COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judge Annunz iata and Senior Judge Willis Argued at Alexandria, Virginia

MICHAEL A. PLUNKETT MEMORANDUM OPINION * BY v. Record No. 1525-03-4 JUDGE JERE M. H. WILLIS, JR. FEBRUARY 17, 2004 SHAZA A. PLUNKETT

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David T. Stitt, Judge Drake T. Brodin for appellant. Sharon Voyles Filipour (Kinsey, Lynch & Filipour, on briefs), for appellee.
On appeal from a revised final decree of divorce entered May 29, 2003, Michael A. Plunkett (husband) contends the tr ial court erred 1) in determin ing the values of the marital equity and his separate equity in nine parcels of real estate titled solely in his name, 2) in finding that he failed to trace his separate funds in thos e properties, 3) in failing to award him a share of Shaza A. Plunkett’s (wife) defined pension, and 4) in granting wife a reservation to request spousal support and maintenance. Wife contends that the trial court erre d in refusing to award her attorney’s fees. We affirm the judgment of the trial court. BACKGROUND On appeal, we view the evidence and all reas onable inferences in the light most favorable to appellee as the party prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990).

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - The parties were married in April, 1989 and separated in 2001. At the time of the marriage, husband owned seven parcels of real estate, includin g the house the couple o ccupied as th eir marital residence. He rented out the other properties. During the marriage, husband purchased two additional rental properties. Al l nine properties were titled solely in his name. From the beginning of the marriage, the parties comm ingled their incomes into join t bank accounts, which included wife’s earnings, husband’s salary, and the proceeds from the rentalproperties. Husband maintained the accounts and from them paid marital expenses, serv iced the mortgages on the nine properties, and paid other expenses relating to those properties. ANALYSIS

I. and II. Husband contends that the trial court erred in determining the values of the properties and in finding he failed to trace his separate funds into those properties. Because these issues are interrelated and interdependent, we will address them together. A decision regarding equitable distribution rests within the sound discretion of the trial court and will not be disturbed unless it is plai nly wrong or without evid ence to support it. See McDavid v. McDavid , 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing Srinivasan v. Srinivasan , 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)). “Unless it appears from the record that the trial judge has not considered or has misapplied one of the statutory mandates, this Court will not reverse on appeal.” Ellington v. Ellington , 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989). Pursuant to the provisions of Code § 20-107.3( A)(3), property may be classified as part marital and part separate, or “hybrid” prope rty. In pertinent pa rt, Code § 20-107.3(A)(1) provides that “[s]eparate property is . . . all property acquire d during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party . . . .”- 3 - When marital property and separa te property are commingled by contributing one category of property to another, resulting in the loss of identity of the contributed property, the classification of the contributed property shall be transmuted to the category of property receiving the contribution. However, to the extent the contributed property is retraceab le by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification. Code § 20-107.3(A)(3)(d). “[T]he 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). “This process involves two steps: a party must first (1) es tablish the identity of a portion of hybrid property and (2) directly trace that portion to a separate asset.” Rahbaran v. Rahbaran, 26 Va. App. 195, 208, 494 S.E.2d 135, 141 (1997). Husband acknowledges that the nine properties are hybrid and that he bore the burden of tracing any contributions that he claimed were his separate funds. Husband purchased seven of the properties prio r to the parties’ marriage. His equities at that time were separate. However, he maintain ed the properties, including paying the mortgages, taxes, and insurance, from marital accounts. T hus, he commingled marital funds with separate property. Consequently, the properties were acquired in part with marital funds. “The ‘acquisition’ of property refers to the process of purchasing and paying for property.” Moran v. Moran , 29 Va. App. 408, 413, 512 S.E.2d 834, 836 (1999).

Husband correctly notes that the “tracing of the separate portion of hybrid property does not require the segregation of the separate portion.” Rahbaran , 26 Va. App. at 207, 494 S.E.2d at 141. However, “[e]ven if a party can prove that so me 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 (citation omitted). The funds in the bank a ccounts were hopelessly commingled. Husband- 4 - deposited funds from the rental properties into the same accounts in which he and wife deposited their earnings. He paid expenses on the prope rties from the same accounts. He acknowledged that in some years one property would have expens es that exceeded the to tal of that property’s rental income. At those times, he simply re sorted to “internal” accounting methods, claiming that he used “excess” income from another prope rty to pay those expenses. The resulting jumble supports the trial court’s findi ng that husband failed to record and trace the separate funds convincingly. Husband presented the trial court with a copi ous and confused array of alleged records relating to rental proceeds, deposits, refinanc ing, mortgage payments, and sundry costs and expenses, which he asserted re lated to the subject properties. However, the conclusions he sought to have drawn from this documentary arra y varied with each pres entation, and the figures he proposed on appeal were different from those he proposed to the trial court. This confusion renders his arguments unpersuasive and supports the trial court’s conclusion that he failed to carry his burden of proof. The trial court’s dete rmination of the marital values in the several properties fell within the evidence before it and thus is supported by that evidence. We find no error in the court’s conclusions. III. Husband contends the trial cour t abused its discretion in fa iling to award him a share of wife’s defined pension earned duringthe marriage. He asserts only that “the trial court offer[ed] no explanation to [sic] the denial of the division” of the asset and that we shou ld therefore remand this issue to the court for faili ng to “provide this [C]ourt with the necessary information to insure [his] evidence was properly considered.” However, husband asked the court to award wife one hundred percent of her defined pension. At no time did he request the court award him a portion of wife’s pension. “Husband- 5 - will not be permitted to approbate and reprobate, ascribing error to an act by the trial court that comported with his representations.” As gari v. Asgari, 33 Va. App. 393, 403, 533 S.E.2d 643, 648 (2000). Therefore, we n eed not address this issue. IV. Husband contends the court erred in granting wife a reservation to request, at a future time, an award of spousal support. He argues that “[a] review of the tr anscript does not support the representation that a request for a reservation of spousal support was submitted at trial.” However, at trial, wife’s c ounsel stated, “I’d like to rese rve the right to ask for spousal support . . . .” The trial court ruled this language was “clearly a reservation.” We agree and find no error in this ruling. Husband also alleges the trial court erre d in failing to make written findings or conclusions as required by Code § 20-107.1(F) to justif y reserving spousal support. Husband did not make this argument to the trial court. Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . .” Accordingly, we will not address this issue. V. Wife argues the trial court erred in refusing to award her attorney’s fees. “An award of attorney fees is discretionary with the court 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 key to a proper award of counsel fees is reasonableness under all of the circumstances re vealed by the record.” Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 631 (1989).- 6 - Upon review of the record in this case, we cannot say thatthe trial court abused its discretion in refusing to award attorneys’ fees. The judgment of the trial court is affirmed. Affirmed

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