COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Duff 

Argued at Alexandria, Virginia 

JAMES H. MANVELL 

 MEMORANDUM OPINION* BY 

v. Record No. 2023-96-4 JUDGE CHARLES H. DUFF 

 JUNE 10, 1997 

KATHLEEN M. MANVELL 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Judge 

 William F. Wall for appellant. 

 James A. Watson II (Surovell, Jackson, 

Colten & Dugan, P.C., on brief), for 

appellee. 

 James H. Manvell (husband) appeals the decision of the 

circuit court classifying as marital property an investment 

account titled in husband's name. Husband contends that an 

agreement signed by Kathleen M. Manvell (wife) converted the 

account to his separate property. In the alternative, husband 

argues that the account contained funds which he received as an 

inheritance from his mother and, thus, over half the account was 

traceable as his separate property. Finally, husband contends 

that the trial court erred in dividing the parties' investment 

accounts in such a way that husband received the riskier 

investments while wife received the more conservative ones. Wife 

appeals the trial court's failure to find waste in husband's 

transfer of $56,000 of the parties' funds to the parties' son and 

 

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

designated for publication. 
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withdrawal of $16,500 of the parties' funds, made within days of 

the parties' separation. Wife also appeals the trial court's 

denial of attorney's fees. We now affirm. 

Background

 The parties were married in 1967 and separated in June 1995 

when wife left the marital residence. Husband worked throughout 

the marriage until he lost his job in 1989. Husband had managed 

the family's finances throughout the marriage, but became 

increasingly active in managing the family's investments after 

1989. By agreement, wife did not work outside the home for most 

of the marriage, but she returned to work after husband lost his 

employment. 

 The parties experienced increasing marital difficulties 

beginning in 1990, in part because wife refused to support 

husband's plan to buy a business. In 1994, husband proposed that 

he and wife should start separating their finances. On July 14, 

1994, wife signed a statement authorizing Paine Webber to 

"journal all assets and monies in my joint account . . . to an 

account titled in my husband's name only" and providing "I 

realize I will be giving up all ownership and control of these 

assets." Subsequently, on July 21, 1994, both parties signed a 

statement authorizing Paine Webber to "journal all assets and 

monies from my joint account . . . to a single account in my 

husband's name only . . . ," and providing "I realize I will no 

longer have an interest in the assets held in my husband's name 
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only." On July 21, 1994, Paine Webber transferred $377,660.20 

from the parties' joint account into an account in husband's 

name. This money subsequently was transferred to a Smith Barney 

account and had a balance of $398,220 at the time of trial. 

 Wife testified that she had little understanding of or 

access to the investment information and that she trusted husband 

who told her that this document would make his handling of the 

investments easier and more "flexible" so he could better support 

the family. She did not understand this document to strip her of 

any claim to the funds. Wife testified that husband agreed to 

transfer other assets to wife to "equalize" their holdings, 

although that never happened. Husband testified that the parties 

talked about transferring an account to wife's name. However, 

husband also testified that wife knew enough about the funds to 

know their value and to know that separate title was not 

necessary to flexibly manage the joint assets. 

 Husband testified that he received over $88,000 in gifts and 

inheritance from his mother between 1986 and 1991, which he 

assumed he deposited into the existing joint investment accounts, 

although he could not recall specifically which accounts received 

his inherited funds. 

 Between May 29 and May 31, 1995, husband transferred $56,000 

from the Smith Barney account to the parties' eldest child to 

equalize money previously spent on the other children. Husband 

characterized the payment as one from marital funds. Husband 
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admitted that the impending separation influenced him to transfer 

the funds sooner. While wife testified at trial that she 

objected to the transfer, she indicated that she was concerned by 

 the fact that husband did not consult with her prior to 

transferring the funds because she wanted to be sure each of 

their three children received an equal amount. 

 On June 1 and June 4, 1995, husband wrote checks to himself 

from joint accounts totalling $16,500, which he lost gambling in 

Atlantic City. 

 The trial court ruled that the July 1994 agreement was 

intended only to change the name on the brokerage firm's records 

and not to transfer ownership solely to husband. Therefore, 

funds held in the Smith Barney account remained marital property. 

