COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Frank 

MELVIN F. MORRIS 

 MEMORANDUM OPINION* 

v. Record No. 0850-99-2 PER CURIAM 

 OCTOBER 26, 1999 

JUDITH HEALY MORRIS 

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY 

J. Peyton Farmer, Judge 

 (Theodore J. Edlich, IV; J. Scott Kulp; 

Joseph A. Vance, IV; Williams, Mullen, 

 Clark & Dobbins; Joseph A. Vance, IV & 

Associates, on briefs), for appellant. 

 (Murray M. Van Lear, II; Paul A. Simpson; 

John K. Byrum, Jr.; Scott, Daltan & Van Lear; 

Hirschler, Fleischer, Weinberg, Cox & Allen, 

P.C., on brief), for appellee. 

 Melvin F. Morris (husband) appeals from the final decree of 

divorce entered by the Spotsylvania County Circuit Court (trial 

court). Husband contends that the trial court erred (1) by 

assigning a value to Commonwealth Center, Inc. (CCI), that 

exceeded husband's marital interest in the property; (2) by 

ordering him to restore $29,093.50 to Meadows Mobile Home Park's 

account after transferring these funds to pay a joint obligation 

of the parties; (3) by finding that Judith Healy Morris (wife) did 

not dissipate assets from Meadows Mobile Home Park (Meadows) and 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
Lee Hill Village Mobile Home Park (Lee Hill); (4) by finding that 

Preferred Brokers, Inc. (Preferred), is wife's separate property, 

and in its valuation of this property; (5) in awarding wife 

$12,226.51 in attorney's fees associated with South Carolina 

litigation regarding the parties' Myrtle Beach hotel; and (6) by 

awarding Meadows to wife. Wife contends that the appeal should be 

dismissed based on husband's failure to comply with Rules 5A:8 and 

5A:10. Upon reviewing the record and briefs of the parties, we 

conclude that the appellate record is sufficient to address the 

issues raised by husband, but that this appeal is without merit. 

Accordingly, we summarily affirm the decision of the trial court. 

See Rule 5A:27. 

Background

 The parties began co-habiting in 1962, married in 1973, and 

separated in March 1993. For a number of years, the parties 

operated several businesses together. As of the date of 

separation, the parties' business operations included two mobile 

home parks--Lee Hill and Meadows, a business entity that sold 

mobile homes--Jeff Davis Mobile Sales a/k/a Jeff Davis Homes, Inc. 

a/k/a Jeff Davis Mobile Homes, Inc. (collectively Jeff Davis), and 

a commercial real estate development firm--CCI. The parties also 

acquired, around the time they separated, a hotel in Myrtle Beach, 

South Carolina. The parties stipulated that the marital property 

should be divided evenly. 

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 The trial court referred this matter to a commissioner in 

chancery who, in dividing the parties' marital property, awarded 

wife $2,934,658.70 and awarded husband $3,238,340.67 (less taxes 

owed on the CCI).1 The commissioner awarded Meadows to wife, and 

awarded Lee Hill, Jeff Davis, and CCI to husband. The 

commissioner also awarded wife $12,226.51 in attorney's fees she 

incurred in South Carolina litigation to void a mortgage husband 

had placed against a hotel the parties jointly owned. The 

commissioner charged husband with dissipating $29,083.50 that he 

had withdrawn from the Meadows account to pay another obligation, 

but found that wife had not dissipated assets from Meadows and Lee 

Hill. 

 The commissioner found that Preferred, which wife had 

incorporated in 1995, was wife's separate property, and valued 

wife's one-half interest in that property at $36,709.59. 

 The trial court ruled that the commissioner had recommended a 

fair and just distribution of the parties' property and 

incorporated the commissioner's report into the final decree of 

divorce. 

Wife's Motion to Dismiss

 Wife contends that the appeal should be dismissed pursuant to 

Rule 5A:8 based on husband's failure to timely file all 

 1

 The trial court ordered husband to execute a note in the 

amount of half the difference between the property amounts 

awarded the parties and to pay that amount to wife within one 

year. 

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transcripts from the proceedings below. Husband concedes that 

there is no transcript available from the October 23, 1998 hearing 

before the trial court where the parties argued their exceptions 

to the commissioner's report. No evidence was taken at the 

hearing, and husband's exceptions were preserved elsewhere in the 

record. Accordingly, this transcript is not necessary for an 

adjudication of the issues husband has raised on appeal. See

Goodpasture v. Goodpasture, 7 Va. App. 55, 57, 371 S.E.2d 845, 846 

(1988) (if the record on appeal is sufficient despite the absence 

of a transcript, the Court of Appeals is free to hear and resolve 

the case). 

