COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Agee 

Argued at Salem, Virginia 

ROBERT CHARLES HOLDEN 

 OPINION BY 

v. Record No. 1815-00-3 JUDGE G. STEVEN AGEE 

 APRIL 24, 2001 

JENA TAETZ HOLDEN 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Diane McQ. Strickland, Judge 

 Charles B. Phillips (Phillips, Swanson & 

Phillips, on brief), for appellant. 

 Frank K. Friedman (John P. Grove; Woods, 

Rogers & Hazlegrove, P.L.C., on brief), for 

appellee. 

 Robert Charles Holden (husband) appeals a final order of 

the Roanoke County Circuit Court regarding the equitable 

distribution of property and the award of spousal support. This 

order came partly as a result of our remand in Holden v. Holden, 

31 Va. App. 24, 520 S.E.2d 842 (1999) (Holden I). For the 

reasons set forth below, the order now on appeal is affirmed in 

part, reversed in part and the case is remanded for further 

proceedings consistent with this opinion. 

I. Background 

 Husband and Jena T. Holden (wife) have been involved in an 

acrimonious divorce proceeding for several years. By a final 

order dated October 28, 1998 (the 1998 order), the Roanoke 
County Circuit Court awarded both parties a divorce a vinculo 

matrimonii, made an equitable distribution award of marital 

property and awarded spousal support to wife. 

 The 1998 order divided the marital property into two equal 

portions, based on valuations at that time, and assigned the 

various items comprising the marital property to husband or 

wife. For purposes of the current appeal, two of the assigned 

items of marital property are of particular note. The trial 

court assigned a parcel of land in Bedford County to husband 

valued at $30,000, and classified it as all marital property. 

The court also allocated certain corporate stock as follows: 

The Court does further ORDER and direct that 

the total number of shares of Rowe Furniture 

Stock be divided equally. 

The trial court also provided in the 1998 order that 

husband pay wife monthly spousal support of $185. 

The 1998 order, like the order now on appeal, is partly a 

narrative ledger of the assigned marital properties to husband 

and wife, yielding equal amounts at the end. 

 In Holden I, husband contended that $17,000 of the value of 

the Bedford County property represented husband's separate 

property and, therefore, was not subject to the equitable 

distribution division as marital property. Husband also 

appealed the award of spousal support, but later withdrew that 

assignment of error. 

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 Husband prevailed in Holden I. We agreed with his claim 

that $17,000 of the $30,000 value of the Bedford County property 

represented his separate property. Our opinion in Holden I

concluded with the following statement: "[W]e reverse the 

equitable distribution award and remand for an order consistent 

with this opinion." Id. at 29-30, 520 S.E.2d at 845. 

 While Holden I was pending before us, husband sought a 

hearing in the circuit court for reduction of the previously 

awarded spousal support. On May 17, 1999, the trial court 

entered an order reducing the monthly spousal support from $185 

to $100. Husband apparently withdrew his assignment of error 

relating to spousal support before oral argument on his appeal 

and prior to the May 17, 1999 revised spousal support order. He 

did not, however, obtain leave of this Court to proceed in the 

circuit court on his motion to reduce spousal support. 

 After our decision in Holden I, both parties filed notices 

to be heard on several topics in the trial court. Husband 

sought a hearing on the following: (1) "Termination of spousal 

support"; (2) "[t]o clarify division of the personal property"; 

(3) "[t]o divide [sic] the provisions for division of the Rowe 

Furniture Stock"; and (4) "[t]o set the monetary award pursuant 

to the Court of Appeals direction." Wife asked the court to 

order: "That [husband] be held in contempt of court for his 

failure to pay spousal support in accordance with the Court's 

Order dated May 17, 1999"; and "[t]hat [husband] be ordered to 

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take the necessary steps to divide the total number of shares of 

Rowe Furniture Stock in accordance with the Court's Order dated 

October 20, 1998." 

 At the April 12, 2000 hearing on these motions, the 

evidence was uncontradicted that the value of the Rowe Furniture 

Stock (Rowe stock) had declined in value by at least $9,000 

since the 1998 order. The stock certificates, issued in 

husband's name, apparently could not be found and a fee was 

required to replace the certificates. Each party blamed the 

other for loss of the stock certificates and argued the other 

should pay the lost certificate fee. Husband also testified to 

adverse income tax consequences if sale of the Rowe stock was 

required as opposed to a distribution in kind. 

