COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Agee 

Argued at Salem, Virginia 

EARL DEAN ROBERTS 

 MEMORANDUM OPINION* BY 

v. Record No. 0095-01-3 JUDGE G. STEVEN AGEE 

 OCTOBER 23, 2001 

PATRICIA LEE ROBERTS 

FROM THE CIRCUIT COURT OF LEE COUNTY 

Birg E. Sergent, Judge 

 Lonnie L. Kern (Kern & Kern, P.C., on brief), 

for appellant. 

 Charles L. Bledsoe for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Earl Dean Roberts (husband) appeals the December 14, 2000 

decision of the Lee County Circuit Court on the issue of 

equitable distribution upon the termination of his marriage to 

Patricia Lee Roberts (wife). Husband contends on appeal that 

the circuit court erred by accepting the appointed 

commissioner's findings and determinations as to the equitable 

distribution of the parties' property. It is his contention 

that the commissioner failed to properly classify real property 

in Kentucky, failed to properly value real and personal property 

in the marital estate, and made the equitable division without 

considering the mandatory factors in Code § 20-107.3. As the 
commissioner's report, which was adopted by the circuit court, 

fails in most instances to fully specify the marital, separate 

and hybrid interests of the parties in all properties in 

dispute, with attendant values, and because we do not find 

support in the record that the statutory factors were properly 

considered or applied in this matter, we remand this matter for 

further consideration. Certain aspects of the court's decree 

are affirmed as set out below. 

 As the parties are fully conversant with the record in this 

case (such as it is) and because this memorandum opinion carries 

no precedential value, only those facts necessary to a 

disposition of this appeal are recited. The Court notes the 

preparation of the record made disposition of this case 

unnecessarily difficult. 

I. BACKGROUND 

 Husband and wife have been involved in an acrimonious 

divorce proceeding for several years. On August 9, 1999, the 

circuit court appointed a special commissioner to consider the 

basis for the divorce, to determine equitable distribution and 

spousal support. The parties submitted depositions to the 

commissioner for her consideration, and she presented her final 

report on March 15, 2000. Exceptions were filed, and various 

hearings held during 2000 over claimed deficiencies in the 

commissioner's report. 

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 The commissioner's report set out an equitable distribution 

scheme to which both parties initially objected. The parties' 

property in Lee County was valued at $120,700, based on the only 

submitted appraisal at the time, with a secured deed of trust 

lien against it in the amount of $52,0001 at the time of 

separation. While husband paid approximately $12,000 toward 

that secured debt during the separation, the commissioner added 

the total amount of the payments to the equity determined by 

appraisal of that property. Then, the commissioner recommended 

the parties equally divide the revised "equity" of $80,700. 

Husband was given the option to purchase wife's interest in that 

property and declined. The commissioner determined real 

property in Middlesboro, Kentucky, to be the separate property 

of wife. 

 The commissioner and the circuit court failed to classify 

the personal property but proceeded to divide it. Wife was 

awarded a 1990 Ford pickup truck valued at $6,200, a Honda 

four-wheeler valued at $4,500, a horse trailer valued at $5,000, 

three horses collectively valued at $4,000, the horses' tack 

valued at $2,500, and one-half the cow herd valued at $275 a 

head. In addition, wife was awarded the following items, which 

 1

 It appears that the assigned number of secured claims and 

the amount of secured indebtedness against the property at the 

time of separation was clearly erroneous and was actually much 

greater. Apparently the parties agree this is marital property 

although neither the commissioner nor the circuit court made a 

finding of its classification. 

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were not classified as marital or separate property nor were 

they valued by the commissioner: a salt holder, stall mats, a 

cherry bedroom suite, a cedar chest, a set of dishes, quilts, a 

clown collection, a Mr. and Mrs. Claus set, a computer, a 

tobacco setter, and everything else in her possession. 

 Husband was awarded a 1989 Bronco valued at $4,000, a 1986 

Ford pickup truck valued at $750, a Kawasaki four-wheeler valued 

at $2,000, a hay baler valued at $4,000, farm equipment valued 

collectively at $8,000 and one-half the cow herd. In addition, 

husband was awarded all furniture and furnishings in the marital 

home not specifically awarded to wife. These items were not 

identified nor were they valued. 

 Each party was to "share equally in the retirement benefit 

of the other accrued during the course of the marriage." 

However, no values were assigned. 

 The commissioner determined that all debt in either of the 

parties' names at the time of separation was marital debt and 

made the following division: wife was responsible for $12,050 

of the indebtedness, with husband to be responsible for the 

remaining $30,500. No rationale was given for the allocation of 

debt. 

