COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Bumgardner 

Argued at Salem, Virginia 

JUDY M. UNDERWOOD 

 MEMORANDUM OPINION* BY 

v. Record No. 2591-98-3 JUDGE RUDOLPH BUMGARDNER, III 

 AUGUST 31, 1999 

STEPHEN L. ANGLE 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 J. Emmette Pilgreen, IV (Harvey S. Lutins; 

Harvey S. Lutins & Associates, on briefs), 

for appellant. 

 Deborah Caldwell-Bono for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

Judy M. Underwood and Stephen L. Angle filed cross-appeals 

to the circuit court's equitable distribution award. The trial 

court referred all issues to a commissioner in chancery, and 

both parties excepted to the report. The trial court affirmed 

much of the report but reversed findings that the wife was 

entitled to a credit for her premarital contribution to the 

marital home and that the husband's stock in Christianburg Cash 

Register Company was marital property. Because it found the 

stock was separate property, the trial court did not rule on the 

commissioner's valuation of the stock. The trial court also 

increased spousal support awarded the wife to $1,200. 
The wife appeals the court's (1) disallowing her a credit 

for her premarital interest in the parties' home, and (2) 

finding that the husband's stock was separate property. The 

husband appeals (3) the commissioner's valuation of the stock in 

Christianburg Cash Register Company and (4) the order to pay 

$1,200 per month spousal support. We affirm the trial court's 

disallowing the wife a credit for her equity in the house, 

reverse the classification of the husband's stock as separate 

property, and remand the case for reconsideration of the value 

of the stock and spousal support. 

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). 

We view the evidence in the light most favorable to the 

prevailing party below. See Cook v. Cook, 18 Va. App. 726, 731, 

446 S.E.2d 894, 896 (1994). So viewed, the evidence established 

that the parties married in 1975, separated in 1994, and 

divorced in 1997. One child was born of the marriage. During 

the marriage, the husband was the main income provider and, 

though the wife occasionally worked part-time, she was 

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responsible for taking care of their son and for maintaining the 

marital home. 

Before the marriage, the wife owned a house that later 

became the marital residence. The equity in the house at the 

date of marriage was $4,180. The parties used marital funds to 

reduce the indebtedness on the house. In 1986, the wife 

executed a deed of gift to the husband, titling the property 

jointly as tenants by the entirety with right of survivorship. 

In 1989, the parties created a $10,000 credit line against the 

marital home and in 1995, after their separation, the parties 

increased the credit line by $7,000, which the wife spent. 

The commissioner ruled the premarital value of the house 

was the wife's separate property and gave her credit for $4,180. 

The trial court found that she gave the husband a half interest 

in the house and disallowed the credit. The wife does not 

dispute that she transferred an undivided interest in the house 

to the husband because she wanted him to have a part of it. She 

responded affirmatively to the question, "Was that kind of like 

a, just a gift from the heart kind of feeling?" She argues, 

however, that these are words of "limitation and equivocation." 

"When 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 contributed 

property is retraceable . . . and was not a gift, the retitled 

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property shall retain its original classification." Code 

§ 20-107.3(A)(3)(f) (emphasis added). 

In order to claim an interest in the marital home by virtue 

of a gift, the husband must prove the wife's donative intent as 

well as the nature and extent of her 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 to express." 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, 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 Hill 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 court found that the wife intended to make an 

unconditional gift of the house to the husband because of the 

deed of gift. The evidence supports this finding. We conclude 

that the court did not err when it disallowed the wife a credit 

for her equity in the home before the marriage. 

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Next, we consider whether the court erred in classifying 

the stock in Christianburg Cash Register Company as the 

husband's separate property. The commissioner classified the 

stock as marital property; the trial court reversed. Where a 

commissioner's findings are disapproved, this Court "must review 

the evidence and ascertain whether, under a correct application 

of the law, the evidence supports the findings of the 

commissioner or the conclusions of the trial court." Hill v. 

Hill, 227 Va. 569, 577, 318 S.E.2d 292, 297 (1984). 

Property acquired during the marriage is presumed to be 

marital property absent evidence to the contrary. See Code 

§ 20-107.3(A)(2); Hart v. Hart, 27 Va. App. 46, 61, 497 S.E.2d 

496, 503 (1998). "A partner in the marriage [owes] his labor 

during the marriage to the marital partnership. The fruits of 

that labor absent express agreement are marital property 

. . . ." Stainback v. Stainback, 11 Va. App. 13, 24, 396 S.E.2d 

686, 693 (1990). 

In order to rebut the marital presumption by proving a gift 

of separate property to him, the husband must prove the donative 

intent of his father at the time of the transfer by clear and 

convincing evidence. See id. at 17-18, 396 S.E.2d at 689; Dean 

v. Dean, 8 Va. App. 143, 146, 379 S.E.2d 742, 744 (1989). 

"'Where the evidence for and against the presumption are equal 

the presumption will prevail.'" Lambert v. Lambert, 6 Va. App. 

