COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardn er, Clements and McClanahan Argued at Richmond, Virginia

MICHAEL RAYMOND SIMPSON v. Record No. 1815-04-2 BARBARA BAGANZ SIMPS ON MEMORANDUM OPINION * BY JUDGE RUDOLPH BUMGARDNER, III BARBARA BAGANZ SIMPSON APRIL 26, 2005 v. Record No. 1827-04-2 MICHAEL RAYMOND SIMPSON

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge Steven L. Raynor (Robert E. Byrn e, Jr.; Martin & Raynor, P.C., on briefs), for Michael Raymond Simpson. John K. Taggart, III (Patricia D. McGraw; Trembl ay & Smith, LLP, on briefs), for Barbara Baganz Simpson.
Michael R. Simpson and Barbara B. Simpson appeal their final decree of divorce. The wife contends the trial court er red in classifying assets as th e husband’s separate property, in upholding a deed of partition, and in issuing a pr ospective ruling. The hus band contends the trial court incorrectly calculated s pousal support. For the following reasons, we affirm. The parties married in July 1988, had children in 1988 and 1990, and separated on December 9, 2002. The wife filed for divorce Ja nuary 9, 2003 on the grounds of adultery. The trial court heard the evidence ore tenus and received voluminous exhibits in January and

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - February 2004. It issued a lett er opinion February 26, 2004 and in corporated those decisions in its final decree entered July 6, 2004. The trial court granted the wife a divorce a vinculo matrimoni and classified certain rental real estate and a limited liability corporation as the husband’s separate property. It awarded the wife the marital residence and a to tal of 65% of the marital estate . It fixed spousal support at $7,727 per month and child support at $1,828 per month. We view the evidence in the light most fa vorable to the husband who prevailed in the trial court on the issues of classification. Congdon v. Congdon , 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). See also Martin v. Pittsylvania County Dep’t of Social Servs. , 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). Before the marriage, the husband owned and operated with his uncle a successful business name d the Ceiling and Floor Shop, Inc. They also began a practice of purchasing rental real estate together. As th ey built equity and accumulated excess income from their rents, they woul d acquire additional rental properties. The husband and his uncle continued their pr actice of acquiring real estate after the husband’s marriage. Before the marriage, the hus band and his uncle had purchased five rental properties. During the marriage they acquired el even more rental properties and continued the business practices established before the marriag e. The husband and his uncle also formed a limited liability corporation, CFS Property, LLC, that acquired and he ld title to the commercial property where the Ceiling and Floor Shop conducte d its business. It consisted of the shop’s retail space, offices, warehouse, and loading docks. Property acquired during the marriage is pr esumed to be marital property. Code § 20-107.3(A)(2); Courembis v. Courembis , 43 Va. App. 18, 35, 595 S.E.2d 505, 513 (2004); Stainback v. Stainback , 11 Va. App. 13, 17, 396 S.E.2d 686, 689 (1990). Separate property is any property acquired by a party before the marriage and maintained separately. Code- 3 - § 20-107.3(A)(1). Additionally, “[ i]ncome received from separate property during the marriage is separate property if not attributable to the personal effort of either party.” Id. The husband had the burden to prove by a preponderance of the evidence that the funds used to acquire new rental properties were separate. The husband introduced detailed financial record s to support his testimony that the rental properties were his separate proper ty. The exhibits show that re ntal income was deposited to a separate rental checking account established in the name of th e husband and his uncle alone. Those funds paid the mortgage on the propert y. When the partners accumulated sufficient surplus, they used it to purchase another rental property. All rental prope rties were titled in the name of the husband and his uncle, and only th ey executed the notes and deeds of trust associated with the purchases. The husband’ s testimony was corroborated by his uncle and the company’s two bookkeepers. No evidence showed commingling of separate and marital funds. The trial court found that the husband suffici ently “traced the sour ces of the funding and the payment of mortgages from separate funds whic h he kept separate from marital property.” The wife presented no exhibits to contradict the husband’s records or to show marital funds were commingled. She made no claim she had contributed any personal effort to the accumulation of those assets. The wife makes two primary arguments to s upport her view that the husband failed to rebut the presumption that propert ies acquired during the marriage ar e marital. First, she notes the bank records reflected that the husband’s separate funds passed th rough checking accounts opened after the marriage. She argues that t hose two checking accounts are presumed marital and the funds that passed through the accounts ar e presumed marital. She concludes the husband’s own records proved he used marita l funds to pay for the properties.