 By a final order dated May 22, 2000, the circuit court 

awarded both parties a divorce a vinculo matrimonii, yet 

referred the equitable distribution determination back to the 

commissioner for further consideration regarding the 

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identification, classification, valuation and distribution of 

the parties' assets and liabilities pursuant to Code § 20-107.3. 

A more specific referral order to the commissioner was entered 

May 26, 2000. However, no changes were made by the commissioner 

to her initial report, and there is no evidence in the record 

that the matter was given any further consideration other than 

the commissioner's testimony before the court, on July 24, 2000, 

that she felt she had "covered all the required factors to be 

reviewed between the parties" and she was "not prepared to 

modify [her] opinion unless there [was] new evidence that . . . 

changes what [was] reviewed." Nothing appears in the record to 

reflect the disposition of the specific assignments in the 

circuit court's May 26, 2000 order. 

 After several additional hearings regarding husband's 

objections to the commissioner's findings, the circuit court 

judge stated, on December 13, 2000, that he saw "no reason that 

the marital property should not be divided equally, 50/50 

. . . . I have considered the statutory factors set out in [Code 

§ 20-107.3]" and "in considering all the statutory factors of 

the contributions, monetary and non-monetary of each party to 

the well being of their family, this is a successful family." 

He also found "most of [the] debts were made during the 

marriage, and like assets, anything acquired during the marriage 

is presumed to be marital property and marital liabilities." 

Finally, the judge stated, "it was the finding of the 

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[c]ommissioner, and [it is] the finding of the court that 

[husband and wife] should share equally insofar as possible." 

 On December 14, 2000, an order was issued providing as 

follows: 

[T]he Court FINDS the Special Commissioner's 

Report to be reasonable and consistent with 

the provisions of Section 20-107.3 of the 

Code of Virginia, as amended, and more 

particularly, the factors enumerated in 

20-107.3(e) [sic] were considered and 

addressed by the Special Commissioner 

. . . . 

II. STANDARD OF REVIEW 

 On appeal, we review the evidence in the light most 

favorable to the party prevailing below. See, e.g., Anderson v. 

Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). 

Where the evidence was considered by a commissioner and not ore

tenus by the circuit court, the decree is not given the same 

weight as a jury verdict, but if the decision is supported by 

substantial, competent and credible evidence in the depositions, 

it will not be overturned. McLaughlin v. McLaughlin, 2 Va. App. 

463, 466-67, 346 S.E.2d 535, 536 (1986) (citations omitted). 

See also Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 

827, 828 (1986) (a decree based upon depositions rather than 

evidence heard ore tenus nonetheless is presumed correct and 

will not be overturned if supported by the evidence). Moreover, 

a judgment of the circuit court will not be set aside on the 

ground that it is contrary to the law and the evidence unless it 

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appears from the evidence that such a judgment is plainly wrong 

or without evidence to support it. Code § 8.01-680. 

III. ANALYSIS 

 In any equitable distribution proceeding, the circuit court 

must follow three basic steps. First, the court must classify 

the property (the assets and liabilities) as separate, marital, 

or hybrid (part separate and part marital property). A value 

must then be assigned to every item or portion deemed martial 

property, and the value must be based upon evidence presented by 

the parties. Finally, the court is to divide the property 

between the parties, taking into consideration all the 

specifically enumerated factors in Code § 20-107.3(E). It is 

reversible error for the court not to do so. Alphin v. Alphin, 

15 Va. App. 395, 405, 424 S.E.2d 572, 577 (1992). 

 A circuit court may assign a commissioner in chancery to 

receive and consider the evidence for equitable distribution. 

The commissioner, upon consideration of the statutory factors, 

will then make a recommendation to the court for the appropriate 

disposition of the martial estate. Generally, the court should 

affirm a commissioner's report unless the evidence does not 

support the findings. Price v. Price, 4 Va. App. 224, 355 

S.E.2d 905 (1987). However, when the court refers a case to a 

commissioner, it does not delegate its judicial functions to the 

commissioner, but rather, "the court must review the evidence, 

apply the correct principles of law, and make its own 

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conclusions as to the appropriate relief required." Dukelow v. 

Dukelow, 2 Va. App. 21, 26-27, 341 S.E.2d 208, 211 (1986). We 

cannot say that standard has been met in this case. 

A. CLASSIFICATION 

 We consider husband's contentions on appeal in the order in 

which they would arise pursuant to a proper equitable 

distribution process. 

