COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

JACOB E. BAER, JR. 

v. Record No. 2278-94-1 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

ANN COURTNEY ANDREWS BAER 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 Donald K. Butler (Player B. Michelsen; 

Morano, Colan and Butler, on brief), for 

appellant. 

 John F. Rixey (Rixey and Rixey, on brief), for 

appellee. 

 Jacob E. Baer, Jr. (husband) appeals the decision of the 

circuit court granting Ann Courtney Andrews Baer (wife) an 

equitable distribution award and deciding other issues. 

 Husband raises the following issues on appeal: 

 (1) whether the trial court erred in finding 

that husband's payment of the $185,000 

Samarkand downpayment was a gift to the 

marital estate; 

 (2) whether the trial court erred in 

determining that marital equity arose from 

the purchase and sale of Samarkand; 

 

 (3) whether the trial court erred in 

determining the amount still due on a loan by 

wife to husband; 

 (4) whether the trial court erred in 

classifying the runabout boat as marital 

property; 

 (5) whether the trial court erred in 

 

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

designated for publication. 
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granting wife an equitable distribution 

award; and 

 (6) whether the trial court erred in 

awarding attorney's fees to wife, and denying 

attorney's fees to husband. 

 Wife raises some additional issues in her brief: 

 (1) whether the trial court erred in failing 

to award wife a divorce on the grounds of 

cruelty and constructive desertion; 

 (2) whether the trial court erred in its 

equitable distribution award; 

 (3) whether the trial court erred in its 

spousal support award; and 

 (4) whether the trial court erred in 

requiring wife to pay attorney fees and 

costs. 

 The commissioner in chancery received evidence on the issues 

of equitable distribution, spousal support, and the grounds for 

divorce. The trial court conducted an additional inquiry into 

the reasonableness of wife's attorney fees. 

I. Equitable Distribution Award

 Both parties challenge the equitable distribution award. 

Husband challenges the commissioner's findings that Samarkand, 

which was purchased during the marriage by husband as his 

separate property, was marital property. Alternatively, husband 

argues that even if Samarkand is marital property, there was no 

equity to be divided. Wife contends that the commissioner 

undervalued the marital equity and failed to classify additional 

assets as marital property. 

 "Fashioning an equitable distribution award lies within the 
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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). 

 "[T]he chancellor is necessarily vested with 

broad discretion in the discharge of the 

duties . . . [Code § 20-107.3] imposes upon 

him. Unless it appears from the record that 

the chancellor has abused his discretion, 

that he has not considered or has misapplied 

one of the statutory mandates, or that the 

evidence fails to support the findings of 

fact underlying his resolution of the 

conflict in the equities, the chancellor's 

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). 

 We find that the evidence fails to support the trial court's 

conclusion that Samarkand was marital property. The deed 

conveyed Samarkand to husband as "his sole and separate estate, 

free from the debts and controls of marital rights." However, 

the classification of Samarkand as separate or marital property 

"is determined by the statutory definition and is not determined 

by legal title." Garland v. Garland, 12 Va. App. 192, 195, 403 

S.E.2d 4, 6 (1991). Under the applicable statute, separate 

property includes "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." Code 

§ 20-107.3(A) (1) (iii) (1990). 
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 The record demonstrates that the parties came to the 

marriage with separate assets and took care to segregate and 

maintain separate property throughout their marriage. Consistent 

with this arrangement, Samarkand was treated by the parties as 

husband's separate property. Husband's separate funds were used 

for the down payment and husband was solely liable for the 

construction financing. Husband asked for, and received, a loan 

from wife to cover his expenses related to the renovation of 

Samarkand. Wife admitted that husband had wanted to purchase a 

home in Mathews County for years before the parties were married. 

She also admitted she made no financial contributions to either 

the acquisition or renovation of Samarkand, with the exception of 

the $17,000 loan. 

 Therefore, we reverse the finding of the trial court that 

Samarkand was marital property subject to equitable distribution. 

 Accordingly, as Samarkand was husband's separate property, wife 

was not entitled to an award of any of its equity. 

 Wife argues that "The Barn" and Lotus Corporation were 

transmuted into marital property because there was a commingling 

of marital assets with husband's separate assets. The trial 

court rejected wife's contentions, finding that the evidence 

showed no substantial contributions to either the property or the 

business. These two assets were husband's separate property 

before the marriage. Wife failed to prove that these assets had 

lost their identity as husband's separate assets. See Code § 20-
 5 

107.3(A)(1)(i) and (3)(d). Therefore, credible evidence 

supported the trial court's determination that these assets 

remained husband's separate property. 

