COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Bumgardner 

Argued at Alexandria, Virginia 

JOE GAINES FOREMAN 

 MEMORANDUM OPINION* BY 

v. Record No. 2092-98-4 JUDGE RUDOLPH BUMGARDNER, III 

 JULY 27, 1999 

KRISTIE K. KETCHUM 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Judge 

 Beth A. Bittel (Law Offices of Beth A. 

Bittel, on briefs), for appellant. 

 Kristie K. Ketchum, pro se. 

Joe Gaines Foreman and Kristie K. Ketchum were divorced by 

a final decree entered August 14, 1998. The husband appeals the 

trial court’s (1) equitable distribution of the marital 

residence; (2) classification of the Fidelity Investments IRA 

account as marital property; (3) finding that he was at fault; 

(4) finding that denial of spousal support would constitute a 

manifest injustice; (5) failure to impute income to the wife; 

and (6) denial of husband’s motion to reopen. We affirm the 

trial court on all issues except its classification of the IRA 

account, which we reverse and remand for reconsideration in 

light of this decision. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
We view the evidence in the light most favorable to the 

wife, the prevailing party below. See Cook v. Cook, 18 Va. App. 

726, 731, 446 S.E.2d 894, 896 (1994). The parties married in 

1986 when the wife was 28 and the husband was 46; they separated 

in March 1997. This was the husband’s third marriage, the 

wife’s first. The trial court awarded the wife sole physical 

and legal custody of the two children. The parties did not 

appeal the custody issues. 

The husband was anxious to start a family, but the wife 

wanted to continue pursuing her career goals, which included 

getting a Ph.D. and maintaining her financial independence. The 

wife, who had a master’s degree in Education of the Deaf, worked 

full-time at Children's Hospital and part-time at Gallaudet 

University. She stayed home for six months after their 

children's birth, and subsequently earned $26,000 annually 

working part-time at Children's Hospital. By 1996, she had 

completed her Ph.D. course work. In October 1997, the wife 

commenced employment with the Fairfax County schools. The 

husband, who had a Ph.D. in electrical engineering from Johns 

Hopkins University, earned $86,000 per year at the Naval 

Research Laboratory. 

The parties first entered marital counseling in 1988. Dr. 

Harvey Oaklander saw them as a couple for three years; he also 

saw the husband individually through 1991 and the wife until 

- 2 -
1994. The parties saw two other marital counselors after 1991 

and a financial advisor in 1996. 

The husband commenced psychoanalysis in 1992 with Dr. 

Houston MacIntosh at an annual cost of approximately $18,000 

between 1993 and 1996. The wife testified that his therapy was 

a source of great discord in the marriage. She testified the 

expense had a negative impact on the parties' lifestyle 

affecting the food and clothes she purchased and the vacations 

they took. It also affected the marriage: the husband's 

relationship with his therapist was the most important one in 

his life, what they addressed was none of the wife's business, 

and for four years he attended sessions 3-4 times per week. 

In March 1997, the wife left the marital residence, took 

the children, and filed for divorce on the grounds of 

constructive desertion and mental cruelty. The husband denied 

all allegations of fault and cross-complained alleging adultery. 

The wife then amended her complaint to charge adultery. 

The trial court referred the issues of fault to a 

commissioner in chancery. Both parties excepted to the 

commissioner’s May 19, 1998 report. The trial judge conducted 

the equitable distribution hearing in June, ruled on the 

objections to the commissioner’s report, and entered the final 

decree on August 14, 1998. The court denied the husband’s 

motion to re-open certain testimony from the equitable 

distribution trial. 

- 3 -
The court granted the husband a divorce based on the wife’s 

adultery. However, it noted that the wife's adultery was 

unrelated to the breakdown of the marriage. The trial court 

found that the husband's focus of time and energy on his 

psychoanalysis was a significant factor in the breakdown of the 

marriage. 

In challenging the equitable distribution award, the 

husband argues the trial court erred in finding a gift of half 

the total equity in the marital residence and in dividing the 

residence equally. Equitable distribution awards will be upheld 

"unless it appears from the record that the trial judge has 

abused his discretion, that he has not considered or has 

misapplied one of the statutory mandates, or that the evidence 

fails to support the findings of fact underlying his resolution 

of the conflict in equities . . . ." Blank v. Blank, 10 Va. 

