in part, reverse in part, and remand. 
BACKGROUND 

 The parties were married on May 23, 1980. They have one 

child, born on May 2, 1988. On April 27, 2001, wife filed a 

bill of complaint seeking a divorce on the ground of adultery. 

On April 16, 2002, the trial court conducted an ore tenus

hearing on the issues of adultery and equitable distribution. 

In an opinion letter dated June 27, 2002, the trial court found 

that wife "established her claim of Husband's adultery[,] . . . 

granted the divorce on those grounds" and "report[ed] [its] 

conclusions with respect to equitable distribution, having 

reviewed the pleadings, transcripts, exhibits and arguments." 

On July 29, 2002, the trial court entered the final decree of 

divorce setting forth those determinations. 

ADULTERY 

 Husband contends the evidence was insufficient to prove he 

committed adultery. 

 "'To establish a charge of adultery the evidence must be 

clear, positive and convincing. Strongly suspicious 

circumstances are insufficient. Care and circumspection should 

accompany consideration of the evidence.'" Romero v. Colbow, 27 

Va. App. 88, 93-94, 497 S.E.2d 516, 519 (1998) (quoting Painter 

v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975)). 

However, "'while a court's judgment cannot be based upon 

speculation, conjecture, surmise, or suspicion, adultery does 

- 2 -
not have to be proven beyond a reasonable doubt.'" Gamer v. 

Gamer, 16 Va. App. 335, 339, 429 S.E.2d 618, 622 (1993) 

(quoting Coe v. Coe, 225 Va. 616, 622, 303 S.E.2d 923, 927 

(1983)). Rather, the evidence must "'produce in the mind of the 

trier of facts a firm belief or conviction as to the allegations 

[of adultery] sought to be established.'" Cutlip v. Cutlip, 8 

Va. App. 618, 621, 383 S.E.2d 273, 275 (1989) (quoting Seemann 

v. Seemann, 233 Va. App. 290, 293 n.1, 355 S.E.2d 884, 886 n.1 

(1987)). "It is well settled, however, that such proof may be 

by circumstantial as well as direct evidence." Bowen v. 

Pernell, 190 Va. 389, 393, 57 S.E.2d 36, 38 (1950). 

 "[I]n determining whether clear and convincing evidence 

supports a finding of adultery, the Supreme Court and this Court 

have consistently reviewed the record to determine not only 

whether the evidence merely established suspicious conduct, but 

also whether a credible explanation existed for the 

circumstances." Hughes v. Hughes, 33 Va. App. 141, 150, 531 

S.E.2d 645, 649 (2000). 

 The evidence was before the trial court on both depositions 

and an ore tenus hearing. While "a divorce decree based solely 

on depositions is not as conclusive on appellate review as one 

based upon evidence heard ore tenus," it is nonetheless 

"presumed correct and will not be overturned if supported by 

substantial, competent and credible evidence." Collier v. 

- 3 -
Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 (1986). If 

the court "'hears the evidence ore tenus, its finding is 

entitled to great weight and will not be disturbed on appeal 

unless plainly wrong or without evidence to support it.'" 

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 

631 (1988) (quoting Martin v. Pittsylvania County Dep't of 

Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). In 

both instances, however, we must, on appeal, "view [the] 

evidence and all reasonable inferences in the light most 

favorable to the prevailing party below." Id.

 Wife testified on deposition that, by early 2000, husband 

"came home from work late almost every night" and took a change 

of clothes with him.1 She noticed that he began checking his 

voice mail more frequently, and his telephone usage increased. 

In January, 2000, she overheard him on the telephone tell 

someone, "'I love you more than I've ever loved any woman in my 

life. I miss you. I have been enjoying all of our late nights 

together.'" In March, 2000, husband left the marital home and 

 1

 Most of the evidence surrounding the charge of adultery is 

contained in the deposition transcripts, however, wife did 

testify at the ore tenus hearing that, within the past five 

years, husband "never came home before 10:30 [p.m.]" on 

weeknights. She also testified that husband provided minimal if 

any assistance with household and familial chores and duties and 

that their son has suffered emotional problems as a result of 

their separation and divorce. 