 Wife also contends that husband violated Rule 5A:10(c) by 

submitting an abbreviated record without her consent. Husband did 

not file transcripts from hearings held by the commissioner on 

August 5, 1996, September 4, 1996, October 3, 1996, November 6, 

1996, December 5, 1996, February 11, 1997, April 18, 1997, May 

6-7, 1997, June 5 and 25, 1997, July 30, 1997, August 13 and 20, 

1997, September 26, 1997, and October 2, 6 and 15-16, 1997. 

Husband responds that the transcripts filed as part of the 

appellate record were the only transcripts relied upon by the 

trial court in deciding this matter. 

 Assuming that husband failed to comply with Rule 5A:10(c), 

wife has failed to establish that she was prejudiced thereby. 

Accordingly, the appeal will not be dismissed. 

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Standard of Review

 "We review the evidence in the light most favorable to wife, 

the party prevailing below and grant all reasonable inferences 

fairly deducible therefrom." Anderson v. Anderson, 29 Va. App. 

673, 678, 514 S.E.2d 369, 372 (1999). "A commissioner's findings 

of fact which have been accepted by the trial court 'are presumed 

correct when reviewed on appeal and are to be given "great weight" 

by this Court.'" Barker v. Barker, 27 Va. App. 519, 531, 500 

S.E.2d 240, 245-46 (1998) (citation omitted). 

 "In reviewing an equitable distribution award on appeal, we 

have recognized that the trial court's job is a difficult one, and 

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

the many considerations and circumstances that are presented in 

each case." Klein v. Klein, 11 Va. App. 155, 161, 396 S.E.2d 866, 

870 (1990). "A trial court's decision regarding equitable 

distribution will not be altered on appeal unless plainly wrong or 

without evidence to support it." Moran v. Moran, 29 Va. App. 408, 

417, 512 S.E.2d 834, 838 (1999). 

Ownership and Value of CCI

 Husband asserted that he owned only ten percent of CCI and 

that the remaining ninety percent was owned, in equal shares, by 

Joe Morris, the parties' son, Jackie Edwards, husband's daughter 

born out of wedlock, and Bernice Kahlor, husband's first wife. 

Husband introduced into evidence stock certificates dated 

December 1988, which were issued in the names of Morris, Edwards 

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and Kahlor. Husband never distributed the stock certificates to 

any of the purported owners. Edwards and Morris testified that 

they were unaware of the stock certificates until approximately 

1995. Morris, Edwards and Kahlor never received any dividends 

from the stock, they never served as officers or directors of 

the corporation, they were never notified of any shareholders' 

meetings, and they did not participate in the operation of the 

corporation. 

 Wife testified that she and husband each owned fifty 

percent of CCI. They had purchased together with joint funds 

the land on which CCI was located, and had then gifted the land 

to CCI. Wife testified that she and husband had equal shares in 

all the other businesses they owned. The parties' tax returns 

from 1989 through 1995 reflected that husband and wife each 

owned a fifty percent share of CCI. Husband never told wife 

about the purported stock transfer, and never told her that she 

did not own any part of CCI. And when husband and wife borrowed 

$300,000 against CCI in 1994, the paperwork listed them as 

co-grantors. 

 The ownership of stock as reflected in corporate records 

and stock certificates is prima facie correct, see Young v. 

Young, 240 Va. 57, 62, 393 S.E.2d 398, 400 (1990), and 

re-titling of stock certificates may be technically sufficient 

to transfer title, see Zink v. Stafford, 257 Va. 46, 50, 509 

S.E.2d 833, 835 (1999). 

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But . . . "it is quite possible and often 

happens, for reasons of convenience or 

otherwise, that stock held in the name of 

one person really belongs to another. In 

such a case the certificate, though prima

facie evidence of ownership in the person to 

whom it has been issued, possesses no such 

magic or sacredness as to prevent an inquiry 

into the facts. Sometimes the transferee is 

merely a nominal holder or 'dummy,' and in 

that event, although the transfer may be 

perfectly regular and complete on its 

fac[e], the true ownership remains in the 

transferor, and that fact may be shown." 

Id. at 50-51, 509 S.E.2d at 835 (citation omitted). 