- 4 - Secondly, the wife notes the husband borrowed m oney with which to pu rchase the rental properties. She argues the marital estate became indebted for repayment of the debts because the loans were incurred during the marriage. Thus, she concludes the husband’s own records prove he did not purchase the properties with separate funds. She cites Stainback , 11 Va. App. 13, 396 S.E.2d 686, and Wagner v. Wagner , 4 Va. App. 397, 358 S.E.2d 407 (1987). The rental partners did open new checki ng accounts during the marriage when they shifted their banking transactions to different banks. Howeve r, opening the accounts during the marriage did not convert the funds that passed through the accounts into marital property. All the funds in the accounts were traced to and from separate properties. The accounts were separate from the Ceiling and Floor Shop’s accounts. The income from the rental properties was deposited into those accounts, a nd the balances were used to pay the mortgage debt on the properties. The wife never had access to th e rental accounts, and no evidence showed any commingling of funds. Income received from the rental properties was always segregated from marital property. The husband and his uncle did borrow money during the marriage to purchase additional rental properties. They secured those loans with deeds of trust on the property purchased. They borrowed funds on their signatures alone, and neit her of their wives signed any of the loan documents. No marital funds were used to repa y the indebtedness on any of the properties. Property is acquired under the source of f unds rule whenever real economic value is created. Moran v. Moran , 29 Va. App. 408, 413-14, 512 S.E.2d 834, 836 (1999). When a party borrows money to buy property, the economic value of the property is created as the debt is paid. The husband proved that the debts incurred to purc hase new properties were repaid with income derived from separate property, which was itself separate property. Code § 20-107.3(A)(1). The- 5 - fact that the husband incurred the debt during the marriage does notalone make the property they acquired with its proceeds marital. Neither Stainback nor Wagnerpermits that interpretation. The trial court found that the contested prope rties were purchased with income from separate property and the mortgages were paid with this income that the husband maintained separately. When the trial court makes a fi nding that a party has su fficiently rebutted the presumption of marital property through traci ng, “[w]e will not overtur n that factual finding unless plainly wrong or without evidence to support it.” Bchara v. Bchara , 38 Va. App. 302, 313, 563 S.E.2d 398, 403 (2002). Substantial credible evidence supports the finding. Thus, we affirm the classification of the real prope rty as the husband’s separate property. The wife also contends the trial court erred in classifying the husband’s interest in CFS Property, LLC as his separate property. She ma kes an argument similar to that which she asserted for the rental real estate. She argues th at the corporation is pr esumed marital because it was formed during the marriage and that the hu sband’s financial reco rds do not rebut the presumption. The husband and his uncle formed the corporati on to acquire the real estate where they operated their Ceiling and Floor Shop business. The only function of th e corporation was to acquire and hold title to that commercial property. The husba nd and his uncle were the only owners of the corporation. The husband introduced financial records that he and his uncle each borrowed $6,000 from the shop to ca pitalize the corporation. The corporation used those funds and the proceeds from a loan secured by the prop erty to purchase it. The husband and his uncle repaid their initial loans from the shop with inte rest with rents received from the commercial property. All funds used to pay the outstandi ng balance on the mortgage came from its rental

account.- 6 - Creating the corporation during the marriage did not make th e husband’s interest in the corporation marital. The husband and his uncle capit alized it with separate property and kept it and its acquisition separate. Th e records of this transacti on support the husband’s testimony explaining it, and they both comport with the established business prac tices of the husband and his uncle. Proceeds from separate property were used to reinvest in new property and pay the debt incurred to acquire it. The trial court did not abuse it s discretion in classifying the husband’s interest in the corpora tion as his separate property. The wife argues that a deed of partition, in whic h she released her right, title, and interest in three properties acquired before the marriage, is unenforceable. She argues it is unconscionable and unenforceable because it does not comply with the Premarital Agreement Act. Code § 20-155. She maintains McDavid v. McDavid , 19 Va. App. 406, 451 S.E.2d 713 (1994), requires the deed to comply with that st atute. She contends she signed the deed without adequate disclosure as required by the act and thus did not knowi ngly waive her marital rights to the properties. Before the marriage, the husband and his uncle took title as joint te nants with right of survivorship and held their undivided interests as equitable separate estates. They continued that practice with the first two properties they acquired after the marriag e. Shortly after the marriage, the husband, his uncle, and their respective wives, executed the d eed of partition. The deed adjusted title in seven properties so the husband and his uncle held as tenants in common. The deed converted joint tenancies with survivorship to tenancies in common for six properties. The wives of the husband and his uncle released their ri ght, title, and interest in the three properties, acquired before the marriage, that had not been equitable separate estates. The trial court found the deed was “unambiguous and clear on its face.” Its purpose “was to get the properties out of survivorship as jo int tenants between” the husband and the uncle.