COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Overton 

Argued at Richmond, Virginia 

DOROTHY M. MOSES 

 MEMORANDUM OPINION* BY 

v. Record No. 1426-97-2 JUDGE NELSON T. OVERTON 

 MARCH 3, 1998 

WILLIAM J. MOSES 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Randall G. Johnson, Judge 

 Joseph E. Blackburn (White, Blackburn & 

Conte, P.C., on brief), for appellant. 

 Deanna D. Cook (Murray J. Janus; Bremner & 

Janus, on brief), for appellee. 

 Dorothy M. Moses (wife) appeals a decree granting her a 

divorce a vinculo matrimonii from William J. Moses (husband). 

She contends the trial court erred by: (1) ruling that an 

interest in certain realty was not a gift, (2) ordering her to 

reconvey that interest back to husband and (3) ordering 

prospective division of the payments on a promissory note found 

to be marital property. Husband cross-appeals the trial court's 

finding that the promissory note was marital property. Because 

the parties' arguments are without merit, we affirm. 

 Two properties form the basis for this appeal: 4338 

Chamberlayne Avenue (hereinafter "Chamberlayne") and 2908 

Idlewood Avenue (hereinafter "Idlewood"). The parties agree that 

disposition of these properties was governed by their pre-marital 

 

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

designated for publication. 
- 2 - 

agreement. The agreement provides inter alia that property held 

before the marriage and the proceeds of the sale or exchange of 

such property is separate property not subject to equitable 

distribution upon divorce. A schedule of these properties was 

attached to the agreement. Chamberlayne is listed on the 

schedule as husband's separate property. Idlewood is not listed 

because it was purchased during the marriage with proceeds of 

separate property. 

 The parties disposed of both Chamberlayne and Idlewood 

during the marriage. A life estate in Chamberlayne was sold with 

a reversionary interest in husband and wife retained. Idlewood 

was sold in fee simple in exchange for a promissory note secured 

by a Deed of Trust on the property. The note was payable to both 

parties jointly. 

 The trial court originally found that, under the terms of 

the agreement, the properties were separate because Chamberlayne 

predated the marriage and Idlewood was purchased with funds 

predating the marriage. However, because husband asserted in his 

Answer and Cross-Bill that wife "fraudulently coerced [husband] 

into giving her substantial gifts [and] interests in real 

estate," the trial court allowed wife to prove the properties 

were gifts and husband to prove they were made under fraud or 

coercion. 

 At the subsequent hearing, wife produced husband's answer to 

her interrogatory asking to what gifts he referred in his Answer 
- 3 - 

and Cross-Bill. In his answer, he stated that "one-half interest 

in a note from 2908 Idlewood Avenue" was such a gift. Because 

husband failed to show the gift was obtained under fraud or 

coercion, the trial court found the gift of Idlewood to be a 

modification of the agreement. Therefore, the trial court 

awarded her fifty percent of the payments on the Idlewood note, 

payable from the time of the divorce decree. Wife could not, 

however, show that Chamberlayne was a gift so it remained the 

separate property of husband. 

 Wife first contends that husband was bound by the statement 

in his pleadings that he gave wife "interests in real estate." 

She asserts that this statement is inconsistent with his later 

claim that Chamberlayne was not a gift. Therefore, under wife's 

argument, he would be estopped from taking that position. See

Burch v. Grace Street Building Corp., 168 Va. 329, 340, 191 S.E. 

672, 677 (1937). Her definition of the word "inconsistent" is an 

interesting one indeed. Husband's statement in his pleading was 

that he had made gifts of real estate. Wife interprets this to 

mean that all of his real estate was a gift. Yet husband did not 

plead that all of his real estate was a gift, only that some of 

it was. Therefore, his claim that Chamberlayne and Idlewood are 

among the realties which were not gifted is not inconsistent, and 

he was properly allowed to rebut wife's evidence on the matter. 

