COURT OF APPEALS OF VIRGINIA
Present: Chief Judg e Decker, Judge Beales and Retired Judge Bumgardner * Argued at Richmond, Virginia

MARY CARTER McCONNELL MEMORANDUM OPINION ** BY v. Record No . 0107-19-2 JUDGE RANDOLPH A. BEALES JULY 30, 2019 JAMES HOGE TYLER McCONNELL, JR.

FROM THE CIRCUIT COUR T OF ORANGE COUNTY William H. Shaw, III, J udge Designate Seth J. Ragosta (John Rinehart Bryant; Lenhart Pettit PC; Flora Pettit; Rinehart, Butler, Hodge, M oss & Bryant, P.L.C., on brie fs), for appellant. John B. Simpson (MartinWren, P.C., on brief), for appellee.
Mary Carter McConnell (“wife”) appeals the Oc tober 24, 2018 fin al decree of divorce of the Circuit Court of Orange C ounty awarding her a divorce from James Hoge Tyler McConnell, Jr. (“husband”) and addressing ma tters of equitable distributio n and spousal support. Husband assigned cross-error, alleging tha t the trial court erred when it concluded that he had gifted the home and property where the couple resided during the marriage to the marital estate.
I. B ACKGROUND Husband and wife were married on August 30, 1985, and separate d on October 20, 2012, after a twenty-seven-year marriag e. There are no children fromthe marriage.

* Retired Judge Bumgardner t ook part in the hearing and decisionof this case by designation pursuant to Code § 17.1-400(D).

** Pursuant to Code § 17.1-413, this opinion is not designated fo r publication.UNPUBLISHED- 2 - Husband is an heir of the DuPont family and the beneficiary of several family trusts. The evidence at trial established that, without invading the princi pal of any of these t rusts, husband’s income during the majority of the marriage was approximately $1 million per year. Although husband did not produce any i ncome during the marriag e through employment that generated tax withholdi ng, testimony from husband and wife established that husband had considerable knowledge and experience with the stock market and in investing. Husband, who testified that he had been inter ested in investing since shortl y after he graduated from college, managed investment accounts for friends and family members duri ng the parties’ marriage. The trial court found that it was “cl ear from trial testimony that Husband has been a sophisticated investor since before the marriage.” Wife, who was completing her doctorate when the parties met, w orked briefly as a college professor for several years after the parties married. The trial court found that her “total gross earnings during the marriage likely did not exceed $40,00 0.00” and that her only other source of income was annual gifts from husband’s mother and ste pfather, which she deposited into the parties’ joint checki ng account. Wife stopped working completely a few years after the parties married, a decision that the trial court found was made by mutual agreement. After an eight-day trial in M arch 2017, the trial court awarde d wife a divorce based on the parties’ separation for m ore than one year. In addition, t he trial court addr essed equitable distribution of the parties’ property and spousal support. Whi le a number of assets were addressed by the trial court in the distribution, at issue in t his appeal is the trial court’s assignment to husband of the ent irety of the appreciation in va lue of his Merrill Lynch account and the entirety of the apprecia tion in value of his Berkshire Hathaway stock as well as the trial- 3 - court’s division of the value of t he parties’ marital residence , “Summer Duck Wood.” Wife also appeals as inadequate the tri al court’s award to her of $17,500 per month in spousal support. 1 The Merrill Lynch Account The evidence presented at trial demonstrated that the Merrill Lynch account was established through husband’s se parate funds – namely from gift s and income from trusts of which husband was a beneficiary. A t trial, wife sought to prov e that, although the account was established with husband’s separ ate funds, the increase in the value of the account was marital property pursuant to Code § 20-107.3 (A)(3)(a) because the accou nt experienced “substantial appreciation” as a r esult of husband’s “per sonal efforts” emplo yed during the marriage. See Code § 20-107.3(A)(3)(a). On the issue of whether the acc ount experienced “substantial a ppreciation,” wife relied on the testimony and reports of R. J effrey Malinak, her expert witness. Malin ak stated that husband’s account appreciat ed $659,264 from December 1989 throu gh October 2012. He testified that, in his opin ion, no benchmark should be used to measure whether the appreciation of husband’s Merrill Lynch account was substantial or, if a ben chmark must be used, that the performance of the account should be compared with the performa nce of a Treasury bill. Husband relied on the testimony of h is expert witness, Peter Tu z. Tuz opined that the account appreciated $467,290 be