App. 1, 9, 389 S.E.2d 723, 727 (1990). 

The wife must prove the husband's donative intent as well 

as the nature and extent of his intent. See Lightburn v. 

Lightburn, 22 Va. App. 612, 617, 472 S.E.2d 281, 283 (1996) 

(citations omitted). “We look to what the words express, not 

what the grantor may have intended.” Davis v. Henning, 250 Va. 

271, 275, 462 S.E.2d 106, 108 (1995) (citation omitted). See

Capozzella v. Capozzella, 213 Va. 820, 824, 196 S.E.2d 67, 70 

(1973) (a deed intended for one purpose is intended "for all 

purposes apparent on its face”); Rowe v. Rowe, 24 Va. App. 123, 

- 4 -
137-38, 480 S.E.2d 760, 766-67 (1997). The court may consider 

the circumstances in existence at the time a deed is executed, 

see Hills v. Brooks, 253 Va. 168, 177, 482 S.E.2d 816, 822 

(1997); Davis, 250 Va. at 275, 462 S.E.2d at 108, and any 

ambiguity is construed against the grantor. See Phipps v. 

Leftwich, 216 Va. 706, 710, 222 S.E.2d 536, 539 (1976). 

The husband purchased the marital residence before the 

marriage for $184,000. He invested between $70,000 and $75,000 

in separate funds in the house before and during the marriage. 

The wife contributed to the upkeep and maintenance of the house. 

On May 13, 1992, the husband recorded a deed of gift 

transferring the house jointly as tenants by the entirety with 

right of survivorship. 

The wife claims that the parties agreed to title the house 

jointly and own it equally if she deferred her career in order 

to raise children. Dr. Oaklander characterized the agreement as 

a "quid pro quo"; she would defer her "career indefinitely 

because she wanted to stay at home . . . in return for the total 

equality financially." Ultimately they executed the deed before 

the wife’s second pregnancy. 

The husband does not dispute that he agreed to put the 

wife's name on the house in case he died; he also wanted her to 

earn equity in it. He argues, however, that he intended her to 

get one-half of all future equity earned during the marriage, 

not one-half of its full equity. 

- 5 -
Code § 20-107.3(A)(2)(i) provides that marital property is 

"all property titled in the names of both parties whether as 

joint tenants, tenants by the entirety or otherwise, except as 

provided by subdivision A3." Subdivision (A)(3)(f) provides 

"[w]hen separate property is retitled in the joint names of the 

parties, the retitled property shall be deemed transmuted to 

marital property. However, to the extent the property is 

retraceable by a preponderance of the evidence and was not a

gift, the retitled property shall retain its original 

classification." (Emphasis added). The court found the 

husband's testimony that he did not understand the deed of gift 

and only wanted the wife to get part of the house 

"disingenuous." See Langman v. Alumni Association of the 

University of Virginia, 247 Va. 491, 442 S.E.2d 669 (1994); 

Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 

(1987) (en banc) (fact finder is judge of witness' credibility). 

Notwithstanding his separate contributions, the trial court 

found that the husband intended to make an unconditional gift of 

one-half of the full equity in the house to the wife because of 

the deed. The evidence supports this finding. 

In making an equitable distribution award of marital 

property, the court must apply the Code § 20-107.3(E) factors. 

See Rowe, 24 Va. App. at 138, 480 S.E.2d at 767. It is not, 

however, "required to quantify or elaborate exactly what weight 

or consideration it has given to each of the statutory factors." 

- 6 -
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 

(1986). 

Highlighting some relevant factors, the trial court found 

that the wife deferred her career to raise children, delayed 

retirement, and helped to maintain the home. It also found that 

the husband made a significant non-monetary negative 

contribution to the marriage by devoting his time and energy to 

his therapy and that he intended to give the wife half the 

house. 

Clearly, the trial court considered the parties' 

contributions to the marriage and the marital residence, the 

cause of the breakdown of the marriage, and other appropriate 

factors. Because its decision is based on the evidence, we find 

no error in its failure to cite to each factor. In light of all 

the evidence, we uphold the trial court's equal division of the 

marital residence. See Blank, 10 Va. App. at 9, 389 S.E.2d at 

727. 