94, 101, 367 S.E.2d 184, 188 (1988) (quoting Rowe v. Rowe, 144 

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Va. 816, 822, 130 S.E. 771, 772 (1925)). Moreover, when a donor 

transfers property in exchange for the donee's past 

consideration, the transfer cannot be classified as a gift. See

id. at 100-01, 367 S.E.2d at 188. 

In 1980, the husband began working for his family business, 

Christianburg Cash Register Company, and devoted all of his time 

to its success. He worked on average twelve hours a day "[a] 

lot of times seven days a week." The husband acquired a 25% 

interest in the business in 1985 and in 1991 had increased his 

interest to 49%. His brother had a 51% interest in the company. 

The wife testified that in 1991 the husband told her that 

his father said he would sell the business to the husband and 

his brother. The husband testified that his father changed his 

mind and at a Christmas party told the husband and his brother, 

"I'll just give it to you because you've worked so hard and so 

long since 1980." The husband did not recall whether he told 

the wife about his father's change of mind. 

In 1991 the father retired and made the last transfers of 

stock to the husband and his brother. The brothers began to pay 

him $1,600 per month in rent, after the business had previously 

paid him $800 per month as rent, for the building the company 

occupied. The wife testified that the husband told her that 

they were "paying their dad back for the business" and that at 

$1,600 per month, it would take "eight years to pay him off." 

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The corporate stock transfer ledger showed the transfers to 

the husband and his brother occurred in June 1985 and June 1991. 

The husband claims that both transfers were gifts of separate 

property from his father and that the stock ledgers are 

presumptively accurate. In the stock ledger, the column labeled 

"amount paid" contained an entry of a continuous line that ran 

through fourteen lines, although the ledger contained only 

thirteen transfers. The entry purported to show that no 

consideration was paid for the various transfers of stock that 

were dated from 1977 to 1991. 

The wife claims that the stock was not a gift and that, 

having been acquired during the marriage, it is presumed marital 

property. She does not dispute that the husband had title to 

the stock. She contends, however, that the transfer ledgers 

were not clear and convincing evidence of the father's intent at 

the time of the transfer to give the stock to the husband as his 

separate property. In addition, she questions the weight of the 

evidence because the entry in the "amount paid" column appears 

to have been made at one time. 

"The original share transfer books shall be prima facie 

evidence as to who are the shareholders . . . ." Code 

§ 13.1-661(B). See Young v. Young, 240 Va. 57, 62, 393 S.E.2d 

398, 400 (1990) (ownership as reflected in corporate records is 

prima facie correct, but not a verity). The stock ledger shows 

ownership. It does not show whether the stock was acquired as a 

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gift or for value, or whether it is marital or separate 

property. 

The marital presumption applies because the stock was 

acquired during the parties' marriage. See Stainback, 11 Va. 

App. at 24, 396 S.E.2d at 693. Aside from the stock ledger and 

his own testimony, the husband produced no evidence of his 

father's donative intent at the time of either the 1985 or 1991 

transfers. 

The commissioner relied on the increase in rent paid to the 

father beginning in 1991 and the wife's testimony that the 

husband and his brother were paying their father for the company 

as evidence that the stock was not a gift. In addition, the 

husband's evidence supports a finding that the stock was given 

in exchange for his hard work with the company, which makes it 

marital property. See Lambert, 6 Va. App. at 101, 367 S.E.2d at 

188. See also Brett R. Turner, Equitable Distribution of 

Property § 5.16 (2d ed. 1994). 

 "[D]ue regard must be given to the commissioner's ability, 

. . ., to see, hear and evaluate the witnesses at first hand." 

Hill, 227 Va. at 577, 318 S.E.2d at 297. See also Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). 

We conclude, therefore, that the court erred in reversing the 

commissioner's classification of the stock as marital property 

because the husband failed to prove by clear and convincing 

evidence that his father gave him the stock. 

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The commissioner valued the stock of the corporation at $40 

per share, which was the value assigned to it by the wife's 

expert. The husband's witness, the corporation's accountant, 

testified the business had no value. The trial court made no 

ruling on the commissioner's finding of value because it held 

the stock was separate property. 

The commissioner's findings come to the trial court with a 

presumption of correctness, but the trial court has discretion 

to determine the value of the husband's stock where conflicting 

expert testimony is offered. See Rowe, 24 Va. App. at 140, 480 

S.E.2d at 768; McDavid v. McDavid, 19 Va. App. 406, 413, 451 

S.E.2d 713, 718 (1994). Accordingly, we remand this issue to 

the trial court in order for it to rule on the commissioner's 

valuation of the husband's stock. 

Finally, the husband argues that the trial court erred in 

awarding spousal support in the amount of $1,200 per month. 

Because we remand for reconsideration of the value of marital 

property, the trial court will have to reconsider its support 

award. See Code § 20-107.1(E)(8). Accordingly, we do not 

address this issue, but remand it for reconsideration. 

For the foregoing reasons, we affirm disallowing the wife a 

credit for her equity in the house, reverse the classification 

of the stock in Christianburg Cash Register Company as the 

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husband's separate property, and remand the case for 

reconsideration of the value of the stock and spousal support. 

 Affirmed in part, 

 reversed in part, 

 and remanded.

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