tween 1997 and 2013. He testifi ed that, in order to determine how well the account performed, he needed to use a benchmark fr om which he could measure the performance of the fund, a nd he stated that the S&P 500 ind ex was the “most commonly used benchmark in investing.” He test ified that husband’s Merrill L ynch account underperformed the

1 We view the evidence regardi ng the Merrill Lynch account, the Berkshire Hathaway stock, and the spousal support awar d in the light most favorabl e to husband because he prevailed on those issues before the tri al court. Wright v. Wright, 61 V a. App. 432, 451 (2013). Similarly, we view the facts regarding Summe r Duck Wood in the light most favorable to wife because she prevailed on that issue be fore the trial court.- 4 - S&P 500, noting in his July 1, 2015 re port that in a fifteen-ye ar period (beginning in 1997), the S&P 500 had a compound average r eturn of 6.50%, while husband’s Merrill Lynch account experienced only a comp ound average return of 3.96%. In its June 7, 2018 letter opinion, w hich was incorporated into the final decree, the trial court concluded that it could not use a benchmark of zero to me asure the increase in value of the account because Code § 20-107.3(A)(3)( a) requires that the asse t experience “substantial appreciation” – not just a mere i ncrease – before income from s eparate property can become marital. The trial judge found that “[b]ecause the compositionof the Husband’s account more closely approximates the composition of the S&P 500, than it do es any other suggested measuring tool,” the S&P 500 was t he “proper measuring tool” fo r determining whether the account had substantially apprec iated. The trial judge found that if the account had outperformed the S&P 500, that increase above the index would h ave been marital, but because it had not, the increase in the account was “passive appreciati on” – i.e., the result of “market or other passive forces” – n ot from husband’s efforts. 2 Therefore, the trial court concluded that the increase in value of the Merri ll Lynch account was not marital property and designated it entirely as husband’s separate property. The Berkshire Hathaway Stock Husband testified that he first i nvested in Berkshire Hathaway in 1983, prior to the parties’ marriage, when he purchas ed ten shares of the stock. He testified that he had been following Berkshire Hathaway for a lmost two years prior to that point and that he had been

2 The trial court did not make a ny findings about whether husban d expended “significant personal effort” in his management of the Merrill Lynch account . The trial judge simply found that “ assuming that Husband expended significan t personal effort in his manag ement of the Merrill-Lynch Account, no part of t he increase in value of the Merrill-Lynch account is marital property because the increase wa s not ‘substantial.’” (Emphasi s added.)- 5 - reading books and magazine articles about Warren Buffett, Berks hire Hathaway’s principal. He stated that he continued to buy the stock in “10-share lots” ov er time with plans to hold it. He testified that he formed the i ntention to purchase 100 shares b etween 1980 and 1983, before he even made his first 10-share pur chase, and explained that the s hares had to be purchased over time because 100 shares were not available for purchase throughthe market at the time. Wife also testified about husband’s in terest in Buffett prior to the ir marriage. She stated that he had written her a letter in which he “explained the brilliance of W arren Buffett” and how he wanted her “to know about Warren Buffett and this new form of investin g.” At one point during the marriag e, husband had accumulated a to tal of 120 shares of Berkshire Hathaway stock. Of the 120 shares, 30 had been purch ased before the marriage and 90 had been purchased by husband during t he marriage using his sep arate funds. Husband testified that in 2005, he sold 90 of the shar es of the stock in order to pay off a loan from SunTrust for which the stock had been collatera l. He testified that this wa s “effectively an involuntary sale” resulting from the “collateral . . . becoming less than accepta ble by the bank” because of the falling value of the stock at the time. At the time of trial, husband still possessed 30 shares, and he testified that he kept the sto ck certificates for them in hi s safe deposit box. It is undisputed that husband’s Berkshire Hathaway stock perfo rmed extremely well over the length of the marriage. The trial judge noted, “Mr. Maline k estimated that the increase in value of Husband’s Berkshire Hathaway stock was $8,400,000.00 a s of October 2012. Mr. Tuz noted that the gross return on t he 2005 sale of 90 shares of Be rkshire Hathaway Stock to pay a debt was $6,668,896.00 ($7,113,655.00 less costs of $ 444,759.0 0).” At trial, wife argued, as she