 Wife next asserts that the trial court erred when it placed 

the burden to prove a gift upon her. She notes that the parties 
- 4 - 

waived application of Code § 20-107.3 by the express terms of 

their agreement and, therefore, the burden of proving a gift is 

not on the donee, but the donor. See Theismann v. Theismann, 22 

Va. App. 557, 565 n.1, 471 S.E.2d 809, 813 n.1 (1996), aff'd on 

reh'g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996). However, 

she ignores the language of the rest of the agreement. The 

agreement clearly states that "property identified on the 

attached schedule is property acquired before by each respective 

party prior to the marriage and shall be deemed separate 

property." Chamberlayne is so identified. The agreement further 

provides that "each party shall remain the exclusive owner of his 

or her own separate property free from any claim or demand of the 

other in the event of . . . divorce." Therefore, under the 

agreement, the property was presumed to be separate unless wife 

could show that husband had given it to her as a gift. Husband's 

uncontradicted testimony was that he re-titled Chamberlayne as a 

form of estate planning in case he should die while the parties 

were still married. Because there is sufficient evidence to 

support the trial court's conclusion that Chamberlayne remained 

the separate property of husband, we affirm that ruling. See

Gamer v. Gamer, 16 Va. App. 335, 345, 429 S.E.2d 618, 625 (1993). 

 Wife next contends that the trial court did not have 

authority to order wife to deed her purported interest back to 

husband. We are faced with the rather novel problem presented 

where property has been determined to be separate, but it is 
- 5 - 

currently titled in the names of both parties. Where law creates 

a question, however, equity often answers it. 

 Code § 20-107.3(C) states that "the court shall have no 

authority to order the division or transfer of separate 

property." Therefore, the order of the trial court directing 

wife to transfer her reversionary interest back to husband flows 

not from the statute. However, courts can order property 

transferred in equity "where [property] has been fairly and 

properly acquired, but it is contrary to the principles of equity 

that it should be retained, at least for the acquirer's own 

benefit." See Woolley v. Woolley, 3 Va. App. 337, 342, 349 

S.E.2d 442, 425 (1986) (citing Leonard v. Counts, 221 Va. 58, 

589, 272 S.E.2d 190, 195 (1980)). The issue before us now is 

just such a case. The parties, through their agreement, did not 

intend for wife to retain legal title to the property. Yet the 

court could not have transferred the property directly through 

its own order. Therefore, when the trial court ordered wife to 

"sign whatever documents are necessary to convey any reversionary 

interest she may have of record" it did not do so under Code 

§ 20-107.3, but through its equity power. If in the future wife 

fails to comply with the court's order, it may impose a 

constructive trust, order a commissioner in chancery to sign the 

deed or take whatever steps may be necessary in equity to secure 

husband's interest in Chamberlayne. See Gifford v. Dennis, 230 

Va. 193, 335 S.E.2d 371 (1985). 
- 6 - 

 Wife's final contention is that the trial court erred by 

ordering husband to begin paying wife her share of the Idlewood 

promissory note payments only from the date of the divorce decree 

forward. "Fashioning an . . . 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). The trial court found the payments preceding 

entry of the order had gone to expenses of the former marital 

estate. It, therefore, chose to discount them and make payments 

prospective only. Because we cannot say that the trial court 

abused its discretion, we affirm its decision. 

 Husband's only contention on appeal is that the trial court 

erred when it found Idlewood to have been a gift. The trial 

court noted in its opinion that husband admitted in his answer to 

interrogatories that he had given Idlewood to wife as a gift. It 

similarly found that husband had failed to prove that the gift 

was procured by fraud or coercion due to the fact that husband 

did not present any evidence whatsoever on that issue. It, 

therefore, found the gift valid and ordered husband to pay wife 

her share of the proceeds of the note. Because the court did not 

abuse its discretion, we affirm. Id.

 For the forgoing reasons, the decision of the trial court is 

affirmed. 

 Affirmed.