- 4 -
moved into an apartment. In October, 2000, he contacted wife, 

told her he loved her, "that his relationship with Virginia [Mae 

Glass] had just been [an] infatuation, and that he wanted to 

come back home." He returned home shortly thereafter and 

relations between the parties improved. 

However, by January, 2001, the relationship worsened. 

Husband again began coming home late, and wife began noticing 

that husband's shirts had the smell of perfume. She hired a 

private investigator. She kept a record of husband's schedule 

in March, 2001 and documented several Fridays on which he did 

not return home until early morning. 

 On March 8, 2001, wife hired private investigator Dairold 

Easterwood to determine whether husband "was seeing someone 

else." Easterwood conducted surveillance on six dates in March. 

On March 9, 2001, Easterwood followed husband from his place of 

employment (Printpak) to 126 Nelson Drive in Williamsburg. 

Husband arrived at 5:30 p.m., parked and met Virginia Mae Glass, 

who also worked at Printpak. They "exchanged an embrace and a 

short kiss," entered husband's vehicle and left. Around 

6:30 p.m., they drove to a house located at 124 Norge Lane, 

entered and remained until 10:50 p.m. They then returned to 126 

Nelson Drive. Glass exited husband's truck and entered her car. 

They drove individually from there to 7850 Cedar Springs Drive 

in Gloucester. They arrived a little after midnight, parked, 

- 5 -
got out and "exchange[d] a kiss and embraced." Husband then 

re-entered his truck and left. 

 On the afternoon of March 14, 2001, husband left his office 

at 5:05 p.m., entered his car and drove away. Five minutes 

later, Glass left the Printpak office. Easterwood followed 

Glass "to a roadside parking area on the Colonial Parkway." 

Glass parked near husband's waiting vehicle. They exited their 

cars, embraced and left. Unable to follow them, Easterwood 

proceeded to the 7850 Cedar Springs Drive address. At 9:09 p.m. 

Glass and husband arrived in their respective vehicles. They 

exited, embraced and entered the residence. "[T]he porch light 

that was on was turned off." At 9:45 p.m. another vehicle 

arrived, a "reddish 4-by-4," parked and the driver entered the 

residence. At 9:55 p.m., husband left. 

 On March 15, 2001, Easterwood set up surveillance at 7850 

Cedar Springs Drive at 8:30 p.m. At 9:15 p.m., husband "drove 

up . . . followed by . . . Ms. Glass in her red Oldsmobile." 

They parked and entered the residence. At 9:40 p.m. "the same 

reddish 4-by-4 came and pulled into the drive." "[B]etween 9:45 

and 9:50, [husband] came out and got in his vehicle and left." 

 On March 16, 2001, Easterwood began surveillance at 

Printpak at 4:00 p.m. At 5:20 p.m., husband and Glass left the 

building and entered their respective vehicles. They drove to 

126 Nelson Drive and parked. They met on the sidewalk, embraced 

- 6 -
and kissed. Husband changed clothes, and the two drove in 

husband's vehicle to a restaurant and had dinner. Around 

7:06 p.m., they entered the house at 124 Norge Lane and remained 

inside until 10:25 p.m. Husband and Glass then drove to a movie 

theater complex in Hampton. They watched a movie, "embracing 

and kissing several times throughout the movie," and left around 

12:45 a.m. when the movie ended. After the movie, they went to 

the 7850 Cedar Springs Drive residence, arriving at 1:50 a.m. 

At 2:20 a.m., Easterwood saw a light in a front room become 

"dim" or "very low" in brightness. The lights in that room 

"brightened up at 4:15 [a.m.]," and at 4:30 a.m., husband got 

into his vehicle and left. 

 On March 23, 2001, Easterwood saw husband and Glass leave 

their office at 5:05 p.m., enter their respective vehicles and 

drive to 126 Nelson Drive. They met on the sidewalk, embraced 

and kissed. Husband changed his shirt and pants and got into 

the passenger seat of his truck. Glass got into the driver's 

seat and drove from the scene. Easterwood lost them in traffic, 

so he proceeded to the 7850 Cedar Springs Drive address and 

waited, without success, until 8:30 p.m., at which time he 

terminated surveillance. 

