COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Clements 

Argued at Alexandria, Virginia 

GREGORY R. BANKS 

 MEMORANDUM OPINION* BY 

v. Record No. 0414-00-4 JUDGE JEAN HARRISON CLEMENTS 

 JULY 31, 2001 

SHARON E. BANKS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Leslie M. Alden, Judge 

 John M. DiJoseph (Ted Kavrukov; Kavrukov & 

DiJoseph, L.L.P., on briefs), for appellant. 

 Edward V. O'Connor, Jr. (Byrd Mische P.C., on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Gregory R. Banks (husband) appeals from the final decree of 

divorce entered by the trial court on January 28, 2000. In that 

decree, the trial court made equitable distribution and spousal 

support awards to Sharon E. Banks (wife). On appeal, husband 

contends the trial court erred in (1) classifying the business as 

marital property, (2) denying him credit for the $50,000 in 

separate funds used to purchase stocks in a marital account, (3) 

denying him credit for his post-separation mortgage payments on 

the marital home, (4) awarding wife $2,600 per month in spousal 

support and making the award permanent, and (5) awarding wife 
attorney's fees. For the reasons that follow, we affirm the 

judgment of the trial court. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

proceedings as necessary to the parties' understanding of the 

disposition of this appeal. On appeal, we view the evidence and 

all reasonable inferences therefrom in the light most favorable to 

wife, the prevailing party below. See McGuire v. McGuire, 10 Va. 

App. 248, 250, 391 S.E.2d 344, 346 (1990). 

I. EQUITABLE DISTRIBUTION 

 "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). Furthermore, we will not disturb an 

award "unless it appears from the record that the [trial court] 

. . . has not considered or has misapplied one of the statutory 

mandates, or that the evidence fails to support the finding of 

fact underlying resolution of the conflict in the equities." 

Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987). 

A. Classification of the Business as Marital Property 

 Husband first contends the trial court erred in ruling that 

the business, Bio-Prosthetic Orthotic Laboratory, Inc., which 

was created by husband prior to the marriage, was marital 

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property. Husband argues that wife's routine, insignificant, 

non-managerial contributions to the business "did not add to the 

intrinsic value of [the business]." According to husband, his 

"personal, individual artistic skill" was the "essence" of the 

business. 

 In fashioning an equitable distribution award, the trial 

court is required to consider the statutory factors set forth in 

Code § 20-107.3(E). See Marion v. Marion, 11 Va. App. 659, 665, 

401 S.E.2d 432, 436 (1991). Code § 20-107.3(E)(1) provides, in 

pertinent part: 

The increase in value of separate property 

during the marriage is separate property, 

unless . . . the personal efforts of either 

party have contributed to such increases and 

then only to the extent of the increases in 

value attributable to such contribution. 

The personal efforts of either party must be 

significant and result in substantial 

appreciation of the separate property if any 

increase in value attributable thereto is to 

be considered marital property. 

* * * * * * * 

"Personal effort" of a party shall be deemed 

labor, effort, inventiveness, physical or 

intellectual skill, creativity, or 

managerial, promotional or marketing 

activity applied directly to the separate 

property of either party. 

 The trial court found that the business was marital 

property 

based upon the evidence presented that 

shortly after the marriage began, the 

business had a negative value and that, from 

that time on, both parties worked and 

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contributed to the building and increasing 

the value of the business, and that at the 

time that [wife] began contributing to the 

business, it otherwise would have fallen 

apart, and that she performed office work, 

bookkeeping, and managerial work, and that 

she made substantial efforts which 

contributed to the increase and the value of 

the business over the years. 

 The evidence amply supports the trial court's finding. The 

record discloses that the parties were married in 1984. Husband 

established the business prior to the marriage; however, in 

1985, shortly after the birth of their first child, the parties 

learned during an extended leave of absence by the business' 

secretary that the bookkeeping and other business records were 

in "total chaos." The parties also learned at the time, when 

contacted by the IRS and other creditors, that the business, 

with few assets of any value, was over $50,000 in debt. 

 The parties had to take out a personal loan for $50,000 

against their house and the business to cover the debt. 

Moreover, wife, who originally had intended, with husband's 

consent and encouragement, to be strictly a full-time mother, 

took over the administration of the business. She set up a home 

office where she reviewed and organized the business' 

bookkeeping records. She then devised and implemented a new 

system to coordinate the business' billing and manufacturing 

procedures. She also handled the business' banking, managed its 

payroll and patient billing, and established a list to keep 

track of the delivery of ordered supplies. She additionally 

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developed new patient forms, maintained and improved the office, 

initiated and oversaw activities to improve office morale, 

processed the mail, ordered supplies, met with patients, worked 

with the business' attorney and accountant, and performed the 

responsibilities of absent employees. 

 In 1989, the business, having recovered financially and 

"really grown," expanded into a new office. Wife set up the new 

office and continued to supervise the administration of the 

business. She acted in that capacity until husband fired her in 

1998 after she filed for divorce. In the years of wife's 

service, the business flourished and afforded the parties a 

sizeable income. Clearly, while husband's talents may have been 

the "essence" of the business, wife's considerable 

administrative and organizational skills and efforts salvaged 

the business when it was in debt and disorder and caused it to 

increase in value. 