had with the Merrill Lynch account , that the increase in value of the Berkshire Hathaway stock was marital because its appreciation was the result of husband’ s significant personal efforts. The trial court rejected wife’s argument and found that husband did not expend significant personal- 6 - efforts on the Berkshire Hatha way stock during the marriage. I t designated the shares and their appreciation as husband’ s separate property. “Summer Duck Wood” Summer Duck Wood was comprised of six connected parcels contain ing a total of 1,566 acres in Orange County and ha d an agreed value of $6,800,000. The parcels of property that comprised Summer Duck Wood were acquired over the course of the marriage, and it served as the parties’ residence during the majority of the marriage. Th e largest portion of the property was acquired by the parties i n 1988 and then additional, smalle r parcels were added in 1989, 1996, and 2010. 3 The evidence presented at tria l established th at each of the parcels was acquired by the parties as tenants by the entirety except for a1996 deed to a 0.6626-acre parcel. That parcel had previously been purchased and conveyed solely t o husband. Husband then caused a “Deed of Gift” to be e xecuted conveying the property t o himself and wife as tenants by the entirety “for and in consider ation of their love and affect ion.” While acknowledging that property acquired during the marriage is generally presumed to be marital, the trial court concluded that husband had succe ssfully retraced the source of the funds for the acquisition of the parcels to his separate property. However, the trial court ultimately found that Summer Duck Wood was marital property bec ause husband had gifted the property to the marital estate. It awarded Summer Duck Wood to husband and ordered him to pay wife $2,250,000 for her share of the marital property. Wife testified at leng th before the trial court regarding the h orses and dogs that the parties kept at Summer Duck Wood. The trial court found that “[a]ll of the animals were acquired

3 The trial court’s letter opin ion states that a deed for approx imately 14 acres was acquired on May 2, 1986, whereas the r ecord shows that this dee d is dated May 2, 1996. Both dates were after the parties’ marriage in 1985.- 7 - during the marriage and both parties were intensely involved intheir breeding and development for several years.” The trial court determined that the animal s were marital property and awarded them all to wife in exc hange for her payment to husbandof one-half of their value. It also permitted her to choose to r etain some but not all the ani mals and adjust the payment to husband accordingly. Spousal Support At trial, wife testified that she estimated that she had a tot al of $40,950 in monthly expenses. She testified that th is amount would allow her to ma intain a new farm that she planned to buy in order to conti nue the horse breeding program that she began at Summer Duck Wood. In its letter opinion, the trial court addressed each of the statutory factors in Code § 20-107.1(E) and awarded wife $17,500 per month for an indefin ite period.
II. A NALYSIS “In reviewing an equitable di stribution award on appeal, we ha ve recognized that the trial court’s job is a difficult one, and we rely heavily on the disc retion of the trial judge in weighing the many considerations and circumstances that are presented in eac h case.” Klein v. Klein, 11 Va. App. 155, 161 (19 90). “Accordingly, ‘decisions concerning equitable distribution rest within the sound discretion of the tri al court and will not be reverse d on appeal unless plainly wrong or unsupported by the evidence.’” Wright v. Wright, 61 Va. App. 4 32, 450 (2013) ( quoting McDavid v. McDavid , 19 Va. App. 406, 407-08 (1994)). The Appreciation of the Merrill Lynch Account The trial court found that the appreciation in value of the Me rrill Lynch account was husband’s separate property be cause it found that wife did not satisfy her burden to prove that the increase in value in the acc ount was “substantial.” On app eal, wife contends that the trial court erred “by finding that a be nchmark [namely, the S&P 500] was required to establish- 8 - substantial appreciation unde r Va. Code § 20-107.3 and that the refore the increase in value of Husband’s investment holdings was not substantial under the sta tute.” Code § 20-107.3(A)(3)(a) provides th e framework for wife’s ass ignment of error. It states, in relevant part: In the case of income received from separate property during th e marriage, such income shall be marital property only to the ext ent it is attributable to the persona l efforts of either party. Inthe case of the increase in value of sep arate property during the marria ge, such increase in value shall be marital property only to the ex tent that marital property or the pers onal efforts of