- 7 - Their spouses “joined in the deed to convey th e properties so that ne ither man become [sic] owner if the other died. It is clear from the language of the deed . . . [that] title was granted to [the husband] as his separate property.” The tria l court specifically ruled the deed of partition was enforceable. A deed is an “instrument of conveyance” thattransfers title. A d eed “‘declare[s] and prove[s] the fact of conveya nce.’” Miller v. Reynolds , 216 Va. 852, 855, 223 S.E.2d 883, 885 (1976) (quoting 84 A.L.R. 1008). When a deed is clear and unambiguous, we need not look beyond its four corners to determine what was intended. Utsch v. Utsch , 266 Va. 124, 129, 581 S.E.2d 507, 509 (2003). Its validity does not rest upon principles of contract law. A deed, unambiguous on its face, is the final agreement between the parties. Davis v. Tazewell Place Assocs. , 254 Va. 257, 264, 492 S.E.2d 162, 166 (1997). The husband and his uncle initiall y held title to these propertie s as joint tenants with right of survivorship. They held their interests as sole and separate estates. Upon the death of one of them, the asset would pass to the other. The wi fe had no claim to her spouse’s properties unless the husband survived his uncle and she survived the husband. The deed of partition changed the title between the husband and his uncle to tenanc ies in common. It favored the wife because the husband’s estate would own a one-h alf interest at his death. Th e deed was an estate planning device, and its purpose was clear and unambi guous. The trial c ourt properly found it enforceable. Finally, the wife contends th e trial court erred by maki ng a prospective ruling. In decreeing spousal support, the tria l court found it was inappropriate for the wife to work outside the home. It explained that once the oldest ch ild reached 16 years old a nd could drive, it would be appropriate to impute income, and it remarked, “[t]hat will be a change of circumstance.”- 8 - A trial court’s “[d]etermination of suppor t awards must be based on contemporary circumstances and modified in the future as ch anges in circumstances occur.” Keyser v. Keyser , 2 Va. App. 459, 461, 345 S.E.2d 12, 13 (1986). “A trial court may not abrogate its responsibility to determine that a material change of circum stance justifies a modifi cation of child support by entering an order that results in an auto matic increase in the support obligation upon the occurrence of future events.” Solomond v. Ball , 22 Va. App. 385, 392-93, 470 S.E.2d 157, 160 (1996). See also Jacobs v. Jacobs , 219 Va. 993, 995-96, 254 S.E.2d 56, 58 (1979). In this case, the final order did not decr ee an automatic modifi cation of the spousal support award. The comment explained that the trial court based the substantial award of spousal support on the wife’s needto transport the children. Thatduty would likely end in a few months when the oldest child could drive. To th e extent the explanation could be construed as a finding of fact binding in future litigation, it w ould be error. However, we view the words as explanatory not adjudicatory. In addition, the husband acknowledged in argument that he would have to prove a change of circumstance before the support could be reduced. The husband also appealed from the final decr ee. In calculating spous al support, the trial court determined the husband’s monthly income was $30,211 per month. He maintains the trial court incorrectly determined his income and the wife’s expenses which caused it to award too much spousal support. He contends the trial co urt arbitrarily established his income based on outdated financial information that no longer reflected his true income. We view the evidence in the light most favorab le to the wife, who prevailed on this issue, and determine whether substantial credible evidence supports the tr ial court’s decision. Gray v. Gray , 228 Va. 696, 699, 324 S.E.2d 677, 679 (1985). The husband’s combined income from his salary and rental properties wa s $371,064.75, $372,610, and $324,724 in the years 2000, 2001, and 2002. He acknowledges that he earned appr oximately $300,000 in wages from the Ceiling- 9 - and Floor Shop in 2001 and 2002, but he claims his income dropped in 2003. He conceded his total income in 2003 from both wages and rents was $284,045, or $23,670.42 per month. The wife’s evidence demonstrated that gr oss sales at the Ce iling and Floor Shop increased $200,000 for the fiscal year that ended September 30, 2003. At that point, the business retained $165,413.38 in cash. In prev ious years, the business distri buted any remaining cash to the owners as a bonus and retained no undistri buted cash. The husband gave no explanation for retaining cash in 2003. Credible evidence showed the company distribu ted bonuses at the end of its fiscal year. The trial court did not abuse its discretion in determining the husband’s income had not decreased as he claimed. The trial court has br oad discretion to determin e spousal support, and this Court will not interfere with that finding ab sent an abuse of discretion. Joynes v. Payne , 36 Va. App. 401, 423, 551 S.E.2d 10, 20-21 (2001); Barker v. Barker , 27 Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). The trial court awarded $7,727 in spousal support. It noted that the award “takes into account the taxes that she will have to pay accord ing to the testimony of Robert Huff, CPA,” and that it excluded the mortgage payment due on the marital residence. The trial court also awarded the wife $1,828 in child support pursuant to the guidelines. The husband contends that the trial court inco rrectly calculated the wife’s expenses. He maintains it awarded spousal support in excess of the wife’s budgeted expenses because it counted expenses for the children twice and included an allowance for mortgage payments in violation of Gamble v. Gamble , 14 Va. App. 558, 577, 421 S.E.2d 635, 646 (1992). The wife submitted a monthly expense statement of $10,451.06. She acknowledged that it included expenses she incurred for the children and for payment of the mortgage on the marital residence. She also noted that her expense statement did not pr ovide for taxes on future support- 10 - payments. The wife’s accountant presented ev idence that any support awarded would be taxed at the rate of 31%, 25% federal tax and 6% state tax. The wife requested $7,727 in spousal support to cover taxes. The spousal support award does not reflect double counting of child care expenses or mortgage payments. The trial court specifically stated it excluded the mortgage expense but it included provision for taxes on the amounts r eceived. Reducing the amount decreed by the proven provision for taxes leaves a figure that refutes any argu ment that mortgage and child expenses were counted twice. When allowan ce is made for payment of taxes, the spousal support fixed by the trial court is supported by the evidence. We will not reverse a trial court’s factual finding if it is su pported by the evidence. For the reasons stated, we a ffirm the trial court. Affirmed.