 The trial judge, sua sponte, announced at the hearing that 

the May 17, 1999 order reducing spousal support had been in 

error. Because the case was on appeal to this Court at that 

time, the trial judge ruled she lacked jurisdiction to reduce 

the support award. Accordingly, the court retroactively 

reinstated the $185 monthly support amount. 

 The trial court entered the order now on appeal, dated June 

26, 2000 (the 2000 order), covering the issues presented at the 

April hearing. This order was a final order as contemplated by 

Code § 17.1-405(3). 

 The court resolved the remand issue of the separate 

property portion of the Bedford County land by ordering wife to 

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pay husband $8,530.1 Contrary to the 1998 order, the court then 

awarded all the Rowe stock to husband, yet assigned the value of 

$34,214 to that stock which was the value used in the 1998 

order, not the current market value. The court also ordered 

monetary adjustments for the disposition of certain tangible 

personal property and reimposed the $185 per month spousal 

support award retroactive to May, 1999. 

 Husband timely objected to the 2000 order and filed this 

appeal. 

II. Analysis 

 Husband contends (1) the court failed to follow our mandate 

in Holden I because husband should have received an award of 

$17,000, not $8,530, for his separate property interest in the 

Bedford County property; (2) the court erred in assigning all 

the Rowe stock to him because the stock allocation was not an 

issue covered by our remand order; and (3) the court erred in 

reversing its prior reduction in spousal support because it 

erroneously concluded the pending appeal in Holden I deprived 

the trial court of jurisdiction. 

 1

 While $8,500 was one-half the $17,000 separate property 

amount, an additional $30 was added to correct a previous and 

unrelated clerical error, resulting in a total payment of 

$8,530; $8,530 is used herein in referring to the separate 

property adjustment instead of $8,500. 

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A. The $17,000 separate property determination 

 Husband argues on appeal that the redistribution of the 

marital property in the 2000 order fails to follow the remand 

directions in Holden I. We disagree. A mathematical 

calculation shows the trial court's resolution is correct. 

 In the 1998 order, husband was deemed to have an 

entitlement to $15,000 of the $30,000 value as "his" half of the 

Bedford County land when that property was classified as all 

marital property. In the recapitulation of all values for the 

assigned marital assets in the 1998 order, husband received the 

fee simple interest in the Bedford County land, so he 

"compensated" wife for her $15,000 interest in the land through 

other adjustments. Husband also received the Bedford County 

property under the 2000 order, but, based on Holden I, $17,000 

of its value is his separate property, leaving $13,000 of 

marital equity to divide ($6,500 per spouse). Husband, 

therefore, is entitled to $23,500 of the value of the Bedford 

County land ($17,000 as his separate property interest and 

$6,500 for his half of the marital portion). By awarding the 

husband $8,530 in the 2000 order, he received a $23,530 credit 

($15,000 plus $8,530) for "his" separate and marital property 

interests in the Bedford County land. 

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 Husband urges us to adopt his exhibit from the record as 

"the correct redistribution formula,"2 which, he argues, entitled 

him to $17,060. This exhibit confirms the correctness of the 

trial court's ruling. 

 The exhibit reflects an assignment to husband of the equity 

in the Bedford County property. By assigning the equity in the 

property to husband, assuming equal distribution in kind of the 

Rowe stock, wife would receive $17,060 more of the total marital 

assets, $89,379 versus $72,319. Because husband received the 

complete fee simple interest in the Bedford County property, he 

already had received the $17,000 value of his separate property 

portion, as adjudicated by Holden I. If wife paid husband 

$8,530 as ordered by the trial court, each party would then 

 2

 Husband's exhibit provides, in pertinent part, the 

following calculation: 

Asset Wife Husband Total Value

Marital residence $55,000 $ 55,000 

1993 Plymouth $ 7,750 $ 7,750 

1987 Boat $ 625 $ 625 

Diamond Ring $ 1,589 $ 1,589 

Life Insurance $ 4,058 $ 4,600 $ 8,658 

Checking Account $ 498 $ 498 

Savings Account $ 200 $ 200 

Joint Account $ 267 $ 267 

Credit Union Account $ 264 $ 264 

Credit Union Account $ 427 $ 427 

Rowe Furniture Stock $ 0 $ 0 $ 0 

Comic Books $ 1,000 $ 1,000 

Bedford land $13,000 $ 13,000 

401K $20,017 $52,403 $ 72,420

Totals $89,379 $72,319 $161,698

Owed to Husband as a result of successful appeal $17,060 . . . . 

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receive $80,849 of marital property and, therefore, equal 

shares. By contrast, husband's argument for a $17,060 payment 

from wife would give him a windfall of $8,530. 