 We hold, therefore, that the trial court did not err in 

concluding that the entire value of the business was marital 

property on the basis that the business had a negative value 

when wife began contributing to it and wife's significant 

personal efforts applied directly to the business contributed to 

the substantial appreciation of the business. 

B. Credit for the Sale of Separate Property 

 Husband next contends the trial court erroneously 

classified the Paine Webber Resource Management Account as 

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entirely marital property. He argues that he was entitled to 

receive as his separate property that percentage of the value of 

the account corresponding to the $50,000 in his separate funds 

the parties used, along with marital funds, to purchase the 

securities in that account. 

 The trial court found that the entirety of the Paine Webber 

Resource Management Account was marital property because 

husband's separate funds were commingled with marital funds and 

transmuted to marital property and were not retraced by a 

preponderance of the evidence. 

 Code § 20-107.3(A)(3)(e) provides that, 

[w]hen marital property and separate 

property are commingled into newly acquired 

property resulting in the loss of identity 

of the contributing properties, the 

commingled property shall be deemed 

transmuted to marital property. However, to 

the extent the contributed property is 

retraceable by a preponderance of the 

evidence and was not a gift, the contributed 

property shall retain its original 

classification. 

 We have explained the requirements of tracing relative to 

commingled property under Code § 20-107.3(A)(3)(e) as follows: 

 In order to trace the separate portion 

of hybrid property, a party must prove that 

the claimed separate portion is identifiably 

derived from a separate asset. This process 

involves two steps: a party must (1) 

establish the identity of a portion of 

hybrid property and (2) directly trace that 

portion to a separate asset. 

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Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494 S.E.2d 135, 141 

(1997) (citing Code § 20-107.3(A)(d)-(f)). 

 Hence, 

[i]f . . . separate property is . . . 

contributed to the acquisition of new 

property, . . . and suffers a "loss of 

identity," the commingled separate property 

is transmuted to marital property. In other 

words, if a party "chooses to commingle 

marital and non-marital funds to the point 

that direct tracing is impossible," the 

claimed separate property loses its separate 

status. Even if a party can prove that some 

part of an asset is separate, if the court 

cannot determine the separate amount, the 

"unknown amount contributed from the 

separate source transmutes by commingling 

and becomes marital property." 

Id. at 208-09, 494 S.E.2d at 141 (citations omitted). "The 

party claiming a separate interest in transmuted property bears 

the burden of proving retraceability." von Raab v. von Raab, 26 

Va. App. 239, 248, 494 S.E.2d 156, 160 (1997). 

 Assuming without deciding that husband's $50,000 from the 

sale of the house he purchased prior to the marriage was 

separate property, we hold that the trial court did not err in 

finding that husband failed to present sufficient evidence to 

retrace his separate property. Viewed in the light most 

favorable to wife, the evidence neither directly traced the 

claimed separate portion of the hybrid property to a separate 

asset nor established the identity of the claimed separate 

portion. 

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 While it is incontroverted that husband contributed the 

proceeds of the sale of his separate house to the purchase of 

$300,000 worth of jointly owned stocks,1 there is no evidence 

directly connecting the $50,000 to the purchase of the stocks in 

the parties' Paine Webber Resource Management Account. Neither 

party testified that any of the stocks purchased with the 

separate $50,000 were in that account. Nor did either party 

testify that any, much less all, of the $300,000 worth of stocks 

purchased by the parties were in that account. Likewise, the 

sole exhibit in the record relating to the Paine Webber Resource 

Management Account, an account statement from December 1999, 

shows that all of the 12,628 shares of stocks in the account 

were purchased between the months of March 1996 and October 

1997, inclusive, at a total cost of approximately $220,000, not 

$300,000. Thus, the record discloses no direct tracing of the 

claimed separate portion of the commingled assets in the Paine 

Webber Resource Management Account to husband's separate 

$50,000. 

 Furthermore, even if some part of the Paine Webber Resource 

Management Account were traceable to a separate asset, the 

identity of the separate part cannot be accurately established. 

Husband provided no evidence that allowed the trial court to 

 1

 Wife conceded at trial that the proceeds from the sale of 

the house husband bought prior to the marriage were a part of 

the $300,000 the parties spent to purchase stocks. 

 

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identify that portion of the account that corresponds to 

husband's separate $50,000 contribution. 

 For example, husband produced no evidence indicating when 

the parties used the $50,000 to purchase a portion of the 

$300,000 worth of stocks. As noted above, the stocks in the 

Paine Webber Resource Management Account were purchased on 

different dates over at least an eighteen-month period. 

Obviously, the ratio between the value of the respective marital 

and separate contributions to the hybrid account would vary 

depending on when the contribution of the separate property was 

made. For instance, assuming a healthy stock market, husband's 

share would likely be less than the one sixth he suggests he is 

entitled to if the proceeds from the sale of husband's separate 

house were not available to purchase stocks until October 1997, 

eighteen months after a portion of the $250,000 marital 

contribution had been made. Other factors, including the actual 

stocks purchased with the $50,000, the respective rates of 

growth of the stocks in the account, and the amount and nature 

of any withdrawals from the account might also need to be 

considered in establishing the identity of the separate portion 

of the hybrid property. No such evidence was presented here, 

however. 

