COURT OF APPEALS OF VIRGINIA
Present: Judges Pe tty, McCullough and Decker Argued by teleconference

ROBERT C. DAVID OPINION BY v. Record No. 0653-12-2 J UDGE STEPHEN R. McCULLOUGH JANUARY 20, 2015 CHERI GINA DAVID

UPON REMAND FR OM THE SUPREME COURT OF VIRGINIA
FROM THE CIRCUIT COUR T OF HANOVER COUNTY J. Overton Harris, Judge Lawrence D. Diehl for appellant. John H. Kitzmann for appellee.
Two issues remain on remand from the Suprem e Court. First, hus band assigns error to the trial court’s classification of a portion of a brokerage account as marital property. Husband contends that wife showed neither substantial appreciation nor significan t personal effort on his part with regard to the account. Second, husband assigns error to the va luation date the trial court used for the account. For the reasons noted below, we affirm in part, reverse in part, and remand to the trial court for further proceed ings consistent with this opinion.
BACKGROUND Husband and wife were married for a little ove r eight years, counti ng from the date of their marriage on November 16, 2002, to December 3, 2010, when husband filed for divorce. When they married, husb and owned a brokerage acco unt with a value of $ 234,783.16. Wife testified that during their marriage, husba nd devoted long hours to researching emerging companies and trading stocks. Husband spent his career in the financial services industry. HePUBLISHED- 2 - worked as a branch manager, manager, and financ ial advisor for Prudential Financial Securities. For a time, he worked for a firm that specializes in helping financial advisors. Wife testified that researching stocks “is what he was doing with his time.” Husband, however, testified that he “seldom” made trades on the account and th at he invested for the long term. Relying on an account statement from Dece mber 2010, the trial court found that the “value of the account increased significantl y during the marriage, from approximately $234,783 to $551,521.” The trial court also found that th e entire $316,521 increase in the value of the account constituted marital property. The court awarded half of the increase in value, $158,260,
to wife. Relying on this Court’s precedent, a panel of this Court held th at wife failed to meet her burden of proving that husband’s efforts caused th e account to substantiall y appreciate. David v. David, No. 0653-12-2, 2012 Va. App. LEXIS 368, at *6-8 (Va. Ct. App. Nov. 20, 2012). The Supreme Court reversed, holding that Code § 20-107.3(A)(3)(a) requires the non-owning spouse to prove that the separate pr operty substantially appreciated during the marriage and that the owning spouse expended significant pe rsonal effort with regard to the separate property during the marriage. David v. David, 287 Va. 231, 241, 754 S.E.2d 285, 291 (2014). The burden then shifts to the owning spouse to dispro ve causation, that is, to show th at the increase is attributable to a factor other than the owni ng spouse’s personal effort. Id.- 3 - ANALYSIS
I. C LASSIFICATION OF THE BROKERAGE ACCOUNT The first step in an equita ble distribution consists in classifying property as marital, separate, or part marital and pa rt separate. Code § 20-107.3(A). There is no dispute here that husband owned the brokerage account before th e marriage. Code § 20-107.3(A)(1) (defining separate property as property “acquired by either party before the marriage”). Therefore, it is presumptively separate property. That, however, does not end the inquiry. In some circumstances, when separate pr operty has increased in value during the marriage, all or part of the increase in value can be treated as marital. Code § 20-107.3(A)(3)(a) provides as follows: In the case of the increase in va lue of separate property during the marriage, such increase in value shall be marital property only to the extent that marital property or the personal efforts of either party have contributed to such in creases, provided that any such personal efforts must be signifi cant and result in substantial appreciation of the separate property. For purposes of this subdivision, the nonowning spouse shall bear the burden of proving that (i) contri butions of marital property or personal effort were made and (ii) the separate property increased in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving that the increas e in value or some portion thereof was not caused by c ontributions of marital property or personal effort. Applying the Supreme Court’s guidance in th is case, wife had the burden of proving (1) that the brokerage account substantially appr eciated during the marriage, and (2) that husband expended significant personal efforts in managing this account. The burden then shifted to husband to prove that the increase in the value of the account was attributable to something other than his own efforts, such as a ppreciation due to market forces.- 4 - We are mindful on appeal that “the trial cour t’s classification of pr operty is a finding of fact, that classification will not be reversed on appeal unless it is plainly wrong or without evidence to support it.” Ranney v. Ranne y, 45 Va. App. 17, 31-32, 608 S.E.2d 485, 492 (2005).
A. Wife met her burden of prov ing a substantial increase in the value of the brokerage account. For a portion of the brokerage account to be cl assified as marital prope rty, wife had to show that the value of the stock account substantia lly appreciated during the marriage. Code § 20-107.3(A)(3)(a). The trial court found that the account’s value rose from $234,783, before the parties were married, to $551,5 21, the value on the day husband and wife separated. By any measure, an appreciation of this magnitude during an eight-year period is substantial. Husband argues that wife presented no evidence beyo nd her introduction of financial statements to prove that the appreci ation was substantial. He points out that wi fe did neither testify in this regard, nor did she offer any expert test imony. Substantial appreciation, however, is not a term of art. The increase in the account from $234 ,783 to $551,521 speaks fo r itself. The trial court could rely on the financial statemen ts showing the significant growth in the account’s value to reach a conclusion that the apprecia tion during the marriage was signifi cant for purposes of Code § 20-107.3(A)(3)(a). The trial court’s determination regarding the substantial increase in value of the account cannot be said to have been plainly wrong or wi thout evidence to support it. 