 A transfer of stock for which no consideration is received 

is considered a gift inter vivos and is controlled by the 

principles governing such gifts. See Young, 240 Va. at 62, 393 

S.E.2d at 401. 

In order to establish a gift inter vivos, 

the following elements must be shown: (1) 

The gift must be of personal property; (2) 

possession of the property must be delivered 

at the time of the gift to the donee, or 

some other for him and the gift must be 

accepted by the donee; and (3) the title of 

the property must vest in the donee at the 

time of the gift. Further, the gift is 

effective only if the donor has donative 

intent at the time of the gift and if there 

is "such actual or constructive delivery as 

divests the donor of all dominion and 

control over the property and invests it in 

[the] donee." 

Id. at 62-63, 393 S.E.2d at 401 (citations omitted). Moreover, 

"[t]he common law requirements of delivery and acceptance are 

not removed by those provisions of the Uniform Commercial Code 

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pertaining to the transfer of securities." Id. at 63, 393 

S.E.2d at 401. 

 Husband never delivered the shares of stock to the 

purported donees, and the donees never accepted these purported 

gifts. Moreover, the evidence proved that husband never 

surrendered control of the corporation to any of the purported 

donees and that corporate records, including tax returns, 

reflected that husband and wife were the corporation's owners. 

Accordingly, the trial court did not abuse its discretion when 

it held that the transfer was ineffectual, and when it 

classified CCI as marital property. 

Husband's Transfer of Funds from Meadows

 Husband stipulated that in January 1998, he instructed 

Virginia Heartland Bank to release $29,083.50 from the bank's 

Lee Hill and Meadows accounts and that he paid these funds to 

TransAmerica. Wife did not consent to these withdrawals. 

 The August 12, 1993 pendente lite decree prohibited such 

withdrawals from these accounts without the consent of both 

parties. The decree also prohibited the parties from 

dissipating marital assets. Wife filed a show cause to 

determine why husband should not be held in contempt for the 

transfers, but no hearing was ever held on the show cause. 

Instead, the court, based on the commissioner's recommendation, 

directed that husband restore $29,083.50 to Meadows' bank 

account. 

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 In their briefs, the parties identify TransAmerica, and 

discuss its role in the parties' businesses. But no such 

evidence was ever presented to the commissioner or to the trial 

court. Moreover, husband violated the terms of the pendente

lite decree when he withdrew these funds without wife's consent. 

Accordingly, the trial court did not abuse its discretion in 

ordering husband to replace the funds withdrawn from Meadows' 

bank account. 

Dissipation of Lee Hill's and Meadows' Assets

 Certified public accountant Keith Wampler analyzed the 

financial records of Lee Hill and Meadows and testified that the 

properties' rent rolls typically exceeded the actual deposits in 

1994 and 1995. Wampler testified that the rent rolls were not 

the amounts collected from tenants, but were the amounts that 

were expected to be collected. Stephane McKeever testified that 

the rent rolls exceeded deposits from April 1993 through 

December 1993. She admitted, however, that she could not 

determine how many people were evicted during this period for 

failure to pay rent. She also could not determine whether any 

payments had been made late. 

 Wife denied misappropriating any funds from either Lee Hill 

or Meadows. She testified that she was not the person who 

actually collected the rents at these properties, and she did 

not fill out the deposit tickets. Wife further asserted that 

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McKeever's figures for the Lee Hill rent rolls, which were based 

on trash collection statistics, were inaccurate. 

 It is well established that the trier of fact ascertains 

the credibility of the witnesses, determines the weight to be 

given to their testimony, and has the discretion to accept or 

reject the witnesses' testimony. See Street v. Street, 25 Va. 

App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc). "'In 

determining whether credible evidence exists [to support the 

trial court's findings,] the appellate court does not retry the 

facts, reweigh the preponderance of the evidence, or make its 

own determination of the credibility of witnesses.'" Moreno v. 

Moreno, 24 Va. App. 190, 195, 480 S.E.2d 792, 795 (1997) 

(citation omitted). 

 Wife denied misappropriating funds from Lee Hill or 

Meadows. Although husband presented circumstantial evidence 

suggesting that wife had dissipated these marital assets, the 

trial court believed wife's testimony and rejected husband's 

evidence. The trial court did not err, therefore, when it found 

that wife had not dissipated the assets of Meadows and Lee Hill. 

