COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judges Felton and Kelsey Argued at Chesapeake, Virginia

WALTER THOMAS GOLEMBIEWSKI v. Record No. 2446-04-1
GAE SUSAN ANDERSON-MILLE R 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 & Mille r, P.C., on briefs), for Gae Susan Anderson-Miller.
Walter Thomas Golembiewski (husband) appeal s 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 pa rties’ separation, and (3) awarding wife the larger share of the marita l equity in the marital residence. Gae Susan Anderson-Miller (wife) cross-appeal s, contending that the trial c ourt erred in (1) awarding to husband a disproportionate share of the equity in the marital resi dence as his separate property based on his tracing evidence; (2) classifying property acquired duri ng the marriage from

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - 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 es tate as marital property. For the re asons that follow, we revers e the trial court’s award to wife of the IRA titled in her name and remand for classification and distri bution pursuant to Code § 20-107.3, but otherwise affirm the judgment of the trial court.
BACKGROUND Husband and wife were married in 1984 in Pe nnsylvania. In Octobe r 2002, the trial court awarded wife a divorce on the grounds that the part ies had lived separate and apart for more than one year. Code § 20-91(9)(a). It declined to make an equitable di stribution determination, finding that the parties had waived equitable di stribution in their pre-marital agreement. Husband appealed the judgment of the trial cour t declining to order equ itable distribution. See Golembiewski v. Golembiewski , No. 2993-02-1, 2003 Va. App. LEX IS 507 (Oct. 7, 2003) (Golembiewski I) . In Golembiewski I , a panel of this Court held th at the terms of the parties’ pre-marital agreement did not exclude the equ itable distribution of “any joint property or property voluntarily placed in joint title or [separate] propert y voluntarily placed in the name of the other.” Id. slip op. at 9, 2003 Va. App. LEXIS 507, at *15- 16. This Court inst ructed 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 equi table distribution of the parties’ property, including ev idence 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 entere d bankruptcy, and the proceeds of the note were distributed as a part of the bankrupt’s estate.- 3 - separate “property voluntarily placed in the name of the other.” The trial court entered a final equitable distribution order in September 2004, awar ding each party the IRA then titled in his or her name. It found husband had shown that the IR As were funded with c ontributions exclusively from his separate funds and that he did not gift to wife his separate prope rty in the IRA titled in her name. It found that wife’s IRA “constitutes se parate property voluntar ily placed in the name of another.” Finding that “[s] ince § 20-107.3 does not directly addr ess 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 i nherent 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 prope rty was made to wife, even though the note was made payable to both husband and wife. It declined to award hus band 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 tria l court awarded wife eighty-five percent of the remaining marital equity in the residence, c oncluding that she was the primary wage earner during the marriage 2 and that she made greater non-moneta ry contributions to the well-being of the family. Wife subsequently remarried and even tually returned to Pennsylvania. Thereafter,

2 Husband had considerable passive income from his separate property.- 4 - husband was awarded custody of the parties’ daughter who remained with him in Virginia. The trial court awarded husband the marital residence, pr ovided that he purchase wi fe’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 fair ly deducible therefrom.” Anderson v. Anderson , 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). “Fas hioning an equitable distribution award lies within the sound discretion of the trial judge,” Sriniv asan 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 di sturbed on appeal unless plainly wrong or without evidence to s upport 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 al so concluded that no gift had been made by him of the property to her. In its equitabl e 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 part ies 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 account s from his separate property. Wife did not contribute funds to either account. Husband tes tified that wife had not opened an IRA, was not- 5 - 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 openi ng of the IRA in her name for tax purposes. The parties’ pre-marital agreement specifi ed that property separately owned by the parties would not be subject to equitable dist ribution 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 ag reement 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 pr ovides that property, including retirement accounts, acquired by either party du ring marriage, and before the last separation of the parties, is presumed to be marital in the absence of sa tisfactory 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 fo r or from the proceeds of sale of separate property, provided that such prope rty 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, despit e the IRA being acquire d during the marriage and presumptively marital, husband’s tracing evidence proved that wife’s IRA was funded exclusively by his separate proper ty. It also found that wife had failed to prove by clear and convincing evidence that husband inte nded a gift of this separate property to her. However, it then awarded the IRA in wife’s name to her purs uant to its “inherent ge neral equitable powers,”- 6 - 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 fa iling to comply with th e 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 fi nal decree and remand for further classification and distri bution 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 pe riod wife occupied that property following the parties’ separation. He concedes that such an aw ard lies within the discretion of the trial court, but argues that it abused its discretion unde r the evidence presented. We find no error. Husband asserts that wife continued to occ upy the marital residen ce after he moved out; that she never paid him any rent; that she reside d 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 af ter the parties separated. Wife testified that after husband left the marital residence she “[pa id] 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- 7 - collected by husband from the marita l 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. Acco rdingly, there were no rental payments from the marital residence to be distributed between the par ties or credited to either in the final equitable distribution award. From the record before us, we find no abuse of discretion by the trial cour t 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 di stribution. 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 cour t’s equitable distribution award merely because it is unequal in va lue 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 enumerat ed in Code § 20-107.3. It also awarded husband a substantial value of the total equity in the marital residence as his se parate property, based on payments of his separate funds toward its in itial purchase and reduction of the mortgage principal. The record reflects that wife wa s the primary wage earner during the marriage and that she made significant monetary and non-moneta ry contributions to th e marriage. From our- 8 - review of the record, we concl ude that the trial court did not abuse its discretion in allocating eighty-five percent of the marital equ ity in the marital residence to wife.
IV. Finally, husband requests an aw ard of attorney’s fe es 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 9 8, 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 ma rital residence and that the trial court abused its discretion in finding that husband contributed $177,693 of his separate proper ty in the initial purchase payment and in the reduction of the mortgage pr incipal. She argues that husband’s testimony as to tracing of his separate propert y was incredible and that his documentary tracing evidence was inadequate and incomplete c onsidering a ten-year gap in his records from 1984 and 1994. The parties titled the marital residence in th eir 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 cred ible 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 pr esented documents traci ng the funds from his separate property sources, incl uding account balances and transact ion records. The trial court- 9 - found husband’s tracing evidence sufficient to rebut the marital presumption and that his proof established a separate property va lue 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 findi ng 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 th at the note is a new as set 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 th e property was located an d 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 faile d 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 fa iled 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 proceed s, and affirm its judgment.- 10 - CONCLUSION We find no abuse of discretion by the trial court in finding hu sband’s evidence sufficient to trace his separate property from the jointly owned marital residence; in its classification of the parties’ respective interests in th e 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 valu e 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 tr ial court erred in awarding to wife the IRA title d in her name, after determining that it was fundedexclusively by husband’s separate property and that no gift of that property was made by husband to wife. Accord ingly, we reverse the judgment of the trial court awarding to wife the IRA in he r name, and remand for classification and distribution pursuant to Code § 20-107.3. Affirmed, in part, and reversed, in part, and remanded.