 On March 30, 2001, Easterwood went to Printpak at 3:45 p.m. 

At 5:13 p.m., Glass left Printpak and drove to a bank parking 

lot where she parked and joined husband, who was in his pickup 

- 7 -
truck. At 6:45 p.m., they entered the 124 Norge Lane residence. 

They stayed there until 10:55 p.m., when they recovered Glass's 

car and drove their respective vehicles to the 7850 Cedar 

Springs Drive residence, arriving around 12:15 a.m. At 

12:40 a.m., the light in the front room dimmed, and at 

4:20 a.m., the light brightened and husband entered his truck 

and departed. 

In April, 2001, wife told husband she intended to file for 

divorce on the ground of adultery. 

 Virginia Mae Glass testified in deposition that she resides 

at 126 Nelson Drive in Williamsburg and has worked at Printpak 

and known husband since 1997. She said husband has visited her 

in her home. When asked whether she and husband had a sexual 

relationship, she invoked the Fifth Amendment. To subsequent 

questions directed at a possible relationship, she stated "I 

don't remember" or "I plead the Fifth." 

 In deposition testimony, husband suggested there were times 

he and Glass "had to be together" for "certain 

[business-related] functions." When asked whether he visited 

Glass's home between January 1, 2001 and April 1, 2001, he 

replied, "I don't remember." When asked whether he had sexual 

intercourse with Glass, he invoked the Fifth Amendment. 

 This case is controlled by Coe, 225 Va. 616, 303 S.E.2d 

923. The facts in Coe are similar to those in this case. After 

- 8 -
discovering that Mrs. Coe was seeing another man (Madden), Mr. 

Coe hired a private investigator to conduct surveillance. Id.

at 620-21, 303 S.E.2d at 926. The investigator saw Mrs. Coe's 

car parked outside Madden's apartment at 3:16 a.m. Id. at 621, 

303 S.E.2d at 926. The lights of the apartment were out. Id. 

At 7:13 a.m., Madden left the apartment. Id. Mrs. Coe left the 

apartment almost an hour later. Id. After Mrs. Coe departed, 

the investigator knocked on Madden's door and telephoned, but no 

one answered. Id. The same scenario took place the next night. 

Id. at 621-22, 303 S.E.2d at 927. Mrs. Coe's car was parked 

outside Madden's darkened apartment at 2:58 a.m. Id. at 622, 

303 S.E.2d at 927. Madden left at 7:15 a.m., and Mrs. Coe left 

at 7:53 a.m. Id.

 In affirming the trial court's finding of adultery based 

upon testimony from Mr. Coe and the investigator, the Supreme 

Court explained: 

Although the allegation of adultery was 

denied by [Mrs. Coe in the bill of 

complaint], the record contains no testimony 

by her, or that of any witness, which 

contradicts or denies the testimony given by 

[Mr. Coe] and the detective as to the 

alleged adultery. [Mrs. Coe] ma[d]e no 

attempt to explain her relationship with 

Madden, or her presence in his unlighted 

apartment on the two occasions testified to 

by the detective. 

Id. at 622, 303 S.E.2d at 927. 

- 9 -
 The Supreme Court distinguished Dooley v. Dooley, 222 Va. 

240, 278 S.E.2d 865 (1981), in which the trial court disregarded 

the commissioner in chancery's recommendation not to find Mrs. 

Dooley guilty of adultery. The Coe Court emphasized that Mrs. 

Dooley had testified before the commissioner, who "heard all the 

evidence in the case," rather than the trial judge, and had 

provided the commissioner an "explanation of the events which 

had been narrated by the [private] detective." Coe, 225 Va. at 

622, 303 S.E.2d at 927. The evidence before the commissioner 

supported his determination that adultery was not sufficiently 

proven and demonstrated that the trial court erred when it 

disregarded that finding. Id.

