COURT OF APPEALS OF VIRGINIA 

Present: Judge Fitzpatrick, Senior Judges Cole and Duff 

MARGARET JANE CRYOR GAYNOR 

v. Record No. 0927-94-4 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

FREDERICK SYLVESTER HIRD, JR. AUGUST 1, 1995 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Paul F. Sheridan, Judge 

 Edward V. O'Connor, Jr. (The Lewis Law Firm, on briefs), for 

appellant. 

 William B. Cummings (William B. Cummings, P.C., on brief), 

for appellee. 

 

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

designated for publication. 

 In this domestic appeal, Margaret Jane Cryor Gaynor (wife) 

appeals the trial court's determination of the monetary award. 

For the reasons that follow, we reverse the award and remand this 

matter for further proceedings. 

 MONETARY AWARD

 "[T]he amount of any monetary award, subject to the 

enumerated statutory factors, is within the sound discretion of 

the trial court." Dietz v. Dietz, 17 Va. App. 203, 216, 436 

S.E.2d 463, 471 (1993) (citing Amburn v. Amburn, 13 Va. App. 661, 

666, 414 S.E.2d 847, 850 (1992)). 

(1) The Marital Residence

 In the initial equitable distribution order of October 29, 

1986, the court found the "interests of the parties in the 
- 2 - 

marital residence . . . to be in proportion to their 

contributions" and allocated seventy-five percent to Frederick 

Sylvester Hird, Jr. (husband) and twenty-five percent to wife. 

After a partition proceeding on November 13, 1991, the trial 

court assigned the marital home to husband and ordered him to pay 

wife for her one-half interest in the residence. The court also 

suggested that $140,000 of the payment should be held in escrow 

to provide for any offsetting award to recognize the equitable 

interest of wife in the property. In a January 7, 1992 consent 

order, wife agreed to an escrow of $130,000 as a condition of the 

partition conveyance. In the April 19, 1994 equitable 

distribution order, the trial court determined that it had the 

"power to make an equitable distribution where partition is 

involved" and that it was not required to divide the proceeds of 

the property fifty-fifty. The trial court found that "[t]he 

payment required in partition for a one-half legal interest was 

$173,841.05. The offsetting award payable to Mr. Hird for a onequarter equitable interest is $86,920.52, payable from the 

escrow." 

 Wife argues that the trial court erred in allocating 

seventy-five percent of the property's value to husband and 

twenty-five percent to her. Wife asserts that the trial court 

was required to base its calculation of the monetary award on the 

parties' equal legal interests in the home as a result of the 

partition. We disagree. 
- 3 - 

 Under the version of Code § 20-107.3(C) applicable to this 

case, "partition . . . is no different than that permitted prior 

to the adoption of Code § 20-107.3, except that it may now be 

done as a part of the divorce proceeding rather than as a 

separate proceeding." Morris v. Morris, 3 Va. App. 303, 310, 349 

S.E.2d 661, 665 (1986). 

 The partitioned property or its proceeds must 

be divided in a manner that will insure that 

each owner receives the amount of money or 

property to which his interest in the 

property entitles him. However, the value of 

this property still remains a consideration 

in determining the amount of a monetary 

award.

Id. (emphasis added) (citations omitted). 

 After the partition proceeding in this case, each party 

received a one-half legal interest in the home, and the trial 

court correctly ordered the husband to pay the wife for her onehalf interest when it assigned the home to him. However, because 

the home was marital property, wife's proceeds from the partition 

of the home, as well as husband's interest in the home, 

constituted marital property subject to consideration in 

determining the monetary award. Although wife was entitled to a 

one-half legal share of the marital home, the trial judge found 

that she was not entitled to a one-half equitable share of the 

marital estate based on his consideration of the factors in Code 

§ 20-107.3(E). We hold that no abuse of discretion occurred 

because wife was not entitled to an automatic one-half equitable 

share of the marital home. See Papuchis v. Papuchis, 2 Va. App. 
- 4 - 

130, 132, 341 S.E.2d 829, 830 (1986) (holding that there is no 

statutory presumption of equal distribution of marital property). 

(2) Law Firm Capital Account

 The trial court found that husband's law firm capital 

account was marital property and had a value of $6,500 at the 

date of marriage and $22,800 at the date of the divorce. Thus, 

the account increased $16,300 during the marriage. This increase 

was financed by husband's separate loan of $13,000, and the trial 

court accordingly held that the loan could be used as an offset 

against the increase in value. For equitable distribution 

purposes, the trial court valued the account at the date of 

divorce rather than at the date of the remand hearing. Wife 

argues that the trial court should have used husband's 1988 

partnership Form K-1 as evidence of the increase in capital. 

 "We have stressed that the trial judge in evaluating marital 

property should select a valuation 'that will provide the Court 

with the most current and accurate information available which 

avoids inequitable results.'" Gaynor v. Hird, 11 Va. App. 588, 

593, 400 S.E.2d 788, 790-91 (1991) (emphasis added) (quoting 

Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 

(1987)). "We recognize, however, that this date [of remand] may 

not always be the most appropriate since both fortuitous or 

intentional events can drastically affect values and equities 

between date of classification and valuation, and courts should 
- 5 - 

have the discretion to adopt a different date if the equities of 

the case demand it." Price v. Price, 4 Va. App. 224, 232, 355 

S.E.2d 905, 910 (1987). 

 In this case, the trial court did not abuse its discretion 

in determining the value of the law firm capital account as of 

the date of divorce. The record established that any increase in 

the value of the account after the date of divorce was solely due 

to husband's contributions to the account. 