either party h ave contributed to such increases, pr ovided that a ny such personal efforts must be significant and r esult in substantial appreciat ion of the separate property. For purposes of this subdivis ion, the nonowning spouse shall be ar the burden of proving that (i) co ntributions of marital propert y or personal effort were made and (ii ) the separate property increa sed in value. Once this burden of proof is met, the owning spouse shall bear the burden of proving tha t the increase in value or some portion thereof was not caused by c ontributions of marital prop erty or personal effort. The Supreme Court addressed C ode § 20-107.3(A)(3)(a) in David v . David, 287 Va. 231 (2014), where it considered whether Mrs . David should share in the appr eciation in value of Mr. David’s separate property, an “Investmen t/Brokerage” ac count, that occurred during the marriage. Id. at 234. The trial court had conclude d that the increase in the va lue of the account was marital and divided it between the forme r spouses. Id. at 235. On appeal, a panel of this Court reversed the trial court, ruling “that [Mr s. David], the non-owning spouse, had failed to carry her burden of proving that the substantial a ppreciation in the value of the a ccount, approximately $316,000, was proximately caused by [Mr. Dav id’s] significant personal ef forts during the marriage, and was therefore marital property.” Id. at 234. The Supreme Cour t reversed the panel of this Court, holding that Code § 20-107.3(A)(3)(a) “does not require the non -owning spouse to prove causation.” Id. at 239. The Suprem e Court explained that, aft er “the non-owning spouse makes- 9 - a prima facie showing of a spous e’s personal efforts during the marriage . . . and an increase in value of the separate property,” the statute “places the burden of disproving causation on the owning spouse.” Id. The Supreme Court remanded the case back to this Court, which applied the prescribed burden-shifting analysis. David v. David, 64 Va. App. 216, 221 (2015). This Court concluded that Mrs. David had met her burden of proving that the account had experienced a substantial increase, noting that substantial appreciation “is not a term o f art.” Id. at 222. It reasoned that the “increase in the account from $234,783 to $551,521 speaks f or itself” and that the “trial court could rely on the financial state ments showing the significant growth in the account’s value to reach a conclusion that the appr eciation during the marriage wa s significant for purposes of Code § 20-107.3(A)(3)(a).” Id. This C ourt also found that Mrs. Dav id had proved that Mr. David had expended personal efforts in man aging the account, but remanded the case back to the trial court to determine whether Mr. Davi d met his burden of proving “that the increase in the value of the account was attributable to som ething other than his own effort s, such as appreciation due to market forces.” Id. at 221. Here, the trial court found tha t the S&P 500 was an appropriat e benchmark because it found that the outperformance of the S&P 500 would “reflect[] s omething other than market or other passive forces” while any increase in the account that di d not surpass the S&P 500 would reflect only “passive appreci ation . . . i.e., such appreciatio n would be the same appreciation to the account as if Husband did not hing.” By defining “substanti al appreciation” as active appreciation (i.e., only tha t appreciation realized through hus band’s personal efforts), the trial court impermissibly placed the burden on wife, the non-owning s pouse, of proving that husband
caused the account’s appreciation in value. See David, 287 Va. at 23 9.- 10 - However, even assuming that wife did meet her burden of provin g that the account substantially increas ed in value and that husband expended sign ificant personal effort on the account, the trial court did not e rr in concluding that the inc rease in the value of the account was not marital because husband showed that his efforts did not cause the substantial increase. The trial court stated that it “accept[ed] Mr. Tuz[’s] conclusion t hat Husband has not outperformed the market [as measured by the S&P 500] by his management of th e Merrill-Lynch Account” and that any increase in value of the account below the increas e of the S&P 500 was “passive appreciation” or “ the same appreciation to that account as if Husband did nothing .” (Emphasis added.) Code § 20-107.3(A)(3)(a) d oes not mandate any specific method that a trial court must use to determine whether the appreciation in an account is the result of the owning spouse’s efforts or simply of passive appr eciation, leaving that decisio n to the trial court’s discretion. Here, the trial court relied on T uz’s testimony that the S&P 50 0 was the most commonly used benchmark in investing and that it was suitable for the