The trial court rejected husband's alternative claim that at 

least half of the Smith Barney account was his separate property 

inherited from his mother, finding that "there was not sufficient 

proof of the amount [of inheritance] received, or what happened 

to the funds after they were commingled with the marital 

funds . . . ." 

 In dividing the Smith Barney investments, the court awarded 

wife the more conservative and stable accounts and husband the 

high-risk investments. In its order denying husband's motion for 

reconsideration, the trial court indicated it awarded the 

high-risk investments to husband because of his greater 

investment skill. 
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 The trial court found that husband's expenditures within 

days of the parties' final separation were not waste, as they 

were not made in contemplation of divorce. 

Equitable Distribution

 The evidence was received by the trial court ore tenus. "In 

reviewing an equitable distribution award on appeal, we recognize 

that the trial court's job is a difficult one. Accordingly, we 

rely heavily on the discretion of the trial judge in weighing the 

many considerations and circumstances that are presented in each 

case." Artis v. Artis, 4 Va. App. 132, 137, 354 S.E.2d 812, 815 

(1987). The judgment of a trial court sitting in equity, "when 

based upon an ore tenus hearing, is entitled to great weight and 

will not be disturbed on appeal unless plainly wrong or without 

evidence to support it." Simmons v. Simmons, 1 Va. App. 358, 

361, 339 S.E.2d 198, 199 (1986). 

 Husband contends that the July 21, 1994 statement signed by 

wife and husband constituted a valid agreement transferring to 

him as his separate property the funds held in the Paine Webber 

account. The trial court ruled the writing did no more than 

change the title of the account in the records of the investment 

brokerage firm, but did not convert the marital funds into 

husband's separate property. 

 While husband testified that wife clearly knew that the 

funds were to be his alone, he acknowledged that he had managed 

the family's finances throughout the marriage, that he had the 
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greater knowledge and sophistication about the finances in 

general and the investments in particular, and that wife trusted 

him. Husband testified that he intended to use the funds in this 

account now titled only in his name for family purposes: 

 I made it very clear to her that that would 

become my account and I could do anything I 

wanted with it and that my intentions were to 

continue to contribute and work it to the 

benefit of the family to pay the college 

education and major costs and our mortgage. 

* * * * * * * 

 I said that as long as we're working together 

as family -- like anything else for the 

benefit of the family. And the itemizations 

that were mentioned were the major expenses 

that she could not cover with her salary -- 

mortgage, college educations, large items. I 

also informed her I could lose it. 

The parties admitted that husband solely controlled the financial 

transactions. There was evidence that with husband's 

increasingly more active stock transactions, he had needed to 

obtain wife's signature more often. Wife testified that she was 

relinquishing control to increase husband's flexibility in making 

the stock transactions, but denied that she intended to forego 

her marital interest to approximately one-half million dollars. 

 In the alternative, husband contends that he deposited over 

$88,000 in separate funds inherited from his mother which, with 

investment earnings over the years, account for over half the 

value in the Smith Barney account. Separate property includes 

"all property acquired during the marriage by bequest, devise, 

descent, survivorship or gift from a source other than the other 
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party." Code § 20-107.3(A)(1)(ii). Nevertheless, 

 [w]hen marital property and separate 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 retraceable 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). Husband could not recall into which 

funds he deposited these amounts and admitted that "at that time 

I felt it not necessary to segregate" these funds from the 

parties' marital property. The trial court found that husband 

failed to provide sufficient evidence to identify any separate 

property received from his mother or her estate. That finding is 

not clearly wrong. 

 Finally, husband contends that the trial court violated Code 

§ 20-107.3 because it did not divide the current value of the 

parties' marital assets but instead relied on husband's future 

ability to invest the stocks attributed to him. Code 

§ 20-107.3(C) provides that, "[e]xcept as provided in subsection 

G, the court shall have no authority to order the division or 

transfer of separate property or marital property which is not 

jointly owned." The account containing the riskier investments 

was marital property not jointly owned. Thus, the court lacked 

authority to order the division of that account. Working with 

these limitations, the court's equitable distribution award gave 
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the parties approximately equal shares of the marital assets. 

