COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey 

Argued at Chesapeake, Virginia 

WALTER THOMAS GOLEMBIEWSKI 

v. Record No. 2446-04-1 

GAE SUSAN ANDERSON-MILLER MEMORANDUM OPINION*

 BY 

 JUDGE WALTER S. FELTON, JR. 

GAE SUSAN ANDERSON-MILLER JUNE 14, 2005 

v. Record No. 2468-04-1 

WALTER THOMAS GOLEMBIEWSKI 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 Lawrence D. Diehl for Walter Thomas Golembiewski. 

 Michael C. Miller (Marcia M. Maddox; Katharine W. McGregor; 

Maddox, Cole & Miller, P.C., on briefs), for Gae Susan 

Anderson-Miller. 

 Walter Thomas Golembiewski (husband) appeals the trial court’s equitable distribution of 

the parties’ marital estate. Husband contends that the trial court erred in (1) awarding the 

Individual Retirement Account (IRA) titled in wife’s name to her; (2) refusing to award to him the 

rental value for wife’s occupancy of the marital residence following the parties’ separation, and 

(3) awarding wife the larger share of the marital equity in the marital residence. Gae Susan 

Anderson-Miller (wife) cross-appeals, contending that the trial court erred in (1) awarding to 

husband a disproportionate share of the equity in the marital residence as his separate property 

based on his tracing evidence; (2) classifying property acquired during the marriage from 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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unidentified sources as husband’s separate property; and (3) failing to classify the note proceeds, 

payable to both husband and wife, from the sale of husband’s separate real estate as marital 

property. For the reasons that follow, we reverse the trial court’s award to wife of the IRA titled in 

her name and remand for classification and distribution pursuant to Code § 20-107.3, but otherwise 

affirm the judgment of the trial court. 

BACKGROUND 

Husband and wife were married in 1984 in Pennsylvania. In October 2002, the trial court 

awarded wife a divorce on the grounds that the parties had lived separate and apart for more than 

one year. Code § 20-91(9)(a). It declined to make an equitable distribution determination, 

finding that the parties had waived equitable distribution in their pre-marital agreement. 

Husband appealed the judgment of the trial court declining to order equitable distribution. See

Golembiewski v. Golembiewski, No. 2993-02-1, 2003 Va. App. LEXIS 507 (Oct. 7, 2003) 

(Golembiewski I). In Golembiewski I, a panel of this Court held that the terms of the parties’ 

pre-marital agreement did not exclude the equitable distribution of “any joint property or 

property voluntarily placed in joint title or [separate] property voluntarily placed in the name of 

the other.” Id. slip op. at 9, 2003 Va. App. LEXIS 507, at *15-16. This Court instructed the trial 

court to apply the provisions of Code § 20-107.3 to the property of the parties falling into these 

designated categories. Id.

On remand, the trial court heard evidence ore tenus related to the equitable distribution of 

the parties’ property, including evidence related to the purchase of the marital residence, the 

proceeds of a jointly payable note arising from the sale of husband’s separate property,1

 and all 

 1

 In 1997, husband sold a parcel of his separate real estate, with a portion of the purchase 

price payable over time pursuant to the terms of a mortgage note payable to husband and wife. 

The purchaser subsequently entered bankruptcy, and the proceeds of the note were distributed as 

a part of the bankrupt’s estate. 
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separate “property voluntarily placed in the name of the other.” The trial court entered a final 

equitable distribution order in September 2004, awarding each party the IRA then titled in his or 

her name. It found husband had shown that the IRAs were funded with contributions exclusively 

from his separate funds and that he did not gift to wife his separate property in the IRA titled in 

her name. It found that wife’s IRA “constitutes separate property voluntarily placed in the name 

of another.” Finding that “[s]ince § 20-107.3 does not directly address non-gift separate property 

voluntarily placed in the name of another,” the trial court awarded wife the IRA titled in her 

name “by virtue of the Court’s inherent general equitable powers.” It also awarded the proceeds 

of the note from the sale of husband’s separate property to husband as his separate property, 

finding that no gift of that property was made to wife, even though the note was made payable to 

both husband and wife. It declined to award husband any rental value for wife’s post-separation 

occupation of the marital residence. 