(3) Interest on the Promissory Note

 The trial court found that a May 15, 1981 promissory note 

from husband to wife was marital property. The court valued the 

note as of the date of divorce and included interest that accrued 

during the marriage in the value of the note. The face value of 

the note was $3,452.53, and the total value of the note, with the 

accrued interest of $1,780.24, was $5,232.77. Wife contends that 

the value of the note should include interest that accrued after 

the date of divorce. 

 Unlike the law firm capital account, no equitable reason 

justifies the trial court's use of the date of the divorce to 

determine the amount of interest that was marital and should be 

considered. The interest on the promissory note accumulated 

without any effort on the part of either party, and thus, the 

trial court erred in including only the interest that accrued 

during the marriage. 

(4) Joint Bank Accounts
- 6 - 

 In the April 19, 1994 order, the trial court awarded two 

joint bank accounts totaling $614.69 to husband and did not 

consider the value of the accounts in determining the monetary 

award. The trial judge held that: 

 Mrs. Gaynor contends that she is entitled to 

one-half of these accounts, but she gives no 

reason, and again there is no automatic 

 one-half share in Virginia. The accounts 

have been paid to Mr. Hird, and no further 

award is required. 

Wife contends that the trial court erred in failing to include 

the joint bank accounts in its monetary award. See Gaynor v. 

Hird, Record No. 1393-86-4, October 4, 1988. The jointly-held 

accounts were marital property, and wife had a legal interest in 

the accounts. Therefore, even though husband was previously 

awarded the accounts and may have withdrawn the money from the 

accounts, the court was not free to disregard their value in 

calculating the monetary award. 

(5) Marital Debts

 The trial court found that the total amount of marital debts 

was $45,657, with $36,457 in both parties' names and $9,000 in 

the name of husband alone. The court apportioned one-half of the 

marital debts to each party, and wife argues that this was error. 

 We agree. Under the version of Code § 20-107.3 in effect when 

the suit was filed, the court had no authority to apportion and 

order payment of various marital debts. See Gaynor v. Hird, 11 

Va. App. at 591, 400 S.E.2d at 789 (holding that "the statute 

existing upon the filing of the bill of complaint controls the 
- 7 - 

disposition of jointly held marital property"). While the court 

had previously identified the marital debts and which party was 

liable for their payment, it had not, until the decree on appeal, 

attempted to apportion or order their payment. 

 (6) Interest on Miscellaneous Personal Property and Expenses

 The trial court divided the parties' personal property and 

awarded husband fifty-five percent of the property and wife 

forty-five percent.1

 Husband held some items of personal 

property, and the court determined that wife owed him $3,891.83, 

fifty-five percent of the assets less the value of those assets 

titled to husband. The court also found that the parties were 

indebted to each other for certain expenses and that wife owed 

husband $834 net expenses. Upon husband's request, the trial 

court awarded husband interest on the personal property and 

expenses retroactive to October 1986 because wife had not yet 

paid the amounts due. Wife asserts that former Code § 20-107.3 

did not classify a monetary award as a judgment, and thus no 

interest could be awarded. 

 Prejudgment interest is usually not allowed on an 

unliquidated, disputed claim. Skretvedt v. Kouri, 248 Va. 26, 

36, 445 S.E.2d 481, 487 (1994). Whether interest should be 

 

 1Wife also argues that the trial court erred in dividing the 

personal property fifty-five/forty-five. This argument is 

without merit because the division of the property was in the 

sound discretion of the trial court. 
- 8 - 

awarded, and from what date interest should run, are decisions 

within the sound discretion of the trial court. Code § 8.01-382; 

Marks v. Sanzo, 231 Va. 350, 356, 345 S.E.2d 263, 267 (1986). An 

award of prejudgment interest serves to compensate a party 

receiving a judgment "for the loss sustained by not receiving the 

amount to which he was entitled at the time he was entitled to 

receive it," and may be "considered necessary to place the 

[plaintiff] in the position he would have occupied if the party 

in default had fulfilled his obligated duty." Id. (quoting 

Employer-Teamsters, Etc. v. Weatherall Concrete, 468 F. Supp. 

1167, 1171 (1979)). 

 In this case, the trial court erred in awarding interest on 

the personal property and expenses. The record demonstrates 

that, although the parties may have been in agreement about the 

division and value of the personal property, they continued to 

dispute the monetary award. In this equitable distribution 

proceeding, the court was required to consider all of the marital 

property in fashioning one monetary award. Although a court may 

properly evaluate each item of property separately, the final 

result is a monetary award based on the aggregation of all of the 

marital property and consideration of all of the factors. 

Therefore, the amount that equalized the division of the marital 

personal property was not a separately due and payable award, and 

it was error to treat it as such. 

 Additionally, the version of Code § 20-107.3(D) in effect 
- 9 - 

when this case was filed does not provide that a monetary award 

is a judgment and that the interest of provisions of Code 

§ 8.01-382 apply. 

(7) Imputed Rent

 The trial court found that wife's right to rent was "limited 

to the [twenty-five] percent share representing her contribution 

or investment, for purposes of both the equitable distribution 

proceeding and the accounting." Wife argues that her share of 

the rent is separate property, not subject to equitable 

distribution. We agree. See Dietz, 17 Va. App. at 210, 436 

S.E.2d at 468 (holding that property acquired after separation is 

not acquired during the marriage and is not marital property 

unless obtained with marital funds). 

ENTRY OF THE ORDER

 Wife argues that the entire order is void under Rule 1:13. 

We hold that the requirements of Rule 1:13 were satisfied because 

wife was provided written notice of the presentation of the 

orders and copies of the orders four months before their entry. 

 Accordingly, the decision of the trial court is reversed and 

the matter remanded for further proceedings consistent with this 

opinion. 

 Affirmed in part,

reversed in part,

and remanded.