 The majority of the cases cited by husband in support of 

reversing the trial court are distinguishable in that many of 

those cases involved trial court findings of insufficient 

evidence of adultery, affirmed on appeal. See, e.g., Seemann, 

233 Va. 290, 355 S.E.2d 884 (commissioner and trial judge found 

no adultery; affirmed on appeal); Painter, 215 Va. at 420, 211 

S.E.2d at 38 (trial court found no adultery; Supreme Court 

affirmed, holding trial court not plainly wrong in finding 

evidence insufficient); Haskins v. Haskins, 188 Va. 525, 50 

S.E.2d 437 (1948) (trial court found that wife's allegation of 

adultery was not proved; affirmed on appeal). In those cases, 

as here, on appellate review a trial "'[court's] finding is 

- 10 -
entitled to great weight and will not be disturbed on appeal 

unless plainly wrong or without evidence to support it.'" 

Pommerenke, 7 Va. App. at 244, 372 S.E.2d at 631 (quoting 

Martin, 3 Va. App. at 20, 348 S.E.2d at 16). 

Hughes, upon which husband relies, is also distinguishable. 

There, the trial court found Mrs. Hughes guilty of adultery 

based on her cohabitation with alleged paramour, Kopeski. 

Hughes, 33 Va. App. at 145, 531 S.E.2d at 647. Mrs. Hughes 

testified that she and her children initially lived with 

relatives after she left the marital residence due to husband's 

physical abuse. Id. at 144, 531 S.E.2d at 646. Due to space 

limitations, she and the children left the relatives' home and 

moved into a shelter. Id. Five months later, she and the 

children "moved into Kopeski's residence . . . because she had 

'nowhere else to live.'" Id. at 144-45, 531 S.E.2d at 646. 

Both Mrs. Hughes and Kopeski testified in depositions "that they 

maintain[ed] separate bedrooms" and "[were] not having sexual 

intercourse." Id. at 145, 531 S.E.2d at 646. In reversing the 

trial court's finding of adultery, we distinguished "[t]hose 

cases [which] involved covert meetings" between a spouse and a 

suspected paramour for which "no reasonable explanation for the 

spouse's conduct" existed. Id. at 150, 531 S.E.2d at 649. We 

also recognized situations where there is evidence "'that the 

relationship or living arrangement between the [spouse] and the 

- 11 -
[alleged paramour] was for economic benefit or personal 

convenience or was other than amorous.'" Id. at 152, 531 S.E.2d 

at 650 (quoting Gamer, 16 Va. App. at 340, 429 S.E.2d at 622). 

Hughes involved a situation very different from this case. 

Here, husband acted covertly and provided no plausible 

explanation for his clandestine meetings with Glass. 

 Wife proved by clear and convincing evidence that husband 

committed adultery. In January 2000, two months before husband 

first left the marital home, wife overheard husband tell someone 

over the telephone how much he missed and loved the unidentified 

person on the other end. In October 2000, after returning to 

the marital home from a previous separation, husband admitted to 

wife he had an "infatuation" with Glass. 

 Glass admitted socializing with husband before he and wife 

separated, and she provided no explanation for the after-work 

liaisons documented by Easterwood. 

 Surveillance revealed a series of meetings between husband 

and Glass taking place after work in March 2001, at which 

husband and Glass were embracing and kissing in public. On two 

occasions husband and Glass spent several hours inside 124 Norge 

Lane. On March 16, 2001, after spending three and one-half 

hours inside the Norge Lane residence, husband and Glass went to 

a late movie, then to the house on Cedar Springs Drive, where 

husband remained until 4:30 a.m. On March 30, husband and Glass 

- 12 -
spent over four hours at the Norge Lane home, after which they 

went to the Cedar Springs Drive home, where husband remained 

with Glass for three and one-half hours, leaving at 4:20 a.m. 

 Husband denied recalling the March 2001 visits. He 

provided no explanation for his presence with Glass until the 

late hours of the night.2 Because the record supports the trial 

court's determination that wife established her claim of 

adultery, we affirm that holding. 