 We hold that the trial court properly followed the Holden I

mandate by ordering wife to pay husband $8,530 in satisfaction 

of his separate property interest in the Bedford County 

property. 

B. Rowe Furniture Stock 

 Husband argues on appeal that the trial court erred in 

allocating to him all the Rowe stock, as opposed to equal 

distribution in kind as originally ordered. He contends the 

trial court lacked authority to change the stock distribution 

because that issue was not covered under our Holden I remand 

mandate. Although husband's argument is incorrect, we do find, 

nonetheless, that the trial court erred when reversing the 

distribution of the Rowe stock because the ruling is contrary to 

our holding in Wagner v. Wagner, 16 Va. App. 529, 431 S.E.2d 77 

(1993) (en banc). See also Rowe v. Rowe, 33 Va. App. 250, 532 

S.E.2d 908 (2000).3

 Husband cites Virginia Electric and Power Company v. 

Westmoreland-LG&E Partners, 259 Va. 319, 526 S.E.2d 750 (2000), 

and Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991), 

for the proposition that the trial court lacked authority to 

 3

 There is apparently no relationship between the parties in 

Rowe and the Rowe Furniture Corporation. 

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address division of the Rowe stock. Husband's reading of 

Antonelli is strained, at best, and Virginia Power contradicts 

his argument. 

 The final sentence in Holden I states: "Accordingly, we 

reverse the equitable distribution award and remand for an order 

consistent with this opinion." 31 Va. App. at 29-30, 520 S.E.2d 

at 845. We included no words of limitation to prevent the trial 

court from adjusting the equitable distribution award so as to 

comply with the remand mandate. The Supreme Court of Virginia 

clearly enunciated this principle in Virginia Power: 

As explained in Nassif v. Board of 

Supervisors of Fairfax County, 231 Va. 472, 

481, 345 S.E.2d 520, 525 (1986), "[w]hen we 

limit issues on remand we do so with words 

of limitation or restriction." 

259 Va. at 323, 526 S.E.2d at 753. 

 Because we did not use words of limitation or restriction 

in the Holden I remand, the trial court was permitted to revise 

the equitable distribution award to the extent necessary to 

facilitate the restoration to husband of his separate property 

portion of the Bedford County property and to address the other 

issues left unfulfilled from the 1998 order which the parties 

asked the Court to settle. Common sense dictates some 

adjustment to the 1998 distribution scheme was required so the 

adjustment due husband could be made. 

 The husband in fact invited the court to address the issue 

of the Rowe stock in his notice of hearing for the April 12, 

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2000 proceeding: "to divide [sic] the provisions for division 

of the Rowe Furniture Stock." As we noted in Steinberg v. 

Steinberg, 21 Va. App. 42, 461 S.E.2d 421 (1995): "He cannot 

approbate and reprobate - invite error and then take advantage 

of his own wrong." Id. at 50, 461 S.E.2d at 424. 

 We hold the trial court did err, though, by assigning all 

the Rowe stock to husband in contravention of its 1998 order. 

The evidence before the court was that the stock value had 

declined significantly following the 1998 order. Yet the trial 

court arbitrarily and without basis assigned all the Rowe stock 

and all the loss of its value to husband. This action is 

directly contrary to our holding in Wagner, where we said 

re-valuation on remand is necessary "to obtain the most accurate 

valuation and equitable distribution." 16 Va. App. at 531, 431 

S.E.2d at 78. Our holding in this matter is further supported 

by Rowe, where we held: 

"We have stressed that the trial judge in 

evaluating marital property should select a 

valuation 'that will provide the Court with 

the most current and accurate information 

available which avoids inequitable 

results.'" 

* * * * * * * 

Where an asset that is subject to equitable 

distribution is retained by one of the 

parties for a period of time after valuation 

but before the equitable division occurs and 

the asset significantly increases or 

decreases in value during that time through 

neither the efforts or fault of either 

party, neither party should 

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disproportionately suffer the loss or 

benefit from the windfall. 

33 Va. App. at 263-64, 532 S.E.2d at 915 (citations omitted). 

 Nothing in the record shows the parties were bound by the 

valuation used in the 1998 order. The trial court made no 

finding or reference that husband or wife was at fault for 

failure to cause the equal distribution in kind of the Rowe 

stock. The 1998 order contains no directive as to who was 

required to facilitate the division and distribution of the 

stock. While each party blames the other for failing to cause 

the stock to be distributed, wife's claim of dire economic 

stress is dubious in view of the fact it took her over a year to 

raise the issue.4

 We hold that the trial judge abused her discretion by 

failing to revalue the stock, particularly where uncontradicted 

evidence proved it had declined in value. 