 The trial court found that the marital residence, titled in the parties’ joint names as tenants 

by the entirety, had a value of $565,000, with an outstanding mortgage balance of $40,511, 

resulting in an equity valued at $524,489. Applying the Brandenburg formula, approved by this 

Court in Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 (1998), the trial court concluded that 

husband paid $177,693 from his separate property toward the purchase of the residence. That 

amount included $73,372 of his separate funds paid at closing and $104,321 of his separate funds 

applied to reduce the mortgage principal. After deducting the $177,693 traced to husband’s 

separate property from the total equity, the trial court awarded wife eighty-five percent of the 

remaining marital equity in the residence, concluding that she was the primary wage earner 

during the marriage2

 and that she made greater non-monetary contributions to the well-being of 

the family. Wife subsequently remarried and eventually returned to Pennsylvania. Thereafter, 

 2

 Husband had considerable passive income from his separate property. 
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husband was awarded custody of the parties’ daughter who remained with him in Virginia. The 

trial court awarded husband the marital residence, provided that he purchase wife’s interest in the 

property. Both husband and wife appeal the equitable distribution order. 

HUSBAND’S APPEAL 

On appeal, we view “the evidence in the light most favorable to . . . the party prevailing 

below and grant all reasonable inferences fairly deducible therefrom.” Anderson v. Anderson, 

29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). “Fashioning an equitable distribution award 

lies within the sound discretion of the trial judge,” Srinivasan v. Srinivasan, 10 Va. App. 728, 

732, 396 S.E.2d 675, 678 (1990), and “[w]here, as here, the court hears the evidence ore tenus, 

its findings are entitled to great weight and will not be disturbed on appeal unless plainly wrong 

or without evidence to support it,” Alphin v. Alphin, 15 Va. App. 395, 399, 424 S.E.2d 572, 574 

(1992). 

I. 

Husband contends that the trial court erred in awarding to wife the IRA titled in her name 

but funded from husband’s separate funds, when it also concluded that no gift had been made by 

him of the property to her. In its equitable distribution award, the trial court stated: 

Since the Court accepts [husband’s] argument that no gift was 

proven and that the IRAs were funded with contributions 

exclusively from his separate funds, [wife’s] IRA constitutes 

separate property voluntarily placed in the name of another. Since 

§ 20-107.3 does not directly address non-gift separate property 

voluntarily placed in the name of another, the Court awards the 

IRA in [wife’s] name to her by virtue of the Court’s inherent 

general equitable powers. 

The record reflects that soon after the parties married, husband opened two separate IRA 

accounts, one titled in wife’s name and one titled in his name. The trial court found that husband 

made all the contributions to these two accounts from his separate property. Wife did not 

contribute funds to either account. Husband testified that wife had not opened an IRA, was not 
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interested in doing so, and that it was understood that he would fund an IRA in her name, but 

that it would remain his property. He explained that he funded the IRA titled in wife’s name 

solely for its tax benefit to the parties and that it was never intended to be a gift to wife. Wife 

testified that she did not object to the opening of the IRA in her name for tax purposes. 

The parties’ pre-marital agreement specified that property separately owned by the 

parties would not be subject to equitable distribution if the parties divorced. It also 

unambiguously provided that a party’s separate property voluntarily placed in the name of the 

other was not governed by the pre-marital agreement and thereby subject to equitable 

distribution. Golembiewski I., slip op. at 9, 2003 Va. App. LEXIS 507, at *16. Under these 

circumstances, the classification, valuation, and distribution of the IRA titled in wife’s name is 

governed by Code § 20-107.3. 

Virginia’s equitable distribution law provides that property, including retirement 

accounts, acquired by either party during marriage, and before the last separation of the parties, 

is presumed to be marital in the absence of satisfactory evidence that it is separate property. 