RELIANCE ON ADULTERY 

 Husband contends the trial court erred in relying upon its 

finding of adultery in determining equitable distribution. This 

argument was dependent on a determination by us that wife failed 

to prove adultery by clear and convincing evidence. Because we 

find sufficient evidence supported the trial court's finding of 

adultery, see supra, we also hold that the trial court did not 

err in considering adultery in regard to equitable distribution. 

See Code § 20-107.3(E)(5) (the trial court may consider 

circumstances and factors which contributed to the dissolution 

 2

 Although husband invoked the Fifth Amendment when asked 

during deposition testimony whether he and Glass engaged in 

intercourse, we make no negative inference based on his exercise 

of the privilege. See Code § 8.01-223.1; see also Romero, 27 

Va. App. at 93, 497 S.E.2d at 518 (fact that wife exercised her 

Fifth Amendment rights could not be used against her by 

commissioner). In doing so, however, husband failed to provide 

a reasonable explanation for his conduct, a matter about which 

we do take cognizance. 

- 13 -
of the marriage, specifically including any ground for divorce, 

in fashioning an award). 

NEGATIVE, NONMONETARY CONTRIBUTIONS 

 Husband asserts the trial court "err[ed] in finding that 

his 'actions outside the marriage constituted serious negative, 

non-monetary contributions,' and in relying upon this finding as 

an equitable distribution factor justifying an unequal 

distribution of the marital share." We disagree. 

 Resolution of this issue is controlled by Code 

§ 20-107.3(E) and our holdings in Smith v. Smith, 18 Va. App. 

427, 431, 444 S.E.2d 269, 273 (1994), and O'Loughlin v. 

O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995). 

 Code § 20-107.3(E) provides, inter alia, that the division 

of marital property shall be determined by the court after 

considering nine specified factors plus "[s]uch other factors as 

the court deems necessary or appropriate to consider in order to 

arrive at a fair and equitable monetary award." Code 

§ 20-107.3(E)(10). Subsection (E)(1) allows the trial court to 

consider "[t]he contributions, monetary and nonmonetary, of each 

party to the well-being of the family," and subsection (E)(5) 

allows consideration of "[t]he circumstances and factors which 

contributed to the dissolution of the marriage, specifically 

including any ground for divorce." 

- 14 -
 In Smith, we affirmed the trial court's determination that 

husband did not dissipate assets. In approving an alternative 

way to address the use of marital funds to pursue a paramour, we 

explained that, in addition to considering the effect of fault 

on the value of the marital estate pursuant to subsection 

(E)(5), a trial "court may also consider the negative impact of 

the affair on the well-being of the family [pursuant to] Code 

§ 20-107.3(E)(1), and the mental condition of the parties 

[pursuant to] Code § 20-107.3(E)(4)." Smith, 18 Va. App. at 

431, 444 S.E.2d at 273. 

 In O'Loughlin, Mr. O'Loughlin argued that the "trial 

court's equitable distribution award was based entirely and 

wrongfully upon consideration of his negative nonmonetary 

contributions to the well-being of the family, absent economic 

fault on his part." O'Loughlin, 20 Va. App. at 524, 458 S.E.2d 

at 324. In upholding the trial court's ruling, we explained, 

"as long as the trial court considers all the factors, it is at 

the court's discretion to determine what weight to give each 

factor when making the equitable distribution award." Id. at 

526, 458 S.E.2d at 325 (holding that trial court is not required 

to "quantify the weight given to each" factor or to weigh each 

factor equally). "Not only did [Mr. O'Loughlin] make no 

positive nonmonetary contributions, his unfaithfulness hindered 

the wife's efforts to contribute to the partnership in a 

- 15 -
nonmonetary way." Id. at 527, 458 S.E.2d at 326 (explaining 

that if evidence of misconduct is relevant under any factor 

other than subparagraph (5), "it may in the judge's discretion 

be considered"). Moreover, "[j]ust as marital fault could be 

shown to have an economic impact on a marriage, i.e., waste or 

dissipation of assets, it can also be shown to have detracted 

from the marital partnership in other ways." Id. at 528, 458 

S.E.2d at 326. 

