COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

Argued at Alexandria, Virginia 

ROBERT H. DEWITT 

 MEMORANDUM OPINION* BY 

v. Record No. 1636-95-4 JUDGE JAMES W. BENTON, JR. 

 AUGUST 6, 1996 

DONNA D. DEWITT 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Quinlan H. Hancock, Judge 

 Kathleen O'Brien (Lorraine Nordlund; Margaret 

B. Craig; Fite, O'Brien, & Byrum, LTD., on 

briefs), for appellant. 

 Brian D. West (Erika B. Schiller; Sandground, 

Barondess & West, P.C., on brief), for 

appellee. 

 Robert H. DeWitt appeals the equitable distribution portion 

of a final decree of divorce. He contends that the trial judge 

committed ten errors in decreeing as to the property he and his 

wife, Donna D. DeWitt, owned. We affirm the decree, in part, 

reverse, in part, and remand the case to the trial judge. 

Facts

 Robert H. DeWitt and Donna D. DeWitt married in 1973 shortly 

after he was discharged from the U.S. Army. During the early 

years of the marriage the husband enrolled at a university and 

obtained undergraduate and dental degrees. The wife, who was a 

recent university graduate, was employed by a federal government 

agency, where she continues to work. Although both parties 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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contributed to the family finances, the wife was the major 

contributor while the husband attended school. 

 After graduation from dental school in 1980, the husband 

began his practice with another dentist. The husband opened his 

own dental practice in 1985. He financed the construction and 

equipping of his new office with inherited funds, a bank loan, 

and a loan from his wife's father. The parties separated in 1992 

and were divorced by a final decree entered June 23, 1995. 

 The record contains numerous transcripts and a large number 

of exhibits. Therefore, we will discuss other facts only as they 

are pertinent to the issues raised by the husband's appeal. 

Analysis

 "'Under familiar principles, we view [the] evidence and all 

reasonable inferences in the light most favorable to the 

prevailing party below.'" Pommerenke v. Pommerenke, 7 Va. App. 

241, 244, 372 S.E.2d 630, 631 (1988)(citation omitted). We are 

also guided by the following principle: 

 "In reviewing an equitable distribution award 

on appeal, we recognize that the trial 

court's job is a difficult one. Accordingly, 

we rely heavily on the discretion of the 

trial judge in weighing the many 

considerations and circumstances that are 

presented in each case." 

Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 (1987). 

 "Unless it appears from the record that the [trial judge] has 

abused his discretion, that he has not considered or has 

misapplied one of the statutory mandates, or that the evidence 
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fails to support the findings of fact underlying his resolution 

of the conflict in the equities, the . . . equitable distribution 

award will not be reversed on appeal." Brown v. Brown, 5 Va. 

App. 238, 244-45, 361 S.E.2d 364, 368 (1987)(citation omitted). 

Applying these principles, we examine the ten rulings by the 

trial judge which the husband contests. 

1. Money inherited by the husband from his father's estate

 The husband contends that the trial judge erred in finding 

that the wife was entitled to half of the husband's inheritance 

from his father. He denies that he gifted the money to her and 

argues that his inheritance is separate property pursuant to Code 

§ 20-107.3(A)(1)(ii). Citing 20-107.3(A)(3)(d-f), the husband 

also claims that he retraced his inheritance into the different 

marital assets and was entitled to recover his separate property. 

 The evidence proved that after the husband's father died in 

1981, the husband received an inheritance of approximately 

$320,000 over a five year period. The husband deposited all of 

his inheritance into the couple's various, existing joint 

accounts. His income and the wife's income were also deposited 

into those joint accounts. Over the years, the husband used the 

money in the couple's joint accounts to establish his private 

dentistry practice and to purchase various retirement accounts. 

Using funds from joint accounts and other marital funds, they 

built a new house (the Beresford Court property) in 1982. 

 In his finding that the husband gifted his inheritance to 
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the marital estate, the trial judge cited McClanahan v. 

McClanahan, 19 Va. App. 399, 451 S.E.2d 691 (1994), and wrote: 

 It is undisputed that [the husband] (with one 

exception) deposited all of these funds into 

joint accounts with [the wife] and commingled 

them with marital funds. She had access to 

them and could have used them at any time. 

Most of this hearing was consumed by [the 

husband's] attempt to prove that his 

inheritance was separate property, but at 

 . . . his deposition . . . he testified 

 . . . "The reason for that deposit and not 

keeping the money separate is because I had 

trust in the marital relationship. I thought 

until death do you part. I had no idea that 

she would leave." And also . . . "Well, you 

put it into the account and it was an act of 

the heart?" - Answer: "Yes." There is no 

evidence that there was any agreement between 

the parties or even an understanding that if 

[the wife] left the marriage that the funds 

were not a gift and were to be reclassified. 