 Accordingly, the trial court did not err in finding that 

husband failed to meet his burden of proving retraceability of 

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the claimed separate portion of the Paine Webber Resource 

Management Account. 

C. Credit for Post-Separation Mortgage Payments 

 Husband also contends that the trial court erred in not 

awarding him credit for his post-separation mortgage payments on 

the marital home. We disagree. 

 We have stated that, 

[a]lthough the separate contribution of one 

party to the acquisition, care, and 

maintenance of marital property is a factor 

that the trial court must consider when 

making its award of equitable distribution, 

Code § 20-107.3 does not mandate that the 

trial court award a corresponding 

dollar-for-dollar credit for such 

contributions. 

von Raab, 26 Va. App. at 249-50, 494 S.E.2d at 161. Here, the 

record indicates the trial court considered husband's 

post-separation mortgage payments. The record also discloses 

that husband was the primary wage earner during the marriage and 

retained exclusive use of the property after the parties 

separated. The continued mortgage payments on the marital home 

benefited both parties. Furthermore, husband presented no 

evidence showing that the funds used to make the post-separation 

mortgage payments were his separate property. Likewise, husband 

provided no evidence establishing the amount by which the equity 

in the marital home increased due to the post-separation 

payments. Under these circumstances, we find no abuse of 

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discretion in the trial court's decision not to award husband 

credit for his post-separation mortgage payments. 

II. SPOUSAL SUPPORT 

 Husband contends the trial court erred in awarding wife 

$2,600 per month in spousal support and in making the support 

permanent. He argues the amount of the award is excessive and 

unwarranted because the trial court failed to make express 

findings of facts and to discuss how every factor in Code 

§ 20-107.1(E) upon which the court relied in making the award 

supported the award, as required by Code § 20-107.1(F). He 

further argues that, given husband's poor health and plan to 

retire soon, the trial court erred in making the spousal support 

award "permanent" rather than for a defined duration. 

 These arguments were not raised at trial. In his 

exceptions to the trial court's final decree of divorce, husband 

objected to the court's spousal support award to wife solely on 

the grounds that the award was "unreasonable and would require 

that [husband] deplete his award of assets in order to pay 

spousal support." 

 Pursuant to Rule 5A:18, we will not consider on appeal an 

argument that was not presented to the trial court. Ohree v. 

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). 

Furthermore, "Rule 5A:18 requires that objections to a trial 

court's action or ruling be made with specificity in order to 

preserve an issue for appeal." Collado v. Commonwealth, 33 Va. 

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App. 356, 367, 533 S.E.2d 625, 631 (2000). The purpose of Rule 

5A:18 is to ensure that the trial court and opposing party are 

given the opportunity to intelligently address, examine, and 

resolve issues in the trial court, thus avoiding unnecessary 

appeals and reversals. Kaufman v. Kaufman, 12 Va. App. 1200, 

1204, 409 S.E.2d 1, 3-4 (1991); Lee v. Lee, 12 Va. App. 512, 

514, 404 S.E.2d 736, 737 (1991) (en banc). 

 Accordingly, Rule 5A:18 bars our consideration of this 

assignment of error on appeal. Moreover, we find no reason in 

the record to invoke the "good cause" or "ends of justice" 

exceptions to Rule 5A:18. 

III. ATTORNEY'S FEES 

 Husband lastly contends the trial court erred in awarding 

attorney's fees to wife. He argues that, in light of wife's 

having obtained $30,000 from marital assets prior to trial for her 

attorney's fees and considering her large equitable distribution 

award, she had no need for an award of attorney's fees. Moreover, 

husband argues, his due process rights were violated when the 

trial court awarded wife's attorney's fees based on the unsworn 

written statement of wife's counsel. According to husband, such a 

process did not allow him the "opportunity to contest his 

adversary's claim." 

 These arguments, like husband's spousal support arguments 

discussed above, were not raised before the trial court. 

Husband's sole objection to the final decree of divorce regarding 

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the award made therein of attorney's fees to wife reads: 

"[Husband] also objects to the award of attorney's fees." 

 Thus, husband is barred from raising these arguments for 

the first time on appeal. See Rule 5A:18; Collado, 33 Va. App. 

at 367, 533 S.E.2d at 631; Ohree, 26 Va. App. at 308, 494 S.E.2d 

at 488; see also Cottrell v. Commonwealth, 12 Va. App. 570, 574, 

405 S.E.2d 438, 441 (1991) (holding that Rule 5A:18 bars 

consideration of even constitutional claims not raised in the 

trial court). Furthermore, the record reflects no reason to 

invoke the "good cause" or "ends of justice" exceptions to Rule 

5A:18. 

 For these reasons, we affirm the judgment of the trial 

court. 

 Affirmed. 

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