1. Kentucky Real Property 

 We begin with husband's contention that the commissioner 

and circuit court erroneously classified real property in 

Middlesboro, Kentucky, as separate property belonging to wife. 

For the following reasons we find the court did not commit 

reversible error in making this classification. 

 Marital property is all property titled in the names of 

both parties and all other property acquired by each party 

during the marriage, which is not separate property (received 

during the marriage by bequest, devise, descent, survivorship or 

gift from someone other than the spouse). Code 

§ 20-107.3(A)(2). "All property . . . acquired by either spouse 

during the marriage . . . is presumed to be marital property in 

the absence of satisfactory evidence that it is separate 

property." Id. This presumption applies to the debt 

liabilities of the parties as well. 

 For property claimed by the other spouse as separate 

property, the non-owning spouse bears "the burden of proving 

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that (i) contributions of marital property or personal effort 

were made and (ii) the separate property increased in value." 

Code § 20-107.3(A)(3)(a). 

 The Middlesboro property was formerly titled to wife's 

mother and father, who deeded it into wife's name alone during 

the parties' marriage. A current deed of trust, in both 

parties' names, is a lien on the property. However, wife's 

parents, who reside on the property, make the payments. Due to 

this debt liability, and husband's voluntary payment of one 

insurance bill,2 husband contends the property was transmuted 

from wife's separate property by gift to marital property and, 

therefore, the commissioner's classification as separate 

property was in error. We disagree. 

 The depositions presented to the commissioner and the court 

reflect that the property was purposefully conveyed only to 

wife, during the marriage, as a gift from her parents. Thus 

there was evidence in the record to rebut the presumption the 

Kentucky real estate was marital property. The burden then 

shifted to husband to prove marital contributions were made, 

which increased the value of the property. While husband may 

have made a de minimus monetary and labor contribution, we 

cannot say the court erred in finding that husband did not meet 

 2

 Husband paid one bill during the separation without the 

knowledge of wife or her parents. 

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his burden to show a transmutation of the separate property to 

marital or hybrid property. 

 There was evidence that wife's parents made all the 

mortgage payments, paid for all maintenance and improvements to 

the home and land, with the exception of one insurance payment 

made by husband unbeknownst to them during the parties' 

separation. There is no evidence that the property was acquired 

by wife in exchange for valuable consideration, i.e., that wife 

obtain a mortgage on the property and pay the loan funds over to 

her parents. In addition, the evidence showed that wife only 

purchased a replacement dishwasher for the home when it was 

needed, just as the parents had purchased furniture and 

appliances for the parties' home in Virginia; and folded laundry 

or helped in the flower garden when she visited. Husband helped 

to install a ceiling fan and the dishwasher at the Kentucky 

property. 

 The co-signing of a loan against the property and the 

purchase of the replacement dishwasher for the parents' use are 

not substantial and did not measurably increase the property 

value. There is no evidence that wife commingled debt 

liability, funds, and joint income with regard to the Kentucky 

property, as to change the nature of the property from separate 

to marital. Services performed by the parties with regard to 

the property were not substantial, and the commissioner and the 

court did not err in finding them insufficient to establish 

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transmutation. See Lambert v. Lambert, 6 Va. App. 94, 103-05, 

367 S.E.2d 184, 190-91 (1988); Code § 20-107.3(A)(1) (personal 

efforts must be significant and result in substantial 

appreciation). 

2. Other Property 

 Husband also complains that the equitable distribution 

award is erroneous because the commissioner failed to classify 

other items distributed as either marital or separate. We 

agree. Upon a review of the record, it was wife's contention 

that several items, including bedroom suites, dishes, 

collectibles, etc., were gifts to her and should be classified 

as her separate property. These items were awarded to wife, but 

we are unable to determine whether the commissioner or court 

determined their classification. 

 Prior to the equitable distribution of property, the 

circuit court must classify the parties' property as marital, 

separate, or hybrid. See Code § 20-107.3(A). If no evidence is 

presented upon which the court can properly classify each item, 

faced with the statutory presumption and the lack of 

satisfactory evidence to rebut it, the property should be 

classified as marital. Stainback v. Stainback, 11 Va. App. 13, 

396 S.E.2d 686 (1990). Neither the commissioner's report nor 

the court's orders classify any of the parties' personal 

property. As we reverse the award on other issues for further 

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consideration, on remand the circuit court should determine the 

classification of each asset. 

B. VALUATION 

 Husband also contends that the commissioner and court erred 

in assigning value to certain property and in failing to assign 

any value to other items, which is required if classified as 

marital property. We agree. 