 Part of husband's argument on this issue is that "the 

evidence in this case failed to establish marital fault on his 

part that . . . affected the marital estate or well being of the 

family, within the meaning of O'Loughlin." He also argued that 

"the trial court failed to identify or explain how Husband's 

nonmonetary 'actions outside the marriage' resulted in an 

adverse economic impact on the well-being of the family." 

 Consideration of nonmonetary contributions to the well 

being of the family under Code § 20-107.3(E)(1) requires no 

showing of an adverse economic impact. In that context, the 

"well-being" of the family relates to the effect on the family's 

emotional welfare and condition.3 During the ore tenus hearing, 

 3

 In Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988), we 

said: 

[C]ircumstances that affect the 

partnership's economic condition are factors 

that must be considered for purposes of 

- 16 -
 

. . . equitable distribution. . . . 

Circumstances that lead to the dissolution 

of the marriage but have no effect upon 

marital property, its value, or otherwise 

are not relevant to determining a monetary 

award, need not be considered. 

Id. at 5-6, 371 S.E.2d at 836. In O'Loughlin we explained 

Aster, saying: 

The rule established in Aster, that 

circumstances leading to the dissolution of 

the marriage but having no effect on the 

marital property or its value are not 

relevant to determining the monetary award, 

was meant to require proof of some 

relationship between the fault and the 

marital estate, to require objectivity to 

the trial court's decision making on 

equitable distribution, and was focused on a 

couple's monetary contributions. Our 

purpose was to eliminate arbitrary monetary 

awards that punished a spouse for his or her 

fault without showing such fault had an 

economic impact on the marriage. However, 

our ruling in Aster did not establish that 

the negative impact of marital fault or 

other behavior could not be considered in 

light of the other factors, under Code 

§ 20-107.3(E). Just as marital fault could 

be shown to have an economic impact on a 

marriage, i.e., waste or dissipation of 

assets, it can also be shown to have 

detracted from the marital partnership in 

other ways. Thus, as in this case, the 

trial court found not only that appellant 

made no nonmonetary contributions to the 

well-being of the family, but that his 

long-term infidelity and abusive behavior 

over the course of the marriage actually had 

a negative impact on the marital 

partnership. 

O'Loughlin, 20 Va. App. at 528, 458 S.E.2d at 326. 

- 17 -
wife testified that, during "the last five years," husband "was 

never home." "[O]n weeknights he never came home before 

10:30 [p.m.]" The trial court admitted without objection wife's 

Exhibit 14, entitled "Non-Monetary Contributions." In it, wife 

listed the respective percentage of time she and husband spent 

doing family-related tasks and duties. She indicated she was 

responsible for between 90% and 100% of every activity except 

for "Vacation/Move Planner," for which she and husband each 

contributed 50% of the time required. Some of the other 

activities for which wife claimed she expended most of the 

effort included buying and preparing food, cleaning, gardening, 

doing yard work, caring for the pet, bookkeeping and budgeting, 

gift giving, child care and overseeing their son's health, 

education and welfare. 

The record supports the trial court's finding that 

husband's actions constituted "negative non-monetary 

contributions," and its consideration of that factor in 

distributing the marital property. The testimony of wife and 

Easterbrook proved a course of conduct by husband of meeting 

with Glass after work and staying out late. Such actions 

prejudiced the well-being of the family and dashed any hope that 

the parties' October, 2000 reconciliation would succeed. During 

the last five years of the marriage, nearly one-fourth of the 

time the parties were married, husband came home late and failed 

- 18 -
to help with family responsibilities. His late-night activities 

foreclosed contact with his school-age son and required wife to 

assume most family responsibilities and duties. Wife testified 

that since the separation and divorce proceedings, the parties' 

minor son "has had a lot of emotional problems" and is currently 

undergoing counseling. 

 Husband objects to the trial court's characterization of 

his negative nonmonetary contributions as "serious." It lies 

within the trial "court's discretion to determine what weight to 

give each factor when making the equitable distribution award." 