evaluat ion of husband’s account in light of the composition of the portfolio of investments in the account. The trial court adopted that benchmark in its discretion, finding that husband’s account “mo re closely approximates the composition of the S&P 500, than it does any other suggested me asuring tool,” and we will not reverse that finding of fact on a ppeal. Thus, the trial court did not err in deci ding that the appreciation in the Merrill L ynch account is husband’s separate property. The trial court’s factual findings illustrate that husband met his burden of disp roving wife’s argument that his personal efforts actually cause d the appreciation of the Merril l Lynch account. The Appreciation of the Berkshire Hathaway Stock Wife argues that the trial court erred in concluding that husb and did not exert significant personal effort in managing the B erkshire Hathaway stock. She argues that it was error for the trial court to accept husband’s “self-serving, uncorroborated, illogical and inconsistent testimony- 11 - that his acquisition of the Berks hire Hathaway stock was simplythe result of a plan he made before the marriage to buy 100 sha res and that he never gave an y further thought to the issue beyond that over the course of twe nty-seven years.” She also c ontends that husband’s decision to hold onto the stock for a major ity of the marriage – rather than to frequen tly buy or sell it – was significant personal effort because that decision came from husband’s “mental effort,” including his “detailed reviewand maintenance” of his investme nts and his “utilization of significant, highly tech nical resources.” “It is well established that the trier of fact ascertains a wi tness’ credibility, determines the weight to be given to their test imony, and has the discretion t o accept or reject any of the witness’ testimony.” Str eet v. Street, 25 Va. App. 380, 387 (1 997) ( en banc ). “Where, as here, a court hears evidence ore tenus , its findings are entitled to t he weight of a jury verdict, an d they will not be disturbed on appeal unless plainly wrong or withoutevidence to support them.” Gray v. Gray, 228 Va. 696, 699 (1985). While the trial court acknowle dged that husband “possessed the intelligence, knowledge and skill to participate in mar ket activities,” it credited hus band’s testimony that he had researched and formed his plan to purchase the Berkshire Hathaw ay stock prior to the date of the marriage. It found that husband had purchased 30 shares of the stock before the marriage, but could not buy more at that time because more shares were not av ailable and thus husband’s continued purchases of the stoc k during the marriage “was essen tially maintenance and not significant personal effort.” Def erring to the trial court in determining witness credibility, we cannot say that its findings ar e plainly wrong or without evide nce to support them. Furthermore, the trial court did not find, as wife asserts it did, that husband “never gave any further thought” to the continued purchase of Berkshire Hat haway stock during the marriage. On the contrary, the trial cour t recognized that husband contin ued to monitor and buy the stock- 12 - after the parties married. H owever, it found husband’s monitor ing of Berkshire Hathaway during the marriage in connecti on with his pre-marital plan to buy 100 shares of the stock was not significant personal effort , but rather simple maintenance of a plan that he had already developed and put into action before the marriage. ‘“[C]ustoma ry care, maintenance, and upkeep’ of separate property doe s not qualify as significant pe rsonal efforts. In the context of a stock account, routine adjustme nts to the portfolio – adding to stocks that are performing well and culling underperforming stocks – does not constitute signif icant personal effort.” David, 64 Va. App. at 223 (alteration in origin al) (citations omitted) (q uoting Martin v. Martin, 27 Va. 745, 755 (1998) ( en banc )). We cannot say that the tria l court erred in finding that h usband simply performed mere maintenance afte r his marriage on the Berkshire Hathaway stock in accordance with his pre-marital plan. The refore, we find no error in the designation of the appreciation of the value of that stock as husband’s separate property. 4 The Trial Court’s Treatment of the Berkshire Hathaway Stock and Merrill Lynch Account as Separate Assets Wife contends that the trial court erred by treating the Berks hire Hathaway stock and the Merrill Lynch account as separate assets “in a way that provide d justification for denying Wife’s claims in one way for part of the investment portfolio and in a nother way for another part.” She argues that the separate treatme nt of these assets is especiall y problematic given that “the majority of both pieces existed at trial within the same Merrill Lynch investment account .”