 We explicitly hold that on remand the trial judge may 

revise the equitable distribution award to the extent necessary 

to facilitate an equal distribution of the marital property. An 

equal division in kind of the Rowe stock may avoid the necessity 

for revaluing the stock. If the court orders an equal division 

of the stock, the remaining assets, particularly those with a 

ready cash equivalency, such as bank accounts, could be adjusted 

 4

 This is precisely the type issue the trial court could 

address under Decker, as discussed in subsection C, infra.

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in the final equitable distribution award to equalize the 

division of marital property and the other awards. Should a 

cost be incurred to distribute the stock, the trial court could 

assign those costs as the circumstances indicate if the parties 

fail to agree on a cost allocation. The court may also direct a 

particular person or method to facilitate the distribution and 

attach consequences for failure to timely do so. 

C. Trial Court Jurisdiction Pending Appeal 

 Husband also claims the trial court erred by revoking its 

order reducing spousal support entered while Holden I was on 

appeal to this Court. He argues, citing Decker v. Decker, 17 

Va. App. 562, 440 S.E.2d 411 (1994), that because the spousal 

support issue was withdrawn before Holden I was decided, the 

trial court had jurisdiction to revisit spousal support as that 

subject matter was no longer a matter of controversy on appeal. 

We disagree. 

 The order on appeal in Holden I was a final order, not 

interlocutory, adjudicating all the matters in controversy 

between the parties.5 Otherwise, we would have lacked appellate 

jurisdiction under Code § 17.1-405. 

 The appeal of a final order divests the trial court of 

authority to modify, amend or change that order until the 

 5

 The matter was retained on the circuit court docket for 

ninety days solely to monitor the division of tangible personal 

property. 

 

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appellate court has acted. This principle was clearly 

annunciated by the Supreme Court in Greene v. Greene, 223 Va. 

210, 288 S.E.2d 447 (1982). 

The orderly administration of justice 

demands that when an appellate court 

acquires jurisdiction over the parties 

involved in litigation and the subject 

matter of their controversy, the 

jurisdiction of the trial court from which 

the appeal was taken must cease. We 

acquired jurisdiction over this matter when 

Ms. Greene's petition for appeal was filed 

and docketed in the Clerk's Office of this 

Court, and thereafter corrections and 

alterations could be made only with leave of 

this Court. 

Id. at 212, 288 S.E.2d at 448 (citation omitted). 

 Husband withdrew his assignment of error in Holden I

relating to spousal support, which he was entitled to do under 

Rule 5A:36. However, husband did not request leave from us to 

seek any change or modification to the final order still on 

appeal. Husband's failure to seek and obtain leave from us is 

fatal to his argument. 

 Husband cites Decker for the proposition that he can 

continue to litigate issues in the trial court, notwithstanding 

the trial court's final order, so long as those issues are not 

specifically before the appellate court. We disagree. Decker

held as follows: 

This Court acquired jurisdiction when Ms. 

Decker's appeal was filed and docketed in 

the clerk's office of the Court of Appeals. 

Thus, while the trial court may enforce a 

support and custody order, it may not modify 

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such order without leave of court. Only 

under compelling circumstances would this 

Court likely grant such leave . . . . 

Because no leave of court was sought, the 

trial court did not err in refusing to 

modify the award. 

17 Va. App. at 564, 440 S.E.2d at 412. 

 When a final order of the trial court is on appeal, the 

appellate court acquires jurisdiction over that case to the 

exclusion of the trial court, except to the extent the trial 

court must act to enforce the order pending appeal. To adopt 

husband's position would thwart the orderly administration of 

justice by opening the door to perpetual relitigation, thereby 

preventing an appellate court from dealing with finality on the 

issues before it. 

 The trial judge correctly determined she lacked 

jurisdiction to reduce the spousal support award of the 1998 

order while that order was on appeal. The trial court, 

therefore, acted properly in the 2000 order to reverse its prior 

reduction of spousal support made while the 1998 order was on 

appeal. 

 The trial court's order of June 26, 2000 is (1) affirmed as 

to the disposition of the Bedford County separate property by 

having wife pay husband $8,530; (2) affirmed as to the reversal 

of the prior reduction in spousal support, and (3) reversed as 

to the allocation of the Rowe Furniture stock and remanded for 

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further proceedings regarding that matter which are consistent 

with this opinion. 

 Affirmed in part, reversed

in part and remanded.

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