 The Court finds that the words "as an act of 

the heart are comparable to the legal 

consideration of 'love and affection,'" and 

acknowledge an irrevocable gift. 

McClanahan was decided under the statute in existence prior 

to 1990.1 The amended statute, as now written and applicable to 

this case, states that "[w]hen separate property is retitled in 

the joint names of the parties, the retitled property shall be 

deemed transmuted to marital property . . . [unless] the property 

is retraceable by a preponderance of the evidence and was not a 

gift. . . ." Code § 20-107.3(A)(3)(f). In addition, the statute 

states that "[n]o presumption of gift shall arise . . . where 

 

 1In 1990 the General Assembly added subsection 3 to Code 

§ 20-107.3(A) and made the provisions effective for all divorces 

filed after July 1, 1990. The wife filed for divorce in 1994. 
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. . . newly acquired property is conveyed into joint ownership." 

 Code § 20-107.3(A)(3)(g). In explaining these provisions, this 

Court stated: 

 Virginia does not presume a gift simply by 

virtue of jointly titling or retitling 

property. A party claiming entitlement to 

rights and equities in marital property by 

virtue of an interspousal gift must prove the 

donative intent of the donor spouse and the 

nature and extent of the donor's intention. 

Lightburn v. Lightburn, 22 Va. App. 612, ___, ___ S.E.2d ___, ___ 

(1996) (citations omitted). See also Theismann v. Theismann, 22 

Va. App. 557, ___, 471 S.E.2d 809, ___ (1996). Thus, the wife 

must bear the burden of proving "every fact and circumstance 

necessary to constitute a valid gift by clear and convincing 

evidence." Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 

631 (1968). 

 The trial judge found persuasive the following portion of 

the husband's deposition testimony: 

 Q Where did you put those funds? 

 A I deposited them into similar accounts 

that I have established previously that [the 

wife] and I both used. 

 The reason for that deposit and not 

keeping the money separate is because I had 

trust in the marital relationship. I thought 

until death do you part. I had no idea that 

she would leave. 

 Q At the time that you put those funds 

into these joint accounts, was it an act of 

the heart, because you believed that's as it 

should be, right? 

 A Yes. Subject to that premise, clearly 

if a person leaves, that would violate the 
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trust, and then I think it should be 

retracted. 

 Q So it is, in effect, a revoked gift, 

then? 

 A It was not a gift. 

 Q Well, you put it into the accounts and 

it was an act of the heart? 

 A Yes. 

 Q But it was contingent upon her 

continuing to be with you or in the marriage, 

is that right? 

 A Yes. I was advised to do that. 

 Q By whom? 

 A By an investment counselor who knew 

nothing about taxes and marital 

relationships. 

 Q When you put these funds into these 

various accounts as an act of the heart, did 

you ever in any writing indicate that the 

titling of the property was contingent upon 

your continuing in the marital relationship? 

 A No. Actually, I am having a problem 

with the word "act of the heart," because it 

has a certain feeling to me, but it may not 

have the same feeling in the context of law, 

so I am having a problem with that phrase 

now. 

 Q Okay. Did you make any writings 

indicating that the titling of these accounts 

was contingent upon her continuing in her 

married relationship? 

 A No. 

 The wife never presented any evidence of the husband's 

intent other than this testimony. Although the husband initially 

agreed with wife's counsel that he placed the money in the joint 
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account "as an act of the heart," he also disavowed that phrase 

because it may have had a legal context that did not describe his 

motives. He further testified that an investment counsellor 

advised him to deposit the funds into the joint account. This 

testimony falls short of clear and convincing evidence of a gift. 

 The husband's testimony that he trusted the relationship would 

last does not prove a gift occurred when the money was jointly 

titled. 

 Prima facie evidence of a gift is not established under this 

new statute when separate property is jointly titled in both 

spouses' names. Code § 20-107.3(A)(3)(g). Furthermore, the 

trial judge improperly placed the burden on the husband to prove 

the absence of a gift. The lack of any evidence concerning an 

agreement or understanding does not indicate that the husband 

intended a gift. Based on the evidence below, we find that the 

wife did not meet her burden of proving by clear and convincing 

evidence that the inherited property was a gift. 

 The trial judge also found that the husband "failed to prove 

by a preponderance of the evidence that the contributed property 

is retraceable and was not a gift." The letter opinion does not 

provide any explanation for the finding that the husband failed 

to trace his inheritance. The husband's testimony and exhibits 

prove that the husband invested a total of $61,000 of his 

inheritance into the purchase, construction and improvement of 

the Beresford Court residence. Accounting for appreciation, the 
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husband claimed that $112,700 of the house's $490,000 current 

value was his separate property. He also testified that he put 

$6,000 and $8,000 from his inheritance into two individual 

retirement accounts. At trial, he valued these contributions at 

$10,000 and $13,000, respectively. The husband testified that he 

invested $21,435 of his separate property into his Keogh pension 

and $23,691 into his dental practice. The wife's evidence did 

not contradict any of these financial figures. 