 The commissioner did not believe husband's argument that he 

received only $11,500 in loans from wife and that he repaid this 

loan throughout the fall of 1990. While husband asserted that he 

expected wife to pay him $5,500 for the anniversary trip the 

parties gave to wife's parents, the testimony established that 

husband rejected the parents' offers of payment. Moreover, 

husband's credibility was hurt by his post-negotiation addition 

of "loan repayment" on checks sent to wife as voluntary support 

payments. The commissioner found wife's version to be more 

credible, and we agree that credible evidence supports the 

conclusion that husband owed wife $11,000 on her loans totaling 

$17,000. 

 Credible evidence also supports the trial court's finding 

that a runabout boat worth $1,500 was marital property. The boat 

was purchased during the marriage. In the absence of other 

evidence, the commissioner found that the presumption that the 

boat was marital property controlled. Therefore, we affirm the 

trial court's finding as to the runabout boat. 

 In summary, we reverse the portion of the equitable 

distribution award to wife which was based upon twenty-five 

percent of the equity in Samarkand. We affirm the trial court's 

award of $11,000 for the loan repayment to wife and $750 as 
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wife's share of the value of the runabout boat. 

II. Spousal Support

 Both parties challenge the amount of spousal support awarded 

by the court. "The determination whether a spouse is entitled to 

support, and if so how much, is a matter within the discretion of 

the court and will not be disturbed on appeal unless it is clear 

that some injustice has been done." Dukelow v. Dukelow, 2 Va. 

App. 21, 27, 341 S.E.2d 208, 211 (1986) (citations omitted). 

 Wife was employed prior to the marriage, and expressed an 

interest in continuing employment as an accountant. However, as 

the commissioner noted, the lifestyle the parties enjoyed 

throughout their marriage was not compatible with regular 

employment and wife's lack of employment was in accordance with 

husband's wishes. 

 Nonetheless, wife left the five-year marriage with the same 

financial resources with which she entered the marriage. As 

noted by the commissioner, wife's dependency upon the parties' 

high standard of living during the marriage was modified by the 

short duration of the parties' marriage. See Code § 20-107.1(3) 

and (4). The court's denial of wife's request for $6,000 a month 

in spousal support, including $12,000 for annual travel and 

clothing expenses, cannot be said to be unjust. Wife has the 

training and experience to support herself. 

 Wife also argues that the trial court's award amounted to a 

set amount of support for a fixed period of time, contrary to the 
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requirement that support be based on circumstances in existence 

at the time of the awarded. It is clear that the trial court 

awarded wife a lump sum amount, payable over time. "The court, 

in its discretion, may decree that maintenance and support of a 

spouse be made in periodic payments, or in a lump sum award, or 

both." Code § 20-107.1. Therefore, wife's argument is without 

merit. 

 We cannot say the court abused its discretion in awarding 

wife $10,000 as a lump sum spousal support, payable at the rate 

of $1,500 per month, plus interest. 

III. Grounds for Divorce

 The commissioner found, and the trial court confirmed, that 

there was insufficient evidence to support wife's allegations of 

cruelty and constructive desertion as the grounds for divorce. 

While there was evidence of some physical violence, wife admitted 

that she did not form the intent to end the marriage until 

husband walked out of marital counseling. The parties testified 

that they continued to "date" and be intimate for several months 

after wife moved out of the marital home. Therefore, there was 

insufficient evidence to find that any incidents of physical 

confrontation were the basis for the divorce. 

 Moreover, even where dual grounds for divorce exist, the 

trial judge "can use his sound discretion to select the 

appropriate grounds upon which he will grant the divorce." 

Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d 658, 663 
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(1986). The trial judge is not "compelled 'to give precedence to 

one proven ground of divorce over another.'" Williams v. 

Williams, 14 Va. App. 217, 220, 415 S.E.2d 252, 253 (1992) 

(citation omitted). The evidence established that the parties 

had lived separate and apart for more than one year. Therefore, 

the trial court's decision was supported by substantial, credible 

and competent evidence. We cannot say the trial court abused its 

discretion in granting a divorce on that ground. 

IV. Attorney's Fees and Costs

 An award of attorney's fees is a matter submitted to the 

sound discretion of the trial court and is reviewable on appeal 

only for an abuse of discretion. Graves v. Graves, 4 Va. App. 

326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award 

of counsel fees is reasonableness under all the circumstances. 

McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 

(1985). 

 The trial court disallowed $8,850 in wife's attorney's fees 

after receiving evidence that counsel pursued certain arguments 

which were not reasonable after a July 1990 statutory change. 

The court retained the commissioner's recommendation that husband 

pay eighty percent of wife's fees. The parties were ordered to 

split costs evenly. Based on the number of issues involved and 

the respective abilities of the parties to pay, we cannot say 

that the award was unreasonable or that the trial judge abused 

his discretion in making the award. 
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 The trial court's award of equitable distribution of 

Samarkand is reversed and all other issues raised on appeal are 

affirmed. Accordingly, this cause is remanded for the entry of a 

decree consistent herewith. 

 Reversed in part;

affirmed in part.