Classification and Valuation of Preferred

 Wife incorporated Preferred on August 29, 1995. Wife 

testified that she capitalized the business with just over 

$1,000 she received as her last two paychecks from Jeff Davis. 

She denied that she used any Jeff Davis funds to capitalize the 

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business. Wife owned fifty percent of Preferred, and her son 

Theodore Morris owned the other half. 

 Preferred is in the business of connecting sellers of 

mobile homes with those looking to buy mobile homes. Although 

the company occasionally buys a mobile home to sell, it 

primarily acts as a "middle man," for which services it 

generally receives the difference between the price it agrees to 

pay the seller and the price it negotiates with the buyer. 

 As of December 31, 1996, the date of valuation, Preferred 

owned no real property and it did not maintain a regular 

inventory. The company leased office space, rented office 

equipment, and owned a computer and limited amounts of used 

furniture worth $4,500. Including cash deposits, the company 

had assets worth $97,011 and net liabilities of $53,591.83. 

Wife estimated that good will was worth $10,000, for a total net 

equity of $53,419.77. 

 Husband contended that Preferred should be classified as 

marital property because it was partially started with marital 

funds. He testified that it would not be possible to capitalize 

this type of business with less than $30,000. Husband presented 

evidence that wife had transferred approximately $19,000 from 

Jeff Davis to Preferred, and he asserted that she used this 

money to capitalize Preferred. Wife explained that the $19,000 

was the proceeds from a Preferred contract that was mistakenly 

deposited into Jeff Davis' account. 

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 Husband further asserted that Preferred should be valued at 

$607,563.17. He reached this figure by multiplying his 

estimation of Preferred's net income by 2.5. Husband asserted 

in a letter by counsel that Linda Tomlin had an agreement 

whereby she was to be paid an annual salary equal to thirty 

percent of Preferred's net income and that Tomlin earned nearly 

$73,000 from Preferred in 1996. 

 The trial court found that wife's one-half interest in 

Preferred was separate property. The court rejected husband's 

contention that Preferred had been started with marital funds. 

The court valued Preferred at $73,419.17 based on the firm's net 

assets and an assigned goodwill value of $30,000. The 

commissioner had noted that this goodwill value "seem[ed] 

appropriate given the short existence of the business but [its] 

relative success." The trial court rejected husband's assertion 

that Preferred should be valued based on a net income valuation, 

noting that Jeff Davis, which was awarded to husband, had also 

been valued based on asset valuation. 

 Although there is a presumption that all property acquired 

during the marriage is marital property, this presumption does 

not apply to property acquired after the parties' last 

separation. See Code § 20-107.3(A)(2). Property acquired after 

the parties' last separation should not be classified as marital 

property unless marital assets were used to acquire it. See

Price v. Price, 4 Va. App. 224, 229, 355 S.E.2d 905, 908 (1987). 

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"The burden of proving that property purchased after the last 

separation is marital is on the proponent . . . ." Id. 

 In making an equitable distribution of property, the trial 

court "must assign a value to the property based upon evidence 

presented by both parties." Marion v. Marion, 11 Va. App. 659, 

665, 401 S.E.2d 432, 436 (1991). "We will not disturb a trial 

court's finding of the value of an asset unless the finding is 

plainly wrong or unsupported by the evidence." Shooltz v. 

Shooltz, 27 Va. App. 264, 275, 498 S.E.2d 437, 442 (1998). 

 Wife formed Preferred two years after the parties' final 

separation, and husband failed to prove that any marital assets 

were used to capitalize that firm. Husband asserted that 

$19,000 from Jeff Davis had been misappropriated by wife and 

used to form Preferred, but he presented no evidence to support 

this allegation, and the trial court accepted wife's explanation 

of the transfer. Accordingly, the trial court did not err when 

it classified Preferred as wife's separate property. 

 The trial court also did not err in valuing Preferred. 

Wife presented evidence supporting a valuation based on asset 

valuation, which was the same method of valuation used to value 

Jeff Davis. Although there was evidence that Preferred had a 

high cash flow, wife testified that net income was relatively 

low. Furthermore, although husband asserts that Preferred 

should have been valued based on the firm's net income, he 

presented no evidence regarding Preferred's net income, and he 

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failed to establish that this was a proper method for valuing 

this business. 

Attorney's Fees from South Carolina Litigation

 The parties jointly owned a hotel in Myrtle Beach, South 

Carolina. After the final date of separation, husband attempted 

to transfer the hotel property deed from a corporation the 

parties jointly owned, to a corporation of which he was the sole 

owner. When this effort was subsequently voided by a South 

Carolina court, husband placed a $500,000 mortgage against the 

hotel. The mortgage was held by a corporation that was solely 

owned by husband, but that had not loaned the hotel any money. 