We next consider the classification of the Fidelity 

Investments IRA. The trial court ruled that the evidence was 

insufficient to prove that the IRA was husband's separate 

property and classified it as marital property.1 The husband 

 1

 The trial court ruled that "the evidence was that 

[husband] said, he was the only person that contributed to it, 

but the evidence was insufficient to show that it was separate 

property. I think it was marital property." 

- 7 -
argues the IRA was presumed separate property pursuant to Code 

§ 20-107.3(A)(1). We agree. 

"[T]he character of property at the date of acquisition 

governs its classification pursuant to Code § 20-107.3." 

Stratton v. Stratton, 16 Va. App. 878, 881, 433 S.E.2d 920, 922 

(1993). "Code § 20-107.3 provides that property . . . acquired 

before marriage is presumed to be separate." Barnes v. Barnes, 

16 Va. App. 98, 104, 428 S.E.2d 294, 299 (1993). 

The husband argues that he acquired the IRA before the 

marriage and it earned only passive income during the marriage. 

His disclosure form lists the purchase date as 1982; the parties 

married in 1986. The wife presented no evidence to show that 

the IRA was marital or that it was acquired during the marriage. 

There was uncontradicted evidence that the husband acquired 

the IRA before the marriage and invested no money in it during 

the marriage. By statute, the IRA is presumed separate 

property. The trial court erred in classifying it as marital 

property and including it in the marital estate. We reverse 

this decision and remand the case for reconsideration of the 

equitable distribution award in light of this ruling. 

Next we consider whether the trial court erred in awarding 

the wife spousal support despite her adulterous conduct. 

Spousal support may be awarded to a party who has committed 

adultery "when the trial court finds by clear and convincing 

evidence that denial of support would constitute a 'manifest 

- 8 -
injustice, based upon the relative degrees of fault during the 

marriage and the relative economic circumstances of the 

parties.'" Rahbaran v. Rahbaran, 26 Va. App. 195, 211-12, 494 

S.E.2d 135, 141 (1997) (citing Code § 20-107.1; Barnes v. 

Barnes, 16 Va. App. 98, 102, 428 S.E.2d 294, 298 (1993)). 

The husband, denying all allegations of fault for the 

breakdown in the marriage, challenges the propriety of the 

award. Fault "encompasses all behavior that affected the 

marital relationship, including any acts or conditions which 

contributed to the marriage's failure, success, or well-being." 

Barnes, 16 Va. App. at 102, 428 S.E.2d at 298. See also

O'Loughlin v. O'Loughlin, 20 Va. App. 522, 528, 458 S.E.2d 323, 

326 (1995). 

The court, considering both parties' conduct, found that 

the wife's adultery did not cause the dissolution of the 

marriage because their relationship had deteriorated to the 

point of just living together prior to 1996. The evidence 

supports this finding. The parties were in counseling 

throughout most of the marriage; the husband thought the 

marriage was failing as early as 1992 when he entered therapy; 

after 1992, the parties ceased behaving as a couple, doing 

things as a family, and having sexual relations; they slept in 

separate bedrooms beginning in 1995; and took no family 

vacations in 1993, 1994, and 1996. 

- 9 -
The trial court further found that the husband's obsession 

with his psychoanalysis was a significant factor in the 

breakdown of the marriage. Aside from his own testimony, the 

husband presented no evidence that he needed the psychoanalysis. 

In fact, Dr. Oaklander testified that in his medical opinion the 

husband did not need psychoanalysis. This opinion is supported 

by evidence that the husband abruptly terminated his sessions in 

1997. 

The trial court must also weigh and consider the parties' 

comparative economic positions. It expressly noted that the 

husband had greater earning capacity and income than the wife. 

See Barnes, 16 Va. App. at 103, 428 S.E.2d at 298. Even if she 

worked full-time, her salary would only be one-half of his, and 

she would have to pay for day care. We find that the court 

considered the parties' respective degrees of fault and their 

relative economic situations in finding that to deny the wife 

support because of her adultery would be manifestly unjust in 

this case. The evidence supports the support award. 

We next consider whether the trial court erred in failing 

to impute income to the wife. The husband contends the wife is 

voluntarily underemployed and that the court erred in failing to 

determine her earning capacity. We disagree. 