4 Wife also argues that “the tr ial court erred by finding that s ignificant efforts must involve actually manipulating th e company represented by the st ock itself, rather than address the overall nature of Husband’ s activities and the resulting de terminations that he made which resulted in extraordinarily su ccessful investment returns.” Wh ile the trial court did find that husband did not increase the value of the Berkshire Hathaway st ock because he “was not an officer[,] director, or employee” and because he “did not atten d meetings, or otherwise have any connection with the a sset,” we do not reac h this issue because the trial court’s first reason – that husband did not exert significant personal effort because he wa s acting according to the plan he formed prior to the marriage – i s sufficient for our decision.- 13 - In its letter opinion, the trial court noted wife’s position t hat these two assets should be treated together as one asset. H owever, the court stated that it could not treat them as one asset because “Husband has maintained them as separate assets.” This finding is supported by credible evidence in the reco rd. Husband testified he kept his Berkshire Hathaway stock certificates in his safe depos it box, and his discovery respons es to wife listed the stock as a separate asset from the Merrill Lynch account. 5 Significantly, both parties’ expe rts, Tuz and Malinak, in thei r presentations to the court, addressed these assets separat ely. Wife’s own expert, Malinak, treated the Berkshire Hathaway stock and the Merrill Lynch account as separate assets in his r eports and oral te stimony. Malinak provided figures for each asset wi th respect to their appreciat ion during the marriage, addressing each asset in a different subsect ion of his report. Given thatwife’s own expert treated these assets in this manner, the tri al court did not abuse its discre tion in treating them separately in its analysis and opinion as well. The Division of the Value of “Summer Duck Wood” In his cross-assignment of erro r, husband argues that the tria l court erred in finding that Summer Duck Wood was a gift to th e marital estate “where Wife’s belated, inconsistent,

5 Wife contends, without any refer ence to the record, that “the majority of both pieces [Merrill Lynch investments and B erkshire Hathaway stock] existe d at trial within the same Merrill Lynch investment account .” However, the evidence pres ented at trial was that husband’s remaining Berkshire Hathaway sto ck was kept in the form of phys ical stock certificates, which were located in his safe de posit box. While husband stated tha t he kept some Berkshire Hathaway class B stock in the M errill Lynch account, that stock is not at issue in this appeal. Wife’s assertion, therefore, presum ably refers to her belief th at, through a series of transactions beginning with the 2005 sale of 90 Ber kshire Hathaway shares to pay off a loan from SunTrust Bank and ending with a transacti on in 2012 involving a trust th at had been established by husband’s late mother, husband ultimately deposited $5 million of what was essentially proceeds of the 2005 sale of the stock i nto his Merrill Lynch account. Even if the trial court believed wife’s argument that it was the proceeds from the sale of the B erkshire Hathaway stock that were eventually deposited in 2012 int o the Merrill Lynch account, we cannot ignore the trial court’s factual finding that husband “mainta ined them as separate asset s” – and the fact that both experts, including wife’s own expe rt, treated the assets as sep arate.- 14 - contingent, and fallback theory w as that it was gifted to her, not the marital estate.” Primarily, husband argues that wife only argue d the theory that Summer Duc k Wood was a gift as a “contingent, fallback theory” a nd that “[b]y making her primarytheory that Summer Duck Wood was marital because her own and ma rital funds were used to acqu ire it, Wife necessarily, on her own, rendered her contingent a nd back-up gift theory doubtful a nd uncertain as a matter of law.” (Emphasis omitted.) Husband’s argument ignores the w ell-settled principle that a p arty is permitted to argue alternative theories. See Hoar v. Great E. Resort Mgmt., Inc., 256 Va. 374, 382 (1998) (“It is the rule in Virginia that a litigan t ‘may plead alternative facts and theories of recove ry’ and ‘state as many separate claims or defenses a s he has regardless of consis tency.’” (quoting Rule 1:4(k))). While wife testified that she de posited the money that she earn ed as a professor and that she received as gifts into the partie s’ SunTrust account, wife’s tr ial counsel also argued that the evidence established that Summer Duck Wood was a gift to the ma rital estate such that she should share in its value. 6 The trial court did not abuse its discretion in permitting wi fe to argue these alterna tive theories. Husband also argues that wife failed to prove each element of a gift by clear and convincing evidence. “[T]o est ablish the existence of a gift, wife was required to prove, by clear and convincing evidence, the fo llowing three elements: ‘(1) th e intention on the part of the donor to make the gift; (2) delive ry or transfer of the gift; a nd (3) acceptance of the gift by the donee.’” Robinson v. Robinson, 46 Va. App. 652, 665 (2005) ( en banc ) (quoting Theismann v. Theismann, 22 Va. App. 557, 566, a ff’d on reh’g en banc, 23 Va. App. 697 (1996)). The first