 Wife instituted successful litigation in South Carolina and 

obtained an order setting aside the mortgage. She incurred 

$12,226.51 in legal fees in this litigation. The South Carolina 

court's order makes no reference to attorney's fees. Wife had 

no recollection whether she asked for or was denied attorney's 

fees. 

 Husband contends that wife should be collaterally estopped 

from claiming attorney's fees because the South Carolina court 

denied her request for fees. We disagree. 

 "The doctrine of collateral estoppel precludes parties to a 

prior action and their privies from litigating in a subsequent 

action any factual issue that actually was litigated and was 

essential to a valid, final judgment in the prior action." 

Angstadt v. Atlantic Mut. Ins. Co., 249 Va. 444, 446, 457 S.E.2d 

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86, 87 (1995) (emphasis added). For the doctrine to apply, 

there must be an identity of issues litigated. See id. at 447, 

457 S.E.2d at 88. 

 The South Carolina order makes no reference to attorney's 

fees, and husband has presented no evidence that the issue was 

even presented to the South Carolina court. The doctrine of 

collateral estoppel is, therefore, inapplicable. Accordingly, 

the outcome of the South Carolina litigation did not preclude 

the trial court from including these funds as part of the 

equitable distribution award.2

Award of Meadows to Wife

 As of December 31, 1996, Meadows was valued at $4,020,000. 

The debt on the property included a $2,143,375 note and $35,800 

in security deposits. Husband and wife were both listed as 

principals on the note. 

 One of the conditions on the note imposed by the lender 

pertained to transferring ownership interests in Meadows: 

Transfers of no more than forty-nine percent 

(49%) of the ownership interests in 

[Meadows] shall be permitted so long as (a) 

the Principal owns in aggregate, at least 

51% of the ownership interests in [Meadows] 

and (b) [husband] remains the sole decision 

maker of [Meadows]. 

 2

 Husband also contends that this aspect of the equitable 

distribution award violated the general rule that parties are 

responsible for their own attorney's fees. The appellate record 

does not reflect that husband made this argument to the trial 

court, and we will not address it for the first time on appeal. 

See Rule 5A:18. 

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The loan documents further provided that the lender could allow 

a transfer of majority ownership interest at its discretion, 

with the charge of a fee and costs. In the event of such a 

transfer, the transferee would assume all the transferor's 

obligations under the loan agreement. 

 The deed of trust securing the note further provided that 

"[u]pon any such prohibited sale or transfer or if [husband] 

fails to continue to control the Grantor's business, then 

Beneficiary may, at Beneficiary's option, declare all of the 

indebtedness to be immediately due and payable." (Emphasis 

added.) The deed of trust reiterated that ownership in Meadows 

could be transferred at the lender's discretion. 

 After classifying and valuing the parties' property, "the 

court distributes the property to the parties, taking into 

consideration the factors presented in Code § 20-107.3(E)." 

Marion, 11 Va. App. at 665, 401 S.E.2d at 436. "It is precisely 

'because rights and interests in marital property are difficult 

to determine and evaluate and competing equities are difficult 

to reconcile,' that 'the chancellor is necessarily vested with 

broad discretion in the discharge of the duties the statute 

imposes.'" Matthews v. Matthews, 26 Va. App. 638, 645-46, 496 

S.E.2d 126, 129 (1998) (quoting Smoot v. Smoot, 233 Va. 435, 

443, 357 S.E.2d 728, 732 (1987)). And "[i]n challenging the 

court's decision on appeal, the party seeking reversal bears the 

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burden to demonstrate error on the part of the trial court." 

Barker, 27 Va. App. at 535, 500 S.E.2d at 248. 

 Pursuant to the parties' stipulation, the trial court 

evenly divided the parties' marital property. There was no 

evidence that the Meadows note holder was likely to call the 

note simply because husband was required to transfer his 

ownership interest to wife and surrender control over that 

business. Moreover, wife assumed the obligation on the note, 

and husband has not established that he would be prejudiced if 

the lender decided to call the note. Accordingly, husband has 

failed to establish that the court abused its discretion when it 

awarded Meadows to wife. 

 For the foregoing reasons, the judgment of the trial court 

is affirmed. 

 Affirmed.

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