In setting or modifying spousal support, a court may impute 

income to a party voluntarily underemployed. See Stubblebine v. 

Stubblebine, 22 Va. App. 703, 710, 473 S.E.2d 72, 75 (1996) (en

- 10 -
banc); Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 

876 (1994). The court's decision will not be disturbed on 

appeal unless plainly wrong or unsupported by the evidence. See

Saleem v. Saleem, 26 Va. App. 384, 393, 494 S.E.2d 883, 887 

(1998). Whether a person is voluntarily underemployed is a 

factual determination. In evaluating a request to impute 

income, the trial court must "consider [the parties'] earning 

capacity, financial resources, education and training, ability 

to secure such education and training, and other factors 

relevant to the equities of the [parties]." Niemiec v. Dept. of 

Soc. Servs., Div. of Child Support Enforcement, 27 Va. App. 446, 

451, 499 S.E.2d 576, 579 (1998). Furthermore, the husband has 

the burden of proving that the wife was voluntarily foregoing 

more gainful employment. See id. 

The evidence supports the trial court's finding that the 

wife was not voluntarily underemployed and that the parties 

agreed that she would not work full-time while the children were 

young. The wife provided both monetary and non-monetary 

contributions to the family. She was an equal marital partner; 

she worked outside the home before and after the children were 

born, maintained the household, and cared for the children. 

When she perceived her job was in jeopardy, she secured 

employment as a “cued speech” educator earning $21,155 annually 

on a ten-month contract. 

- 11 -
The husband also failed to establish that the wife 

voluntarily rejected full-time employment. His expert testified 

that there were three full-time positions available in Fairfax 

County where the wife could earn approximately $30,000. The 

wife challenged his expert on whether the vacancies were in 

"cued speech," her specialized field, how many applications each 

position had, and what the competition was for each. Under 

these circumstances, the court properly held that the wife had 

not unreasonably refused employment for which she was qualified. 

See Srinivasan v. Srinivasan, 10 Va. App. 728, 734, 396 S.E.2d 

675, 679 (1990). We affirm the finding that the wife is not 

voluntarily underemployed and its decision not to impute income 

to her. 

Finally, we affirm the denial of the husband's motion to 

reopen. He claims that the wife's justification for leaving the 

Children's Hospital job was inconsistent with prior statements, 

caught him by surprise, and prevented him from presenting 

rebuttal evidence. In support of his motion, the husband 

proffered testimony from the wife's supervisor that (1) she was 

not fired, (2) she voluntarily resigned, and (3) he did not tell 

her that her position would be eliminated. 

It is within the trial court's discretion to grant or deny 

a rehearing. See Hughes v. Gentry, 18 Va. App. 318, 326, 443 

S.E.2d 448, 453 (1994) (citation omitted). "[A] petitioner must 

show either an 'error on the face of the record, or . . . some 

- 12 -
legal excuse for his failure to present his full defense at or 

before the time of entry of the decree.'" Holmes v. Holmes, 7 

Va. App. 472, 480, 375 S.E.2d 387, 392 (1988) (quoting Downing 

v. Huston, Darbee Co., 149 Va. 1, 9, 141 S.E. 134, 136-37 

(1927)). 

The wife testified that she left her job because her 

supervisor had been fired, she felt her job was in jeopardy, 

that it was becoming increasingly difficult to bill insurance 

companies for educator services, and that she was advised that 

it was "probably time to look around." 

Despite the husband's claim that this testimony surprised 

him, he did not cross-examine the wife about her alleged prior 

inconsistent statements. See Code § 8.01-404. Nor did he 

establish that the wife's trial testimony was in fact 

inconsistent with her prior statements. Therefore, there is no 

justification for the husband's "surprise" or lack of 

preparation. The husband also failed to show that his "new" 

evidence was "not known or accessible" prior to trial, Hughes, 

18 Va. App. at 326, 443 S.E.2d at 453, or that it is likely to 

produce a different result. We affirm the denial of this 

motion. 

For the foregoing reasons, we affirm all issues raised 

herein except the classification of the Fidelity Investments 

- 13 -
IRA. We reverse and remand that issue for reconsideration in 

accordance with this opinion. 

 Affirmed in part, 

 reversed and remanded.

- 14 -