6 Husband contends that wife’s arg ument to the trial court was t hat Summer Duck Wood was a gift to wife and not to the marital estate. H owever, the record illustrate s that, while wife occasionally framed her argument in this manner, her contention was clearly that husband had gifted the property to the marita l estate for the parties to sh are as joint tenants by the entirety – not that he ever intended to re linquish his interest in the pro perty to her alone.- 15 - element of a gift, donative intent , is a factual determination for the trial court . Cirrito v. Cirrito, 44 Va. App. 287, 305 (2004). Here, the trial court made numer ous findings of fact to support its ultimate conclusion that Summer Duck Wood was a gift to the marital estate. The tr ial court found the manner in which the various properties were acquired and titled was proba tive. It noted that each of the parcels was titled in the name s of both husband and wife as ten ants by the entirety, which, while certainly not dispositive or pres umptive, can be evidence to su pport a finding that it was a gift. Rowe v. Rowe, 24 Va. App. 123, 137 (1997). In the June 7, 2018 letter opinion, the trial judge noted that husband had purchas ed a 0.6626-acre parcel in 1995 a nd executed a Deed of Gift of this property to himself and wif e as tenants by the entirety in1996. The judge found that, in addition to this deed, which clear ly showed intent to make a gi ft of this parcel, husband’s efforts to put all the land in bo th parties’ names throughout the marri age was evidence of his donative intent as to Summer Duck Wood a s a whole. The judge stated “th at at the different times of acquisition Husband consistentlycaused the Summer Duck Wood pr operties to be jointly titled for the benefit of both parties as marital property, best illus trated by causing the Deed of Gift to be executed which, in my view, i nforms [husband’s] donative int ent with respect to the ownership of Summer Duck Wood, ge nerally, not just that singular parcel.” The judge also noted that husband was experienced in real estate matters and y et “did not in any way limit the consequence or effect of the c onveyance of Summer Duck Wood int o the marital estate.” The trial court also credited wife’s testimony suggesting that husband had wanted to share Summer Duck Wood with her. Specifically, the trial judge believed her testimony that husband had rejected an offer fr om wife to sign a prenuptial ag reement and her testimony that husband had told her that he wante d to share the property that was to be their marital residence- 16 - with her and not do as his sibl ings, who had reportedly opted n ot to share their separate assets with their spouses. The trial court also found it si gnificant that husband held out to others that the property belonged to both husband and wif e – not to husband alone. The trial court found that husband held out to his mother, who had l oaned him money for the purcha se of Summer Duck Wood’s core parcel, that the property would belong to both him and wif e. In a November 1988 letter, he stated, “Again, Mary and I tha nk you for assisting us by making this loan so that we could purchase the land in Orange County.” (Emphasis added.) In add ition, in an August 15, 1989 letter, he wrote, “Again, Mary a nd I than(sic) you very much fo r extending this one year loan to

us so that we could purchase the farm in Orange County, Virginia.” (Emphasis added.) In addition, the trial court cons idered the fact that the prope rty was used as the marital residence and that at the time the parcels were acquired and improved upon, “the marriage was then loving and close.” Given these factual findings, whi ch are supported by credible e vidence in the record, we cannot say that the trial court’s finding that husband intended to gift the property to the marital estate was plainly wrong. Furth ermore, the trial court did not err in finding that the remaining elements of a gift – acceptance and delivery – were present. Spousal Support Wife argues that the trial court erred in awarding her “only $ 17,500 per month” because that amount is “insufficient t o provide her with any semblance of the lifestyle to which she was accustomed [ ] during the parties’ marriage, especially when ba lanced against Husband’s vast wealth, and thus, ability to pay.” “In fixing the amount of the spousal support award, . . . the court’s ruli ng will not be disturbed on appeal unless there has been a clear abuse of disc retion. We will reverse the trial- 17 - court only when its decision is plainly wrong or without eviden ce to support it.” Moreno v. Moreno, 24 Va. App. 190, 194-95 (1997) (quoting Gamble v. Gambl e, 14 Va. App. 558, 574 (1992)). “Where th[e] evidentiary foundation exists and the re cord discloses that the trial court ‘has given due consideration to each of [the statutory] factors ,’ we will not disturb its determination as to spousal s upport on appeal.” Miller v. Cox, 44 Va. App. 674, 679 (2005) (second alteration in original). In this case, the trial