### B. The evidence supports the trial court’ s conclusion that husband expended significant efforts in managing the account. Wife also was required to establish that husband expended significant personal efforts with regard to the brokerage acc ount. Id. The Code defines pe rsonal efforts as “labor, effort, inventiveness, physical or intellectual skill, crea tivity, or managerial, promotional or marketing activity.” Id. The selection of stocks after careful research cert ainly qualifies as “labor, effort, [and] intellectual skill” within th e plain meaning of those terms.- 5 - To qualify, however, the personal effort must be significant and it must substantially affect the value of property. Id. “‘Significant’ is defined as ‘having or likely to have influence or effect; deserving to be considered; importa nt, weighty, notable.’” Martin v. Martin, 27 Va. App. 745, 755, 501 S.E.2d 450, 455 (1998) (en banc) (quoting Webster’s Third New International Dictionary 2116 (1981) ). “[C]ustomary care, mainte nance, and upkeep” of separate property does not qualify as significant persona l efforts. Id. at 756, 501 S.E.2d at 455. In the context of a stock account, routine adjustments to the portfolio – adding to stocks that are performing well and culling underperforming stocks – does not constitute significant personal effort. The financial records show that during the eight years of marriage – a period of ninety-six months – husband made a total of thir ty-five trades. The num ber of trades is not particularly high, and alone, is not dispositive. Husband could have placed a relatively small number of buy and sell orders that reflected a great deal of time, effort, and skill researching particular stocks. Wife testified that husba nd spent hours researching stocks and portrayed husband as deeply absorbed with his stock accoun t. The trial court accepted this version of events, and we must view the evidence in the light most favorable to wife. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) . Applying this standard, we conclude that the trial court could credit wife’s testimony about husband’s extensive research activity and the documents showing the purchase and sale of stocks to conclude that husband had expended significant personal effort in connectio n with the brokerage account. See Courembis v. Courembis, 43 Va. App. 18, 33, 595 S.E.2d 505, 513 (2004). Because we cannot say that the trial court’s decision was plainly wrong, we will not disturb it on appeal. 1

1 At oral argument on remand, counsel for husba nd highlighted the fact that the definition of “personal effort” in Code § 20-107.3 specifi es that the personal e ffort must be “applied directly” to the property at issu e. According to husband, this phrase means that the spouse who- 6 - C. Whether the increase in value is attrib utable to husband’s efforts or to some other factors. Once wife established that the brokerage acc ount significantly increase d in value and that husband made significant personal efforts with regard to the account, it was incumbent on husband to shoulder the burden of proving that the increase in valu e occurred for reasons other than his personal efforts. David, 287 Va. at 241, 754 S.E.2d at 291. In this connection, we note that at the oral argument following the remand fr om the Supreme Court, this Court inquired whether either party desired to present additiona l evidence to the trial court. Both parties declined that opportunity. Accordingly, we rema nd this case for the tria l court to determine, based on the existing record, whether the incr ease in value was caused by husband’s significant efforts or whether that increase in va lue occurred for some other reason.
II. V ALUATION DATE OF THE BROKERAGE ACCOUNT Husband also assigns error to the trial court’s decision to employ the da te of separation as the date of valuation fo r the brokerage account. Under Code § 20-107.3(A), The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. . . . Upon motion of either party made no less than 21 days before the evidentiary hearing the court ma y, for good cause shown, in order to attain the ends of justice, orde r that a different valuation date be used. We have observed that “the trial judge in eval uating marital property shou ld select a valuation ‘that will provide the Court with the most cu rrent and accurate information available which avoids inequitable results.’” Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788, 790-91

owns the property must be personally involved in increasing the value of the property at issue, for example, by managing a business or personally renovating a home. He notes that the stocks here rose in value due to the efforts of the companies themselves rather than any effort by husband. Whatever the merits of this specific argument might be, a point on which we express no opinion, it was not advanced at tr ial or in the briefs before this Court. Accordingly, we do not consider it. See Rule 5A:18.- 7 - (1991) (quoting Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987)). The trial court valued the brokerage account at the time the divorce compla int was served on the wife, in December 2010. The court heard evidence on October 20 and November 3, 2011. By September 2011, the statement closest to the evidentiary hearing, the account’s value had decreased to roughly $392,094. The r ecord suggests that this was due in significant part to the fact that husband made withdrawals from the account to pay for his expenses. The record does not disclose why the cour t employed a valuation date that was almost one year old. Code § 20-107.3(A) allows a cour t to select an alternat e valuation date “for good cause shown.” Once a valuation date is selected, the trial court’s decision is reviewed for abuse of discretion. Thomas v. Thomas, 40 Va. App. 639, 647, 580 S.E.2d 503, 506 (2003). The trial court held that there was “no evidence that eith er party dissipated marita l assets” and did “not consider this factor further.” Therefore, this case does not present a situ ation where a trial court selected an alternate valuation date as a result of dissipation of marital funds. See Smith v. Smith, 18 Va. App. 427, 430, 444 S.E.2d 269, 272 (1994) (“One recognized justification for altering the evaluation date is a showing of dissipation of marital assets.”). With no showing of good cause for an alternate valua tion date appearing in the reco rd, we hold it was error on this record to employ a valuation da te from December 2010 for a hear ing that occurred in October and November 2011. Neither party requested an alte rnative valuation date within 21 days of the evidentiary hearing. Accordingly, on remand, th e court should value the account based on the account statement that is closest to the date of the evidentiary hearing date of November 3, 2011, the latter of the two dates on whic h the court accepted evidence.
CONCLUSION We affirm the trial court’s classification of th e increase in the value of the brokerage account as marital property. On remand, the court, valui ng the account as of the statement date that is- 8 - closest to November 3, 2011, shou ld assess whether, on the pres ent record, the increase in the account is attributable to husband’s personal effort s or whether it is due to unrelated factors. Finally, we leave to the trial court’s discretion whether it should rec onsider the equitable distribution award in light of our decision. Affirmed in part, reversed in part,

and remanded.