O'Loughlin, 20 Va. App. at 526, 458 S.E.2d at 325. Evidence 

supported the trial court's recognition and consideration of 

husband's negative nonmonetary contributions, and we find no 

abuse of discretion in its labeling them serious. 

CLASSIFICATION OF PROPERTY AS SEPARATE 

Husband contends the trial court erred in classifying 

certain items of personal property as wife's separate property. 

We agree. 

Separate property is: (i) all property, 

real and personal, acquired by either party 

before the marriage; (ii) all property 

acquired during the marriage by bequest, 

devise, descent, survivorship or gift from a 

source other than the other party; (iii) all 

property acquired during the marriage in 

exchange for or from the proceeds of sale of 

separate property, provided that such 

property acquired during the marriage is 

maintained as separate property; and (iv) 

- 19 -
that part of any property classified as 

separate pursuant to subdivision A 3. 

Code § 20-107.3(A)(1). 

 Subdivision (A)(3) includes provisions allowing the court 

to find that separate property exists, even when marital and 

separate property are "commingled" in some manner, "to the 

extent the contributed property is retraceable by a 

preponderance of the evidence and was not a gift." See, e.g., 

Code § 20-107.3(A)(3)(d),(e) and (f). 

 Code § 20-107.3(A)(3)(d) provides, in pertinent part, that 

where separate property is contributed to marital property, "to 

the extent that the [separate] property is retraceable by a 

preponderance of the evidence and was not a gift, the [separate] 

property shall retain its original classification." The 

converse of that provision is that when retraceable separate 

property is used to purchase a gift, it no longer retains its 

classification as separate property. 

 As the "party claiming entitlement to rights and equities 

in . . . property by virtue of an interspousal gift," husband 

bore the burden of "prov[ing] the donative intent of [wife] and 

the nature and extent of [her] intention." Lightburn v. 

Lightburn, 22 Va. App. 612, 616-17, 472 S.E.2d 281, 283 (1996). 

See also Theismann v. Theismann, 22 Va. App. 557, 565-66, 471 

- 20 -
S.E.2d 809, 813, aff'd, 23 Va. App. 697, 479 S.E.2d 534 (1996) 

(en banc). 

Wife testified at the ore tenus hearing that, in 1995, she 

inherited $104,000 from the estates of her grandmother and 

mother. She deposited that money into the parties' joint 

savings account, then transferred it to their joint checking 

account. In December 1995, she purchased a brass bed. Later, 

using the last of her inheritance money, she purchased four 

hundred shares of Pershing Monument Medical Science stock (the 

Pershing stock). 

Wife testified that using her inheritance money to buy 

things "was something [nice she] wanted to do" for her family. 

She considered the items to be "gifts for us." On wife's 

exhibit entitled "Property Inventory," she even listed the 

Pershing stock as marital. 

However, in the final decree, the trial court classified 

the brass bed and the Pershing stock as wife's separate 

property. 

The record proves that wife intended the brass bed and 

Pershing stock to be gifts for the family. Thus, the trial 

court erred in classifying them as separate property. We 

reverse and remand on this issue for the trial court to classify 

these items properly and to recalculate its equitable 

distribution award. 

- 21 -
UNEQUAL DIVISION OF PROPERTY 

 Husband contends the trial court "erred in allocating a 

substantially disparate share of the marital estate to wife." 

 "Fashioning an equitable distribution award lies within the 

sound discretion of the trial judge[,] and that award will not 

be set aside unless it is plainly wrong or without evidence to 

support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 

396 S.E.2d 675, 678 (1990). "Virginia law does not establish a 

presumption of equal distribution of marital assets." Matthews 

v. Matthews, 26 Va. App. 638, 645, 496 S.E.2d 126, 129 (1998). 

Because the trial court considered the factors set out in Code 

§ 20-107.3(E), and the evidence supports its conclusions, we 

will not disturb its equitable distribution award merely because 

it is unequal. Artis v. Artis, 10 Va. App. 356, 362, 392 S.E.2d 

504, 508 (1990). 

For the reasons stated, we affirm in part, reverse in part 

and remand. 

 Affirmed in part,

reversed in part,

and remanded.

 

- 22 -