court c onsidered each of the statutoryfactors in Code § 20-107.1(E) and included factual findings regarding each of the factors in its letter opinion, including even noting when it found that no evide nce had been presented on a p articular factor. While wife challenges the amount of the spousal support award provided to her, she does not challenge the trial court’s individual findi ngs used to determine the award. The trial court certainly accepted wife’s position that she neede d spousal support, finding that a lthough she was educated, she had not worked outside the home si nce the 1990s and that she was un likely to receive income from any other source. It recognized t he parties’ “lavish standard of living” but also noted that “they did not live beyond their means to a fford their life style.” T he trial court also c onsidered the fact that wife was being awarded “a sizable liquid award for her int erest in marital property” and that her request for expenses “includ e[d] the cost of caring for the animals, on her assumption that she would gain ownership of them. ” Based on the evidence in th e record and the letter opinion’s illustration of the trial court’ s careful consideration of each of the statutory fact ors required for setting an award, we cannot say t hat it abused its discretion i n awarding wife $17,500 per month. Attorney’s Fees Wife requests appellate attorney ’s fees, arguing that the husb and’s cross-assignment of error was not made in good faith. “In determining whether to m ake such an award, the Court of Appeals shall not be limited to a consideration of whether a pa rty’s position on an issue was- 18 - frivolous or lacked substantial me rit but shall c onsider all th e equities of the case.” Rule 5A:30(b)(3); see also O’Lough lin v. O’Loughlin, 23 Va. App. 690 , 695 (1996). After considering the record in this case, we deny wife’s request for appellate attorney’s fees.
III. C ONCLUSION In short, the trial court did not err in finding that the appr eciation of the Merrill Lynch account was husband’s se parate property. It found that, given the composition of the investment portfolio in the account, its perf ormance should b e measured ag ainst the S&P 50 0 – and that the account underperformed when compared with that benchmark. Both of these findings of fact are supported by credible evidence in the record. The trial court did not err in its ultimate conclusion that the increase in value of the Merrill Lynch account was not marital property because husband demonstrated that market forces – not his personal efforts – ca used the increase in the account. The trial court also did not err in determining that the incre ase in value of the Berkshire Hathaway stock was not marital. The trial court found that hus band had conducted research and formed a plan to purchase the stock prior to the marriage and that any effort he made during the marriage was simply maintenance c onsistent with his original pl an, which was conceived and put into place prior to the marriage. These findings are supported by credible evidence in the record, and we cannot say they are plainly wrong. We also conclude that the tria l court did not abuse its discre tion in treating the Merrill Lynch account and the Berkshire Hathawa y stock as two separate assets . Both husband’s and wife’s experts submitted reports and pr ovided testimony to the trial c ourt that treated them as separate assets, essentially i nviting the trial cour t to treat them sepa rately as well. On the last equitable distribution matter at issue in this app eal, we certainly cannot say that the trial court erre d in finding that Summer Duck Wood was a gi ft from husband to the marital estate. The trial court pointed to numerous pieces of evidence that supported its finding of fact that- 19 - husband had the donative intent t o make a gift of Summer Duck W ood to the marital estate, including the fact that he repeat edly made effort s over a numbe r of years to have the property titled in both their names as tenants by the entirety and that he even executed a “Deed of Gift” to wife and himself for a parcel t hat was initially in h is name alone. The trial court also found circumstantial evidence of husband’s donative i ntent in his holding out to his family and friends that Summer Duck Wood belonged to both partie s, and it credited wife’s test imony that husband had rejected the idea of a prenuptial ag reement and that he had indicated to her his desire to share the property with her. In light of the trial court’ s numerous stated reasons sup porting its finding of fact of husband’s donative intent, we find no error in its determination that he gifted the property to the marital estate. With respect to wife’s assignment of error regarding spousal s upport, the trial court considered each of the required statutory factors in Code § 20- 107.1(E) and actually cited the evidence in the record relevan t to each factor. On appeal, we do not simply reweigh the trial court’s determination, and we co nclude that it did not abuse it s discretion in awar ding her $17,500 per month. Finally, we deny wife’s request for attorney’s fees incurred i n this appeal. For all of these reasons, we aff irm the decision of the trial court. Affirmed.