Code § 20-107.3(A)(2)(iii); see Gilman v. Gilman, 32 Va. App. 104, 116, 526 S.E.2d 763, 769 

(2000). Code § 20-107.3(A)(1)(iii) provides, among other things, that separate property is “all 

property acquired during the marriage in exchange for or from the proceeds of sale of separate 

property, provided that such property acquired during the marriage is maintained as separate 

property.” See Courembis v. Courembis, 43 Va. App. 18, 34, 595 S.E.2d 505, 513 (2004). 

Here the trial court concluded that, despite the IRA being acquired during the marriage 

and presumptively marital, husband’s tracing evidence proved that wife’s IRA was funded 

exclusively by his separate property. It also found that wife had failed to prove by clear and 

convincing evidence that husband intended a gift of this separate property to her. However, it 

then awarded the IRA in wife’s name to her pursuant to its “inherent general equitable powers,” 
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holding that “[Code] § 20-107.3 does not directly address non-gift separate property voluntarily 

placed in the name of another.” 

We conclude that the trial court erred by failing to comply with the provisions of Code 

§ 20-107.3 in awarding the IRA titled in wife’s name as separate property voluntarily placed in 

her name by husband, after determining that it was funded exclusively by husband’s separate 

property and that wife had failed to prove it was gifted to her by husband. See Code 

§ 20-107.3(C). Accordingly, we reverse that part of the trial court’s final decree and remand for 

further classification and distribution pursuant to Code § 20-107.3. 

II. 

Husband also contends on appeal that the trial court erred in declining to award him 

rental value of the marital residence for the period wife occupied that property following the 

parties’ separation. He concedes that such an award lies within the discretion of the trial court, 

but argues that it abused its discretion under the evidence presented. We find no error. 

Husband asserts that wife continued to occupy the marital residence after he moved out; 

that she never paid him any rent; that she resided in the home with her new husband; and that her 

monetary contributions toward the residence would not offset his “extensive payments” made 

during her sole occupancy. The record on appeal does not support husband’s claim that he made 

“extensive payments” toward the marital residence after the parties separated. Wife testified that 

after husband left the marital residence she “[paid] for everything” and that she “tried really 

hard” to maintain the property. 

Husband’s reliance on Anderson v. Anderson, 42 Va. App. 643, 593 S.E.2d 824 (2004), 

is misplaced. In Anderson, the husband remained in the marital residence after wife moved out, 

and rented a portion of it to third parties. Id. at 645, 593 S.E.2d at 825. Under those 

circumstances, the trial court correctly determined that wife was entitled to credit for the rents 
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collected by husband from the marital property between the time of the parties’ separation and its 

final equitable distribution award. Id. Here, wife remained in the marital residence with the 

parties’ young daughter and, later, her new husband. She did not rent or lease any portion of the 

residence to third parties. Accordingly, there were no rental payments from the marital residence 

to be distributed between the parties or credited to either in the final equitable distribution award. 

From the record before us, we find no abuse of discretion by the trial court in refusing to award 

any rental value from the marital residence to husband. 

III. 

 Husband also contends that the trial court erred by granting a disproportionate share of 

the marital equity in the marital residence to wife. We have consistently held that “[e]quitable 

distribution does not mean equal distribution. In Virginia, there is no presumption that marital 

property should be equally divided.” Budnick v. Budnick, 42 Va. App. 823, 838, 595 S.E.2d 50, 

57 (2004) (citations omitted). 

We will not disturb the trial court’s equitable distribution award 

merely because it is unequal in value between the parties, where 

the record reflects that the trial court has considered each of the 

factors set out in Code § 20-107.3(E), and where the evidence 

supports the trial court’s conclusions. 

Id. at 838, 595 S.E.2d at 58 (citations omitted). 

The trial court awarded eighty-five percent of the marital equity in the marital residence 

to wife after considering the factors enumerated in Code § 20-107.3. It also awarded husband a 

substantial value of the total equity in the marital residence as his separate property, based on 

payments of his separate funds toward its initial purchase and reduction of the mortgage 

principal. The record reflects that wife was the primary wage earner during the marriage and 

that she made significant monetary and non-monetary contributions to the marriage. From our 
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review of the record, we conclude that the trial court did not abuse its discretion in allocating 

eighty-five percent of the marital equity in the marital residence to wife. 

IV. 