 We will not disturb a finding of value of an asset, 

however, unless the finding is plainly wrong or unsupported by 

the evidence. See Traylor v. Traylor, 19 Va. App. 761, 763-64, 

454 S.E.2d 744, 746 (1985). 

1. The Lee County Real Property 

 In this case, conflicting expert appraisals of the real 

property in Lee County were presented to the commissioner and 

court. The commissioner and court chose to accept the first 

appraisal submitted. Husband, who disliked the first appraisal 

and submitted a second, contends the commissioner and the court 

arbitrarily disregarded the credible evidence of his appraisal. 

He argues the court's acceptance of the commissioner's valuation 

was error. We disagree with the contention that the acceptance 

of the original appraisal was error; however, the determination 

of equity was plainly wrong. 

 A court may "choose among conflicting assessments of value 

as long as its finding is supported by the evidence." McDavid 

v. McDavid, 19 Va. App. 406, 413, 451 S.E.2d 713, 718 (1994); 

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see also Reid v. Reid, 7 Va. App. 553, 563, 375 S.E.2d 533, 539 

(1989) (commissioner may find one of several conflicting expert 

appraisals more credible so long as credible evidence supports 

selected appraisal); Brown v. Brown, 11 Va. App. 231, 236, 397 

S.E.2d 545, 548 (1990) ("The commissioner has the authority to 

resolve conflicts in the evidence and to make factual 

findings."). 

 The chosen value was based on an expert appraisal, with 

credible evidence of value. We cannot say that the court was 

plainly wrong or without evidence to select the initial 

valuation. The court was not required to reject the appraisal 

merely because husband believed his "evidence might be more 

accurate, convincing, desirable, or persuasive." Bowers v. 

Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987); see 

also Zipf v. Zipf, 8 Va. App. 387, 395, 382 S.E.2d 263, 268 

(1989). 

 While the selection of the appraisal was not reversible 

error, we do hold the valuation of equity in the property is 

plainly wrong. There is credible evidence in the record of a 

lower net equity amount than computed by the commissioner and 

adopted by the court. There is credible evidence of additional 

secured loans to Southwest Farm Credit against the property not 

addressed by the fact finder and clear evidence that the total 

amount of husband's post-separation loan payments were added to 

the "marital" equity, without any allocation between principal 

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and interest to accurately reflect decreased liability and 

increased equity. In response to our inquiry at oral argument 

as to whether the husband's representation of indebtedness was 

correct, wife's counsel gave three separate responses: 

"correct," "incorrect" and "don't know." It is very clear from 

the record there is a discrepancy in fact between the 

commissioner's determination and actual equity. The record does 

not indicate this discrepancy was addressed. 

 On remand, the court should make specific findings as to 

the secured debt against the property and the lien balances as 

it determines the proper equity amount as of the valuation date. 

As more fully discussed in Section C, the court should also make 

findings as to the change in equity created by husband's 

post-separation secured lien payments and whether that portion 

of the equity attributable to such payments is marital, separate 

or hybrid property. The court should also make findings as to 

the valuation and classification of that portion of husband's 

post-separation secured lien payments, which are not found to be 

part of the Virginia real property's equity. 

 This process may require the taking of additional evidence 

caused by the passage of time while additional payments have 

been made, but that is a determination best made by the trial 

court. 

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2. Other Property 

We further find that is was error to make the equitable 

distribution without valuing all the martial property. 

Obviously, this was made difficult by the failure to classify 

all the property as previously discussed. The circuit court on 

remand should specify the properties and associated values for 

every marital asset and liability in the new award. See

Gottlieb v. Gottlieb, 19 Va. App. 77, 95, 448 S.E.2d 666, 677 

(1994). The values of the assets and liabilities should be 

based on credible evidence provided by both parties if they so 

choose. The valuation assigned to marital property cannot be 

based on "mere guesswork."3 Bosserman v. Bosserman, 9 Va. App. 

1, 5, 384 S.E.2d 104, 107 (1989). However, where the parties 

have been given a reasonable opportunity to provide the 

necessary evidence to prove valuation and through their lack of 

diligence have failed to do so, the court may make an award 

without giving consideration to the value of every item of 

property. Bowers, 4 Va. App. at 618, 359 S.E.2d at 551. 

Therefore, assets such as the bedroom suite, dishes, etc., if 

deemed martial property during the classification stage, should 

be assigned a value based on submitted evidence from the 

parties. 

 3

 For example, it appears under the court's award, which was 

based on the commissioner's report, husband was allocated all of 

the Southwest Farm Credit debt, but it was not taken into 

account in computing the equity of the Lee County property. 