 In view of the husband's testimony and the exhibits, the 

record does not reveal the deficiency the trial judge found in 

retracing the husband's separate property. Therefore, because 

the wife failed to prove the jointly titled property was a gift, 

we reverse that decision and we remand the case to the trial 

court. After further factual findings, the trial judge shall 

determine to what extent the husband can retrace his inheritance 

by a preponderance of the evidence. 

2. Fidelity accounts

 The trial judge identified three Fidelity Accounts (Contra, 

Spartan, and Puritan) and classified all three as marital 

property. The husband testified that he inherited $8,084.78 in 

Fidelity Puritan stock from his grandmother, and therefore, a 

part of the Puritan account represented separate property. The 

wife admitted that the husband had inherited Fidelity Puritan 

stock but testified that the account was closed in 1991. She 

also testified that three years later the husband opened a second 
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Fidelity Puritan account with a different account number. The 

exhibits confirm that the accounts were closed and opened. The 

husband offered no evidence to explain what happened to the money 

inherited from his grandmother once he closed the first Puritan 

Account. 

 Therefore, the husband did not trace by a preponderance of 

the evidence the separate funds withdrawn from the account in 

1991. Thus, the trial judge properly found the second Puritan 

account contained marital property only. The account was opened 

during the marriage using income that was not shown to be 

separate property. Code § 20-107.3(A)(2)(iii). The evidence 

also failed to prove that the Spartan and Contra funds were the 

husband's separate property. 

3. Rosecroft Place

 The wife testified that she borrowed $45,000 to make the 

downpayment on her post-marital residence, Rosecroft Place, and 

made all of the mortgage payments with her separate earnings. 

Only the $3,000 earnest money deposit represented marital 

property. Although the husband contested the wife's claims, "in 

reviewing an equitable distribution award, we rely heavily on the 

trial judge's discretion in weighing the particular circumstances 

of each case." Aster v. Gross, 7 Va. App. 1, 8, 371 S.E.2d 833, 

837 (1988). No evidence supports the husband's contention that 

the trial judge abused his discretion in designating the 

property, except for the $3,000 earnest money deposit, as the 
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wife's separate property. 

4. Credit union accounts, Shearson-Lehman accounts, 

 and bank accounts.

 (a) The husband contends on appeal that the trial judge 

erred in finding that three of the four Northwest Federal Credit 

Union accounts are the separate property of the wife. During his 

testimony at trial, however, the husband conceded that, "I think 

after three years of separation, you have to draw a line 

somewhere. I think at this point [the credit union accounts] are 

all hers." We will not entertain an appeal of an issue conceded 

by the party during trial. Kelly v. Commonwealth, 8 Va. App. 

359, 367, 382 S.E.2d 270, 274 (1989). 

 (b) At trial the husband explained the two different 

Shearson Lehman investment accounts. The first account, known as 

the "12" account, was titled jointly and was marital property. 

The husband opened the second account, known as the "10" account, 

in his name only after the couple's separation. He argues that 

the "10" account is his separate property. 

 Although the husband argues that the wife and the trial 

judge confused the two accounts, the trial judge recognized that 

two Shearson Lehman accounts existed. The evidence at trial, 

including the wife's testimony, proved that the husband opened 

the "10" account immediately after closing a number of joint 

accounts. The wife's testimony, the husband's testimony, and the 

documents provide a sufficient basis upon which to prove that the 
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husband opened the "10" account with funds from other joint 

accounts. The trial judge did not err in finding that the "10" 

account was funded from marital property and, thus, was marital 

property. 

 (c) We next address three bank checking accounts in the 

husband's name, identified as the personal, household and office 

accounts. Both parties agree that the office account constitutes 

the separate property of the husband. The husband contends that 

the trial judge erred in classifying his personal and household 

accounts, opened after the separation, as marital property. 

 Even though the husband deposited $99,000 of marital funds 

into the household account, the record supports his testimony 

that he spent $105,548 on marital or joint expenses. The wife's 

claim apparently rests solely on the fact that the husband 

deposited marital assets into the fund. The record proved that 

any remaining funds in the account were deposited by the husband 

from his post-separation income. Accordingly, the trial judge 

erred in classifying the account as marital property. 

 After the separation the husband deposited $6,000 of his 

post-separation income into the couple's joint personal account 

in order to cover a number of outstanding checks. After those 

checks were paid, he closed the account and transferred the 

remaining balance, $4,842 to his separate checking account. All 

other deposits were post-separation earnings. Because the 

evidence proved that this account contained only post-separation 
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earnings, the trial judge erred in designating the account 

marital property. 