 Finally, husband requests an award of attorney’s fees and costs expended in this appeal. 

 Reviewing the record of the proceedings as a whole, we decline to award husband his 

attorney’s fees and costs incurred on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 

479 S.E.2d 98, 100 (1996). 

WIFE’S CROSS-APPEAL 

I. 

In her cross-appeal wife contends husband’s evidence was insufficient to trace the value 

of his separate property in the marital residence and that the trial court abused its discretion in 

finding that husband contributed $177,693 of his separate property in the initial purchase 

payment and in the reduction of the mortgage principal. She argues that husband’s testimony as 

to tracing of his separate property was incredible and that his documentary tracing evidence was 

inadequate and incomplete considering a ten-year gap in his records from 1984 and 1994. 

The parties titled the marital residence in their joint names as tenants by the entirety. 

Acquired during the marriage, it was presumptively marital property, except to the extent that 

husband was able to rebut that presumption by credible tracing evidence of his separate property 

in the marital residence. See Code § 20-107.3(A)(2); see also Gilman, 32 Va. App. at 116, 526 

S.E.2d at 769. Here, the record reflects that husband provided most of the initial down payment 

from his separate sources, including proceeds from the sale of his separately owned real estate, 

the sale of his separately held stock, and funds received from his various separate investment 

accounts. In addition to his testimony, he presented documents tracing the funds from his 

separate property sources, including account balances and transaction records. The trial court 
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found husband’s tracing evidence sufficient to rebut the marital presumption and that his proof 

established a separate property value of $177,693 in the total equity in the marital residence. The 

record before us supports its judgment. 

 Accordingly, we affirm the trial court’s finding of husband’s separate property interest in 

the marital residence. 

II. 

 Wife also contends that the trial court erred in awarding husband the $10,000 proceeds of 

a note, made payable to husband and wife, derived from the sale of husband’s separate real 

estate, which he acquired prior to the marriage and maintained as his separate property during the 

marriage. The purchaser of husband’s property financed a portion of the purchase price by a 

note payable to husband and wife. Wife argues that the note is a new asset acquired during the 

marriage and presumptively marital property. She further argues that husband’s tracing evidence 

failed to rebut the presumption that the note was marital property. 

Husband testified that he added wife’s name as joint payee of the purchasers’ note on 

advice of his attorney in Pennsylvania where the property was located and that it was never his 

intention to gift any part of the note proceeds from the sale of his separate property to wife. The 

trial court found that husband’s retracing evidence established that the note proceeds were 

husband’s separate property and that wife failed to prove by clear and convincing evidence that 

husband intended to make a gift to her of the note proceeds. See Bchara v. Bchara, 38 Va. App. 

302, 312-13, 563 S.E.2d 398, 403 (2002) (jointly titled real estate and jointly titled accounts 

remained the wife’s separate property upon her establishing she had acquired the property by 

inheritance and evidence failed to show any gift). 

From the record before us, we find no abuse of discretion in the trial court’s decision to 

award husband the $10,000 note proceeds, and affirm its judgment. 
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CONCLUSION 

 We find no abuse of discretion by the trial court in finding husband’s evidence sufficient to 

trace his separate property from the jointly owned marital residence; in its classification of the 

parties’ respective interests in the marital residence; and in its equitable distribution of the marital 

equity in the marital residence. We also conclude that the trial court did not abuse its discretion in 

its award to husband, as his separate property, of the purchase money note proceeds from the sale of 

his separately owned real estate in Pennsylvania. We also conclude that the trial court did not err in 

declining to award any rental value to husband for the period wife occupied the marital residence 

after the parties’ separation, or in its allocation to wife of eighty-five percent of the marital equity in 

the parties’ marital residence. 

 However, we hold that the trial court erred in awarding to wife the IRA titled in her name, 

after determining that it was funded exclusively by husband’s separate property and that no gift of 

that property was made by husband to wife. Accordingly, we reverse the judgment of the trial court 

awarding to wife the IRA in her name, and remand for classification and distribution pursuant to 

Code § 20-107.3. 

Affirmed, in part,

and reversed, in part,

and remanded.