COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

VIRGINIA JOYCE MILLER SMITH 

 MEMORANDUM OPINION*

v. Record No. 1111-97-3 PER CURIAM 

 NOVEMBER 10, 1997 

RANDOLPH MCDONALD SMITH 

FROM THE CIRCUIT COURT OF THE CITY OF SALEM 

Glen A. Tyler, Judge 

 (Harvey S. Lutins; Jonathan S. Kurtin; 

J. Emmette Pilgreen, IV; Charles N. Dorsey; 

Lutins, Shapiro & Kurtin, on brief), for 

appellant. 

 (Charles B. Phillips; Phillips & Swanson, on 

brief), for appellee. 

 Virginia Joyce Miller Smith appeals from the trial judge's 

equitable distribution decision. She contends that the trial 

judge erred by (1) valuing her business at $140,000; (2) finding 

the Mason's Creek property to be the separate property of her 

husband, Randolph McDonald Smith; and (3) failing to award her 

attorney's fees. Upon reviewing the record and briefs of the 

parties, we conclude that this appeal is without merit. 

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

See Rule 5A:27. 

Business Valuation

 The wife contends that no evidence supported the trial 

judge's determination that her clothing business had a value of 

 

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

designated for publication. 
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$140,000. We disagree. The trial judge considered the evidence 

produced at the hearing, including the testimony of the parties' 

expert witnesses. That evidence proved that in 1985 the wife and 

her business partner invested approximately $140,000 for the 

business, inventory, equipment, and an agreement not to compete. 

 The evidence also proved that the business' sales increased 

during the five years prior to the evidentiary hearing. Although 

a revolving line of credit was available to purchase inventory, 

no evidence proved that was a debt that remained outstanding. 

Approximately $31,000 in accounts payable existed as of the time 

of the hearing. 

 The trial judge determined the value of the wife's share in 

her business within the range supported by the evidence. 

Although the wife estimated that the business was worth $10,000, 

the trial judge found that value unrealistic because it was "an 

evaluation for the total business at a figure less than half of 

the amount of her annual salary withdrawn from the enterprise." 

"It is well established that the trier of fact ascertains a 

witness' credibility, determines the weight to be given to their 

testimony, and has the discretion to accept or reject any of the 

witness' testimony." Street v. Street, 25 Va. App. 380, 387, 488 

S.E.2d 665, 668 (1997). Furthermore, the principle is well 

established that "[t]he finder of fact is not required to accept 

as conclusive the opinion of an expert." Lassen v. Lassen, 8 Va. 

App. 502, 507, 383 S.E.2d 471, 474 (1989). The trial judge 
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considered and weighed the testimony of the wife and the experts. 

 We find the trial judge's valuation of wife's business supported 

by the evidence. 

Classification of Mason's Creek Real Estate

 Under Code § 20-107.3(A)(1)(ii), separate property includes 

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

descent, survivorship or gift from a source other than the other 

party." The husband proved that his mother deeded the property 

on Mason's Creek to him during the parties' marriage. Although 

the deed recited consideration of $15,000, husband testified that 

the property was a gift and that he did not pay any money to his 

mother as consideration. The wife asserted that the husband used 

marital funds to obtain this property. However, the husband's 

mother corroborated the husband's testimony in her deposition. 

 The trial judge found husband's testimony credible, 

particularly in light of the mother's pattern of giving husband, 

wife, and their children each $10,000 annually. The testimony 

regarding the annual giving and the lack of payment for the 

property was credible and rebutted the presumption that the facts 

set out in the deed were accurate. See Code § 8.01-389. 

 The wife also claimed that she made extensive renovations to 

the property and cleaned and repaired the home after it sustained 

flood damage. On this basis, the wife asserted that the property 

became partly marital property. The statute provides that 

 [t]he increase in value of separate property 

during the marriage is separate property, 

unless marital property or the personal 
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efforts of either party have contributed to 

such increases and then only to the extent of 

the increases in value attributable to such 

contributions. The personal efforts of 

either party must be significant and result 

in substantial appreciation of the separate 

property if any increase in value 

attributable thereto is to be considered 

marital property. 

Code § 20-107.3(A)(1). 

 Although the wife testified that her efforts increased the 

value of the Mason's Creek property after a flood, her testimony 

proved that both she and the husband restored the property. Upon 

review of the testimony, we cannot say that the wife presented 

evidence to require a finding as a matter of law that there was a 

substantial appreciation in the value of the home due to her 

significant personal efforts. Accordingly, we conclude that 

credible evidence supports the trial judge's classification of 

this property as husband's separate property. 

Attorney's Fees

 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. See 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. See McGinnis v. McGinnis, 1 Va. App. 272, 277, 

338 S.E.2d 159, 162 (1985). The trial judge noted that the 

parties had individual financial resources and declined to order 

either to pay the other's fees. We cannot say that this decision 
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was unreasonable or that the trial judge abused his discretion. 
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Accordingly, the decision of the circuit court is summarily 

affirmed. 

 Affirmed.