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C. CONSIDERATION UNDER § 20-107.3 

 Finally, husband contends the circuit court erred in 

accepting the commissioner's report without evidence that it 

considered all the appropriate factors in Code § 20-107.3. He 

requests that the award be remanded for further consideration. 

As we are unable to find identifiable support in the record that 

the statutory factors were considered, we agree that the 

equitable distribution award should be reversed and remanded. 

 The appropriate consideration of the factors by the 

commissioner and the circuit court entails more than a mere 

recitation in the record or decree that all the statutory 

factors have been considered or reviewed. 

The enumerated factors are intended to guide 

the court's exercise of discretion, and 

substantive consideration of these factors 

should be incorporated into the 

decision-making process. See Woolley v. 

Woolley, 3 Va. App. 337, 345, 349 S.E.2d 

422, 426 (1986). "This does not mean that 

the [circuit] court is required to quantify 

or elaborate exactly what weight or 

consideration it has given to each of the 

statutory factors." Id. However, when [the 

circuit court] fails to articulate 

sufficiently the consideration he or she has 

given to the statutory criteria, "we must 

examine the record to determine if the award 

is supported by evidence relevant to those 

factors." Gibson v. Gibson, 5 Va. App. 426, 

435, 364 S.E.2d 518, 523 (1988). 

Alphin, 15 Va. App. at 405, 424 S.E.2d at 578. Based on the 

record before us, such as it is, we cannot determine how or if 

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the commissioner or the court applied the Code § 20-107.3(E) 

factors to this case. 

 Except for general, non-specific statements that the 

statutory factors were considered, the record does not reflect 

that the commissioner or the court considered and applied Code 

§ 20-107.3(E) to distribute the marital estate. Few findings 

were made, and the court's deliberative process is not 

identified so as to facilitate appellate review. It is 

difficult, if not impossible, for an appellate court to review 

the statutory requirements as applied in equitable distribution 

proceedings when the circuit court announces only the end 

product of its deliberations. We cannot tell upon what evidence 

the recommended distribution was based or why. While the court 

is not expected to do a law review article on the rationale for 

the equitable distribution award, it needs to give some 

identifiable written rationale. For example, we cannot find in 

the record where the issues referred to the commissioner, by the 

May 26, 2000 order, were answered. 

 While the asset division may be adequate based on the fact 

that each worked during the marriage and all income earned was 

spent by the parties, the failure to classify and value all the 

assets does not allow for verification that the court's intended 

division was properly done. We cannot determine that the 

liability division is supported by substantial and credible 

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evidence.4 While husband does not specifically complain of this 

assignment, and while it is within the court's discretion to 

make such a division, it is evident to us that the court failed 

to identify adequate consideration of the statutory factors. 

 Under such circumstances, we are unable to conduct a proper 

appellate review of the disputed award and must reverse the 

award and remand for further consideration by the court, guided 

by Code § 20-107.3.5 "There must be a proper foundation in the 

record to support the granting of an award and the amount of the 

award." Stumbo v. Stumbo, 20 Va. App. 685, 693, 460 S.E.2d 591, 

595 (1995). 

 An indication of the inadequate assessment of the statutory 

factors is an absence in the record of any consideration given 

to husband's request for a credit in recognition of his 

post-separation mortgage payments. We find it was an abuse of 

discretion for the commissioner and court to fail to consider 

husband's request for a credit for these post-separation 

payments. The separate contribution of one party to the 

acquisition, care, and maintenance of marital property is a 

factor that the court must consider when making its award of 

 4

 The debt division proposed by the commissioner's report 

and adopted by the court seems contrary to the court's bench 

statements about equal division. 

5

 Our disposition does not presuppose that the present 

division is erroneous but results only from the inability to 

conduct a proper appellate review. 

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equitable distribution. Upon remand, the court should give due 

consideration of these payments in its equitable distribution 

award.6

 Accordingly, the decree appealed from is affirmed in part 

as noted above and reversed in part. The case is remanded for 

such further proceedings as the circuit court considers 

appropriate to make an award concerning the property of the 

parties that is consistent with the principles expressed in this 

opinion. 

 Affirmed in part, 

reversed in part,

and remanded. 

 6

 We note, however, Code § 20-107.3 does not mandate that 

the circuit court award a corresponding dollar-for-dollar credit 

for such contributions. von Raab v. von Raab, 26 Va. App. 239, 

249-50, 494 S.E.2d 156, 161 (1997). 

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