The court noted that it considered the tax consequences when 

reaching its decision. Moreover, while husband complains that he 

received the riskier investments, the court's decision to award 

him these investments can hardly be described as an abuse of 

discretion in light of husband's admittedly greater knowledge and 

past practice. 

Waste

 Wife contends that the trial court erred when it failed to 

find waste in husband's transfer of $56,000 to their son and 

withdrawal of $16,500 in cash made shortly before she left the 

marital residence. "'[W]aste' may be generally characterized as 

the dissipation of marital funds in anticipation of divorce or 

separation for a purpose unrelated to the marriage and in 

derogation of the marital relationship at a time when the 

marriage is in jeopardy." Booth v. Booth, 7 Va. App. 22, 27, 371 

S.E.2d 569, 572 (1988). The trial court found that the transfers 

were not made in contemplation of separation. That finding is 

supported by the evidence. While husband admitted he withdrew 

the cash and lost it gambling in Atlantic City, there was no 

evidence that he intended to spend those funds in a way harmful 

to the marriage or in anticipation of a possible divorce. 

 Moreover, wife's testimony demonstrated that she did not 

object to the fact of the transfer to the parties' son, but was 

concerned whether each of the parties' children received an equal 
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amount. Therefore, the evidence indicated that that transfer was 

not for a purpose unrelated to, or in derogation of, the 

marriage. 

Attorney's Fees

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

trial court's sound discretion 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 trial court noted that, as 

husband was unemployed while wife was employed, wife had the 

greater earning potential. Wife also received a fair share of 

the marital assets. We find no abuse of discretion in the 

court's denial of wife's request for attorney's fees. 

 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed.
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Fitzpatrick, J., concurring in part and dissenting in part. 

 I agree with the majority's holdings on all issues except 

that of the dissipation of marital funds. I respectfully 

disagree with the majority's conclusion that husband's withdrawal 

of $16,500 in cash days before the parties' separation was not a 

dissipation of marital assets. 

 Parties are "free to spend marital funds" at least until 

they contemplate divorce. Booth v. Booth, 7 Va. App. 22, 27, 317 

S.E.2d 569, 572 (1988). The record establishes that husband 

acknowledged that the pending separation of the parties was an 

impetus to the withdrawal of the marital funds. Waste is often 

"characterized as the dissipation of marital funds in 

anticipation of divorce or separation for a purpose unrelated to 

the marriage and in derogation of the marital relationship at a 

time when the marriage is in jeopardy." Booth, 7 Va. App. at 27, 

371 S.E.2d at 571 (emphasis added). Additionally, we have found 

as follows: 

 Dissipation occurs "where one spouse uses 

marital property for his own benefit and for 

a purpose unrelated to the marriage at a time 

when the marriage is undergoing an 

irreconcilable breakdown." Once the 

aggrieved spouse shows that marital funds 

were either withdrawn or used after the 

breakdown, the burden rests with the party 

charged with dissipation to prove that the 

money was spent for a proper purpose. 

Smith v. Smith, 18 Va. App. 427, 430, 444 S.E.2d 269, 272 (1994) 

(quoting Clements v. Clements, 10 Va. App. 580, 586, 397 S.E.2d 

257, 261 (1990)); see also Alphin v. Alphin, 15 Va. App. 395, 
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403-04, 424 S.E.2d 572, 576 (1992) (no dissipation where party 

establishes that expenditures were for a proper purpose, e.g., 

"living expenses, medical bills and other necessities of life"). 

 There are few, if any, clearer ways to squander marital 

resources than to gamble them away. Specifically, I disagree 

with the majority's finding that "there was no evidence that 

[husband] intended to spend those funds in a way harmful to the 

marriage or in anticipation of a possible divorce." In the 

instant case, husband knew that the marriage was irrevocably 

"broken down" at the time he withdrew the marital funds and 

incurred the gambling debt of $16,500. He knew that the parties' 

separation was imminent. It is undisputed that the funds at 

issue were not used in furtherance of a proper purpose or to 

promote the success of the marital relationship. Thus, I would 

hold that, following the breakdown of the marital relationship, 

in gambling away $16,500, husband committed a waste of marital 

assets.