5. 1992 Mitsubishi

 The parties stipulated the then current value of the 

Mitsubishi to be $20,800. The purchase price was $32,090. The 

husband used $12,000 in marital assets (approximately 

thirty-seven percent of its purchase price) when he purchased the 

vehicle. In designating $12,000 of the stipulated value as 

marital property, the trial judge did not distribute pro rata the 

depreciation of the vehicle. No evidence proved that the marital 

portion of the vehicle represented more than thirty-seven percent 

of the current stipulated value. Thus, we reverse the trial 

judge's valuation and remand for an assessment of the wife's 

one-half interest in the marital portion of the vehicle. 

6. Investment accounts

 In dividing the Janus Fund, MFS Hi-Yield Bond Fund, and 

Shearson Lehman "12" account, the trial judge awarded the husband 

fifty-five percent of their value and the wife forty-five 

percent. The trial judge reached this decision upon his finding 

that the husband "has been the one to invest the time and effort 

into the investment program." The remaining investment accounts 

were divided equally between the husband and wife. 

 The husband contends that he should receive fifty-five 

percent of all of the investment funds because of the time and 

effort he expended in opening and maintaining the accounts. Upon 
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this record, we cannot find that the trial judge abused his 

discretion in apportioning the investment accounts. Artis, 4 Va. 

App. at 137, 354 S.E.2d at 815. 

7. The husband's non-monetary and financial contributions

 The evidence proved that the husband was responsible for the 

majority of the couple's income. His private dentistry practice 

and inheritances produced substantial income. However, the 

evidence also proved that the wife worked and produced 

significant income. During their marriage, the couple agreed to 

invest the husband's income and to pay their living expenses, 

except the mortgage, from the wife's income. 

 We find no merit in the husband's contention that the trial 

judge failed to consider his non-monetary contributions and his 

significant financial contributions. The trial judge found that 

"[b]oth parties have made significant contributions to the 

marriage both monetary and non-monetary." The record supports 

that finding. The record does not support the husband's claim 

that the trial judge abused his discretion. 

8. Credit for the pendente lite support

 The trial judge ordered the husband to pay the wife $22,000 

for her support during the divorce proceedings. The trial judge 

stated that the payment "shall be without prejudice as to the 

claims of either party." The husband contends that he should 

have been given credit for $11,000 in the final distribution of 

property. 
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 Although no specific mention was made of this money in the 

equitable distribution findings, the evidence proved that the 

husband withdrew the money from one of the joint accounts and the 

wife deposited the money into her savings account. The funds 

remaining in both accounts were treated as marital property. We 

cannot conclude solely from these facts that the trial judge 

abused his discretion in not specifically making an adjustment 

more favorable to the husband. 

9. Wife's pension plan

 The husband argues that the trial judge erred in not 

requiring the wife to designate the husband as the irrevocable 

beneficiary of the survivor benefit plan on the wife's pension. 

Under Code § 20-107.3(G)(2) the trial judge may order that a 

spouse be designated an irrevocable beneficiary of a survivor 

benefit plan. 

 In the divorce decree, the trial judge denied husband's 

request by stating that the husband "is entitled to Fifty (50%) 

percent of the marital share of her pension on an if[,] as[,] and 

when received basis." The trial judge has discretion in deciding 

whether to order the designation of the husband as an irrevocable 

beneficiary. No evidence supports a finding that the trial judge 

abused his discretion in refusing to order the wife to designate 

the husband as an irrevocable beneficiary. Id.

10. Attorney Fees

 "[A]n award of attorney's fees is discretionary with the 
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[trial judge] after considering the circumstances and equities of 

the entire case and is reviewable only for an abuse of 

discretion." Gamer v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 

618, 626 (1993). The trial judge awarded the wife $15,000 in 

attorney's fees. The husband urges us to award him attorney's 

fees because the wife refused to stipulate and the trial judge 

made numerous errors. The trial judge made no finding that the 

wife acted improperly in refusing to stipulate. We find no basis 

to conclude that the failure to stipulate was improper. 

Moreover, the trial judge's decisions are not a basis to 

determine an award. Accordingly, we find no error. 
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Conclusion

 For these reasons, we reverse the trial judge's ruling that 

the husband had the burden of proving no gift and that the 

evidence proved a gift. Therefore, we remand for reconsideration 

and findings whether the husband retraced his inheritance by a 

preponderance of the evidence. Upon further factual findings, 

the trial court shall distribute these interests to conform with 

Code § 20-107.3 and this opinion. 

 We also reverse the trial judge's finding that the household 

account and personal account were marital property, and we 

reverse the trial judge's valuation of the wife's interest in the 

1992 Mitsubishi. The trial judge shall order the equitable 

distribution of these assets to conform with this opinion. 

 Affirmed, in part, reversed,

in part, and remanded.